President Donovan's Testimony to NYSBA Task Force on Wrongful Convictions

The following is the testimony of District Attorney Daniel M. Donovan, Jr., President, District Attorneys Association of the State of New York and District Attorney of Richmond County to the Task Force on Wrongful Convictions of the New York State Bar Association, February 13, 2009

I appear before you as President of the District Attorneys Association of the State of New York. I would like to begin by commending the task force on its work in identifying and studying the root causes of the convictions of the actually innocent. Our association shares fully in the goals of the task force – minimizing if not completely eliminating the likelihood of convicting those who are actually innocent and insuring that justice is meted out fairly. Your report has identified possible causes of such wrongful convictions and makes many recommendations of ways in which those involved in the criminal justice system can work together to insure that fair and accurate justice is done in each and every case. The association will be studying the proposals more closely in the months to come and we look forward to working together to reach our common goal. In the time I have allotted to me, I will address certain of your proposals; time does not allow me to cover everything, but we would urge that you invite other district attorneys to appear before you to address some of those proposals or to expand upon those that I discuss with you.

Our association’s membership includes District Attorneys whose offices range in size from the 488 assistants in Kings County to the single assistant in both Lewis and Hamilton Counties. Moreover, 40 of the county prosecutor’s offices across the state have 10 or fewer assistants, 25 have five or fewer and in not an insignificant number, the District Attorney personally presents cases to the grand jury, tries cases and appears in drug court. Further, some of our members serve in counties in which there is but a single police agency while others serve counties with over 30 police agencies, including town and village police, county sheriffs and state police.

Geographically, our counties range in size from St. Lawrence, comprising nearly 2700 square miles, to New York, comprising about 22 square miles. And, of course, our counties range in population from 5,000 in Hamilton to 2.5 million in Kings. All of our members, regardless of office size, feel keenly their obligation to wield carefully and judiciously the immense power a prosecutor holds. Cases are carefully considered, evidence examined, and statutory, constitutional and ethical obligations followed. But we continue to strive to do more.

I, my 61 elected colleagues, and the over 2,800 assistant district attorneys we supervise, all fear involvement in that rare prosecution resulting in the conviction and incarceration of someone who did not commit the crime of which he or she stands convicted. Some have called it their worst nightmare come to life. I am happy to say that the vast majority of our prosecutions result in the conviction of the individual who committed the crime; the actually guilty are tried, convicted, and incarcerated. But the deprivation of even one person’s liberty as a result of the conviction of an innocent strikes at the heart of our criminal justice system in a number of ways – it results in the incarceration of the innocent, erodes the trust our communities have in the criminal justice system, and allows a truly guilty person, one deserving of penal sanction and incarceration, to, in the vernacular, get away with it.

Among those proposals made by a number of your subcommittees – in particular, the subcommittees on governmental operations, identification procedures, forensic evidence, and false confessions – are recommendations for better training and education of prosecutors, police, defense attorneys and judges on various topics, including the application of Brady and truthful evidence rules. Other issues of concern to the task force relate to the reliability of identification evidence, forensic science, and the possibility of false confessions.

In the limited time available to me, I’d like to explain why our association has a crucial role to play with regard to training and I will then share with you some of the things we are already doing to improve that training and the education of prosecutors across the state.

In a few moments, you will hear from my colleague and fellow elected District Attorney, Judge Richard Brown, who heads an office of nearly 300 assistant district attorneys. He will describe for you a variety of mechanisms in his office to limit the chance that an innocent person will be convicted of a crime he or she did not commit. Among those mechanisms is regular training, and Judge Brown is fortunate enough to be able to assign an assistant district attorney to serve as training director. An office of the size as that headed by Judge Brown is able to provide for its assistants regular training in all relevant topics as part of a continuing legal education program. A number of our members have such training programs; indeed, 12 of our members’ offices are listed as accredited CLE providers, my own included.

But our smaller counties are not in such a position. With respect to the training and education concerns, the association’s training arm, the New York Prosecutors Training Institute offers prosecutors throughout the state instruction on the very issues in which you have recommended that is needed. The issues you raise have been the subject of continuing legal education programs conducted by the Institute and the Institute continues to update its programming. As lawyers, we recognize that it is important that such training and education be kept as up to date as possible. To that end, the association created a Committee on the Fair Administration of Justice and Ethical Standards. This committee, composed of members of the board of directors, is charged with, among other things, implementing training and education in some of the areas in which the task force suggests more is needed and I would like to describe it to you in a bit more detail.

The committee has an ethics component. That component is charged with the regular review of all important cases and rule changes in the areas of professional responsibility, prosecutorial misconduct, and civil liability. It circulates to all members of the association important cases, suggests and participates in necessary ethics training, analyzes proposed legislation in this area, and recommends changes to laws or rules. By educating our members in this area and keeping all members of the association up to date on the latest developments in the caselaw and rules, we trust that we provide all our members with stronger tools to insure that justice is done in each case.

The committee also has a best practices component, charged with the review and consideration of proposals aimed at lessening the chance of that an innocent person will be convicted. This part of the committee will review reports from both the public and private sectors, examine what has been implemented in other jurisdictions, consult defense and prosecution practitioners, and scrutinize scientific studies all with an eye toward recommending adoption or rejection of new practices. The examination of new scientific studies is of special importance. As we have seen in the last 10 years or so, the technology available to insure that justice is being done has advanced by leaps and bounds. As the science develops, it is our expectation that this component of the newly formed committee will continue to educate our members about new tools they need to insure that justice is being done. Your task force’s report and its recommendations provide one example of the type of report that this component of the Committee on the Fair Administration of Justice and Ethical Standards will examine in its review and consideration of reports from both the public and private sectors.

In short, these two components of the Committee on the Fair Administration of Justice and Ethical Standards that I have described will provide regular and timely updates of the information all prosecutors throughout the state can use in advancing our common goal of insuring that accurate justice is done in each and every case. We are already doing a lot; we can do even more by regularizing the training available to each of the more than 2,800 assistant district attorneys in the state. We trust that as a result we can insure that each prosecutor in the state meets the high ethical standards we demand from our public prosecutors.

Our efforts at eliminating the likelihood of convicting an innocent person are not limited to the prophylactic ethics and best practices components of our Committee on the Fair Administration of Justice and Ethical Standards. An office such as that headed by Judge Brown has the ability, by virtue of the number of prosecutors it employs, to assign prosecutors, with no connection to a particular prosecution, to reinvestigate cases in which a defendant makes a credible claim of actual innocence made after conviction in a CPL Section 440 motion or otherwise. It can direct that a reinvestigation of the case be conducted by attorneys or investigators who have had no prior connection with the case and who come to it with no preconceived notions or biases. A smaller office does not have this capacity. In a small office, the individuals most qualified to reinvestigate are likely to have been involved in the initial investigation.

The third component of our committee will serve to aid smaller offices in these cases by stepping forward, at the request of the elected district attorney, to help in the investigation of credible claims of actual innocence. This constituent part of the committee provides a mechanism by which any state prosecutor can arrange for help in the reinvestigation. By creating a cadre of senior assistants from throughout the state ready to help in a reinvestigation at the request of a particular District Attorney, we hope to put all offices on the same footing when it comes to fair and unbiased reinvestigations where appropriate.

Creation of the committee that I have just described is merely the beginning of our efforts of ways in which our association can join with you to reach our common goal of insuring the fair administration of justice. The tasks it has been assigned are not exclusive and as it moves forward, it will certainly consider other proposals that the association can accept as a whole which would serve to eliminate convictions of the actually innocent.

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Among the recommendations the task force has made concerns the video recording of all interrogations. One of the primary focuses of your report was on false confessions and the impact such statements have on juries and on the decision to plead guilty. You have suggested that such video recording will serve to minimize the incidence of such confessions and has recognized the voluntary implementation of such recording in 26 of our 62 counties. Much of this implementation has been made possible by the funding of videotaping pilot programs and you have urged that the Bar Association recommend to the Legislature that it continue funding these programs. We embrace this suggestion and I would just like to bring you up to date on the efforts at introducing these programs in the state.

Our latest information is that four more counties – Chenango, Clinton, Greene, and Otsego -- have installed videotaping equipment in at least one police agency. I’d like to mention Greene County in particular; that county used a grant from your association to pay the bulk of the costs and has installed equipment in four locations and six rooms. This covers three police agencies in the county, including the police department of the largest village in the county. I would also like to note that the Clinton County District Attorney has itself funded three rooms with four cameras for one of its five police agencies.

Of three counties who had been at various stages of the funding or implementation process and had been included among the 26, Orange County has installed equipment for 6 of 36 police agencies; Rensselaer has installed equipment in 4 of the 9 agencies in its county, and Rockland has obtained the equipment for 5 of the 10 agencies police agencies in that county and is in the process of discussing protocols and procedures with the chiefs of each of those agencies. What is obvious is that we, as an association, are committed to videotaping; it has now expanded to 30 of our state’s 62 counties. But as I noted at the beginning of my remarks, our state’s counties range in population and geographic size. As a result, while we continue to explore ways to expand the availability of videotaping to all our state’s counties, it remains the case that we must examine in more depth how regional differences and other variables may impact on the cost and feasibility of various recording models and practices. By identifying potential obstacles early we can be in a better position to develop protocols and practices that effectively meet the special needs of individual counties across the State. Your association as well as DCJS has provided grant money to fund such pilot projects. We thank you for this and look forward to working with you further on these pilot projects.

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In the few minutes left to me, I’d like to take this opportunity to make a proposal of our own that we believe will go a long way towards accomplishing the goals we share. As I opened my remarks, I noted that no one wishes to be responsible for the imprisonment of the innocent. It is equally true that no prosecutor wants to be responsible for the pretrial detention of the actually innocent. I think it is fair to say that we can all agree on two things – wrongful incarceration, be it pretrial or post conviction, is something to be avoided if possible. We also all agree that it is imperative that the guilty be caught, tried and punished as soon as possible. It is for this reason that DAASNY has proposed that there be DNA sampling upon felony arrest. We have seen the wonders that DNA collection and testing has done with respect to the exculpation of the actually innocent. DNA is no less a tool that can be used not only in the post-trial exculpation context, but it ought to be a regular part of any investigation in which such evidence has been recovered. Honest mistakes are made by witnesses, police, and prosecutors. Having DNA available up front would reveal as early as possible if the person detained actually committed the crime or if he or she is actually innocent.

I am happy to say that the most recent expansion of DNA collection to include collection following conviction of certain designated misdemeanors has resulted in 794 DNA Databank hits since its enactment. A DNA Databank hit is a result of a match between DNA profiles developed from crime scene evidence and a DNA offender profile stored in the DNA Databank. Law enforcement agencies are notified of these hits, which often serve as investigative leads. The law enforcement agency then determines the significance of the evidence in the context of other investigative information when considering criminal charges. Imagine, too, our ability to use that newly obtained sample to exonerate someone wrongly serving time for having committed a crime. What is evident, and as we all recognize, DNA is a powerful tool both for exoneration and inculpation. Early inculpation is as significant, of course, as early exculpation; any case that has resulted in an unmatched sample means that a criminal remains at large. Our public safety obligation mandates that we do whatever we can to solve crimes promptly and accurately.

Your comprehensive report has made many suggestions toward reaching our common goal of minimizing if not eliminating convictions of the actually innocent. We look forward to studying them with more care and working with you, the governor, and the state legislature toward implementing those suggestions that will accomplish this goal without, at the same time, putting at risk the extraordinary success we have had in making this the safest large state in the nation and the fourth safest overall. We cannot act precipitously, however, and I would urge that the careful consideration that the proposals deserve be undertaken with a recognition of the overwhelming success we have had in reducing crime and in incarcerating those who are truly guilty.