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Contact: Colleen Roche
Linden
Alschuler & Kaplan
212-575-4545
February 24, 2009
NEW REPORT SHOWS IDENTIFICATION PROCEDURES &
GOVERNMENT PRACTICES ARE LEADING CAUSES OF WRONGFUL CONVICTIONS IN
NEW YORK
STATE
New York
State Bar Association Task Force on Wrongful Convictions Offers
Recommendations to Improve
the Administration of Justice
(New York City) According to a new
report issued by the New York State Bar Association Task Force on
Wrongful Convictions, identification procedures and government practices
were the two leading causes of wrongful convictions among 53 cases
examined by a panel of experts. The report also noted that the
majority of wrongful convictions in New York Stateresulted from multiple
factors including mishandling of forensic evidence, defense practices,
the use of false confessions and the improper use of jailhouse
informants. The panel recommended a sweeping array of changes to
policy, procedure and legislation that, if implemented, would help
prevent further miscarriages of justice. The preliminary report
must be adopted by the Association’s Executive Committee and House
of Delegates. The vote is scheduled for April 2009.
Chaired by the Honorable Barry Kamins,
the Task Force on Wrongful Conviction included distinguished jurists,
prosecutors, criminal defense attorneys, members of law enforcement,
good government groups and leading members of academia.
When she assembled the blue ribbon panel
in June 2008, New York State Bar Association President Bernice K. Leber
(Arent Fox LLP) noted that the number of criminal convictions overturned
in New
York Statewas undermining public
confidence in the justice system. She said, “For each
wrongful conviction that surfaces, how many others are still unfairly
resolved? Ensuring the fair administration of justice must be the
number one priority of our criminal justice system. I would like
to thank Judge Kamins and the many distinguished New Yorkers who served
on the Task Force for the thousands of hours they spent researching
cases, interviewing key players and formulating a series of smart,
balanced and realistic recommendations that will lay a solid groundwork
to combat the pervasive implications of wrongful
convictions.”
Judge Kamins noted, “The Task
Force on Wrongful Convictions is the first attempt in New Yorkto
examine cases in which a court has overturned erroneous
convictions. We hope to work with the legislature, prosecutors,
defense attorneys and law enforcement to implement our recommendations
and to prevent these errors from occurring in the future. While
New
York's criminal justice system is based on
fairness and due process, one wrongful conviction is too
many.”
The Mission
The work of the Task Force was guided by
the principles that even a small number of exonerations in New
Yorkundermines society’s faith in the
criminal justice system, and that the consequences are
far-reaching. In identifying the causes of wrongful convictions,
the panel studied 53 New
Yorkcases in which convictions were subsequently
overturned by judicial/formal exoneration. The group worked to
identify all of the causes of the wrongful convictions and to isolate
the systemic causes that produced these injustices. The panel
focused on current rules, procedures and statutes that were implicated
in each case and proposed solutions in the form of procedural changes
and legislation.
The Findings
The panel determined that six root
causes were readily identified as primary factors responsible for the
wrongful convictions:
- Government Practices: one or more
general errors by a prosecutor, member of law enforcement, or
judge.
- Identification Procedures: the
misidentification of the accused by the victim and/or one or more
eyewitnesses.
- Mishandling of Forensic Evidence:
errors in the handling or preservation of key forensic evidence and/or
the failure to use DNA testing.
- Use of False Confessions: the
extraction and use of what turned out to be a false confession by the
accused.
- Use of Jailhouse Informants: the
admission and reliance by the jury on what later was determined to be
false testimony by a jailhouse informant.
- Defense Practices: one or more errors
by an attorney representing the falsely accused, usually a failure to
fully investigate or to offer alternative theories and/or
suspects.
The case studies also revealed that
slightly less than half of the cases reviewed by the Task Force
involved a DNA exoneration. This meant that while scientific
advances have played an essential role in helping to prevent wrongful
convictions, many other non-scientific factors have also been the cause
of wrongful convictions.
The top three causes were (a)
misidentification of the accused; (b) general errors by a prosecutor,
law enforcement personnel or judge; and (c) errors in the handling or
preservation of key forensic evidence. The Task Force observed
that it was extremely rare that only one factor caused a wrongful
conviction and that most resulted from multiple causes.
The Recommendations
The report provides a number of
recommendations to avert wrongful convictions including new guidelines
for conducting lineups and interrogations, additional training for legal
professionals and law enforcement officials, modifications to the way in
which evidence is extracted and preserved, as well as mandates for
prosecutors to disclose any evidence or witnesses who might exonerate
the accused. Among the specifics are:
- A “Brady” conference should be held before trial to
resolve issues relating to disclosing information or evidence that would
tend to exonerate the accused.
- Police officers should be trained to
investigate alternate theories for a case at least until they are
reasonably satisfied that they are without merit.
- Line-ups and other identification procedures should be performed by
persons who do not know the identity of the suspect.
- Forensic science training should be
provided to prosecutors, defense lawyers and judges.
- Custodial interrogations of all
felony-level crime suspects should be electronically recorded in their
entirety.
- Specific training about false
confessions should be given to police, prosecutors, judges and defense
attorneys.
- Any informant’s testimony should
be corroborated.
- State law should specify that upon the
death of a wrongfully imprisoned individual, any compensation awarded
will be paid to his or her estate.
The first of two hearings to discuss the
report is being held at the offices of the New York City Bar Association
on February 13, 2009. The second is scheduled for February 24,
2009 in Albany.
The members of the Task Force on
Wrongful Convictions are:
Richard Aborn, Esq. –
President, Constantine & Aborn Advisory Services LLC and President
of the Citizen’s Crime Commission of New York City
Jack Auspitz, Esq. –
Morrison & Foerster LLP, New York City
Hon. Phylis Skloot Bamberger -
Retired Court of Claims Judge, New York City
Thomas Belfiore –
Commissioner-Sheriff, Westchester County Department of Public Safety,
Hawthorne
David Louis Cohen, Esq. - Law
Office of David L. Cohen, Esq., Kew Gardens
Tracee Davis, Esq. –
Zeichner, Ellman & Krause LLP, New York City
Hon. Janet DeFiore –
Westchester County District Attorney, White Plains
Vincent E. Doyle, III, Esq.
– Connors & Vilardo LLP, Buffalo
Mark Dwyer, Esq. - New York
County District Attorney’s Office, Manhattan
Anthony Girese, Esq. –Bronx
County District’s Attorney Office, Bronx
Robert C. Gottlieb, Esq. –
Law Offices of Robert C. Gottlieb, New York
Prof. William Hellerstein –
Brooklyn Law School, Garrison
Hon. Charles J. Hynes –
Kings County District Attorney, Brooklyn
Hon. Howard Levine –
Retired Court of Appeals Judge, Whiteman Osterman & Hanna LLP,
Albany
Hon. John Martin – Former
U.S. District Judge
for the Southern District, Martin & Obermaier, New York
City
JoAnne Page – President and
Chief Executive Officer, the Fortune Society, New York
City
Matthew Scott Peeler, Esq. -
Arent Fox LLP, New York
City
Norman Reimer, Esq. –
Executive Director, National Association of Criminal Defense Lawyers,
Washington,
DC
Prof. Laurie Shanks –
Clinical Professor of Law, Albany Law School, Albany
Hon. George Bundy Smith –
Retired Court of Appeals Judge, Chadbourne & Parke LLP, New York
City
Lauren Wachtler, Esq. –
Mitchell, Silberberg & Knupp LLP, New York City
For a full copy of the preliminary New
York State Bar Association Wrongful Conviction Task Force report, visit
http://www.nysba.org/wrongfulconvictions
###
The 76,000-member New York State Bar
Association is the largest voluntary state bar association in the
nation. Founded in 1876, State Bar programs and
activities have continuously served the public and improved the justice
system for more than 130 years.
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