Empire State Injustice: Based Upon a Decade of New Information, a Preliminary Evaluation of How New York's Death Penalty System Fails to Meet Standards for Accuracy and Fairness

Author:Committee on Capital Punishment
Position::Association of the Bar of the City of New York

Introduction: A Preliminary Evaluation I. Informant Testimony Rules A. Importance of Rules for Informant Testimony in Capital Cases B. New York Law Regarding Informant Testimony II. Witness Testimony and Scientific Corroboration Rules A. Importance of Rules for Witness Testimony and Scientific Corroboration in Capital Cases B. New York Law Regarding Witness Testimony and Scientific Corroboration... (see full summary)


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    This article is a report of the Committee on Capital Punishment of the Association of the Bar of the City of New York. This published version of the report contains a few minor non- substantive changes from the original Association report, which is available at the Association`s website (http://www.abcny.org).

The report, which resulted from the work of a subcommittee of the Committee on Capital Punishment, was originally presented to members of the New York Assembly Standing Committees on Codes, Judiciary, and Correction in January 2005. At the time, the New York Assembly was considering whether to pass a new death penalty law in light of the ruling of the New York Court of Appeals that New York`s death penalty statute violated the New York State Constitution. See People v. LaValle, 817 N.E.2d 341 (N.Y. 2004). Following several hearings on the death penalty over several months, the New York Assembly did not pass a new death penalty law. See Patrick D. Healy, Death Penalty is Blocked by Democrats, N.Y. TIMES, Apr. 13, 2005, at B1; Sam Roberts, Switch By a Former Supporter Shows Evolution of Death Law, N.Y. TIMES, Feb. 28, 2005, at B1. In the future, New York or any other jurisdictions considering whether to add or maintain a death penalty should consider the issues in this report and other issues regarding capital punishment that the Committee has recently addressed. See also David S. Hammer et al., Dying Twice: Conditions on New York`s Death Row, 22 PACE L. REV. 347 (2002) (Report of the Association of the Bar of the City of New York regarding conditions on New York`s death row); Symposium, Dying Twice: Incarceration on Death Row, 31 CAP. U. L. REV. 853 (2003).

The Association of the Bar of the City of New York, an organization established in 1870 that is composed of more than 22,000 members, has a history of working for reforms of the legal system. The Association has long been concerned with capital punishment and its application, and it has taken the lead in the analysis of practical and legal issues relating to the death penalty. In January 2005, Association President Bettina B. Plevan was among those who testified before the New York Assembly Committees that were considering whether to pass a new death penalty law.

The authors are grateful to members of the Committee on Capital Punishment who assisted by reading and commenting on drafts of this report. The authors, in particular, express their appreciation to Committee members Russell Neufeld, Jonathan Sussman and Ronald Tabak.

Sara Darehshori

Senior Counsel, International Justice Program, Human Rights Watch. J.D., Columbia Law School, 1993. B.A., Brown University, 1989. Ms. Darehshori was the Chair of the Subcommittee that wrote this report.

Jeffrey L. Kirchmeier

Professor of Law, City University of New York School of Law. J.D., Case Western Reserve University School of Law, 1989. B.A., Case Western Reserve University, 1984. Professor Kirchmeier was the Chair of the Committee on Capital Punishment when this report was written and submitted to the New York Assembly.

Colleen Quinn Brady

Attorney-at-law. J.D., Georgia State University, 1986. M.S.W., Catholic University of America, 1981. B.A., George Washington University, 1979.

Evan Mandery

Associate Professor, John Jay College of Criminal Justice, City University of New York. J.D., Harvard Law School, 1992. A.B., Harvard College, 1989.

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Introduction: A Preliminary Evaluation

In striking down a provision of New York`s death penalty law last year and thereby initiating a moratorium on capital punishment, the New York Court of Appeals created an important opportunity for the legislature to re-examine New York`s capital punishment system.1 In the years since 1995, when New York reinstated the death penalty, it has become apparent that the death penalty does not function properly.

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Since 1995, press reports and studies have shown that numerous people have been erroneously convicted of capital crimes. The risk of executing innocent persons became clearer as advances in DNA technology conclusively showed that innocent people came perilously close to being executed.2 Examination of how innocent people ended up on death row in these cases reveals a variety of systemic errors that may exist in a far larger number of cases. DNA evidence, of course, is not a solution by itself. In many capital cases, DNA evidence may not exist and thus cannot help exonerate the unknown number of innocent people condemned to death.3

The Empire State is far from immune to these risks. In December 2002, Newsday reported that it found eleven New York cases involving thirteen men who were wrongly convicted of murder in the preceding five years.4 These wrongful convictions resulted from significant flaws in New York`s system-flaws that have not yet been rectified and could still lead to the execution of innocent people.

Flaws such as those found in New York`s system lead not only to the conviction of innocent defendants, but also to death sentences that are applied unfairly and arbitrarily. In 2000, for example, a team of researchers headed by Professor James Liebman at Columbia University released results of an extensive national study in which they found a stunning 68 percent appellate reversal rate in capital prosecutions.5

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The concerns about the operation of the death penalty that have been raised recently across the country by judges, prosecutors and various commentators have resulted in several studies and recommendations for ways to improve capital punishment systems.6 The discovery of thirteen wrongfully convicted men on death row in Illinois led Governor George Ryan to appoint a commission to study the possibility of error in capital sentencing.7 Ultimately, following the commission`s report on problems with both capital convictions and capital sentences, the governor commuted the sentences of everyone on Illinois` death row.8

In 2002, after careful study, the Illinois Commission issued a set of recommendations aimed at reducing the possibility of error in capital cases.9 These recommendations range from changes in police practices that would help minimize false confessions, to independent scientific review of forensic evidence.10 A comparison of the Illinois Commission recommendations to current procedures in New York shows that New York law falls short in many respects.

In September 2003, following the Illinois Commission report, the Republican governor of Massachusetts, Mitt Romney, seeking to initiate the death penalty in Massachusetts but wary of problems other states were having with it, created the Massachusetts Governor`s Council on Capital Punishment.11 The council`s objective was to offer proposals for legal and forensic safeguards that would be necessary before a fair death penalty statute could be considered in Massachusetts.12 The council Page 89 made ten recommendations for safeguards it deemed necessary to minimize the risk of executing innocent people; nine of those recommendations are inconsistent with New York`s current death penalty law.

Of course, the only way New York can be sure to resolve the problems with capital punishment and entirely eliminate the risk of executing innocent persons is for the legislature not to bring back the death penalty.13 However, in the event the legislature considers whether to reinstate the death penalty, this report provides some guidance to the discussion of problems with New York`s death penalty and proposes some essential procedural reforms.

This report touches on some of the areas in which New York law fails to meet the minimum recommendations advocated in the Illinois and Massachusetts reports. The recommendations in those reports arise from extensive studies, by qualified experts, of how to minimize significant accuracy and fairness problems. Thus, New York should not move forward without giving them full consideration. This report discusses rules regarding informant testimony, rules regarding witness testimony and scientific corroboration, the importance of videotaped...

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