Brooklyn Bar Association discusses wrongful convictions and actual innocence

March 31, 2016 By Rob Abruzzese Brooklyn Daily Eagle

Wrongful convictions and actual innocence were the topic of Wednesday night's CLE seminar at the Brooklyn Bar Association. Pictured from left: Hon. Matthew J. D'Emic, Mark J. Hale, Karen A. Newirth, Hon. John M. Leventhal and Hon. Sylvia O. Hinds-Radix. Eagle photos by Rob Abruzzese

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When Ken Thompson took over as district attorney in Brooklyn in 2014, he immediately set up a Conviction Review Unit. Since its inception, there have been an unprecedented 19 convictions overturned.

As a result, debate about “actual innocence” has been at the forefront of the legal community and it was the topic of discussion at the Brooklyn Bar Association’s Continuing Legal Education (CLE) lecture Wednesday night.

“You want lawyers to understand that if one innocent person is incarcerated then that’s a tragedy,” said Associate Justice Sylvia Hinds-Radix, Appellate Division, Second Judicial Department. “We have to ensure that the system works to the benefit of everyone. There have been cases where people have been found innocent and released after they were in jail for 25 years, some for life.

“We want lawyers to understand that it is important to go in and win a case, but most of all we want to ensure that justice is served.”

Hinds-Radix moderated the lecture and she was joined by Hon. John M. Leventhal; Hon. Matthew J. D’Emic; Mark J. Hale, chief of the Brooklyn DA’s Conviction Review Unit; and Karen A. Newirth of the Innocence Project.

Hinds-Radix was the obvious choice to moderate the lecture as she authored the decision that established the idea of “actual innocence” in People v. Hamilton.

“That decision was the first time a court in the state ruled that there was a freestanding claim of actual innocence in New York and that a defendant who establishes his or her innocence with clear and convincing evidence is entitled to dismissal of the charges,” Hinds-Radix said.

Leventhal, who was on the same panel as Hinds-Radix during the People v. Hamilton trial, outlined how the U.S. Supreme Court and New York courts handle cases of actual innocence.

D’Emic, who recently overturned two past convictions (he released Vanessa Gathers in February and Andre Hatchett in March), discussed what he does when these types of cases come before him.

Hale and Newirth brought the outside viewpoint to the discussion and talked about how they prepare cases and get them in front of judges. Hale, who heads up one of the first conviction review units of its kind in the country, said that in 2 1/2 years, his unit has received 500 petitions. It has so far investigated 160 of those petitions, completed 60 of those investigations and 19 times they have asked the court to overturn a conviction.

Hale said that part of the process of getting to this point took a change of mindset that DA Thompson brought with him into the office.

“It shouldn’t just be, ‘We won the case and the jury decided,’” Hale explained. “It’s about prosecutorial responsibility. Your duty, your obligation, your reason for being is greater than winning or losing, it’s greater than just a batting average. We don’t work on a batting average; we work on doing justice. Frankly, the tolerance for that, the error rate for that is zero.”