By Shneur Nathan
Article by Shneur Nathan
The Journal of The Nassau County Bar Association, Sept. 2014
Wrongful convictions have been in the headlines with increased frequency as of late. This is not just increased reporting; overturned convictions are on the rise. According to the National Registry of Exonerations, there were 50 exonerations in the first half of 2014, which is on pace to be record breaking and exceed the 91 exonerations reported for 2013. The plaintiff’s bar and a preponderance of the media attribute this result to a flawed criminal justice system that puts too much reliance on eyewitness identification testimony. Many within the law enforcement community and the defense bar believe that things have gone too far and we are at a point where guilty people are being released on the coattails of the truly innocent. Whichever side of the debate you may be on, one thing is certain. This uptick in exonerations is putting an increasing strain on state and municipal budgets as the lawsuits keep pouring in.
A recent Wall Street Journal analysis of 15 wrongful conviction lawsuits since 2003 found that the average civil suit payout was $305,000 for each year of incarceration in cases where the plaintiff had been incarcerated for 5 years or more. The current working valuations for a year of incarceration may in fact be as high as $1 Million per year as was the case in the recent settlement by the City of New York of the widely publicized Central Park Five case. That case settled in June of 2014 for $41 Million.
Nassau County regrettably has not been spared from this trend. On April 17, 2014, a federal jury in Central Islip considering the wrongful conviction cases of John Restivo and Dennis Halstead awarded each of them $18 Million, for a whopping total award of $36 Million. Restivo and Halstead were convicted for the 1984 rape and murder of a teenage Lynbrook girl, Theresa Fusco, after she left her job at a roller-skating rink one evening. The victim’s family and attorneys representing Nassau County maintain their belief in these men’s guilt, despite DNA evidence showing that another individual formerly unconnected with the prosecution was involved. The cases against Restivo, Halstead, and a third former co-defendant were thrown out after they each spent 18 years in prison. (Notice the jury verdict of $1 Million per year of incarceration). While Nassau County is appealing these verdicts, it and other local government agencies should expect more lawsuits to be coming down the pipe.
Martin Tankleff, himself exonerated in 2007 after spending 17 years in prison, graduated from Touro Law Center this summer and helped start that school’s wrongful conviction externship program. The probability that these and other efforts will result in additional high exposure lawsuits against local government entities is not something that requires a mathematician’s precision. It is inevitable. In fact, the jury found in the Restivo and Halstead case that Nassau County Detective Lieutenant Sean Spillane, “created a policy or custom under which unconstitutional practices occurred.” This finding may not have preclusive effect against Nassau County in future cases but is troubling nonetheless.
One need not look further than the rapidly developing situation in Brooklyn to see how quickly allegations against even a single police officer could devolve into a full blown crisis for municipal budgets. Brooklyn District Attorney Ken Thompson ordered a review of approximately 90 cases, about 50 of which were investigated by former New York City Police Detective Louis Scarcella. In one such example, Jabar Collins was released in 2010 after spending 15 years in prison based on the now seriously questioned investigation of Detective Scarcella. While Collins’ lawsuit against the State of New York settled for $3 Million on July 10, 2014, he has a separate lawsuit against Scarcella and New York City still pending. David Ranta and Roger Logan were also recently released after their cases, which were investigated by Scarcella, unraveled.
The precedents set by New York City settlements matter to municipal budgets and should be taken seriously by policy makers and municipal lawyers because they effect case evaluations and settlement negotiations in other cases. Shortly after the Central Park Five settlement was announced, the State of Illinois announced that it intended to enter a $40 Million settlement with five individuals wrongfully convicted of rape and murder based on allegations concerning its state police crime lab. Perhaps the timing of these settlements is a coincidence, but either way, the magnitude of these settlements reinforces that local government agencies need to take these cases seriously.
Local governments should reexamine the policies and procedures of their police departments, crime labs, and district attorney offices to make sure that everything possible is being done to minimize the risks of wrongful convictions without compromising public safety. This may include requiring that all homicide interrogations be recorded as is required under the laws of numerous states. This common sense measure protects suspects against the strange phenomenon of false confessions while protecting investigators against false claims of coercion. The Supreme Court of New Jersey spearheaded an effort to incorporate suggestions of several social scientists into their lineup identification procedures in hopes of minimizing the risk of mistaken eyewitness identifications. These reforms include requiring “double blind” lineups where the detective administering a lineup and interacting with witnesses knows nothing about the case, and therefore, cannot knowingly or unknowingly cue the witness.
Simultaneous with these efforts, municipal managers and counsel must determine how to best defend their tax bases from current and future civil lawsuits. As part of this process, municipalities should fully and thoroughly investigate the facts of each case—often cases involving the most heinous crimes—to ensure they are not being bamboozled into “wrongful exonerations” and “wrongful payouts.” It will take willpower, focus, and good judgment in order to make correct and just decisions in this arena. The first step in this direction is undoubtedly to recognize the earthquake happening around us.
 Sean Garner, Central Park Case Could Cost Millions, WALL STREET JOURNAL, Mar. 24, 2014.
 Kogut v. County of Nassau, 06-cv-6695 (E.D.N.Y.), D.E. 453 (Ct. Ex. 20) at 9-10, ¶¶ 8(b) & 9.
 Steve Mills, $40 M for five wrongfully convicted of Dixmoor rape, murder, CHI. TRIB., June 25, 2014.
 State of New Jersey v. Larry R. Henderson, 27 A.3d 872 (Sup. Ct. Aug. 24, 2011).