Recently Gotham Gazette reported on the confession of Douglas Warney, who was convicted for a 1996 murder in Rochester but was later exonerated when DNA determined he was actually innocent.
Nevertheless, two New York courts found that he should not receive a state settlement compensating him for his wrongful conviction and the subsequent nine years he spent in prison. The court said his false confession constituted misconduct and so barred him from receiving compensation.
In late March, though, the state's highest court ruled in Warney's favor, reversing the lower courts' dismissal of his claim.
Warney's lawsuit seeking compensation had been brought in the Court of Claims, which hears cases against the state. In its ruling, the court is to rely on the Court of Claims Act and the Unjust Conviction and Imprisonment Act, which requires that a claimant seeking compensation had been convicted of a crime, sentenced to imprisonment and served at least part of the sentence. In addition, in order to receive a settlement, the claimant must have been pardoned on the ground of innocence or had a conviction that was reversed, vacated or dismissed.
The Court of Claims, however, rejected Warney's suit because language in the statute bars compensation for wrongful convictions that were caused by the defendant's own "misconduct." In other words, although DNA unequivocally proved that Warney is innocent, the confession he gave the police, which was used to convict him, constituted "misconduct" in the view of the Court of Claims judge, Renee Forgensi Minarik.
The specific issue confronting the Court of Appeals was whether Minarik had improperly dismissed Warney's case without allowing the litigation to proceed further. The judge had decided that Warney's papers at the earliest stage of litigation should disclose in detail how his confession came about. The Court of Appeals opinion written by Judge Carmen Ciparick/a> agreed with Warney's counsel, Peter Neufeld, that Warney did not have to submit his evidentiary proof that early in the litigation proceedings.
Judge Robert Smith, who appeared particularly concerned when the case was argued in Albany, had posed many questions to the state's attorney, Alison Nathan, who is expected to become a federal judge. Smith asked how Warney could have confessed to specific facts of the crime that he couldn't have known both because of his limited mental abilities and because there is no question that he is innocent. Smith questioned whether the police interrogators gave Warney information, known only to them and the real perpetrator, that Warney then parroted back when asked about the murder.
At oral arguments and in his concurring opinion, Smith referred to the meaning of "coerced confession" and defined it as the sort of "calculated manipulation that appears present here." In general, though, Smith concurred with the majority opinion, which relied largely on procedural technicalities surrounding the dismissal. It did not give Warney's lawyers an opportunity to prove that it was not his acts that constituted misconduct. Smith feared that would lead to more general arguments against dismissal.
Warney, who had a history of making false police reports, has claimed that he had been denied access to a lawyer after police detained him for questioning in the murder. Warney eventually admitted to the murder in an unusually detailed confession -- one containing details that only the true perpetrator and the police could have known. But after he was convicted and sentenced to 25 years to life, Warney, who was then represented by the Innocence Project, claimed innocence. It was nine years later that DNA testing excluded him as a match. His conviction was reversed based on newly discovered evidence.
In ruling on Warney's request for compensation, lower courts said Warney had not offered convincing evidence that the police must have fed him detail of the crime. Ciparick's opinion reversed the lower courts , which had said that Warney would have had to present convincing evidence in the initial litigation on a possible settlement that the police fed him the details.
The appeals court determined that Warney did not have to prove his case in the lower courts but simply provide enough evidence to keep the case in court for trial. In other words, the Court of Appeals found it was premature for the Court of Claims judge to decide that she was not convinced by the facts Warney presented.
In his submission to the Court of Claims, Warney maintained that his conviction "was the direct result of the intentional and malicious actions of members of the [police] who fabricated and coerced a false confession from ... a man whom they knew had a history of serious mental health problems."
Referring in his opinion to some of the details in the confession, Smith asks, as the prosecutor had asked the trial jury, how a man whose innocence has been established could have known some of these facts he presented during police questioning.
"It is hard," Smith writes, "to imagine an answer other than that he learned them from the police. ... The police took advantage of Warney's mental frailties to manipulate him into giving a confession that contained seemingly powerful evidence corroborating its truthfulness -- when, in fact, the police knew, the corroboration was worthless. ... This sort of police conduct, if proved at trial would be sufficient to show that Warney 'did not by has own conduct cause or bring about his conviction.'''
Answering a question asked at oral argument, Smith said a false confession that was not coerced could be a barrier to compensation from the state. But, he wrote, "A confession cannot fairly be called 'uncoerced' that results from the sort of calculated manipulation that appears to be present here -- even if the police did not actually beat or torture the confessor, or threaten to do so. "
As clear as he appears to be about Warney, Smith is at least equally concerned with discouraging "frivolous claims." "This case is easy, because this claimant appears ... to have an exceptionally strong case," Smith wrote. "Our decision today should not be read as implying that any claimant can, by skillful pleading, get a significantly weaker case past a motion to dismiss."
According to Neufeld approximately 25 percent of those individuals who have been exonerated had confessed to crimes they did not commit. This week, Jeffrey Deskovic, who spent 15 years in prison after being convicted of raping, beating and strangling a high school classmate, but was later exonerated by DNA testing, settled his federal civil rights case against Westchester County for $6.5 million.
While it is not every day that cases such as Warney's and Deskovic's are brought, Neufeld hopes that the opinion in Warney's suit will have an effect on other local cases and in other states. That is, while false confessions are not uncommon, they should not generally prevent an exonerated individual from claiming compensation. Certainly as Smith wrote, the wrongfully convicted should have their day in court and an opportunity to establish their claim.
Other claims, though, will wait for another day. The next question would involve whether there will be a trial in Warney v State of New York. According to Peter Neufeld, there have been no discussions with the state about how the case will proceed now that the Court of Appeals has reversed the dismissal. It is likely the two sides will reach a monetary settlement.
Emily Jane Goodman is a New York State Supreme Court Justice
Several years ago in a private conversation, a Fire Department paramedic explained the tension between the New York Police Department and EMS when their units respond to situations involving illicit drugs. Police officers, he said, view drug use as a criminal matter. Paramedics and other medical workers see it as a public health concern.
For years, criminal justice reform advocates have said that non-violent drug offenders should be referred to treatment rather than sent to jail. In 2009, the state scrapped many of its Rockefeller drug laws, a landmark victory for these advocates in the state. But whether the state is moving to view the non-violent drug user as a victim of an epidemic rather than someone who belongs in a holding cell remains to be seen.
More specifically, the state has not addressed how to deal with a person found with marijuana who doesn't need either incarceration or treatment.
So far, implementing Rockefeller drug law reform has been messy and costly, said Glenn Martin, the vice president of development and public affairs at the Fortune Society.
Although prosecutors push more first-time drug offenders toward drug-treatment, most of them wind up in 18-month, in-patient programs. The justice system by and large ignores other types of clinical care, and the state offers few alternatives to incarceration. In particular, Martin noted, treatment has largely been an option for first-time offenders, rather than those who relapse.
"It sounds good to a prosecutor, but who says that this cookie-cutter approach makes sense? It doesn't,” he said in a phone interview. While many prosecutors support the idea of treatment over jail, Martin says they are not usually experts on drug and alcohol rehabilitation.
"New York City has the most robust alternative to incarceration communities," Martin said. But, he added, "None of those resources are utilized."
On paper, the state's drug enforcement methods appear kinder and gentler. But the reforms, Martin argues, have not met the goal of reducing the money spent on tackling drug use and actually rehabilitating people.
"Not a single person has completed treatment," he said. "You can't point to success stories yet?"
The treatment debate does not address the issue of why so many people are arrested in the first place. Speaking at a recent panel discussion at the New School, Staten Island District Attorney Dan Donovan said his team of prosecutors “have great discretion” when it comes to diverting alleged marijuana offenders into treatment programs. But he also said many people caught on misdemeanor drug offenses are brought in under questionable circumstances -- like through a stop-and-frisk, which forces individuals to empty their pockets. (Note: it is not a criminal offense to be in possession of a small amount of marijuana, but it is a misdemeanor to have it out in public).
Donovan said that in those instances, prosecutors can move to not press the case. "We got real smart with that," he said. When asked how many cases it has put aside due to improper searches, Donovan said: "I don't think we’ve ever broken that down."
Simply being caught up in a criminal proceeding, however briefly, can create problems, even if the case is dropped or the young drug user is sent to treatment, said Noah Kass, the clinical director at Realization Center, an outpatient treatment program in Brooklyn and Manhattan.
"The trauma of being arrested for a crime you didn't commit is significant for an adolescent. The trauma of being arrested for a crime that's unwarranted could be astronomical," he said. "It sets them on a road. It almost becomes a self-fulfilling prophecy."
Kass said he often finds himself in situations placing young people -- particularly blacks and Latinos -- caught with marijuana into treatment that they don't really need.
"So I will stick a kid who is 15 or 16 who grew up in the South Bronx and was caught with a very little amount of marijuana, and I will stick him in a group with a kid who goes to a private school on the Upper East Side who is suffering from so many more drug issues that comparing them could be futile," he said.
Kass recalled that one of his workers in such a situation worried that the rich kid would learn the "drug game" from the Bronx youth. Kass said, "I was like, 'It is so the other way around.'"
By placing youth in treatment when they do not have real drug problems, the criminal justice system is telling them that they do. This can greatly affects a person's psyche, and is an all too common reality for black and Latino youths in the city, Kass said.
"They say, 'Yes, I’m going to self help meetings. Yes, I'm working on building a solid sober support network,'" he said. "We become sort of complicit in this lie."
If Kass is correct, then the mental health impact on New Yorkers caught with marijuana, arguably the least dangerous of illegal drugs, could be enormous. Last year , the city arrested 50,383 people for possessing small amounts of marijuana. according to a recent report by the Drug Policy Alliance. Gabriel Sayegh, director of the New York office of the Drug Policy Alliance, said the number of marijuana arrests under the Bloomberg administration dwarfs the number of such arrests under Mayors Ed Koch, Davd Dinkins and Rudy Giuliani combined.
Nonetheless, advocates still believe some progress has been made toward treating drugs as a health concern more than a crime problem.
"I think the movement is very marginal, but I think about how long it took to get here," Martin said. "I find myself in rooms with prosecutors now who are comfortable talking about diversion. I think that's a step forward."
In 2009, it was 16.
In both 2010 and 2011, the magic number grew to 20.
For the past three years, the Bloomberg administration has threatened to throw dozens of fire companies into the furnace. Faced with billion-dollar deficits, Mayor Michael Bloomberg has repeatedly attempted to hack away at the Fire Department's ranks for the sake of fiscal prudence and cost cutting.
Now that Bloomberg wants to reduce the number of companies for the seventh time in his tenure, insiders wonder whether his intention is to save cash or shrink the size of the department altogether.
"When [Bloomberg] first came in he said famously, 'Everyone had to do more with less well,'" said Martin Steadman, the research director for the Uniformed Fire Officers Association. "The Fire Department has had to do far more with far less."
Only six companies have actually closed since Bloomberg took the reins at City Hall in 2002. In his preliminary budget proposal released in February, Bloomberg threatened to add 20 more to that list. The mayor also recently reduced the number of firefighters from five to four on 60 of the city's nearly 200 engine companies -- otherwise known as the team of firefighters on one truck.
Union leaders are preparing to fight the closures and the staff reductions with all hands. But experts in the field think Bloomberg should take advantage of the city's fiscal woes. Bloomberg, they say, should examine the entire Fire Department, weed out waste and reorganize companies so firehouses are in neighborhoods where they are needed the most.
"Every time you have a problem, you talk about cutting a firehouse, it's not really good management," said Thomas Von Essen, the fire commissioner in the Giuliani administration. "I don’t think the Bloomberg administration has a clue of the inside workings of the Fire Department."
Representatives from fire officers and firefighters' unions will tell you they had their busiest year ever in 2010. The department responded to more than 507,430 incidents -- a record-breaker and a 7.3 percent increase over 2009.
When asked about staff reductions, union officials point to a five-alarm fire in Flatbush last month, which killed one person and injured dozens of firefighters. Just two weeks earlier, a staffing reduction on engines took effect (the mayor denies the fire had anything to do with the staff cuts).
"It's truly a game of Russian roulette," said Tom Butler, a spokesperson for the Uniformed Firefighters Association. "The purpose of government is to protect the citizenry. If it cant keep people safe, than what's the purpose of it?"
Unlike the Police Department, which has been held relatively harmless during the administration's nine rounds of budget cuts, the Fire Department has been repeatedly targeted.
Last year, Bloomberg threatened to shutter 20 companies at night. At the time, when asked if he thought the Fire Department was too large, the mayor said: "The way the Fire Department works is fundamentally if you want to cut back, you have to close companies. It's one of these things, you can never have too much, but I can tell you we can't afford much."
In an emailed statement, Marc LaVorgna, a Bloomberg spokesperson, denies the mayor's intention is to shrink the Fire Department.
"The reason for the proposed cuts at FDNY is because every agency in the city -- police, education, transportation and on down the list -- has to make reductions because we simply don’t have the resources, primarily because of the growth in costs like pensions, which are eating into the dollars we want to use to provide services to New Yorkers," LaVorgna said. "The Fire Department is no different and that is why reductions have been proposed."
Not since the 1970s has the department been under such heavy fire. Then the city shuttered 16 fire companies and lost approximately 2,000 firefighters.
So far the cuts in mass have never materialized. For the past three years in a row, the City Council has used its discretionary funding to stave off company closures.
That doesn't mean the same thing will happen this year. The city is facing closures at 105 senior centers and layoffs of thousands of teachers.
The fire commissioner, Salvatore Cassano, a lifelong firefighter who has held every position in the ranks, has expressed concern over the company closures.
"It would impact our operations severely," said Cassano last month of the proposed company closures. "Our response times would increase. I would be concerned if we had to do it."
The Fire Department is scheduled to testify at the City Council today on the mayor's latest budget proposal.
Even though the department had a record year in 2010, the type of calls it responds to has changed drastically over the years.
In the 1970s, the men in yellow and black were kept busy hosing down blazes in the Bronx (the department responded to 56,810 structural fires in 1976). Last year, the department responded to less than half that number. In 1976, FDNY rushed to more than 96,000 non-structural fires. Last year, it went to just over 18,000.
On the other hand, the number of medical emergencies the department responds to has skyrocketed. Since 1993, the department has sent an engine to serious medical emergencies, including a heart attack or choking, because engines have quicker response times than emergency service vehicles. Last year, they went to more than 218,600 emergencies.
So while structural fires have decreased over the years, other emergency responses have gone up.
At the same time, the department has been able to shorten its response time. To all emergencies, except false alarms, the city's response time has fallen since Bloomberg took office. For structural fires, it is at a record low of 4 minutes and 1 second.
Given the changes in response, fire safety experts are encouraging the department to examine where its resources are needed most. Instead of shuttering fire companies, Glenn Corbett, an associate professor of fire science at John Jay School of Criminal Justice, has urged the city to look at response times neighborhood by neighborhood. Some neighborhoods, Corbett said, may not need a firehouse because the response time is low, while others might be in need of resources.
"Just starting off and saying we got to close 20, I don’t think anyone is ever going to argue it's going to have a positive impact," said Corbett. "You can't use the argument fire incidents are down and our response time is X. What kind of fires are we having? Perhaps the administration would like it to be simple, but it's not."
A department spokesperson said the FDNY monitors its resources constantly.
Since Bloomberg's first budget proposal in 2002, the Fire Department's budget has increased by more than 50 percent. During that same time period, the Police Department's budget -- which has always been almost three times the size of the FDNY's -- grew by 37 percent.
The Department of Sanitation's budget has increased by 32 percent between 2002 and the projected cost in fiscal year 2012. Meanwhile, the Department for the Aging's budget has been cut by 6 percent between fiscal year 2002 and next year's budget proposal.
Bloomberg administration officials attribute increased cost in uniformed services to the rising cost of health care and pension benefits. Those services are taking a larger portion of the budget and forcing the city to reduce services.
At the same time, a discrimination lawsuit has prevented the city from hiring new firefighters. According to the department, they have lost about 500 positions.
Beyond company closures, cuts to engine company staffing have caused ire among city fire unions.
Both the Uniformed Firefighters Association and the Uniformed Fire Officers Association are appealing the mayor's staff reductions to the city Board of Collective Bargaining -- an independent agency that oversees labor negotiations. The unions hope the board will grant them a hearing and eventually determine the staff reductions pose a safety hazard.
But budget slashing doesn't end there.
To stave off larger company closures, the city has proposed to charge motorists if they are involved in a vehicle accident and the Fire Department responds. The administration also wants to remove emergency call boxes from street corners. Advocates successfully challenged the call box move in court.
Officials at the City Council have spoken out against the politically unpopular measures.
"There is no area in the city of New York that wants to see their fire protection decrease -- not at a time when our Fire Department is responding to more emergencies than every before," said Councilmember Elizabeth Crowley, the chair of the council's Fire and Criminal Justice Committee, outside of City Hall Thursday.
Experts say the city has other options. In New Jersey, said Corbett, every business that hosts a certain population, like a hospital or day care, has to pay a hazard fee. Corbett said the program raised $20 million in New Jersey.
At the City Council, which has to approve a final budget, Crowley said they are not willing to sustain any cuts to the FDNY. She said the council will push the administration to weed out unnecessary overtime costs -- costs she said are double the $55 million the city would save closing companies.
When asked if the council could hold the Fire Department harmless, Crowley was confident it could.
"Absolutely," she said. "It’s a high priority."