Westchester Guardian/Jeffrey Deskovic.

Jeff Deskovic.

Reviewing New York State Bar Association’s Preliminary
Report On Wrongful Convictions in New York, Part 2

Editor’s Note: In this, the second of a three-part series, Mr. Deskovic continues to review the various elements of the New York State Bar Association’s preliminary report on wrongful convictions issued prior to their seminar in New York City two weeks ago.

Mr. Deskovic, who was an invited speaker at the seminar, at which Westchester District Attorney Janet DiFiore was a panelist, will be reporting next week on what transpired at the event.

False Confessions

The Bar Association’s preliminary report advocates the electronic recording of all custodial interrogations in felony-level investigations because such procedures would help prevent and identify false confessions, and therefore should be required. It also encourages that training in the area of interrogation be provided to police, prosecutors, defense attorneys, and judges.

Commentary

I have long advocated for the videotaping of interrogations. However, the report, while acknowledging the tactics which have been linked to false confessions, such as prolonged interrogations, interrogating the mentally disabled and mentally ill, psychological coercion, and deception, nonetheless does not advocate for any remedies to address these realities.

As I see it, we live under The United States Constitution, which includes the 5th Amendment, which states that no one shall be compelled to be
a witness against themselves. In Miranda v Arizona, the United States Supreme Court stated that all waivers of our Miranda Rights must be done “knowingly, willingly, and intelligently”. A system of interrogation which involves psychological coercion, and deception, is incompatible with that. Therefore it should not be allowed.

Similarly, just as in other walks of life we believe that the mentally ill are not able to make certain decisions, such as business contracts, control
over money, or sexual relations, so too I fail to see how they are able to “intelligently” waive their rights. Rather, an attorney who can explain things to them patiently, along with all of the implications, should be made available.

Then, if a person decides to confess, they can lawfully do so. Absent, too, in the report, is the relationship between the polygraph and false confessions, along with interrogating people for long periods of time.

Brady Violations


The report suggests the following:

1. In the event of a late Brady disclosure, whether before or during trial, the court should grant an adjournment of sufficient length to enable the defense to prepare, and, where appropriate, preclude evidence, give an appropriate instruction to the jury and grant such other relief as is appropriate;

2. If Brady information relevant to the defense has not been given to the defense or has been delivered in a late turnover, or if false testimony is used at trial, relief on appeal or collateral challenge should be granted unless the state shows there was no possibility the information would
have affected the decision;

3. Where procedures do not currently exist, prosecutors should put in place appropriate internal procedures for prevent Brady and truthful evidence rule violation and for examining, evaluating, and determining whether the official conduct of an assistant is improper and should be sanctioned, and if appropriate imposing such sanctions;

4. Under the existing rules of the Code of Professional Responsibility (or, if adopted, the Model Rules of Professional Conduct), a statewide procedure for identifying and reviewing intentional or reckless violations of Brady and the truthful evidence rule should be established;

5. A Brady Conference should be held before trial to resolve issues of turnover;

6. Law enforcement officials should be trained and supervised in the application of Brady.

Commentary


In my recent article about prosecutorial misconduct, I advocated granting post conviction relief when prosecutorial misconduct has been committed. That would include Brady violations. I agree with this recommendation. Although there is mention of reviewing intentional violations, there is no mention of the criminalization of prosecutorial misconduct, nor of financial penalties. As such, this is inadequate. The Dallas
Morning News reported that in Texas, Dallas District Attorney Craig Watkins and the Texas Innocence Project have come out publicly in favor of criminalizing the purposeful withholding of exculpatory material.

Preserving Evidence

The report advocates the preservation of evidence, both DNA and non-DNA. An important addition that the report listed is that the failure to follow protocols should, where appropriate, as in cases in which public officials have failed to establish procedures or have systematically violated them, or the state has acted intentionally to destroy the evidence, give to the defendant at trial or post-conviction procedure, the benefit of a permissible presumption that any forensic result would be deemed favorable to the defendant’s position.

Commentary


Giving a defendant the presumption that any forensic result would have been favorable in instances where the evidence has been destroyed or lost is the only way to make up for not preserving it. As such, this is an excellent suggestion, and would have the impact of highly motivating both police and prosecutors to ensure that evidence be preserved.

An Interesting Aside


The report made an interesting statement elsewhere that I think is worth repeating. Pretrial hearings on the subject of the reliability of identification procedures, known in legal jargon as Wade Hearings, nor appellate review , is sufficient “to address the problem of wrongful convictions based on mistaken eyewitness testimony and are difficult to overturn on appeal under existing New York State law.

This is because the Appellate Division is traditionally deferential to the trial courts since they have seen the witness. As for the Court Of Appeals, they will reverse a conviction on the grounds that identification testimony should have been suppressed only when the lower court’s findings of fact are clearly unsupported by the record and thus present a question of law for review.

After trial, convictions based on erroneous eyewitness identifications are difficult to overturn because appellate and habeas corpus decisions are almost always predicated on questions of law, not questions of fact. This limited nature of appeals makes the reversal of erroneous verdicts almost impossible.

In particular, mistakes resulting from juror error are difficult to correct. It is unlikely that a conviction due to a jury’s mistaken application of law to facts will be reversed because current legal mechanisms are not conducive to examining and correcting mistakes of juror judgment. As a result, the justice system becomes frustrated, with innocent parties jailed and criminals freed…. it might be years before such error is corrected, if ever.

During the interim between a wrongful conviction and a reversal of the conviction, if any, innocent defendants suffer the severe costs of incarceration, and society incurs the cost of guilty offenders remaining free to perpetrate crimes against other victims.” Police officers should be trained to investigate alternate theories for a case at least until they are reasonably satisfied that they are without merit.