N.Y.’s wrongful conviction act: Veto to stop endless re-litigation

A Siena poll last month made explicit what all New Yorkers sense: rising, often unpredictable crime in the Big Apple has residents scared. Around 90% of those surveyed believe crime is a serious problem, while nearly 40% reported worrying more about safety than ever before. In fact, more than a third bought a Taser-like device in the past year — and 17% purchased a gun.

Yet in this climate of intensifying fear, the Legislature has passed a bill that — without Gov. Hochul’s veto — will kneecap the very agencies responsible for representing New Yorkers against criminals: district attorneys. The deceptively named “Challenging Wrongful Convictions Act” will create bottomless opportunities for inmates to challenge even rightful convictions, drowning prosecutors in infinite casework, turning courts upside down, and letting criminals who belong in prison walk free.

N.Y.’s current Criminal Procedure Law Article 440 allows defendants, even those who pled guilty, to challenge cases after uncovering new, exonerating DNA or new evidence of violated constitutional rights. Defendants can challenge convictions if they didn’t understand their guilty pleas, were coerced into them, or were convicted because of police or prosecutor misconduct. Individuals convicted because of ineffective assistance of counsel or who weren’t warned of immigration consequences of a guilty plea, can challenge.

Additional pretexts exist if the court didn’t have jurisdiction; the defendant was mentally incompetent; improper and prejudicial conduct outside of the court affected the proceedings; or the defendant was convicted of a prostitution offense but was a victim of human trafficking.

But there are also critical built-in protections against the predictable impulse of the guilty and incarcerated to continuously challenge rightful case outcomes. Otherwise, the criminal justice system would buckle under the work of unending re-litigation.

The new bill drastically changes our 440 statute’s purpose — reconsidering trials that were based on fraud — and makes it about relitigating old facts.

For instance, if an inmate claims that any piece of evidence merely may have shown a constitutional violation, a judge could grant a hearing to revisit the case’s entire sentencing — now currently prohibited. Defendants could request retesting DNA evidence simply because it might create a more favorable outcome. Imagine 10 eyewitnesses saw the defendant holding the gun. The defendant didn’t request DNA testing at his conviction but does now, under the new bill, and someone else’s trace DNA is found. Even if the overwhelming witness testimony would still have led to his conviction the case will get automatically dismissed because, hypothetically, the DNA “could have created a more favorable outcome.”

And if DNA testing cannot be performed because evidence is unavailable, the case could potentially be dismissed even with no prosecutor malfeasance. Indeed, most of the scenarios above, could lead not just to a new trial, but potentially to automatic dismissal.

Under this radical bill, defendants could re-litigate whether a case’s very facts were true or false — rather than whether the prosecutor knew it was false and used it anyway.

The Daily News Flash

Weekdays

Catch up on the day’s top five stories every weekday afternoon.

Also radical: plea agreements could be tossed if new evidence surfaces, creating a reasonable possibility of a more favorable plea. This would send prosecutors back to pre-trial mode but, under the 2020 discovery legislation, with monumentally more burdensome compliance work. Assistant district attorneys (ADAs) face collecting irrelevant and redundant discovery material on decades-old cases.

Indeed, since the bill also gives defendants access to discovery files, prosecutors will have to produce material they never had. For example, pre-2020, ADAs didn’t need to collect precincts’ officer sign-in books associated with cases but substantively totally material. Now, an ADA may confront the Sisyphean hunt for decades-old precinct logs or face a tossed conviction!

The bill also permits defendants to apply for cleared convictions for crimes subsequently decriminalized. Currently, this is only true for marijuana laws because the legislation explicitly folded in retroactivity. But other offenses should still represent criminal guilt when they were committed, even if the laws have since changed.

Perhaps most radical: the bill will throw our courts into utter chaos, allowing cases that have been settled in appeals court to cycle back to trial court. A defendant would only have to allege one issue, even if it could have been raised at the original trial or has zilch to do with wrongfulness of conviction, to burden the courts with another go around.

Our criminal justice system faces an existential crisis. Following the 2020 discovery legislation, district attorneys’ offices statewide reported losing 40% of trial attorneys and struggling to find recruits. This new bill would increase prosecutor demoralization through meaninglessly redundant work and disregard to justice for victims.

Gov. Hochul: veto this disastrous bill before things get worse.

Meyers is a fellow and director of policing and public safety at the Manhattan Institute.