It took five trials, but on Sept. 12, Selwyn Days was acquitted of a grisly 1996 double murder in Westchester County for which he has spent 16 years in jail based on a false confession he provided to police.
For the past decade, Glenn Garber, founder of the nonprofit Exoneration Initiative, which focuses on innocence cases that are not based on DNA evidence; and Roberto Finzi, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, have been at Days’ side. Rebecca Freedman of the Exoneration Initiative and Paul Weiss associates Jonathan Bodansky and Justin Wiley also worked on the case.
On Nov. 21, 1996, the bodies of Archie Harris, a 79-year-old millionaire and retired real estate investor, and his home health aide, 35-year-old Betty Ramcharan, were found inside Harris’ home.
Harris was beaten, bludgeoned and stabbed to death; Ramcharan had been strangled, suffocated and her throat slit.
But by 1999, investigators had chased down all possible leads, and declared it a cold case.
New life was breathed into the case about two years later, when Days was arrested for violating an order of protection filed by his girlfriend. The girlfriend told police that, during a fight between the couple, Days blurted out that he killed two people.
There was no DNA evidence or eyewitness testimony linking Days to the murders of Harris and Ramcharan, though Days’ mother had worked for Harris.
Police interviewed Days for seven hours, of which only the last 75 minutes was videotaped. Days confessed to the killings during the videotaped portion.
Then began Days’ long odyssey through the court system.
His first trial ended in 2003 with a hung jury.
He was tried a second time in 2004, and was convicted of two counts of second-degree murder. That conviction survived an appellate challenge.
In 2007, Days filed for a §440 proceeding to vacate the conviction, arguing that he received ineffective assistance of counsel at trial. A Westchester judge agreed and ordered a third trial, which was held in 2011 and also ended with a hung jury.
Days was convicted of the murders again on Dec. 20, 2011, following a fourth trial.
But in 2012, after the New York Court of Appeals ruled in another case to allow expert testimony on false confessions, the tides shifted in Days’ favor.
In 2015, the Appellate Division, Second Department, found that Acting Westchester County Supreme Court Justice Barry Warhit erred by not allowing Days to admit proffered expert testimony from two psychologists about false confessions, and ordered his fifth trial.
In an interview with the Law Journal, Garber discussed the challenges of clashing with Westchester prosecutors determined to make Days’ conviction stick, the challenges of keeping his client hopeful through the case and how the case can serve as a lesson for defense attorneys and prosecutors alike.
The interview was edited for length and clarity.
Q: What swayed the jury in Days’ fifth trial?
A: The main difference is that we were allowed to call a false-confession expert and also litigate the false confession in a way that made it understandable to a jury and that was very important. We made a fight before the appellate division to be able to fight for that.
The presentation that we were allowed to put on was not only that false confessions happen and that they are a real thing in the American criminal justice system, but also that there was a way to understand whether or not there was false confession in the case. There was a number of areas that we were able to develop to show that to the jury.
I think it was a challenge boiling that down to understandable terms, because it’s fairly complicated, but I feel that we did a pretty good job with that.
Q: Could the ruling in Days’ case offer a lifeline to defendants in similar situations?
A: Absolutely. I think defense attorneys are of the mind that, if a client confesses, and certainly if he confesses on video, you have no shot of prevailing, no matter how weak the case is against your client, but for the confession. This is a turning point, because with the ability to litigate a false confession case in the way we did, you can convince juries that the prosecution has not been able to prove their case.
Q: Do you know why the prosecutors were willing to fight this case five times?
A: I think that in serious cases, there’s a dysfunctional thinking in most prosecutors’ offices about cases and whether they should give them up, and think there was dysfunctionality in this office. I think they stuck their heads in the sand and didn’t look at this in the objective way that they should have. Had they done that, I think they would have abandoned the prosecution.
Q: Did you find it difficult to keep up your client’s morale?
A: Yes, it was very, very difficult. I think it’s difficult in wrongful conviction cases to keep defendants sane and hopeful that justice can potentially find its way. But this was more challenging than most, in that we had five trials and every corner we turned, even in a positive way, we were met with tremendous resistance from the prosecution.
Q: What takeaway is there for prosecutors from this case?
A: I think they need to be more receptive to the idea that false confessions occur and that they should look at the markers that tell them that they may have occurred in a case. We’ve demonstrated in this trial that there is a very straightforward way to understand whether or not the case has contamination and that they certainly should not accept police statements to them that they did not feed back to a suspect. That is not something that should be accepted in a case like Selwyn’s without deep scrutiny.