The disastrous New York justice system

Frank Clark answers the question softly, but without hesitation. "Oh, yes," he says. Innocent people have been put to death. Lawyers routinely make that claim, of course, but they usually labor for the defense. As Erie County's district attorney, Clark works the other side of the street, charged with punishing rapists, killers and other criminals.

Clark is as discomfited as anyone else at the thought of an innocent man being strapped into an electric chair or onto a gurney, thence to absorb the jolt or injection that will deliver him to his unjust fate. Only once has Clark sought the death penalty. The jury opted for prison. But the DA is also a professional, and in the fast-spreading recognition about wrongful convictions - whether they involve the death penalty or not - Clark perceives a rising threat to the American criminal justice system. Public confidence is its foundation, and with every revelation of an innocent person cast into the hell of prison, the foundation weakens.

In New York, that foundation is under severe strain. The state has one of the nation's most troubling records on wrongful convictions and is also among the worst at responding to it. With at least 23 people cleared through use of post-conviction DNA testing, New York has the third-highest number of people exonerated, but it has done little to keep the law from ensnaring more innocent residents.

That number should be kept in perspective. There are nearly 63,000 state prison inmates and 30,000 local-jail prisoners in New York State, put there by hard-working police and court personnel and often by careful jurors, and the vast majority of those prisoners deserves to be behind bars. But each wrongful conviction is a failure of the justice system, and the price paid by innocent people is severe.

Clark knows about wrongful convictions. In the space of one year, he was confronted with facts that upended convictions the DA's office had won in two shocking, high-profile cases. Anthony Capozzi, convicted of rapes he did not commit, and Lynn DeJac, pronounced guilty of murdering the daughter she did not kill, served a combined 35 years in prison before authorities caught up to the truth.

In each case, the chasm separating wrongful conviction from eventual exoneration was bridged by the microscopic markers known as deoxyribonucleic acid: DNA. In Capozzi's case, another man's DNA proved beyond dispute that Capozzi was not the Delaware Park Rapist. It was his bad luck that, in 1985, before DNA testing was possible, he bore some resemblance to Altemio Sanchez, a sociopath who would soon metamorphose from rapist to serial killer.

Sanchez, betrayed by his own DNA as the Delaware Park Rapist and the Bike Path Killer, is now serving a prison term of 75 years to life. Capozzi was imprisoned for more than 21 years for crimes Sanchez committed. But for DNA, he could have served 14 more before completing his sentence. While Capozzi was serving hard time, Sanchez was still targeting women.

Capozzi, now 51, suffered from schizophrenia before he was convicted. Today, he's worse, mentally and physically, said his father, Albert. "He was a gentle, beautiful man. Prison did something to him."

In DeJac's case, recent DNA tests disclosed the presence of her ex-boyfriend, Dennis Donohue, in the bedroom and the body of her 13-yearold daughter, Crystallynn Girard. That revelation, alone, was not enough to clear the Buffalo woman, but it quickly led to her release from prison pending a new trial.

When reinvestigation unexpectedly - and to some critics, implausibly - concluded that Crystallynn did not die from manual strangulation, as a jury was told in 1994, but from a cocaine overdose, Clark dropped the charges. But DeJac had already spent almost 14 years behind bars. She had been sentenced to 25 years to life in prison.

This is the startling, even bewildering, new world of genetic forensics. Without the development of DNA testing and subsequent advances, Capozzi and DeJac would, in all likelihood, remain behind bars today, and Americans might have remained comfortably unaware of the disturbing facts of wrongful conviction.

DNA is the most powerful tool the criminal justice system has ever had at its disposal, both to assign guilt and to establish innocence. But it doesn't do everything. Mostly, it doesn't explain how police, prosecutors, defenders, judges, juries and even victims - which is to say, the system - got it wrong in the first place. How many other innocent people have been sent to prison in Western New York? How many remain behind bars?

This phenomenon is not confined to Erie County. The Web site of the Innocence Project, a New York City-based advocacy group, documents 216 post-conviction DNA exonerations in the United States since 1989, not counting DeJac. Sixteen of those unlucky souls had been sentenced to die. No one can guess how many innocent people were actually executed in the days before - or, for that matter, since - the dawn of DNA testing.

DNA also doesn't help when it's not present. It's becoming more difficult to avoid DNA detection, but some miscreants may commit their offenses without leaving behind their genetic fingerprints, or their profiles may not be in a database to match them with. Even killers, shooting from a distance, may leave no DNA evidence, or what is found may not be usable. Without reforms, that leaves suspects in those cases vulnerable to the teeth of the same system that got it wrong on Capozzi, DeJac and at least 214 other Americans.

To be sure, those unfortunates represent only a small fraction of the nation's population of convicts, but also to be sure, more innocent men and women remain behind bars. Some, no doubt, will die there. And even if the proportion is small, the raw numbers of those wrongly convicted over the past three decades could reach 185,000 or even higher by some estimates - more than enough "mistakes" to shock the public conscience. The criminal justice system must account for these errors if Americans are to retain confidence that their criminal justice system is, indeed, just. "We have to deal with this from a public relations standpoint as well as a legal one," said Clark. "Confidence in the system must remain."

Misidentification is common

On lower Fifth Avenue, around the northern edge of Greenwich Village, lies the Benjamin N. Cardozo School of Law. A part of Yeshiva University in New York City, the law school is the home of the Innocence Project. Founded in 1992 by Barry Scheck and Peter Neufeld - former members of O. J. Simpson's "dream team" of defense lawyers - the Innocence Project's mission is straightforward: "to assist prisoners who could be proven innocent through DNA testing." It has been depressingly successful.

The organization's Web site counts 216 post-conviction DNA exonerations in the United States and blames them largely on seven factors: eyewitness misidentification; unreliable or limited science; false confessions; forensic science fraud or misconduct; government misconduct; informants or snitches; and bad lawyering. At least three of those influences were at play in the Capozzi and DeJac cases.

"Eyewitness misidentification is the single most frequently observed cause of wrongful conviction," Neufeld said in a telephone interview earlier this month, but that doesn't mean it's necessarily the most important factor in need of reform. Other causes may go undetected, he said. If, for example, prosecutors fail to turn over exculpatory evidence to the defense, as they are required to do, an innocent person may be convicted and no one would ever know the cause.

Misidentification can occur for a number of reasons. Victims and witnesses, undergoing a period of intense stress, often don't get a clear view of an assailant. If a criminal has a weapon, victims usually keep their eye on that. Also influential is the manner in which any given police agency runs lineups or otherwise gets victims and witnesses to identify a suspect.

Misidentification is the main reason Capozzi was wrongly convicted. Three women who were raped in Delaware Park identified Capozzi as their attacker, but it was a year after the assaults. Capozzi was convicted of two rapes, based on those identifications and that of a city employee who said he had seen Capozzi in the area.

In his case, Capozzi actually bore some plausible resemblance to Sanchez at the time of the crimes, but often, Neufeld said, little similarity exists between a wrongly accused suspect and the actual criminal. Yet through some quirk of human nature - sometimes aided by law enforcement officers too eager to solve a crime - victims can start out believing that a suspect is not their attacker and then become wholly, unalterably - and wrongly - convinced that he is.

The Capozzi case contains elements of that phenomenon. Even though Capozzi and Sanchez shared some striking similarities, there were also notable differences. Most prominently, Capozzi had a red scar, 3 inches long, on the side of his face, a feature none of the victims had mentioned on their attacker. The women also had described their attacker as around 150 pounds, much trimmer than the 200 to 220 pounds Capozzi weighed at that time. The rapist wore shorts; Capozzi's parents say their son didn't like to wear shorts. And, tellingly, similar attacks continued in Delaware Park, even after Capozzi's arrest in September 1985. Still, he was convicted, and so sure of his guilt was one of the women who testified against him that Clark said she continued to insist he was the one, even after DNA proved he wasn't.

That would come as no surprise to Robyn Wiktorski-Reynolds, victim advocate coordinator for Crisis Services. Rape victims have already endured repeated trauma, she said, beginning with a harrowing attack and continuing, sometimes for years, through the process of telling and retelling the details to family, friends, police, prosecutors, grand juries, trial juries and, of course, themselves. "There is an attempt to find some closure," she said. "It doesn't always work, but they may be hanging their hat on that. Then, to find out years later that, in fact, that wasn't the correct person can reopen wounds. "Guilt may come out about getting the wrong guy," she said, and about knowing the actual criminal "is potentially committing other crimes" - as Sanchez did. Wiktorski-Reynolds tries to hammer home to the women that it's not their fault, but the discovery of a wrongful conviction can cause a "re-triggering" that drags survivors back into crisis.

If law enforcement could make procedural changes that diminished the risk of convicting innocent people, improved the chances of convicting the right ones and spared the victims, wouldn't that be worth doing? The state of New York seems unsure..... "None of this is about coddling," Neufeld said. "It's about strengthening law enforcement."

An important part of the Innocence Project's work is lobbying for legal reforms. While its goal is to keep innocent people out of prison, achieving it has the corollary effect of helping to get the guilty. It's a perfect blend of conservative and liberal impulses, yet the state of New York can't seem to come to grips with it.

Only two states - Texas and Illinois - have had more post-conviction exonerations than New York, yet New York has done less than most other states to address the issues that lead to wrongful conviction. The state has no law on preservation of evidence, for example, no law on recording of interrogations, no standards on how to conduct lineups.

Most tellingly, it has thus far resisted efforts to create a reform commission, whose task would be to examine the state's history of wrongful convictions and recommend specific reforms meant to diminish the chances of repeating those tragedies.

It almost happened last year, said Assemblyman Michael Gianaris, D-Queens, who sponsored the bill. But the legislation to create an "innocence commission" was packaged with a more controversial law enforcement bill, expanding the state's DNA database. The Senate and Assembly couldn't agree on that, so the commission died, and New York went about ignoring its problem with wrongful conviction.

Some of this will solve itself, it's true. Assuming competence and honesty among police, prosecutors and scientists, the laser-light of DNA will, in many cases, exclude or incriminate suspects with clarity and finality. "Had either the Capozzi or DeJac cases happened today, [their convictions] wouldn't have happened," Clark said.

With organizations like the Innocence Project digging through past cases, more wrongly convicted inmates will, no doubt, be freed. Others, where DNA evidence does not exist, may find salvation through other efforts, such as separate ones of journalism and law students in Illinois - or, perhaps more likely, they will languish in prison.

But a just society cannot rest easy knowing innocent men and women - some of them only teenagers - are behind bars, even on death row. But knowing that those injustices have occurred, it is at least as important - and possibly even more so - to take all reasonable steps to diminish the chances of producing more Capozzis, DeJacs, Warneys and Deskovics.

Less than 10 percent of crimes produce DNA evidence, Neufeld said. Without reforms, suspects in the other 90 percent of crimes will be left to a criminal justice system that, whatever its virtues, has already shown itself to be catastrophically flawed.

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