Monday, November 30, 2009

Age of Innocence Coming to NYS

New York's judges and our State Senate may be ushering in an age of innocence with groundbreaking efforts to allow defendants to appeal their convictions on the grounds that they were innocent of the charges against them.

Actual Innocence

While being innocent may not seem to be an exotic defense to most people who are not involved with the criminal justice system, our nation's legal history forbids the use of innocence as a defense at the appellate level. There are New York judges and members of the New York State Senate that are starting a new trend of allowing "actual innocence" as a an appellate claim.

Generally, a defendant seeking to reverse a conviction must prove that the proceedings within the judicial system violated the defendant's constitutional rights in order to earn the reversal. Often, the presentation of new evidence of innocence is not permitted unless the defendant proves that the evidence would have been impossible to present at the original trial. The basis for this approach of prohibiting actual innocence as a defense in the theory that our judicial system needs and values finality. If convicted defendants were permitted to re-argue their innocence at every level, prosecutors would essentially be required to convict defendants three or four times in order to be certain that the guilty verdict would prevail. The sentencing could be equally confused by endless appeals on the grounds of actual innocence.

The Supreme Court of the United States took an extreme view of the limits of actual innocence in 1994. In that year, they ruled by a 6-3 vote that a defendant's actual innocence claim, even when endorsed by the statements of the state that sought his conviction, was not a proper basis for an appeal. To add to the drama of that 1994 case, the defendant was executed by the state of Texas in the early days of 1995 after losing the appeal in 1994. In essence, the Supreme Court ruled that being innocent is not an appellate defense even if the prosecutors tell other juries in other cases that you are innocent in order to convict other defendants of the crime for which you are scheduled to be put to death. The state of Texas, in the 1994 case, even argued in another trial that the executed defendant was unaware that the actual murder had a weapon in the moments prior to the crime in question and that the executed defendant was not in the building with the victim at the time of the killing.

One Supreme Court Justice has stated that executing a defendant known to be innocent is very similar to murder by the state. The 1994 case referenced above demonstrates how an innocent defendant can be executed nonetheless.

Jesse DeWayne Jacobs was executed on January 4, 1995, despite the fact that Texas prosecutors knew that he did not shoot Etta Urdiales in 1986. In speaking to the jurors that would sentence Jacobs to death, Montgomery County District Attorney Peter Speers said, "The simple fact is that Jesse Jacobs and Jesse Jacobs alone killed Etta Ann Urdiales." However, another prosecutor said that Jacobs' sister, Bobbie Jean Hogan, actually killed Urdiales. At Hogan's trial, the prosecutor also said that Jacobs "[didn't] know that Bobbie had a gun." Texas convicted Hogan of involuntary manslaughter in the Urdiales killing, and Hogan received a ten year sentence. Nevertheless in Jacobs v. Scott, No. 94-7010, the U.S. Supreme Court, by a 6-3 vote, allowed Texas to execute Jacobs. Jacobs was killed by lethal injection on January 4, 1995.
Even in light of this new evidence, Texas Attorney General Dan Morales refused to acquiesce to a new sentencing hearing, relying on Supreme Court precedents that limit death row inmates to raising constitutional questions on appeal. Since "the prosecution's subsequently stated belief that Hogan was the trigger person is not new evidence, newly discovered or otherwise," Morales asserted that Jacobs' death sentence should stand. Two different persons were convicted for shooting the same person. Upon review, the United States Court of Appeals for the Fifth Circuit refused to overturn Jacobs' death sentence, holding that "it is not for us to say" that the jury had made a mistake. The Supreme Court denied review, with Justices Stevens, Ginsburg, and Breyer dissenting. Stevens wrote, "It would be fundamentally unfair to execute a person on the basis of a factual determination that the state has formally disavowed. I find this course of events deeply troubling." Stevens was particularly moved by the fact that the State itself vouched for the recantation of Jacob's confession.
Texas had full knowledge of the fact that Jacobs was not guilty of the crime that he was sentenced to death for committing. Texas sentenced the person who actually killed Urdiales to ten years in prison, while executing Jacobs.

New York's Age of Innocence

In New York State, two recent court decisions have endorsed the concept of actual innocence as an appellate claim, and the New York State Senate has begun to pursue legislation that would create an actual innocence defense.

One of the decisions, issued on November 9th of this year, states that the appellate judge was persuaded by the defendant's submission that the defendants was innocent, and the judge follows that finding with a dismissal of the conviction with prejudice (meaning that the defendant cannot face a new trial for the crime in question). In July of this year, a similar case resulted in the tossing aside of a conviction in New York State. Both defendants had spent more that a decade imprisoned for crimes that they did not commit (18 years and 12 years, respectively), and both were released based on "actual innocence" rather than constitutional violations.

In October of this year, members of New York State Senate introduced legislation entitled the Actual Innocence Act of 2009. The legislation, if enacted, would establish the appellate claim of actual innocence for convicted defendants in New York State and prevent the abuse of law by permitting judges to ignore evidence of actual innocence if the defendant intentionally withheld evidence of his or her own guilt during the trial. “Prolonged and unnecessary incarceration of the innocent is detrimental to all - the wrongly incarcerated, society, the criminal justice system and the victim. I can only hope that the proposed legislation ensures that others wrongly incarcerated like me, never have to suffer like I did in securing their freedom through the criminal justice system,” said Marty Tankleff, who was wrongfully convicted for the murder of his parents based on a false confession.

The most important "actual innocence" effort now is to promote the passage of this legislation.

Monday, November 23, 2009

Taking Authority Over Authorities

Last week, New York State took a major step forward toward government accountability by establishing oversight over most of the nearly 1,100 authorities that have governed in our state for decades without checks and balances.

Authorities - The Shadow Government

Authorities in New York State operate as if they are self-contained independent governments. They collect fees and issue bonds. They often have layers of their own bureaucracy and have, until now, never been forced to operate in a transparent manner or face the scrutiny of any other part of the government. These authorities are often referred to as a "shadow government" because of their enormous power and lack of oversight by other entities.

There are many estimates of the number of authorities operating in New York State, but the New York State Comptroller's office has suggested that the total number approaches 1,100. Some of the most well-known and most important are the Port Authority (which manages each of the major New York City metro areas airports as well as several bridges and tunnels), the Metropolitan Transportation Authority (which manages New York City's subways and buses), and the Dormitory Authority (which builds all of the public hospitals and higher education buildings across New York State).

In total, these authorities have built up a debt load of $150 billion and are key sources of employment and governance within our state.

Oversight From Albany

In a major development that changes the shadow government into a set of quasi-governments that are accountable to the state government in Albany, Governor Paterson signed legislation last week that brings the authorities out of the shadows.

While some experts have suggested that reform must go farther than simply demanding accountability and must include reducing the number of authorities as well as limiting their power, the first step is a necessary and valuable part of improving the overall quality of government and the level of accountability in our state.

The reform legislation will:

1) Establish the creation of an independent Authorities Budget Office to oversee authority operations
2) Allow for Comptroller review of contracts for more than $1 million that do not result from a competitive bid process
3) Mandate enhanced financial reporting, mission statements and measurement reports by public authorities, so that the State and the public know what authorities are doing, as well as their financial condition
4) Strengthen the rules governing the disposal of property by public authorities to prevent the give-away of public property to private developers
5) Strengthen the rules governing contact between lobbyists and employees of public authorities
6) Regulate the formation of subsidiary corporations and the issuance of debt by subsidiaries in order to place limits on the amount of debt issued by those corporations
7) Require board members of a public authority to perform their duties in good faith, in the best interest of the authority, its mission and the public in order to ensure that public authorities act responsibly
8) Create a Whistleblower Access and Assistance Program to protect those individuals who report wrongdoing.

With improvement in Albany still necessary, we are pleased to see Albany starting to take control of the authorities that play such a major role in our lives.

Monday, November 16, 2009

The Terrorists are Coming! and GED's are Not Coming

Last week, we learned that September 11th conspirators captured by the US government will face a criminal trial in lower Manhattan. We've also learned recently that New York State and New York City are the worst performing jurisdictions in the US in terms of GED passing rates and GED preparation.

Manhattan Hosts the Terrorists

The President has been criticized by many Republicans and by some members of the families of the September 11th families for choosing to prosecute the September 11th conspirators in Manhattan. While the tragedy of September 11, 2001 remains a fresh memory and an unhealed wound for so many Americans and for a large number of New Yorkers, the tragedy of George W. Bush's mishandling of the aftermath of the tragedy remains front in center in our memories as well.

President George W. Bush promoted and supported the use of torture against those captured in the post-September efforts to combat Al Qaeda. He created military courts as venues for prosecuting captured conspirators. He had foreign captives taken to secret prisons outside of the US in order to escape the requirements of the US Constitution related to accused criminals.
The Bush Record is a potent ingredient in the Obama decision to bring these terrorists to Manhattan. Instead of running from the US Constitution and violating international law, President Obama is boldly re-asserting America's role in the world as an example to all nations. He is demonstrating that we are a nation that follows its own laws and believes that it can provide its enemies with guarantees of human rights protections while also holding the world's worst terrorists accountable for their actions.

Manhattanites should take pride in being the venue for the re-emergence of the US as a world leader in the rule of law, human rights, and justice. When these terrorists receive their sentences, they should be sentenced in Manhattan. We are ready for justice to flow down on these terrorists like a mighty stream and wash away both the stain of the Bush abuses and any lingering doubt amongst Americans regarding whether our criminal justice system is adequate in the age of Al Qaeda.

GED Disappointment

New York City is failing the GED. With enormous numbers of New Yorkers living without a high school diploma, the failures of New York City are creating hurdles to GED test-taking and resulting in very few successful GED testing performances.

As stated in the New York Daily News:

Although 1.6 million city residents older than 16 are not in school and lack a high school diploma, only 28,000 took the high school equivalency test last year to get a General Equivalency Diploma. Just half of the test-takers passed. Statewide, just 60% test-takers passed - making New York's pass rate dead last.

A recent Community Services Society (CSS) report found that there is no single phone number or Web site to find a program or test site, no citywide data that track which programs work and no link between funding and success. "There are really no standards for the prep courses," said David R. Jones, president of the CSS. "Even somebody who couldn't pass the GED themselves could be an instructor."

New York City needs a coordinated effort to draw New York City residents into GED programs, drive them toward the test, and get them positioned to pass the test. If our NYC schools are going to leave more than 1 million of our residence without a high school diploma, our city must provide its residents with a path to opportunities, and passing the GED is a key place from which our city's residence can launch themselves forward. Thus far, New York City is failing.

Monday, November 9, 2009

Humbled Emperor Stumbles to Victory

After spending $100mm on his campaign, well over $200mm attempting to buy support through contributions to non-profits, and changing to City Charter to serve his personal political interests, Mayor Bloomberg won re-election by less than 5 percentage points.

Twelve Is Enough

Mayor Bloomberg was aggressive and dishonest in his campaign against Bill Thompson. His behavior is likely to lead to difficulties in governing for the Republican Mayor of a Democratic city (Bloomberg is not a registered Republican but paid the Republican Party to allow him to run as a Republican for a 3rd term after winning his first term as a registered Republican and his second term as an independent). His narrow victory will embolden his opponents and reduce the enthusiasm of his supporters, such as City Council Speaker Christine Quinn.

In the case of Quinn, her support for the Mayor and her support for the extension of term limits may make her return to the Speaker's chair uncertain. The City Council may need to choose new leadership to reflect the will of the voters as expressed last week.

Oddly, Bloomberg is already behaving as a more humble Emperor than we've seen since his first election in 2001. He requested a meeting with the newly elected Public Advocate Bill de Blasio, despite the fact that he has repeatedly called for the elimination of the position of Public Advocate. Bloomberg has also sought a meeting with newly elected Comptroller of the City of New York, but John Liu chose not to meet with the Mayor and to proclaim the New York City had no monarch.

Regrets and Anger

We find it unfortunate that the President of the United States refused to assist the candidacy of Bill Thompson. The first African American President of the United States worked very hard (but unsuccessfully) in the re-election bid of the Governors of New Jersey and the Virginia Governor's race. Both of those Democrats are white, and Thompson is African American. Yet, the African American candidate, who was unable to get the support of the leader of the Democratic Party, likely would have won the Mayor's race if he had been given that support. One wonders whether the President will be held accountable for his failures as leader of the Democratic Party and his particularly conspicuous anti-African American approach to Bill Thompson and New York Governor David Paterson - before he failed to work to elect Bill Thompson in NYC, the President demanded that David Paterson choose not to seek re-election as Governor of the State of New York.

Mayor Bloomberg was successful in preventing many traditional pieces of the Democratic Party (unions, African American clergy, etc.) from supporting Thompson. But, the voters were more supportive. Thompson won Brooklyn and the Bronx. Here at Manhattan Viewpoint, we are embarrassed to say that Manhattan's failure to hold the Mayor accountable for his failures as a leader led to his re-election.

Yankees Win Their 27th Title

The Yankees had spent one year outside of the post-season, six years out of the World Series, and nine years without a World Championship, but they captured their 27th title last week. For a franchise that has more championships than any professional sports team, the latest title seems long overdue and more appreciated than the late-1990's titles that seemed to arrive on schedule each October. The first Yankees title won in November left many of us wiping tears of joy and dreaming about how wonderful it would be to enjoy this same feeling again in 2010.

Monday, November 2, 2009

After Yesterday's Marathon, the Marathon Mayoral Race Ends Tomorrow

Voter turnout will determine who will lead our city for the next four years. It is imperative that you and everyone you know casts votes tomorrow.

Surprisingly Dishonest Campaign by Mayor Bloomberg

Mayor Bloomberg did not surprise us by spending more than $100 million in his efforts to secure a 3rd term for himself. He did surprise use by focusing nearly all of the $100 million attempting to tarnish the reputation of Bill Thompson, a man Mayor Bloomberg said was the best Comptroller in the history of New York City.

As the New York Times pointed out days ago, "Both the mayor and the comptroller have misrepresented each other’s records, but Mr. Bloomberg has taken the biggest liberties."

Bloomberg's one hundred million dollars of campaign spending focused on spreading false information about his opponent is consistent with the cynical manner in which he fought to reverse two referenda creating term limits; the racially discriminatory manner that he has promoted the abuse of stop-and-frisk tactics in minority communities; his refusal to accept food stamp assistance from the federal government; his regressive taxation obsession; and his invocation of Detroit when asked if he was comfortable with Rudy Giuliani's race-baiting campaign rhetoric of Bloomberg's behalf.

Voting Imperative

As we say at every election:

It has long been a cliché to many, but it is a truth that one cannot ignore. For many of us, our ancestors died to give us the right to vote. To squander that vote or to relinquish it because of inconvenience would be obscene, whether we have faith that our individual votes will shape the outcomes of elections or not. Because the 15th Amendment (1870) and the Voting Rights Act (1965) were victories secured by the blood of our ancestors, every election day is a sacred day, and we show our respect for those who made our votes possible by going to the polls and by encouraging everyone we know to join us in that sacred activity - tomorrow and every election day of any sort.


Two recent incidents involve NYPD officers allegedly driving while intoxicated at the time that they killed New Yorkers with their vehicles. In both cases, the officer in question refused to take a breathalyzer test. In both cases it was at least 5 hours before a warrant could be obtained and blood drawn for a blood-alcohol test.

It seems that reform is needed in this area. Killers with familiarity with the rules may be able to escape successful prosecution through the use of the refusal to take a breathalyzer test and allowing the passage of many hours to allow the body to eliminate the evidence of the alcohol from the bloodstream. NYPD officers should not be able to kill our fellow New Yorkers without being held accountable, and the system for testing the blood-alcohol level of a killer should be streamlined to hold killers accountable.