NYPD Declines to Appear at City Council Wrongful Conviction Hearing

09.23.16 By Innocence Staff

Derrick Hamilton at NYC City Hall (Sept. 23, 2016)

Derrick Hamilton at NYC City Hall (Sept. 23, 2016)

Press conference, NYC council hearing held to seek answers; NYPD did not attend

(New York, NY – September 23, 2016) – Despite pleas by wrongfully convicted New Yorkers for the New York Police Department (NYPD) to provide information regarding its policies for eyewitness identification and recording of interrogations, the NYPD did not attend a New York City Council committee hearing to which it was invited to share these details.  The council’s committees on Public Safety, and Courts and Legal Services held a joint hearing today in an attempt to learn whether the NYPD has mandatory written policies requiring the recording of interrogations in their entirety and evidence-based eyewitness identification best practices. In place of the NYPD, Elizabeth Glazer, Director of the Mayor’s Office of Criminal Justice, attended, but was unable to provide complete information about the NYPD’s use of these procedures that safeguard against wrongful convictions.
Today’s hearing was spearheaded by Council Members Rory I. Lancman (Queens) and Vanessa Gibson (Bronx), who chair the committees. Both council members, and their committee colleagues, expressed serious concern that the NYPD did not attend the hearing to proffer information on practices that can protect against the well-documented problems of false confession and eyewitness misidentification and subsequent wrongful conviction in New York City. It is still unclear what written policies for these practices are currently in place at the NYPD, although Glazer promised to provide these documents to the Council at a later date.
Glazer testified that all 76 of the city’s precincts are outfitted with equipment to record interrogations, but did not clearly state whether recording practices are mandated or only recommended. Of additional concern, in later sworn testimony, Brooklyn Criminal Courts Judge Mark Dwyer stated that in the last three years, he has heard cases in which evidence from interrogations were presented, but for which there was no complete recording of the interrogation.  
When asked about eyewitness identification best practices, Glazer volunteered that the NYPD does not employ two key evidence-based best practices: the double-blind administration of lineups and elicting an eyewitness statement of confidence, practices which are proven to reduce the risk of misidentification.  
Eyewitness identification procedures, at minimum, should contain the following practical, and cost-neutral best practices: the blind administration of photo and live lineups, which prevent officers from providing any unintentional cues that could influence a selection; instructions to the witness that an investigation will continue regardless of whether an identification is made; lineup fillers which match the eyewitness’ description of the suspect; and a confidence statement taken immediately after an identification is made to gauge the level of the eyewitness’ certainty. These best practices are proven deterrents to misidentification and are recommended by the International Association of Chiefs of Police, the American Bar Association, the National Academy of Sciences and used by law enforcement agencies throughout the country. Additionally, recording the entirety of interrogations protects against false confession by capturing the circumstances under which a confession was obtained. Nationwide, 18 states have adopted eyewitness identification best practices and 21 states require the recording of interrogations.  
In 2010, the NYPD announced a pilot program to electronically record interrogations, however many questions still remain following the department’s absence from today’s hearing. It is unknown whether the practice is currently mandatory in all 76 precincts, which crimes are recorded, whether the entirety of the interrogation is recorded and not simply the confession, among other uncertainties. Additionally, it is not clear whether the NYPD will implement the abovementioned mandatory eyewitness identification best practices. 
Numerous wrongfully convicted New Yorkers and their family members attended a press conference and today’s joint committee hearing to share their stories of wrongful conviction, but also to implore the NYPD to share information about these reform efforts and to implement them mandatorily, so as to prevent future miscarriages of justice. These impassioned calls for reform came from wrongfully convicted men such as Al Newton, who was misidentified and wrongfully convicted of a rape in the Bronx; Sharonne Salaam, the mother of Central Park 5 member Yusef Salaam, who was wrongfully convicted of rape due to a false confession; Shabaka Shakur, who was imprisoned for a murder in Brooklyn he did not commit due to a fabricated confession, that could not be decisively refuted because it was not recorded. Many others also attended to seek answers; and there was testimony at the hearing from several experts on the topics of false confession and misidentification, among them, Barry Scheck, of the Innocence Project; Dr. Jennifer Dysert, Associate Professor of Psychology at John Jay College; Dr, Saul Kassin, Distinguished Professor of Psychology at John Jay College; and Chief Bill Brooks, President of the Massachusetts Police Chiefs Association and executive board member of International Association of Chiefs of Police. 
In New York’s 29 wrongful convictions proven by DNA evidence, 14 involved false confession and in 15, eyewitness misidentification was a factor.  These are only the wrongful convictions that were overturned by DNA evidence, cases that the Innocence Project dedicates its work to overturning. In fact, the numbers balloon when tallying all of the state’s 217 wrongful convictions, of which misidentification contributed to 74 and false confession to 34, or some combination of the two. Of the state’s 217 wrongful convictions, 150 occurred in New York City.
Having in place mandatory best practices to protect against these common contributors to wrongful conviction will also strengthen public safety and deter costly settlements and awards that can result from miscarriages of justice. In New York’s 29 wrongful convictions proven by DNA evidence, the real perpetrators went on to commit 11 additional violent crimes, including three rapes, six murders and two other violent crimes. What’s more, lawsuits stemming from wrongful conviction have cost New York City tens of millions of dollars. New York City Comptroller Scott Stringer reported that, just last year, four of the top nine settlements paid out by the city involved wrongful conviction and totaled nearly $30 million.   
“False confession and misidentification are the top contributors to wrongful conviction in New York; but, fortunately, law enforcement can mitigate these factors by recording custodial interrogations and using eyewitness identification best practices. Wrongful conviction not only harms the innocent, it’s a threat to public safety and it has cost our city millions of dollars. New York City cannot afford to wait for reform any longer and the City should mandate these practices at the NYPD immediately,” said Scheck, co-founder of the Innocence Project, which is affiliated with Cardozo School of Law 
“Wrongful convictions steal years from the lives of the innocent, endanger the safety of our communities and compromise the very foundation of our criminal justice system. It is imperative that we examine the practices in place to guard against convicting the innocent, especially at a time when innovations in technology, criminal psychology and forensics have enhanced law enforcement’s ability to determine guilt,” said Council Member Gibson, Chair of the Public Safety Committee. “No stone should be left unturned in pursuit of a fair justice system and I anticipate an ongoing discussion between the NYPD, the DA’s, and the Council on this important issue. I thank the Innocence Project and Legal Aid for their leadership and am proud to have so many outstanding partners join me in our efforts to protect innocent New Yorkers.”
“The mayor’s refusal to permit the NYPD to discuss how – if at all – it has implemented key recommendations of a statewide taskforce on preventing wrongful convictions further illustrates this administration’s continued unwillingness to meaningfully reform our criminal justice system and its disdain of transparency and accountability. The tragic result will be more innocent men and women convicted and incarcerated for crimes they didn’t commit; more actual perpetrators walking the streets to commit more crimes; and millions of dollars more taxpayer money eventually spent to compensate the wrongfully convicted,” said Council Member Lancman, Chair of the Courts and Legal Services Committee.
“I spent 21 years in prison for a crime that I did not commit based on the victim misidentifying me as the perpetrator. Today we know a lot more about the science behind eyewitness memory. There are proven techniques that can reduce the risk of misidentification; so the NYPD should make these practices its official policy to protect the innocent and make the criminal justice system more reliable,” said Newton, who was wrongfully convicted of a 1985 rape in the Bronx due to misidentification.
“My son, Yusef Salaam, was one of the Central Park Five – teenage boys who were wrongfully convicted of rape due to false confession. The judge and jury did not see the circumstances that led to the confessions. They didn’t see that the officers yelled and abused them, and made them think that the only way to escape the situation was to admit the crime. They didn’t hear the boys give details that did not fit the crime. But, I believe that things could have been different if police recorded the entirety of those interrogations – Yusef might not have lost five years of his life in prison, and the real perpetrator would not have remained free to rape and kill other women,” said Salaam. 
“I was convicted of murder based on evidence collected by Detective Louis Scarcella, who claimed at trial that I confessed to the crime during an interrogation. This was a lie, but there was no recording of the interrogation to prove that I was telling the truth. What happened to me was a tragedy, but it was an avoidable one. The NYPD needs to record the entirety of interrogations to ensure that what happened to me and so many other New Yorkers does not continue to occur,” said Shakur, who was wrongfully convicted of a 1989 double murder in Brooklyn, and spent 27 years in prison before being proven innocent. 
Join the conversation on Twitter #EndNyWrongfulConviction.

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