St. Louis County Prosecuting Attorney Wesley Bell, who was elected last year on a radical reform platform, has taken a huge new step in that direction, establishing a unit to tackle wrongful convictions and abuse by the police.
The Conviction and Incident Review Unit, whose staff will report directly to Bell, will review past convictions where defendants claimed innocence as well as investigate police shootings and allegations of police misconduct.
At least 30 other prosecutors across the country have created or revamped similar units within the last 11 years, bringing the total number to 45 nationwide. Philadelphia District Attorney Larry Krasner, whose 2017 election made him perhaps the most progressive prosecutor in the country, significantly expanded his office’s existing conviction review unit shortly after his election. Rachael Rollins, the district attorney for Suffolk County outside of Boston, established an independent team to review police-involved shootings after she entered office this year.
For Bell — a former public defender, municipal judge, court prosecutor, and son of a cop — the inspiration came from those efforts as well as his personal experiences. “I’ve been practicing for 18 years,” he said in an interview with The Intercept, “and so I knew that there’s things that needed to be done differently.”
“I knew that there’s things that needed to be done differently.”
Bell campaigned on using data-driven research to reform the criminal justice system, including establishing an independent unit to review past convictions, a process that his predecessor Bob McCulloch did not have a system for. McCulloch had a reputation for being uncomfortably close with law enforcement, and the community’s distrust of him was only exacerbated following Officer Darren Wilson’s fatal August 2014 shooting of Michael Brown in Ferguson, Missouri. Against the wishes of the community, protesters, and activists — including the NAACP — McCulloch declined to appoint a special prosecutor in the case of Brown’s murder. The community channeled anger with the handling of Brown’s case into organizing power that propelled Bell to victory.
Asked how the new unit reflected a change from how his predecessor did business, Bell said, “It’s hard to compare something versus nothing. The prior administration — and again, I’m not taking shots at anyone personally, I’m just saying as far as policies are concerned — this wasn’t the approach,” he explained. “We know the same-old, same-old approach that we see incarcerating people based on their socio-economic stature, their zip code, their status, their race, their gender — that doesn’t work.”
Bell has made more than a few enemies since he ousted McCulloch in a primary last August. Rank-and-file prosecutors responded to Bell’s win by voting to join a police union before he was even sworn in, an unusual move that, as the American Civil Liberties Union pointed out, placed them under “direct governing authority” of the officers they’re sometimes tasked with prosecuting.
On his second day in office, Bell issued an internal memo implementing parts of his criminal justice reform platform immediately, making significant changes to the office’s approach to prosecuting marijuana-related offenses and other misdemeanors, and largely eliminating the use of cash bail.
The Conviction and Incident Review Unit, then, is just the latest shake-up Bell is making.
The timeline to get the unit up and running depends on how the interview process goes; the job was posted when Bell announced the creation of the unit on June 25 and will stay open until July 10. He’s confident that the unit will be successful, due to community buy-in to get it off the ground. “If we’re the leading incarcerator by far in the world, then there’s an issue that needs to be addressed,” he said. “When people hear and understand the facts, when they understand the policies and research, they get on board. And I’m an example of that. I’m in office because of that: going out into conservative areas and talking to people. And when you talk to them, they get it.”
The unit’s independence is crucial, said Nina Morrison, senior litigation counsel at the Innocence Project; she has represented numerous clients who have become exonerated, thanks in part to the work of conviction integrity units.
“It’s been so important to have people who are independent of the rest of the work of the office.”
“It’s been so important to have people who are independent of the rest of the work of the office,” said Morrison, who works on wrongful convictions and handles requests for access to post-conviction DNA evidence. “And in many respects, the most successful [conviction integrity] units are staffed by people who did not spend their careers in that same office. Because it’s just hard, as a matter of human nature, to be reevaluating cases that colleagues you worked with handled, and to fairly and objectively evaluate whether they got it wrong or might have even done something improper to secure conviction.”
Lessons from Ferguson largely informed the unit’s forward-looking design and its prioritization of resources to address future police shootings and incidences of misconduct. That kind of stance marks a major departure from the way McCulloch’s office operated: They never prosecuted a police shooting, and McCulloch, whose father was an officer killed in the line of duty, drew criticism for being too close to law enforcement. While Bell believes maintaining relationships with law enforcement is important, he doesn’t think those ties should get in the way of holding police accountable. He opposed the move by some prosecutors in his office to align themselves with the St. Louis Police Officers Association, because he was concerned that membership in a police union would get in the way of the prosecutorial mission.
Due to procedural hurdles, the prosecutors never officially joined that union. Despite initial tension, their desire to do so hasn’t impeded the way the office does business, Bell said. He wanted to be sure to include law enforcement in policymaking and keep an open channel of communication. “We view law enforcement as partners, and so after the primary election, we made a point to reach out to the area chiefs and leadership and meet with them so that we could start not only talking to but including them on our policymaking,” he said, “letting them know how we see things, and we also want to see and hear how they see things.”
“Mr. Bell can operate his office in the manner he sees fit.”
It doesn’t appear that the police officers necessarily see Bell as a partner, though. “Mr. Bell can operate his office in the manner he sees fit,” Sgt. Benjamin Granda, a spokesperson for the St. Louis County Police Department, told The Intercept in response to a question about the establishment of the unit. “The women and men of the St. Louis County Police Department support truth and justice.”
The St. Louis Police Officers Association did not respond to a request for comment.
Wrongful conviction units have grown substantially in number since the first unit was established in Santa Clara, California, in 2002. But that unit received little attention, according to the National Registry of Exonerations, and was closed only a few years later in 2007 due to budget cuts. But the longest standing unit, established in Dallas in 2007, would serve as a model for others going forward.
The units each operate differently depending on their leadership, but they often work together with organizations like the Innocence Project to identify potential cases and procure access to relevant evidence that might lead to an exoneration.
“We saw in Dallas, and in several units in Texas and elsewhere — including in particular, Brooklyn, New York — the enormous power that these units have to do justice,” Morrison said. “And it can be an overnight sea change when you go from an administration in a particular DA’s office that reflexively refuses to even look at a claim of wrongful conviction to one that has a unit dedicated to proactively reviewing those claims.”
The mechanics of the unit in St. Louis County won’t be finalized until someone is brought in to lead it, but it will be walled off from the rest of the prosecutor’s office. Staff will conduct independent reviews of claims of wrongful convictions and lead investigations into cases involving police shootings and allegations of misconduct as they occur.
“We will err on the side of not limiting the way the unit receives referrals, to ensure we critically review any credible challenges,” Bell said. “This is how we ensure justice is and was actually served.”
“It is difficult to overstate the importance of this independent unit, especially in a place like Saint Louis County,” Jessica Brand of the Justice Collaborative, an independent research and advocacy nonprofit focused on reforming the justice system, said in a statement to The Intercept.
“It is difficult to overstate the importance of this independent unit, especially in a place like Saint Louis County.”
The work of units that reopen past convictions as well as groups like Innocence Project have led to an increase in the number of exonerees in the U.S. There have been nearly 2,500 recorded exonerations since 1989, Maurice Possley, a journalist and researcher at the National Registry of Exonerations, told The Intercept. “And we only know the ones that we know about,” he explained. “We don’t know how many wrongful convictions there are out there that haven’t been corrected. Or people went ahead and served their time, or did their sentence, and went on with their lives.”
While many of Morrison’s cases were brought through individual requests and not conviction integrity units, she said the units have still played a crucial role in setting her clients free. “I’ve represented more than two dozen people who’ve been freed from prison based on DNA and other evidence. And not all of those cases were conviction integrity cases,” she said. “But I would say at least a third of those are ones where I don’t think my innocent client would have been freed if there hadn’t been someone in the DA’s office who decided that they were gonna take it upon themselves to go above and beyond the call and do the right thing. It’s hard to overstate the power that prosecutors have when they put in the resources and the commitment to proactively look at these cases.”
The increasing number of conviction integrity units raises further questions about the continued use of the death penalty in places like Missouri, where four death row inmates have been exonerated since 1999. “People have been exonerated from death row, definitively, by DNA testing.” Possley said. “I don’t know how you can ever have a system that is 100 percent error-free; it’s run by human beings,” he explained.
One challenge that post-conviction units face is that it’s hard for observers to understand why an innocent person might plead guilty, Possley explained. But defendants are often promised lesser sentences for a guilty plea. “More than 90 percent of cases don’t even go to trial. If everybody demanded a trial, the system would collapse. So when you have that much justice administered through plea bargaining,” he continued, “innocence isn’t part of that equation.” To that end, the units are a good thing. “Sunshine is a great tonic, in my opinion. And it can be very helpful in telling people to do the right thing.”