Looking Back: The Complicity of Silence

Jeffrey Deskovic Speaking in Davis last year at the Annual Vanguard Event

“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.

By Jeffrey Deskovic

On June 21, 2009, the publication Florida Today ran the following opinion piece on a series of wrongful conviction cases in Florida which have revealed an alarming pattern of fraud involving a dog handler, as a result of which more than 60 cases are now being reviewed because of the possibility of wrongful convictions. It has also shown that there was a pattern of collaboration and looking the other way with respect to the fraud between the district attorney’s office and the now-deceased dog handler John Preston. The opinion piece stated the following:

“Justice was repeatedly denied by the State Attorney’s Office in Brevard County in the early 1980s, including frequent use of fraudulent dog handler John Preston, now deceased, who helped the state convict dozens of people. That includes trials for three Brevard County men who’ve since had their convictions overturned or charges dropped.

William Dillon of Satellite Beach served nearly 27 years in prison for a 1981 murder in Indian Harbour Beach before DNA testing in 2008 showed he couldn’t be linked to the crime. Dillon was finally vindicated last year when charges were dropped and Brevard-Seminole State Attorney Norm Wolfinger said a review showed ‘a jury today would not find Mr. Dillon guilty beyond and to the exclusion of every reasonable doubt.’

Wilton Dedge was convicted of rape in 1981 but freed in 2004 after DNA evidence proved the Port St. John man’s innocence. Juan Ramos was tried and sentenced to death for rape and murder in 1983 in Brevard, although no physical evidence linked him to the crime. Ramos was acqui ted in 1987. Now alarm bells are ringing loudly that more innocent men may be unjustly kept behind bars because of potential prosecutorial misconduct involving Preston:

  • Titusville attorney and former Brevard prosecutor Sam Bardwell, who encountered Preston in a 1981 rape case, says then-State Attorney Doug Cheshire, also now dead, as well as the Brevard Sheriff ’s Office and most law enforcement officers at the time knew Preston was a charlatan. ‘I left the State Attorney’s Office because I could not abide by the fabrication of evidence,’ Bardwell says.
  • Retired 18th Circuit and appellate Judge Gil Goshorn confirmed Cheshire relied heavily on Preston in a number of cases, along with questionable jailhouse snitches.

‘Cheshire’s office often relied on such evidence of dubious reliability,’ Goshorn said in a sworn affadavit in 2008.

  • The Innocence Project is looking into a fourth Brevard case involving Preston, that of Gary Bennett, sentenced to life in prison for the 1984 murder of Palm Bay resident Helen Nardi. Seth Miller, executive director of the group, says Preston was being fed information that helped him manufacture evidence, and the state win convictions.
  • Preston was involved in a reported 60 Brevard cases, with more than 15 of those identified in FLORIDA TODAY archives. He earned $37,429 for work done in the first half of 1984, including the Bennett trial. Wolfinger should be aggressively investigating the allegations of abuses in the office in that era, but so far is stonewalling, putting the onus for unearthing tainted justice on the convicted, sitting in their jail cells.

His refusal further erodes the public’s trust in Brevard’s justice system, damaged recently by the botched Dedge and Dillon cases. Wolfinger’s cop-out leaves no recourse but for Gov. Charlie Crist to start a full investigation. We’ve called for that repeatedly since the gross mishandling of the Dedge case came to light five years ago.

The Innocence Project has also called for Crist to appoint a special prosecutor to look into the Preston cases.

But Crist is running away, saying through spokesman Sterling Ivey he believes it’s ‘a judicial issue and should be handled on a case-by-case analysis through the judicial system.’ Running for the U.S. Senate no doubt makes him want to steer clear of controversial issues. But as a former Florida attorney general he should understand shoving corruption under the rug simply because it’s in the past is a corrosive and dishonest policy. Justice cries out for answers in the Preston cases. That includes finding out for certain if those convicted using tainted evidence are indeed guilty and keeping them behind bars. But also making sure any who may be wrongly convicted — like Dedge, Dillon and Ramos—get a new day in court. And that any justice system or law enforcement officials who betrayed the public good in cahoots with Preston are found and, if still alive, prosecuted to the full extent of the law. Only a full probe can render those judgments. Crist should order one immediately.”

This article sparked a number of thoughts about wrongful convictions.

The first thing is the complicity of silence. While I applaud Mr. Bardwell for speaking out, and give him some credit for walking away, that does not absolve him of his abhorrent behavior in remaining silent all of those years. I thought about how prevalent the complicity of silence is, for although this particular instance occurred in Florida, it is not limited to that state. Certainly we have seen our share in New York and in Westchester, in particular. But why is it some prosecutors, while not directly participating and even perhaps leaving the prosecutor’s office to get away from it, do not go beyond that and blow the whistle?

It is not enough to walk away or simply not participate, if you don’t expose it. This is no small thing that we are talking about; it is the lives of men and women who potentially are being convicted and spending time in prison wrongfully.

We are talking about families that are shattered. We are talking about entire communities who remain in danger because the actual perpetrators remain free. We are talking about everyday citizens remaining in danger from actual governmental authorities.

Why is that some prosecutors are so vigilant and gung-ho about prosecuting criminals in general, but are not the same way when the criminals happen to work in law enforcement? Is it that friendships are viewed over the freedom of innocent civilians? Is it because they are afraid of stepping on toes? Is it because there is an institutional complicity that goes up to the highest levels in prosecutors’ offices?

I would encourage honest prosecutors across the country to speak up whenever they come across shenanigans such as this or anything similar. Do not be afraid. And yes, beyond all doubt, you will be doing the right thing. Anybody who is upset with your exposing the misconduct are themselves no better than those actually engaging in it. Therefore, prosecutors do not need their approval or friendship. After all, since you are dedicated to fighting crime and they are engaging in crime, you are on one side of the street and they are on the other.

But even beyond that, as far as I am concerned, having knowledge of prosecutorial misconduct such as that while not speaking up, and instead remaining silent while innocent people are wrongfully convicted, is itself, criminal.

I think too about police officers. How prevalent is it in our country that police officers have knowledge of other officers fabricating evidence and/or committing perjury and remain silent? How many know that a local coroner or other expert routinely engages in fabrication and fraud and still they use him and/or remain silent.

What of retired Judge Gil Goshorn? He said that “the prosecutor’s office often relied on such evidence of dubious reliability,” When, exactly, did he learn of this? Why did he do nothing? Why did he only just now come out with it? If he tried to expose it to various authoritative entities and they did nothing, why did he not go to the press as a last resort?

Wouldn’t that have been better than merely sitting back while nothing was being done? If he became aware of it while he was a sitting judge, why didn’t he overturn convictions? Where was his sense of honor, either while he was a sitting judge or as a retired judge?

Moving beyond this example, what about other judges across the country. Are there others who are aware of wrongdoing but remain silent? Considering that many judges were formerly prosecutors, often in the same district where they were once prosecutors, the conclusion is inescapable that at least some judges are aware, because the prosecutors who come before them are the same ones they used to work with, and perhaps the same “experts” were utilized back then.

Judges I could look up to and respect would be those judges who are committed to justice, who are aware of wrongful convictions and stand ready to correct them at every turn, and who are committed to accuracy over finality of conviction.

What good is finality if that final conclusion is inaccurate? It is not about coddling criminals, it is about ensuring that trials are fair so that we can have confidence in the verdicts, and it is about ensuring that innocent people are not wrongfully convicted.

There are other aspects of this story that are troubling which have nationwide implications. The local prosecutor not aggressively launching an investigation of abuses and prosecuting where evidence is clear, is also troubling. How often does that happen? Why is it that if poor people commit crimes and/or engage in a criminal enterprise a prosecutor is aggressive in launching investigations and prosecuting but not if it turns out that those who are entrusted to upholding the law are involved?

Why is that local police will go after criminals, but sometimes cover up their co-workers? Why is that US Attorneys sometimes look the other way? Why is it that the FBI and the Justice Department get involved in looking into criminal activity only selectively?

What of state Attorneys General? How often do they not look into allegations? Why don’t we see more Attorneys General intervening in wrongful prosecutions and/or fighting against appeals? Why do some of them sit back and watch as opposed to being indifferent rather than using the authority of their office?

I remember when former New York Attorney General George Vacco, at Gov. Pataki’s behest, intervened in a death penalty case involving Bronx District Attorney Robert Johnson, when Johnson stated publicly that he would not seek the death penalty. Pataki had him intervene specifically so that he could seek the death penalty. If the authority could be used in that instance, when it was politically expedient and for a cause – to try to get a defendant executed despite the danger that the death penalty poses in executing an innocent man – that was less than noble with political considerations thrown in, why is it that for a good cause we don’t see Attorneys General being pro-active about wrongful convictions and stepping in whenever the facts warrant it or at least when they are aware of it? Across the country, there has only been one instance of a state Attorney General intervening and ending a wrongful conviction. We need better leadership roles from those who occupy positions of state Attorneys General. The same thing is true of United States Attorneys. Or is it that they support crime and injustice… a little bit?

I think about the Florida Governor who, rather than ordering an investigation, is instead running away from it, for political considerations, and I wonder how often that occurs across the country?

Politics should never get in the way of justice, but sadly, in a myriad of ways, it often does. How is it that Governors who thus indulge can sleep at night by refusing to get involved in injustices, in effect sacrificing people’s lives on the altar of their careers? Isn’t that on a similar level, just on a lesser scale, about the whole obedience to authority arguments that the world morally rejected in the Nuremberg trials?

There are a lot of ways that Governors run away from issues, it is not restricted to merely not ordering investigations into crimes leading to wrongful convictions and/or tainting the legitimacy of verdicts throwing justice and accuracy into question. What about when instances of wrongful conviction are presented to them where there are compelling issues pointing to innocence and the courts are not doing the right thing?

The ongoing case of Troy Davis, that I have mentioned several times in The Guardian, in which 7 of 9 witnesses have recanted testimony, saying that the police threatened and coerced them into implicating Davis, and in which four people have reported confessions by a third party, and yet in which Davis has been unable to get judicial or gubernatorial intervention, is perhaps the penultimate sickening example of this. Davis, for those who are unaware of his case, is facing execution. What about other instances not directly involving innocence but instead involving morality? I think back to the example of former President Clinton, when he was still governor of Arkansas during his presidential run, who
did not intervene in the case of Ricky Ray Rector, and instead allowed him to be executed despite his being retarded?

As a clear illustration of his retardation, Rector left a piece of pie that he had been served as part of his last meal in his cell to eat later when they were taking him to the execution area.

In all of these instances, the complicity and culpability of silence is clear. Is there anyone who disagrees with that?

Often in life, in time, whether on an individual, or even on a larger scale, information regarding things that are hidden ultimately bubble to the surface. Usually those things are the tip of the iceberg, a small part of the whole. As a result of that, further inquiry is needed in order to learn the full story. That is how I view this story which came out.

While I agree that what has emerged in Florida is appalling and alarming, it is also not surprising. Since I have been released, I have been trying to sound the alarm that wrongful convictions are much more common and prevalent than most of society thinks. Even professionals and advocates who are in the wrongful conviction field do not know the exact number of people who are wrongly convicted, because there is no way to quantify what is unknown. There are a variety of factors why this is the case:

  • DNA is only available in 10- 12% of all serious felony cases;
  • There is a scant amount of free quality legal resources available to help clear people in non-DNA cases;
  • All of the junk sciences and various types of misconduct and fraud leading to wrongful convictions are not known.

Whenever a new phenomenon is exposed, it opens up the possibility of many more wrongful convictions being exposed as such. We need public officials, in all walks of life, to cease the complicity of silence. In the end, more than the people who are directly affected, it is society as a whole that is affected.

“Jeffrey Deskovic, JD, MA, is an internationally recognized wrongful conviction expert and founder of The Jeffrey Deskovic Foundation for Justice, which has freed 7 wrongfully convicted people and helped pass 3 laws aimed at preventing wrongful conviction. Jeff is an advisory board member of It Could Happen To You, which has chapters in CA, NY, and PA. He serves on the Global Advisory Council for Restorative Justice International, and is a sometimes co-host and co-producer of the show, “360 Degrees of Success.” Jeff was exonerated after 16 years in prison—from age 17-32—before DNA exonerated him and identified the actual perpetrator. A short documentary about his life is entitled “Conviction,” and there Episode 1 of his story in Virtual Reality is called, “Once Upon A Time In Peekskill.” Jeff has a Masters Degree from the John Jay College of Criminal Justice, with his thesis written on wrongful conviction causes and reforms needed to address them, and a law degree from the Elisabeth Haub School of Law at Pace University.

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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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