Hope for the Wrongfully Convicted

Eric T. Schneiderman

By John Eligon

In a recent 79-page decision, a Manhattan judge could well have stopped after the first four sentences of his concluding paragraph and still conveyed his main point: that Fernando Bermudez was no longer guilty of murder.

Instead, the judge, Justice John Cataldo of State Supreme Court in Manhattan, tacked on a fifth sentence that ended with two powerful words: “actual innocence.”

By going further than merely finding that the murder conviction was wrongfully obtained — and by ruling unequivocally that Mr. Bermudez, of Washington Heights, did not commit the crime he had spent the past 18 years in prison for — Justice Cataldo injected hope into a movement.

To the layperson, the distinction might seem nuanced, if not trivial. But to advocates for the wrongfully convicted, Justice Cataldo’s decision, which was released Nov. 12, clawed toward what they viewed as a groundbreaking push to get New York State courts to focus more on the content of evidence, rather than procedural roadblocks.

“The Bermudez case, this dramatizes the need to ensure that actual innocence is established as a legitimate ground for a hearing,” State Senator Eric T. Schneiderman, a Manhattan Democrat, said.

Mr. Schneiderman is one of the sponsors of a bill introduced in the Senate last month that would add a provision to state law allowing judges to overlook procedural errors in a defendant’s case and overturn a conviction when the evidence before them “conclusively establishes” innocence.

State law generally allows wrongful-conviction appeals on two grounds. Either new evidence would have to have been discovered, or a defendant’s constitutional rights would have to have been violated at trial. The problem, experts say, is that these claims are shrouded in hefty procedural rules.

In a claim of newly discovered evidence, for instance, the defendant must show, among other things, that the evidence could not have been found during the trial. If a judge rules that it could have, then the judge can uphold the conviction, regardless of how compelling the evidence is.

An “actual innocence” statute, experts said, would give judges the leeway to excuse procedural violations, missed deadlines and other mistakes if the evidence is strong enough.

“It elevates substance over form,” said Glenn A. Garber, a Manhattan defense lawyer and founder of the Exoneration Initiative, an organization that focuses on innocence claims that lack DNA evidence. “If they know they’re required to engage in actual innocence analysis, it sends a message to courts that they have to do more when they’re confronted with compelling evidence of innocence.”

The full article is available here.