Barry Kamins/photo by Rick Kopstein. Barry Kamins/photo by Rick Kopstein.

The New York State Bar Association has passed a series of recommended criminal justice reforms aimed at preventing wrongful convictions, putting forward ideas that focus on evidence and asking that all state district attorneys install an internal conviction-review unit.

Only nine state D.A. offices out of 62 have such internal review units today, according to Barry Kamins, a co-chairman of the state bar association’s task force on wrongful convictions, which was formed last June and included 27 members made up of lawyers, a federal judge, three sitting district attorneys and law professors.

“We want the unit to be set up to be independent, for it to exclude persons in the office who worked on the case,” Kamins, a former Kings County Supreme Court justice, said of the conviction-review unit recommendation, one of four reform-oriented recommendations proposed by the task force and approved by the bar association’s House of Delegates last weekend.

“We want to have seasoned attorneys that approach these cases with an open mind, with the realization that a conviction could have been wrongfully obtained,” Kamins also said of the recommendation.

He has described such review units as a “conviction integrity unit or some form of conviction review.” And he has called the creation of them “an emerging issue around the country” that began when a Dallas D.A. office formed the first such unit in 2007.

The other recommendations made by the task force and passed by the House of Delegates, which has more than 125 delegates, are:

  • To permit a person who has pleaded guilty to a crime to be able to move to vacate his or her conviction based on newly discovered, innocence-establishing evidence, specifically meaning evidence other than DNA evidence, which is the only type currently allowed under state law for such motions to vacate, according to Kamins;
  • To change the current admissibility standard for forensic evidence in state criminal cases from the Frye evidence standard to a more restrictive Daubert standard, in order to hopefully prevent the admission of “junk” or other discredited scientific forensic evidence; and
  • For the state bar association to monitor more closely whether police offices across the state are implementing recently passed state laws calling for the use of “blind” suspect lineups and for there to be a recording, from the start, of certain custodial suspect interrogations.

The state bar association’s recommendations are just that—recommendations that may or may not be adopted by government offices, lawmakers and lawyers across the state. But Kamins noted in a phone interview that a prior iteration of the task force was formed last decade—he was a chairman then, as well—and that it issued its first report in 2009. That report, he said, made recommendations such as requiring police officers to record custodial suspect interrogations, a recommendation that was adopted into state law several years later.

“We’re hoping that the Legislature will adopt our new [evidence-based] recommendations” regarding both motions to vacate convictions and the Daubert standard, Kamins said.

The recently formed task force, according to the bar association’s website, was tasked with “building upon NYSBA’s ground-breaking 2009 report which made valuable recommendations to improve the administration of justice and shed light on what is a profoundly serious and continuing problem” of wrongful convictions.

“This task force will update the 2009 report with recommendations based upon new developments, technology, science, experience, and judicial decisions and make affirmative recommendations to reduce the likelihood of wrongful convictions,” the website description also said.

Addressing the bar association recommendation aimed at changing law so that a person who has pleaded guilty can move to vacate the conviction based on innocence-establishing evidence, Kamins said, “It’s a sea change. It would expand remedies for this category of defendant who is actually innocent.”

He added that “some states have made this change.”

Under current New York criminal procedure law only DNA evidence can be used for such motions to vacate, said Kamins, today a partner at Aidala, Bertuna & Kamins who focuses his practice on criminal appeals and on professional responsiibility.

“Suppose a defendant is innocent but pleads guilty because he or she wants a lighter sentence, and then a cooperator comes forward who names the actual perpetrator,” Kamins said in giving an example of how the proposed law change might work.

“Right now, there is no way to move to vacate that conviction, even if you can establish a substantial probability of actual innocence,” he said.

In speaking about the recommendation on the standard for admitting forensic evidence in criminal cases, Kamins said that New York law uses the Frye evidence standard but that 37 other states have adopted the Daubert standard.

The Frye standard relies on past judicial determinations about types of evidence, using precedential cases, he said, and therefore it does not asks a judge to look at the proposed evidence independently.

“The problem with Frye is that it encourages reliance on some evidence that has been since been proved wrong by experts,” Kamins said, adding that “certain scientific evidence which is thought to be reliable is now considered to be junk science,”

For example, according to Kamins, studies have come out calling into question the reliability of both testimony about bite marks and scientific hair-comparison analysis.

Under Daubert, he said, a judge presiding over a case must do a real-time independent analysis of the proposed scientific evidence, thereby helping to eliminate the admission of evidence that has since been proved wrong or heavily questioned.

Kamins said that the measure recommends that the bar association monitor more closely whether police offices statewide are implementing laws calling for the use of “blind” suspect lineups and for there to be a recording, from the start, of certain custodial suspect interrogations.

Blind lineups, he said, require the person administering the lineup not to know who the actual suspect in the lineup is. The other law calls for custodial interrogations of suspects to be recorded from the very start of the interrogation when certain serious felonies are alleged.

The Task Force, which was co-chaired by former Court of Appeals Judge Robert Smith, has issued a187-page “Final Report” on its recommendations and work, Kamins also noted. He said the report includes information on the recommendations and some detailed suggestions on how to implementing certain recommendations.