New York City Council
Committee on Public Safety
February 26, 2024

Good morning, Chairperson Salaam, and members of the Committee on Public Safety. My name is Gina Mitchell and I am the Attorney in Charge of Law Reform and Policy for Queens Defenders. Thank you for the opportunity to testify today.

 

Queens Defenders is a Public Defender organization in Queens, New York. Since, 1996, our lawyers have helped over 450,000 people in cases involving homicides and major trials, in treatment courts, domestic violence and youth felony parts and immigrants charged with criminal offenses. We have legal offices in Kew Gardens, Jamaica and we operate our Rockaway Community Justice Center (RCJC). The RCJC works with the office of Queens District Attorney Melinda Katz and community-based organizations, police, elected officials, civic leaders, and residents to provide restorative justice based solutions to crime.

 

The scope of the problem:  Wrongful Convictions

As of 2023, the National Registry of Exonerations has recorded 3,465 cases of wrongful convictions in the United States[1]. New York specifically has a serious wrongful conviction problem. More than 390 people have been exonerated in New York since 1989[2]. New York ranks as the third highest in the number of wrongful convictions in the nation, trailing behind Texas and Illinois. Every one of these exonerations represents a gross miscarriage of justice that should weigh heavily on each of us and motivate us to ensure that these failures do not happen again.

 

Of the approximately 390 exonerations in New York, Queens County has had 47 exoneration cases between 1992 and 2023[3]. In May 2020, the Queens District Attorney announced the creation of a new Conviction Integrity Unit that was created in January of 2020. As of May 5, 2020, the unit stated that they had received 46 cases for review. The cases that have been reviewed and which have resulted in convictions being overturned, tell a cautionary tale.

 

In November 2020, the murder conviction of Ernest “Jaythan” Kendrick, who had been incarcerated for nearly 26 years was vacated. Developments in DNA analysis were used to prove Mr. Kendrick’s innocence. This exposed the fact that the original identification witness’ evidence (a 10 year old child) was deeply flawed. Investigating police overlooked the fact that the young witness originally identified someone else when he viewed a live lineup that included Mr. Kendrick. Other flaws in the NYPD investigation led to a grave miscarriage of justice occurring in that case[4].

 

In March 2021, a state judge in Queens exonerated three men, Gary Johnson; George Bell and Rohan Bolt, and admonished prosecutors for withholding evidence that would have cast serious doubt on their guilt. These men spent 24 years behind bars before the case eventually fell apart[5]. This case resulted in the city having to pay a record $17.5 Million settlement to George Bell[6]. While the financial incentives for preventing wrongful convictions are clear, the moral imperative is even clearer. Each wrongful conviction represents a gross miscarriage of justice and a life squandered and stolen.

 

Similarly, in August 2021, the Queens District Attorney agreed to vacate a murder conviction for Carlton Roman who was incarcerated for 32 years. Mr. Roman was tried, convicted and sentenced to 43 and 1/3 years “for a crime based solely on the testimony of …two witnesses”.[7] Once again the NYPD investigation was found to be profoundly flawed.

 

As Public Defenders we bear witness to the systems and processes that lead to wrongful convictions that destroy lives. Many of these flaws relate to how the NYPD conduct their investigations which inevitably set the foundation and tone for the conduct of the entire prosecution of a case.

 

Mistaken eyewitness identifications

Eyewitness misidentification occurs when an eyewitness incorrectly identifies an innocent person as the perpetrator of a crime. According to the Innocence Project, 60% of DNA exonerations involve eyewitness misidentification[8]. Obviously, this statistic does not account for other cases where the wrongfully convicted person does not have the good fortune of having exculpatory DNA evidence upon which to base their legal challenge.

 

The Innocence Project has identified two factors that contribute to misidentifications: “Estimator variables are those outside the control of the criminal legal system. They include gaps in an eyewitness’s memory, how far away the eyewitness was from the crime scene, the level of stress or trauma the eyewitness experienced while observing the crime, visibility conditions, and challenges associated with cross-racial identification.”[9] However, they also refer to: “System variable are those controlled by the criminal legal system, such as law enforcement procedures related to recording an eyewitness’ memory, the administration of lineups and photo arrays, and more[10].”

 

Nationally, eyewitness misidentification played a role in 71 percent of wrongful convictions that were later overturned with DNA in the United States[11].

 

As Public Defenders we know that law enforcement often either do not understand or do not care about the way that the human memory functions and the inherent problems with identifications based on eyewitness testimony. Human memory is highly malleable and prone to suggestion and contamination[12]. Additionally, as Public Defenders we routinely see cases where lineups and photo array procedures are not recorded. In fact, most of our attorneys have never seen a recorded identification procedure in their careers because it is an unofficial norm that these procedures are not recorded. This is because the standard form that the NYPD complete for an identification procedure asks the witness if they will consent to the procedure being recorded. Invariably, the box for a ‘NO’ response is ticked with no further explanation. There is no incentive on the NYPD to encourage, support or facilitate the recording of identification procedures. This creates a perfect storm whereby it becomes increasingly difficult to scrutinize and assess the reliability and credibility of eyewitness investigations.

 

False confessions

False and coerced confessions continue to be a major contributor to wrongful convictions. While the average person might find it very difficult to understand why a person would confess to a crime that they did not commit, research demonstrates that due to a variety of law enforcement practices, false confessions occur regularly. Deceptive and coercive interview methods that include police manipulation; intimidation; force; and other coercive tactics such as isolation and police officers lying about evidence continue to be used to this day.

 

The ‘Central Park Jogger’ case involved clearly coerced false confessions: “That was a case [involving] five kids, 14, 15, and 16 years old, each of them [was] led to believe that he would get to go home if he confessed. Each one calculated – given that they had been there from 14-30 hours of interrogation under tremendous pressure – that it was in his own best interest to cooperate”[13]. Similarly, the Queens District Attorney in consenting to vacate the convictions of Reginald Cameron and Armond Mcloud acknowledged that their “confessions in a 1994 deadly shooting were unreliable because they were elicited by a detective connected with two other false confession cases.”[14] Manipulative, deceptive and coercive practices in police questioning are not a thing of the past. Queens Defenders attorneys continue to see these kinds of coercive police tactics used on our clients in 2024.

 

Specifically, we have urged state legislators to support legislation proposed by the #Right2RemainSilent campaign through the passage of legislation (S. 2800/A. 5891) that will codify young New Yorkers’ right to counsel before a police interrogation[15]. Currently, confessions in New York are only required to be voluntary to be used at trial. The reliability of a confession, including whether it was obtained through coercion and deception is not considered. Queens Defenders urges state legislators to support and pass S. 324, introduced by State Senator Zellnor Myrie, which would ban police deception in the interrogation room while requiring that courts evaluate the reliability of confession evidence before allowing it to be used.

 

Official police misconduct

The Innocence Project has noted that “[p]olice and prosecutorial misconduct is a leading contributing factor in a significant number of recorded exoneration cases since 1989.”[16] Police officers committed misconduct in more than a third of exoneration cases since 1989 according to the National Registry of Exonerations[17]. On November 8, 2021, the Queens District Attorney’s office moved to vacated 60 convictions for cases that “relied on work by three former New York Police Department detectives who were later convicted of perjury, sexual assault and official misconduct”[18].

 

The repeal of New York Civil Rights Law §50-a which required the concealment of disciplinary records of police officers from the public was an important step towards ensuring accountability in New York. Another positive development came in the form of the introduction of Criminal Procedure Law §245[19] which mandates automatic discovery disclosure to defense counsel including: “(d) The name and work affiliation of all law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto” and “(k) All evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf in the case, that tends to: … (iv) impeach the credibility of a testifying prosecution witness”. There now exists explicit appellate authority holding that underlying impeachment records are discoverable pursuant to this provision[20]. It is imperative that the city council and state legislators vigilantly protect the discovery laws in New York. Discovery is vital in ensuring that defense counsel can adequately represent and protect the rights of defendants and to guard against wrongful convictions. While some District Attorney’s offices have complained that discovery laws have overburdened their staff and resulted in high levels of attrition[21]; we must remain vigilant in our commitment to protecting discovery laws that are so fundamentally important in preventing wrongful convictions and the integrity of our legal system.

 

Additionally, Queens Defenders applauds the New York City Council for demonstrating leadership and overriding Mayor Adams’ veto on Introduction 586 and Introduction 538 known as the “How Many Stops Act”[22]. Despite the fact that the NYPD has been under federal monitorship for a decade because of their unconstitutional “stop question and frisk” practices, these patterns and practices persist. According to a recent federal monitor report at least 24% of stops made by Neighborhood Safety Teams were unconstitutional[23], and 97% were of Black and Latinx New Yorkers. In NYCHA, one-third of stops are unconstitutional and 70% of them are of Black New Yorkers[24]. This law will have a particularly important impact in Queens New York which is commonly referred to as “The World’s Borough” because of its status as the most ethnically diverse large county in the country.  As Public Defenders staffing the Queens criminal court arraignment part on a daily basis, Queens Defenders attorneys get a front row seat to the racial disparities evident in NYPD stops in our borough. Additionally, we have voiced concern about NYPD practices of targeting fake license plates which serves to criminalize poverty in our borough[25]. The passage of How Many Stops is an important step in holding the NYPD accountable.

 

Deeply flawed forensic evidence

The impact of so-called “junk science” on wrongful convictions can not be underestimated. The Innocence project reports that the misapplication of forensic science contributed to more than half of the wrongful conviction cases and nearly a quarter of all wrongful conviction cases since 1989. They specifically describe the following investigation methods as being deeply problematic: Bite mark analysis; Hair comparisons; Tool mark evidence; Arson investigation; Fingerprint analysis; Dog scent evidence; Comparative bullet lead analysis; Shaken baby syndrome diagnosis; Bloodstain pattern analysis. At Queens Defenders, our Homicide and major trials attorneys continue to see the use of many of these investigatory methods. Action is required to educate law enforcement, judges, prosecutors, forensic experts and other systematic actors as to “the limitations of certain forensic methods, and urge them to examine scientific evidence for accuracy and reliability”[26]. No person should ever be convicted based on unreliable and misleading pseudo-scientific evidence.

 

Racism and implicit bias in Policing

It is impossible to understand the way that race and implicit bias in policing impacts wrongful convictions, without taking a close look at US history. Both the Constitution and the Bill of Rights were written to apply only to “propertied white men”[27]. Furthermore, the earliest creation of a police force in America was motivated by the desire to monitor and control slaves and to ensure segregation and disenfranchisement of freed slaves[28]. The Innocence Project notes that it is not surprising then that: “Black people account for 40% of the approximately 2.3 million incarcerated people in the U.S and nearly 50% of exonerees – despite making up just 13% of the US population. This is in large part, because they are policed more heavily, often presumed guilty, and frequently denied a fair shot at justice.”[29]

 

Racism and implicit bias continue to impact police investigations to this day. In particular, Queens Defenders attorneys are deeply concerned about the increased use of facial recognition technology as method for identification of suspects. Increasingly, we see cases where the NYPD use facial recognition software to obtain an identification of an alleged perpetrator. The NYPD’s own website confirms that “Since 2011, the NYPD has successfully used facial recognition to identify suspects whose images have been captured by cameras…”[30]. The NYPD maintain that facial recognition is only used as an investigative tool and that it alone “does not establish probable cause to arrest or to obtain a search warrant, but serves as a lead for additional investigative steps”[31]. The reality is that this technique is often used in cases where a suspect can not be readily identified from footage or a still image because of the quality of the image or some other impediment. Facial recognition software is then used to obtain a “match”. What we commonly see is that law enforcement will then arrange a so-called “confirmatory identification” from a witness who has some prior knowledge of the suspect. The resulting “identification” is inevitably tainted by the use of deeply flawed facial recognition software and the circumstances of these so-called “confirmatory” identifications are often highly suggestive. The deficiencies of facial recognition technology in identifying black and brown people have been well documented[32]. By utilizing a flawed algorithm to make an initial (investigative) identification, any misidentification by the software inevitably flows through the entire identification procedure. Queens Defenders urges the Council to take action to limit and to regulate the use of facial recognition software by law enforcement in New York to prevent wrongful convictions.

 

Inadequate funding for Public Defenders

It is commonly noted that public defenders are overworked and underpaid. The profession is more than a job; it is a calling for practitioners committed to serving the least privileged and the most downtrodden members of our society. The Innocence Project notes that “lawyers who represent poor people often lack the resources necessary to investigate and defend against the evidence marshaled by robust police departments, prosecutor offices, and crime labs”[33]. The connection between wrongful convictions and lack of defense resources makes it painfully clear that justice can be bought for those who can afford it. Whilst Queens Defenders are committed to delivering excellent results for our clients, there are financial realities that cannot be ignored. We thank the New York City Council for joining our call to increase funding for public defenders[34] and we call on the Council to continue to advocate for increased funding for all public defenders as a strategy to prevent wrongful convictions that deeply undermine the quality of our legal system.

 

Conclusion

Queens Defenders urges the New York City Council to take urgent action to hold the NYPD accountable for their practices that contribute to and create wrongful convictions in Queens and across all of New York City. The core integrity of our criminal legal system is at stake. Thank you for your time and the opportunity to testify regarding this important matter of significant public interest.

 

Gina Mitchell
Attorney in Charge of Law Reform and Policy
Queens Defenders

[1] Equal Justice Initiative https://eji.org/issues/wrongful-convictions/ (accessed 2/20/2024) citing National Registry of Exonerations https://www.law.umich.edu/special/exoneration/Pages/about.aspx (accessed 2/20/2024).

[2] Latest data from the National Registry of Exonerations lists 393 cases from the State of New York.

[3] National Registry of Exonerations https://www.law.umich.edu/special/exoneration/Pages/about.aspx (accessed 2/20/2024).

[4] Queens District Attorney, Press Release “Queens District Attorney Melinda Katz file joint motion with defense to vacate murder conviction and release a man incarcerated for nearly 26 years” 11/19/2020 https://queensda.org/queens-district-attorney-melinda-katz-files-joint-motion-with-defense-to-vacate-murder-conviction-and-release-a-man-incarcerated-for-nearly-26-years/ (accessed 2/24/2024).

[5] Closson, Troy New York Times “They Spent 24 Years Behind Bars. Then the Case Fell Apart” 3/5/2021 https://www.nytimes.com/2021/03/05/nyregion/queens-wrongful-convictions.html (accessed 2/23/2024)

[6] Meko, Hurubie New York Times “City to Pay Record $17.5 Million Settlement After Wrongful Conviction” 11/16/2023 https://www.nytimes.com/2023/11/16/nyregion/queens-murders-exonerated-settlement.html (accessed 2/23/2024)

[7] Queens District Attorney, Press Release “Queens District Attorney to File Joint Motion with Defense to Vacate Conviction in Murder & Attempted Murder Case and Release a Man Incarcerated for 32 Years” 8/9/2021 https://queensda.org/queens-district-attorney-to-file-joint-motion-with-defense-to-vacate-conviction-in-murder-attempted-murder-case-and-release-a-man-incarcerated-for-32-years/ (accessed 2/24/2024).

[8] The Innocence Project “The Issues: Eyewitness Misidentification” https://innocenceproject.org/eyewitness-misidentification/ (accessed 2/22/2024).

[9] The Innocence Project, ibid.

[10] The Innocence Project, ibid.

[11] The Innocence Project, “Minnesota Adopts Landmark Eyewitness ID Law: New measure prevents wrongful convictions by requiring scientifically-based lineup procedures” 5/19/2020 < https://innocenceproject.org/minnesota-adopts-landmark-eyewitness-id-law/ >  (accessed 2/22/2024).

[12] Albright, Thomas D “Why eyewitnesses fail” Proc Natl Acad Sci USA, 2017 July 25; 114(30): 7758-7764 < https://www.pnas.org/doi/full/10.1073/pnas.1706891114> (accessed 2/22/24).

[13] Nesterak, Evan, “Coerced to Confess: The Psychology of False Confessions” Behavioral Scientist, October 21, 2014 https://behavioralscientist.org/coerced-to-confess-the-psychology-of-false-confessions/ (accessed 2/22/2024).

[14] Manna, Victoria, “Queens District Attorney vacates three wrongful convictions” 8/24/2023 Queens district attorney vacates three wrongful convictions (ny1.com) (2/24/2023).

[15] See an example of the problem discussed in The CITY “A Brooklyn teen refused to waive his Miranda Rights. But the NYPD’s Questioning Didn’t Stop There, Video Shows”, 10/12/2023 < https://www.thecity.nyc/2021/03/03/state-bill-to-give-new-york-kids-more-miranda-protection-nypd/> (accessed 2/22/2023).

[16] Innocent Project, “Official Misconduct” < https://innocenceproject.org/official-misconduct/#:~:text=Police%20and%20prosecutorial%20misconduct%20is,that%20are%20more%20heavily%20policed.> (accessed 2/22/2024).

[17] Innocence Project, ibid, citing the National Registry of Exonerations

[18] Davis O’Brien, Rebecca, New York Times “60 Criminal cases are thrown out because of 3 Detectives’ Misconduct” 11/8/2021 <60 Cases Are Thrown Out in Queens After Misconduct by 3 NYPD Detectives – The New York Times (nytimes.com)> (2/24/2024).

[19] Herein referred to as “the Discovery Laws”.

[20] See People v. Hamizane, 2023 NY Slip Op 23233 (2nd Dep’t, App. Term 2023); People v. Rodriguez, 77 Misc.3d 23 (1st Dep’t, App. Term 2022; Matter of Jayson C., 200 A.D.3d 447 (1st Dep’t 2021).

[21] Bromwich, Jonah E; Meko, Hurubie; and Ashford, Grace. New York Times  ”Why 3 Liberal New York D.As Want to Change a Law Backed by Progressives” April 25, 2023 https://www.nytimes.com/2023/04/25/nyregion/discovery-laws-ny.html (accessed 2/22/2024).

[22] This bill will require the NYPD to provide quarterly reports detailing information on level one, two and three investigative encounters between the police and civilians, including the race/ethnicity, age and gender or the civilian approached by the police, the factors that led to the interaction, and whether the interaction led to a summons or use of force incident. The first such report is due within 30 days of the quarter ending September 30,2024 per Bill Summary at The New York City Council https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=5725293&GUID=C4781093-1108-4E04-848D-473B2E47BD2E&Options=ID|Text|Other|&Search=Int.+586 (accessed 2/22/2024).

[23] Kilgannon, Corey, New York Times “ NYPD Anti-Crime Units Still Stopping People Illegally, Report Shows” June 5 2023 https://www.nytimes.com/2023/06/05/nyregion/nypd-anti-crime-units-training-tactics.html (accessed 2/22/2024).

[24] NYPD Federal Monitor, 17^th Report, 10/17/2022 < https://www.nypdmonitor.org/wp-content/uploads/2022/10/2022.10.17-Dkt.-894-Seventeenth-Report-of-the-Independent-Monitor.pdf> (accessed 2/22/2024).

[25] Lowens, Etha, AMNY “Op-Ed: Cracking down on fake license plates is criminalizing poverty” 8/7/2022 (accessed 2/22/2024).

[26] Innocence Project, “Misapplication of Forensic Science”< https://innocenceproject.org/misapplication-of-forensicscience/#:~:text=Misapplied%20forensic%20science%20contributed%20to,wrongful%20conviction%20cases%20since%201989.>  (accessed 2/22/2024).

[27] ACLU “The Bill of Rights: A Brief History” 3/2/2022 https://www.aclu.org/documents/bill-rights-brief-history (accessed 2/22/2024).

[28] Waxman, Olivia. TIME “How the U.S. Got Its Police Force” 5/18/2017 https://time.com/4779112/police-history-origins/ (2/22/2024).

[29] Innocence Project, “How Racial Bias Contributes to Wrongful Conviction” 7/17/21  https://innocenceproject.org/how-racial-bias-contributes-to-wrongful-conviction/ (accessed 2/22/2024).

[30] NYPD, “NYPD Questions and Answers Facial Recognition” https://www.nyc.gov/site/nypd/about/about-nypd/equipment-tech/facial-recognition.page (accessed 2/22/2024).

[31] NYPD, ibid.

[32] Johnson, Thadeus L and Johnson Natasha N. Scientific American “Police Facial Recognition Technology Can’t Tell Black People Apart: AI-powered facial recognition will lead to increased racial profiling” 5/18/2023 https://www.scientificamerican.com/article/police-facial-recognition-technology-cant-tell-black-people-apart/#:~:text=Own%2Drace%20bias%20creeps%20in,recognize%20people%20of%20other%20races. (accessed 2/22/2024)

[33] Innocence Project, “Inadequate Defense” < https://innocenceproject.org/inadequate-defense/> (accessed 2/23/2024)

[34] Kaye, Jacob, Queens Eagle “Council calls on mayor to increase funds for public defenders” 6/21/2023 https://queenseagle.com/all/2023/6/21/council-calls-on-mayor-to-increase-funds-for-public-defenders (accessed 2/23/2024)