For 2012, Courts Aim at Curtailing Societal Ills

February 16, 2012 Brooklyn Eagle Staff
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Bar and Bench Focus on Reducing Crime, Recidivism, Wrongful Convictions and Foreclosures

By Michael Virtanen

Associated Press

and Ryan Thompson

Brooklyn Daily Eagle

NEW YORK — New York’s chief judge urged lawmakers this week to require DNA testing for every felony and criminal misdemeanor conviction and to give defendants who plead guilty to serious felonies greater access to genetic evidence from crime scenes.

Currently, the state limits DNA testing to certain felony and misdemeanor convictions and a person who pleads guilty isn’t entitled to DNA testing if the test results are not part of the prosecution evidence.

However, the city and state bar presidents want lawmakers and the public to know that expanding the use of DNA is just one step in reducing wrongful convictions.

“We … applaud Chief Judge [Jonathan] Lippman’s inclusion of enhanced access to DNA for defendants in [Tuesday’s] State of the Judiciary message. The Senate and Assembly should seize this moment to come to agreement on a DNA bill which effectively serves the needs of both prosecutors and defendants,” stated New York City Bar Association President Samuel Seymour.

Seymour made special note of the provisions set forth in Brooklyn Assemblyman Joe Lentol’s bill, A.5886, which provisions are designed to clarify and expand a defendant’s ability to ask a judge to order DNA comparisons from existing evidence and existing databases, both pre- and post-conviction.

“While this would be an important step toward decreasing the incidence of wrongful convictions in New York, we note that expanded access to DNA is only one of a number of ways to decrease the incidence of wrongful convictions in New York,” Semour said. “We also support increasing the use of recorded interrogations, codifying ‘actual innocence’ claims, clarifying ineffective assistance of counsel claims, and ensuring complete disclosure of exculpatory material.Chief Administrative Judge A. Gail Prudenti says that the courts are proceeding under “a staggering workload,” with about 4 million cases now filed annually, while keeping the budget down by reducing personnel and limiting hours.

Similarly, New York State Bar Association President Vincent Doyle said that a State Bar report found that wrongful convictions are caused by a number of other factors as well.

“Therefore, we propose that the Legislature consider such measures as requiring the videotape recording of police interrogations; addressing mistaken-identity testimony with changes in how police lineups are conducted; strengthening a prosecutor’s obligation to turn over evidence favorable to the defense; and allowing a defendant who had pleaded guilty to a crime he or she did not commit to petition a judge to obtain a DNA test to establish his or her innocence.”

In his annual address on the state of the judiciary Tuesday, Chief Judge Lippman said experience has shown wrongful convictions even in cases where a defendant pleaded guilty. He outlined and endorsed legislative proposals meant to address the potential for wrongful convictions, recommendations that came from a separate state task force including defense attorneys, judges, prosecutors, police, academics and others.

“It’s a stain on the justice system,” Lippman said later of any conviction of someone who didn’t commit the crime. “Our recommendations have no agenda politically.”

Gov. Andrew Cuomo is pushing to expand the state DNA databank beyond samples from those convicted of penal felonies and 36 misdemeanors. The state Senate has passed similar legislation. An Assembly bill would expand DNA testing and also add measures like those Lippman proposed in order to give defense lawyers more tools to prove their clients’ innocence.

On Jan. 31, after the Senate passed the bill, Doyle said he was pleased but that the DNA Bill alone will not prevent wrongful convictions.

“[T]he state Senate passed a bill that mirrors Governor Cuomo’s proposal to expand the collection of DNA. We agree with the governor that expanding the DNA database would help exonerate the innocent and convict the guilty.”

Lippman endorsed related measures to mandate videotaping of police interrogations when a suspect is in custody and being questioned about a specific felony. Another would allow double-blind photo identifications into trial evidence, where neither a witness nor administrator knows who the suspect is or even if the suspect’s photo is in the array. New York is among the few states that prohibit admitting witnesses’ identification of suspect photographs into evidence.

“We leave it to the political players, the policy-making branch of government, to figure this out,” Lippman said.

His proposals will be forwarded to the Legislature in the next week or two and should prompt debate, he said.

Assemblyman Lentol, a Brooklyn Democrat, said afterward that Lippman’s proposals sounded good, but he questioned whether the Senate would go along with them. Republican Senate Majority Leader Dean Skelos said they will review the proposals.

Assembly Speaker Sheldon Silver told reporters at a prior meeting that there is a consensus in his Democratic conference on expanding the database and seeing it used for clearing the wrongly accused. “Because every false arrest, especially in a sex crime case, somebody is running around the streets at large as a result of not being able to access the databank and find the appropriate criminal,” he said.

Teen Criminals & Foreclosure

The chief judge also renewed his call to have 16- and 17-year-olds accused of nonviolent crimes kept out of adult criminal court, saying the current approach was established as a temporary measure 50 years ago. New York is one of only two states that prosecute this age group as adults, which “flies in the face of what science tells us about adolescent development,” the judge said.

Lippman proposed establishing a new Youth Court, where the teens could get diversion to programs, similar to Family Court dispositions. The teens would be designated delinquents instead of criminals, but would still have the rights of adult court to bail and a speedy trial.

“This approach puts first and foremost an emphasis on rehabilitation for adolescents, rather than incarceration,” Lippman said. “The present punitive system turns children into hardened criminals and must be changed.”

The change will require legislation, though administratively the courts recently established a pilot program with adolescent diversion courts in New York City, Buffalo, Syracuse, and Westchester and Nassau counties.

Facing an ongoing home foreclosure crisis, Lippman said the New York City Bar Association is fostering a partnership between mortgage banks and legal services organizations representing homeowners to work out loan modifications to keep people in their homes.

Courts in the city are establishing regular settlement conferences dedicated to a specific bank’s cases, starting in a few months. So far, Bank of America, Chase, Wells Fargo and Citibank have agreed to participate, officials said.

Court Strain & Murder Rate

The State of the Judiciary speech came after weeks of testimony by prominent lawyers and jurists before a legislative committee in Albany.

Chief Administrative Judge A. Gail Prudenti, the former presiding justice of the Appelllate Division Second Department in Brooklyn Heights, told lawmakers that the courts are proceeding under “a staggering workload,” with about 4 million cases now filed annually, while keeping the budget down by reducing personnel and limiting hours.

The funding proposal for the coming fiscal year, if approved, should allow reinstating some evening small claims court sessions and trying to keep most courts open a half-hour later until 5 p.m., she said.

Prudenti noted there are 75,000 home foreclosure cases pending, while special conferences have helped stop about 10,000 foreclosures.

It was also revealed at the hearing in January that the number of homicides in New York dropped last year to the lowest level in decades to roughly 750, or about one-third of the killings in 1990, the deadliest year on record.

Sean Byrne, the state’s acting criminal justice commissioner, told the legislative committee that preliminary data show all crime, including violent crime, declined in 2011. That included a drop of more than 10 percent in homicides compared to 2010.

“Homicides will be at the lowest number reported since statewide crime reporting began 37 years ago,” Byrne said. They peaked at 2,606 in 1990.

Byrne noted several factors, including better crime analysis and follow-up. He told lawmakers that one of the best methods of reducing recidivism is helping former offenders get jobs, and there is some proposed program funding for that next year.

Authorities also say the expanded database of offender DNA samples has helped cut crime.

“No initiative has more potential to reduce violent crime than the proposal to expand the DNA databank,” Byrne said, noting the database has had more than 10,000 hits since it began in 1996. “DNA also breathes new life into cases whose trail of evidence went cold decades ago. … Just as important, countless suspects are routinely excluded from suspicion and 27 individuals have been exonerated in New York state through DNA evidence.”

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