Assistant public defender DiLauro '80 fights to pass legislation to safeguard against wrongful conviction

 The Rhode Island General Assembly meets in the evening to accommodate its members’ part-time service, and assistant public defender Michael A. DiLauro ’80 heads over to the statehouse to testify at committee meetings and to meet with state legislators after a full day at the office. DiLauro is responsible for drafting and advocating key legislative proposals on behalf of the Rhode Island Department of the Public Defender (RIPD).

During his 12-year stint as RIPD’s first legislative liaison, DiLauro has lobbied for several pieces of legislation designed to safeguard against wrongful conviction. With the introduction of DNA testing nearly 25 years ago, efforts by the Innocence Project and others to exonerate the innocent through post-conviction DNA testing ramped up, and the tally of those exonerated is steadily growing. A recent report assembled by the University of Michigan Law School and the Center of Wrongful Convictions at Northwestern University School of Law numbers those exonerated in the United States in the past 23 years at more than 2,000. And according to a separate study by the Innocence Project, innocent defendants made false confessions, admissions, or other statements to law enforcement officials in more than 25 percent of the wrongful convictions overturned with DNA evidence. 

In light of sobering statistics such as these, DiLauro proposed legislation on behalf of the RIPD to require that entire custodial interrogations be recorded in cases where the potential sentence is one of life imprisonment, such as murder or rape. Rhode Island has abolished the death penalty. 

Twice the legislation passed the Rhode Island Senate and House of Representatives — in 2009 and 2010. And twice, the legislation was vetoed by then-Gov. Donald L. Carcieri. 

Before assuming his current role as legislative liaison for the RIPD in 2000, DiLauro spent nearly 20 years as an assistant public defender, where he tried to verdict approximately 60 cases that carried potential life sentences. 

The transition from advocating on behalf of a criminal defendant to lobbying was not without a learning curve. “I had a reputation as an aggressive litigator, but the same sort of aggressiveness doesn’t serve you well in the policy arena,” said DiLauro, who also works as director of training for the RIPD and still handles a caseload of several cases that address issues with far-ranging impact for the office.

The RIPD has a notable history. Believed to be the first statewide, full-service public defender office in the nation, the office of the Rhode Island Public Defender was created by the state legislature in 1941 — 22 years before the U.S. Supreme Court ruled in Gideon v. Wainwright that state courts are required by the Sixth Amendment to the United States Constitution to provide counsel in criminal cases for defendants unable to afford an attorney. 

Immediately following graduation from Toledo Law, DiLauro accepted an internship with the RIPD, fell in love with the office and never left. “It is rewarding to find your niche,” he said.

 

As the RIPD-proposed interrogation legislation bounced around the capital, from the General Assembly to the governor’s office and back, DiLauro waged the battle for increased custodial interrogation protections on another front — the courts. In spring 2011, the Rhode Island Supreme Court agreed to hear the case of State v. Barros. 

Defendant Barros was interrogated at a detention center for hours, but only the final 12 minutes of the interrogation were captured in an audio recording. Those 12 minutes included Barros’ confession. 

Barros, represented by the RIPD, appealed his conviction for first-degree murder, claiming that his confession should have been suppressed because the interrogations were not recorded in their entirety. He asserted, in part, that a recording requirement was rooted in the due process guarantees of the United States and Rhode Island Constitutions. DiLauro argued the case on behalf of Barros in the Supreme Court, losing in a split decision, but DiLauro found a sympathetic ear in a lengthy dissent by Justice Francis Flaherty. 

On the heels of the Supreme Court decision — and with a new governor and state attorney general taking office earlier in the year — DiLauro said that the climate was ripe for compromise. Just a year earlier, DiLauro had succeeded in introducing and passing a piece of legislation designed to address eyewitness identification, another leading cause of wrongful conviction. He worked diligently with the task force created by the legislation to issue a report that now serves as a model for similar eyewitness identification reforms in other states. With that recent success in mind, DiLauro garnered consensus for a task force to study and recommend law enforcement procedure for electronically recording custodial interrogations. In 2011, the RIPD legislation was enacted. 

The custodial interrogation task force was comprised of individuals holding various positions within the criminal justice system, including defense attorneys, prosecutors, and police officers. In early 2012 the task force made nine unanimous recommendations to the governor, including that audio-visual equipment be used to record custodial interrogations in their entirety in instances where a life sentence may potentially be imposed. 

DiLauro represented the RIPD on the task force and called the task force’s work an extraordinary effort. “The cooperation and common ground we all shared to help make the system work better was remarkable, a real revelation. [It was] a fabulous experience and a chance to make real changes for the better in our state’s criminal justice system.” 

In August 2011, in recognition of his work, DiLauro received the National Association of Criminal Defense Lawyers’ first Champion of State Criminal Justice Reform Award. According to the association’s press release announcing the honor, the award was bestowed due to DiLauro’s “exceptional efforts [that] have led toward progressive reform of a state criminal justice system.” 

DiLauro is now on to the next battle, which includes fighting for the amendment of a “draconian sentencing law” for certain firearm offenses. He will continue to monitor implementation of the task force’s custodial interrogation recommendations by law enforcement in the state. 

When asked what keeps him striving for criminal justice reform, DiLauro replied, “A healthy skepticism of those in authority. I think you have to have that to be a good public defender.”

This story first appeared in the Fall 2012 Transcript.