SPINOFF
COVERAGE
Albany Times Union, Jan 23, 2005
Guilty verdict: New York's justice system
continues to turn a blind eye to the problem of wrongful conviction
By Scott Christianson
Before
state lawmakers and Gov. George Pataki consider whether or how
to try to "fix" New
York's court-invalidated death penalty law, they must address
the serious and growing problem of wrongful conviction that plagues
the whole criminal justice system, not only capital cases.
The state's long history of erroneous convictions
and the continuing trail of high-profile mistakes, such as the
Central Park jogger case, should have long ago set off warning
bells.
But criminal justice officials have resisted
introducing basic accountability measures or safeguards, and legislators
haven't enacted reforms. As a result, there's no assurance that
more fatal mistakes wouldn't be made.
Since
Edwin M. Borchard's path-breaking book, "Convicting
the Innocent" (1932), several studies have found New York
high on the nation's list of wrongful convictions. Michael L. Radelet
and Hugo A. Bedau, for example, documented 343 cases of wrongful
capital conviction, including 23 wrongful executions in New York.
My own recent study of wrongful convictions in
New York documented more than 130 cases, all over the state (most
of them involving convictions since 1980), in which innocent persons
were convicted (mostly of murder) and sentenced to long prison
terms.
Noting that experts estimate that anywhere from
1 to 10 percent of those convicted of a felony are actually innocent,
I argued that the proven cases represented simply the tip of the
iceberg.
To demonstrate, in 2001 I selected 12 people
I had concluded were actually innocent but who were still in prison.
Thus far, six have had their convictions overturned and five of
the six have been released from prison. Another three are in court
trying to prove their innocence.
Eleven of the 12 had been convicted of murder.
Had they been sentenced under the death penalty, some might be
dead by now.
In the past, prosecutors didn't have to worry
as much that their mistakes would ever come to light. Today, however,
with the advent of DNA and possibly other definitive technologies,
actual innocence in some cases threatens to become positively established
even after an offender has been convicted or even legally executed.
Sometimes a single case can rock the system.
In
the early 1960s, the New York criminal justice system reeled
from the discovery that one of New York City's most highly publicized
double murder cases had resulted in the erroneous "confession," arrest
and conviction of a young innocent, George Whitmore.
The furor opened such a Pandora's box that New
York legislators eventually established a moratorium on capital
punishment rather than allow the system to be subjected to more
scrutiny.
Any proven wrongful conviction can expose serious
injustice and undermine respect for law enforcement.
But if it were to be proven after the prisoner
was executed, the gravity of the mistake could spell curtains for
capital punishment and shake the criminal justice system to its
core.
In response to his state's wrongful conviction
problem, then-Gov. George Ryan of Illinois convened a panel to
review death penalty cases and he ultimately commuted all capital
sentences. Some states have adopted new safeguards such as requiring
the videotaping of all police interrogations and devising more
careful procedures for lineups and other ways of identifying suspects.
But New York officials have stuck to their old
flawed methods, brushing aside any concerns about likely errors.
During the last 20 years, only 20 or so persons
have received cash awards under the state's unjust conviction law
(known as the Isidore Zimmerman law, named after a famously framed
convict). But that result just scratches the surface and doesn't
get at the root of the problem.
Instead, legislators and governors have jumped
to constantly increase prosecutorial power and resources, while
at the same time curbing and inadequately funding public defense.
Consequently, many observers believe, wrongful
convictions have actually increased, just as criminal sentences
have grown more severe.
For starters, the Legislature should consider
enacting these reforms:
Designate and require a specific state agency
to maintain a database regarding defendants who have been found
wrongfully convicted.
Require the Court of Claims to annually report
about its actions relative to cases filed under the unjust conviction
law.
Convene a blue-ribbon panel to hold public hearings
and report its findings on wrongful convictions.
Require police to videotape in full all interrogations
and to make a copy of the tape available to suspects. (Although
this can help to protect the police from unfounded allegations
of coercion, some police, including the New York Police Department,
have resisted it.)
Require
police to use sequential photo lineups such as New Jersey has
done. Requiring eyewitnesses to view pictures one by one, rather
than letting them "shop" through
police photo books, would help reduce erroneous identification,
a leading cause of wrongful conviction.
Overhaul the state's inadequate public defense
system to ensure that indigent defendants will receive effective
legal representation.
Reconsider the total immunity from civil liability
that prosecutors enjoy.
Revise the law to make it easier for an inmate
to get a new trial based on newly discovered evidence.
Require that whenever a wrongful conviction has
been shown, the police department, prosecutor, defense attorney
and judge involved must file a damage report explaining what went
wrong and suggesting what can be done to prevent a recurrence.
Government officials aren't the only ones who
have failed to respond to the problem.
With rare exceptions, most law schools, criminal
justice trainers, bar organizations and news media also have neglected
to address the issue.
Without extraordinary safeguards, any execution
would amount to legalized lynching. The state's legalized killing
of one innocent person would make murderers of us all.
The inevitability of error is just one reason
why the death penalty is a bad idea. But it's one that fair-minded
citizens even punitive ones can understand.
Scott
Christianson, Ph.D., a Rensselaer County resident and former
executive assistant to the state director of criminal justice,
is the author of Innocent: Inside Wrongful Conviction Cases
(2004) and other books.
