In 2014, the late Brooklyn District Attorney Kenneth Thompson launched a pioneering Conviction Review Unit (CRU) to determine whether certain convictions were reliable, fair and just.
The current District Attorney, Eric Gonzalez, who was Counsel to Ken Thompson at the time, has expanded the CRU effort since he succeeded Thompson on an interim basis after Thompson’s death. He has since been elected to a full term.
Earlier this month, Gonzalez issued a comprehensive 100-page report, 426 Years: An Examination of 25 Wrongful Convictions in Brooklyn, New York, compiled in cooperation with the Innocence Project and the law firm Wilmer, Cutler, Pickering, Hale & Dorr.
The report detailed 20 criminal justice disasters uncovered by his CRU that engulfed 25 defendants, 24 of whom were Black or Latinx.
Designed to “invite the public to look inside these cases and to reveal the Kings County DA’s own assessment as to what went wrong in each of them,” it provides a harrowing catalog of suffering: 426 years of unjust imprisonment and all of the collateral damage those years entailed.
Conviction Review (or Conviction Integrity) Units have multiplied across the U.S.
A careful examination of the national scene by the Quattrone Center at the University of Pennsylvania Carey Law School has identified a variety of models generated by individual prosecutors’ offices. The range includes a number of “in-name-only” units: CRUs functioning as fashion accessories, not as genuine efforts at self-correction.
The Brooklyn CRU is now the largest in the U.S., and it is by no means an “in-name-only” operation. The great virtue of the 426 Years report is the picture it provides of how a genuine CRU goes about its business.
The Brooklyn CRU is founded on the three principles: non-adversarial truth-seeking, information sharing between defendants’ counsel and the CRU, and structural independence.
The CRU is insulated from the people and agencies who were implicated in the potential mistake, and from the New York City Law Department, which has to defend any civil liability claim that the CRU’s analysis triggers. An Independent Review Panel of volunteer criminal lawyers brings an outsider’s perspective to cases, and keeps boundaries marked.
The Brooklyn CRU provides a model for how to confront moral emergencies — how to uncover past justice errors and free the wrongly imprisoned.
The 426 Years report also hopes to offer lessons that may help prevent future miscarriages of justice. Ironically, the excellence of the Brooklyn CRU model as a vehicle for uncovering past errors shows that preventing future error is a different challenge, requiring different tools.
The 20 succinct narratives of justice system disaster uncovered by the CRU illuminate the criminal justice system’s weaknesses, but they illuminate them in flashes of a strobe light.
Safety experts in fields like aviation and medicine argue that we will need to do more than spotlight individual errors — that we need to move the criminal justice system’s culture toward a culture of safety.
There’s work to be done there that no CRU can accomplish independently.
Looking Back
Lawyers litigating a wrongful conviction must generally find a mistake or a rule violation and then prove that it was harmful. In this vision, the criminal justice system is a linear, Newtonian arrangement of components. Effects follow inevitably from causes.
In the foreground of each picture there is a broken component — “the eureka part” — the cause of the miscarriage of justice.
Sometimes, the broken component is human: a dishonest police officer, or a prosecutor who buries exculpatory evidence, or lethargic defender. Sometimes the broken element is technical — for example, a faulty forensic report classifying a fire as arson.
Sometimes, 426 Years illuminates more than one error in a specific case: one domino falls; it knocks over the next.
This approach generates corrective efforts focused on repairing or replacing individual components. For example, we can modernize identification practices by developing and instituting science-supported best practices such as “double-blind” photo displays and immediate post-identification confidence reports in eyewitness cases. We can require video recording of all interrogations, or ban Reid method interrogations of young or developmentally disabled people.
And, of course, we can hold individuals — dishonest cops, or prosecutors who hide exculpatory evidence, or ineffective defenders — accountable for their rule violations. (There are 38 instances of professional misconduct documented in the report’s case summaries.)
We can do better at all of these things.
But for the safety experts from other fields this approach, while useful, handicaps full scrutiny of the problems. They would say it is not enough to go “down and in” to find a broken component; that we also have to go “up and out” to understand the sources of that component’s failure.
In their view, future safety depends on answering questions that a CRU has no reason — and no time — to ask. Rather than “Was there a misjudgment or violation in this case?” the question should be “Why was there a misjudgment?” or “Why did this actor break the rules?”
To be safer in the future we need to understand why these cops, or prosecutors, or defenders zigged when we now know that they should have zagged.
The next one might do the same in the same situation.
For safety specialists a wrongful conviction is not the work of a lone incompetent or corrupt actor; it is a system failure. The “system” involved is not just “complicated” as a jet airliner at rest would be; it is “complex,” like a jet airliner in operation.
They do not see a simple mechanism of cause and effect; they see a swirling, dynamic environment of overlapping (and often conflicting) conditions and influences that do not dictate results, but do affect the probabilities.
The place to look for future danger is not only in individual components, but also in their interactions; and the way to see those interactions is not as a linear sequence but as a problem in “sense-making” that challenges all of the participants.
It is true that “upstream” police decisions (e.g., failure to document and pass along evidence) affect “downstream” prosecutorial decisions, but it is also true that the “upstream” police conduct is influenced by police understanding of “downstream” prosecutors’ needs and preferences. Both of those groups are affected by their expectations for the actions (or lethargy) of the defenders and see-no-evil trial judges still further along.
Meanwhile, all of these actors are reacting simultaneously to budget, caseload, and media forces.
Ask safety experts “Who is responsible for this wrongful conviction?” and their answer will be “Everyone involved, to one degree or another.” And their “everyone” will include people who simply did nothing and others, far from the scene of the events, who did the hiring, training, and supervision, set the budgets and caseloads, and generated the pressure to move things along.
A Culture of Danger
An important feature of the 20 wrongful conviction cases cataloged in the Brooklyn report (although the report itself does not make a point of this) is that because they are all serious crimes everyone involved — detectives, prosecutors, defenders, judges — is a veteran of the Brooklyn criminal justice system. There are no novices here. Nor are these swashbuckling outliers.
Everyone here was raised in the NYPD or Kings County District Attorney’s Office or the Brooklyn defense bar. These players are fully evolved products of the local culture who had survived in it long enough to be entrusted with serious duties.
There are some depressing, even farcical, defender performances outlined in the 426 Years accounts, and readers may find them shocking. But based on my own 40 years of defending I think I can promise you that none of the other participants in their trials was shocked.
Everyone in the courthouse would have known perfectly well that when you assigned Attorney X to a case, this sort travesty was what you were going to get. So who assigned him? Why? Who monitored or adjusted to (or didn’t) his performance? Or exploited it? Why?
The 426 Years report supplies the players with pseudonyms, but it takes no feat of memory to recall the role that Detective Lou Scarcella played in Brooklyn wrongful convictions over the years. My guess is that any lawyer in Brooklyn greeted news that he or she had been assigned “a Scarcella case” with rolling eyes and a grim smile.
Why did he keep getting cases? Why did the DA’s office keep prosecuting them?
These decisions may have been deplorable, even corrupt, but they were decisions: locally rational adjustments to the conditions and influences the actors confronted.
The point is that no CRU (not even one as accomplished as Brooklyn’s) and no other criminal justice “silo” can address the dangerous conditions and influences on its own. Any serious reform effort will have to mobilize all stakeholders, who can train multiple perspectives on the event, and not simply criticize one individual component’s performance.
The independence that is crucial to a CRU will have to give way to collaboration.
The goal should not be the excision of one broken component, but the creation of a culture where everyone sees his or her individual responsibility for a just collective outcome.
The stakeholders at the table should include community representatives. Among the other perspectives mobilized should be those of the exonerated defendants and their families, and of the victims of the original crime.
Eric Gonzalez’ decision to publish the 426 Years report is an important step in part because it emphasizes the restorative potential of transparency: of the role that the willingness to confront and learn from errors can play in bolstering public trust in the law.
Gonzalez repudiates the standard “Nothing to see here, move along” official response to wrongful convictions.
A CRU’s work in uncovering and reversing wrongful convictions is a critical care function. It is indispensable, and it has to come first.
But a complimentary regular and expected practice of convening all-stakeholders event learning reviews, along the lines of the National Institute of Justice/Bureau of Justice Assistance Sentinel Event Reviews, is an indispensable public health function that can bend the culture of criminal justice away from the shambolic “normal” illuminated by the 426 Years report and toward a culture of continuous safety improvement.
The next wrongful conviction should be reviewed that way, and immediately — there’s no reason to wait to compile another 20-case omnibus. The reviews should be routine: inevitable in the aftermath of any exoneration.
This should be true after all criminal justice system errors — unnecessary deaths of officers or citizens, fruitless stops and frisks, opioid overdose fatalities, “near misses” — but it can be particularly productive after a wrongful conviction.
A wrongful conviction is an outcome no one wants: not the cops, not the public. Even people who can’t bring themselves to care very much about innocent men in prison care about the guilty men left on the streets to find more victims.
We can use that consensus to begin to build some “forward-looking accountability” into the culture of criminal justice.
We can hold ourselves accountable for learning. The Brooklyn report makes a valuable start in that direction.
But it is only a start.
James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes readers’ comments.
2 Comments
Over zealous DA’s and Police that don’t do a good job of evidence-gathering cause most of the wrongful convictions, like my son’s, to happen.
The answer to prevention is simple. Simply abide by the ABA Rules of Professional Conduct and hold DA’s and Judges accountable for their bad acts. If they did this, wrongful convictions would stop on a dime. As it is now, they know nothing will happen to them, so there’s no incentive to change. The Fourteenth Amendment secures the right to due process. Violating .. due process .. is a federal crime. “That’s why it’s a federal crime for anyone acting under “color of law” willfully to deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law.” In most .. if not every wrongful conviction .. due process has been violated.
If prosecutors knew they would be charged with violating our constitutional rights, I seriously doubt they would risk losing everything for doing so. [this post has been condensed for space]