By Danielle Arbogast
On November 12, 2014, more than three hundred and forty guests gathered at the NYU Law Alumni Association’s Annual Fall Conference, cohosted by the NYU Review of Law & Social Change, to consider a pressing problem in the United States legal system: wrongful convictions. Law Alumni Association President Carren Shulman ’91, Dean Trevor Morrison, and Review of Law & Social Change Symposium Editor, Olivia Scheck ’15, introduced the distinguished panel of speakers: moderator Rachel E. Barkow, Jennifer E. Laurin, Ken Thompson ’92, Ronald S. Sullivan Jr., Barry C. Scheck, and Peter J. Neufeld ’75.
The evening began with an overview of wrongful convictions in the American legal system. Professor Jennifer Laurin, whose article on Brady violations is forthcoming in Issue 38.3 of Social Change, described the patterned, systematic nature of the mistakes that lead to wrongful convictions. These mistakes include erroneous identifications, false confessions, unreliable forensic evidence, poor defense performance, and prosecutorial misconduct, among others.
Another key focus of Laurin’s was the interaction of systemic factors to introduce error. As Laurin noted, “You also see that the witnesses were wrong, in part because… there were incidents of suggestion, or you see a false confession, and in an overwhelming number of these cases, the confession stood, because the confessor spoke to inside information.” This inside information, or information that had not been made public, may have actually been suggested during the process of an interrogation—just one example of how error can be introduced into the process of investigating these cases. Laurin explained that not all exonerations are the products of intentional misconduct—errors found in cases resulting in exonerations are consistent with social science findings that regular investigative practices and adjudicative practices can actually introduce error.
Laurin noted the great need for further study of these systemic mistakes. She pointed out that the legal system’s procedures for error correction are disturbingly ineffective. For example, surprisingly few of the individuals had even litigated the evidentiary issues that led to their exoneration in their original post-conviction proceedings, and those who did were generally unsuccessful in their appeals.
Ken Thompson, who was sworn in as Brooklyn District Attorney on January 1, 2014, continued the conversation by describing the efforts of his newly formed Conviction Review Unit, which has vacated ten wrongful convictions in ten months. Thompson prioritized the unit after taking office. Thompson shared a personal story about vacating the wrongful conviction of Willie Stuckey, who had died in prison. Thompson spoke of his call to Stuckey’s mother, when he asked her to stand in Willie’s place in court when they moved to vacate, and poignantly stated that “I think what we are doing in Brooklyn is necessary. It is necessary to protect the integrity of the criminal justice system.”
Ron Sullivan Jr., the faculty director of the Harvard Criminal Justice Institute and a founding fellow of the Jamestown Project, was appointed as Special Counsel to the District Attorney for the Conviction Review Unit. When Sullivan—who has a strong background in criminal defense—was called to be Special Counsel to the District Attorney, Thompson told Sullivan that he wanted this to be a “real unit, a unit that actually does the work, not something that does the work in name only. And I want it to be good, I want it to be great, I want to do some of the best work in the country on this.” The two panelists spoke about the safeguards for the integrity of the unit to ensure that the Conviction Review Unit avoided problems of “the fox guarding the henhouse,” including an independent review board to assess each case.
Barry Scheck and Peter Neufeld, co-founders and co-directors of the Innocence Project, concluded the panel discussion by considering what we can learn from exonerations, and where we should go from here. Scheck discussed the multifaceted nature of the mistakes leading to wrongful convictions, noting that when mistakes are made in a complex system, the cause is rarely a single event. Scheck explained that in cases of wrongful convictions, “It’s not just that there was a mistaken identification or a false confession—but where was the defense counsel? Where was the judge? And maybe some of the police officers made a mistake. Very rarely are these total system failures the result of a single person.” As more exonerations take place, states are trying out new ways to not only correct these errors, but also to learn from them and prevent them in the future. Some of these solutions include new discovery rules influenced by a growing awareness of wrongful convictions. For example, Scheck discussed a rule in North Carolina which mandates that after a conviction in a capital case, a defendant must be given access to the prosecution’s entire file. Even as these innovations are made, however, Scheck notes that “[w]e are just beginning to learn from these cases.”
Peter Neufeld commended Thompson and the Conviction Integrity Unit for the integrity that is shown by their work, but cautioned, “there is still more to be done.” He urged that when wrongful convictions are identified, root cause analyses need to be conducted. The systemic causes of each case need to be explored, and the contributing factors need to be identified. Neufeld argued that in addition to the cases we know were wrong, we must also be seeking out the near misses—the cases that almost went wrong. He drew a comparison to the office of the medical examiner, which has a standing root cause analysis committee in place, and mechanisms in place to ensure transparency. Neufeld expressed that this should be extended to crime labs, so that when things go wrong, we are able to get at the system where it is failing. He also expressed concern about allowing DA offices to police themselves—before and after trial. Because so many cases involve a failure to disclose, Neufeld suggests having an independent person review what evidence has been turned over to defense prior to trial, and what has been withheld. A fresh view free from unconscious cognitive biases might prevent some errors. Neufeld also touched on the risk factors that can impact the likelihood of a wrongful conviction, and addressed the issue of racial disparity that plagues the system. He notes that this is a unique risk factor, because it doesn’t have a clear recommendation for remedy like the other risk factors. He argued that exploring possible remedies is crucial to achieving true justice.
A question and answer period followed the panel discussion, which drew extensive crowd participation.
The Law Alumni Association and NYU Review of Law & Social Change are grateful to everyone who attended, as well as to the many individuals who helped put this spectacular event together.