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Featuring Dallas District Attorney
Craig watkins
On Preventing Wrongful Convictions
and Exonerating the Innocent

OCtOBEr 29, 2007
thE harvard CluB
nEw yOrk City
taBlE Of COntEnts

About the Speakers                                      2

Transcript	                                             5

Who Is The Drum Major Institute for Public Policy      30

Also From the Drum Major Institute for Public Policy   31
thE drum majOr institutE fOr PuBliC POliCy
markEtPlaCE Of idEas sEriEs

PrEvEnting wrOngful COnviCtiOns
and EXOnErating thE innOCEnt

sPEakErs:

hOn. Craig watkins
Dallas District Attorney

hOn. janEt difiOrE
Westchester County District Attorney

Barry sChECk
Co-founder, The Innocence Project

hOn. EriC sChnEidErman
New York State Senate

Introduced and moderated by
andrEa Batista sChlEsingEr
Executive Director, Drum Major Institute for Public Policy




aBOut dmi’s “markEtPlaCE Of idEas” sEriEs:
Never content just to argue theory, DMI provides a platform
for policymakers who have successfully worked for social and
economic fairness in our public institutions. For far too long the
conservative right has defined the limits of what is “possible”
in society and politics. The “Marketplace of Ideas” shows that
we can transcend these artificial boundaries: it is possible to be
progressive, practical, and effective. Since its inception we’ve
heard from a wide range of speakers, including Congresswoman
Hilda Solis, who authored the nation’s first environmental justice
law; Minnesota Attorney General Lori Swanson, who initiated
tough standards to crack down on predatory mortgage lending;
Dallas District Attorney Craig Watkins, who transformed the
prosecutors’ role to include a focus on exonerating the innocent;
and Maine State Rep. Sharon Treat, who passed legislation
increasing access to affordable prescription drugs.
    PanElists and sPEakErs
    Craig watkins is the first African American District Attorney elected in Texas. As
    District Attorney for Dallas County, his SMART on crime initiatives engages innovative
    strategies throughout the prosecutorial process and seeks to address the root causes of
    why offenders commit crime. Watkins’ received a bachelor’s degree in political science
    from Prairie View A&M University and a jurist doctorate degree from Texas Wesleyan
    University School of Law. Watkins has received numerous awards and recognitions
    from a multiplicity of organizations and groups. He is a member of Friendship-West
    Baptist Church, Kappa Alpha Psi Fraternity, Prairie View A & M University Alumni
    Association, NAACP Dallas Branch and is affiliated with many professional and civic
    organizations. He has received honors and awards from many organizations for his
    outstanding accomplishments in our community:

         •   Dallas Urban League Torch Award

         •   Eclipse Magazine “Super” lawyers in January 2007 issue

         •   District Attorney Watkins was featured in the March 5, 2007 issue of JET

         •   District Attorney Watkins was featured in the May 2007 issue of Ebony
             Magazine as one of THE EBONY POWER 150

         •   District Attorney Watkins’ innovative strategies as the new D A in Dallas
             County has garnered him national and international attention from German
             TV, New York Times, CNN, 60 Minutes, Washington Post, L A Times, Chicago
             Tribune just to name a few.

    janEt difiOrE was sworn in as the 32nd District Attorney of Westchester County
    on January 1, 2006. District Attorney DiFiore served for more than ten years as an
    Assistant District Attorney in Westchester County under the administrations of both
    Carl A. Vergari (1981-1987) and Jeanine F. Pirro (1994-1998). For the last four and
    one half years of her service as a prosecutor, DA DiFiore served as Chief of Narcotics
    for the Westchester County District Attorney’s Office, coordinating drug enforcement
    and prosecution efforts within Westchester County. DA DiFiore also served the
    Westchester County District Attorney’s Office in the Rackets and the Homicide and
    Special Investigations Bureaus. Elected as a Judge of the Westchester County Court
    in 1998 and as a Justice of the New York State Supreme Court in 2002, DA DiFiore
    has presided over hundreds of cases in the County Court, the Family Court and the
    New York State Supreme Court. On February 14, 2003 DA DiFiore was appointed to
    serve as the Supervising Judge for the Criminal Courts in the 9th Judicial District. As
    Supervising Judge, her responsibilities included oversight of court operations for the
    criminal courts of Westchester, Dutchess, Orange, Rockland and Putnam counties.
    In addition to her courtroom responsibilities, DA DiFiore served on Chief Judge


2   dmi marketplace of ideas
Judith Kaye’s Commission on the Future of Criminal Indigent Defense Services, as the
NYS Unified Court System’s Coordinator for Access to Justice Initiatives, 9th Judicial
District, as a member of the Office of Court Administration’s Committee on Criminal
Jury Instructions, on the Westchester County Criminal Justice Advisory Board, on
the Westchester County Domestic Violence Council, on the Advisory Board of the
Westchester Holocaust Commission’s Juvenile Offender Program, on the Task Force on
the Future of Probation the State of New York and on Chief Judge Kaye’s Commission
on Drugs and the Courts.

Barry sChECk is a Professor of Law at the Benjamin N. Cardozo School of Law in
New York City, where he has served for more than twenty-seven years, and is the Co-
Director of the Innocence Project. He is Emeritus Director of Clinical Education, Co-
Director of the Trial Advocacy Programs, and the Jacob Burns Center for the Study of
Law and Ethics. Prof. Scheck received his undergraduate degree from Yale University
in 1971 and his J.D. from Boalt Hall School of Law, University of California at Berkeley
in 1974. He worked for three years as a staff attorney at The Legal Aid Society in
New York City before joining the faculty at Cardozo. Prof. Scheck has done extensive
trial and appellate litigation in significant civil rights and criminal defense cases. He
has published extensively in these areas, including a book with Jim Dwyer and Peter
Neufeld entitled, Actual Innocence: When Justice Goes Wrong And How To Make
It Right. He has served in prominent positions in many bar associations, including
the presidency of the National Association of Criminal Defense Lawyers. Since 1994
he has been a Commissioner on New York State’s Forensic Science Review Board, a
body that regulates all crime and forensic DNA laboratories in the state. From 1998—
2000, he served on the National Institute of Justice’s Commission on the Future of
DNA Evidence. For the past fifteen years, Scheck and Neufeld have run the Innocence
Project, now an independent non-profit, affiliated with Cardozo Law School, which
uses DNA evidence to exonerate the wrongly convicted. The Project also assists police,
prosecutors, and defense attorneys in trying to bring about reform in many areas of the
criminal justice system, including eyewitness identification procedures, interrogation
methods, crime laboratory administration, and forensic science research. To date, 206
individuals have been exonerated in the United States through post-conviction DNA
testing since 1989.

EriC. t. sChnEidErman grew up on Manhattan’s Upper West Side where he
attended Trinity School. Eric served for two years as a Deputy Sheriff in Berkshire
County, Massachusetts, where he started the first comprehensive drug and alcohol
treatment program at the Berkshire House of Corrections. After graduating with
honors from Harvard Law School, Eric clerked for two years in the U.S. District Court
for the Southern District of New York. He later entered private practice and became a
partner at the firm of Kirkpatrick and Lockhart.




                                                             dmi marketplace of ideas       3
    Eric has worked as an anti-crime advocate for his entire career. He served for over 10
    years as counsel to the West Side Crime Prevention Program, representing tenants,
    neighbors, and community groups in eviction proceedings against crack dens and drug
    dealers. As a founder of the Attorney General’s Anti-Crime Advocates program and a
    member of the board of the Lawyer’s Committee on Violence, Eric recruited, trained,
    and counseled private attorneys representing community groups striving to protect
    their neighborhoods from crime. Eric was elected to the New York State Senate in
    1998. He became Chair of the Democratic Senate Campaign Committee after only
    two months in office, and launched a series of unprecedented challenges to incumbent
    Republican Senators in the 2000 elections. Eric was so effective that the Senate’s
    conservative leadership—fearful of losing seats in marginal districts—was forced to
    abandon its long-standing opposition to many key progressive bills. From 2003-2006,
    Eric served as the Senate Deputy Democratic Leader. Eric has continued his work as a
    public interest lawyer throughout his years in office. In the Senate, he had been a leader
    in efforts to pass gun control, pro-choice and environmental legislation, to reform the
    Rockefeller Drug Laws, raise the minimum wage, and to provide universal health care
    for all New Yorkers.

    andrEa Batista sChlEsingEr has led the effort since 2002 to turn the Drum
    Major Institute, originally founded by an advisor to Rev. Dr. Martin Luther King, Jr.
    during the civil rights movement, into a progressive policy institute with national
    impact. Under Andrea’s leadership as Executive Director, DMI has released several
    important policy papers to national audiences including: ‘Congress at the Midterm:
    Their Middle-Class Record’ and ‘Principles for an Immigration Policy to Strengthen
    and Expand the American Middle Class.’ Andrea studied public policy at the University
    of Chicago. Andrea has worked in various capacities to promote educational equity and
    youth empowerment. She directed a national campaign to engage college students in the
    discussion on the future of Social Security for the Pew Charitable Trusts, and served
    as Director of Public Relations of Teach For America before working as the education
    advisor to Bronx Borough President Fernando Ferrer. Andrea has been profiled in the
    New York Times, New Yorker magazine, Latina Magazine and in ‘Hear us Now,’ an award
    winning documentary about her tenure as the student member of the New York City
    Board of Education. She has appeared on the ‘Lou Dobbs Tonight’ show on CNN and
    has been published in New York Newsday, Crains New York Business, The Mississippi Sun
    Herald, New York Daily News, Alternet.com, Tom Paine.com, New York Sun, Colorlines
    Magazine, The Chief-Leader and City Limits magazine. She is a contributor to The
    Huffington Post, on the Editorial Board of The Nation and was named a ‘40 under 40
    Rising Star’ by Crain’s New York Business, a “Next Generation of Political Leaders in
    New York’ by City Hall Newspaper, and received a LatinaPAC Dolores Huerta Award
    for ‘making great strides in promoting progress in our community.




   dmi marketplace of ideas
 transCriPt
 The transcript from this event has been edited for length and readability.
 Internet links are provided in footnotes throughout this transcript as resources for readers seeking
 to better understand the policy discussion. While we hope they are helpful, the Drum Major
 Institute for Public Policy is not responsible for the content or continued functioning of these links.


 andrEa Batista sChlEsingEr: Good morning everyone, my name is Andrea
 Batista Schlesinger. I am honored to work for the Drum Major Institute for Public
 Policy and pleased to welcome you to our Marketplace of Ideas speaker series this
 morning. At the Marketplace of Ideas, we are not just interested in theories that
 might work or people who can give the best speeches about an issue. Our Marketplace
 of Ideas series highlights successful city, state, and national public policies that
 New York should consider implementing. We do this by bringing you the brave
 and innovative policy makers who go through the messy processes of making
 good ideas reality.

  This morning we are delighted to bring you Craig Watkins, who recently took
  office as District Attorney of Dallas County, Texas. District Attorney Watkins is
  the first African American District Attorney in the entire state of Texas and, as
  such, he has faced many of the substantial challenges you may imagine. Dallas has
  the highest crime rate of all American big cities, as well as the highest amount of
  criminal convictions overturned due to DNA evidence. Mr. Watkins is meeting
  these challenges head-on. When Watkins became the Dallas District Attorney, he
                                                immediately began transforming his
dallas has the highest crime rate of all        office’s traditional ‘lock-‘em up and throw
american big cities, as well as the highest     away the key’ strategy into an approach
amount of criminal convictions overturned       that aims to be both smart and tough on
due to dna evidence. mr. watkins is meeting     crime. One of those smart on crime tactics
these challenges head-on…transforming his
                                                is making sure that the wrong person
office’s traditional ‘lock-‘em up and throw
away the key’ strategy into an approach that    does not get convicted of a crime that
aims to be both smart and tough on crime.       they did not commit. To do this Watkins
                  —Andrea Batista Schlesinger   implemented an open file policy with the
         Drum Major Institute for Public Policy
                                                District Attorneys’ office, automatically
                                                providing defense lawyers with access to
  all available evidence including witness statements and police files. Watkins has also
  advocated reforms to eyewitness identification procedures and has encouraged police
  cooperation with the national study of best practices. Watkins has also sought and
  gained support from the Dallas county commissioners to work with the Innocence
  Project of Texas1 to review criminal convictions involving DNA evidence. Together,
  Watkins and the Innocence Project will examine hundreds of convictions in which
  defendants claim innocence and have not had access to available DNA evidence. If
  you think this is just theory, since Watkins took office, two prior convictions have


    http://www.innocenceprojectoftexas.org/



                                                                        dmi marketplace of ideas           5
    already been overturned due to DNA evidence. As a powerful symbolic gesture,
    District Attorney Watkins personally attended the exoneration hearings to apologize
    to the exonerated men for their wrongful convictions and imprisonment.

    Here in New York, the Innocence Project just released a new report2 which found
    that 23 wrongful convictions have been overturned based on DNA evidence
    in this state, putting us just behind Texas and Illinois for the most convictions
    reversed. Considering this, it is particularly relevant to hear what Mr. Watkins has
    to say about the reforms he implemented in Texas. In addition to District Attorney
    Watkins, we also have a fantastic panel; including State Senator Eric Schneiderman,
    a leader on the issue of wrongful convictions; Westchester County District Attorney
    Janet DiFiore, a participant in making DNA evidence available to prevent wrongful
    convictions; and we also have Barry Scheck, Executive Director of the Innocence
    Project, the foremost advocacy group on
    wrongful conviction. So, thank you for            we have had this conversation in our country
    joining us. I am honored to introduce you         for over 30 years and it has centered on being
    to District Attorney Craig Watkins.               tough or soft on crime. as a result…we have
                                                                       gotten to a place where we have innocent
    distriCt attOrnEy Craig watkins:                                   individuals being convicted. not only do we
                                                                       have innocent individuals being convicted,
    Good morning and thank you for having                              but we also have a problem with our criminal
    me. I am from Texas, so this is kind of a                          justice system when it comes to recidivism.
    culture shock for it to be 50 degrees in                                     —Craig Watkins
    October. We are not used to that. You                                 Dallas District Attorney

    know, what really surprises me about this
    whole idea of innocence and actually having people imprisoned who did not commit
    crimes is the fact that we got to this point. The reason it surprises me is because
    when I took office as District Attorney, I realized the power of it. I realized that the
    folks who held this position in Dallas before I got here may not have realized the
    positions that they were in to really effect change.

    The reason I say that is because when you are a District Attorney, you have a lot
    of power, and it is not just from the aspect of the criminal justice system. There are
    so many things that you can do to improve the quality of life of for folks that you
    represent. It amazes me that the District Attorneys who came before me did not
    realize that. We have had this conversation in our country for over 30 years and it
    has centered on being tough or soft on crime. As a result of this type of conversation,
    we have gotten to a place where we have innocent individuals being convicted.
    Not only do we have innocent individuals being convicted, but we also have a
    problem with our criminal justice system when it comes to recidivism because of the
    simplistic tough on crime model that we adopted some years ago.

    Now, just a brief history about how we got here. I am sure you all know that earlier
    this century we had this drug epidemic that some of our lawmakers took advantage
    of by passing laws and procedures that lock individuals up for a long time for very

       http://www.innocenceproject.org/docs/ny_innocence_report.pdf



   dmi marketplace of ideas
  minor offenses. For drug cases, they would
  lock what I would term sick people up         if you punish people without rehabilitation,
                                                you really make the situation worse because
  and, as a result, those sick people would     that person is usually uneducated, has a drug
  get out and keep committing crimes, they      problem, and does not have a marketable
  would keep going back and those crimes        skill… they will still have a drug problem,
  would eventually become violent. And so       still be uneducated, and still not have a
  that is why we are here today. In Texas,      marketable skill after punishment… [and]
                                                would have an extra mark against them for
  our legislators just finished a session in    having a conviction.
  September and the conversation they were                                     —Craig Watkins
  having was about whether we should build                              Dallas District Attorney
  more prisons. We built a lot in the 90’s and
  here we are again in 2007 with that same question: Do we build more prisons?

  With all their infinite wisdom, they saw that just building prisons was not going
  to effect change and reduce our crime rate and protect the citizens of our state. So
  now we are continuing that conversation so that when 2009 rolls around we will
  be ready to implement funds, policies, and procedures that will protect citizens, and
  also ensure that folks who commit crimes are rehabilitated. If you punish people
  without rehabilitation, you really make the situation worse because that person
  is usually uneducated, has a drug problem, and does not have a marketable skill.
  What we see in the people we punish is that they will still have a drug problem,
                                               still be uneducated, and still not have a
in our county, we have had 13 individuals      marketable skill after punishment. So, the
that have been proven innocent of crimes       problem was compounded because those
that they did not commit. it all resulted from uneducated and drug addicted people
dna testing. when we got into office we        would have an extra mark against them
created a conviction integrity unit which is
                                               for having a conviction.
responsible for reviewing all of the cases we
prosecute to ensure that… we are punishing
the right people.                            So the philosophy we are bringing in Dallas
                           —Craig Watkins    County is a lot larger than the aspect of
                    Dallas District Attorney innocence and wrongful conviction. The
                                             innocence issue is sexy, people like to hear
  about that. However, we got to the point of punishing innocent individuals based
  upon the flawed ideology of being tough. In our county, we have had 13 individuals
  that have been proven innocent of crimes that they did not commit. It all resulted
  from DNA testing. When we got into office we created a conviction integrity unit
  which is responsible for reviewing all of the cases we prosecute to ensure that those
  convictions are right, to ensure that we are sending the right individuals to prison,
  and to ensure that we are punishing the right people.

  It goes even further than that because we also look at old cases. We feel that we have
  a responsibility to do so because of our history. When I first started arguing for this
  before our commissioner’s court, a lot of our commissioners did not understand why
  a District Attorney was concerned with prosecuting innocent individuals. However,
  according to statue, the role of a District Attorney is to seek justice, and that is what



                                                                 dmi marketplace of ideas          7
      we do. We seek justice, and not merely convictions, to ensure that justice is served.
      It is unbelievable that that it is a hard concept for our society to understand.

      Prosecutors are elected. It may be a good thing or it may be a bad thing, but because
      they are elected, they look at issues that are very simple. Some politicians take this
      office by getting on television and telling people that they are going to be tough.
      That is an easy concept because you can fit that within a 10 second sound bite and
      get your message across. A hard concept to explain to your constituents is that you
      want to be smart, and it is more than just saying: ‘I am going to be smart on crime’
      because you have to actually give an explanation of what that means. What it means
      is that we are going to look at the underlying issues as to why individuals commit
      crimes. If we look at that, we will protect the citizens we serve, and do more than
      merely punish.

       It is more than sending someone to prison hoping that they find what they need
       to better themselves. Besides looking to punish individuals, we should also look
       to rehabilitate them. The vast majority of the individuals that we prosecute in our
       county, and across the country, are non-violent offenders. The time that they spend
       in prison will likely be less than five years. So they are going to get out: that means
       they are going to come back and they are going to be our neighbors. So if we do not
       take the opportunity to rehabilitate those individuals, our neighbors coming back to
                                                   live with us will have no choice but to be
    in our state, we spend roughly $3 a day to    criminals for the rest of their lives.
    imprison an inmate, and we spend roughly
    $ a day to educate our children. when you     So here I come along in 2006, running for
    bring it to those terms, and you talk to the   a seat in Dallas County which had been
    staunchest conservative, they may understand
                                                   Republican for the last 30 years. I was
    that maybe we should put the money on the
    front end instead of the back end.             running as a Democrat, and not only that,
                                 —Craig Watkins    I was an African American who many
                          Dallas District Attorney considered to be young. So they looked
                                                   at all these electoral negatives and why I
      should not be elected. Fortunately, the citizens of our county were upset with the
      trend set with the prior District Attorney and our whole criminal system because it
      failed us. It failed us tremendously. So when we got elected, we started putting these
      policies in place.

      What surprises me is that when I go a lot of places and speak, people have this
      perception of what Texas is like and they think that I am going to be a one time
      District Attorney because I am doing things that folks in Texas just do not
      understand because they are simplistic people. They do not think that I will ever
      get elected again. However, people really have got on board with what we are
      doing in Dallas, even the staunchest conservative in our county believes in what
      we are doing because we are all human beings and people do not want to see
      someone punished or go to prison for something they did not do. That is an easy
      concept to understand.



     dmi marketplace of ideas
But, it even goes further that. When you look at the innocence aspect of what we are
doing—righting the wrongs of the past and ensuring that we do not make those same
mistakes—you must also look at the economic side of our criminal justice system.
In our state, we spend roughly $34 a day to imprison an inmate, and we spend
roughly $8 a day to educate our children. When you bring it to those terms, and you
talk to the staunchest conservative, they
may understand that maybe we should
                                                my opponent… campaigned on the fact that
put the money on the front end instead          he had sent a lot individuals to death row.
of the back end. You know that tough on         however, i explained to the constituents that
crime philosophy is reactive and it does        my opponent is campaigning on a negative;
not benefit us.                                 he is campaigning on the failures of the
                                                  system… we want a district attorney that will
                                                  be proactive, that is going to put the policies
My opponent in the election basically
                                                  and procedures in place so we do not have to
campaigned on the fact that he had sent           send someone to prison, so we do not have
a lot individuals to death row. However,          to send someone to death row. if we do that,
I explained to the constituents that my           citizens will be safer.
opponent is campaigning on a negative;                                     —Craig Watkins
                                                                    Dallas District Attorney
he is campaigning on the failures of the
system, he is campaigning on the fact that
he had to send so many people to death row. We want a District Attorney that will
be proactive, that is going to put the policies and procedures in place so we do not
have to send someone to prison, so we do not have to send someone to death row. If
we do that, citizens will be safer because we are protecting you.

Unfortunately, before we got there, our system was not protecting us. It was basically
sitting back and waiting for someone to commit a crime and then we would go in
and prosecute that individual. That is reactive and that does not benefit any of us. I
am not going to stand here and tell you that crime is not going to happen, but I think
that in the position that we hold, we can effect change and prevent a lot of it from
happening. As a District Attorney, I believe the role that we play is more than just
going into a courtroom arguing for someone to be punished. I think that I should be
an advocate for our citizens and that advocacy goes further than just the four walls
of a courtroom. Advocacy means that I address issues that traditionally you would
not think a District Attorney should address.

For example, as a prosecutor and as a defense attorney, the majority of individuals
that I had to defend and prosecute were uneducated. This is a hard concept for
people to understand. In fact, my opponent criticized me for talking about the
educational system. What he did not understand was that in Texas, 86 percent
of the individuals in prison never graduated from high school. To me, it was
clear that if we addressed that then we would not see those individuals in the
courthouse and we would not have to prosecute them. So what we are doing is a lot
larger than innocence.




                                                              dmi marketplace of ideas              9
     Change happens in the most unlikely of places. If you look at the Civil Rights
     Movement, you would think that maybe it would have started in New York, but it
     did not. You guys are far beyond Texas in your thinking, but it did not start here.
     It started in the worst place: Alabama. And so here we are again with this whole
     change in the criminal justice system. Where is it starting? It is starting in Texas.
     It is starting in Dallas County where we have one of the highest crime rates in the
     nation. We are one of the most violent cities and worse than that, we have sent more
     innocent individuals to prison than any other county in this country.

     So it is befitting that we are bringing that change in Texas and Dallas County. I
     think it is befitting that you asked me to come here because it is the worst place. And
     because it is the worst place, we can effect the most change. We are hoping that what
     we are doing will spread across this country. We need to rethink this whole issue of
     criminal justice. Sitting in this seat, you see the best that society offers and the worst
     of it and, as such, I believe we should use all the tools that we have to progress the
     criminal justice system.

     It is unfortunate the way we imprison our citizens in this country, and it is
     unfortunate how we treat them when they get out. We are all human beings and
     we should have a humanistic approach to crime and punishment. That is something
     that we have forgotten about in this
     country. Now, do not get me wrong. I
                                                      Change happens in the most unlikely of places.
     believe that some people cannot be helped.       if you look at the Civil rights movement…
     I mean, some people are just the most            it started in the worst place: alabama. and
     violent offenders and they should go to jail     so here we are again with this whole change
     for the rest of their lives. But I do believe    in the criminal justice system. where is it
                                                      starting? it is starting in texas. it is starting
     that the vast majority of individuals that
                                                      in dallas County… i think it is befitting that
     we deal with can be saved. If we allocate        you asked me to come here because [dallas]
     the necessary resources to rehabilitate          is the worst place. and because it is the worst
     those individuals, and not only punish           place, we can effect the most change.
     them, they can re-enter our society and                                          —Craig Watkins
                                                                               Dallas District Attorney
     be productive citizens. Then we will not
     have to worry about the high crime rates
     we have in this country. We can have a civilized criminal justice system, one that we
     have not had for years. I believe that we are on our way. Thank you for having me. I
     look forward to sitting on this panel.

     andrEa Batista sChlEsingEr: We have a fantastic panel. I am going to
     introduce them in turn, ask them some questions, and then we will open up the
     discussion. I first want to introduce State Senator Eric Schneiderman. Eric was
     elected to the New York State Senate in 1998. He is the ranking Democrat on the
     Senate Codes Committee, which deals directly with criminal justice issues. He has
     worked as an anti-crime advocate for his entire career. He served 10 years as counsel
     to the West Side Crime Prevention Program.3 He founded the Attorney General’s

        http://www.wcppny.org/



10   dmi marketplace of ideas
Anti-Crime Advocate’s Program, and he is a member of the board of the Lawyer’s
Committee on Violence. Eric is a graduate of Harvard Law School and a frequent
target of conservatives in the State Senate. After his support of the Governor’s initial
proposal to extend driver’s licenses,4 he became even more of a target so we have
body guards to escort him in and out. (Laughter)

So, Senator Schneiderman, a couple of weeks ago, the Innocence Project released
a report, taking New York to task for its failure to take steps to prevent wrongful
convictions. Seventeen states have considered legislation this year to improve
eyewitness ID procedures, New York has not. Twenty-two states have statutes
mandating the preservation of crime scene
evidence but New York does not. Six                seventeen states have considered legislation
states, five of which have had far fewer           this year to improve eyewitness id procedures,
known wrongful convictions than New                new york has not. twenty-two states have
                                                   statutes mandating the preservation of crime
York, have formed innocence commissions
                                                   scene evidence but new york does not…what
to identify the causes of wrongful                 is happening in new york? why are we so
convictions and develop remedies to                far behind?
prevent them. New York has not. Even                                 —Andrea Batista Schlesinger
though DNA has exonerated more in New                       Drum Major Institute for Public Policy

York who falsely confess than any other
state, of the nine states that require at least some interrogation to be recorded, New
York does not. More than 500 local jurisdictions across the country recorded at least
some interrogation; only two of those were in New York. What is happening in New
York? Why are we so far behind?

statE sEnatOr EriC sChnEidErman: Right now nothing is happening in the
State Senate or in the State Assembly. We are joined today by a very distinguished
colleague of mine, Assemblyman Joe Lentol who is the Chair of the Assembly Codes
Committee. And in mid-June Joe and I were on a conference committee on a bill to
deal with the issues that the District Attorney was just discussing: preservation and
cataloguing of DNA evidence, the possibility of an innocence commission, changing
our procedures for dealing with eyewitness identification and the videotaping of
confessions. The Majority Leader Senator Bruno and the Governor decided they
didn’t want to do business together and it was ‘pencils down’ – we all went home
and we have not really done much since. I do believe that we were really close
enough on a lot of aspects of that issue that we should be able to close on it soon if
everyone goes back to work. The coming year is an election year and I do believe we
will be able to do something.

I think the District Attorney did a wonderful job identifying the simplistic thinking
about criminal justice that is driven by sound bites and poll numbers. When we
sat on the conference committee, the leader of the Senate Republicans on that
committee, Deputy Majority Leader Skelos, said at the outset, “we are really only


   In September 007, New York Governor Eliot Spitzer unveiled a plan to allow undocumented immigrants to qualify for
    state drivers’ licenses. For more on the plan see http://www.drummajorinstitute.org/library/article.php?id=



                                                                                 dmi marketplace of ideas                11
        interested in doing things relating to DNA evidence that will help us catch and
        imprison more people.” So we said, “we are also interested in the exoneration of
        the innocent.” He said: “that’s fine, if that’s what you are interested in. We are
                                                     interested in things that will help us catch
     the kinds of…reforms in the system that we      and imprison more people.” So we are still
     now have an opportunity to press and that       dealing with this tough on crime, sound
     make common sense—such as rehabilitation,       bite mentality and everything the District
     re-entry, fixing eyewitness identification,     Attorney said is total common sense and I
     interrogations, cleaning up the crime labs—
                                                     think it is hard to believe that we are still
     are all pro-law enforcement, these are all wins
     for the system that are not necessarily liberal having this conversation.
     or conservative positions. they are just smart
     on crime positions.                          I think we have to increase our
                                   —Barry Scheck  expectations of our elected officials if we
                             The Innocence Project
                                                  are going to get anything done. There is
                                                  no reason we cannot pass all the basic
       reforms you were speaking about in this coming year. Unfortunately, there does
       not seem to be much political pressure on the conservatives in the legislature to see
       things in a bigger context. I hope that with expanded public consciousness that will
       happen. I appreciate all the compliments about how smart we are up here: I would
       urge you to spend one day with us in Albany, maybe it could change your mind a
       little bit. [Laughter].

       andrEa Batista sChlEsingEr: Thank you. Janet DiFiore was sworn in as
       the 32nd District Attorney of Westchester County on January 1st, 2006. District
       Attorney DiFiore has dedicated her career to public service as both a judge and
       prosecutor in Westchester. District Attorney DiFiore served for more than ten years
       as an Assistant District Attorney in Westchester County under the administrations
       of both Carl Vergari and Jeanine Pirro and for the last four and half years of her
       service as a prosecutor, she served as Chief of Narcotics for the Westchester County
       DA’s Office.

       District Attorney Watkins talked about the pressure on DAs, and researching his
       experience, I learned that his proposals were called ‘Hug-a-Thug.’ He certainly got
       his fair share of a hard time. It is safe to assume that in Texas those pressures
       would exist on DAs, especially considering DA Watkins’ predecessors. But do those
       pressures exist for DAs in New York? And to what extent are those pressures an
       obstacle for pushing for the kind of policies that could reform the system?

       distriCt attOrnEy janEt difiOrE: DA Watkins began the conversation about
       the role of the modern day prosecutor’s office in our community. And I think that
       most enlightened people recognize that our role has expanded. We have moved
       beyond the provision of those traditional, reactive prosecution services as our only
       role. Now prosecutors are problem-solving members of our community. Prosecutors
       are obligated and responsible for finding proactive, more holistic ways to become
       involved in the community, understanding what the social issues are that drive
       crime and making sure that we are working not only to prosecute the crimes that


12     dmi marketplace of ideas
are committed but to find ways to prevent
crimes from being committed. I think             [w]hen you come to the courthouse and you
                                                 are impaneled on a jury and we ask that you
that most people have been paying more           send someone to prison, what is the likelihood
attention to the role of the prosecutor.         that you will not have in the back of your mind
Every opportunity I get, I tell people the       that you may be making the wrong decision?
prosecutor is the most important local           it is larger than just the innocence side of
office in your government. The prosecutor,       things. it is about restoring credibility to the
                                                 system…
as DA Watkins said, has tremendous
                                                                                 —Craig Watkins
power sited in his or her office. I think                                 Dallas District Attorney
people are beginning to realize that unlike
any other officeholder, the work that our offices do impacts whether or not people in
our community are receiving justice in the courts. People are educated to that issue
and people expect more of us.

andrEa Batista sChlEsingEr: Barry Scheck is a Professor at Benjamin Cardozo
School of Law, where he has served more than 27 years. Professor Scheck has done
extensive trial and appellate litigation, and significant civil rights and criminal
defense. He has served as the President of The National Association of Criminal
Defense Lawyers,5 and for the past 15 years Barry Scheck has run the Innocence
Project; now an independent non-profit affiliated with Cardozo Law School which
uses DNA evidence to exonerate the wrongly convicted.

Obviously, each conviction makes a splash in the press. It is a profound moment
when we realize that someone has served time in jail for a crime that he or she did
not commit. How pervasive do you think wrongful convictions are in our system?

Barry sChECk: Well, there are a lot of ways to calculate that. Anybody that thinks
they know the exact number of wrongful convictions is just kidding themselves. If
we knew that we would tell you. But we have seen a lot of evidence that it is much
larger than people expect. There is evidence from cases going through in Virginia
that it is a significant rate. But the most important aspect, frankly, is learning
what went wrong from these cases. That is what makes these 208 exonerations so
important. When Jeffrey Deskovic6 was exonerated in Westchester of a homicide
he did not commit through a false confession, Janet DiFiore was the first District
Attorney in our state, and just about in the country, that convened a blue ribbon
panel of a former judge, a former prosecutor, and a defense lawyer to actually take a
look at an entire case. They reviewed the entire Deskovic case, issued a report on it,
and tried to learn lessons from it.7

I can tell you about what Craig Watkins is doing because the Innocence Project
has cases all across this country, in various jurisdictions. What Craig told you this


   http://www.nacdl.org/
   Jeffrey Deskovic served  years in prison for a murder and rape he did not commit. He was exonerated by DNA
    evidence and released from prison in September 00. See http://jeffreydeskovicspeaks.org/
7   A copy of the Westchester District Attorney’s report on the Deskovic case can be found here:
    http://www.westchesterda.net/jeffrey%20deskovic%20Comm%20rpt.pdf



                                                                                 dmi marketplace of ideas          13
     morning, I hope you recognize, is really historic, because he is being successful
     politically by just talking common sense about what is a real change in the criminal
     justice system. The Convictions Integrity Unit is literally reviewing hundreds of
     cases that the prior administration did not look at it in a completely open-minded
     way, which is a shame. One thing I should say about Dallas County is that they saved
     samples. I am by no means convinced that there are more wrongful convictions in
     Dallas than there are in New York. The truth of the matter is that if there had not
     been a real problem with preserving the evidence here in New York—and this is
     something where Chairman Lentol8 and Senator Schneiderman have been really
     trying to help by get an evidence preservation statute9 passed—we would have
     found many more wrongful convictions.

     Alan, could you stand up for a second? This is Alan Newton,10 who has spent over
     two decades in prison for a crime he did not commit. Alan for years has been seeking
     his evidence to do a DNA test, and it was right there. But people did not really
     look hard enough for it. The evidence
     preservation facility at Pierson Place
                                                    seventy-five percent of your exonerations
     in New York has had a fire, pestilence,        involve eyewitness identifications. so what
     frogs, (laughter) all of the things that can   does that tell us about all of the cases using
     happen, and they cannot find anything.         eyewitnesses, particularly eyewitnesses
                                                                        identifying someone of a different race or
     Otherwise we could have fifty, sixty,           ethnicity? how many people are in jail all
                                                     across the country where there is no dna
     seventy exonerations out of New York
                                                     evidence, but the same flawed eyewitness
     City alone, just because of its size. So what   procedures were used?
     is really going on here is something that                               —Eric Schneiderman
     is a phenomenon nationwide. The kinds                                 New York State Senator
     of things that Craig Watkins mentioned
     about all the different reforms in the system that we now have an opportunity
     to press—such as rehabilitation, re-entry, 11 fixing eyewitness identification,12
     interrogations,13 cleaning up the crime labs—are all pro-law enforcement, these
     are all wins for the system that are not necessarily liberal or conservative positions.
     They are just smart on crime positions. And the time has come. We are on the eve of
     a criminal justice reform movement in this country. If we do this right, it is unlike
     anything we have seen since the Warren Court.14 And if you have any doubt about
     it, just listen to Craig Watkins.


         Joseph Lentol chairs the New York State Assembly’s Codes Committee, which is responsible for criminal justice issues.
          See http://assembly.state.ny.us/mem/?ad=050
         http://assembly.state.ny.us/leg/?bn=a93
     0   http://www.innocenceproject.org/Content/227.php
        “Reentry” refers to the process of reintegrating former offenders back into society after their release from prison
          or jail.
        For more on the problems with commonly used eyewitness identification procedures,
          see http://www.innocenceproject.org/understand/Eyewitness-misidentification.php
        For more on interrogation procedures that can produce false confessions,
          see http://www.innocenceproject.org/understand/false-Confessions.php
        Under Chief Justice Earl Warren (-) the U.S. Supreme Court mandated substantial changes in criminal
          procedure such as ruling that indigent defendants charged with felonies had a right to counsel and that suspects must
          be informed of their rights before police interrogation.



1   dmi marketplace of ideas
andrEa Batista sChlEsingEr: Well, whenever you can be pretty confident
that an issue is not liberal or conservative, you can leave it to the Wall Street Journal
op-ed page to turn the issue into a liberal or conservative one. (Laughter). So, now
I am gong to become very unpopular with this audience. A Wall Street Journal op-
ed15 written by Morris Hoffmann,16 a judge in Colorado, calls you, I am sure with
affection, “innocence merchants.”

Barry sChECk: That is not as bad as Stephen Colbert calling us murderer-huggers.
(Laughter).

andrEa Batista sChlEsingEr: Let’s see what everyone’s calling everyone at the
end of the breakfast. (Laughter) I think it is important to discuss whether we agree
that this movement greatly exaggerates the prevalence of wrongful convictions.

For instance, Judge Hoffmann says:

       “Of course the work of Innocence Projects is incredibly important and should
       be celebrated, even if the Projects identify just one wrongfully convicted
       defendant, let alone hundreds. But it is a mistake for them to stretch their
       results beyond all statistical sense. All defendants are entitled at trial to the
       scrupulous assumption of their innocence. They are not entitled to the post-
       conviction presumption that the criminal justice system is about as reliable as
       tossing a coin.”

What do you think? Are the implications of this conversation that we are creating
the sense that the system is unreliable? And I want to ask District Attorney Watkins
to jump into this conversation as well, because obviously it does not know any
state boundaries.

distriCt attOrnEy Craig watkins:
I do not think we are creating it. I think         recently at a national academy of sciences
                                                   hearing, the government and the anti-
the system created it already. If you just
                                                   terrorism people were saying: “you know
look at our history, it has been proven that       what? i guess we really have to find out the
the criminal justice system is unreliable.         best way to do fingerprints, the best way to
So, either we are just going to accept that        do ballistics, the best way to do many of
or we are going to do something about it.          these different forensic assays because it is
                                                   important to catch terrorists.” it is important
You people in this room, when you come to
                                                   to the national security, just as it has always
the courthouse and you are impaneled on            been important to the domestic security.
a jury and we ask that you send someone                                            —Barry Scheck
to prison, what is the likelihood that you                                  The Innocence Project
will not have in the back of your mind
that you may be making the wrong decision? It is larger than just the innocence side
of things. It is about restoring credibility to the system, to make you comfortable, to


 http://online.wsj.com/article/sB117755557313302.html
 http://www.courts.state.co.us/district/02nd/judges/2distmhoffman.htm



                                                                          dmi marketplace of ideas   15
       make you feel like you are doing the right thing. And unfortunately, I believe that a
       lot of people do not feel that way, and rightfully so. And so we need more attorneys
       that can think outside of the norm and look at it from a different perspective, not
       just that perspective of appearing tough, but the perspective of being fair and doing
       the right thing. And so we did not create this, we are just responding to it. So, I
       disagree with the comment of Judge Hoffmann.

       andrEa Batista sChlEsingEr: But is there a danger to the overall
       credibility of the system? Is there anything to the argument that we are
       creating a self-fulfilling prophesy?

       statE sEnatOr EriC sChnEidErman: The aspect of this that we have to pay
        attention to is that there was this national movement to incarcerate a far larger
        number of people than we ever had in the history of the United States, over the
        last couple of decades. So this is not just written on a blank canvas. The study
        of criminal justice presents different theories of why we incarcerate someone:
                                                     rehabilitation, punishment, deterrence.
     One sticking point [in establishing a dna       The one that really came on the scene
     database in new york] has been “rogue           in a big way in the last couple of decades
     databases” that are brazenly illegal… [they]    was incapacitation, just taking people off
     make people in the communities reluctant to
                                                     the streets: that this was good in and of
     give dna samples because you are taking it
     without telling them that you are putting it
                                                     itself. And I think the ugly truth about
     into a databank that can be searched against    this is that people do not really care about
     everyone else… it is bad law enforcement,       the details. They say that these are bad
     frankly, to take people’s dna without telling   kinds of people and we want them off the
     them what you are going to do with it. it feeds
                                                     streets. Then, all of a sudden you wake up
     into people’s worst fears…
                                                     and you have 2.2 million people in prisons
                                    —Barry Scheck
                              The Innocence Project  in this country. So that dynamic did result
                                                     in some less attention to detail.

       There are two aspects of the work we are doing on legislation. One is the blocking
       and tacking of DNA evidence; preserving it, and having the right for post-conviction
       review. But the other aspect is the innocence commission,17 which calls into
       question every other part of the criminal justice system. Seventy-five percent of your
       exonerations involve eyewitness identifications. So what does that tell us about all
       of the cases using eyewitnesses, particularly eyewitnesses identifying someone of a
       different race or ethnicity? How many people are in jail all across the country where
       there is no DNA evidence, but the same flawed eyewitness procedures were used?
       I agree with Craig Watkins, I think that the credibility problem is there because of
       criminal justice policy.

       andrEa Batista sChlEsingEr: Self-fulfilling prophesy?




       7 http://www.innocenceproject.org/docs/ny_commission_release.pdf



1     dmi marketplace of ideas
Barry sChECk: Of course that is true. A fellow named Josh Marquis,18 who was
supposed to become head of the National District Attorney’s Association, used to
call it the innocent sham,19 meaning that, if you look at all felony arrests and you
compare the number of exonerations; it is an infinitely small number. However, this
really misses the point. Actually if you want to be really intellectually scrupulous
about it, there have been a number of studies that now come up with a wrongful
conviction rate of about three percent.
Sam Gross has done some studies on
                                               [in] the large majority of cases in which
that.20 And Professor Michael Risinger         someone has been wrongfully convicted,
has just published on this.21 We will do       there has been an element of prosecutorial
more and more research in this area.           misconduct…[we need] to say to our
                                                                  prosecutors that this may be a bad guy, but
However, I do not think that this is the                          we want to ensure that we have the right
                                                                  guy on this case because if we do not, and
point we learn from all of this. Yes, there
                                                                  we convict this person, then the person who
are procedures on doing eyewitness                                actually committed the crime is still out there
reform: we can use laptop computers,22                            committing crimes.
it is something that they are going to be                                   —Craig Watkins
                                                                    Dallas District Attorney
looking at in the Dallas Police Department
and they are also doing it in Charlotte,
North Carolina. We should be doing it here in New York, but sometimes it is awfully
hard to move the New York City Police Department because it is so big. There are
best practices that we know will reduce the number of incorrect identifications
without reducing correct ones, such as videotaping interrogations. It is a very simple
reform, but hard to get politically.

The truth is, and this is what is hopeful, is that in this whole area of forensic science,
DNA testing has changed everything because it is such a hard and reliable and
robust science. Everybody is looking back at other techniques and wondering about
them. Recently at a National Academy of Sciences hearing,23 the government and
the anti-terrorism people were saying: “You know what? I guess we really have to
find out the best way to do fingerprints, the best way to do ballistics, the best way to
do many of these different forensic assays because it is important to catch terrorists.”
It is important to the national security, just as it has always been important to the
domestic security.

andrEa Batista sChlEsingEr: Let’s keep talking about the DNA. The Governor
and Lt. Governor have proposed, as many of you may know, an expanded DNA
database in New York so that anyone who is convicted of a felony or a misdemeanor

 http://www.ndaa.org/ndaa/profile/joshua_marquis_may_june_2002.html
 http://www.nytimes.com/200/01/2/opinion/2marquis.html?_r=1
0 See: Gross, Samuel R., Jacoby, Kristen, Matheson, Daniel J., Montgomery, Nicholas and Patil, Sujata, “Exonerations
   in the United States,  through 00” Journal of Criminal Law and Criminology, Vol. , No. , 00
   http://papers.ssrn.com/sol3/papers.cfm?abstract_id=7530
 See: Risinger, D. Michael, “Convicting the Innocent: An Empirically Justified Wrongful Conviction Rate”
   (September , 00). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=9315
 Laptop computers are used to present lineups of criminal suspects sequentially, rather than simultaneously, which
   improves the accuracy of eyewitness identifications. For more, see http://www.innocenceproject.org/Content/1151.php
 http://www.nasonline.org/site/Pageserver?pagename=saCklEr_forensic_presentations



                                                                                 dmi marketplace of ideas                17
     would have their DNA collected.24 It seems that their express purpose in part was
     to prevent wrongful convictions. It seems that the Innocence Project and Senator
     Schneiderman would be natural allies. District Attorney DiFiore, I am not sure
     where you were on this, but I would love to hear it. It seemed that no one was an ally
     of Governor Spitzer on this proposal. What is the nature of the opposition?

     statE sEnatOr EriC sChnEidErman: The political opposition, interestingly
     enough, was a resistance on the part of a lot liberal organizations to expansion of the
     database because there was a lack of confidence in the system frankly. I think those
     fears to a great extent have been reduced and I think we are now running into the
     logistical problems like not having the resources. If we read Barry Scheck’s report, if
     you look at Mr. Newton’s case, we see that our system is a mess. We do not have the
     resources to handle the cases that we have now. So that is one aspect of it.

     I do not think that there frankly is much political resistance to doing a significant
     expansion now. However, we have to address issues other than just expanding
     the database; mandatory guidelines for preservation and cataloging, increasing
     judicial discretion, and the bizarre rule in New York that calls into question the
     ability of someone who pleaded guilty to
     be exonerated even if there is evidence
                                                    we tend to focus on the police and the
     absolutely demonstrating they are              prosecutors’ work when we come to one of
     innocent. So, I think that these other         these revelations [about wrongful convictions].
     issues are holding us up in my view.           what we do not focus on is inadequate
                                                                  funding for indigent defense work. when i
     Barry sChECk: One sticking point has                         was a judge on the supreme Court . . . i found
                                                                  that new york has talked a good game about
     been “rogue databases”25 that are brazenly
                                                                  supporting indigent defense, but we have not
     illegal. Governor Pataki26 was able to ram                   put our money where our mouth is.
     rogue databases through over the objections                                —Janet DiFiore
     of the Forensic Science Commission, and                       Westchester District Attorney
     over the objections of former Judge Peter
     McQuillan who said it was brazenly illegal. This regulation justified the collection
     of DNA samples by law enforcement from innocent bystanders. So in other words,
     if you are the victim of a sexual assault, law enforcement takes your DNA because
     they need it to work the case, and they take the DNA of your sexual partner, or they
     go to a crime scene and they get DNA from all the people that live in the area, or all
     the suspects.

     The law enforcement was not authorized by statute. And they have been keeping
     these local databanks, and they should not be doing that. That really is an invasion of
     people’s privacy. It is going to make people in the communities reluctant to give DNA
     samples because you are taking it without telling them that you are putting it into a
     databank that can be searched against everyone else. I simply do not understand it.


      http://www.nytimes.com/2007/05/1/nyregion/1dna.html
      http://www.usatoday.com/news/nation/2007-03-25-dna-databases_n.htm
      George Pataki was Governor of New York State from  to 00.



1   dmi marketplace of ideas
  It is bad law enforcement, frankly, to take people’s DNA without telling them what
  you are going to do with it. It feeds into people’s worst fears, particularly in minority
  communities. I absolutely do not understand why they do not give that up in return
  for expanding the databanks. So to me, this is the political issue that has been a
  problem in the state. And it’s amazing to me that it persists.

  andrEa Batista sChlEsingEr: District Attorney Watkins, you talked about
  how prosecutors in your office are working hard on these cases and about how
  they have a public role. But what about the flip side? To what extent do we need
  to talk about prosecutorial misconduct in order to get the broader question of
  wrongful convictions? Everybody knows about the prosecutor when it came to a
  case involving three white relatively affluent students of Duke.27 It was very clear
  that there was misconduct and that misconduct was addressed relatively quickly.
  But to what extent is there a frank conversation about the relationship between that
  kind of misconduct and the issue of wrongful convictions?

  distriCt attOrnEy Craig watkins: What we have seen since we have been in
  office is that in the large majority of cases in which someone has been wrongfully
  convicted, there has been an element of prosecutorial misconduct, and that is
  unfortunate because I believe that the majority of individuals that are prosecutors
  are good people. I think they just get caught up in trying to do what seems right in
  their minds.

  A lot of times, individuals that come through the system have some kind of criminal
  history. At the same time, the prosecutor has a victim there that they are dealing
  with. That prosecutor may think that it is okay to just withhold information because
  it will get this criminal off the street, and no one would be any wiser of it, and
  the right thing is being done. But that is unfortunate. You get all these innocent
  individuals that are going through the system, and it just destroys the credibility of
  the whole system.

                                               So the difficulty that we are faced with
the defense attorney’s role: basically he is a is to change that mindset; to say to our
hired gun; he is there to get his client off. But
                                               prosecutors that this may be a bad guy, but
a prosecutor has to look at it differently. he
has to look at the best practice, what is going
                                               we want to ensure that we have the right
to be best for my community.                   guy on this case because if we do not, and
                           —Craig Watkins      we convict this person, then the person
                    Dallas District Attorney   who actually committed the crime is still
                                               out there committing crimes. And so it is a
  mindset that we are dealing with. I think it is prevalent across the country. I think to
  change it, we just have to look at it differently. The prosecutor has to be a little more
  careful in his approach and really take the emotional side out of the equation when
  he deals with a defendant.



  7 For details on this case, see http://en.wikipedia.org/wiki/200_duke_university_lacrosse_case



                                                                                    dmi marketplace of ideas   19
       distriCt attOrnEy janEt difiOrE:
                                                        Everybody agrees that the death penalty costs
       And that goes back to what we were
                                                        more than not having a death penalty, every
       saying before about the prosecutor               study of it. when you look at what you could
       being the most important office in local         do with that money to strengthen the criminal
       government. The elected District Attorney        justice system in so many other ways, and you
       has an obligation to be a leader not only in     compare it with the cost of a life sentence
                                                        without parole, all of a sudden the statistics
       the community but of course within their
                                                        begin to change.
       own organization. It is to up us, people
                                                                                      —Barry Scheck
       like Craig and myself, to set the bar at a                               The Innocence Project
       very, very high level and to constantly
       be searching for ways to engage in education and training and reminding our
       prosecutors about our mission. Our mission as prosecutors is very simply stated: it
       is enhanced public safety for everyone in our community, but achieved through fair
       and just dispositions. And when you constantly remind people about honoring that
       responsibility, that obligation, and setting the bar high, I believe that that is where
       we get to the end.

       statE sEnatOr EriC sChnEidErman: It is interesting that we are here with
       two prosecutors who are clearly enlightened on these issues. You have come in and
       taken a hard look at some cases that went on before. Is this an argument that District
       Attorney is the one office where term limits are appropriate so that we will have
       people who will review things? If you guys were here in ten years, and you were
       looking back at your own cases, would your approach be the same?

                                                      distriCt attOrnEy Craig watkins:
     i think it really was the reexamination of That is a very good question. The reason
     [capital punishment] which brought out a
                                                I was never a prosecutor in Dallas County
     lot of the dna exonerations. it forced people
     to take a look at this and acknowledge what
                                                was so that I would not have any ties to
     many of us have sensed for a long time: it the old administration protecting itself.
     has never been fairly administered by any  And so because I did not, we now have
     jurisdiction in this country, and the best opened the doors and we are looking at
     indicators of whether or not you might end up
                                                all the problems that we had in the past.
     on death row are class, race, and intelligence
     rather than culpability.
                                                And if my opponent had been elected they
                           —Eric Schneiderman   would have never looked at this because
                         New York State Senator he was a part of that. And so I would hate
                                                to be term limited out, but that is a fair
       question. That is something we have to look at because obviously if I make a mistake,
       twenty years from now I hope that I would have the mental capacity to admit it. But
       unfortunately we are human and a lot of times we do not.

       distriCt attOrnEy janEt difiOrE: You know part of my obligation as the
       District Attorney in Westchester County is to not only make sure that we do our
       work in the courts every day, but also to make sure that I am out in the community
       letting people know who we are, letting people know about our work, and raising
       the confidence of our community in understanding that we have no agenda in the



20     dmi marketplace of ideas
prosecutor’s office but enhancing public safety in a fair and honest and straight
forward way. When you work without an agenda to honor your responsibility
you are not afraid to look back when things go wrong because you have no
wrongheaded agenda. Mistakes happen and we work in a rough world. We work
in a very delicate world and many considerations and circumstances evolve as we
prosecute these cases.

But once again the most important point I could make is that when you are focused
only on your mission and there is no other agenda, you are not afraid to look back
on our work when you discover that things went wrong. I hope that if I have the
energy, and the people in my community have confidence in my job, that if I am here
twenty years from now, I will have the confidence to look back and be not ashamed
of our work.

Barry sChECk: I should mention very quickly the other thing that you cannot
overlook as a cause of wrongful conviction is inadequate defense—when the defense
is under-funded, does not do its job, or is grossly incompetent. You see that in all
these cases. In fact, when you wonder about how bad forensic science could exist
for so long in so many jurisdictions with some of these people that were absolute
frauds or even about law enforcement misconduct, a lot of that is to the defense
bar not being able to do their job vigorously. So, let us not forget the bad defense
lawyers. We have a bill here in New York that I hope we finally get passed by the
state with some adequate funding.28 We had some of great public defenders and
court appointed lawyers that were being paid practically nothing until the courts
fixed it after decades. They were being paid rates that were lower than those paid in
Texas, Alabama, Mississippi or anyplace you want to pick. So you know, there are
probably a lot of wrongful convictions because those lawyers were not doing the job
in the State of New York.

distriCt attOrnEy janEt difiOrE: I think that Barry makes an excellent point.
We tend to focus on the police and the prosecutors’ work when we come to one
of these revelations. What we do not focus on is inadequate funding for indigent
defense work. When I was a judge on the Supreme Court, I sat on the State of New
York Commission on the Future of Indigent Defense Services.29 We went around
the state, and we conducted public hearings in four different areas of the state. I
found that New York has talked a good game about supporting indigent defense,
but we have not put our money where our mouth is. The more people who focus on
funding indigent defense services to make them robust and meaningful, the more
we do not have to worry as prosecutors about the other side of the case not being as
strong and as robust as it should be.

distriCt attOrnEy Craig watkins: I think we are all in the same boat. I think
the prosecutor’s role is so important; we are adversarial with the defense. The


 http://assembly.state.ny.us/leg/?bn=a907
 http://www.courts.state.ny.us/ip/indigentdefense-commission/



                                                                  dmi marketplace of ideas   21
     defense attorney’s role: basically he is a hired gun; he is there to get his client off.
     But a prosecutor has to look at it differently. He has to look at the best practice, what
     is going to be best for my community.

     For example, you get a 17-year-old kid; he has got the wherewithal to get a very good
     lawyer. That defense attorney may know that his client is guilty but that is not his
     role. His role is to get his client off. So during the negotiations, the lawyer decides
     that they do not want to take any kind of offer given, and that they are going to go to
     trial. Traditionally the prosecutor at that point would go to trial and maybe win the
     case and he will try to get the maximum punishment for the individual, which may
     be prison time because he had to go to trial.

     But then you have to take a step back and ask what is best for the community. Even
     though I have to go through the adversarial process as a prosecutor, is it in the benefit
     of society to send this individual to prison? Or, should I plan an approach that will
     rehabilitate this person, give him probation? So I think the role we play is so much
     larger than just a defense attorney. When you look at, even though that defendant
     may not have adequate representation, it
     is still the prosecutor’s responsibility to     you talked about a lot of guys who were
     ensure that the right thing is done, not        innocent like alan newton and jeffrey
     only from the punishment aspect of it, but      deskovic… i ran into a republican state
                                                     senator… and he said, “now look, maybe
     from the guilty/innocent side of it.
                                                       they were not guilty of that crime, but you
                                                       know they were guilty of something!” and,
     andrEa       Batista      sChlEsingEr:            that was very disturbing to me, and i think it
     District Attorney Watkins, you have all           ought to be disturbing to you.
     admitted here and spoken passionately                                      —Joseph Lentol
     about the system’s flaws and in particular                 New York State Assemblymember

     about the possibility of someone innocent
     being sent to prison. How do you reconcile that with supporting and playing an
     active role in continuing to push the death penalty? It is somewhat difficult to say
     you are sorry when someone has already been wrongfully executed. How do you
     reconcile those two positions?

     distriCt attOrnEy Craig watkins: Well, Texas, we send a lot of folks to Death
     Row—that is what we do. And it is unfortunate that we do that. And I do not
     know whether I am for or against the death penalty. It is kind of hard to answer. It
     depends on when you ask me. When I sit in my office and look at the crime photos
     of a heinous murder, as a human, I am for the death penalty. But then when I leave
     church on Sunday morning, I am against the death penalty. So it just depends.
     Unfortunately, it is the law in Texas and we have a responsibility to enforce it and
     we have to live up to the wishes of our constituents. You know, I think that as we go
     along as a society, this whole idea of the death penalty will change drastically. If you
     look at history, older societies actually have decided that it is cruel and unusual. Our
     country is still a young society. So, we still deal with it.

     Barry sChECk: Well I think that death penalty is not so much a moral question


22   dmi marketplace of ideas
now in this country. If you look at Europe, you will see that still 60 to 65 percent of
people asked whether they are for capital punishment say that they are. But when
you ask them if they want it back in their country, they do not because they do not
trust the state to get it right. Everybody agrees that the death penalty costs more
than not having a death penalty, every study of it.30 When you look at what you
could do with that money to strengthen the criminal justice system in so many other
ways, and you compare it with the cost of a life sentence without parole, all of a
sudden the statistics begin to change. And so there is a real expectation that maybe
in December of this year the death penalty could end in New Jersey and then in
February there is a chance that it could be repealed in Maryland. 31 When you begin
to look around and you begin to see that this issue is changing. It is no longer the
third rail of American politics to say that you have qualms about the death penalty.
Except I have to say Texas is a continuing
exception, if you have been there. But
there is some evidence already that some         in order to be effective, the district attorney
                                                 cannot act in a vacuum. we will only be as
people that have been executed in Texas
                                                 effective as our relationships allow us to be.
were innocent. So, I think it is beginning       and i am not only talking about with our
to cause some concern there as well.             traditional partners in the law enforcement
Certainly the editorial board of the Dallas      community, but also about our relationships
Morning News came out against capital            with our partners in government, in the
                                                 senate, in the assembly, our partners in our
punishment after a few of the exonerations
                                                 local government, our partners in the non-
in Dallas.32 So you can really see this issue    profit world and, most of importantly, our
changing. It is obviously going to take          partners in the community.
some time but it definitely is changing.                                        —Janet DiFiore
                                                                                        Westchester District Attorney
statE sEnatOr EriC sChnEidErman:
And Barry, I think the work of you and your colleagues has been tremendously
important. I was part of a group of lawyers in the early 90’s who formed a pact to
try and stop the death penalty from coming back into New York. I remember at that
time our attitude was that we had lost. I mean the death penalty was coming back. It
is coming back nationally, it is very popular. I think it really was the reexamination
of the process which brought out a lot of the DNA exonerations. It forced people to
take a look at this and acknowledge what many of us have sensed for a long time: it
has never been fairly administered by any jurisdiction in this country, and the best
indicators of whether or not you might end up on death row are class, race, and
intelligence rather than culpability. So, this is another example of DNA opening up
the door and calling into question other aspects of the system.

andrEa Batista sChlEsingEr: I want to turn it over to the audience if you
have any questions or comments. However, so as to not to put you on the spot, I will


0 For example, see http://www.urban.org/uploadedPdf/1125_md_death_penalty.pdf
   http://www.comptroller.state.tn.us/orea/reports/deathpenalty.pdf and http://www.njpp.org/rpt_moneyfornothing.html
 New Jersey did abolish capital punishment in December 007, but the repeal effort failed in Maryland.
   See http://www.nytimes.com/2007/12/17/nyregion/17cnd-jersey.html and
   http://www.washingtonpost.com/wp-dyn/content/article/2007/03/15/ar200703150111.html
 http://www.dallasnews.com/sharedcontent/dws/news/longterm/stories/01507dnltsedideatharchive.129aa0f.html



                                                                                  dmi marketplace of ideas              23
     first turn to a couple of guests that we are
     excited to have here to ask questions.                             there is a growing concern in communities
                                                                        of color, especially in new york City, about
                                                                        the need for special prosecutors because the
     First, Professor Ronald Sullivan,33 who is                         so-called progressive district attorneys and
     faculty director of the Harvard Criminal                           prosecutors that you are talking about do not
     Justice Institute at Harvard Law and                               exist. Or, they do not seem to exist in very
     a founding fellow of the Jamestown                                 serious problems with police-community
     Project.34 Professor Sullivan, do you have                         issues like in sean Bell’s case, and other cases
                                                                        where it seems as if the prosecutor is working
     a question for the panel?                                          too closely with the police department.
                                                                                                             —Bill Perkins
     rOnald sullivan: Thank you. With                                                               New York State Senator
     respect to how we learn from wrongful
     convictions in order to not make these mistakes in the first place, how has it worked
     with respect to other institutional actors? For example, the police. One thing you
     mentioned was open files, and open files are a great thing, but what I found in other
     jurisdictions is that when a progressive prosecutor will come in and say we will
     have open files, police officers will stop writing reports, and stop putting witness
     statements in the files. So what a progressive District Attorney attempts to do
     sometimes gets undermined by other institutional actors. I am wondering if you
     could say a word or two about how you get people who are not on your payroll to
     undertake the reforms that you are trying to get through?

     distriCt attOrnEy Craig watkins: The District Attorneys in our state can
     accept or reject a case from the police department. And if the police department has
     not lived up to their responsibility in the investigation, we will just kick it back to
     them and say, “you need to investigate this case.” So the onus is put upon them to
     make sure that they adequately investigate the case, and adequately note the file so
     that we have everything in it that we need. So they really cannot say that they are
     not going to put witness statements in there because we have to have those. What
     we have seen is that, as a result of this conversation, the police departments are
     pressured into getting on board with it.

     For example, the double-blind system of a lineup.35 When it has been proven in
     a majority of these cases that eyewitness identification was a problem, that is a
     problem of the police department. And if they do not address that, the public will
     then say: “You have this progressive DA who is doing things to make sure that we get
     the right person, so what are you doing to make sure that you bring the right person
     to the District Attorney’s office?” It is a conversation that we just sit down and have.
     I believe that they see the writing on the wall and they are going to upgrade their
     policies and procedures to keep up with what we are doing.

     Barry sChECk: I actually can vouch for that. In going into the Dallas Police


      http://www.law.harvard.edu/faculty/directory/facdir.php?id=77
      http://www.jamestownproject.org/
      A double-blind lineup occurs when the police administrator lining people up for eyewitness identification does not
        know which person is the suspect. For more, see http://web.jjay.cuny.edu/~mkovera/blindlineup.htm



2   dmi marketplace of ideas
Department and talking with them about
eyewitness reform, the chiefs there were        One of the biggest injustices i saw as a
                                                public defender was innocent people pleading
very knowledgeable, much more receptive
                                                guilty all the time to avoid the longer
and, frankly, more willing to change than       sentences that they would suffer at trial.
here in New York City where we raised           there are whole list of factors that go into why
this issue with Commissioner Kelly. It is       somebody innocent would plead guilty but it
interesting because New York City is not        happens all the time.
                                                                                —Susan Marcus
one of those places where they denied
                                                                                        Attorney
that this makes some sense. However,
when you talk to the New York Police
Department about changing it, they just say: Do you know how big we are? Do you
know how much it is going to take? It is really, really hard to move our bureaucracy
in this city. Whereas I have some optimism that it is going to move faster in places
like Dallas.

andrEa Batista sChlEsingEr: Chairman Lentol?

assEmBlymEmBEr jOsEPh lEntOl: I want to congratulate the panel, I really
learned something this morning. You made some excellent points, and I do not
know that I can add to any of the discussion except to say that I disagree with Mr.
Scheck on one score. I do not think it is only the rogue databases that have caused
the problem of not being able to pass a comprehensive bill in the State Senate. In
the Assembly, we have passed a very comprehensive bill that encompasses all of the
reforms mentioned in that Innocence Project proposal. Unfortunately the Governor
has not yet seen it fit to embrace those proposals, but we think he will in the future.

The second thing that I think is very important for you to know is that, after our
conference committee regarding the reconciliation of the two bills, meaning the
bill that has all the reforms in it that I talked about and the bill proposed by the
Governor, which has some reforms but not nearly enough, I ran into a Republican
State Senator who asked me: “What are you doing with this? What are you crazy
putting this in?” Now, you talked about a lot of guys who were innocent like Alan
Newton and Jeffrey Deskovic, and he said, “Now look, maybe they were not guilty
of that crime, but you know they were guilty of something!” And, that was very
disturbing to me, and I think it ought to be disturbing to you.

statE sEnatOr Bill PErkins: I am Senator Bill Perkins36 and I represent
the 30th district which includes the other half of Manhattan from Senator
Schneiderman; sort of the Harlem, East Harlem, Morningside Heights, Washington
Heights area. I have a concern about special prosecutors that I want to raise but in
doing so I just want to underscore Chairman Lentol’s point: I had the unfortunate
opportunity to represent, as the family spokesman, a group of young men known
as the Central Park Five. Barry Scheck was very helpful with that case and
these were young men who were accused of the heinous rape of a Central Park

 http://www.nyssenate30.com/



                                                                dmi marketplace of ideas           25
     jogger. Ultimately, it was proven that they were innocent, and that their confessions
     were coerced.37

     But recently in the course of a debate on the death penalty, one of our colleagues
     in the Senate, Republican side, in making his case for the death penalty mentioned
     the Central Park jogger case and how these young men ultimately were found to
     be innocent. In his remarks, he said: “but you know they must have been doing
     something wrong to have been in the park anyway.” By the way, the park is across
     the street from the development where they lived, and the development was designed
     to be across the street from the park so it could be available as their playground.

     So that is just to make a point that unfortunately there is a growing concern in
     communities of color, especially in New York City, about the need for special
     prosecutors because the so-called progressive District Attorneys and prosecutors
     that you are talking about do not exist.38 Or, they do not seem to exist in very
     serious problems with police-community issues like in Sean Bell’s case,39 and other
     cases where it seems as if the prosecutor
     is working too closely with the police
     department. So, the credibility issue that   i believe that new york is already on the
     you raised is very important. There is       forefront here because of the innocence
                                                  Project and Barry scheck. what he has
     a call for special prosecutors as a way      done has taken root across the country and i
     of getting some sort of faith that the       believe that your government is going to have
     process will be legitimate and will be fair. to recognize that, take issue with it, and get
     Any comments on the whole question of        on board with what is going on.
     special prosecutors?                                                       —Craig Watkins
                                                                                                  Dallas District Attorney

     distriCt attOrnEy Craig watkins:
     I do not know New York but I can tell that is the same problem we have in Texas.
     So, when I came in I basically sent a message that there are three branches of
     government and they check one another. And even though we worked closely with
     the police department, we would not rubber stamp what they do. And that was
     something that they did not like. They were used to the District Attorneys basically
     doing everything that they said to do, rubber stamping everything they brought to
     us. So part of our goal is to really change that mentality, and to tell them; look we
     support you with what you do, but we are also going to make sure that you are doing
     it right. And, that is a message that needs to be sent across the country, basically we
     are not just another extension of the police department, we are there to make sure
     that you are doing your job right, and that you are there to check us too.

     statE sEnatOr EriC sChnEidErman: I think that also speaks to this issue of the
     long term relationship between professional prosecutors and police departments. By

     7 For more on this case,
        see http://query.nytimes.com/gst/fullpage.html?res=90E0dE1E3df933a15751C1a99CB3
      For more on calls for special prosecutors to pursue cases of police misconduct in New York,
        see http://www.gothamgazette.com/article/civilrights/2003002/3/09
      In 00 Sean Bell, who was unarmed, was shot and killed by New York police the night before he planned to be
        married http://www.nytimes.com/200/11/2/nyregion/2cops.html



2   dmi marketplace of ideas
necessity, they do end up becoming tremendously close and it is a problem. That is
another reason that we need a truly independent Sentencing Commission, which
is in Assemblyman Lentol’s version of the DNA reform bill. The Governor wanted
something that was a part of the Department of Criminal Justice Services. We need a
truly independent body to re-examine these cases and challenge the powers that be.

Barry sChECk: I should say on this whole issue of prosecuting police officers, which
is really the hardest kind of prosecution, when we represented Abner Louima40 we
saw just how difficult those kinds of prosecutions can be. One of the things apparent
from looking at the Louima case, the Diallo41 case, in the many police shooting cases
in New York, is that there is something that has to be straightened out.

One thing that really does remain is clearing up communications between
prosecutors, the city, and the police department. And it is not a violation of the
Constitution, when there is a shooting by police officers, to go to the crime scene and
simply ask the officers immediately there what happened. That is something that can
be done. There is a false belief that just even asking what happened is necessarily
going to trigger what we call GO-15 immunities,42 which is not the case. I do not
know whether getting a special prosecutor is necessarily going to help if you do not
get statements as they do in virtually every other major city across the country. They
can get statements immediately from the officers involved in shootings about what
happened. How can you even do a crime scene if you cannot get a statement initially
from the officers about what happened?

So I have looked at a lot of these police shooting cases, and I do not know whether a
special prosecutor matters unless the initial investigation is conducted in a way that
is sufficiently cognizant of the rights of officers, yet still asks what happened. That
is the primary sticking point we have in New York, and I think that the prosecutors
and police department ought to get on the same page as far as that is concerned.

andrEa Batista sChlEsingEr: Question?

susan marCus: I am Susan Marcus, and I was a public defender at the
Neighborhood Defender Services of Harlem.43 Senator Schneiderman mentioned
the resistance to exoneration when there has been a guilty plea, and of course most
of our cases plead. One of the biggest injustices I saw as a public defender was
innocent people pleading guilty all the time to avoid the longer sentences that they
would suffer at trial. There are whole list of factors that go into why somebody


0 Abner Louima was brutalized by New York City police officers after his arrest in 7. Two officers were convicted in
   connection with the case. For more,
   see http://cityroom.blogs.nytimes.com/2007/0/09/the-abner-louima-case-10-years-later/
 Amadou Diallo was shot to death by New York City police officers in . Although he was unarmed, the officers who
   killed him testified that they believe he was drawing a weapon and were acquitted of all charges.
   http://en.wikipedia.org/wiki/amadou_diallo
 GO- refers to the New York Police Department’s internal investigations and discipline process. Information that
   officers provide as part of GO- hearings is not admissible in Court. For more on this process,
   see http://www.sbanyc.org/news/legal_articles_1103.htm
 http://www.ndsny.org/



                                                                                   dmi marketplace of ideas                27
     innocent would plead guilty but it happens all the time. So what room is there in
     the advocacy movement, for these types of cases, which in my mind are all over the
     place and very pervasive?

     statE sEnatOr EriC sChnEidErman: It is in the Lentol bill. On this particular
     point, just so we clear up any political misconceptions, the Governor came out with
     a bill that was not a very good bill on these issues. Assemblyman Lentol’s bill is an
     excellent bill addressing things that were completely omitted from the Governor’s
     bills, such as eyewitness procedures, but also the question of videotaping confessions,
     which is a major aspect of this. I think that again this is something that the DNA
     evidence has opened the door to that we have not pursued nearly enough. If a few
     people who plead guilty are exonerated beyond any question by DNA evidence, how
     many other people who pleaded guilty also were, in fact, innocent? I think we are
     just scratching the surface on this as far as trying to turn public opinion around.
     This is worse even than the public’s bizarre belief in the accuracy of eyewitnesses,
     even though that has been demonstrated to be false for years. This is something we
     are going to undertake now but there is tremendous resistance in terms of the basic
     public attitude about it and framing it.

     andrEa Batista sChlEsingEr: I promised our panelists that we would end
     exactly on time and we are nearing that time. I know there are questions unanswered,
     so the conversation will also continue on our blog,44 where we will ask the panelists
     to chime in with answers or comments if they can. But I wanted to just run down
     the line here and ask the panelists if they would close by offering what they think
     (a) the public should be doing around this issue, and (b) about New York being a
     leader when it comes to questions both of innocence and criminal justice reform?

     Barry sChECk: There is no reason why New York should not be a leader in so
     many of these areas because a lot of these reforms started here. But I walk away
     this morning, and I hope all of you are, impressed with what Craig said at the very
     beginning. Would it not be great, and I think it is really happening, if Dallas began
     leading the way? Every time we at the Innocence Project go lobby in all these
     different states where we talk about eyewitness reform, we say, “Well, the first
     experiments using these laptop computers we expect are going to be in Charlotte,
     North Carolina; Dallas, Texas; Tucson, Arizona; maybe Louisville.” I am glad to
     say that they are all red states. So, I am very optimistic and the primary reason I am
     optimistic is because something really historic is going on in Dallas. I hope you all
     take that away today.

     distriCt attOrnEy janEt difiOrE: I join Barry. I too am optimistic and I think I
     am optimistic because we are at a place and time now where we have many forward-
     thinking people on the prosecution, the police, and the defense side of the criminal
     justice area. We have forward- thinking people who are focused on public safety.
     And as I heard Barry say a couple of times, the reforms that he advocated are not

      http://www.dmiblog.com/archives/2007/10/liveblogging_the_marketplace_o_2.html



2   dmi marketplace of ideas
liberal, they are not conservative; they are about enhancing public safety. And now
that we are at a point where we are all recognizing that we can agree to disagree on
certain ways to get to the place. We all are like-minded and that is enhancing public

safety for all of us. And Assemblyman Lentol, I am looking forward to working with
you and having a discussion with you on some of those issues.

statE sEnatOr EriC sChnEidErman: I am also optimistic, and in very realistic
terms, there are two things in New York that I think provide a basis for my optimism.
The first is that we are in the process of reviewing virtually everything in the
criminal justice system through the Sentencing Commission that the Governor has
appointed.45 Assemblyman Lentol and I, and some other people here who have been
working with the Sentencing Commission, have seen work that is tremendously
impressive. On the issue of treatment and rehabilitation which District Attorney
Watkins referred to, we have enough data now to be able to say with really quite
a high degree of certainty, what programs actually work. So we are not just in a
situation where we can be accused by our more conservative colleagues of just
throwing money at things that do not work. There is a lot of evidence out there to
support real reforms, and to focus on rehabilitation and re-entry.

The second thing that gives me optimism is that I am quite convinced that in January
of ‘09 we will have a new majority in the New York State Senate and Assemblyman
Lentol and I will be able to pass all the Lentol bills. But it is very important for
advocates to tee the issues up because my colleagues are just as capable of selling
out as anyone else, so let us tee these issues up and make sure that this is at the top
of the agenda for the Democratic conference when we do take over the Senate in
January ‘09.

distriCt attOrnEy Craig watkins: I believe that New York is already on the
forefront here because of the Innocence Project and Barry Scheck. What he has
done has taken root across the country and I believe that your government is going
to have to recognize that, take issue with it, and get on board with what is going on.
I do not think they want to be left behind. Eventually the work of the Innocence
Project will reach a level where the government here will have to respond to it.

andrEa Batista sChlEsingEr: So I just wanted to thank everyone and again I
am sorry that there were questions that were not answered. The panelists who can
stick around will. I think the overwhelming consensus is that this issue is not just
about those who are wrongfully convicted but about faith in the system at large.
So thank you again to the panel. And once again, the point of our Marketplace
of Ideas series is that we don not just have to talk about this rhetorically. We can
actually meet practitioners, like DA Watkins, who are putting progressive values
into practice. [End]


 For more on the New York State Commission on Sentencing Reform
   see http://www.criminaljustice.state.ny.us/legalservices/sentencingreform.htm



                                                                                   dmi marketplace of ideas   29
     whO is thE
     drum majOr institutE
     fOr PuBliC POliCy?
     The Drum Major Institute for Public Policy is a non-partisan, non-profit think tank
     generating the ideas that fuel the progressive movement. From releasing nationally recognized
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     BOard Of dirECtOrs                      staff
     William B. Wachtel                      Andrea Batista Schlesinger
     Chairman & Founder                      Executive Director
     Rev. Dr. James Forbes                   Amy M. Traub
     Vice Chairman                           Director of Research
     Deborah Sagner                          Cristina Jimenez
     Secretary                               Immigration Project Consultant
     Morris Pearl                            Harry Moroz
     Treasurer                               Research Associate
     John Catsimatidis                       Kia Franklin
                                             Civil Justice Fellow
     Bruce Charash
                                             Lauren Su
     Cecilia Clarke                          Operations Manager
     Sandra Cuneo                            Mark Winston Griffith
                                             Senior Fellow, Economic Justice
     Jennifer Cunningham
                                             John Petro
     Rosanna M. Durruthy
                                             Policy Analyst, Urban Affairs
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                                             Penny Abeywardena
     Robert F. Kennedy, Jr.                  Director of Strategic Relations

     Martin Luther King, III                 Suman Raghunathan
                                             Immigration Project Coordinator
     Tom Watson
                                             Veronica Gonzalez
     Randi Weingarten                        Administrative Associate
     Jennefer Witter                         Tsedey Betru
                                             Director of DMI Scholars
     Andrew Young, III
                                             Chauncee Smith
                                             Corinne Ramey
                                             Kaitlin McGovern
                                             Matt Graham
                                             Tyler McClelland
                                             Interns




30   dmi marketplace of ideas
alsO frOm dmi

thEmiddlEClass.Org 2007 COngrEssiOnal sCOrECard
March 2008 / Did your representative make the middle-class grade?
DMI takes a closer look at the decisions made by Congress in 2007,
from the one-year freeze to prevent the Alternative Minimum Tax from
hitting middle-income families to the filibuster that originally torpedoed
a minimum wage increase, and the trade bill that put the interests of
multinational corporations before the concerns of middle-class Americans.
Examining 13 bills in detail, this report assigns a grade to each Member of
Congress based on his or her votes for or against the middle class.

dmi On thE 200 statE Of thE uniOn
January 2008 / The more Americans demand change, the more President
Bush’s State of the Union address stays the same. DMI examines the
President’s domestic policy agenda in-depth and finds the same worn out
ideology that has repeatedly failed America’s middle class, from inadequate
proposals to address the home mortgage crisis to a stimulus package that
favors pet projects over proven methods of generating economic growth.
Future leaders will determine whether the President’s distorted worldview
lives on and continues to afflict the nation.

ElECtiOn ‘0: a PrO-Civil justiCE PrEsidEntial PlatfOrm
January 2008 / Our civil justice system empowers citizens to advocate
for their rights and protect themselves against undue harm, ensuring that
everyone, even powerful corporations and our government, abides by the
rule of law. The report outlines common-sense steps the next president
can take to improve access to the civil court system, from establishing a
right to civil counsel in certain critical cases to creating a presumption that
federal laws will not preempt state regulations that protect public health
and safety, economic fairness, and social justice.

thE 2007 dmi yEar in rEviEw
December 2007 / It’s hard to turn a big ship. Many of the worst shocks
of 2007 were the continued fallout of years of wrong-headed right-wing
policy to deregulate, starve the public sector, and privatize at every
opportunity. But the minimum wage hike, increased aid to students, and
green initiatives at the state and local level provided new hope. DMI 2007
Year In Review explores the year’s best and worst public policy, looks at
six snapshots of the nation and provides a recommended reading list for
progressives. Also included: a hawk’s eye view of what the think tanks on
the conservative right are up to, and, as always, the 2007 Injustice Index.

lEssOns frOm thE markEtPlaCE: fOur PrOvEn PrOgrEssivE
POliCiEs frOm dmi’s markEtPlaCE Of idEas
May 2007 / In Maine, moderate-income residents buy prescription drugs
for as little as half the retail price. In San Francisco, some violent criminals
are 82 percent less likely to commit new crimes after their release from
prison. In Minnesota, the public can reclaim subsidies when economic
development incentives don’t produce the promised results. In Oklahoma,
92 percent of four-year-olds attend a high-quality public preschool. This
report recounts how these successful policies got started, and how they can


                                                                             dmi marketplace of ideas   31
Marketplace of Ideas
In the Marketplace of Ideas, we don’t just
talk about problems, we highlight policies
to address them and the policymakers that
made them work.


“The Drum Major Institute’s recent forum on increasing accountability and
 developing better uses for economic development subsidies with Minnesota
 State Senator John Hottinger was both informative and enlightening. I
 found it so useful to hear about the ideas of both colleagues in government
 and well-informed advocates about effective legislation in other states,
 particularly Minnesota’s progressive and far reaching bill.”

                                —new york State Senator Liz krueger




32   dmi marketplace of ideas
Ideas We’ve Brought to Market
For more information, please visit
http://www.drummajorinstitute.org/events/marketplaceofideas.php

   P
•	  reventingPredatory                  •	 	CombatingGlobalWarming 
   MortgageLending	                          throughCongestionPricing	
   with	Minnesota	Attorney	General	            with	London	Deputy	Mayor		
   Lori Swanson                                Nicky Gavron


                                  
•	 	GettingSpecialInterestMoney            T
                                            •	  hePowerofRestorativeJustice		
   OutofStateElections		                    with	San	Francisco	Sheriff		
   with	Arizona	Activist		                     Michael Hennessey
   Dennis Burke
                                            •	 	HoldingCorporationsAccountable
   M
•	  akingPrescriptionDrugs                forTheirFairShareofEmployee
   MoreAffordable	                           HealthCosts	
   with	Maine	State	Senator		                  with	Maryland	State	Senator		
   Sharon Treat                                Gloria Gary Lawlah


                                   
•	 	RehabilitatingVacantBuildings           L
                                            •	  oweringtheCostofInsurance		
   IntoAffordableHousing	                   with	California	Activist		
   with	Boston	Mayor		                         Harvey Rosenfield
   Thomas Menino
                                                                           	
                                            •	 	MakingHealthCareUniversal	
   P
•	  reventingWrongfulConvictions           with	Former	Vermont	Governor	
   andExoneratingtheInnocent	              Howard Dean
   with	Dallas	District	Attorney		
   Craig Watkins
                                            •	 	LeveragingGovernment 
                                               toProtectthePeople	
•	 	StrengtheningtheLaborMovement   	      with	Former	New	York		
   with	Service	Employees	International	       Attorney	General
   Union	President		                           Eliot Spitzer
   Andy Stern
                                               C
                                            •	  onfrontingtheNeedforMassive
   P
•	  romotingAccessto                      SchoolConstruction	
   Pre-SchoolEducation	                      with	Concordia	Incorporated	Founder
   with	Oklahoma	State	Senator		               Steven Bingler
   Penny Williams
                                               M
                                            •	  andatingPaidSickLeave	
•	 	TacklingEnvironmentalInjustice          with	San	Francisco	Activist	
   throughLegislation	                       Sara Flocks
   with	U.S.	Congresswoman		
   Hilda Solis


   I
•	  ncreasingAccountabilityFor
   EconomicDevelopmentSubsidies		
   with	Minnesota	State	Senator		
   John Hottinger
40 Exchange Place, Suite 2001
New York, New York 10005

				
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