By Tess Cohen
At the end of the year, Governor Hochul vetoed two hard fought bills advocated for by criminal justice reformers. Though the signing of Clean Slate remains a huge win for advocates, two bills aimed directly at injustices in the system were rejected by the Governor over the winter holidays.
The first seems like a minor and wonky change — it would have prevented prosecutors from requiring individuals pleading guilty to waive their right to appeal of suppression decisions by lower court judges. So how would this bill have curbed police misconduct?
Right now in New York State court, people often plead guilty after losing a motion to suppress. These motions typically seek to suppress physical evidence on the grounds that a police officer stopped or searched someone or something in violation of the Constitution, or to suppress statements made by the person charged with a crime to police when those statements were taken in violation of the Constitution. Normally—absent a waiver — even after pleading guilty, someone could appeal the suppression decision to the appellate courts. However, prosecutors usually insist people waive their right to appeal the decision by the lower court judge when pleading guilty, effectively preventing an appeals court from reviewing suppression decisions in all cases except those that go all the way to trial.
These forced appeal waivers have two results — first, an additional check on police officers is removed from the process in all but the tiny number of cases that go to trial (only 1% of misdemeanors and 4% of felonies in New York State). Second, it makes our law slow to evolve. The more fact patterns contemplated by the appellate court, the more the law can grow to reflect new realities. This is especially crucial now as searches of electronic devices dominate criminal cases. Many in the defense community view the routine searches of the entirety of cellphones—for example—as a clear constitutional violation where search warrants allow searches that far exceed what the Constitution contemplates, but appellate courts so rarely have an opportunity to consider such situations that the law has been slow to adapt to todays new norms.
The second law the governor vetoed, the Wrongful Convictions Act, would have made several changes to make it easier for those who were wrongfully convicted to overturn their convictions. These changes would have included: (1) making it easier for people who are wrongfully convicted to get assigned counsel when they cannot afford one; (2) making it possible for those who pled guilty to provide new evidence to the Court proving their innocence; and (3) making clear that “newly discovered evidence” would include changes to expert testimony since the time of conviction.
Many who are wrongfully convicted, including some of our clients, spend years fighting to prove their innocence alone, searching for an attorney to take on their case pro bono. Innocence cases are legally and factually difficult, and, without an attorney to help navigate the system, nearly impossible to win. Providing assigned counsel would help.
Second, innocent people are all too often coerced into pleading guilty. Some plead guilty to avoid the risk of a high mandatory minimum sentence after trial. Others plead guilty because pleading lets them go home, while maintaining their innocence means staying on Rikers Island for years trying to prove their innocence. Right now, it is extra difficult for someone who pled guilty to get their conviction overturned. This proposed law change would allow people to prove their innocence if new evidence came to light after their guilty plea.
Third, the act would have clarified an important point: that newly discovered evidence can include new science. Too many people have been convicted on the basis of junk science, and while the law as written can (and should) be interpreted to include changes in scientific expertise as a basis to challenge a conviction after trial, the proposed change would have clarified that issue.
Advocates of these two laws will try again in the next legislative session to change the proposed laws to satisfy the Governor, and to convince her to make a different decision next year. Hopefully, they will get that done and make the criminal justice system a little more just.