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'Making A Murderer' Flaws All Around Us


making a murderer

photo via Making A Murderer on Twitter


The Netflix documentary "Making A Murderer" challenges the moral core of our criminal justice system: that the police and prosecutors are objective and unbiased. The film follows Steven Avery, a Wisconsin man who spent 18 years in prison for rape before being exonerated, then arrested for murder two years later, found guilty, and sentenced to life in prison. The highly questionable police methods—a key piece of evidence miraculously appears; an improbable confession is coerced from a developmentally delayed adolescent—and the glaring conflicts of interest of many of the participants will infuriate any fair-minded viewer.

The criminal justice system's legitimacy is founded on our secular faith in unbiased police-work, forensic science, and truth-seeking prosecutors. However, many of these pillars are structurally unsound, as supported by reams of scientific studies and the wisdom of leading observers.

The problems with forensic science were first exposed systematically in a National Academy of Sciences report in 2009, but the legal system has been slow to incorporate its findings. Official misconduct of the type suggested in Making A Murderer is not isolated to small towns in Wisconsin. Alex Kozinski, one of America's foremost jurists and scholars, and a judge on the United States Court of Appeals, has recently written an opus which probes these problems in depth. And Kozinksi is no liberal; he was appointed by Ronald Reagan.

Take confessions. It is unfathomable to most of us, but it is not unusual for people under duress to confess to crimes they did not commit. And for minors sweating under the bright lights, their inherent anxiety and propensity for pleasing authorities, coupled with the various ruses, all legal, which the police can employ, render them easy prey. New Yorkers cannot forget that the Central Park Five (teenagers at the time) falsely confessed and spent several years in prison before being exonerated.

Eyewitness testimony is also subject to manipulations and the plasticity of human memory. In Steven Avery's first case the victim mistakenly identified him, after several inappropriate prompts from the police. And misidentification is even more likely when victims and perpetrators are of different races, an expected occurrence in multicultural communities like New York City. A New York State Bar Association study found misidentification to be the leading cause of wrongful convictions. Numerous expert panels have outlined model procedures for police to use when investigating eyewitness testimony and the NYPD should incorporate these findings.

High tech forensic science, despite its aura of infallibility, is less than perfect and many familiar methods have been tossed on the junk pile. Bite mark analysis, arson science, fiber and hair analysis, are among those that are now discredited as completely lacking in scientific validity. The Justice Department and FBI have acknowledged that evidence presented by an elite forensic unit over a two-decade period was based on methods now recognized as invalid.

The Manhattan District Attorney's office is, however, disregarding the scientific consensus and fighting tooth and nail to continue using bite mark evidence. In contrast, the new Brooklyn District Attorney, Ken Thompson, recently moved to have an arson-murder conviction overturned, in part due to now discredited "arson science," and Mr. Thompson's office is garnering national attention for its commitment to review cases and rectify wrongful convictions.

To a prosecutor, the most important bit of data is his or her conviction rate, and the resultant zeal to convict at all costs detours our system away from objectivity towards something like a witch hunt. Prosecutors routinely withhold exculpatory evidence from the defense. As Justice Kozinski puts it, "there is an epidemic of Brady violations [duty to disclose any vital evidence] in the land."

According to the National Registry of Exonerations, official misconduct was a factor in 45% of false convictions. In Orange County (CA) the district attorney's office is rocked with scandal after revelations that the police and prosecutors colluded in a decades long campaign of frame-ups and perjury. And in Brooklyn, as noted above, the new district attorney has begun dealing with the fallout from years of dubious tactics used by his predecessor, Charles Hynes.

This short list of prosecutorial abuses and junk science is only a glimpse at the problem. To give some depth, consider that one study in a prestigious journal estimated that 4.1% of all persons on death row could be exonerated. With roughly 3,000 people on death row now, about 120 persons sentenced to die may be innocent. If this rate of wrongful convictions is extended to the 1.5 million persons in federal and state prisons, 61,500 persons could be declared innocent, set free, and have their criminal records erased.

Though Steven Avery was not rich he had a competent defense team, yet still could not prevail (I am not claiming he is innocent, but that his trial was a travesty and he should not have been found guilty based on its proceedings.) But for poor people who cannot afford a private attorney, woefully understaffed and underfunded public defenders are their only option. That is why innocent people take plea bargains; without an effective defense they have no chance of winning. According to the National Registry of Exonerations, 10% of exonerees pleaded guilty, despite their innocence, to avoid a trial.

There is already a broad consensus that we send too many people to prison, for too long, and for behavior (e.g., drug use, sex work, nuisance offences) that should not be criminalized. Beyond that, we must ensure that police and prosecutors use valid methods to gather evidence and present that against the accused. The public election of prosecutors must be revisited to avoid the sort of uncontested transfer of power that occurred in the Bronx last year.

Finally, the New York State Court system recently issued rules enabling video recording of courtroom proceedings and these should be interpreted as liberally as possible to ensure that a Making A Murderer type of injustice can't happen here.

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Christopher Beall works at a criminal justice nonprofit in the Bronx and is on Twitter @JailedintheUSA.

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Get the Facts Straight on NYCHA Attacks


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photo via NYCHA


In a recent op-ed outlining opposition to organized labor and Project Labor Agreements, Associated Buildings & Contractors Empire State Chapter President Brian Sampson paints an outdated and inaccurate picture of NYCHA. Let’s be honest, yes—there had been a long history of mismanagement at NYCHA. But with the new administration and under new leadership, we are taking NYCHA in a different direction that makes old arguments about NYCHA more political than factual.

In the past two years, we’ve taken bold, but necessary steps to fundamentally transform how we do business. The Authority launched NextGeneration NYCHA, our ten-year strategic plan, to transform NYCHA into a modern, more efficient and effective landlord, while also getting our financial house in order. And while there is still work to be done, we are making solid progress through action.

Taxpayer waste was indicative of the old NYCHA. Today, we are committed to transparency as the best form of oversight and accountability of taxpayer dollars. NYCHA now posts work and performance metrics, contracts and awards on our website, and even launched an interactive Sandy Transparency map, where the public can access spending data and status updates on work related to the $3 billion in Federal Emergency Management Agency funding. This digital tool provides information on the scope of work, project phase (planning, design, and construction), estimated funding levels and timelines, renderings and contractor details.

Swipes at NYCHA’s response to Hurricane Sandy or inventory and procurement may score easy political points, but don’t reflect NYCHA’s reality today. NYCHA created the Office of Emergency Preparedness in response to issues raised by Hurricane Sandy, so we are better prepared than we have ever been before. To that end, we issued a report in 2015 outlining our progress.

Additionally, NYCHA has made great strides to overhaul our supply and inventory management process, with a working group composed of independent leadership, supply chain experts, and the city comptroller’s office. Today, inventory is only disposed of after a systematic and thorough analysis. In fact, our reassessment of inventory previously slated for disposal resulted in more than $1 million of materials put back into use.

The nonunion building trades’ real issue with NYCHA isn’t about money or management, it’s about NYCHA’s Project Labor Agreement (PLA.) NYCHA’s PLA, which applies to construction and rehabilitation work, isn’t unique and is widely employed by other city agencies. It allows for greater flexibility in work scheduling and shift hours, and NYCHA is already beginning to see the benefits of the PLA with faster, better, and cost-effective construction work.

This isn’t the first attack by the Associated Builders & Contractors Empire State Chapter and it won’t be the last, but the association should try to stick to the facts on NYCHA. No one is served by rhetoric, especially not NYCHA residents.

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Michael Kelly is the General Manager of the New York City Housing Authority (NYCHA). On Twitter @NYCHA.

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Next Steps the State Must Make to Create and Maintain Affordable Housing


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photo: a groundbreaking, via the Governor's Office


As the Legislature moves ahead with its 2016 session in Albany, a top priority must be creating and maintaining affordable housing across the state. We cannot be content with fellow New Yorkers sleeping in three-quarter houses, with too many to a room, because it’s the only alternative. It is only so long until the next severely rent burdened tenant - spending more than 50 percent of their earnings on rent - ends up homeless because they cannot afford their apartment.

Governor Cuomo’s State of the State agenda – including 20,000 units of supportive housing over 15 years and 100,000 units of permanent affordable housing - is a welcome first step. Now, there are steps the Legislature should take to spur the development and protection of affordable housing. As President Obama’s call to end chronic homelessness among veterans displays, when government acts and we mobilize on that action, we can address long-term, entrenched issues and ensure individuals have a safe and affordable place to live.

A high priority for Albany should be a new 421-a property tax credit for real estate developers who build affordable housing.

After developers and labor were unable to come to an agreement on construction wages by January 15, the 421-a tax credit expired. Still, Albany can seize the opportunity and craft a new program that maximizes the cost-effective development of truly affordable housing. For example, a new 421-a credit should not include a tax break for condo development. Approximately two-thirds of New York City’s households are renters. Moreover, the median household income of renters in New York City - about $41,000 annually according to the Furman Center’s 2014 State of New York City’s Housing & Neighborhoods - is unlikely enough to afford a co-op or condo.

The Legislature must also adequately fund the 20,000 units of supportive housing announced by Cuomo. In particular, Albany must ensure state contracts with supportive housing providers promote the long-term viability of the units. A consistent challenge that we at Urban Pathways face in operating scattered-site supportive housing - apartments in various private buildings throughout communities - is that the service contracts lack rent escalations. As scattered-site units are in market-rate apartments, they are subject to rent increases, making rent escalation provisions critical to their preservation.

Lastly, after March of this year, the state will receive National Housing Trust Fund dollars. New York will be obligated to spend these funds - potentially $20 million - predominantly on rental housing for extremely low-income (ELI) households. ELI households are those with incomes at or below 30 percent of the area median income (ranging from about $18,150 for a one-person household to $29,500 for a four-person household in New York City). This is another opportunity for the state to invest in adequate exit options for homeless individuals throughout the state.

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Nicole Bramstedt is the Director of Policy at Urban Pathways, a nonprofit social services and supportive housing organization. On Twitter at @UrbanPathwaysNY

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