Brooklyn Bar Association wrongful conviction CLE continues to look for lessons
The first wrongful conviction unit was created in Dallas in 2007 and Brooklyn wouldn’t get it’s first until after the election of Ken Thompson as Kings County District Attorney in 2014. Since then, there have been 25 wrongful convictions overturned and the borough’s wrongful conviction unit has become one of the national models around the country.
Hon. Barry Kamins, former administrative judge for the Brooklyn Supreme Court, Criminal Term, explained that, despite the fact that such units are now seen in 37 states, much more can still be done and attorneys can help the local community by being aware of the lessons that have come out of the overturned convictions.
“Over the years, many task forces have investigated the causes of wrongful convictions and made recommendations,” Justice Kamins said. “The New York State Bar Association has had two task forces, one which I chaired back in 2009, which issued a report examining the causes of 53 wrongful conviction cases and identified six key causes — identification procedures, forensic issues, prosecutorial misconduct, false confessions, ineffective assistance of counsel and the use of jailhouse informants.”
Justice Kamins helped the Brooklyn Bar Association put together a panel of experts for a continuing legal education seminar entitled, “Wrongful Convictions: Causes and Preventions,” with Hon. Mark Dwyer, assistant DA Mark Hale, and attorneys Kris Hamann and Joel Rudin.
The CLE seminar was meant to coincide with a report that will be issued this month by the New York State Bar Association’s second Wrongful Convictions Taskforce.
“The Brooklyn Bar Association thought it would inform this discussion to convene a panel of experts, and they really are experts, who can weigh in on some of these topics and give their perspectives on the causes and prevention of wrongful convictions,” Kamins said.
A change in mindset
Hale, chief of the Brooklyn district attorney’s Conviction Integrity Unit under both Ken Thompson and Eric Gonzalez, explained that one of the biggest things he learned since he started looking at wrongful convictions is that, to keep them from happening, an office can’t be focused on winning cases. Instead, Hale said, the focus has to be on doing actual justice even if that means not pursuing a case at all.
“Your goal is not to win, your goal is to do justice,” Hale said. “That is sometimes difficult to get across. One’s performance as a prosecutor should not just be in wins and losses, but whether you’ve operated honorably, ethically, practically and did so with restraint and came up with a just result, no matter what that result is.”
Hale admitted that changing even his own mindset wasn’t easy after having tried more than 200 jury trials to verdict. He said that the key is to acknowledge that, with so much human involvement in the process, mistakes are inevitable.
“Human beings make mistakes, whether they are witnesses, attorneys, judges, and these are mistakes that fall outside of the traditional appellate sort of work,” Hale said. “Self-examination of the work you’ve done is not a pleasant experience. It can be painful. There are a lot of people who in their positions don’t want to examine this or acknowledge it.”
Rudin, a defense attorney for over 40 years, explained that, because of the way many police officers and prosecutors were trained, a lot of the issues are systemic and hard to overcome.
“This is a widespread problem,” Rudin said. “Of the 25 convictions the Brooklyn DA’s Office has overturned…nine have been Louis Scarcella cases. But there are so many other detectives in the New York City Police Department that were as bad as Scarcella. We have just scratched the surface of wrongful conviction cases.”
Rudin was critical of one change Eric Gonzalez has made to the conviction review unit — that defense attorneys can no longer file a motion to vacate a judgment while also turning the case over the DA’s Conviction Review Unit like they did under Thompson.
Now, Rudin says, attorneys are forced to decide between the two options which risks giving up the future possibility of a federal habeas corpus review which has a very strict statute of limitations.
“Mr. Gonzalez at some point last year instituted a policy that it’s one or the other,” Rudin said. “Either you file a 4040 motion [motion to vacate a judgment] and litigate in court against his appeals unit, which is staffed by the same people who have been there for 20 years and will throw every procedural roadblock under the sun at you, or you can go with the Conviction Review Unit. But [if you go with the Conviction Review Unit], you can’t file a 4040 motion and you have to worry about giving up the possibility in the future of a federal habeas corpus review.”
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