Wrongful Convictions Then and Now: Lessons to Be Learned

Article excerpt

Thank you very much, Chief Judge Lippman. I'm going to stand because my back would be to most of the room if I were to do otherwise. Thank you, Professor Bonventre, wherever you are, and to Jill Kasow and Matt Laroche and everybody associated with the Albany Law Review, thank for making this forum happen. It's a privilege to be associated with it.

My remarks are going to be very loosely based on a forthcoming article that will be published in the law review that I co-authored with Catherine Bonventre, who is a graduate of this school and presently a doctoral student in my school, the School of Criminal Justice.

In that article, we review the recently completed New York State Bar Association Task Force Report on Wrongful Convictions. And Judge Bamberger's here, as is Professor Laurie Shanks of your school, who were members of that Task Force.

It's a very comprehensive, 187-page-long report. I'm not going to try to go point-by-point with respect to what the Task Force concluded, but let me just share with you some conclusions about the principal factors that contribute to wrongful convictions.

And I quote:

* "Perhaps the major source of these tragic errors is [mis]identification of the accused" by the crime victim or a witness.

* "Cases in which the perjury of prosecuting or other witnesses was the main factor in the conviction are not inconsiderable...."

* "In several of these cases, ... undue influence produced 'confessions'--[false confessions]--from the accused."

* "The unreliability of so called 'expert' evidence is disclosed" in several cases.

* "In the majority of these cases the accused were poor persons, and in many of the cases their defense was for that reason inadequate.... The inability to engage competent attorneys makes it often impossible for the accused to establish his innocence."

Now these conclusions are not from the 2009 New York State Bar Association Task Force Report; they are from a 1932 study, Convicting the Innocent, that was completed by Professor Edwin Borchard of Yale Law School, who studied sixty-five cases of known wrongful convictions.

Nineteen thirty-two was also a year that brought to the United States Supreme Court the landmark case of Powell v. Alabama, involving the so-called Scottsboro Boys, one of the most infamous sets of wrongful convictions in this country's history. They were not among the sixty-five cases that Professor Borchard studied, but they well could have been because their cases evidenced virtually all of the elements that he identified. And it is not unusual, it is in fact typical, for wrongful conviction cases to have more than one contributing factor.

The Scottsboro Boys case involved nine young African Americans who were convicted of and sentenced to death for raping two white women while on a train going through Northern Alabama.

There were false confessions in those cases. A number of the defendants falsely accused their colleagues of having committed the rapes.

Eye witnesses testified they had seen what was going on up at that train from vantage points that would have made it impossible for them to observe what they said they saw.

Witnesses lied. One of the alleged victims, Ruby Bates, recanted her testimony after the first trial. The other alleged victim, Victoria Price, never did.

Medical experts testified that injuries suffered by the women were consistent with the gang rape, as semen was found in them.

There was prosecutorial misconduct; one of the district attorneys prosecuting the case railed to the jury: "Show them that Alabama justice cannot be bought and sold with Jew money from New York." And that was in reference to Samuel Leibowitz, a New York City attorney who represented several of the Scottsboro Boys on retrial. Leibowitz objected and moved for a mistrial, but that was denied.

The defendants, of course, were poor and were provided ineffective assistance of counsel in the first trials, and that is what resulted in Powell v. …