When Kenneth Thompson ’92 took office as Brooklyn’s district attorney in January 2014, he inherited what he describes as a “staggering number” of wrongful conviction claims. His quickly established conviction review unit has looked at only a third of the claims so far, but they have already overturned ten wrongful convictions. At the annual Law Alumni Association Fall Lecture, Thompson joined a panel of experts for an in-depth discussion of how the criminal justice system can address wrongful convictions. Moderated by Segal Family Professor of Regulatory Law and Policy Rachel Barkow, the panel also featured University of Texas Law Professor Jennifer Laurin, Innocence Project co-founders Peter Neufeld ’75 and Barry Scheck, and Harvard Law Professor Ronald Sullivan Jr.
To lead Brooklyn’s new conviction review unit, Thompson tapped Sullivan, a former staff attorney for the District of Columbia Public Defender Service. Sullivan spoke to the importance of creating a non-adversarial atmosphere between the conviction review unit and the rest of the district attorney’s office. “The people in the unit have to believe that the job of the prosecutor is about justice,” Sullivan said. “Sometimes that means putting people in jail. Sometimes that means getting people out of jail. But it’s all about justice.”
Scheck commended Thompson for bringing in a defense lawyer to help structure the conviction review unit. But Scheck also argued that in addition to overturning wrongful convictions, it is also key that prosecutors do an extensive review of the failures in the system that have led to the incarceration of the innocent. “When bad things happen in a complex system, it’s rarely a single slip-up,” Scheck said. “Sentinel event reviews look at total failures, or near misses, and try to see what went wrong and how to fix it.”
Wrongful convictions are often the result of a systemic pattern of errors, said Laurin, whose research focuses on the regulation of criminal justice institutions. These errors include erroneous witness identification, false confessions, and poor conduct on the part of prosecutors, among others.
Thompson had noted that 71 of the wrongful conviction claims being investigated by his office involve NYPD Detective Louis Scarcella, whose problematic investigative tactics came to light through an extensive New York Times investigation earlier in the year. But Neufeld argued that the systemic problems in the criminal justice system go far beyond one detective. “There’s no way in the world that one cop is responsible for all the wrongful convictions—or two, or three,” Neufeld said. He advocated for the legal community to take on the kind of root-cause analyses that have become more common in the medical community. Crime labs, he said, are at the forefront of the implementation of these kinds of analyses.
Neufeld also brought up what he referred to as the “3,000-pound elephant sitting in the corner”: the role of race in the prosecution of wrongful convictions. “It’s not a coincidence that 70 percent of our exoneration—the DNA exonerations—involve people of color,” he said. "Unlike other risk factors, we don't have a recommendation for a remedy, but we as a nation have to come up with one."
Thompson indicated that he hopes to work with the Innocence Project, the NYPD, and others in taking further steps to not only overturn wrongful convictions, but also to prevent further wrongful convictions from occurring. But his first act, he said, has to be to address the wrongs that have already been committed. “We have to deal with getting men out of prison who do not belong in prison right now,” he said. “We can deal with these other matters, but we have to prioritize. And I think that someone who is in prison wrongfully should be the priority.”
The conference was co-sponsored by the New York University Review of Law & Social Change.
Watch the full video of the event (1 h, 49 min):
Posted November 14, 2014