Guest Shot: Eric Schneiderman: NY Bill would let wrongly convicted prove innocence

The following opinion was originally published in the Buffalo News on December 19, 2009.

Another Voice / Criminal justice
Eric Schneiderman: Bill would let wrongly convicted prove innocence
By Eric Schneiderman
December 19, 2009

Three weeks ago, Fernando Bermudez became a free man after serving 18 years in prison for a murder he did not commit. This will be his first Christmas at home since 1991.

A Manhattan judge threw out his conviction after a cooperating witness lied in court, and witnesses were improperly allowed to discuss a mug shot of Bermudez before identifying him as the shooter. Each one has since recanted.

In a powerfully worded decision, Judge John Cataldo found “clear and convincing evidence” that Bermudez demonstrated his “actual innocence.”

This decision represents a major turning point in the actual innocence movement — an effort to make courts weigh convincing evidence of innocence without procedural roadblocks in cases like this. Here in New York, as in most other states, too many technical obstacles are preventing innocent people like Bermudez from getting the justice they deserve. And when an innocent man is sent to prison, the real criminal remains free to terrorize new victims.

To fix this problem, I have introduced a bill in the State Legislature to establish “actual innocence” as a lawful basis for vacating a prior conviction, giving the wrongfully convicted an opportunity to directly prove their innocence.

Innocent people locked up in prison deserve a hearing when they can produce evidence conclusively proving they are not guilty.

This bill prevents the rejection of innocence claims on technicalities. Had this law been in place in the 1990s, it’s possible that Bermudez could have been a free man years ago.

Indeed, his first application to have the court re-examine evidence establishing his innocence — 14 years ago — and nine subsequent applicants were all denied.

Despite the recantation of five witnesses who had previously identified Bermudez as the killer, and the advocacy of many public officials including Assemblyman Adriano Espaillat, Bermudez’s 10 previous attempts to establish his innocence were denied based on a series of technicalities.

This legislation is particularly important in cases like this one, where there is no DNA evidence. In the last five years, approximately 64 percent of all the exonerations in the United States were based on non-DNA evidence.

Experts observe that the percentage of exonerations based on non-DNA evidence in New York State is only increasing.

The Bermudez case is a wake-up call. It is completely inconsistent with American values of justice and fairness to imprison innocent people without giving them a chance to reverse wrongful convictions where convincing evidence exists.

We have the momentum — it’s time to reform our criminal justice system and ensure that no one does time for a crime he didn’t commit.

Eric Schneiderman, D-New York City, representsthe 31st State Senate District.