Trial and Error: Houston, We've Got a Problem

In the latest example of a justice system gone awry, new evidence indicates that a Texas man who was convicted of arson and murder and executed in 2004 was likely innocent of the crime. In an odd juxtaposition of facts, Texas leads the nation in executions and exonerations.

While wrongful convictions are even more poignantly tragic when an innocent person has been executed, it is still a tragedy when innocent people spend years imprisoned for crimes they didn't commit. If you think that in blue, liberal New York mistakes like that don't happen, think again. The problem of wrongful convictions is not confined to Texas.

Recall the lynch-mob mentality that prevailed when five young men were accused of the rape of Trisha Meili, aka the Central Park Jogger. Donald Trump took out ads in all of the city's four daily papers, screaming "Bring Back the Death Penalty" and Mayor Koch (who was no longer the mayor) took up the same horn. Never mind that at no time in the state's history was the death penalty ever a legal punishment for rape, or that the five youths (all minorities, by the way) hadn't been tried yet. As it turned out, they were innocent, although each of them spent between 7-13 years behind bars anyway.

Jeffrey Deskovic was exonerated after 16 years of imprisonment when DNA evidence proved his innocence in 2006. Marty Tankleff spent 17 years behind bars before being exonerated in 2008 for the murder of his own parents. Darryl King is still fighting for exoneration after having served 25 years in prison. Lost evidence and a system stacked against him have prevented him from getting justice. These are not isolated cases. In New York state alone, there have been 53 wrongful convictions, 24 just since 1991.

Both the crime rate and the incarceration rate in Texas are almost double that of New York, and although Texas leads the way in exonerations, both states have unacceptable system errors. Conviction errors affect everyone; while innocents languish in prison, the guilty parties may be out committing other crimes. A system riddled with errors fosters distrust and actually makes it harder for police to operate.

The vast majority of people who work in the criminal justice system are competent, but their decisions can change people's lives forever. Add politics to human error, throw in a few incompetents and a few corrupt individuals, and it's easy to see why the system is error-prone.

At the top of the local justice system sits the district attorney; it is the DA who decides what crimes will be the focus under his/her tenure and how those crimes ought to be pursued. Robert Morgenthau never chose to pursue the death penalty when it was a viable option in the state. On the other hand, some would argue that he allowed political pressure to influence the Meili case.

The role of the DA is broad. How the city approaches crime and punishment has an enormous impact on policing, on the courts, and how cases are prosecuted, all of which can affect the outcome for defendants. Although the criminal justice system will never be completely error free, there are changes that could be made that would go a long way toward reducing the error rate.

As Morgenthau steps down, one of the three primary contestants stands out. Richard Aborn has a track record of working for reform. As a member of the state Bar Association Task Force on Wrongful Convictions, a group that spent over a year developing guidelines for specific reforms, he is the only candidate who has already developed a plan for reform.

Aborn has pledged to make specific changes within the DA's office and has committed to working with the state on legislation that would go a long way toward reducing errors. State representatives who are actively working on these issues have endorsed Aborn. As an example, videotaping all interrogations would help limit false confessions. The practice would make it harder for police to have a free hand in their techniques and would enable all parties to review the tapes for evaluation. To make videotaping interrogations mandatory, as some states have done, requires a new law, but the DA can make it a standard practice within his/her jurisdiction, which Aborn says he will do.

Interrogation is more likely to be aggressive when no cameras are rolling, but perhaps more problematic is the fact that such techniques often produce false testimony, particularly with juveniles. The confessions of the defendants in the Central Park Jogger case were taped, but their interrogations were not. After they were exonerated, the DA's office issued a report acknowledging that the statements of the youths were contradictory, uncorroborated by one another, and unsupported by the facts of the case. Ironically, the confessions (the only real evidence the prosecution had) that had clinched their guilt were the same confessions, 13 years later, that helped determine their exoneration. And if Marty Tankleff's interrogation had been videotaped, he might have escaped wrongful conviction.

Another troublesome piece of evidence that often contributes to error rate is eyewitness misidentification. Witnesses are typically brought in to identify and sometimes testify against a suspect, but in over 70 percent of cases in which the defendant was exonerated, misidentification was the cause of wrongful conviction. Aborn plans to implement more stringent procedures and standards for witness identification, which would reduce errors.

Because DNA testing is more accurate and more available now, it is responsible for many exonerations. Ultimately, it cleared Jeffrey Deskovic of the murder and rape charges for which he had been convicted. Deskovic is currently active as an advocate for social justice, and he has endorsed Aborn. (see sidebar)

But the state has to agree to reopen a case, a significant hurdle. Aborn seems to not only understand the problems but is willing to face them head on; he has said he will investigate prosecutorial misconduct and give prosecutors the tools needed to minimize errors.

While Texas leads the nation in crime and punishment, it also has a significant number of exonerations, which is making some people in the state rethink their practices. The state has recently passed legislation that compensates exonerees and provides them with social services and support. New York needs to do the same and this is another area in which Aborn has pledged support.

Texas is the lone star state, but it is not alone in making serious judicial errors. A violent crime in New York could bring out the lynch mobs again. Should that happen, it would be comforting to know there's a system in place that discourages errors and a DA who is willing to defend the innocent until proven guilty.

From Exoneration to Activism: Jeffrey Deskovic Speaks Out
Jeffrey Deskovic spent 16 years in prison based on faulty evidence against him. With a new district attorney in place, The Innocence Project picked up his case in 2005 and was able to obtain DNA from the original crime scene; the prior DA had refused requests to run the tests. The evidence not only proved Deskovic's innocence, it also located the real perpetrator. Lynne Glasner spoke to Deskovic about his activism and why he's chosen to support Aborn for Manhattan DA.

LG: When did you first meet Richard Aborn?
JD: We met at the National Freedom March for the Wrongfully Convicted about six weeks ago. This was a multistate, grass roots meeting and I was the keynote speaker. Richard Aborn also spoke to the group and I was impressed that he would come to such a meeting and that he was so knowledgeable about the issue. We talked after the meeting and decided to meet again and work together, and we've been in touch since then. Aborn has the background because he'd worked on the New York State Bar Association Committee on Wrongful Conviction and he worked on their Report [released in April 2009]. He was very receptive to my concerns and in fact wanted to know what I thought and wanted to hear about my ideas as well. I've testified before about wrongful conviction issues. Aborn's progressive advocacy extends to other criminal justice issues beyond wrongful convictions, and that to me speaks to his authenticity on wrongful convictions as well as his being smart on crime.

LG: Why do you think he is the best candidate?
JD: After meeting with Aborn, he asked if I would endorse him, but I wouldn't commit to doing that before I researched the other candidates. I concluded that Aborn had the strongest background for using the DA's office to makes changes to the system and to bring about legislative changes that will help reduce wrongful convictions. Although Crocker Snyder has referenced my case as a reason for her change of heart about the death penalty it comes at a politically expedient time, and I don't trust that. In addition, her portrayal as an anti-wrongful conviction advocate is misleading because she has no body of work to support that other than the study she did on my case after I was exonerated. That study was politically correct in that it didn't mention Jeanine Pirro by name, instead saying "the previous District Attorney," and it started off by saying that it would not engage in finger pointing. In other words, it was pre-determined that nobody did anything wrong. As my lawsuit indicates, there were many people engaged in wrong doing.

Additionally, in a recent debate, she criticized Vance for providing representation to people charged with crimes when he was in Seattle, saying that "rather than staying in NY and helping to protect citizens, he moved to Seattle to defend criminals." That statement speaks loudly to her mentality. A true anti-wrongful conviction advocate would never make a statement like that because it is obvious that to prevent wrongful convictions defendants need quality representation. In order to simply ensure fairness in sentences and case outcomes, quality representation is essential. Someone who questions basic premises such as that should not be put in a position of having direct control over prosecutions. It is likely that under such a person's administration the office will simply be trying to win convictions rather than ensure justice, and quite possibly at times engage in prosecutorial misconduct to do so.

Although Vance agrees with some of Aborn's positions on wrongful convictions, he lacks the specificity as to how he will accomplish it. Aborn has concrete plans and will push, so he's much better equipped to be successful. Also, his other positions are consistent with those related to wrongful conviction. He wants to reform the Rockefeller Drug Laws and review alternatives to incarceration for drug crimes as well as for nonviolent offenses. He also is in favor of stronger prisoner re-entry programs to help former prisoners make a successful crime-free re-integration into society. These are real reforms that would make a difference. Aborn is further distinguished by the fact that he has actually worked on the issue. It's not just lip service with him. He has worked to expand the DNA database, as one example. At the same time, no one should confuse those things with being soft on crime; Aborn will enforce the law and send violent offenders to prison. His policies are what I call "smart on crime."

LG: What kind of support are you lending Aborn -- how are you campaigning for him?
JD: I've done a press conference with him, appeared at fundraisers and similar events, wrote an article endorsing him in The Westchester Guardian where I am a columnist, and handed out literature at subway stops. I think it's important for people to understand this issue and the importance of the DA's office. I also have a listserv culled from my website and I've sent out an email blast asking people to vote for him, volunteer to help if they can, and encourage their friends and family to do so as well. All of these things have an impact, I hope. This election is very important and in my opinion is a defining moment in terms of the future of criminal justice -- not just in NYC but in this state and across the country. It could very well start a chain reaction in which the system as a whole moves toward a revamped commitment to anti-wrongful convictions, justice, and being smart on crime.

LG: What specific changes in law/procedures would help prevent wrongful convictions so others don't have to go through what you did?
JD: There are some things at even pretrial that could make a big difference. There's data that show that some of the factors that contribute to wrongful convictions can be addressed early on during pretrial evaluation of a case by the prosecutors: Methods for identifying suspects, use of DNA testing, taping interrogations, and screening confessions to assess whether a confession is false - all of these help prevent accusing the wrong person. Additionally, the District Attorney can set the tone for the entire office and establish that prosecutorial misconduct is unacceptable. This will further ensure that we don't have incorrect verdicts.

LG: How can Aborn change things? He's only one person -- can any one person make that much of a difference?
JD: From the DA's office, he can institute some changes. He can allow DNA tests of defendants as part of standard procedure for cases where DNA is available, for example. He has called for a review of old cases where according to either the existing record, new evidence, or other grounds indicate that there's a question regarding guilt and innocence and/or another basis to call into question whether a conviction is accurate. He will be proactive even in cases where a defendant's appeals are exhausted or no longer has an attorney. Also, there are ways to spot false identification of a suspect and Aborn has pledged to institute training of prosecutors in the office as one way to help reduce this.

LG: The DA can't make the laws. Don't some of these things require legislation?
JD: Special legislation is needed to make statewide changes and I would like some changes to the law, for example preserving evidence needs to be mandatory as well as DNA testing, as does videotaping interrogations and improved identification procedures, to ensure accuracy throughout the state rather than it being discretionary. To revamp the public defender system will need legislation. But there's a moral weight that goes with the DA's office and that takes someone who is willing to investigate prosecutorial misconduct, where warranted. The DA can encourage the police to use video in their interrogations. That in itself would go a long way. Leadership on these issues is important and I'm confident that Aborn will be a strong leader.

LG: Who's the DA in Westchester, where you live?
JD: Janet DiFiore.

LG: Are you also supporting her and working for her?
JD: No, I'm not endorsing her. Although she did the right thing for me -- not opposing further DNA testing, which Jeanine Pirro her predecessor had opposed, and agreeing to vacate my conviction -- she hasn't been proactive on this issue. My case was an aberration for her. There have been other cases that were overturned where prosecutorial misconduct was involved and in every case, her office fought against the appeals. Additionally, she has prosecuted, thank God unsuccessfully, police brutality victims, rather than the rogue police officers. So even though she did help me in my case, I can't overlook the other things she's done. Also, she was a Republican and changed parties a year and a half ago, which I thought was suspect, especially since she cited the war in Iraq as her rationale. That seemed to me to be just a way to get votes in a county that was leaning Democrat. I'm supporting Tony Castro, who is challenging her.

LG: How have you personally been working to make changes in the law since your release?
JD: I've been advocating for change for three years, lobbying state legislators, testifying at legislative hearings, writing about deficiencies in the criminal justice system that lead to wrongful convictions and the reforms needed to close up those cracks. I've also written articles about my personal experiences and have given presentations on wrongful convictions at colleges and high schools across the country. I have put some of my own limited funds into my website as an additional means of putting information out there. In addition, I have given many print, radio, and television interviews, willingly trading privacy in exchange for greater awareness about these issues. I think if more people were aware of the true state of the criminal justice system, they would insist that legislators pass reforms to make it more accurate. I've gone from being an advocate to being an activist where it benefits the cause of wrongful convictions, and I will periodically get involved in elections on behalf of bona fide anti-wrongful conviction candidates who possess the knowledge and know-how to get things done. I will continue to work with Aborn while also working to get bills passed. Aborn has committed to testify on behalf of anti-wrongful conviction legislation, so I hope that having someone who holds as prestigious a position as the Manhattan District Attorney's office will make a difference in finally getting some changes passed and signed into law.

It is critical to get state legislators to enact new laws to help protect innocents from going to prison wrongfully. Although it's good when law enforcement and prosecutors voluntarily adhere to best practices, we need it to be mandatory because in some jurisdictions the District Attorney may not decide to do so voluntarily, and the same could be true of police chiefs and law enforcement agencies. That's the next step.

LG: Which legislators are you working with?
JD: I've worked with Eric Schneidermann and Eric Adams in the state senate, and Ed Lentol in the state legislature. I go to hearings about the issues and advocate for changes. They have been very supportive and are trying to get new legislation to the floor.

LG: What gives you the most hope that the system will get better?
JD: Several things: First, with every wrongful conviction that is exposed, the anti-wrongful conviction movement gains momentum in the fight to get reforms passed. Second, the same is true every time an anti-wrongful conviction story is published, a radio interview airs, or a television story is broadcast. The more the public is aware, the greater the clamor is for change. Third, having a candidate such as Richard Aborn run on an anti-wrongful conviction platform will hopefully inspire others to do the same, and if he wins, we will have an ally in a powerful position. That will only help. Soon changes will be inevitable. Fourth, as I gain supporters, I encourage them to get involved by calling, emailing, and visiting their elected representatives to pass reforms. Should the legislators fail to do so, I will encourage people to vote them out of office. Without a doubt, public education is the first step towards legislative changes.