Pigott talks on wrongful convictions

Mistakes do happen, but the majority of police and prosecutors do good work, according to Judge Eugene F. Pigott Jr., an associate judge on the state Court of Appeals.

He was the final speaker Friday in a daylong conference on wrongful convictions, presented at the Rochester Institute of Technology.

Judge Pigott, speaking on “Wrongful Convictions and the Role of the Courts,” reviewed several cases, starting with People v. Santiago, a 2011 decision he authored. In that a case, a new trial was ordered for a New York City man whose identification by two witnesses was called into question.

Judge Pigott also talked about the Douglas Warney case and said the lower courts ruled he was not eligible for compensation under the state’s remuneration statute because he contributed to his conviction.

Warney, a Monroe County man, spent nine years in prison for a murder he did not commit, although he had confessed to the crime. Warney maintained the confession was coerced. The Court of Appeals last year re-instated the claim, saying Warney could proceed, secure discovery and obtain a disposition on the merits, regarding his compensation claim.

Warney is one of 289 people cleared by the Innocence Project, a national litigation and public organization dedicated to exonerating wrongfully convicted individuals through DNA testing.

Peter Neufeld, project co-founder and co-director, presented two sessions earlier in the day, both attended by Warney’s attorney, Donald M. Thompson of the Rochester defense firm Easton Thompson Kasperek Shiffrin LLP.

“Keep in mind that most people are guilty who are arrested,” Judge Pigott said, acknowledging that mistakes are made. “It’s not like we have penitentiaries filled with wrongfully convicted people.”

Another interesting case, Judge Pigott, said was People v. Perino, which involved a teenager being interrogated for shooting a man in the Bronx. The detective denied an interrogation ever took place, but the teen had taped the whole thing on his MP3 player. Judge Pigott said the teen, who had claimed he was waiting for an elevator when he was approached by a man with a knife and shot him, was given a generous plea deal and the detective was charged with perjury.

Judge Pigott said that kind of behavior hurts every single police officer. “There’s an awful lot of police who do great work,” he added, noting investigators have to stay up on technology and that the detective did not know an MP3 player could record.

“That stuff goes on,” Judge Pigott said. “Not a lot, but if it does, you’ve got to have it in the record.”

A case being heard today, Dombrowski v. Bulson (No. 83), involves a wrongfully convicted man in Allegany County who is suing his attorney, seeking pain and suffering damages for his incarceration. Judge Pigott said the man claims he got a lousy plea deal because of his attorney’s negligence.

Supreme Court dismissed the claim, noting “non-pecuniary damages are not permitted in a legal malpractice action,” but the Appellate Division, Fourth Department, re-instated the claim for loss of liberty.

Judge Pigott said he does not believe the state’s 440 proceeding for post-judgment motions, is used often enough.

“I hate to sound like Donald Rumsfeld, but ‘Sometimes you don’t know what you don’t know,’” he said, paraphrasing the former secretary of defense. Judge Pigott added that he thinks 440s will become more common and more important than ever.

He said the Court of Appeals is very aware of wrongful convictions and is “plowing forward and learning more every day.”

Judge Pigott was introduced by Brian Shiffrin (Easton Thompson Kasperek Shiffrin LLP) who said Judge Pigott often asks the questions on which a Court of Appeals case will turn “and he does so with a smile,” bringing a smile to Judge Pigott’s face.

Judge Pigott, a native of Rochester, now lives on Grand Island. He received his law degree in 1973 from State University of New York Buffalo Law School. Judge Pigott is former presiding justice of the Appellate Division, Fourth Department who was nominated and confirmed to the Court of Appeals in summer 2006.

The 2012 New York State Wrongful Convictions Conference featured several other speakers, including Steve Barnes, an Oneida County man who spent more than 19 years in prison for the conviction of three murders he did not commit.