Stare Decisis Ain’t What It Used To Be: NY Attorneys-General Host Post-Conviction Reviews

by Mary W Maxwell, LLB

In the Amtrak station in Albany last week I saw a headline on the New York Daily News about the Roger Stone case. It said: Slimeball Gets 40 Months ‘for covering up for the president.‘

I was so fascinated by the word “slimeball” that I paid two bucks for the tabloid. Am I ever glad I did! On page 6, it said “Christian Pacheco, 42, spent the last quarter century behind bars. He was cleared by Brooklyn DA’s office and released February 11.”

Well, well, well. Remember when Gumshoe was all excited by the discovery that Martin Bryant’s case could get a fresh look? The ABC story by Emilie Gramenz of March 31, 2015 said:

“Tasmania’s Attorney-General Vanessa Goodwin yesterday released a consultation draft of a bill to introduce new right to appeal mechanisms … where there is fresh and compelling evidence.

“Currently in Tasmania a person who has been convicted and exhausted their appeal rights is able to petition the Attorney-General and the state’s Governor to exercise mercy. In a statement, Attorney-General Vanessa Goodwin said that was outdated. ‘It is the Government’s view, and that of many in the community, that this is not the right process,’ she said. ‘Appeal decisions should be made by the courts, not executive government’.”

Around the same time, in 2015, attorneys general in the United States also got the notion to listen to persons who had long maintained their innocence, despite having exhausted the appeals process. Perforce, the District Attorneys of several US counties have set up “Conviction Integrity Units” to review old cases. Wow.

In the year 2018 alone, 151 persons were exonerated. A national report, Exonerations in 2018, lists 68 exonerations in cases of wrongful homicide convictions.

The Death Penalty Information Center, the DPIC, says that at least 5 of the 151 now-freed persons had been wrongfully convicted in cases that involved the misuse or threatened use of the death penalty.  (Hello Jahar Tsarnaev, are you there?  Hello Public “Defenders” Judy Clarke and William Fick, how’s things?)

Detroit As Model

Wayne County, Michigan, which includes Detroit, has a comprehensive website on this new procedure. I will present relevant bits here.

The Conviction Integrity Unit (the “CIU”) investigates claims of innocence, to determine whether there is clear and convincing new evidence. As stated in the American Bar Association standards, Rule 3.8(h):

“When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.”

The CIU recommends appropriate action to the county prosecutor — who holds final authority. However, only a court can actually set aside a conviction. Anyone associated with either the convicted person or the case may petition for relief based on innocence from a case that was prosecuted in Wayne County.

There are two essential criteria. First, the claimant must assert “actual innocence,” — he or she was wrongfully convicted because he or she played no role in the criminal act(s) in question. Second, the investigation must lead to the discovery of new evidence that was not considered by the trier of fact (i.e., judge or jury).

Even a defendant whose conviction resulted from a plea of guilty in a Circuit or District Court is eligible for consideration. Also, inmates can get relief even if the true offender is never identified nor prosecuted for the crime.

(e.g., Troy Davis could have been exonerated without “the other suspect,” Sylvester Coles, having to be indicted — but that was in Georgia, not Michigan.)

Surprisingly Open-ended

A claim can be filed with CIU at any time after the conviction is final; there is no requirement that the person be in custody when filing a claim. Wayne County CIU says:

“CIU was not created by statute, its investigations are not part of a court action, and it is not governed by court rules of procedure.  CIU stands apart as an independent division within the Prosecutor’s Office. It functions outside the traditional prosecutor function and its recommendations will be brought directly to the Prosecutor.

“After satisfying itself that the claim is eligible, CIU conducts an investigation into the newly available evidence and into the history of the case. CIU lawyers review available materials from the criminal proceedings that led to conviction, including police reports, trial transcripts and pleadings. CIU investigators locate and interview witnesses who are identified as supporting the claim of innocence.”

The law school at University of Michigan has produced a map showing which counties in the nation currently have a Conviction Integrity Unit. Let’s consult it for two cases that GumshoeNews has been interested in:

Jahar Tsarnaev.  His home address, before his 2013 arrest, was Cambridge, Massachusetts. The Middlesex County DA covering that address is at 15 Commonwealth Av, Woburn MA 01801.  This county does have a CIU.  Of course, the Boston Marathon bombing case was handled as a federal case, but that need not prevent the DA from looking into the matter.

Leonard Peltier This man was convicted 45 years ago THINK ABOUT IT!  His last 16,000 breakfasts were in a prison mess hall. Peltier’s home state is South Dakota, I believe. Possibly he lived on an Indian reservation. Unfortunately, I do not see South Dakota on the list as having a CIU.  They had better get one. Peltier is ill and old.

The New York Situation

I am especially eager to assist my friend Richard Taus who has been in a New York state prison in the Adirondack Mountains for about 30 years. He has therefore eaten approximately 10,720 prison breakfasts (unless you subtract the days when the Wheatina was so watery that he decided to give it a miss).

Taus’s prosecutor was the DA of Nassau County, New York. So far that county has exonerated only 2 convicts, while neighboring Kings County has gone wild with 30 exonerations, including Christian Pacheco of Brooklyn, who was mentioned above.

If the county does not want to come to the party, help could still be gleaned from the state attorney general. She is Letitia “Tish” James. The State of New York now has a Conviction Review Bureau! The website says:

“[Changing] a criminal conviction rests with the office of the county prosecutor who obtained the conviction. However, a District Attorney’s office may lack adequate resources to conduct a review, or may believe that a conflict of interest exists. In these instances, the OAG’s Conviction Review Bureau offers its assistance to District Attorneys who seek help in performing an independent re-investigation….”

Taus has long since exhausted all other avenues of appeal, so he will qualify for a conviction review.  He also tried the Writ of Error Coram Nobis, but New York legislation restricts the use of that method to cases where the complaint is “insufficient counsel.”  Richard did indeed invoke that as his basis for a coram nobis.

His counsel may have meant well, but was stepped on by the judge (very Australian Childrens Court type behavior), and so important points were not put forward. Also, in my opinion, with which the convict agrees, he should have taken the stand. Taus was very capable of proclaiming his innocence and could have easily withstood cross-examination. But most “counsel” recommend not taking the stand.

Taus has also failed the famous parole test. He went up for a parole hearing in 2015, 2017, and 2019. Each time he got knocked back. He meets Requirement #1 — has been a non-troublesome prisoner, and Requirement #2 — looks like he could re-enter the community and be a good citizen (and how!).

But he is stymied when it comes to Requirement #3 — “shows remorse.”  It is a bit hard to show remorse for something you did not do. So perchance the Conviction Integrity Unit will do the right thing, and bring him “relief from Wheatina.”

A Summary of 2018’s Exonerations, Nationwide

The following statistics are proffered by the National Registry of Exonerations.  In many cases the work was done by the Innocence Project, a non-governmental body that has branches in law schools and elsewhere.

All told, the National Registry of Exonerations has recorded 2,372 exonerations that occurred in the United States from 1989 through the end of 2018. A total of 151 exonerations occurred in 2018. The breakdown of that figure is as follows:

Homicide: 68 persons were exonerated of homicide—66 for murder and 2 for manslaughter.

Sexual Assault: 17 defendants were exonerated of sex crimes, including 7 for child sexual abuse and 10 for sexual assault of an adult.

Mistaken Eyewitness Identification: 31 exonerations  were for convictions based at least in part on mistaken eyewitness identifications.

False Confessions: 19 exonerations involved false confessions.

Spared: Two of the homicide exonerees had been sentenced to death.

Never Happened: 70 exonerations were of convictions in which no crime was actually committed.

Perjury or False Accusation: 111 cases included perjury or false accusations.

Guilty Plea: 49 exonerations were for convictions based on guilty pleas.

Mistaken Eyewitness Identifications: 31 exonerations involved mistaken witness identifications.

False Confessions (!): 19 exonerations involved false confessions.

Violent Crimes: 101 exonerations in 2018 were for violent crimes, especially homicide (46%) and sexual assault (11%). Drug crimes accounted for nearly 70% of the non-violent cases (33 out of 48).

DNA: 23 exonerations in 2018 were based in whole or in part on DNA identification evidence.

Misconduct by Government Officials

107 exonerations included misconduct by government officials.  Fifty-four homicides—79% of homicide exonerations in 2018—were marred by official misconduct.   Official misconduct encompasses a wide range of behavior—from police officers threatening witnesses, to forensic analysts falsifying test results, to child welfare workers pressuring children to claim sexual abuse where none occurred.

But the most common misconduct documented in the cases in the Registry involves police or prosecutors (or both) concealing exculpatory evidence.

In the Sergeant Watts scandal, 31 defendants who had been framed by police on drug and weapons charges were exonerated in the wake of a scandal involving corrupt Chicago police officers led by Sergeant Ronald Watts.

I am quoting the National Registry again:

“The scandal prompted a reinvestigation and the exonerations of dozens of defendants.   Seven of the cases occurred in Cook County, where the local Conviction Integrity Unit has been dealing with the fallout of a scandal involving the now-retired Chicago Detective Reynaldo Guevara.

“To date, Guevara’s misconduct—which often involved physically abusing suspects and witnesses in interrogations—has resulted in 14 exonerations. Guevara joins former Chicago Police Lieutenant Jon Burge in securing the most convictions that later resulted in exonerations based on coerced confessions. [A CIU could have saved Troy Davis’s life — 7 of his 9 witnesses recanted, saying they had been coerced by police.]

“Forty-three men in the Registry served more than 30 years in prison for crimes they did not commit. As arduous as the process is for any falsely convicted defendant, the odds are especially stacked against those who were convicted decades ago. As exonerations proliferate, we become numb to the suffering they reveal. It is hard to imagine how some exonerees survived intact through 30 or 40 or 45 years in prison, knowing every day that they were innocent.”

 Stare Decisis

It looks like the age-old rule stare decisis — “Let the decision stand”– for the sake of finality — is disappearing. Probably this is because people are now so aware of many cases where the court case was rigged.

Thank God for the change. Thank God for the people who are on duty to re-examine old cases and give families a joyful reunion.

Christian Pacheco, whose story in the NY Daily News, is responsible for this article, said:

“I feel blessed to be free again. It still hasn’t hit me fully, you know. I haven’t been able to sleep but I feel blessed more than anything. I’ve already met my mom… and hugged my grandmother.”

It really does appear that we are on a roll. Happily, there were 44 Conviction Integrity Units in the United States in 2018, almost three times the number of just five years earlier!

Finally, here’s the headline about Slimeball that caught mine eye: