The Difficulty Of Righting Wrongs

Attorney General Eric Schneiderman recently proposed legislation that would remove obstacles that make it difficult for the wrongly convicted to obtain financial compensation from New York State. His proposal is admirable. But attention also needs to be paid to the difficulty of getting wrongful convictions righted, not just financially compensated.

Twenty years ago, as an assistant United States attorney, I was part of a team of police officers and prosecutors who listened as a gang member admitted to his role in a 1990 murder at the Palladium Nightclub in Manhattan. The admission came grudgingly—but not for the usual reasons. The man willingly admitted to his involvement in numerous acts of violence and murder. When it came to the Palladium murder, however, he was slow to reveal his role. His hesitation was because two men, David Lemus and Olmedo Hidalgo, had already been prosecuted for the crime and were then serving sentences of 25 years to life.

At the time, I figured the system would correct itself—maybe not right away but certainly within a few months or a year. After all, it was a group of cops and prosecutors who had uncovered the possible miscarriage of justice.

I was wrong.

The Manhattan district attorney disputed the reliability of the confession, and a judge concluded that Lemus and Hidalgo belonged behind bars.

When I left the U.S. Attorney’s Office in 1998, a courageous NYPD detective with whom I had been working when I first heard of the Palladium murder badgered me into not letting the case rest. Although I was reluctant, I still harbored a belief that if more facts were brought to the DA’s Office, the prosecutors would correct the injustice.

I was wrong again.

After another 7 years, several reinvestigations by the DA’s Office, hundreds of pages of briefs, a small mountain of evidence exculpating Lemus and Hidalgo, and a full-blown evidentiary hearing including a public airing of the NYPD’s and prosecution’s investigative missteps, the DA continued to argue that the convictions were fine. Finally, in October 2005, a judge vacated the convictions. Yet still the DA insisted on retrying Lemus. He was acquitted. Hidalgo was spared a retrial because he was deported to the Dominican Republic.

I will refrain from rehashing more of the facts here, except to note that by the time Lemus and Hidalgo were released they had spent 13 years in jail. And by that time my view of the criminal justice system’s ability to deal with claims of wrongful convictions had been shattered.

Typically, claims of wrongful conviction are reviewed by the office that obtained the conviction and often the very prosecutor who handled the trial.

That just doesn’t work.

Even if you believe, as I do, that the overwhelming majority of prosecutors are fair and honorable, bias is hard to overcome. If you convince a jury that a defendant is guilty, you’re convinced too. Plus, admitting you committed an error is never easy. Even when a different prosecutor is called upon to review the case, they are evaluating a colleague, if not a friend, as well as evaluating the conduct of their own office and their own district attorney. All the while, the prosecutor knows that admitting error is akin to saying that the office directly or indirectly put the wrong person in jail. That is the system.

Over the past several years, there has been some improvement. For example, the Manhattan District Attorney’s Office now has a Conviction Integrity Unit where cases are reviewed without input from the trial team that obtained the conviction. That is a major and much welcome change. There are other examples of district attorney’s offices that have tried to be innovative in their approaches. But those offices remain the exceptions—a fact that is not just unfortunate, it can be tragic.

When presented with meaningful evidence that a conviction was possibly obtained in error or that a convict may actually be innocent, prosecutors need to get out of the business of judging themselves. Coming up with such a system is not hard to do. For a start, a group of district attorney’s offices might consider a pilot program to review one another’s cases. The New York State District Attorneys Association should be willing to administer such a program.

Something so simple, while not perfect, would make a real difference. Meanwhile, until the system is changed, people like Lemus and Hidalgo will continue to endure nightmares that are avoidable and that no amount of money can ever truly compensate.

Steven M. Cohen, former secretary to Gov. Andrew Cuomo, served as an assistant U.S. Attorney in the Southern District of New York from 1991 to 1998. He is currently a partner with the law firm Zuckerman Spaeder and the executive vice president and chief administrative officer of MacAndrews & Forbes.