This year has been a tumultuous time, as a national uprising in the midst of the COVID-19 pandemic, sparked by the tragic murder by police of George Floyd, brought police violence against black people back to the forefront of the national consciousness. Criminal justice reform, including such bold proposals as defunding and redefining the role of the police, have garnered increasing support and have gained steam in some circles. In a broader way, it is stoking conversations about justice in circles where such discussions should be natural but haven’t always been found. For instance, liberal and progressive District Attorneys (Das) are re-evaluating the roles their offices play in administering justice. One of the ways this re-evaluation has taken shape is through increasing self-awareness of the finality of the criminal justice system and a push for much-needed internal monitoring. Enter Conviction Integrity Units (CIU), commonly known as Conviction Review Units. In Nashville, the DA’s Office has a relatively new CIU, and in a bold move, DA Glenn Funk has hired Sunny Eaton, a local defense attorney who is a well-known member of the LGBTQ community, as the new head of the unit.
Given Eaton’s background, her hiring may surprise some people. “I started my career as a public defender. I was with the Nashville Public Defender’s Office for four years. I have a public defender’s heart… I believe in the role of a defense lawyer, I believe in it in its importance, and how fundamental it is to our system of justice that we have competent lawyers doing that work.”
“From being a public defender, I went on to open my own practice in 2013,” she said. “I did primarily criminal defense work for multiple years, I’ve done a lot of LGBT advocacy work. And, more recently, I’ve transitioned and added to my practice entrepreneur work, doing trademarks and things like that.”
“My wife and I took a short break and traveled in our car through Mexico and Central America for a couple of years,” she added. Reflections from their travels appeared at Out & About Nashville and in other outlets. “And that was life changing, to say the least. But it’s been good to be back and back to work.”
So, given Eaton’s commitments and her “public defender’s heart,” how was she drawn to work for the DA’s office? “I am leaving a successful practice. And I’m not going to lie and say that’s not a difficult decision to make. I enjoy working for myself, I enjoy representing the community, doing the things that I’ve been able to do. But there’s something happening in our country right now, there is a movement, there’s a soul searching, there’s a reckoning. I want to be part of that. I think it’s important that I’m part of that conversation. And there is no better way to change the system than to be part of it, and work from within to change it. For that reason, I am incredibly grateful, honestly, to be given this opportunity at this particular time.”
Eaton’s role in the Nashville DA’s office is relatively new. “A CIU,” she explained, “is an arm of a District Attorney’s Office, although I should say it’s actually an arm of very few District Attorneys’ offices. This is a relatively new venture. As of last year, there were fewer than 50 in the entire country. And three years ago, there were fewer than 25. And I think part of the soul searching that I was talking about is District Attorneys, particularly the more progressive DAs Offices, really asking themselves the hard questions and evaluating their role in this system and what we see taking place.”
CIU’s are meant to help address a weakness of the criminal justice system—that once it has done its work, it’s very hard to revisit issues. “We have a little bit of a difficulty in our criminal system, and it’s a difficulty of finality. A jury makes a decision, a judge makes a decision, a defendant makes a plea, and it’s over. We have an appellate process. But that process is very limited. And it is limited really to what’s on paper and what was already before the court and before the jury. What it doesn’t really allow for is how things change. And a lot of things can change.”
For instance, Eaton pointed out that the science we have today could clear a person who might have seemed guilty a decade or two ago. Further research may have called into question methods used by investigators. And we may now know that officers or prosecutors involved in certain cases engaged in patterns of misconduct.
“So a CIU’s job,” she explained, is to look into such things, as well as other causes of erroneous conviction. “Basically, first we get our applications from people who’ve been convicted, or from defense attorneys who’ve taken an interest, or from their original defense attorneys. And they will present us with the information we have. And then we will do an initial evaluation to see if it meets a set of criteria.”
“The primary part of that criteria,” she continued, “is evidence of actual innocence or new information that would go to actual innocence. We’re not talking here about technicalities. We’re talking about prioritizing people who have been wrongfully convicted of crimes, because there are few greater tragedies in our system than that.”
In addition to examining issues like changes or advances as mentioned above, the unit will consider questions like, “Have witnesses recanted? Have they become inconsistent? Have we learned things about police officers’ conduct that would make us want to go back and take a look at cases they’ve worked before?”
Has the science moved forward in ways that would provide new evidence or call into question information previously entered as evidence? Child interviews are a good example, she said. “There’s been a tremendous amount of research over the last 15 years over how an interviewer can impact the accuracy of child statements.”
Similar research into methods of eyewitness identification calls certain practices into question. And this example from Eaton’s own experience illustrates the importance of having a defense attorney’s perspective in the CIU: “There are tremendous problems with the procedures and science surrounding the accuracy of eyewitness identifications. It’s actually one of the things that I have a particular interest in… I had a major case dismissed some time ago because of a faulty eyewitness identification. The procedures just did not fall in line with what research tells us are appropriate procedures. And it made all the difference to a young man’s life, that identification…”
Scientific advances in areas from arson investigation to DNA evidence can potentially reveal evidence that was present twenty years ago, but no one could have accessed it or interpreted it. Most importantly, then, the unit has to consider how any and all of this new information or change of perspective could have impacted the outcome of the case.
This last consideration is the ultimate job of the CIU—to make recommendations to the DA regarding how new insights might have impacted the case and call a conviction into question: “A CIU’s job is not to circumvent the court. It’s not to take the power from juries that have already made decisions. It’s to ask the questions: Is there new information? And would that information have changed what the outcome was before? If a prosecutor had known this or if this science was available, would they have gone forward at all? Would a judge have made the same rulings if they knew…? Would a defense attorney have changed their strategy? And, if all of those things change, would a jury have made a different decision?”
The decision regarding what action to take, if any, rests on the DA, and so the duty of the CIU is to present the information in as effective way as possible, to give the DA needed information and to inform all parties as satisfactorily as possible.
“My job is very specific… it’s to make sure that the right thing has happened. And I intend to do that. But to do that, I really believe that there has to be transparency. I think that I need to be able to present numbers about what I’ve done, investigating every single case that comes to me that meets our criteria for investigation. So that at the end of it no matter what conclusion we draw, no matter what recommendation I make to Mr. Funk … I will demonstrate what we’ve done.”
“And wherever we land,” she added, “if we land where a conviction is good, and we all feel good about it and our confidence is restored or our confidence is continued in it, the public needs to understand why. And if we don’t, the system needs to understand why. If we find someone that should be exonerated, it needs to be very clear… I want to be able to give recommendations to the office for policies and procedures that can prevent these types of things from happening in the future.”
To that end, Eaton also hopes to work with the police department, helping them implement “policies and procedures to prevent wrongful convictions, because I do believe that police officers don’t want that. I think that there is a tunnel vision for each of us in the jobs that we do. You know, there’s an old saying that, if you’re a hammer, everything looks like a nail… So I hope that I will be able to work within these systems to provide new perspective, particularly in situations where we’ve proven that someone was wrongfully convicted.”
Eaton believes her hiring is a sign of DA Glenn Funk’s commitment to the mission of the CIU. “Just last year, Glen totally changed the process for deciding which cases get investigated. The original policy had too many roadblocks, so he changed it and made it a simpler, more streamlined process now to speed things up. And I think that’s going to continue to happen. And I think in my hiring, that’s part of a resetting and a reassessing of how we do things.”
“There are recommendations from the Innocence Project on what makes a good Conviction Integrity Unit. The National Registry of Exonerations, University of Pennsylvania, they’ve all put together these reports,” she explained. And I think that Glenn Funk is really working hard to meet those guidelines and those recommendations for what makes a good office. One of the first is hiring a criminal defense attorney, and that is no disrespect to prosecutors… I have to work closely with prosecutors to do my job. But it is about perspective. It is about the fact that I am used to looking for innocence. And that is a different perspective.”
So that she can carry her work out in as faithful a way as possible, Eaton and Funk have worked out a number of issues. “I will have some choice in which investigators I work with,” Eaton said. “I think that’s important because there is an issue of institutional bias there. Of course there is... There are some excellent investigators at the DA’s office that I’m excited to work with, who have solid reputations on both sides.”
“I think I’m going to be given quite a bit of autonomy in doing this job,” Eaton continued. “For the time being, I won’t be working in the same space, because we also think that’s important. This office has to be independent, and it has to not only be independent, but it has to have the appearance of independence. I want—and I know that Glenn does too—the public and the community to have faith that I’m going to do the job that I’ve been charged with. And I’m not going to worry about investigating a case by a prosecutor who I’m sharing a coffee with in the break room. They need to know that I’m independent and autonomous in doing these investigations, and I intend to be.”
Eaton believes that she will be able to be an effective presence in her position, both because of the experience she brings as a defense attorney, but also because of her relationships. “I think I have strong relationships on both sides of the courtroom, I have always been honest. I have never lied for my clients. That’s not part of my job. That’s not what I do. And I think that the DAs that I’ll be working with know that about me. And I think we’ll be able to have frank discussions. I really do. I honestly believe that when I go to talk with them about a case, we’re not going to be on opposite sides of the battlefield. I don’t believe that. I think that we’ll be able to work together to see if we got it right.”
And ultimately that’s what it’s all about. When the stakes are this high, justice demands that we as a society, and our institutions in particular, do all we can to get it right.
“When you talk traditionally about the role of a prosecutor and the role of a criminal defense attorney, they stand on either side of the courtroom… A conviction integrity unit is unique in that we get to work with both sides of the courtroom, and the only side that we have is truth. It’s justice. When you talk about the role of a district attorney, I think that’s the reckoning that’s taking place, and a refocusing to that goal of justice and understanding that protecting the community includes protecting the accused.”