Conviction Integrity in Real Time
There is one rare law enforcement tactic that, if used more expansively, could bring us closer to ensuring that no innocent person is ever convicted of a crime.
January 09, 2020 at 12:08 PM
6 minute read
Photo: DenisLarkin
Almost immediately after suspects were identified in the murder of Barnard College student Tessa Majors in Morningside Park last month, it was reported that the New York City Police Department was being cautious in its investigation due to the parallels between Majors' tragic death and the Central Park Five case: white, female victim; park setting; multiple black and brown suspects who are minors.
While the NYPD's caution is encouraging, it is disheartening that law enforcement agencies around the country have not enacted more systemic reforms during the past generation to guarantee that miscarriages of justice—like the wrongful conviction of innocent children—are never repeated.
The American criminal justice system has evolved in the last 25 years, but there is one rare law enforcement tactic that, if used more expansively, could bring us closer to ensuring that no innocent person is ever convicted of a crime: the use of an ombudsman of sorts to review—in real time—every felony-level violent-crime investigation by local prosecutors, who oversee roughly 90% of all criminal cases in the United States.
This ombudsman would be a prosecutor versed in the primary causes of wrongful convictions, including the tell-tale signs of police corruption and the tunnel vision psychology that so often infects criminal investigations. (Ideally, she would be from another office or agency, or even from outside the government, but this is unlikely, given the practical and political realities.) For these cases, she would review the evidence, techniques, and strategies of her colleagues as they prepared to present a case to the grand jury for indictment.
If this neutral prosecutor had concerns about the integrity of the evidence, she would convene a roundtable review by senior colleagues that would effectively halt an investigation until all involved were comfortable proceeding. Her concerns would be documented and become part of the official file.
We have worked in and around the criminal justice system for decades, one of us as a public corruption prosecutor with the Manhattan DA's Office, the other as an investigative journalist and private investigator, and we have witnessed firsthand the devastating effects wrongful convictions have on the lives of the innocent.
The investigations firm where we work now, QRI, is routinely hired by criminal defense lawyers, organizations who fight wrongful convictions, and plaintiffs who sue government agencies for violating their civil rights.
To be sure, there has been meaningful reform in the past two decades, from both inside and outside the government.
Some county prosecutors' offices, including the New York County District Attorney, have formed conviction integrity units, whose mandate is to reinvestigate their own cases where it appears that mistakes or misconduct led to a wrongful conviction. Perhaps the most progressive jurisdictions on this front are in Dallas, Texas and Brooklyn, New York. When warranted, these units vacate bad convictions.
In the private sector, organizations like the Innocence Project use DNA and other evidence to exonerate people who have spent years in prison for crimes they did not commit. Often, such groups coordinate with conviction integrity units to reinvestigate cases. Some of these organizations also pursue reforms to address the principal causes of wrongful convictions: eyewitness misidentification, false confessions, and junk science, among others.
But many of the reforms that are sought are reactive: correcting wrongful convictions, usually years or decades after the fact, instead of preventing them.
There are informal checks in place within DA's offices now that sometimes correct mistakes in real time, but mostly they come from individual initiative—a judge who orders the investigation of a mendacious detective, say, or an Assistant District Attorney acting on a hunch.
Some district attorneys have taken more concrete steps to prevent injustice. Stephanie Morales, the Commonwealth's Attorney for Portsmouth, Virginia, has hired a veteran homicide detective to double-check the work of police investigators on some cases.
And for the last 10 years, the Manhattan DA's Public Corruption Unit, which is responsible for investigating police officers and public servants suspected of violating the public trust, has subjected every potential grand jury presentation to a roundtable review.
Typically, the lead prosecutor presents the evidence and her colleagues poke holes in the case. In order for it to proceed to the grand jury, a majority of the unit's attorneys must agree. Why? Because the District Attorney does not want to risk being wrong when he indicts a police officer or a public official. Use of this tool should be expanded.
If a check like the one we are proposing had been in place in 1989, when the New York City Police Department and the Manhattan DA's office were investigating the Central Park Five, a roundtable of veteran prosecutors with a mandate to cast a skeptical eye on the investigation might have picked out inconsistencies in the defendants' confessions and delayed the indictment process long enough to identify Matias Reyes, whose confession years later was corroborated with DNA evidence.
Arguably, in 1989, these precautions may not have been feasible. Prosecutors were overworked, and there was neither the political will to make such reforms nor the widespread public perception that reform was needed.
But times have changed. There were 287 murders in Manhattan in 2018. That's almost 90% less than there were three decades ago. Senior prosecutors handle far fewer serious cases than they once did. Presumably they have the capacity to present those cases for "evidence integrity" review where warranted, prior to presenting the case to a grand jury.
Despite plummeting crime rates, law enforcement officers continue to afford defendants who are not police officers or politicians with few explicit safeguards against a wrongful conviction. Except where DNA evidence is recovered linking a suspect to a crime, detectives and prosecutors continue to rely, as they must, largely on cooperating witnesses, confessions, and witness identifications—investigative tools that are highly susceptible to error and manipulation—to make cases.
New rules governing interrogations and identification procedures (mandating that such procedures be recorded, for example) arm the defense with better means to challenge a false confession or mis-identification. But the onus is still on the overworked and under-resourced defense bar to mount an effective challenge.
Until we shift that onus to the prosecutor, there is still a grave risk that suspects will be convicted of crimes they did not commit. We pay politicians and police officers to protect our interests. Shouldn't we afford private citizens the same protections we afford them?
Charles Linehan is a managing director at QRI, a private investigations firm. He was a prosecutor with the Manhattan DA's office for 15 years and deputy chief of the public corruption unit. Tyler Maroney is co-founder of QRI. He was previously the managing partner of Mintz Group's New York office and worked at Kroll.
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