State Bar unveils new legislation to address rising number of wrongful convictions

Wrongfully convicted Steven Barnes in attendance for legislative unveiling

ALBANY, N.Y. - What recourse does a wrongfully convicted individual have when new DNA evidence is uncovered that points to his innocence?

What happens when mistakes by eyewitnesses, prosecutors, defense attorneys or judges come to light suggesting that the wrong person is behind bars?

Does our justice system adequately compensate an innocent person who spent 18 years in prison for a crime she did not commit?

These issues and other leading causes of wrongful convictions in New York State are addressed in a new package of legislative proposals unveiled Wednesday by the New York State Bar Association.

At a press conference in Albany, Immediate Past State Bar President Michael E. Getnick (Getnick Livingston Atkinson & Priore, LLP of Utica and of counsel to Getnick & Getnick of New York City) and Past President Bernice K. Leber (Arent Fox LLP) were joined by leaders of the State Legislature, including State Senator Thomas K. Duane, Assemblyman Joseph R. Lentol, and other members of the Senate and Assembly, to present six new bills that will help protect New Yorkers from the devastating effects of wrongful convictions.

Also in attendance was Steve Barnes of Oneida County, who was exonerated of rape and murder after serving 19 years in prison.

The new bills are based on the recommendations of the State Bar's Task Force on Wrongful Convictions created in 2008 by then-president Leber. The task force examined 53 cases where a defendant was wrongfully convicted of a crime but later exonerated. In a report issued last year, it concluded that wrongful convictions resulted from multiple factors including identification procedures, government practices, mishandling of forensic evidence, defense practices, the use of false confessions and the improper use of jailhouse informants. The report is available on the State Bar's Web site at

"The impact of a wrongful conviction goes beyond the devastation and harm wrought upon the falsely accused. It destroys families, costs taxpayers exorbitant amounts in legal fees and incarceration expenses, and erodes public confidence in the legal system," Getnick said. "With hopes of reducing the number of wrongful convictions across the State, the Association's Task Force on Wrongful Convictions has drafted smart new measures that address these miscarriages of justice. We commend the Senate and Assembly for moving these critical bills forward."

Leber added, "Our Task Force on Wrongful Convictions brought together some of the State's top legal minds including prosecutors, defense attorneys, distinguished jurists, good government groups and members of academia to study wrongful convictions and develop recommendations to prevent further injustice. It is extremely gratifying to have our efforts recognized by members of the Senate and the Assembly. We look forward to the day when the Governor signs these important measures into law. "

If signed into the law, these new bills would put in place a series of safeguards that will help prevent future wrongful convictions:

(A11052), (S7842): Procedures to reduce erroneous eyewitness identifications

This bill, sponsored by Assemblyman Daniel J. O'Donnell and Senator Antoine M. Thompson, would amend the Criminal Procedure Law to provide procedures to reduce the occurrence of erroneous eyewitness identifications.

The task force found that erroneous identifications were responsible for more wrongful convictions than any other single factor. Among its key provisions, this bill would require "double blind" line-ups and photo arrays in which the person administering the process does not know the identity of the suspect; mandate only one suspect per lineup; require that identification procedures be documented; and allow sanctions for failure to comply with mandated procedures.

(A11123), (S7867): Vacating a guilty plea when new exculpatory DNA evidence is discovered

This bill, sponsored by Assemblyman Charles D. Lavine and Senator Eric T. Schneiderman, would amend the Criminal Procedure Law to provide a mechanism by which an individual who has pleaded guilty to a crime could move to vacate the conviction when new DNA evidence is discovered, post-conviction.

Numerous studies have shown that people, in fact, plead guilty even though they are innocent. Faced with a choice between a guilty plea – and a more lenient sentence – or the prospect of a much higher sentence following a guilty verdict after trial, they take what seems like the lesser of two evils.

While New York's current law does not specifically address the availability of post-conviction DNA testing for those who have pled guilty, New York appellate courts have construed the statute as foreclosing DNA testing after a guilty plea. This bill would overturn these decisions and permit courts to order testing when the possibility of a DNA test is discovered or in cases where new technology for DNA testing is available.

(A11089), (S7873): Issues surrounding testimony from informants

This bill, sponsored by Assemblywoman Michele R. Titus and Senator Tom Duane, would amend the Criminal Procedure Law to require that an informant's testimony be corroborated before it can be admitted at trial. It also mandates that juries receive instructions regarding reliability, and that the prosecutor must disclose any benefit received by the informant.

A large percentage of cases in which wrongful convictions have been documented involve testimony from informants – many who are facing criminal prosecution, or who have received incentives for their testimony. Studies have found that nearly 50 percent of wrongful murder convictions involve perjury by someone such as a "jailhouse snitch" or a witness who stood to gain from giving false testimony.

(A5213-A), (S7877): Requiring electronic recordings of custodial interrogations

This bill, sponsored by Assemblyman Joseph R. Lentol and Senator Bill Perkins, would amend the Criminal Procedure Law to require the creation of an electronic record of an entire custodial interrogation in order to eliminate disputes in court as to what actually occurred during the interrogation, thereby improving prosecution of the guilty while affording protection to the innocent. Among other provisions, the bill also requires the prosecutor to retain the electronic recordings beyond trial and appeals until no post-judgment proceedings are pending.

District Attorney Offices in Westchester, Broome, Greene and Schenectady counties are currently participating in a pilot project sponsored by the State Bar. The NYPD has also begun this practice in New York City.

(S7893): Issues surrounding exculpatory information

This bill, sponsored by Senator Ruth Hassell-Thompson, would amend the Criminal Procedure Law to provide definitions of exculpatory information (also known as Brady material), clarify what information must be delivered, establish the timeframe within which it must be delivered, and provide for relief where there has been a violation.

The cases studied by the Task Force show that Brady violations are a continuing problem, denying the defendant a fair opportunity to organize and present his case. This bill is intended to better assure compliance by the creation of new rules applicable to the delivery of Brady material.

(A11150), (S7868): Compensating those who have been wrongfully convicted

This bill, sponsored by Assemblyman Rory I. Lancman and Senator Eric T. Schneiderman, would amend the Court of Claims Act, in relation to claims for having been wrongfully convicted. The purpose of this bill is to try to assure that those who have suffered a wrongful conviction receive fair monetary compensation from the State without opening the State to liability for every overturned conviction.

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