Bar Leaders Approve Proposal To Reduce Wrongful Convictions

Advocates of the recommendations urged bar members to lobby for change.

“This particular document . . . actually recommends methods that are attainable, that are practical and they can actually improve criminal justice, from the prosecution standpoint, the law enforcement standpoint and the defense standpoint,” James P. Subjack of Fredonia told bar members on Saturday.

Mr. Subjack is a former Chautauqua County district attorney who is now in private criminal practice.

Vincent E. Doyle III of Connors & Vilardo in Buffalo, a task force member, also urged bar members that “this report not be left on a shelf, that this report be used as a blueprint for reform and legislative issues and priorities in the coming years.”

Assemblywoman Helene Weinstein, chairwoman of the Assembly Judiciary Committee, said yesterday in an interview that building safeguards against wrongful convictions is “clearly important” to the Assembly.

“Certainly, the bar report crystallizes some of the issues for us,” said the Brooklyn Democrat. “I do think that it will be the focus now, particularly with a Senate that would be more responsive” to making changes, she said.

The Senate changed from Republican to Democratic hands after November’s elections and several criminal justice issues that have long been stalled in the Senate have shown signs of movement.

One bill, A3795/S1589, has cleared the Assembly Judicial and Codes Committee and has been introduced by Senate Codes Committee Chairman Eric Schneiderman, D-Manhattan, in the Senate Judiciary Committee.

It would establish a commission to examine wrongful convictions after they occur, study why they happened and recommend ways to prevent future mistakes. The commission would not be empowered to reopen cases in which wrongful convictions are suspected, but would attempt to learn lessons from cases where convicted defendants are exonerated based on DNA or other evidence.

Mr. Schneiderman did not return calls for comment. During a hearing before Judge Kamin’s task force, Mr. Schneiderman called its work the most important ever done by a state bar task force and said he was committed to reducing instances of wrongful convictions in New York.

A ‘Clear Road Map’

In an interview last week, Chief Judge Jonathan Lippman said preventing wrongful convictions is “something that the judiciary is very interested in.”

“The last thing we want as a judiciary is to have people wrongly convicted in our courts,” he said.

Stephen Saloom, policy director at the Benjamin N. Cardozo School of Law-affiliated Innocence Project, said the task force has provided the state with a “clear road map for how to enhance, really, the accuracy, integrity and justice of our criminal justice system.”

“They have provided clear guidance for any policymakers who might want to pick up on these reforms,” Mr. Saloom said in an interview.

The task force reviewed 53 instances of wrongful convictions in New York dating back to 1964. It found that identification errors contributed to wrongful convictions in 36 of the cases and that errors by government actors – a member of law enforcement, a prosecutor or a judge – were evident in 31 cases.

In most cases, more than one error contributed to a wrongful conviction.

The task force recommended that defendants be given a right to sue if insufficient representation of counsel contributed to a wrongful conviction. Upon questioning Saturday from House of Delegate member Malvina Nathanson, Judge Kamins said the task force considered, but rejected, recommending special rights of action for those wrongfully convicted under compulsion of a threatened higher penalty or false identification evidence.

“We considered it and we didn’t want to specifically put in our recommendations all the variables and possible situations” where innocent defendants are convicted, Judge Kamins said.

Mark Dwyer, appeals chief for Manhattan District Attorney Robert M. Morgenthau and a member of the task force, said prosecutors agreed with many of the recommendations, but have practical concerns on how some can be implemented. Prosecutors, for instance, are not opposed to the videotaping of all stationhouse interrogations of criminal suspects, he said.

“Our only issue goes toward the appropriation of funds sufficient to accomplish that purpose in a quality way,” Mr. Dwyer said in an interview yesterday.

Prosecutors would have a harder time going along with recommendations that could affect current evidentiary rules and hinder their ability to introduce evidence at trial, Mr. Dwyer said.

“We all share in the commitment to take whatever steps are appropriate to reduce the instance of wrongful convictions,” Mr. Dwyer said. “The important thing is simply not to make convictions more difficult, it is to focus on efforts that would specifically make wrongful convictions more difficult.”

Global Warming Report

The House of Delegates also approved a report from its Task Force on Global Warming calling for more environmentally aware government policies to reduce carbon-based emissions.

Read The Task Force On Global Warming Report.

Delegates defeated, by a 75-57 margin, a proposed amendment by Robert Haig of Kelley Drye & Warren, that the association’s leadership body “accept” the task force’s report instead of approving it. Mr. Haig argued he felt he lacks the technical expertise to determine if off-shore wind farms and other alternate energy sources endorsed by the task force are the best responses to cutting carbon-based pollution.

Eileen D. Millett of Gibbons PC countered that the less-than-wholehearted acceptance of the task force’s report by the House of Delegates would hamper the bar group’s efforts to lobby the state and federal governments on reducing greenhouse gas emissions.

“The language that’s been added, that it ‘accepts with appreciation,’ would prevent the officers and members of this bar association from lobbying on behalf of many of the fine recommendations that are in this report from further endorsing and going forward with it,” said Ms. Millet, a member of the greenhouse gas task force and of the state bar’s executive committee.

She argued that the legal profession would be one of the major private-sector benefactors if the United States makes a more serious commitment to “green” energy.

“Green is the new gold,” Ms. Millet said.

In a comment on the task force report, Ann B. Lesk of Fried Frank Harris Shriver & Jacobson and president of the New York County Lawyers’ Association, told delegates that she had driven alone in her car to Saturday’s meeting and she questioned whether it is time to “find ways to reduce this organization’s carbon footprint, particularly the travel to meetings.”

Fee Increases Fought

Also Saturday, state bar President Bernice K. Leber credited a message-writing and lobbying effort by the group with beating back $35 million worth of proposed legal fee increases in the state budget before lawmakers last week.

The increases included a hike to $240 from $210 in the purchase cost of an index number for a filing in state Supreme Court and the increase of the fee for taking the state bar examination to $350 from $250. A new $100 fee to file a record on appeal before the Appellate Term also was excised from the final spending plan approved last week by the Legislature.

In a message to members urging their opposition to the fees, Ms. Leber, of Arent Fox, said the proposed increases would only have served to limit access to justice at a time when the sour economy is forcing more and more people into courts.

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