Empire State Injustice. Based Upon a Decade of New Information, A Preliminary Evaluation of How New Yorks Death Penalty System Fails to Meet Standards for Accuracy and Fairness

• Position: Senior Counsel/Professor of Law/Attorney-at-law/Associate Professor, John Jay College of Criminal Justice
• Pages: 85-120

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^*

Page 85

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.Page 87

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.⁵Page 88

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 councilPage 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 interrogations, rules regarding lineup procedures, the value of independent review of scientific evidence, the need for a narrower list of death penalty eligibility factors, the importance of different juries for each stage of a bifurcated capital trial, the need for a heightened burden of proof, the need for judicial discretion to overturn death sentences, and the need for an ongoing capital punishment review commission. The issues we raise have particular resonance when the defendant faces the ultimate irreversible penalty of death.

This report is an initial investigation of some of the areas that would need to be addressed in any capital punishment regime, and is not an exhaustive examination of the problems with New York's capital punishment system. The recommendations discussed here relate solely to some issues of guilt and innocence, eligibility for the death penalty, and jury selection. A large number of the Illinois and Massachusetts recommendations are not included here, but almost all of the recommendations require further investigation and consideration in NewPage 90 York. In short, prior to making any decisions about a death penalty statute, at a minimum, there needs to be a thorough consideration and analysis of the existing statute in light of new information bearing on the danger of unfair outcomes under the current statutory scheme.

I Informant Testimony Rules

A Importance of Rules for Informant Testimony in Capital Cases

Noting that several wrongful capital convictions involved testimony by unreliable parties, the Massachusetts Council recommended that the jury be instructed that "statements by codefendants or informants, especially when the codefendant or informant receives or hopes to receive any benefit from the state (such as a reduction of criminal charge or sentence), may be unreliable, and should therefore be evaluated with great care."¹⁴ If any benefit was received by the codefendant or informant in exchange for the statement, "the jury must be told about the benefit."¹⁵

The Illinois Commission similarly recommended that a pattern jury instruction should be adopted "providing a special caution with respect to the reliability of the testimony of in-custody informants."¹⁶ The commission unanimously agreed that the "testimony from in-custody informants presented particular problems, which mandated special procedures calculated to insure that such witnesses were reliable."¹⁷ It found that false testimony from in-custody witnesses played a part in several of the thirteen cases of men released from death row in Illinois.¹⁸

In addition to the Illinois cases, the Illinois Commission considered criminal justice literature and reports. In particular, the report considered a major inquiry into wrongful convictions in Canada.¹⁹ The special commissioner in the "Morin Inquiry," as it was known, recommended substantive policy changes that "emphasized the importance of establishing the credibility of the informer's testimony through corroborative evidence and careful examination of the circumstances under which the informer made his statement."²⁰ The Morin Inquiry consid-Page 91ered another investigation into the use of in-custody informant testimony in Los Angeles between 1979 and 1990...