The New York Law Journal announced that Jonathon Lippman, the new Chief Judge of the Court of Appeals, has called for the formation of a commission to study wrongful convictions.  Sound familiar?  It should. 

Less than a year ago, the New York State Bar Association formed a commission for the same purpose, headed by then criminal defense lawyer, now judge, Barry Kamins.  The NYSBA  approved the commission report less than a month ago.  So here we go again?

The chief judge said in an interview that he wants to form the “Justice Task Force” as a permanent entity under the auspices of the judiciary because judges have as much to lose as anyone in the criminal justice system when people are convicted of crimes they do not commit.

“What could be worse for the branch of government whose constitutional responsibility is to administer justice than to have an injustice, a wrongful conviction?” Judge Lippman said.

What could be worse indeed.Well, a commission on wrongful convictions that neglected to include the one leg of the tripod that was closest to the problem, knew the most about the problem and could inject the most reasoned, experienced and viable solutions to the problem.  So who will be included in this commission?

Judge Theodore T. Jones Jr. of the Court of Appeals and Westchester County District Attorney Janet DiFiore will chair the task force, Judge Lippman said, adding that both have wide-ranging experience in the criminal justice system. Judge Jones was a criminal defense attorney before he became a judge and Ms. DiFiore was a Supreme Court justice before her 2005 election as district attorney.

The chief judge said the Codes Committee chairman in the two chambers of the Legislature, Assemblyman Joseph Lentol, D-Brooklyn, and Senator Eric Schneiderman, D-Manhattan, also have agreed to sit on the panel, as has Denise O’Donnell, Mr. Paterson’s commissioner of the Division of Criminal Justice Services.

So we have a judge, a prosecutor, two legislators and the governor’s commission of Criminal Justice Services.  Fine choices all.  But there’s something missing.  

Judge Lippman said it is important that all three branches of state government be represented on the task force and while panels have been established in other states to review wrongful convictions, he said the New York group would be the first to incorporate judges, lawmakers, executive branch officials, prosecutors, defense attorneys and others in the criminal justice system.

That’s it.  Criminal defense lawyers.  Thankfully, Judge Lippman acknowledges that they have a role to play in the system, along with the more important official people who comprise government’s view of the powerful voices.  At least we were actually mentioned, and not relegated to the “others” category.

While naming a commission, ordinarily a very “government” thing to do, would satisfy what small public zeal there might be to address the vexing problem of putting innocent people in prison, the significance is only as great as the commission’s ability to provide meaningful solutions to the problem.  Otherwise, it’s just another dog and pony show. 

The hard, cold reality is that the influences that go into any recommendations of such a standing commission will only be as good as the input of its members, and when the membership is lopsided, meaning comprised of the “official” side of life and devoid of those who have actual knowledge of the ugly underbelly of criminal justice, it’s doomed to reflect the governmental excuses, policy concerns and inertia.  Who stands up for the innocent in this commission?  Who tells the official member that their baby is ugly?

But Judge Lippman knows something that most of us forget.  He’s well versed from his years as Chief Administrative Judge in the ways of Albany, a place where Diogenes gave up.  As this commission comes on the heels of the well known and well regarded NYSBA commission, led by Barry Kamins, it’s purpose may well be somewhat different than reinventing the wheel.  The constitution of the commission may be carefully calculated to bring the players of change into the same room to accomplish something that rarely happens in Albany, a buy in from the three branches of government in reform.

Regardless of how many really good ideas are discussed by the members of the commission, and actually serve the goals of reducing the conviction of innocent people, it means nothing if it can’t find its way into law.  It means nothing if it can’t find its way into law in effective and meaningful legislation.  It’s a long, winding path from commission report to the statutes, and I suspect that no one appreciates this better than Judge Lippman.

If this is the case, then perhaps this commission is designed as an effective means of moving from conceptual to actual reform with the support of the players who can actually make it happen.  Perhaps this will be the commission that has real potential to make the changes and improvements that have long been recognized but never mustered the necessary support of the always wrangling fingers of government.  Maybe it will happen this time.

But a word of caution.  In building the camel of consensus, as commission invariably do, the input of the criminal defense bar is crucial to keep the more “official” influences honest.  While including Judge Kamins is a good start, he’s now part of the official world and shouldn’t be placed in the position of having to tussle with those who hold his future in their hands.  The commission must include real, honest-to-God, defense lawyers.  And not the criminal bar association glad-handing types, or the usual suspects, or the life-long prosecutors who became criminal defense lawyers 12 second ago, but real, hard-core criminal defense lawyers.

No one knows more about, or will speak more zealously for, the convicted innocent and the systemic problems that cause them to be convicted, then the men and women who fight the frustrating and never-ending battles in the trenches, day after day, and watch as the official world shrugs off another life lost to the beloved way things are always done.  Without them, the best, most politically effective commission is doomed to failure, for its recommendations may reach the governor’s desk but its accomplishments will be illusory.  Let’s make this one for real.  For once.