June 2, 2010

STATE BAR UNVEILS NEW LEGISLATION TO ADDRESS THE GROWING PROBLEM OF WRONGFUL CONVICTIONS IN NEW YORK 

Leaders from the NYS Senate and Assembly Announce Sponsorship of Six New Bills

(ALBANY) – What recourse does a wrongfully convicted individual have when new DNA evidence is uncovered that points to his innocence? What happens when mistakes by eyewitnesses, prosecutors, defense attorneys or judges come to light suggesting that the wrong person is behind bars? Does our justice system adequately compensate an innocent person who spent 18 years in prison for a crime she did not commit?  These issues and other leading causes of wrongful convictions in New York State are addressed in a new package of legislative proposals unveiled today by the New York State Bar Association. 

At a press conference in Albany, Immediate Past State Bar President Michael E. Getnick (Getnick Livingston Atkinson & Priore, LLP of Utica and of counsel to Getnick & Getnick of New York City) and Past President Bernice K. Leber (Arent Fox LLP) were joined by leaders of the State Legislature, including State Senator Thomas K. Duane, Assemblyman Joseph R. Lentol, and other members of the Senate and Assembly, to present six new bills that will help protect New Yorkers from the devastating effects of wrongful convictions.

Also in attendance was Steve Barnes (Oneida County) who was exonerated of rape and murder after serving 19 years in prison.

The new bills are based on the recommendations of the State Bar’s Task Force on Wrongful Convictions created in 2008 by then-president Leber.  The task force examined 53 cases where a defendant was wrongfully convicted of a crime but later exonerated. In a report issued last year, it concluded that wrongful convictions resulted from multiple factors including identification procedures, government practices, mishandling of forensic evidence, defense practices, the use of false confessions and the improper use of jailhouse informants. The report is available on the State Bar’s Web site at www.nysba.org/wcreport.
  
“The impact of a wrongful conviction goes beyond the devastation and harm wrought upon the falsely accused. It destroys families, costs taxpayers exorbitant amounts in legal fees and incarceration expenses, and erodes public confidence in the legal system,” Getnick said. “With hopes of reducing the number of wrongful convictions across the State, the Association’s Task Force on Wrongful Convictions has drafted smart new measures that address these miscarriages of justice. We commend the Senate and Assembly for moving these critical bills forward.”

Leber added, “Our Task Force on Wrongful Convictions brought together some of the State’s top legal minds including prosecutors, defense attorneys, distinguished jurists, good government groups and members of academia to study wrongful convictions and develop recommendations to prevent further injustice. It is extremely gratifying to have our efforts recognized by members of the Senate and the Assembly.  We look forward to the day when the Governor signs these important measures into law. ”
 
If signed into the law, these new bills would put in place a series of safeguards that will help prevent future wrongful convictions:

(A11052), (S7842): Procedures to reduce erroneous eyewitness identifications

This bill, sponsored by Assemblyman Daniel J. O’Donnell and Senator Antoine M. Thompson, would amend the Criminal Procedure Law to provide procedures to reduce the occurrence of erroneous eyewitness identifications.

The task force found that erroneous identifications were responsible for more wrongful convictions than any other single factor.  Among its key provisions, this bill would require “double blind” line-ups and photo arrays in which the person administering the process does not know the identity of the suspect; mandate only one suspect per lineup; require that identification procedures be documented; and allow sanctions for failure to comply with mandated procedures.

(A11123), (S7867):  Vacating a guilty plea when new exculpatory DNA evidence is discovered

This bill, sponsored by Assemblyman Charles D. Lavine and Senator Eric T. Schneiderman, would amend the Criminal Procedure Law to provide a mechanism by which an individual who has pleaded guilty to a crime could move to vacate the conviction when new DNA evidence is discovered, post-conviction.  

Numerous studies have shown that people, in fact, plead guilty even though they are innocent.  Faced with a choice between a guilty plea – and a more lenient sentence – or the prospect of a much higher sentence following a guilty verdict after trial, they take what seems like the lesser of two evils.

While New York's current law does not specifically address the availability of post-conviction DNA testing for those who have pled guilty, New York appellate courts have construed the statute as foreclosing DNA testing after a guilty plea.  This bill would overturn these decisions and permit courts to order testing when the possibility of a DNA test is discovered or in cases where new technology for DNA testing is available.

(A11089), (S7873): Issues surrounding testimony from informants

This bill, sponsored by Assemblywoman Michele R. Titus and Senator Tom Duane, would amend the Criminal Procedure Law to require that an informant's testimony be corroborated before it can be admitted at trial.  It also mandates that juries receive instructions regarding reliability, and that the prosecutor must disclose any benefit received by the informant.

A large percentage of cases in which wrongful convictions have been documented involve testimony from informants – many who are facing criminal prosecution, or who have received incentives for their testimony.  Studies have found that nearly 50 percent of wrongful murder convictions involve perjury by someone such as a "jailhouse snitch" or a witness who stood to gain from giving false testimony. 

(A5213-A), (S7877): Requiring electronic recordings of custodial interrogations

This bill, sponsored by Assemblyman Joseph R. Lentol and Senator Bill Perkins, would amend the Criminal Procedure Law to require the creation of an electronic record of an entire custodial interrogation in order to eliminate disputes in court as to what actually occurred during the interrogation, thereby improving prosecution of the guilty while affording protection to the innocent. Among other provisions, the bill also requires the prosecutor to retain the electronic recordings beyond trial and appeals until no post-judgment proceedings are pending. 

District Attorney Offices in Westchester, Broome, Greene and Schenectady counties are currently participating in a pilot project sponsored by the State Bar. The NYPD has also begun this practice in New York City.

(S7893): Issues surrounding exculpatory information

This bill, sponsored by Senator Ruth Hassell-Thompson,  would amend the Criminal Procedure Law to provide definitions of exculpatory information (also known as Brady material), clarify what information must be delivered, establish the timeframe within which it must be delivered, and provide for relief where there has been a violation.

The cases studied by the Task Force show that Brady violations are a continuing problem, denying the defendant a fair opportunity to organize and present his case.  This bill is intended to better assure compliance by the creation of new rules applicable to the delivery of Brady material.

(A11150), (S7868): Compensating those who have been wrongfully convicted

This bill, sponsored by Assemblyman Rory I. Lancman and Senator Eric T. Schneiderman, would amend the Court of Claims Act, in relation to claims for having been wrongfully convicted.  The purpose of this bill is to try to assure that those who have suffered a wrongful conviction receive fair monetary compensation from the State without opening the State to liability for every overturned conviction.

The bills are available online at www.nysba.org/presskit.

The 77,000-member New York State Bar Association is the official statewide organization of lawyers in New York and the largest voluntary state bar association in the nation.  Founded in 1876, NYSBA programs and activities have continuously served the public and improved the justice system for more than 130 years. www.nysba.org

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The following statements were provided in support of the State Bar Association’s wrongful convictions legislation:

 Senator Eric Schneiderman said: “Every time an innocent person is sent to prison, a real criminal is let off the hook. It is critical that we pass common sense legislation to prevent another miscarriage of justice from happening again in New York State. Let’s not waste this opportunity to make our criminal justice system more fair, reliable and just.”

 Senator Bill Perkins said: “Recording the police interrogations prior to confession protects the police as well as the accused, and ensures the integrity of the fact finding process. The Central Park Five case was ultimately overturned because it was revealed the interrogation prior to the confession was flawed.  By accurately documenting the full course of the interrogation, we reduce wrongful convictions, we reduce false denials that incriminating admissions were made, we reduce false claims that admissions were obtained by coercion or intimidation, and we ensure the integrity of the fact finding process in the criminal justice system.”

 Assemblyman Joseph R. Lentol said: “I am proud to sponsor legislation originating from a NYS Bar Association pilot program that required video taping of confessions.  The pilot was a success for everyone, the police, and the prosecutors and the accused.  The voluntary implementation of videotaping of confessions is moving too slowly --- despite its clear benefits.  Therefore, it’s time to make it law because we know that electronic recording of interrogations protects all sides of the criminal justice system and improves the system’s integrity.” 

 Assemblyman Daniel O’ Donnell said: “Studies have shown that erroneous identifications are responsible for more wrongful convictions than any other single factor. My bill addresses the misidentification of the accused by reforming line-up procedures to improve their accuracy and reliability and by providing safeguards at trial, such as expert testimony to explain factors that affect the accuracy of eyewitness identification and mandating appropriate jury instructions when the reformed identification procedures have not been followed. By enacting this legislation, we can reduce the false identification problem early in the criminal justice process so that reliable evidence is presented at trial and verdicts are based on accurate information.”

 Assemblyman Rory Lancman said: “Being imprisoned for a crime one didn't commit is a living nightmare, and victims of such occurrences deserve a simple, efficient means for obtaining just compensation. And our criminal justice systems needs the scrutiny which only giving the wrongfully imprisoned full and fair access to our civil justice system can provide.”

 Assemblywoman Michele Titus said: “A large percentage of cases in which wrongful convictions have been documented involve testimony from informants who are themselves in custody or facing criminal prosecution or otherwise receiving incentives such as financial payments for their testimony. We can not allow such statements to continue to convict the innocent.  In order to safeguard against an informant giving false testimony in an attempt to benefit him/herself, corroboration must be required. If we want to protect our citizenry, we must make sure our criminal justice system convicts the guilty, not the innocent.”

 Assemblyman Charles Lavine said: “The foundation of justice is dependent upon the protection of innocent citizens and the conviction of the guilty.  This bill is an important step towards attainment of that goal.”

 Assemblyman Adriano Espaillat said: “For too long prosecutors have failed to turn over evidence that may cast doubt on whether a person is guilty of a charged crime.  Our job as legislators is to protect all people against false imprisonment.  It is necessary that we promote the non-adversarial nature of providing information that protects the innocent.  By authorizing courts to require compliance by prosecutors, this law will provide the structure necessary to ensure all proper protections of law are offered to the accused.”

 Barry Scheck, Co-Director of the Innocence Project, said: “The Innocence Project greatly appreciates the leadership and vision of the New York State Bar Association and members of the legislature in introducing this important package of proposals to help put an end to wrongful convictions in New York and improve the reliability of our criminal justice system. We urge the legislature to enact these proposals quickly so that the necessary reforms of the system can begin in earnest.”

 The Innocence Project assisted in the exoneration of Steve Barnes. In a report released in 2007, the Innocence Project (which is affiliated with Cardozo School of Law) concluded that New York leads the nation in wrongful convictions overturned with DNA testing but lags behind other states in enacting policy reforms to make the criminal justice system more fair and effective.  The report is online at http://www.innocenceproject.org/docs/NY_innocence_report.pdf.

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