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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

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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.