State lawmakers and courts poised to make changes to prevent wrongful convictions

As Steven Barnes returned to Marcy, N.Y. after being exonerated for a rape and murder he didn’t commit, he kept thinking about the trees. In the 20 years he had spent in prison, they had grown so big that he didn’t recognize his mother’s house.

Barnes is the most recent of 24 people in New York to be exonerated by the Innocence Project of wrongful convictions. Based in Manhattan and associated with the Cardozo Law School at Yeshiva University, the legal clinic focuses on exonerating wrongfully convicted people through DNA testing — Deoxyribonucleic acid in saliva, skin, hair, semen, or blood can be matched by forensic scientists — and reforming the criminal justice system to prevent further wrongful convictions.

The effects associated with a wrongful conviction are profound. Most obvious is the staggering injustice of an innocent person behind bars. The average prison time in New York for a wrongfully accused person is 11 years. In total, the 24 men in New York exonerated through DNA testing had been imprisoned 314 years.

Also, the person who actually committed the crime remains free. In 10 of the 24 exonerations in New York so far, the actual perpetrator was later identified and in nine of those 10 cases, he had committed additional crimes before being caught. According to police reports, the actual perpetrators committed five murders, seven rapes, two serious assaults, and one robbery at gunpoint in the time between arresting the wrong person and identifying the person who really committed the crime.

On June 18,2009, thirteen New Yorkers who were exonerated using DNA evidence signed a letter that was sent to every member of New York’s senate and assembly. The letter, which is posted on the Innocence Project website, encourages lawmakers to consider reforms that could improve the criminal justice system. Behind only Illinois and Texas, New York has the third-highest number of DNA exonerees in the nation yet has not implemented any reforms pertaining to wrongful convictions in the legislative, executive, or judicial branches.

However, there are signs that momentum for reform is building. Last week, the New York State Assembly passed a bill addressing key factors that play a role in wrongful convictions. The bill, numbered S4668, passed from the senate’s finance committee to the rules committee on June 11.

But since the senate deadlock, no further progress has been made on the bill. The counsel for the bill’s senate sponsor, Eric Schneiderman of the 31^st District, would not confirm whether or not it would be addressed in a special session if and when the senate members return to work.

Assemblyman Joseph Lentol of the 50^th District in Brooklyn, who sponsored the assembly bill, spoke to The Enterprise about why it’s important.

“One part of this bill contains a provision for the videotaping of custodial interrogations,” he said. “Why is it in the bill? Because half of the people in New York State who were convicted wrongfully and exonerated by the Innocence Project confessed to the crime. Later, their convictions were overturned either because of DNA evidence or through some other way, we found out that they didn’t commit the crime.”

Lentol cites the case of Jeff Deskovic to show why videotaping interrogations is important. He describes events this way:

Deskovic was exonerated in 2006 for the rape and strangling of a classmate in 1989 in Peekskill, N.Y. He was 16 at the time and became the primary suspect after being found absent from school at the time of the murder and for being, according to the police, especially distraught over the girl’s death.

Once a suspect, Deskovic was polygraphed alone despite the protests of his mother and her failed attempts to get him an attorney. He was interrogated for four and then eight hours on two separate occasions, also alone; police taped only 35 minutes despite the availability of recording equipment. Speaking in the third person, Descovic ultimately confessed to the crime while lying on the floor with his head cradled in the investigator’s lap.

“Jeff Deskovic is the primary reason that the bill has that particular provision regarding videotaping,” said Lentol. “He confessed while he was in the fetal position under the desk at the police station.”

After 15 years in prison, Deskovic was proved innocent by DNA evidence. Eight months after his release, semen from the rape kit was tested against the New York State DNA databank of convicted felons. The semen matched convicted murderer Steven Cunningham, who had strangled the sister of his live-in girlfriend since killing the girl in Peekskill.

Lentol’s bill would also fortify laws having to do with DNA collection and storage. One provision requires DNA sampling to be submitted by people convicted of misdemeanors rather than only those convicted of felonies, which is the current reach of the law. Another amends the state finance law by establishing a DNA evidence fund, which would help police and crime laboratories process DNA crime scene evidence.

While the fate of bill S4668 now lies in the hands of a fractious senate, New York’s judicial branch is also focusing on wrongful convictions. On May 1, New York Court of Appeals Chief Judge Jonathan Lippman announced the creation of a permanent task force to review New York’s exoneration cases. The task force, comprised of judges, district attorneys, and legislative members, will report to Lippman by the end of the year on patterns of errors in the exonerees’ cases while recommending measures to improve the criminal justice system.

Assemblyman Lentol, who is also a member of the task force, said he hoped that change would come from the justice end as well.

“We have to look at this in a completely different way,” he said. “With the attention of the taskforce, we may be able to decide what happened. The identification of eyewitnesses proves to be fallible. Lineups are very problematic when you look at all the evidence and the way in which somebody was picked out of a lineup. You get six people in a lineup and the district attorneys or the police don’t say he may or may not be there. They never talk about that. Lineups should be fairer to the accused because sometimes the guy isn’t there and the witness locks into a misidentification.

“It isn’t as though we’re trying to say somebody has done anything wrong,” Lentol concluded, “but by the same token we don’t want to keep someone in jail because we want to protect the district attorney or the police who have made a mistake.”

Barnes’s trial, which took place in Utica, was a toxic combination of mistakes. An eyewitness testified that he had seen Barnes’s truck near the road where a 16-year-old girl named Kimberly Simon had been walking when she was picked up, raped, and strangled. As in the case of Deskovic, Barnes became the primary suspect of police.

“I got interrogated for 12 hours, and I was 19 years old and they accused me of all kinds of stuff,” he said. “They verbally abused me and called me a murderer.” None of Barnes’s interrogation was recorded.

During Barnes’s trial, three forms of unvalidated forensic science were used by the prosecution. A criminalist testified that hair collected from Barnes’s truck was similar to the victim’s hair but proof of the hair’s source was never provided to the jury. Soil samples from the wheels of Barnes’s truck were also compared and found similar to samples from the dirt at the crime scene. Finally, fabric from the victim’s jeans was found to be similar to a print left on Barnes’s truck.

“Jurors have in mind that, if he wasn’t guilty, they wouldn’t have arrested him,” said Barnes. “In my case, they had a lot of junk science, like the dirt in the wheel wells. The lady from the lab talked about ‘similar’ so much that the jury thought it was more than similar. The jury got that impression because they blew the junk science up so big. The lab techs are using big words and the jury thought it was more than similar — they thought it was evidence.”

An innocent man in prison, according to Barnes, eventually just becomes part of the system. “Inmates will say that everybody is innocent. After a while, guys just don’t want to hear if you’re innocent or not. You fit right in.”

When Barnes called his mother collect to find out if she had news after the Innocence Project took up his case in 2006 and retested his DNA, she asked him if he was sitting down. Then it was a blur of the last, longest night he had ever spent in prison, the removal of his shackles, and the ride home through the neighborhood he hardly recognized.

While most of the people involved with his case have either died or retired, Barnes says the head district attorney when his case was prosecuted is now a judge in his town.

“There’s a diner where I work and he always hangs out there and has coffee,” said Barnes. “He never ever looks me in the eye.”