Walt Shepperd Q&A with the DA Bill Fitzpatrick

Walt Shepperd 01/29/10More articles
Onondaga County District Attorney William Fitzpatrick.
Editorís note: This is the second in a series of interviews with people prominent in areas on the agenda for the city under a new administration. This week the discussion of the justice system is with District Attorney Bill Fitzpatrick.

You have spoken about the efforts of your office in combating wrongful convictions. Is justice revisited a big part of what youíre looking at now?

Yes. Not only with my responsibility to the office, but Iím also the national DAís association representative from New York, and Iím also chair of the American Bar Association subcommittee on science and technology, along with Barry Scheck. The state and national DAís associations and the state and national bar associations are all very, very concerned about this issue. Itís really come to the forefront last couple of years.

I guess one of the watershed events was the prosecution of the lacrosse players down at Duke. Rightfully or wrongfully it got tremendous media attention, and it exposed how dangerous and incompetent an unethical prosecutor can be.

It is something that is very, very dear to my heart because I literally could not sleep at night thinking that an innocent person was sitting in jail because of a decision that I had made, or asked a jury to make.

Now, with that said, the New York Bar Association reviewed 54 cases from the 70s, 80s, 90s, up to about 2004, that were quote, unquote wrongful convictions. Weíre not talking about a case where a judge made a wrong decision on a suppression motion, and a guilty person went free.

Weíre talking about people who are demonstrably innocent of the crime for which they were convicted. And what I think is significant to note is that Onondaga was the only large county not represented in that report. They didnít find one in Onondaga County.

I think there are several reasons for that. Number one, I do not allow prosecution of stranger on stranger crimes where the only evidence, and I emphasize only evidence is a single eyewitness identification.

I personally do not believe that absent corroborating evidence, or absence of unique features, that the victim brings to the tableóif she says the guy had a unique scar on his face, or a unique tatoo, or a facial deformityóI donít believe itís justified to say that an identification rises to proof beyond a reasonable doubt.

The second thing is, and this is also a reason why there are a number of wrongful convictions, both statewide and nationally, is false confessions. We just had a very, very high profile case here this past year with the individual who was killed by a sniper, and laid at our feet was a criminal case against the person who had confessed. But because of the training that my office has, and because of red flags on this, we were very, very skeptical about the validity of the confession. And what Iím hoping to do within certainly this next calendar year is get all these local and county police agencies on board with videotaping confessions, from beginning to end.

What we do now is called a video recap. Weíll say to an individual after he or she confesses, ďOK, would you like to do this on tape?Ē

Itís amazing to me that the initial reaction from cops is always one of reluctance. And once the system is in place, they love it.

Is DNA the big factor in determining wrongful convictions?

Well sure. Weíre constantly looking at cases, Barbara Kilbourneís case, which I tried, that was solved through DNA technology that wasnít available at the time of the crime.

Donald Sigsbee, who recently passed away in prison, killed Regina Reynolds, dumped her body down by Otisco Lake, and because of the careful collection of the evidence back in 1975 by the State Police, the biological material from her rapist-killer sat on a shelf for a quarter of a century.

Then the State Police forensic crime laboratory was able to retrieve the evidence, identify male DNA, and give me enough ammunition for a conviction of Sigsbee.

You mentioned the Duke case. Do you find wrongful convictions that were politically motivated?
Oh yeah. If you have a prosecutor who panders to a particular audience, whether itís in this case an African-American audience, or any particular group, that person is seriously compromised in doing his or her job.

A good example here, we had the first hate crime prosecution for a transgendered individual. Now I could easily have called a press conference and pandered to the gay, lesbian, transgendered community. Not exactly a traditional role for a Republican DA to take, but I could have done it.

Or I could have made some other inflammatory comment. But I didnít.

And I had a lot of pressure on me, a lot of people calling me and saying, ďWe want you to pursue this aggressively, and we want to say something, and we want you out there protesting with us.Ē

Sorry, thatís not the way a prosecutor works. Some people got concerned that I wasnít taking it seriously. Was I going to plea bargain it or give the store away?
Never was my intention.

From day one I looked at it and saw it as a hate crime.
I had the head of the New York State Division of Human Rights pay me a visit with his staff. It was kind of funny. I kind of sat here very politely and listened to him. I think the reason he came was he wanted to see does this guy know what heís doing.

People want instant gratification. A crime occurs, in 24 hours we want to know the who, what, where, when and how, and why, and we want punishment imposed maybe a week later, and we have a right to know.

Thatís not the way the system works.

The designation as a hate crime seems like justice with an asterisk. Is it more heinous to kill someone because you hate them, than just to kill them?

This legislation was passed in 1999. I had been the president of the state DAís association in 1998, and we very, very vigorously lobbied for it. There are some who are opposed to it, and I ask the question why, and they say that all crimes should be treated the same. Well, thatís what a legislature is for.

The legislature, and I am in agreement, decided that the motivation for a particular crime can be so abhorrant, and so unAmerican, and so abusive that we want to enhance the penalty because weíre dealing with a particular kind of warped individual, whoís not only homicidal, but is also a racist or a homophobe or whatever.

Society has a right to make that distinction. I see someone on the street, I want to take their money from them and I kill them, youíre going to get life in prison.

I see someone on the street and Iím not interested in their money, but theyíre black or theyíre gay or theyíre Jewish, and I go over and beat the crap out of them. That should be more than a simple assault.

Does that mean justice canít be blind, that justice has to peek sometimes at perspective or situation?

Yeah. I would hope that justice is still blind if the concept is that justice is fair and evenhanded and doesnít care about class. But in terms of peeking under the blindfold, yeah, Iím a prosecutor, I have an obligation to look at motivation for a particular crime.

Motivation 99 times out of 100 is something I donít have to prove. But when youíre talking about a hate crime, itís something I do have to prove.

If itís sexual assault the motivation can be obvious. If itís a stranger on stranger murder, motivation can be the difference sometimes between an acquittal and a conviction.

How just are we here, how blind is justice in Onondaga County?

Iím probably the wrong person to ask, because Iím a little biased about that, but I am obsessed with the concept that it has to be evenhanded and fair, rich-poor, black-white, Jew-Gentile, Protestant-Muslim, it doesnít matter. Itís got to be even handed.

I canít have somebody in Lysander going away for ten years and someone in LaFayette getting probation. Thereís got to be some sort of uniformity, some type of consistency, and some type of fairness.

I know that my conviction rate is very good, but Iím more concerned with the evenhandedness of our administration of justice as opposed to numbers.

Some people question the fairness of jury composition.

There was a move at one point to have city people tried by juries of city residents.

It was Judge Langston McKinney. He has a huge heart, and is an altruistic person. What he was doing in my opinion was cutting off his nose to spite his face. If you did that, if you followed his theoryóand the courts have rejected it, so itís not an open issueóone of the motivations for his theory was most of the defendants who appear in front of him are people of color, and most of our jurors who are of color come from the city of Syracuse.

Great in theory. Now hereís the down side, which is incredibly bad. You then eliminate those jurors from sitting on a county court case, because once youíve done your jury duty, youíre going to be wiped off the roles for probably four years, if not longer. And if Iíve limited my pool to city residents in city court, that means county court is going to get a disproportionate number of people who are not from the city.

Your office has taken the concept of justice beyond prosecution to working with victims and providing DWI counseling . . .

I would enjoy the appellation of proactive district attorney. I donít believe my job is to cubbyhole in an office and take the cases the police give me and just walk into court and try to affirm the righteousness of that case. I believe in crime prevention. I believe in intervention. I believe in redemption. And I believe very strongly in punishment. If you amalgamate all of those things, then you get me as your DA.

Do you watch Law and Order?

It is the only, the only network show that I watch. I watch sports, movies and Law and Order.

Is Law and Order real?

It is very real. It is distinguishable from reality in two very, very important ways. Number one is the timing, but itís a TV show so itís obvious that it has to be that way. And the other thing is the courtroom proceedings and the summation. I gave a summation once that lasted five hours.

In Law and Order the summations are usually about three minutes max. Other than that, the investigation of the crime, the wisecracking, the relationship between the police and the prosecutors, the interplay between the lead counsel and the second seat, the defense lawyering, very realistic.

One other thing that is not realistic, I never have a chance to talk to defendants, even with the counsel sitting there.

In one episode a former ADA is wrestling with whether he was a lawyer who happened to be black or a black man who happened to be a lawyer.

That actor was terrible as an ADA, and he was great as a defense lawyer, where he found his niche. Now what he was really good at was in the movie Badge of the Assassin, back when the Black Liberation Army was assassinating police officers in New York Robert Tannenbaum wrote a very good book about one of the cases. That actor played one of the bad guys, and he was really good.

Was his quandary an indication that the justice system is still strained in dealing with the issue of race?

Sure. Is there racism in America? Of course there is.

Would we hope that some day people will look back and say, ďCan you believe that decades ago, people used to judge people by the color of their skin?Ē Iím sensitive to that. For example, one thing that I donít do is differentiation between crack and powdered cocaine, because there is all kinds of data to suggest it unfairly effects minorities. When I first took office, the draconian Rockefeller drug lawsówhich incidentally no longer in existence despite the fact that people still like to use the phraseóyou could get 15 years for cutting my eye out, but could get 25 years for selling me half a gram of cocaine, which is about the weight of a dollar bill. I followed the lead set by my colleague in Brooklyn, which is to give people an opportunity for treatment.

Weíve had phenomenal success with treatment as opposed to prison. Ninety percent of the people who go through that program are African-American. Thatís another way I deal with the issue of race.

Iím very concerned with the repeal of most of these drug statutes. Youíre going to see, in my professional opinion, an increase in crime, and a decrease in people seeking treatment, because treatments have to have, as an alternative, the threat of incarceration. Otherwise, itís not a motivating factor.

I try to, all the time, recruit African-American lawyers. The problem is, if youíre a crackerjack attorney, and youíve got an opportunity to make $45,000 a year working in the Onondaga County DAís office 60 hours a week, or the opportunity to make $45,000 a month working for a big firm in New York.

The RICO (federal racketeering statutes) approach to the gang situation seemed successful and efficient, but drew a lot of controversy. What is the balance there?

Iím not so much interested in the balance of criticism versus praise for the program, because Iíve already made the decision that weíre going to use the RICO statutes as a weapon in the war against gangs. At the end of the day, when I go to community groups, particularly in the inner-city, people say they canít let their kid play stickball in the street because every five feet thereís another gangbanger.

I have my own solution to the gang problem. We teach kids not to have kids. A kid goes to a gang, momís 14, a prostitute. Havenít seen dad, and not even sure who dad is. The year we had 19 defendants charged with murder in the city of Syracuse, 19 out of 19 were African-American from fatherless, and in some cases motherless homes. The next time I have a gang member come in and say, ďMy mom and father would like to come in and meet with you and discuss my possible rehabilitation,Ē Iíll fall on my keister in shock.

That canít happen overnight. Republicans on the far right donít want anybody talking about birth control or sex education in schools. People on the far left, everything goes, you have two kids, why not have three, weíll give you some more money, give you a better apartment. What kind of message does that send?

I feel very strongly about the use of RICO because it points out the inadequacies of the state system. In the state system bail is set only to assure your reappearance.

Your future dangerousness has nothing to do with bail being set. In the federal system, future dangerousness menace to the community is absolute criteria in determining bail.

If I give you a magic wand and you can eliminate one huge headache in your job, what would it be?.

Iíll eliminate people who say they cooperate in public, and when they get into a room pretend they donít know what people are talking about. I get crazy about that. Iím a firm believer in coordination. It shouldnít have to be a battle. But you look historically at the forensic science center, which to me is a jewel, that was an incredible effort. It should have been two or three meetings to get a game plan. It took three years.

Reach Walt Shepperd at city@cnylink.com.

CATEGORY: General Society
TAGS: DA Fitzpatrick,onondaga county district attorney,walt shepperd,Barry Scheck,American Bar Association,District Attorney,Donald Sigsbee, Regina Reynolds,courts syracuse,Judge Langston McKinney
EDITION: The Eagle

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