Protecting the innocent in New York: moving beyond changing only their names.

• Author: Acker, James R.
• Position: Wrongful Convictions: Understanding and Addressing Criminal Injustice

1. INTRODUCTION

   New York courts generated more than forty thousand felony convictions in 2007 (1) and an additional 155,746 misdemeanor convictions. (2) Roughly sixty-two thousand individuals are presently incarcerated in New York prisons (3) and many more are in jail. (4) Some of them are innocent. It is impossible to know precisely how many and who they all are. But there is no disputing that wrongful convictions occur. Even if guilty verdicts are usually, or almost always reliable, converting estimated error rates into absolute numbers produces a staggering total of wrongful convictions. An accuracy level as high as 99.5%, which by some projections is decidedly optimistic, (5) would still mean that nearly one thousand innocent New Yorkers a year are convicted of crimes (6) and in excess of eleven thousand of the nation's incarcerated population (including well over eight hundred in New York) are in prison or jail for crimes they did not commit. (7) The tragedy is compounded because not only do innocent people suffer the devastating consequences of wrongful convictions, but actual offenders escape justice, perhaps to prey on additional victims. (8) Errors, inevitable in all human endeavors, are both predestined and tacitly acknowledged in systems of criminal justice that need negate only reasonable doubts--not all doubts--to support convictions. (9)

   In June 2008, upon assuming the presidency of the New York State Bar Association ("NYSBA"), Bernice Leber appointed "a blue ribbon Task Force to find ways to prevent wrongful convictions" (10) in the state. The task force promptly convened and over the next several months studied known cases of wrongful conviction in New York, examined other states' experiences, issued a preliminary report, (11) and received testimony at two public hearings. (12) It released its final report on April 4, 2009. (13) Less than a month later, New York Court of Appeals Chief Judge Jonathan Lippman announced his creation of a task force that similarly would focus on the causes of wrongful convictions in the state. He requested a report, including recommended reforms, by December 1, 2009. (14)

   By some estimates, New York is one of the nation's leaders in convicting innocent people. This dubious distinction is perhaps not surprising in light of the state's large population and high volume of criminal cases. It also is home to organizations such as the New York City-based Innocence Project, which actively investigates possible wrongful convictions, (15) and to journalism and media centers that help expose and publicize wrongful convictions. (16) New York ranks third, behind only Texas and Illinois, with 24 of the country's 249 DNA-related exonerations between 1989 and June 2009. (17) One study, which attempted to chronicle wrongful convictions that occurred in the United States between 1989 and 2003--including those not based on DNA analyses--reported 35 in New York, the second highest number in the nation. (18) These tallies account only for cases that come to light and in which error has officially been recognized. As such, they almost certainly represent but a fraction of all cases in which innocent people have been convicted of crimes. (19) Other researchers, relying on unofficial and hence more controversial measures to identify wrongfully convicted individuals, have concluded that the State of New York likely executed eight innocent people during the twentieth century, more than any other jurisdiction. (20)

   The initiatives undertaken by the New York State Bar Association and Chief Judge Lippman to investigate the causes and propose remedies for wrongful convictions in the state are significant. At a minimum, they help solemnize the gravity and urgency of the issues. They nevertheless represent only a beginning. Even the most discerning of recommendations must be implemented to make a difference. To be most meaningful and effective, reforms must reach beyond the rules and procedures that directly contribute to miscarriages of justice and embrace root causes. Policymakers must be willing not only to consider, but also to take comprehensive action. Otherwise, in a perverse twist of Joe Friday's famous introductory homily on the television show, Dragnet, only the names of the innocent will be changed; (21) nothing of substance will be gained to protect innocent people from being ensnared by the criminal justice system.

   This article examines miscarriages of justice in New York criminal cases, focusing specifically on the findings and recommendations of the Final Report of the New York State Bar Association's Task Force on Wrongful Convictions ("Task Force"). (22) We begin with a more precise definition of wrongful convictions and then discuss what is known about their incidence nationally and in New York. We thereupon consider several factors known to contribute to wrongful convictions and corresponding measures designed to help guard against error, relying both on the Task Force report and related studies. We next consider systemic issues not fully addressed within the Task Force report and conclude by urging the enactment of reforms to help detect and prevent wrongful convictions.

2. WRONGFUL CONVICTIONS: THEIR INCIDENCE AND CORRELATES

   American systems of justice value not only the truth, but are committed as well to preserving fundamental liberties, procedural fairness, and promoting other norms that do not always coincide with factual guilt or innocence. "Wrongful convictions" thus could be defined, with considerable justification, as deriving from infidelity to a number of different governing principles. In the present context, however, the meaning is more restrictive, referring exclusively to the erroneous conviction of factually innocent people.

   Even "innocent" takes on a narrow definition, applying only to individuals charged with crimes that either never occurred (23)--as when the "victim" of an alleged criminal homicide emerges alive and well following an unfortunate defendant's conviction (24)--or, more commonly, were committed by someone else. Excluded are vast numbers of cases where the mens rea needed to support a conviction may have been lacking, (25) or in which defenses based on provocation, excuse, or justification arguably were strong enough to have produced a not guilty verdict. (26)

   Beyond appropriate conceptualization, however, is the daunting task of identifying cases in which wrongful convictions have occurred. A conservative tack, and the one most commonly adopted by researchers studying the problem, is to require official recognition of "innocence" in the form of a previously convicted individual's exoneration through acquittal on retrial, the dismissal of charges because of newly discovered evidence, or a pardon. (27) The State Bar Association Task Force adopted this approach essentially, although somewhat less precisely than might have been expected in light of the centrality of the concept to its mission. "[T]he group defined what it meant by the term 'wrongfully convicted.' That definition, which would determine the criteria of those cases which the Task Force would study, was determined to be only those individuals whose New York convictions were subsequently overturned by judicial/formal exoneration." (28) An accompanying footnote, offering scant clarification, continued: "The Task Force does not express an opinion that all [of the included] exonerees were actually innocent. However, while some individuals may not have been, in fact, innocent, in all these cases the criminal justice system broke down to the degree that a conviction was wrongly obtained." (29)

   As the qualifying footnote suggests, even a conservative definition of wrongful conviction risks being overly inclusive. In some cases, evidentiary shortcomings or other barriers to prosecution and conviction will make reversals and "exoneration" an imperfect proxy for actual innocence. (30) A greater threat to validity, however, involves the likelihood that wrongful convictions are substantially undercounted because so many people erroneously convicted of crimes languish in anonymity or, despite their protestations, never have their innocence officially recognized. While no methodologies allow a precise measure of the incidence of wrongful convictions, (31) the number of officially acknowledged cases almost certainly represents but a small tip of a dramatically larger iceberg. (32)

   Studies of wrongful convictions in the United States are not new. In 1932, Yale Law School Professor Edwin Borchard published Convicting the Innocent, a groundbreaking work describing "sixty-five criminal prosecutions and convictions of completely innocent people" (33) and cataloguing the factors contributing to the erroneous results. At the time, many were skeptical, if not dismissive of the possibility that innocent people risked conviction. As Borchard explained:

   A district attorney in Worcester County, Massachusetts, a few years ago is reported to have said: 'Innocent men are never convicted. Don't worry about it, it never happens in the world. It is a physical impossibility.' The present collection of sixty-five cases, which have been selected from a much larger number, is a refutation of this supposition. (34) Borchard might additionally have cited the rather querulous opinion of Judge Learned Hand, who in 1923 observed:

   Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime. (35) Ironically, two of the wrongful convictions reported by Borchard originated in the United States District Court for the Southern District of New York, where Judge Hand presided during his distinguished career. (36) Eight others involved individuals convicted in New York State courts...