Wrongfully Convicted Get Support From AG's Proposed Bill

, New York Law Journal

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Eric T. Schneiderman
Eric T. Schneiderman

Attorney General Eric Schneiderman said Wednesday he will file legislation allowing people who were wrongfully convicted of a crime to sue New York State, even if they confessed or otherwise helped "bring about" their own convictions.

Advocates of the attorney general's proposed change said it would remove a significant roadblock for people seeking restitution for their arrest, prosecution and imprisonment for crimes they did not commit.

Ironically, the bill could make it more difficult for the attorneys in Schneiderman's office to perform one of the attorney general's principal functions—defend the state against lawsuits.

Steven Banks, attorney-in-charge of the Legal Aid Society of New York City, said the Schneiderman legislation would properly make it easier for some wrongfully convicted people to pursue damages against the state.

"The role of a government lawyer is to do the right thing, which is exactly what this bill does, even though by facilitating access to justice, there will be more of these actions for the attorney general's office to defend," Banks said in an interview.

Schneiderman, who is up for reelection this year, said his Unjust Imprisonment Act would amend §8-b of the Court of Claims Act, which states people can sue for restitution only if they can prove innocence and "did not by [their] own conduct cause or bring about ... conviction."

Schneiderman said his bill will stipulate that people who are exonerated can still pursue a lawsuit if they pleaded guilty or confessed and cannot prove that their admissions were the result of coercion or duress.

In an appearance at John Jay College in Manhattan, Schneiderman said the amended version of the Court of Claims Act would address the "all too common" occurrence where people confess to crimes they did not commit, and then find they cannot sue the state if they are later exonerated.

"It doubly victimizes people who acted out of fear, had a serious mental or psychological problem, or were simply too young to know better, that they admitted doing something they did not do," Schneiderman said. "A statute that allows some wrongfully convicted individuals to seek restitution but denies that legal right to others is an unjust and unequal application of the law."

Read Schneiderman's remarks.

Schneiderman said his legislation would also:

• Increase to three years from two years the time to file a damages claim based on a constitutional violation or exculpatory DNA evidence.

• Allow litigants who fail to personally verify their claim a new six-month period to correct it or fix other technical errors.

Schneiderman said the verification-of-claim provision stems from difficulties that Fernando Bermudez has had with his claim against the state for being incarcerated for 18 years on a wrongful murder conviction in Manhattan (NYLJ, Feb. 23, 2011).

While Bermudez signed a statement declaring that he had been wrongfully convicted, he did not personally verify his claim. Schneiderman said Bermudez did not correct the error, despite warning from the attorney general's office, and the A.G. now must seek dismissal of his claim outright.

Schneiderman said his legislation, if approved, would give Bermudez and others like him six months going forward to fix any verification errors.

Advocates for criminal defendants say otherwise innocent people sometimes confess to crimes they did not commit because they felt coerced by their interrogators, were young and immature or were simply frightened.

Of the 27 people in New York who have had their convictions reversed because of DNA evidence since 1991, at least 10 made confessions or false self-incriminating statements, according to the Innocence Project at the Cardozo School of Law.

Schneiderman announced his proposed bill at a breakfast program sponsored by John Jay's College of Criminal Justice to address issues facing prisoners reentering society.

State Assemblyman Joseph Lentol, a Brooklyn Democrat who chairs the Assembly's Codes Committee, said he will sponsor the bill in the Assembly. He said the bill should not raise the concerns of district attorneys as recent cases have done by seeking to change police and prosecutors' procedures. Police misconduct was cited as a major contributing factor to wrongful convictions in a New York State Bar Association study of the issue (NYLJ, April 7, 2009).

Lentol said it is unfair to continue to block the wrongfully convicted from making claims based on the fact they gave false confessions or made self-incriminating statements.

"Somebody confessed to the crime, and courts have said that is a barrier to even getting into court to sue for damages," Lentol said in an interview. "So how do you compensate a person who has spent 20 years of their life wrongfully imprisoned and they cannot even get into court? What do you say, 'Sorry buddy' and give them $50 say, 'You can go home now?' I don't think so."

State Senator Michael Nozzolio, the Seneca Falls Republican who chairs the codes committee, did not respond to a phone message about the chances Schneiderman's bill has in his chamber.

A spokeswoman for Schneiderman said the attorney general was seeking a Senate sponsor.

Two attorneys who have successfully represented wrongfully convicted clients against the state, Thomas D'Agostino in Buffalo and Bruce Barket of Barket, Marion, Epstein & Kearon in Garden City, both said the Schneiderman bill would treat exonerated convicts more fairly.

"You just have people with different intelligence levels, people with different tolerance levels in terms of stress," D'Agostino said "Maybe if you talk to a psychiatrist or a psychologist they can explain why false confessions happen. But it's clear that they do happen, more than we'd like to think."

D'Agostino successfully pursued a claim against the state on behalf of Anthony Capozzi, who was released in 2007 after serving 20 years for being the purported "Delaware Park Rapist" in Buffalo. DNA evidence linked the crimes to another man, and Capozzi reached a $4.25 million settlement with the state in 2010.

Barket said the Schneiderman bill would comport the Court of Claims Act with the Court of Appeals' finding in Warney v. State of New York, 16 NY3d 428 (2011) in which the judges said a man who was exonerated after confessing to murder could still seek restitution for false imprisonment.

"It makes sense," said Barket, who represented Martin Tankleff in his wrongful conviction action against the state. Tankleff, who was convicted for killing his parents on Long Island in Suffolk County, won a $3.37 million settlement as his trial against the state for damages was about to begin (NYLJ, Jan. 8).

Governor Andrew Cuomo's office did not respond to a request for comment.

The attorney general's office declined to release a copy of the proposed bill Wednesday, saying it had not yet been filed with the Legislature.

What's being said

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    toot, toot, wrongful conviction express coming down the tracks. Mr. AG, how about checking out the FZ Express Train.

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