Goings on in Kings County (Brooklyn, New York)

The New York Times and the New York Law Journal, amongst other media sources, have hit upon a trove of potential wrongful convictions centred on the office of the District Attorney of Kings County, New York. Charles Hynes, now 77, whose tenure reaches back into the 1980’s, is running for DA yet again. ¬†Some cases of wrongful conviction being examined by the Conviction Integrity Unit within this office, the McCallum case, for instance, go back to the tenure of the previous district attorney, Elizabeth Holtzman. The total of questionable cases has mushroomed to sixty-four, that’s 64 people sitting behind bars for a crime they did not commit. That’s a lot of potential!

Retired NYPD detective Louis Scarcella is the focal point of these wrongful convictions. Fifty of the current ‘unsafe’ cases are attributed to him alone, yet I agree with Jay Salpeter, retired Brooklyn police detective and private investigator, that Scarcella is a ‘scapegoat’. This is not to say that Scarcella is innocent of utilizing unreliable witnesses (a drug addict, for one) or manufacturing false confessions, only that Scarcella’s techniques indicated a culture that had developed within the mechanisms of justice during the 1980’s. The murder rate in New York City was so high and the rate of conviction so low, it was accepted that something drastic needed to be done. Was that ‘something drastic’ a violation of basic human and legal rights, of the kidnapping and forcible confinement of African American youth? Some judges overlooked flawed prosecutions and police investigations while meting out long sentences to youth and recidivist adults alike. Certainly the Clinton administration in the 1990’s accelerated the tendency to longer prison sentences.

Is Scarcella a scapegoat for the whole system? I would say ‘yes’, undoubtedly so. Scarcella’s techniques did not arise from nowhere; his rate of ‘success’ was just higher. Looking at the McCallum case, P.O. Butta and ADA (now Judge) Eric Bjorneby utilized suborned witnesses, produced illegally attained confessions, and manipulated testimony, while the Judge (Francis X Egitto) facilitated the injustice. How else could Scarcella have produced fifty wrongful convictions without the knowing consent of others within that office? An illegally obtained wrongful conviction is a crime against an individual; a record of malfeasance as wide as Kings County starts to resemble a crime against humanity. It is hard to know if anger against the system or sorrow for lost lives is greater. It is hard to know that the families of so many murdered people have never had the justice they believed, and that they cling to these wrongful convictions because the pain of acknowledging the truth is too great.

The routine denial of parole to people who claim innocence is justified by officials within these DA’s offices who go out into the community and ask the victim’s family how they would feel if so-and-so were released. What answer do they expect of someone who has lost his or her son or daughter? How is the questioned posed? The system is geared to perpetuate injustice. The innocent are tortured, watching confessed murderers leave prison before they do. They are seen as lacking remorse and failing to take responsibility for a non-existent crime. Those within the system simply do not want to believe in the enormity of the problem of wrongful convictions.

April 2013: David McCallum, after 28 years of incarceration for a crime he did not commit, was REFUSED parole by a modern day Javert: James Ferguson, for the above reasons. Ferguson has managed to insert himself into every parole hearing at which McCallum has come up for review. In each instance, he has ruled that the release of the prisoner is incompatible with the safety of the community. Ferguson is the son of a former police officer and himself a former ADA. During these hearings he acknowledges that David McCallum has a pristine record and has assisted other prisoners throughout his time of incarceration. The board’s own parole assessment is as high as can be and his chances of reoffending are, according to the same assessment, practically nil. But in the transcript, Ferguson claims that he knows when someone is lying and he knows that David told the truth when he confessed. He knows! (Last year, Ferguson had them reversed, saying that Stuckey told the truth.) Where did this parole commissioner attain this level of clairvoyance? Even with the use of MRI’s, which chart brainwaves, no forensic scientist has claimed sufficient reliability for any method used to decipher truth and lying. Due to such unreliability, the lie detector test is not even used in courtrooms anymore.

In the latest travesty, Ferguson conducted the entire interview; the other two board members, likely under instruction, said next to nothing. Ferguson, instead of focusing on suitability for parole for someone convicted at the age of 17 and having served 28 years, continued to retry the case. A parole commissioner is not meant to be a prosecutor.  Once again, McCallum was denied and for the same reason as before: his release would be incompatible with the safety of the community. An appeal of this decision has already been submitted but these appeals take a year.