Wrongful Convictions in New York

I1 "Throughout New York State, 24 people have been exonerated through DNA testing after being convicted of crimes they did not commit. Each one was arrested, jailed, convicted and served years in prison before the hard science of DNA proved innocence. Combined, they served 280 years in prison. Only two other states in the nation, Texas and Illinois, have seen more convictions overturned by DNA evidence."

Of course, the former state has a much larger population than New York. And as for the latter, many of its wrongful convictions were the result of 'confessions' obtained through systematic torture in the Chicago precinct led by the notorious John Burge.

"Among these 24 New Yorkers whose lives were shattered by wrongful convictions, eight since 2000 were wrongfully convicted of murder -- more than in any other state in the nation in the same period of time. Seven of those eight men could have received the death penalty if it were an option at the time of their convictions or if prosecutors had sought it, and one of them was charged with a capital crime but escaped the death penalty.

"The DNA exonerations in New York reveal serious problems in the state's criminal justice system -- problems that profoundly impact individuals' lives and entire communities, and demand serious solutions. Common-sense remedies that are proven to decrease the potential for wrongful convictions have been introduced in New York in various forms over the last several years. Comprehensive packages of reforms have been introduced in the Legislature repeatedly, but they have not passed.

"Every exoneration is a learning moment that can deepen our understanding of the criminal justice system's shortcomings and provide a roadmap for restoring integrity and confidence in the system. Collectively, DNA exonerations are irrefutable evidence of the system's flaws -- and they are a mandate for reform. The lessons of the DNA exonerations in New York State can be drawn from the simple facts behind them:

-- The 24 DNA exonerations in New York since 1991 represent more than 10% of all DNA exonerations nationwide. ...

"Despite the large number of DNA exonerations -- particularly since 2000 -- New York has not learned the lessons of these exonerstions and taken action to prevent future injustice. Many other states in the nation have enacted strong reforms that are proven to enhance the accuracy and fairness of the criminal justice system. These reforms are essential since DNA is only available in a tiny fraction of cases.

"For example:

-- 7 states -- but not New York -- have taken legislative action to improve eyewitness identification procedures.

-- 26 states -- but not New York -- have statutes mandating the preservation of some crime scene evidence.

-- 14 states -- but not New York -- require at least some interrogations to be recorded (either through state statute or ruling of the state high court). In addition, more than 500 local jurisdictions record at least some interrogations.

"From across the political spectrum, leaders in dozens of states have begun to meaningfully address wrongful convictions and enhance the criminal justice system. But New York has not."

'But New York has not.'

S32 [538] "The New York State criminal discovery statute is among the strictest in the country..."

This refers to how much evidence a defendant is entitled to receive from the prosecution prior to (and in preparation for) trial, especially exculpatory evidence (i.e., evidence tending to show the defendant is innocent). In Nickel's case, it was only well after the trial had begun that the prosecution was finally forced to turn over buried evidence indicating Nickel's innocence -- far too late to be effectively used to defend against those charges.

In 2019, nearly two decades after Nickel was convicted, New York State finally did enact meaningful discovery reform. That may help future defendants, but it does nothing for those who came before. (See Brady section of this site.)

R7 [879] "[New York State is] a jurisdiction renowned for its lack of proper discovery procedures..."

886] "[T]he failure to accomplish [discovery] reform in many jurisdictions, such as New York, attests to the continued view of most prosecutors that there is nothing in it for them, and to the power of prosecutors' lobbies generally. [from FN147:] [D]iscovery reform has gone nowhere in New York, despite gargantuan efforts." (But see above.)

[887] "[Some] jurisdictions, such as New Jersey...have successfully adopted so-called 'open-file' practices."

This basically means that all evidence in a prosecutor's (including the police) file is made available to the defense well before trial.

from New York State Governor Andrew M. Cuomo's 2018 State of the State address:

[60] "New York is one of only 10 states that enables prosecutors to withhold basic [61] evidence until the actual day a trial begins. Even worse, New York has the distinction of standing alongside only three other states -- Louisiana, South Carolina, and Wyoming -- as having the nation's most restrictive rules."

However, see above discussion of 2019 discovery reform in New York.

C3 [143] "In New York, efforts to pass legislation holding prosecutors more accountable have failed. Their chief sponsor, Assemblyman Sam Colman [144] of the Ninety-Third District, insists, 'In most cases where an innocent person has ended up in jail, the prosecutor has been overzealous. Don't forget -- their job is to seek justice, not convictions. But DAs are very arrogant people. I'd like to see them held more accountable.'"

Of course, the discovery reform discussed above is only one aspect of meaningfully holding prosecutors fully accountable.

J6 "[Mark] Harris[, head of the Albany County (Public) Defender Office,] says a concern of his for many years has been that many prosecutors in this state believe they are above the law, and in one sense they are right. The Committee on Professional Standards (COPS) which governs the ethical behavior of attorneys fails to discipline prosecutors who have had convictions thrown out for prosecutorial misconduct. He says conduct of a level to cause a reversal of a criminal conviction has been judged unethical by the Appellate Division. He says this is certainly something the Committee on Professional Standards should be looking at and doing something about. But so far they are doing nothing."

The prosecutor in Nickel's case, Peter Torncello , subsequently had another of his child sexual abuse verdicts overturned due to misconduct. That trial (Riback) took place in 2004, just three years after Nickel's. It appears that Riback was Torncello's first child sex abuse trial since Nickel. Therefore, Torncello may well have thought, since he got away with 'pushing the envelope' with Nickel, he had a green light to go even further with Riback. In any event, ironically, Torncello subsequently took a senior position at the Committee on Professional Standards. But he, as well as two others in that office, would later resign following allegations that they had falsified time-sheets (i.e., claimed to have been working when, in fact, they were not).

S20 "Plans to create a state commission that would have the power to discipline prosecutors for misconduct or incompetence have cleared initial review in the [New York] state legislature.

"The 'Commission on Prosecutorial Conduct'...would mirror the state Commission on Judicial Conduct, which has investigated complaints against judges in New York since 1975.

"Like the judicial panel, the prosecutorial commission would be empowered to admonish, censure or remove prosecutors in the 62 county district attorneys' offices in the state.

"The Senate sponsor of the bill, Syracuse Republican John DeFrancisco, said he knows of no other state-based office or commission in the country that monitors the conduct of prosecutors. He said prosecutors have more on-the-job discretion than any other public servant and thus more capacity for misusing their authority.

"'Right now, we learn of prosecutorial misconduct after several years, after someone has gone to jail and they are later released and the state pays a lot of money [in compensation],' said DeFrancisco, who chairs the powerful Senate Finance Committee. 'There really is no accountability for that prosecutor.'

"The Assembly sponsor [is] Brooklyn Democrat N. Nick Perry .[who said that] 'prosecutors are supposed to seek justice and the truth, and they are often measured more by the convictions that they achieve. There need to be some checks and balances.'"

"DeFrancisco [also said that] 'there's no real forum to determine the truth of these allegations or determine whether the prosecution did anything wrong or not.'"

As of (at the very least) 2016, this bill has not yet become law.

N9 "1. Offices that have CIU [Conviction Integrity Unit] exonerations [as of late 2014], by years of founding:

Santa Clara County Office of the District Attorney Conviction Integrity Unit

(San Jose, California), founded 2002, 4 exonerations

Dallas County District Attorney's Office Conviction Integrity Unit

(Dallas, Texas), founded 2008, 25 exonerations

Harris County District Attorney's Post-Conviction Review Section

(Houston, Texas), founded 2009, 33 exonerations

The New York County District Attorney's Office Conviction Review Program

(Manhattan, New York), founded 2010, 4 exonerations

Brooklyn District Attorney's Conviction Review Unit

(Brooklyn, New York), founded 2011, 13 exonerations

Cook County State's Attorney's Office Conviction Integrity Unit

(Chicago, Illinois), founded 2012, 10 exonerations

Office of the State's Attorney for Baltimore City Conviction Integrity Unit

(Baltimore, Maryland), founded 2012, 3 exonerations

"2. Offices that have not had CIU exonerations, by year of founding:

Lake County State's Attorney's Office Case Review Panel

(Waukegan, Illinois), founded 2013

Oneida County District Attorney's Conviction Integrity Review Panel

(Utica, New York), founded 2013

Cuyahoga County Office of the Prosecutor Conviction Integrity Unit

(Cleveland, Ohio), founded 2014

Multnomah County District Attorney, Post-Conviction Deputy District Attorney

(Portland, Oregon), founded 2014

Office of the District Attorney, City of Philadelphia Conviction Review Unit

(Philadelphia, Pennsylvania), founded 2014

Pima County Attorney's Conviction Integrity Unit

(Tucson, Arizona), founded 2014

United States Attorney's Office for the District of Columbia

Conviction Integrity Unit

(Federal), founded 2014

Yolo County District Attorney Conviction Integrity Unit

(Woodland, California), founded 2014"

Note that, although three (actually, four -- see below) counties in New York do have Conviction Integrity Units, Albany does not . And, though most of the CIUs nationwide are in counties significantly larger than Albany, this is by no means the case for all of them (see Lake County, Illinois; Oneida County, New York; Yolo County, California).

N14 [13] "The District Attorney's Office in Putnam County, New York has fewer than a dozen lawyers in a county of 99,710 people. The District Attorney and the First Assistant District Attorney review claims of actual innocence. If they agree that the defendant is likely innocent, they ask a local defense attorney to take the case and do any additional investigation that may be necessary. If the District Attorney and his First Assistant do not agree, a third lawyer in the office serves as a tie-breaker. This procedure led to the 2016 exoneration of William Haughey." (See New York State Wrongful Convictions .)

C3 [19] "Once someone is indicted for a felony, the chances are incredibly high that he or she will be convicted. In 2000, for instance, New York's conviction rate from felony indictments stood at a whopping 100% in four counties, 98 percent or higher in nine others, and over 90 percent for the state as a whole."

98-100% conviction rates would seem more in line with North Korea or China than the United States. (Unfortunately, the counties aggregated here are not actually named . It would be a safe bet, however, that most/all are in upstate New York. In any event, even the 90% figure seems more like a 'rubber stamp' than a criminal 'justice' system worthy of the name.)

R6 [from FN144:] "Of the 52,711 felony arrests in New York State in 2002 that led to indictments, only 2,681 defendants were convicted or acquitted at trial; of that same number of arrestees, 45,878 pled guilty to some charge."

Therefore, all charges appear to have been dropped (or never officially filed/indicted) in just under 8% of all felony arrests. Just over 87% of all arrestees pled guilty to some charge.

Although the figures from the above two sources are not directly comparable (because they are for the years 2000 vs. 2002), assuming these years' data are similar to one another, and further assuming a year 2000 overall conviction rate of 91%, it's possible to arrive at an estimate of the proportion of defendants who go to trial and are convicted: 78%, or about 4 out of every 5. However, this probably masks a great deal of variance among counties throughout the state.

S22 [572] "Nationwide, twenty-eight percent of all felony arestees are never convicted of anything, usually because prosecutors voluntarily dismissed charges (or failed to file charges in the first place). Another twenty-three percent are convicted but not incarcerated, again mostly because of favorable charging decisions. These numbers dwarf the tiny cohort of defendants who are charged, tried, and acquitted."

The above article was written in 2001, which means its 28% figure should be roughly comparable to the figures from the two previous sources. Assuming that in New York State, 9% of all felony arrestees 'are never convicted of anything,' why is this figure a paltry one-third of the nationwide number? Why is New York far less likely to 'drop' charges or acquit than the country as a whole?

[3] "Since the [New York Wrongful Conviction and Imprisonment Act of 1984] took effect, fewer than twenty persons [as of 2004] have received awards. This includes only a tiny fraction of all wrongful convictions. In thirty-six other states, wrongfully convicted persons are legally barred from recovering damages in a court of law."

[5] "Unfortunately, not much is known about the current nature and extent of wrongful conviction. The state does not maintain a master list of its mistakes. . .[T]here is no official database."

[96] "James V. Gara, of Kelley Drye & Warren of New York City, represented Kenneth Pavel in his Habeas petition. Pavel had been convicted of sodomizing his two young sons. Interviewed for this book, Gara remarked, 'My experience with this case convinced me, never get charged with a crime north of White Plains, because they don't need any evidence to convict.'"

Commentary/application to Nickel case:

Under the New York Wrongful Conviction Act of 1984, one is eligible for compensation only if one is innocent of all charges listed in the indictment. Thus, even if one is only guilty of a very minor charge, but had been wrongfully convicted and sentenced for very serious charges as well, one would not be eligible for compensation. For example, in a typical child sex abuse case, there are one or more felonies in the indictment, plus the one 'catch-all' misdemeanor of 'endangering the welfare of a child.' Because the latter is so vague as to encompass just about anything , the state could argue that, because the person was still 'guilty' of that , he or she is not entitled to any compensation whatsoever.

Like those of several other states, New York's wrongful conviction law also withholds compensation if one has 'contributed in any way to one's own conviction,' a phrase which, once again, can mean virtually anything.

'Unfortunately, not much is known about the current nature and extent of wrongful conviction. The state does not maintain a master list of its mistakes. There is no official database.' Since this book was written, the National Registry of Exonerations has come into being, providing at least a quasi- official listing of wrongful convictions throughout this country. (See New York State Wrongful Convictions section.)

'Never get charged with a crime north of White Plains, because they don't need any evidence to convict.' Albany County is well north of White Plains.

It is sometimes argued that executive clemency -- pardons or commutations at the direction of a state governor or U.S. president -- is a plausible way to right wrongful convictions. But in New York State at least, that's pretty much a pipedream:

B22 [1348] "At both the state and federal level, grants of executive clemency have plummeted in recent decades...[1349] 'Pardons are granted on more than a token basis in only 13 states and are a realistically available remedy in only about half of those.'" **

A4 [1351] "New York governors have infrequently used their clemency authority to issue pardons. Clemency pardons come far more often in the form of a sentence commutation. Sentence reductions have been granted, for example, in several cases involving convictions and lengthy prison terms under the Rockefeller Drug Laws.

"In 2008 Governor Patterson pardoned Ricky Walters for his 1995 conviction for attempted murder. The pardon allowed Walters, a British citizen, to escape deportation, and was based on [1353] Walters's clean prison record and community service rather than grounds of innocence. Walters's pardon was the first one given in New York State since 2003, when Governor George Pataki posthumously pardoned comedian Lenny Bruce. Bruce had been convicted on a misdemeanor obscenity charge based on a nightclub routine in 1964. He died two years later. Bruce's pardon was just the tenth issued by a New York governor since Nelson Rockefeller's administration."

Z2 "In 2011-2014, not a single person had his or her sentence reduced [via commutation] in New York State."

S27 "According to a new report from The National Registry of Exonerations, 2013 saw 87 documented cases (published, reported, or discovered), the highest number in the last 24 years. Eight of these cases originated in New York, and not a single pardon or commutation among them."

C3 [7] "[C]lemency offers virtually no hope at all -- governors and presidents do not pardon prisoners based on innocence.!

Below, 'good time' refers to the proportion by which one's sentence may be reduced, provided 'good behavior' while incarcerated:

O2 [200] "The amount of good time available varied considerably by jurisdiction, and within some jurisdictions based on offense type and other considerations. Seven states offer day-for-day credit or better to at least some classes of inmates; in these states, a sentence might effectively be cut in half based on good conduct. Other states are much stingier, awarding only three or four days of credit per month. Still other states have quite elaborate systems that defy easy characterization. The norm, however, seems to be in the range of ten to twenty days per month, or a reduction in sentence length of twenty-five to forty percent."

New York currently [as of 2021] offers a maximum reduction of just 15% . Prior to Governor George Pataki's tenure (1995-2007), it had been 33% .

[from table of good time credits by state (those bordering New York):

Connecticut offers 12 days per month; Massachusetts, 7.5; New Jersey, 16; none of the aforementioned appear to preclude sex offenders from earning good time. Pennsylvania and Vermont are not listed.]

New York offers only 4.5 days per month, by far the stingiest of the above-listed states.

The following is a report by the New York State Permanent Commission on Sentencing:

N8 [11] "There was a broad consensus that the [sentencing] ranges for truly non-violent offenses should not be the same as those for homicide offenses, which New York peculiarly classifies as 'non-violent.'"

[17] "[S]entencing reform is needed. The current system makes little sense; it is a hodgepodge that has resulted more from historical accident than considered judgment."

[from Exhibit B: Sentences Recommended by the O'Donnell Commission:

1/3 good time off for first-time offenders.]

[6] "[T]here are those who argue that New York's current sentencing laws are harsh by national (or international) standards."

Commentary/application to Nickel case:

Even if Nickel had committed the most serious offenses that he was convicted of (which he did not ), they were all non-violent, in any meaningful sense of that word. Still, he was given an aggregate sentence of 54 years. Even after it was reduced on appeal to an aggregate of 32 years, it was still virtually identical to the sentence for Murder in the 1st Degree (25 years to life).

'1/3 good time for first-time offenders.' Nickel himself was a first-time 'offender.'

M25 "Governor Andrew Cuomo gave his State of the State address on January 5, 2011...[T]he most passionate part of his speech came when he spoke of our current criminal justice system as it relates to incarceration. 'An incarceration program is not an employment program. If people need jobs, let's get people jobs. Don't put other people in prison and give some people jobs...That's not what this state is about and that has to end this session.' Finally, a leader who is willing to address the issue of incarceration in New York head-on. What kind of society are we when we speak of the 'prison industry' as if it were the same as the 'automobile industry'?...There is no mention in our Penal Law about ensuring job security or using incarceration as an economic development tool for Upstate New York. But sadly, for many years, there have been those who touted these very reasons to support their opposition to prison closures or to reforming our laws to focus on rehabilitation as well as punishment. Gov. Cuomo has given us reasons to believe the tide is turning. With Gov. Cuomo's visits to Sing Sing, Manhattan Psychiatric Center and Tyron Juvenile Residential Facility just days after his election, and his subsequent statements...it appears as if Gov. Cuomo is ready to breathe life into our goals of rehabilitation, reentry, and reintegration. And it appears as if the Legislature is not very far behind him. Just days ago Betty Little, a Republican Senator from Upstate New York, was quoted as saying that the state should not be 'warehousing' prisoners. Perhaps New Yorkers are finally accepting the fact that when over 95% of prisoners will be returned to society, our goals must be to educate and to provide programming and medical and mental health treatment to them so that when they are released they become productive law-abiding citizens. Our Penal Law states that the goals of reintegration and punishment are equally important. With that in mind, we need to be honest about what works and what does not. We know that excessive use of force, harassment, unjust punishment, solitary confinement and denial of basic privileges, in almost all cases, thwarts the goal of reintegration...Let us, once again, be an example to the entire country and accept Gov. Cuomo's challenge -- a challenge to engage in a cultural change in the way we view the purpose of our penal laws and our criminal justice system. Let us move forward together agreeing that the purpose of a prison is not just to punish and deter but to rehabilitate and prepare for reentry and that it is reprehensible, indeed, barbaric, to tie imprisoning people to the goals of ensuring job security and economic development."

M26 "With all the talk about the budget deficit and our current economic crisis, you would think we would finally pay attention to what we know works when it comes to criminal justice policies...[Y]ou only have to look at the statistics on incarceration and recidivism rates to see that the United States is one of the least effective countries in the Western world when it comes to implementing policies and strategies that promote public safety...The United States has the highest documented incarceration rate in the world. As of June 2009, the Bureau of Justice Statistics reported that the incarceration rate in the U.S. was 748 per 100,000, or approximately one out of every 136 adults! The U.S. has less than 5% of the world's population but approximately 25% of the world's prison population. None of our closest competitors -- Russia, Belarus, and Bermuda, with incarceration rates of approximately 532 prisoners per 100,000 -- is even a close second. More disturbing is the comparison of our incarceration rate to the rates of a number of other countries -- New Zealand: 186 per 100,000; England and Wales: 148 per 100,000; Australia: 125 per 100,000; The Netherlands: 93 per 100,000; and Norway: 66 per 100,000...[U]nless a high rate of incarceration correlates with a low recidivism rate, it cannot be said to promote public safety. According to the Bureau of Justice Statistics, the recidivism rate in the U.S. is 67.5 percent. Compare this rate to the rates in other countries and you will find that the U.S. tops the charts once again. Japan's national recidivism rate is 39%; Sweden's is 35%; and Canada's is 35% for men and 20% for women. When we look to other countries to study why their recidivism rates are so low, we find that not only are their incarceration rates much lower but their approach to incarceration is also quite different from the approach taken by the U.S. Take, for example, Norway's Halden prison. Dubbed 'the most humane prison in the world,' the recidivism rate for individuals released from Halden is only 20%. At Halden Prison, the focus of the correctional strategy is based on respect for human rights...So why do we continue to pursue public safety using techniques that we know do not work? Why don't we focus more of our time, energy and resources on adopting the practices that have led other countries to have lower rates of incarceration and recidivism? Hasn't the time come for us to focus on criminal justice strategies that both enhance public safety and are fiscally sound?"

-----

* Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly-Discovered Evidence in State Courts, 47 Ariz. L. Rev. 655, at 699-708.

** [from FN80:] "[Margaret Colgate] Love, Reviving the Benign Prerogative of Pardoning, Litigation, Winter 2006, at 26."

Perversion of Justice

Is deliberately finding someone guilty of things he did not do ever justified? If we convict people for acts of child sexual abuse that never happened, does that somehow 'make up' for all the past abuse that went completely unpunished? Is it okay to pervert justice in order to punish people wrongly perceived as perverts?

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