In the room are heavy-hitters in Utah’s legal world: There’s former Utah Supreme Court Chief Justice Christine Durham and retired 3rd District Judge Judith Atherton. Longtime Utah defense attorney Gil Athay sits at one end of the table, with former federal prosecutor David Schwendiman next to him.
This is the team tapped to create Salt Lake County’s conviction integrity unit, a panel that reviews the cases of people who say they are innocent despite being found guilty in court.
They look for misconduct. Errors. And the possibility that the wrong person is serving time.
Salt Lake County’s conviction integrity unit is the first of its kind for Utah but it isn’t exactly groundbreaking. Across the United States, there are nearly 60 units across the country, with new ones popping up every year.
Salt Lake County District Attorney Sim Gill announced the panel’s formation a little over a year ago. Since its inception, the Salt Lake County group has met monthly.
At the February meeting, the group’s focus is less on individual cases, and more on how they want the panel to run. This group makes recommendations on whether a conviction should be vacated or a new trial ordered, but they know the decision rests with Gill.
They don’t want to set up a process that feels too much like a courtroom. And they want to make sure they respect the privacy concerns of the convicted and the victim — but want their written findings to eventually be made public.
One year in, this panel hasn’t made a decision in any cases. They’ve reviewed two and are still considering one of those. The other ended when the Utah attorney general’s office settled the case and declared the man factually innocent. That man, David Hawkins, received $350,000 in compensation and was taken off the sex offender registry after his sons recanted that he sexually abused them.
In all, nine cases have been submitted to the conviction integrity unit, according to Gill’s office. Five were declined by Gill’s office before reaching the panel. Two others have been on hold as those convicted finish the appeals process.
Let’s say this powerhouse group recommends that a conviction be vacated and Gill agrees. Then what?
The next step is not so clear.
The National Registry of Exonerations estimates that there’s been nearly 400 people cleared of criminal convictions because of conviction integrity units. Those exonerations stem from everything from mistaken witness identification to official misconduct to false accusations or confessions.
Some panels have so far exonerated just one or two convicts; others, like Harris County in Texas, have cleared more than 100.
While there have been clear successes, a case in Missouri is casting doubt on whether district attorneys, like Gill, have the legal authority to go to court and ask for a conviction to be tossed out.
St. Louis Circuit Attorney Kim Gardner has been seeking a new trial for Lamar Johnson, a man who has spent nearly 25 years in prison for a murder he claims he didn’t commit. The circuit attorney found several problems with Johnson’s case, according to the Associated Press: There was misconduct by a former prosecutor, secret payments made to a witness, falsified police reports and perjured testimony.
But Missouri’s attorney general has opposed Gardner’s motion for a new trial, arguing she doesn’t have the legal right to ask for one. The case is now headed to Missouri’s highest court.
So what would happen with a case like this in Utah? Gill asserts that he has the authority to ask for a different outcome in a problematic case.
“I’ve always believed,” he said, “that if I get to deprive people’s liberty interests, if we recognize errors we should be the first ones to be correcting those.”
But similarly to the case in Missouri, Gill says Utah’s attorney general disagrees.
A legislative solution?
To clarify the matter, Gill’s office is pushing for a new state law that would specifically allow a county attorney to ask a judge to vacate a conviction, reverse the conviction and order a new trial or modify a sentence.
The Utah attorney general’s office and the statewide Association of Prosecutors oppose the bill. Both organizations say they support the concept, but have issues with the details.
The attorney general’s office said in a statement that there’s already other ways for Utahns to overturn their convictions — all of which involve the attorney general, not local prosecutors.
Attorney general’s officials say they worry that HB324, sponsored by Rep. Marsha Judkins, R-Provo, would upend how the state argues appeals in federal court.
If it were to create its own conviction integrity unit similar to Gill’s, the attorney general’s office estimates it would cost an additional $464,600 yearly to conduct additional legal reviews.
“Conviction integrity units might be good additions to the state’s existing conviction-review arsenal,” the statement reads. “But those units must complement — not compromise — the existing conviction-review processes.”
The attorney general’s office noted cases last year where two Utah men were found factually innocent and awarded a combined total of nearly $1 million. One was Hawkins, whose children recanted sexual abuse, and the other was Christopher Wickham, who was found factually innocent of sexually abusing a 16-year-old girl. He was paid more than $615,000 to make up for the nearly 15 years he spent serving time at the Utah State Prison.
“The state’s existing processes seem to be working as the Legislature intended,” the statement reads. “But the A.G.’s office is always willing to consider good ideas for improving those processes.”
Gill argues that if his office identifies problems in one of its cases, it’s his duty to correct that wrong.
“In the past, I’ve dismissed a lot of cases,” he said, “and to somehow say that there’s some other agency that’s responsible and they want to usurp that, I think undermines the localized legitimacy of us as county attorneys.”
While the future seems murky, Gill says he’s pleased so far with the conviction integrity unit he’s put together.
“We’re moving in the right direction,” he said.
At that recent meeting, the four members didn’t show any signs of slowing down as lawmakers consider Judkins’ proposal.
They spent the afternoon combing through their policies and consulting with lawyers with the Rocky Mountain Innocence Project about best practices.
When the time comes to release its first review decision, the team wants to make sure that all affected — from the prosecutor to the convicted person to the victim — know that the process was fair.
“If any of this is perceived as being illegitimate,” Schwendiman said, “or bent in some direction, to favor one thing or another outcome, then we’ve lost before we even started.”