- New York Focus - https://www.nysfocus.com -

A Manhattan DA Candidate Touts Her Leadership of a Conviction Review Unit. Why Did It Exonerate So Few People?

This article was published as part of a partnership with The Appeal to cover Manhattan’s 2021 DA race.

As general counsel at the Brooklyn DA’s office, Manhattan DA candidate Tali Farhadian Weinstein was involved in the creation and leadership of a bureau designed to provide “post-conviction justice,” including overturning wrongful convictions. Her leadership of the program has been a mainstay of her campaign. At forums, she often boasts of having “built the first post-conviction justice bureau in the country.” Her supporters, from Gloria Steinem to U.S. Representative Ritchie Torres, cite the program in their endorsement messages. On her campaign platform, she says she led the unit that “published a first-of-its-kind report detailing its first 25 exonerations.”

But during the two years and four months that Farhadian Weinstein oversaw the conviction review unit, it exonerated just four people—a far lower rate of exonerations than in previous years.

During the same length of time, the conviction integrity unit operating in Detroit exonerated 19 people—more than four times the number exonerated in Brooklyn, despite the fact that Brooklyn contains hundreds of thousands more people. The conviction integrity unit in Philadelphia, in a jurisdiction with a million fewer residents, exonerated 13 people.

And the 25 exonerations in the Brooklyn unit’s report? Only two occurred under Farhadian Weinstein’s leadership.

“She’s taking credit for exonerations that she had nothing to do with,” said Derrick Hamilton, co-founder and assistant director of Family and Friends of the Wrongfully Convicted, who was exonerated by the conviction review unit in 2015 after 21 years in prison on a wrongful conviction for murder.

Now, Farhadian Weinstein says she would “use her experience in Brooklyn to establish the nation’s most robust Post-Conviction Justice Bureau in Manhattan.”

But advocates and public defenders who have interacted with the Brooklyn bureau say that its record makes it unworthy of imitation—in part because the head of its conviction review unit was a prosecutor who had long worked side by side with the prosecutors whose convictions he now reviews.

“If the model that’s currently operating in Brooklyn is set up in Manhattan, that would be a disaster,” said Nick Encalada-Malinowsksi, civil rights campaign director with the criminal justice advocacy group VOCAL-NY.

Brooklyn’s conviction review unit was revamped by then-DA Ken Thompson shortly after he took office in 2014. “We have to admit—those of us who work in the criminal justice system—that we’re not infallible,” Thompson said in 2015. “It’s not good enough to admit our mistakes, we have to move to correct miscarriages of justice and do so with deliberate speed.”

By the time Thompson took leave from the office in October 2016, a week before his death from cancer, the unit had exonerated 21 individuals in less than three years.

“When he was DA,” Hamilton said of Thompson, “you had an effective machine running the CRU. They were being held accountable. Cases were being filed, decisions were being made. Whether you won or lost, it was being done in an expeditious manner.”

But after Thompson’s death and his replacement by Eric Gonzalez, action slowed to a trickle. In 2017, just three people were exonerated. Zero were exonerated in 2018, the year Farhadian Weinstein joined the Brooklyn DA’s office and began supervising the Conviction Review Unit.

In April 2019, Farhadian Weinstein created the Post-Conviction Justice Bureau, moving the conviction review unit into it as its flagship program. Two people were exonerated later that year, and one in 2020 before Farhadian Weinstein left the unit in July—all told, a more than fourfold decrease under Farhadian Weinstein from the rate of exonerations when Thompson was DA.

Family members of incarcerated people rallied for reforms to the unit in 2019, to little avail. “She ignored our cries and went along with business as usual,” Hamilton said.

“Tali Weinstein … was not interested in righting the wrongs that was done to so many Africans and Latinos by the Kings County DA’s office,” he added.

Farhadian Weinstein’s campaign pushed back against these criticisms.

“To say Brooklyn’s Post-Conviction Justice Bureau’s conviction review unit is ineffective devalues the experience of every person that has been liberated from wrongful imprisonment,” said Jennifer Blatus, a spokesperson for the campaign. “In fact, under Tali’s tenure, they became the only conviction review team in the country to bring full transparency to the process—inviting the public to look inside the cases and see its assessment of what went wrong.”

Gonzalez’s office declined to comment for this story.

“An Inherent Dual Loyalty”

Why did the rate of exonerations fall?

Three defense attorneys told New York Focus and The Appeal that one key reason was that Farhadian Weinstein left the conviction review unit under the control of a career prosecutor: Mark Hale, who had for years worked as a homicide prosecutor for the Brooklyn DA’s office.

Hale was chief of the unit even when Thompson was DA, but Thompson also appointed Harvard Law School professor Ron Sullivan, a former public defender, to “lead the efforts” of the unit. Other conviction review units in the New York City area, such as Westchester and Queens, are run by lawyers with backgrounds in criminal defense.

The defense attorneys, two of whom declined to be named because of current professional relationships with the Brooklyn DA’s office, told New York Focus and The Appeal that management by a career prosecutor damaged the unit’s independence and its ability to impartially review convictions and produce exonerations.

“The head of the unit used to be the head of homicide. To me that’s just an inherent dual loyalty,” said Elizabeth Felber, a supervising attorney at the Legal Aid Society’s wrongful conviction unit.

Farhadian Weinstein’s campaign referred New York Focus and The Appeal to Innocence Project senior litigation counsel Nina Morrison, who co-authored the report on the conviction review unit’s first 25 exonerations and worked closely with the unit on one case that led to an exoneration.

“In all of our dealings she was really enthusiastic and supportive about the work of the conviction review unit. She really listened; she wanted to understand how the work could be improved,” Morrison said of Farhadian Weinstein. 

Morrison cautioned against drawing overly broad conclusions from a smaller number of exonerations during a particular time span. “It would be a mistake to say that two exonerations or three, versus five or six or seven in previous years, necessarily indicated that that was caused by her leadership, absent some objective indication that she had changed policies or been vetoing cases that were otherwise poised for exoneration,” Morrison said.

Morrison and the Innocence Project are not associated with Farhadian Weinstein’s campaign and have not made an endorsement in the Manhattan DA race. 

Farhadian Weinstein’s campaign platform says the conviction review unit she plans to establish in Manhattan “must be completely independent of the prosecuting units to preserve its objectivity.” But it leaves open whether the unit would be led by a former prosecutor.

Morrison said that although Hale was an effective advocate for her own client, “it is much better practice to have someone in charge of a conviction review unit who did not come from that office, [as opposed to] a Mark Hale who practiced there for 25 years as a prosecutor who’s then in charge of reviewing his colleagues’ cases.”

Beyond Hale’s appointment, defense attorneys pointed to an increasing lack of cooperation as another reason for the decrease in exonerations. On multiple occasions, Felber said, the conviction review unit violated cooperation agreements that it signed with attorneys representing individuals seeking exonerations.

The standard agreement between attorneys and the Brooklyn DA’s office, a copy of which was reviewed by New York Focus and The Appeal, requires both sides to share with the other legal information relevant to exoneration efforts, provided that doing so would not violate confidentiality requirements. But Felber said the DA’s office frequently refused to share information and documents and requested that defense counsel not speak with certain witnesses.

“They violate their own agreement, that agreement that’s touted as so great,” Felber said. “They’re much more secretive, they’re not sharing, they’re not doing joint investigations with defense counsel, they’re not doing open-file discovery.”

Morrison said that she has “repeatedly” advocated for the unit to move toward a “more open-file approach.”

“They do not as a matter of course give defense counsel the opportunity to come and independently review the files, even when you sign the cooperation agreement,” she added.

And under Farhadian Weinstein, defense attorneys said, the conviction review unit became significantly less responsive to individuals seeking exoneration. The unit would often “ghost” clients and their lawyers, leaving their communications unanswered for months on end, Felber said.

If investigations during the years under Farhadian Weinstein’s leadership reached the stage of interviewing witnesses, the interviews would often be hostile, Felber said. “The focus was on ‘why didn’t you come forward sooner?’ All these witnesses from the community, of all different ages, were cross examined suspiciously about ‘Why now?’”

“That just struck me as the wrong tack,” Felber added. “Why are you doing this work if you’re suspicious of people coming forward?”

Farhadian Weinstein’s spokesperson rejected claims that prosecutors engaged in hostile behavior.

“That claim is inconsistent with the CRU’s open and cooperative approach, and would not make sense for a unit that voluntarily solicits claims of wrongful conviction and proactively investigates them. Tali has zero tolerance for that kind of behavior,” Blatus said. 

But the unit has never regained the efficacy that it had under Thompson, said Hamilton, who now works on wrongful convictions as a paralegal. He imputes much of the blame to Farhadian Weinstein. 

“She’s bragging of being at the head at the time when the unit took a backwards step and never came back right,” he said. “Weinstein sanctioned it.”

Correction: An earlier version of this article discussed the time that Tali Farhadian-Weinstein oversaw the Brooklyn DA’s Post-Conviction Justice Bureau, but did not discuss the year that she supervised the Conviction Review Unit before the Bureau was created. The article has been updated to account for the one exoneration produced in that year.