Q&A: Keith Ellison and Carrie Sperling

Carrie Sperling, at podium, is the director for Attorney General Keith Ellison’s new Conviction Review Unit. Ellison can be seen behind her, to her right. (Photo: Kevin Featherly)

 

AG, new Conviction Review Unit’s director will work to uncover wrongful convictions 

 

Barely four months into the job, new Conviction Review Unit (CRU) Director Carrie Sperling is already investigating seven cases that could result in exonerations.

Among those: The case of Myon Burrell, the teen-aged gang member convicted of killing a little girl 19 years ago. His life sentence was commuted by the state Board of Pardons last year—but he was not found innocent or exonerated. That could change, now that Attorney General Keith Ellison’s CRU is up and running.

Sperling says her office accepted 10 requests for applications Monday from people who argue they are innocent of the felony crimes for which they have been convicted. Now that the unit has been announced publicly, more undoubtedly will follow.

Sperling, the former co-director of the Wisconsin Innocence Project, started work in Ellison’s office on a part-time basis in April while she finished up her teaching job at the University of Wisconsin Law School. She came on full-time in June.

Ellison’s Conviction Review Unit Advisory Board ratified a 13-page charter in June. The documents establishes principles that Sperling and her unit will follow. The statewide office’s mission is spelled out at length in the charter’s opening paragraph:

“The CRU shall conduct strategically collaborative, good-faith case reviews to ensure the integrity of challenged convictions, remedy wrongful convictions and take any remedial measures necessary to correct injustices uncovered, within the bounds of the law. In cases where the CRU concludes there was a wrongful conviction—where the person convicted did not commit the crime—the CRU will seek to identify the true perpetrator of the underlying crime(s). … The CRU is committed to seeking the truth, communicating with and respecting crime victims, and ensuring transparency in the review process and shall openly and regularly report its case review numbers to the public.”

It will operate independently from the AG’s other divisions—a necessity, AG Ellison said Tuesday, because some investigations could result from his own office’s prosecutions. Where possible, the CRU will conduct joint investigations with the defense counsel of those seeking to establish their innocence.

The unit has a broad mandate, but Ellison said that, at least in the short term, it will focus on claims of actual innocence. Other possible roles—investigations into overly long sentences, for example—will have to wait until another day.

The CRU is funded by a roughly $300,000 federal grant from the U.S. Department of Justice. Ellison’s office will look for continued funding to sustain the unit from a variety of sources, including a potentially renewed DOJ grant, foundation contributions and, ultimately, legislative appropriations.

Ellison and Sperling sat with Session/Law for a half-hour interview Tuesday, just before the press conference that formally announced the CRU’s launch. What follows is an edited transcript of our conversation.

Q&A

Session/Law: Why did you leave the Wisconsin Innocence Project to take this job?

Carrie Sperling: It’s the chance to make systemic change and reform. In the Innocence Project you are slogging away one case at a time, urging systemic reform from the outside. But really this is a good chance to look from the inside and see what we can do to ensure that we have a more accurate criminal justice system that is fair, equitable and corrects injustices.

S/L: Do you have support staff hired yet?

Sperling: The grant provided for me full time. And I do have an assistant. And that is pretty much the unit. But we’re drafting very heavily on, hopefully, pro bono help of lawyers in the community. But also law students in the law schools.

S/L: Is there an example of a Wisconsin case that pointed you in this direction, where you felt that the Innocence Project was at a loss to really exert this kind of influence?

Sperling: That’s a good question. Let me tell you about a particular case.

At the Wisconsin Innocence Project, the first exoneration that my students and I secured came after we got a prosecutor to agree to DNA testing, so we didn’t have to go into court and fight over it. We got the prosecutor to agree that it would be relevant.

The DNA came back and excluded my client. Now, it wasn’t the DNA from the sexual assault victim he was accused of attempting to assault, but from a woman whose rape had gone unsolved. It was strikingly similar to the one that my client was convicted of.

We uncovered who committed that rape. We found the true perpetrator, we interviewed him. He did not deny that he did the crime that my client was convicted for, and he told us to apologize to him. We thought this was quite incredible evidence, especially considering that there was no physical evidence whatsoever against my client.

But the prosecutor didn’t see it that way at all. We spent three years litigating the case, if not longer. Finally, we got a ruling from the Wisconsin Court of Appeals, which was not overturned by the Wisconsin Supreme Court, that agreed with that. But meanwhile, my client sat in prison for another three years.

That’s what the data has shown, I think. These new conviction review units that are out there are making quite a difference. Last year, 60% of all exonerations came from Innocence Projects or conviction review units. And what we’ve noticed is that, probably because of conviction review units, the length of time that an average innocent person sits in prison before being exonerated has decreased a couple of years.

S/L [To Ellison]: Did you offer the job to Carrie first, or did you offer it to one of the other two candidates?

Keith Ellison: Yeah. That’s like a personnel question. I won’t answer that directly.

S/L: Fair enough. But there was something that happened in public [during a Feb. 23 CRU advisory board meeting] and that’s why I’m asking about it. Carrie’s presentation, in the moment, kind of felt like it got bogged down in details. Although, to be very fair, those details included a very strong plan of attack for how the office should operate. …

Ellison: [interrupting] Let me just say this. I was impressed. Because I thought that while all the candidates were really impressive, I felt like we needed somebody to take this CRU from essentially an idea to a standing-on-its-feet institution within the AG’s office.

I thought her organizational ability, her experience with students and her prior experience in doing innocence work all combined to make her the one who I thought would be most likely to be successful.

S/L: Carrie is white. Was there pushback from the BIPOC community about her selection? How have you managed that?

Ellison: Through conversation, by engaging people. By just making sure everybody understood that Carrie is somebody who understands what systemic racism is, understands how it operates through our criminal justice system. And by encouraging them to talk directly with her.

I’ve been really encouraged by how open Carrie is to just talking about any issue, with anyone, and really helping people understand that she knows our nation’s history and how criminal justice has been used to maintain racial hierarchies—and that our job is to have liberty and justice for all.

S/L: Back in March, I wrote an article that said the unit’s preferred trigger for case reviews will be requests from county attorneys. That’s also mentioned in the charter. Where do applications from those still incarcerated, then, fit into the picture? 

Ellison: The prosecutorial request is one way, but it’s not the only way. I mean, like an individual can ask.

S/L: So, that’s not necessarily the preferred trigger? 

Ellison: Look, we believe that our county attorneys are essential partners in our pursuit of justice and the work of the CRU. That’s why we have prosecutors on the advisory board. But it’s not an exclusive thing. I mean, we want to hear from whoever we might hear from.

S/L: One of the charter’s criteria for further investigations [the document says they’re warranted, for instance, when “there is evidence the prosecution or conviction was tainted by improper racial or ethnic bias”] might be seen as threatening by some county attorneys. How has the larger community of prosecutors reacted to the CRU?

Ellison: I’d say that it’s been generally positive. We have endeavored to keep them informed every step of the way. We’ve been telling them what’s going on. We’ve opened ourselves up to answer their questions and they’ve had some.

But we understand. Look, if you believe somebody’s guilty and you put your heart and soul into prosecuting them and you convict them, there is a very high likelihood that you believed in what you were doing.

But we also know that there have been people who have been exonerated. That’s just reality. Let’s fix the problem, not the blame.

Sperling: If you want to ask me one reason why I wanted to come here, well, Keith Ellison would be the main reason. But for a statewide conviction review unit, you have more independence, right?

So if independent county attorneys want to come to us with cases they think may be a wrongful conviction, or if there’s an injustice that they want to undo, we would certainly help. But at the same time, we can review cases that folks bring to us with a more independent view of the facts than a county attorney would have.

S/L: I want to ask the same question, but with respect to law enforcement. What has been the response there?

Ellison: I would say that we’ve had more direct conversation with prosecutors. But at this point, we’re just going to continue to have a dialogue with law enforcement and prosecutorial authorities.

This exercise is about making sure the right people are being held accountable, right? I mean, the one person most disadvantaged by an improper conviction is the victim. In many ways, that’s what it’s about. It’s about protecting the victim—making sure that the right person is being held accountable. If somebody commits a horrendous sexual assault, the worst thing that can happen is that the wrong person is convicted. Because that means that the offender is still out there to offend.

So we’re going to continue to stay in touch and continue to work with folks in law enforcement.

Sperling: I would just say that none of this is new. Our criteria—the list that you’re looking through—is from the exonerations that have happened across the country and what we’ve learned from those.

But also, here in Minnesota, you had eyewitness ID procedures reformed more than a decade ago, which was an admission that it wasn’t done as accurately as it could be. Just this recent legislative session, we had reform on informants’ testimony—a realization by prosecutors, law enforcement and the legislature that we can we do this better.

So I think this is a healthy thing: We constantly review what we’re doing that might be leading to mistakes and wrongful convictions. It’s nothing new. But it’s a new thing to have it as a regular occurrence in the chief law enforcement officer’s office.

S/L: The charter also says you will work collaboratively with defense counsel on investigations, joint discovery and the like. Has that generally worked well where these units have formed in other states and jurisdictions? I can imagine pro bono attorneys being really glad of the help from the CRU. But there are issues of attorney-client privilege. Has that been relatively smooth sailing elsewhere?

Sperling: Well, we’re in new territory now. These conviction review units that have opened up across the country, we are still sort of testing the waters.

We have a cooperation agreement that we have developed and that we will use with attorneys that we work with. It’s based on a model that has been working, I think.

If you look at the National Registry of Exonerations in the last few years, Innocence Projects—especially working with conviction review units—have been responsible for most of the exonerations. We want to do this in a way that still protects attorney-client privilege. So that’s part of the reason we have the cooperation agreement—to make sure no one’s trampling on privilege.

We are in new territory here, too, where the person who applies to us is not our client. We’re prosecutors. So we have to be a little wary and we have to warn them that, look, you’re disclosing stuff to a prosecutor’s office and we really want to protect you from doing something unwise on your behalf. But you’re not our client, we can’t advise you of the law and that sort of thing.

There are a lot of complex issues here that not many conviction review units I’ve seen have completely worked out. We’ll probably stumble along the way. But I think at least we’re thinking in the right direction.

S/L [To Ellison]: I’m making a very loose sort of comparison here, but in some ways the CRU will function a little bit like a police department’s internal affairs unit—only in that it conducts investigations and generates information that can’t be shared among colleagues. Does the rest of your office accept that proposition?

Ellison: The CRU is not in our Criminal Division, as you know. It is separate. It is apart. It needs to be that way, because in some of the cases that Carrie will be accepting, we prosecuted those folks.

There needs to be that independent separation. There needs to be that wall. So what I will say is that we’re going to operate with the utmost integrity around here. We’re going to do the best we can to make sure that truth and justice prevail.

In a way, those cases [the ones prosecuted by the AG’s office] are the most important to me. Because the truth is, it’s a lot easier to kind of critique somebody else’s conviction than your own. That’s what I believe. And by the way, ultimately, that’s my call, right?

But I think it is better. I think the truth is more important than finality. Those really are the two values that we’re weighing here.

Finality is an important principle in criminal justice. I mean, sometimes it’s got to be over. But on the other hand, what if truth has not been fully discovered yet? I mean, let’s get down to it. Let’s feel really, really confident that whoever we convict really is the person who should’ve been convicted.

Or, if there is doubt, let’s do what we can do to erase that doubt. It’s not going to be easy and there are going to be some difficult moments. But we’re prepared to face that.

Sperling: I would add that Keith Ellison has created a climate, I think, in the office where we’re not a culture of judgment; we’re a culture of learning. I think we understand that people make mistakes. The worst thing you can do is not to correct mistakes. I think when you have the right culture in an office, people don’t get too uptight about folks looking at their work to see if there are mistakes.

Ellison: I agree with that.

S/L:  I’m wondering whether over-sentencing is still part of the mix. That was a really important part of the discussion with the advisory board earlier this year—they wanted the unit to investigate unfairly long sentences. I know it’s probably delayed into the future, but is it still part of the plan?

Ellison: Yes, it is part of the plan. But right now, we just feel that based on resources, and based on more public engagement that we need to do, the best thing for us to do is really get started with innocence issues. Then, as we continue to build relationships and engagement, as we continue to get greater resources, there will be time to address the issue of sentencing.

S/L: The approach as it’s outlined in the charter is very evidence-driven. What I mean by that is you’ll require very solid evidence before you proceed. Yet as we know from the research, there are a great many more cases of wrongful convictions than we’re comfortable with. Is there a way to balance the reality of what this office is and what it can do, versus the expectations that incarcerated people might have for it?

Sperling: That is the quandary, right? It’s hard to overturn a conviction when you can’t muster evidence on behalf of innocence. But I think our charter also shows that we are going to be concerned if we can’t find evidence that supports a conviction. In that way, there can also be a manifest injustice.

And certainly, the charter is very flexible about the recommendations that the conviction review unit can make. It could be that this person gets relief in sentencing. Like, should we recommend this person to the Board of Pardons?

So there are things we can do when we see there is not enough evidence to make everyone understand this person is actually innocent, or we don’t have any way to prove it, but we may have no more confidence in the conviction.

S/L: I’m guessing that’s going to be a really difficult call sometimes.

Sperling:  Yeah. Oh yeah. I’m glad it’s Keith Ellison’s call at the end of the day. [Laughs.]

Ellison: No wise political advisor would recommend that we enter into this space. I mean, this is tough stuff, man. But justice requires that. So we’re going to do it.

S/L: Carrie, how much work lies in front of you, just in terms of getting up to speed and preparing for what lies ahead?

Sperling: Well, I’ve done quite a bit of work getting the groundwork laid. We got 10 requests for applications in just yesterday. Trying to do this without a big staff and everything is going to be challenging.

We’ve already accepted seven applications. I’ve reported on that at an advisory committee meeting. So we’ve got a caseload that we are investigating and moving forward on.

Dan Guerrero, Myon Burrell’s attorney, has given me permission to say that we have accepted his case and we have reformulated that same panel. So they’ll be able to take the workload off of me in finishing up that evaluation and making recommendations. So I think there are ways that they can design the unit so that we can get the help we need.

[Editor’s note: The “panel” to which Sperling refers is the same group that wrote a report on Myon Burrell’s sentence, which proved influential in his sentence commutation. The group will reconvene to issue a second report, this one on whether there is sufficient evidence of wrongful conviction in Burrell’s case. “They will finish their investigation and specifically address the question of whether Myon’s sentence should be vacated or he should receive a pardon,” Sperling said in a follow-up email Wednesday morning. The panel will include all the same members, though University of St. Thomas School of Law Professor Mark Osler will not chair it this time. That role will fall to Loyola University School of Law Professor Maria Hawilo.]

I think we’ll be ready. Will we be able to get to everybody as quickly as they would like? No. And that’s going to be our biggest struggle. Things take time and we don’t have the resources to get to everyone quickly. But we will have an answer for everyone.

S/L: What would represent the fulfillment of your dreams for this office? What would that benchmark be to say, “We did it”?

Ellison: If in about five years the stakeholders feel that, if they recommend a case, it is going to get a full look. If we can engender greater respect, greater confidence in the criminal justice system in Minnesota, and if all stakeholders feel like, you know what, this system really works. There is somebody who cares. People take things on, seriously. That would be what I hope for.

I don’t know if you can quantify success in the number of cases, the number of exonerations. Because all of that depends upon factors beyond our control. But just a general sense that, hey, you know what? In Minnesota, you can get a fair trial. And if you don’t, somebody’s willing to look into it to make sure that you’re going to basically get justice. I think that’s pretty much where we stand.

Sperling: I agree. I don’t think you measure success by exonerations, or even policy pieces that you change, or legislation that you’ve been able to push through because of what we’ve discovered.

Those would all be great. But really, I think, at the end of the day Keith Ellison’s office mission is to treat everyone with dignity and respect. I think if the stakeholders in Minnesota—from the law enforcement to defense attorneys to convicted people—feel like we’ve treated them with dignity and respect, we’ve won.

Individuals may apply for review of their case by requesting an application from the Attorney General’s office by e-mail at [email protected]; by calling (651) 296-3353; and by mailing the Office of Minnesota Attorney General Keith Ellison, Attn.: Conviction Review Unit, 445 Minnesota Street, Suite 1400, St. Paul, MN 55101.