The state's two top justices – the chiefs of the state Supreme Court and state Appeals Court – will appoint a panel that the law says must include a member of the general public, a sheriff, a victims' advocate, a criminal defense lawyer, a prosecutor, and a state Superior Court judge. The commission will also have a full staff, including two investigators, who will pore through applications.
Judge Lake says perhaps 30 percent of cases will have enough merit to warrant further investigation. Perhaps 10 percent will receive a commission hearing.
"Certainly there will be a flood, but most of them will be screened out immediately," says state Rep. Joe Hackney (D), an architect of the committee that led to the commission's creation. "There'll be a few that get investigated, even fewer where there's relief granted. Maybe even none."
Five of eight commissioners must agree to pass it on to a three-judge panel, which has to vote unanimously to exonerate a convicted inmate. The commission will look at new evidence that's come to light since the trial, but will not consider legal technicalities. It can take years of appeals in many states before the appellate system looks at evidence that was not introduced to the jury at trial.
"The innocence commission is a response to the fact that our system doesn't have a process for reevaluating the innocence or guilt of somebody who has been convicted," says Sam Gross, a law professor at the University of Michigan Law School. "There's a hole in the middle of the process."
But critics say that many states – including Texas – have laws that allow such "actual innocence" claims to be litigated early on in the appeals process. Many death penalty proponents – and critics – agree that there's no irrefutable proof that any innocent person has been executed in the US since the death penalty was reinstated in 1976. Proponents say this proves the system works.
Prosecutors, too, wonder whether the commission will work. An early proposal, which would have allowed those who pleaded guilty in court to claim innocence, was changed so that they will have to wait two years to apply.