Wrongful convictions occur in every jurisdiction, and legal professionals around the world should collaborate to redress and prevent them. That was the message of Exonerated! From Central Park to East Asia, a speaker event held at the law school on Tuesday, October 8, 2019 by the U.S.-Asia Law Institute (USALI) and co-sponsored by the Center on the Administration of Criminal Law and Asia Law Society.
“We can all agree that we should not put someone who is innocent in jail,” said Yu-Ning Chen, a partner at HL & Partners in Taiwan and inaugural director of the Taiwan Innocence Project (TIP), a civil society organization that has helped exonerate eight wrongfully convicted persons since 2012.
Wrongful convictions “are canaries in the coal mine for things that ail the criminal justice system overall,” warned NYU Law Professor Rachel Barkow, faculty director of the Center on the Administration of Criminal Law. “These cases tend to be really good for drawing attention to the issues because they are so sympathetic. They end up being the perfect vehicles to shine a light on problems that are sometimes hard to get attention to.”
Allen Clayton-Greene (L) and Yu-Ning Chen (R) in conversation.
System problems that contribute to wrongful convictions in many countries include police interrogation techniques that cause innocent people to believe they have no choice but to confess, use of scientifically unproven techniques of forensic analysis, and witness identification methods that taint the outcomes. Police, witnesses, the media, jurors and the general public are all susceptible to unconscious biases, including the tendency to become so invested in a particular narrative that they overlook or even reject conflicting evidence.
USALI has conducted programs on wrongful convictions since 2015, when it took TIP co-founder Bingcheng Lo and co-founder of the New York-based Innocence Project Barry Scheck to China for workshops and lectures. The strong interest with which Lo and Scheck were received encouraged USALI to arrange more cross-jurisdictional exchanges on this complex subject. In 2016, USALI began holding annual intensive, month-long workshops at NYU for defense lawyers, judges, prosecutors and legal scholars from across East Asia. In 2017, we began bringing experts to Japan to support the newly founded Innocence Project Japan. We held similar activities each year through 2019, when we decided to do something new: open up an East-West conversation about wrongful convictions for an NYU Law audience.
In addition to Yu-ning Chen, speakers from Asia included Lena Yueying Zhong, an associate professor in criminology at City University of Hong Kong, and Akiko Kogawara, chief of the Forensic Science Unit at the Criminology Research Center of Ryukoku University. Dr. Zhong has published an empirical study of 141 wrongful convictions cases in China. She said false confessions induced by police torture are the leading cause of wrongful convictions in the mainland China cases she has studied. Dr. Kogawara works on Shaken Baby Syndrome cases, which focuses on correcting child abuse cases based on erroneous science about SBS. She said one of the special features of those cases is that parents often feel guilty when their infant becomes ill, even if they did nothing to cause the illness.
Speaking about the U.S. experience with wrongful convictions were Sarah Burns, maker of the award-winning 2012 PBS documentary, The Central Park Five, about the 1989 Central Park Jogger Case, and Kevin Richardson, one of five young men convicted and later exonerated in the case. Burns told moderator Ira Belkin, USALI’s senior research scholar, that she began researching the case as a college student. Her school paper later led to a book, and then Sarah – advised by her father, noted documentarian Ken Burns – began to work on a documentary so that the five exonerees could tell their stories in their own words.
“The film is a powerful document…because [the Exonerated Five] can explain what they went through and how it impacted them,” Burns said.
Richardson recalled what it was like: “Imagine you’re in a nightmare but you’re not waking up from it. That was my process at 14 years old.”
Burns’ documentary recounted how police rounded up a large number of young men who had been in Central Park on the night that a young woman was raped and severely beaten. Although there was no forensic evidence linking the five to the attack – DNA evidence actually pointed away from them – all but one of the five confessed during prolonged interrogations without assistance of legal counsel. “It’s the thing that is the hardest for people to understand,” said Burns, noting that many people assume only a guilty person would confess. “I felt like I needed to truly understand how [a coerced confession] could happen so that I could explain it to people. Without that piece of it, the rest of the story doesn’t work.”
Dr. Lena Zhong in conversation with the group.
The Central Park Jogger Case received huge media attention when it occurred, feeding into popular fears about then-rising crime rates in the city. However, the five young men’s exonerations years later, after the real culprit was identified through DNA evidence and confessed, received much less media attention until Burns’ documentary. “We felt nobody was listening even though we were screaming we were innocent. She (Burns) gave us our voices back,” Richardson said. More recently, the Netflix mini-series When They See Us by Ava Duvernay also has drawn attention to the case.
Burns and Richardson told the NYU audience that it is important to understand how the wrongful convictions occurred in the Central Park Jogger Case in order to prevent similar errors in future. “To me, the lesson is about all these systems that got this wrong,” Burns said. “This is not as simple as a rogue prosecutor or detectives or corruption or something like that. It’s not bad apples. This is systemic.”
Richardson now spends much of his time talking to the public about the case. “Before we didn’t really want to speak about these situations because they are so painful, but now it has become our job so that these things don’t happen so easily again.”
The speakers from Asia agreed that wrongful convictions are not just individual failures but system failures. “I have got the impression that bureaucratic inertia is everywhere,” said Dr. Zhong. “We have to raise awareness among law enforcement officials that problems do exist.”
Chen Yu-ning said that “although we do not have a very obvious race issue in Taiwan … I am surprised when I watch the Central Park Five documentary … by the similarities” to an exoneration case that the Taiwan Innocence Project handled. In that case, an innocent man, Cheng Hsing-Tse, confessed under duress and ended up on death row. The prosecutor’s office eventually recognized that an injustice had been done, and petitioned the courts to retry Cheng. Chen said the innocence project lawyers worked together with the prosecutors to exonerate Cheng. “After the case there is a very benign relationship that has been formed between our project and the prosecutor’s office, that this is something we should do together,” she said. Cooperation like that sets a model for innocence movements East and West.
