By Marc Wolinsky
In early August, following an extraordinarily close election, Melinda Katz won the Democratic nomination for Queens District Attorney, putting her on the path to assume that office on Jan. 1, 2020. A central plank of Ms. Katz’s campaign was the promise to create a robust and independent Conviction Integrity Unit (CIU) in Queens, the only borough remaining in New York City without one. In Ms. Katz’s words: “Every wrongful conviction destroys a person’s life while leaving a guilty person on the streets.” Ms. Katz’s commitment to justice as a candidate has to be put into action when she assumes office.
Like many other lawyers in New York City, I have had the privilege of working pro bono with the Legal Aid Society and the Innocence Project to overturn wrongful convictions. Those efforts have been the most gratifying of my career. As the experience under the late Brooklyn DA Ken Thompson shows, Conviction Integrity Units are an essential element of the criminal justice system. In the past ten years, 49 innocent people in New York State alone have been exonerated through the work of CIUs. Nationwide in that same period, 370 innocent people, the overwhelming majority of whom are people of color, have been exonerated by CIUs.
Ms. Katz’s campaign position paper lays out a clear plan for a CIU program that will be a model for the nation. Working in conjunction with the Innocence Project and other leading experts, her promise is to create the strongest CIU in the United States — an independent and transparent arm of the DA’s Office that will be guided by the search for justice and truth. Her position paper promises that the CIU will be headed by an individual with extensive prosecutorial and defense experience, and it acknowledges that if the CIU is to achieve its objective, it must be staffed by full-time investigators, defense attorneys and prosecutors, all of whom will work in a setting entirely separate from day-to-day prosecutors and from prosecutors in the Appeals Bureau of the DA’s Office. To further safeguard its independence, the CIU will report directly to the District Attorney, Ms. Katz. After all, a fresh look requires fresh eyes.
Ms. Katz also plans to require the Queens CIU to share any exculpatory evidence it uncovers with the petitioner, and also to require the Queens CIU to communicate often and openly with the petitioner, including by explaining any action it takes in a reasoned, written decision. The ultimate goal, as Ms. Katz herself explained, is simple: “to ensure that no one remains jailed for a crime they didn’t commit.”
Ms. Katz’s promised CIU will put into practice the lessons learned from the horrible injustice inflicted on individuals who have been wrongfully convicted. Innocents give false confessions, eyewitness identifications are too often unreliable, jailhouse informants are, by their very nature, inherently suspect and exculpatory material is not always disclosed. Embracing science, Ms. Katz’s promised CIU will actively encourage — rather than resist — DNA and other testing or re-testing of physical evidence.
Pointing to the example of the Central Park Five, Ms. Katz observed that each of those young men had given a false confession. To address this danger, Ms. Katz has committed that she will require that all confessions be conducted with a defense attorney present and be videotaped from beginning to end. The full videotape, rather than an edited or compact “snippet” of the confession, will be played for any jury. Confessions in which no defense attorney is present will be given lesser weight. When another candidate pressed Ms. Katz on this commitment, Ms. Katz stood her ground — she made clear that she is a champion of truth, not convictions, and that what she had learned from wrongful confessions of the past was that the DA’s Office should not be prosecuting cases based on suspects’ confessions alone, particularly when the authorities have no evidence to corroborate the confession. To that end, Ms. Katz has also made clear that cases based on disavowed confessions will be a focus of her CIU.
Cynics will say that Ms. Katz can’t be counted on to follow through on campaign promises. But Ms. Katz has fought this cynicism too. At the June 12 debate, for example, Ms. Katz explained that she was endorsed by dozens of city and union leaders — “the men and women who run the city” — because “[t]hey trust me to keep my word because I’ve always kept it in the past as an elected official.”
So with Jan. 1, 2020 approaching, every judge, every prosecutor, every defense attorney and every pro bono lawyer committed to making wrongs right will be anxiously awaiting Ms. Katz’s implementation of her reforms. Ms. Katz’s promised CIU and other changes would place Queens at the cutting edge of criminal justice reform in the United States. But promises are empty without action. The time for action is approaching.
Marc Wolinsky is a New York lawyer working pro bono with the Legal Aid Society of New York on a petition to the proposed Queens Conviction Integrity Unit.