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Moving To Stop Wrong Convictions

By Sean Gardiner

Staff Writer

December 10, 2002

A rash of wrong-man cases in Brooklyn -- six murder convictions reversed in the last five years -- has been "a very, very eye-opening experience" for Brooklyn District Attorney Charles Hynes, he said recently.

Since five of the cases relied largely on single eyewitnesses, Hynes decided about a year ago to make a change: All one-witness felony cases must be approved by him.

Now, he said, he is considering the bigger step of changing traditional lineups to a "double-blind" system.

That means officers showing the lineup know nothing about the case, so they can't influence witnesses.

And witnesses are told the suspect may not be included, so they may be less likely to pick someone out if they aren't sure.

"We don't have enough empirical data to suggest this is the best way to do it," Hynes said in a recent interview, "but the double-blind procedure seems to make the most sense." He said he'll probably decide whether to adopt it early next year.

Such changes are among an array of measures -- from raising the pay of court-appointed lawyers to setting up public "innocence commissions" -- that defense attorneys say could help prevent wrongful convictions.

Law enforcement officials generally say they are wary of changing long-established procedures because there is no proof the changes would help.

The issue of preventing "wrong-man" cases gained new urgency last week when Manhattan District Attorney Robert Morgenthau recommended throwing out the convictions of five young men in the 1989 Central Park jogger case.

Some of the suggested measures -- including videotaping all police interrogations of suspects -- might have had an impact in the jogger case. In that case, four of the five suspects, then teenagers, gave videotaped admissions after interrogations that were not taped.

Their advocates later said they had been tricked or coerced before the tape started rolling, which detectives denied.

In a study of 70 "wrong-man" cases around the country that were reversed through DNA evidence, 15 percent involved false or forced confessions, said Barry Scheck, co-founder of the Innocence Project, a network of lawyers based at Benjamin Cardozo law school.

The NYPD is studying the issue, according to Deputy Chief Michael Collins, a police spokesman. He said the subject of videotaping interrogations in custodial situations has been brought to Police Commissioner Ray Kelly's attention in recent weeks and Kelly ordered his people to examine it.

Law enforcers generally fear videotaping will make suspects less inclined to talk, making convictions harder.

That was the concern in Minneapolis in 1994 when the Minnesota Supreme Court ordered recording of all police interrogations. But Hennepin County Attorney Amy Klobuchar, who oversees prosecutions in Minneapolis, said it hasn't worked out that way.

"Eight years of experience has shown that the videotaped interrogations has protected defendants' rights," she said, "and, most importantly to us, has aided police and prosecutors in gaining convictions."

Videotaping has eliminated most claims of police coercion or constitutional rights violations, she said.

Klobuchar said they've lost a few cases when the tape showed an officer erred on a procedure such as the reading of a suspect's rights, but she said officers can still use their old tricks, such as falsely saying they have information linking a suspect to the crime.

The difference, she said, is they now have to explain to the jury that such techniques are common and legal.

Another measure touted by defense attorneys is sequential lineups, in which the witness views each person alone, one after another, instead of viewing people in groups, like the traditional six person lineup the New York Police Department uses.

With a group lineup, witnesses "tend to identify the subject who most resembles the perpetrator," even if the perpetrator isn't present, said David Feige, of the Bronx Defenders, a non-profit group that handles indigent defendants. That's because people assume the criminal is in the group, he said.

But if you look at photos or possible suspects one by one, "you're comparing each person against your memory, not against each other," Feige said.

New Jersey adopted double-blind sequential lineups last year, the only state to do so, after a study found that witness misidentification accounted for about 70 percent of wrongful convictions later reversed on DNA evidence.

In New York, a bill mandating sequential lineups was shot down by state legislators last year but is expected to be reintroduced next month.

For now, many in the city's law enforcement community mirror Queens District Attorney Richard Brown's view that more research is needed before they can decide.

"I'll be the first one to admit to you that identification, or misidentification, is the fundamental basis for wrong-man convictions," he said, "but I have not concluded in my mind that sequential lineups are justified as opposed to procedures which have been used for years."

Last fall, Brooklyn Supreme Court Justice Robert Kreindler ordered one of the city's first sequential lineups in a pre-trial hearing in the murder case of teenager Rahim Thomas.

To get around that decision, the Brooklyn District Attorney's Office indicted Thomas without the lineup identification, then got the trial judge to okay using a standard police lineup.

Kreindler said he has read more about the lineup issue since his ruling and is now unsure whether sequential lineups are superior.

In the last year, Brooklyn prosecutors have observed Toronto's use of double-blind sequential lineups, Hynes said, and thought it appeared superior to the city's practice "not so much because it is sequential but because it is a double-blind procedure."

Hynes said he's open to any sensible idea when it comes to preventing or righting wrongful convictions.

"I have no trouble with any post-conviction remedy that tests the question of do we have an innocent person in jail," he said. "... If you've got one person sitting in jail that shouldn't be there, the system has done a terrible thing."

Hynes said he started a DNA unit about a year ago, but no cases have been overturned through it.

Over the past year, Hynes said, he has rejected 15 out of 70 single-eyewitness cases because the witness was not credible enough.

If the witness didn't know the accused, he said, he asks questions about lighting, how long the incident took, and the perpetrator's clothing, height, weight and distinctive features, trying to make sure the identification is solid.

When the witness knows the suspect it can be just as sticky, he said.

"You have to probe very carefully," Hynes said. "Is there any animus, is there a broken drug deal, did this guy steal his girlfriend?"

The District Attorneys in the other boroughs have made no recent changes to prevent or right wrong-man convictions, their representatives said.

In all the city District Attorneys' offices, a claim of wrongful conviction is investigated by a supervisor from the bureau that originally handled the case.

Brown, the Queens DA, said the cases are so rare, he doesn't see a problem with the current review system.

Defense attorneys say there should be more distance between those who handled the cases originally and those who reinvestigate them.

An unjust conviction should be treated like a judicial train wreck, Scheck said.

"Every time a plane falls from the sky or a train crashes, they bring in an organization like the National Safety Transportation Board and they ask the questions 'What went wrong? How can we fix it?'" said Scheck.

After a judicial catastrophe, he said, "Judges just cut orders, and people just walk out of jail. And that's supposed to be the end of it."

Each state should create an innocence commission, a panel with subpoena power and a staff, like the NTSB, to investigate every wrongful conviction, find out what went wrong and suggest ways to correct those problems, he said.

Canada and England already have such commissions.

"It's a very simple idea," Scheck said, "but a very powerful one."

In North Carolina, the state's chief justice last month convened an innocence commission to review criminal procedures and propose changes. The group, created after several wrong-man cases in the state, is not designed to investigate individual cases.

Gregory Lasak, a Queens prosecutor who has reinvestigated many wrong-man cases, said he thinks New York doesn't need the kind of innocence panel suggested by Scheck . With its members most likely appointed by the governor, he said, it might politicize questions of guilt and innocence.

Lasak, who is executive assistant district attorney in Queens, said district attorneys are best situated to right wrongful convictions. Besides, he said, they are elected, "making them accountable to the people."