Politics, Not Justice, To Determine Corrections to Wrongful Convictions

Success of A.G.'s Wrongful Conviction Unit Depends on D.A. Willingness, Defense Counsel Say
The New York Law Journal by Joel Stashenko - April 16, 2012

Defense lawyers say the success of a new unit within New York's attorney general's office focused on wrongful convictions will largely depend on the willingness of local prosecutors to turn to the bureau for help. Attorney General Eric Schneiderman said he wants the Conviction Review Bureau to assist district attorneys on cases where there is significant doubt about a defendant's guilt and to offer experts to help determine the validity of convictions. Schneiderman in a statement said the bureau only expects to get involved in reviews of convictions for serious felonies and where defendants' other options for reopening cases have been exhausted, such as unsuccessful Article 440 motions. The attorney general does not have the authority to intervene in wrongful conviction cases unless expressly asked to do so by local district attorneys, or when the governor asks the attorney general to step in. Those instances are rare. Thomas Schellhammer, who was named chief of the new bureau, was involved in one of those instances when an investigation was reopened at the direction of Governor Eliot Spitzer. Schellhammer, then an assistant attorney general under Andrew Cuomo, was designated in 2008 to help lead the reinvestigation of the conviction of Martin Tankleff, the Long Island teen who served more than 17 years in prison after being convicted in the 1990 slaying of his wealthy parents, Seymour and Arlene Tankleff. The attorney general's investigators concluded the evidence was insufficient to sustain the second-degree murder counts against Tankleff, and the office dropped the charges. Bruce Barket, who represented Tankleff, said the effectiveness of the A.G.'s new bureau will depend on whether local prosecutors are open to inviting the state in to review cases. "It is going to depend on the integrity of the individual district attorneys," said Barket, of Barket, Marion, Epstein & Kearon in Garden City. He said the willingness of district attorneys to conduct state-aided reviews may become a function of how invested the prosecutors are in the convictions. Downstate district attorneys tend to remain in office for a decade or longer, Barket said. "Are they going to invite people in to say that their office made an error? They might not be so quick to do that," he said. "But with the shorter-tenured ones, it may not have been that person's prosecution to begin with." Buffalo Attorney Norman Effman said he defends clients in both western New York's largest counties and in rural regions. "I deal with a lot of D.A.s and they are all different," said Effman, who along with Buffalo attorney Thomas D'Agostino led successful efforts to exonerate Anthony Capozzi, who was wrongfully prosecuted as the so-called "Bike Path Rapist" in Buffalo. Capozzi had served 22 years in prison when he was released in 2009. DNA evidence linked another suspect to those crimes. "When you are talking about interfering with home rule, which is what you are talking about here, it is no different than a local police agency," Effman added. "Will they invite the state police in to investigate? The local sheriff? It all depends on how secure the individual [district attorney] is and their ability not to be so concerned with home turf." Glenn Garber, a Manhattan defense attorney who operates the Exoneration Initiative with some assistance from Brooklyn Law School, said he wonders how independent the conviction review unit will be. "D.A.s' offices are entrenched," said Garber. "They have tunnel vision and they may be too invested in some convictions. What we need is an independent voice in that internal dialogue. I am hopeful that this initiative will take that form." Several defense attorneys also suggested that the attorney general could face a conflict of interest if a defendant is found to have been wrongfully convicted. Typically, the exonerated defendant sues for unjust imprisonment in the Court of Claims. Capozzi, for instance, reached a $4.25 million settlement with the state in 2010 after filing suit. The A.G.'s review unit may be privy to information it could use in negotiating a settlement or representing the state in the Court of Claims, attorneys pointed out. But Effman said conflicts are not uncommon in the court system. Both public defenders and prosecutors receive taxpayer dollars, he said. "Does that mean they are on the same team? No," said Effman, a former public defender. "When you are attorney general, as part of your ethical responsibly, you have to make sure that justice is done." Jennifer Givner, a Schneiderman spokeswoman, said the A.G.'s office is often involved in matters open to potential conflicts. It both investigates state agencies and their employees while defending the same entities in other matters in court, she said.

"The office is equipped to handle such occurrences, and puts in place procedures to protect its processes, including screens and individual recusals, as needed," she said. Givner added that Schneiderman reached out to the District Attorneys' Association of the State of New York and as many other prosecutors as he could when developing the initiative. Janet DiFiore of Westchester County, president of the state D.A.s' group, and Manhattan District Attorney Cyrus Vance Jr. both said in statements that they endorsed the Schneiderman plan. DiFiore said in a statement released through the governor's office that the prosecutors' association "appreciates" the attorney general's efforts to make more resources available for combatting wrongful convictions. Vance noted that he formed a "conviction integrity" unit within his office soon after taking over in 2010. Kathleen Hogan, district attorney in Warren County and a former president of the D.A.s' association, said local prosecutors will generally welcome having the option of getting help from the A.G.'s office. She said district attorneys' offices in 40 of New York's 62 counties have 10 or fewer attorneys on staff and are already stretched thin. She said her own office has eight attorneys and an $800,000 annual budget, miniscule by the size of those in the state's largest counties. "D.A.s' offices take very seriously post-conviction review," she said. "You want to make sure every guilty person is held responsible and no guilty person is allowed to remain free." DiFiore is also co-chair of the New York State Justice Task Force, which was created by Chief Judge Jonathan Lippman in 2009 to look into circumstances surrounding wrongful convictions. Judge Lippman said in a statement that Schneiderman's initiative is commendable. "One wrongfully convicted person is one too many, and I believe the reforms…will help pave the way toward reducing such injustices," the chief judge said. The Lippman task force, which included Schneiderman when he was a state senator from Manhattan, reported in 2011 that misidentification of suspects by witnesses was the leading cause in the more than 50 false conviction cases they studied (NYLJ, Feb. 16, 2011). Schneiderman's creation of the bureau also fulfills a promise he made in the 2010 campaign to combat wrongful convictions. Schellhammer, chief of the new unit, will handle many of the legal functions of the bureau, including evaluating potential cases and investigations. He is a former homicide prosecution expert in the Manhattan D.A.'s office. Blake Zeff, policy director to the attorney general's office and a senior advisor, will deal with administrative matters in the new bureau. Zeff is a former top aide to U.S. Senator Charles Schumer, D-N.Y., and he worked on the campaigns of Barack Obama and Hillary Clinton. Neither were available for comment last week. The bureau will also review the A.G.'s own investigatory procedures to "maximize reliability" of convictions and to operate a subcommittee that hastens the resolution of claims brought by those harmed by unjust convictions. Aides to Schneiderman said an internal review of the convictions secured by the A.G.'s own prosecutors has been underway for months, but that creation of the Conviction Review Bureau was not formally announced until April 11. Joel Stashenko can be contacted at jstashenko@alm.com.