What happens when a man says he's guilty of murder, but state-of-the-art-science says he's not?
That is the question the New York Court of Appeals, the state's highest court, will soon answer in the case of Douglas Warney v. State of New York, which began in 1996 as People of the State of New York v. Douglas Warney.
Warney, while in police custody in Rochester, signed a detailed two-page confession and was convicted, after trial, of first-degree murder. He was sentenced to 25 years to life in prison and served nine years before he was exonerated by DNA testing -- testing that prosecutors had vigorously opposed. Douglas Warney was innocent.
Once released from prison, Warney sued for compensation under New York's wrongful conviction statute. But at the earliest possible stage of litigation, the Court of Claims, where lawsuits against the state are filed, dismissed his case. The judge cited the statutory exemption of state liability and said the claimant, Warney, "through his own conduct, brought about his own conviction."
Warney's case is not an isolated instance. Studies have found that many individuals falsely confess to a crime, often because of police trickery or their own vulnerability. A number of these people have later been exonerated by DNA tests. Peter Neufeld, co-founder and co-director of the Innocence Project of Benjamin Cardozo School of Law who now represents Warney, says Warney is of below average intellect (IQ 68) and at the time of his interrogation and "confession," also was suffering from dementia.
A study by the New York State Bar Association found that wrongful convictions are often the result of false confessions. The Innocence Project put the number at approximately 25 percent.
That police misconduct may have elicited Warney's confession has not helped him despite the universal acknowledgment of his innocence. (The DNA at the scene matched that of another man who is already serving a life sentence for another murder, has now confessed to the murder.) According to the decision of Judge Renee Forgensi Minarik of the Court of Claims, the fact that Warney confessed overrides why he confessed.
It is standard police procedure to withhold certain details about a crime. If someone then reveals he or she has knowledge of those details, the police reason that person must be the perpetrator, and the confession is deemed reliable. In Warney's case, said Neufeld, who was not involved in Warney's original trial, "The police and prosecutor kept emphasizing that because there were 11 details that only the police -- and Warney -- knew," Warney had to be the killer. The problem, Neufeld said is "the police broke a cardinal rule," by telling Warney the details that he then provided them.
At the February argument before the Court of Appeals in Albany, Judge Robert Smith, characterized this type of police conduct as "manipulation" more than coercion, describing the actions of a suspect such as Warney, as "tell me what you want me to say and I'll say it."
Arguing for the state, attorney Alison Natnah told New York's highest court that Warney had "no entitlement to compensation" for his years spent in prison since he should have been able to foresee that his own admission and self-incrimination, which she called "voluntary," would lead to his conviction. In other words, it was Warney and not the government who was responsible for his conviction and the years of incarceration. That it is wrongful and unjust -- not just a mistake -- is insufficient to allow the claim to proceed argued Natnah, who has recently been recommended by Sen. Charles Schumer for a federal judgeship.
Given that he has been ruled out as the perpetrator, "How could Warney have known that the weapon was a 13-inch serrated knife, and that a victim was stabbed 15 times?" Smith wanted to know. He prodded the prosecutor to tell the court how Warney could have had these facts -- unless the police told him. Natnah was unable to provide an explanation that seemed to satisfy Smith. Meantime, Chief Judge Jonathan Lippman asked how Warney's "confession" could be considered credible if "90 percent of what he knew was planted in his mind by the police," especially when one week earlier the police had taken Warney to a psychiatric hospital.
Neufeld asked the bench to reinstate Warney's claims and define "misconduct," in accord with the legislature’s intention that an unjust conviction should lead to compensation. Warney's repeating what police fed to him cannot be the misconduct the legislature referred to in carving out an exception to the wrongful conviction statute, Neufeld argued.
In what he described as "a really important case," Neufeld also asked the court to clarify that the confession itself would have to have been the "proximate" cause of the conviction, or the very thing that caused the wrongful conviction. Pressed as to whether there could ever be a false confession that would constitute misconduct, Neufeld hypothesized "perhaps a man who intentionally, falsely confessed in order to take the blame for his wife's crime."
While it may seem illogical if not incredible that an innocent person would admit committing a serious violent crime, false confessions -- admissions of guilt made despite innocence -- occur when suspects are fed the answers. They may believe, or police may suggest, that they don't need a lawyer if they are innocent and have nothing to conceal, and that asking for a lawyer will make them look guilty. The issue of wrongful convictions, including those based on false confessions has led Lippman to form a task force to analyze and identify ways to reduce the incidence of innocent people spending years behind bars.
Warney was originally convicted of murder in the first degree at a time when he could have been subject to capital punishment. He would have been unjustly convicted and also could have been executed. The DNA testing led to the true perpetrator who has since stated that he acted alone and did not know Douglas Warney.
Emily Jane Goodman is a New York State Supreme Court Justice
This time he means business.
Mayor Michael Bloomberg unveiled a $65.6 billion budget Thursday, the 10th of his tenure, which reduces spending by 0.4 percent and threatens for the third year in a row to lay off thousands of teachers. Bloomberg said the city was slammed by cuts from Albany and the federal government, leaving the administration with little choice but to cut back in classrooms. As a result, the administration proposed to reduce the teacher headcount by 6,166 -- 4,666 through layoffs.
"I don't see either Washington or Albany approaching fiscal realities the way we do in our city," said Bloomberg just before delivering his semi-annual budget presentation via PowerPoint. "Government's job is not to employ as many people as possible or spend as much of the taxpayers' money as possible."
With state and federal cuts, the city faces a $4.6 billion deficit. The mayor did say he sympathized with the state's dire fiscal straits, but asked for fairness from Albany.
The mayor's budget proposal does not offer many more spending slashes than the fiscal plan the mayor unveiled in November. Some of the more severe proposed cuts, including the closure of at least 100 senior centers, come from proposals in Gov. Andrew Cuomo's budget and from funding reductions in Washington, Bloomberg said. A federal cut could slash the number of day care slots for lower income families by more than 16,600, officials said, 16 percent of the total available.
According to the Office of Management and Budget, the mayor's preliminary proposal would reduce the city workforce by 8,300 positions -- more than 5,000 of them through layoffs.
The mayor has proposed massive layoffs before, but few have actually materialized -- none have occurred in the classroom. Advocates questioned what made this year any different.
“Given the city’s growing revenues, along with the governor's clear statement that the state budget should not require local layoffs, the mayor’s insistence on teacher layoffs becomes more and more bizarre," said Michael Mulgrew, the head of the teachers union, in an e-mailed statement.
As the mayor painted a gloomy fiscal portrait from City Hall's blue room, some on the sidelines, like Mulgrew, looked on with skepticism. After the mayor announced layoffs, he also said the city had received $2 billion in unexpected revenue, which would soften the blow from state and federal cuts.
"We are in a much stronger position than most," Bloomberg explained.
But officials in the Bloomberg administration and at the City Council, who will negotiate the fiscal year 2012 budget with the mayor over the next four months, said, whatever has happened in previous years, this time it is serious.
This fiscal year the city will receive nearly $8.2 billion in federal aid. For fiscal year 2012, which starts in July, the city will see a 27.6 percent cut, down to $5.9 billion.
On top of that, the governor's budget proposal would affect $2.1 billion worth of city services.
The mayor's preliminary proposal assumes the city will be able to successfully negotiate in Albany for an additional $600 million. Some of that will come from an infusion of education and local aid funding, while part will come from rescinding part of uniformed workers' so-called "holiday bonuses." Reducing the $12,000 a year salary supplement would require the state legislature's approval.
Should the city fail to get this funding, Bloomberg said, the administration would have to go through another round of cuts. Since the recession, the administration has gone through nine rounds of slashes and cut a total of $5.2 billion in city services.
The administration, along with Council Speaker Christine Quinn, refuses to raise taxes.
All of this combined makes these cuts, particularly to teachers, more real this year, officials said.
"I think it's real based on the numbers," said Councilmember Robert Jackson, the chair of the council's Education Committee. "I don't blame him," he said of the mayor.
Others agree.
"He's right," said Citizens Budget Commission President Carol Kellermann. "The numbers are what they are. We've been using federal aid for education. We probably should have made some of these cuts sooner. Now we're kind of at a cliff."
Should the cuts to education occur, it's unclear how devastating they would be. The Bloomberg administration has been pushing Albany to repeal a state rule that requires the city to lay off teachers based on seniority. Getting rid of the restriction has been a key element of Bloomberg's agenda this year, and education officials say it is even more necessary since the city faces state education aid slashes.
"How it impacts the size of the classroom I don’t know for a fact," said Schools Chancellor Cathie Black at City Hall Thursday on the budget cut. "But it certainly has the possibility of raising class size."
Black said there are groups of teachers the administration would try to cut first, including teachers in a reserve pool who are awaiting a classroom assignment. Black said the education department would also look into laying off teachers who are deemed "unsatisfactory."
"I still think we will be dealing with teacher layoffs," Black said.
Outside of the schoolhouse wall, officials and advocates fear cuts that have reemerged from the mayor's fiscal plan in November.
Once again, the mayor has proposed to cut 20 fire companies. For the past two years, the City Council has come to the rescue of the Fire Department, restoring funds for companies the mayor plans to slash. This year, with so many teachers on the line, they may not be able to do that.
"It would impact our operations severely," said Fire Commissioner Salvatore Cassano of the proposed company closures. "Our response times would increase. I would be concerned if we had to do it."
In a prepared statement, Council Speaker Christine Quinn said she had "serious concerns" about teacher layoffs, the reduction of childcare slots and the fire company closures. The speaker also identified a $27 million state cut to senior centers as a council concern.
Department for the Aging Commissioner Lilliam Barrios-Paoli said that cut would close nearly half of the city's 256 senior centers.
"It's brutal," said the Barrios-Paoli. "To think [seniors] are going to walk 20 more blocks to go to another senior center, it's not going to happen. They are going to go hungry."
With state cuts, the city will also see a reduction in funding to its adult homeless shelters. The state also plans to eliminate rental support funding for former shelter residents.
The governor, mayor and the speaker of the City Council have said they would not raise taxes.
On Thursday some council members and advocates said the city should lobby Albany to extend the millionaire's tax, a personal income tax surcharge on the state's wealthiest, which is set to expire in December. Officials said that could bring in an additional $4 billion in Albany.
"At a minimum, we must continue the existing New York State [personal income tax] surcharge on high-income households," read a statement from the council's Progressive Caucus. "The surcharge is already in place, generating over $4 billion annually, with no evidence that it has driven wealthy New Yorkers to leave the state. In a time of crisis, it would be unconscionable to cut lifelines for our schools, our seniors, and our most vulnerable while waving bon voyage to billions of dollars in revenue that we are already collecting."
Earlier this year, Cuomo said he would let the tax surcharge die. Bloomberg has been extremely vocal against the millionaire's tax, contending it would result in affluent taxpayers fleeing the city.
Human Rights Watch, known internationally for fighting degradation and institutional suffering among the people of Africa, Indonesia, Latin America and other developing areas of the world, has turned its sights to New York City. The organization has issued a report -- to be made public today -- on bail and arraignment practices in our Criminal Courts. Following a two-year study, the report concludes that bail results in the incarceration of poor people, almost all of whom are black or Hispanic and are charged with non-violent crimes.
Human Rights Watch has found that every year the bail system in New York City penalizes thousands of poor people with pre-trial detention when they are arrested and charged with minor crimes. In these instances, the judges often require a fairly small amount of bail money. But that often is still more than the individuals and families involved can afford. (Bail is intended to insure that defendants return to court for trial after their arrest or risk losing the money they have posted.)
"The Price of Freedom: Bail and Pretrial Detention of Low-Income Non-felony Defendants in New York City," reports that 87 percent of defendants whose bail was set at $1,000 or less were jailed following their first court appearance for arraignment and remained incarcerated for an average of almost 16 days. Their crimes: shoplifting, prostitution, turnstile jumping, marijuana, possession of small quantities of drugs, trespassing. None were violent, and none involved weapons. In effect, these people served their sentences before ever been tried, much less convicted, since in many of the cases, the sentences eventually imposed would likely have been less than the time they spent at Rikers Island. These non-felony defendants awaiting trial constitute approximately one quarter of the population on Rikers.
The Human Rights Watch analysis found that the city could have saved $42 million in 2008 if the 16,649 non-felony defendants arrested that year who were unable to make bail of $1,000 or less had been released on their own recognizance or under some other alternative to incarceration. The report urges the city to create such an alternative. The cost of keeping a person confined in a city jail is approximately $73,000 a year.
According to Jamie Fellner, senior counsel at the U.S. Program at Human Watch who conducted the study and wrote the report, "Bail punishes the poor because they cannot afford to buy their pretrial freedom." Fellner found that judges sitting in Criminal Court tend to set bail at amounts that are unaffordable for indigent defendants.
"The pretrial incarceration of persons presumed innocent of minor crimes is a disproportionate and needless curtailment of liberty that is difficult to square with fundamental notions of fairness," Fellner's report concludes.
While the report did not provide a breakdown for the races of people affected by the bail policy it noted, "Although blacks and Hispanics combined constitute only 51 percent of New York City's population population, aggressive law enforcement in minority neighborhoods has led to them comprising 82.4 percent of all arrestees and a similar percentage of all criminal defendants."
It also cites city Department of Correction figures that 88 percent of people held on bail of $1,000 or less are black and Hispanic.
The only way a defendant charged with a misdemeanor or violation such as disorderly conduct can get out of jail quickly when a judge sets bail he or she cannot raise, is to plead guilty. Pleading guilty can mean walking out of the courthouse -- particularly if this is the first person's first arrest -- since many of the minor offenses do not carry any jail time, and the defendant has already served 24 hours by the time he or she appears in court. Others pleading guilty may get an Adjournment in Contemplation of Dismissal, meaning if they don't get arrested again within the next six months their case is automatically dismissed and sealed or they may receive a conditional or unconditional discharge.
Meanwhile, the defendant who asserts the presumption of innocence remains behind bars. Of the 19,137 non-felony defendants arrested in 2008 whose bail was $1,000 or less, 87 percent were not able to post that and had no one else who could. This helps explain why 99.6 percent of the convictions for misdemeanors are by guilty plea.
The report posits, "Judges may intentionally set bail at a level beyond a defendant's means when they believe the defendant will not return to court if released. Human Rights Watch found, however, that "failure to appear is not a widespread problem."
To some extent, the report is critical of judges for failing to use alternative means of assuring that an individual will return. The statutory alternative most readily available -- and which the report encourages -- is unsecured appearance bonds. These require that the defendant or someone else, such as a parent, signs a promise to pay a certain sum of money in the event that the defendant does abscond. This, often used in federal courts, avoids the need for money upfront. Many judges are unfamiliar with the possibilities and also are overwhelmed with the number of cases during an arraignment session. The unsecured bond does entail some extra paperwork for the clerical staff, but is till one of the recommendations in the report.
The second recommendation is for the city to develop pretrial supervised release programs that presumably would monitor defendants or require them to report in. The cost of such programs would, Human Rights Watch concludes, be far less than the cost of incarceration. And they would not infringe on the constitutional presumption of innocence by permitting pretrial detention based on poverty.
Human Rights Watch also recommends that judges set bail in accord with defendant's actual financial circumstances.
Emily Jane Goodman is a New York State Supreme Court justice. She was interviewed for the Human Right Watch report and read it before its publication.