Every prosecutor in New York agrees that the conviction of an innocent man is a grave injustice and is unquestionably unacceptable. Accordingly, the Office of the Erie County District Attorney employs a rigorously enforced standard before a case, especially a felony case, can be prosecuted: the credible evidence, which is likely admissible in court, must prove the offense charged.
We do not prosecute a felony case because a complainant made an allegation or a police officer arrested someone. Every assistant district attorney assigned to a felony case must independently and critically review it for its prosecutorial viability. The case is again reviewed by the assistant district attorney's supervisor. Should the grand jury vote to indict the defendant, the proposed indictment and its underlying proof is again reviewed before the defendant is formally accused and arraigned.
Our policy of critically and repeatedly reviewing cases at the pre-indictment stage has resulted in some cases being dismissed because the defendant is innocent. Since January 2011, my office has reviewed 4,764 potential felony cases for presentation to the grand jury or other disposition. Thirty-three of the defendants (0.7 percent) charged by the police were probably innocent. One such defendant was exonerated after indictment but well before trial. The remaining 32 defendants were exonerated before they were indicted by a grand jury.
None of the foregoing exonerations occurred after a wrongful conviction. None of the convictions obtained during my administration has been overturned because the defendant was innocent. My predecessor, District Attorney Frank J. Clark, served for 12 years (1997 to 2008) and none of the thousands of defendants convicted during his three terms has been exonerated as innocent.
In reality, it is the prosecutor who usually exonerates the wrongly accused, often without prodding from a defense attorney, and almost always well before a trial. Indeed, a critical review of every felony case, by professional prosecutors and at the earliest practicable stage of the proceedings (i.e. before indictment), prevents wrongful indictments and thus, prevents wrongful convictions.
Once a defendant is indicted, New York is one of the most difficult states in which to achieve a criminal conviction, precisely because of the rights already afforded to the defendant and because of the procedures already in place to prevent a wrongful conviction. A typical felony case will run a gauntlet of six separate judicial reviews before the conviction will be allowed to stand. Convictions are occasionally overturned by appellate courts, but usually because of procedural errors or because the trial court allowed the jury to hear evidence of guilt that "prejudiced" the defendant's rights. In New York, it is rare for a conviction to be overturned because of insufficient evidence, and rarer still for a conviction to be overturned because the defendant was innocent.
While no one can deny that wrongful convictions have taken place, their rate of occurrence has been obscenely exaggerated. In reality, wrongful acquittals are much more common than wrongful convictions. I can point to at least four trials this year alone in Erie County that resulted in an acquittal despite overwhelming evidence of the defendant's guilt. Post-indictment dismissals, usually because of technical procedural issues or because the court suppresses key prosecution evidence at the request of the defense, are more common still. Citizens are amazed to learn that under our legal system, the prosecution can rarely appeal a dismissal and can never appeal an acquittal.
Despite the infrequency of wrongful convictions and the procedures in place that prevent them, there are those who believe that more statutory reform is required. A thoughtful reading of the fine print, however, often reveals that the introduction of insurmountable procedural hurdles coupled with punitive sanctions is what is really intended by the so-called reform. The chief proponents of these Trojan horse statutes also neglect to mention that criminals will be the chief beneficiaries of the additional hoops through which the police and prosecutors must jump in order to obtain justice for crime victims.
I agree that the system is flawed, but in a manner that benefits the accused. I can accept that. Our system presumes a man innocent until he is proven guilty beyond a reasonable doubt. Ours is the greatest criminal justice system ever devised and I am proud to play a role in it. What I cannot accept is deliberate deception heaped upon an unsuspecting public. In my view, these so-called legislative reforms, offered under the pretense of preventing an injustice, are not intended to protect the innocent from wrongful conviction but are instead designed to shield the guilty from any conviction.