Looking Back: Never Again – PART 2

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 

Prosecutors should not be allowed to explain away DNA evidence by claiming that a victim had a consensual sexual encounter, without first proving that such an encounter took place.

In my case, the District Attorney made the argument to the jury, in an attempt to explain away the DNA, that the semen found in the victim came from a consensual encounter without bothering to prove this by conducting a DNA test on the person that they claimed had sex with her, nor did they identify him.

Prosecutors should not be allowed to explain away post-conviction DNA Test Results which prove innocence by changing prosecution theories

For example, in the Vincent Jenkins case, a victim who had been raped testified that one person raped her. When a DNA Test showed that the semen found did not match him, the prosecution then fought against Jenkins’ exoneration by suddenly claiming that she had been raped by more than one person. This contradicted what the victim testified to, and the theory which the prosecution had argued at trial.

The current law states that post-conviction DNA Tests should be allowed wherever it can be determined that such testing could have made a difference in the verdict. The law should be that in each and every case where there is DNA-testable material it should be allowed

Simply put, DNA test results are always, and in every case, relevant because they go right to the matter of whether a defendant is the source of the testable material. DNA proves innocence, and it proves guilt. Defendants are cleared because of DNA, often with the prosecution agreeing, and defendants are prosecuted and convicted based on DNA. Therefore a DNA test is always relevant, and can get to the truth in every case where there is a sample to test. There should not be a door open for a district attorney to argue, or for a judge to rule, that a DNA test would not have made a difference, because such a ruling would be absurd. Yet, one day an innocent defendant could be denied an opportunity to prove his or her innocence that way by a court ruling not allowing testing to go forward. History shows that courts everywhere do not necessarily always do what is right or fair. Why leave the door open for an injustice to take place this way? Let’s close that door that permits a wrongful conviction to be preserved.

Reforms pertaining to Public Defenders

The Quality of Public Defenders Must Be Raised, Maintained, and Monitored. Those Lawyers Who Are Not Competent Must Be Removed

As a society, we have decided that we want the quality of our public school teachers to be high, because of the ramifications of what would happen if they were not. Following a similar line of reasoning, we need to address public defenders, the same way because their work is as important as that of teachers, and the stakes are much higher in criminal cases.

There needs to be a limit on the amount of cases that Public Defenders are given at one time

At present, public defenders are given too many cases to work on at the same time, whereas an assistant district attorney is not given anywhere near that amount of cases, and therefore are able to focus more, and have more time to prepare. How much time does a public defender really have to spend on each case?

The Budgetary and Human Resource Disparity That Exists Between Public Defenders and Prosecutors Needs To Be Eliminated. Both sides must be allotted adequate financial and personnel resources.

At present, district attorneys have big budgets and a big staff to fully investigate, explore, and develop a case. They can get experts to perform various tests. Whereas public defenders have small budgets and small staffs. In order to get an expert witness they must first request it from the court, which often denies their requests. It is only discretionary on the part of the courts. A district attorney need not rely on obtaining a discretionary ruling to get funds for an expert. On such an uneven playing field, how can any confidence be placed in the outcome?

Mandatory Representation Should Be Provided To The Poor on 440 Motions To Set Aside A Verdict

Currently the poor are not accorded mandatory representation on post-conviction motions to set aside the verdict, which in legalese are called 440 motions. Those with money, who can afford it, are able to have paid lawyers represent them in such motions, put together arguments, have investigators reinvestigate to look for new evidence etc. in an effort to try to establish innocence. The poor, on the other hand, being unable to afford such legal services on their own or through family members or friends, are not provided them by the state. This essentially leaves the wrongfully convicted with no means to investigate and no lawyer to file the legal papers.

Even when there are legal issues present to argue which do not require any investigation, not having a lawyer will result in a defendant who, not having been to law school, or having any paralegal training, and not a lot of formal education in general, will be going up against a trained and seasoned district attorney.

It is only with competent representation at every stage that reliability can begin to be ascribed to the criminal justice system.

Reforms pertaining to Review of Cases

All Criminal Cases Which Are On Appeal Should Be Automatically Reviewed By The Court Of Appeals.

The way the system is currently set up, criminal defendants only have a right to have their case reviewed by one State Court, the Appellate Division. In order to have his or her case reviewed by the Court Of Appeals, a prisoner must first obtain permission from that court. Often requests are turned down. In my case, I was denied permission even though I was arguing my innocence based on the DNA and Hair, and the horrendous conditions under which the “confession” was obtained. The court said, “There was no merit in law to review the case.”

In criminal cases, lives are on the line. Existing in prison can in no way be considered living. In such an important matter, there needs to be every possible layer of review to maximize chances that miscarriages of justice will be caught. My case was no isolated matter. There have been over 195 exonerations nationwide by The Innocence Project alone, and 5 in New York State in the last 10 months. That is not counting other non-DNA exonerations by other programs which strive to clear the wrongfully convicted.

It is no coincidence that many of the exonerated have served double-digit years of wrongful imprisonment. What often happens is that they have go through the entire appeals process prior to being cleared. Along the way, many of the exonerees are denied permission to have their cases reviewed by the Court Of Appeals.

What is apparent is that more review is needed. Automatically having criminal cases reviewed by the Court is a way to do that without creating another court. To any cost-based opposition to this reform that may be voiced, my response is: Can you place any price on freedom? What is the alternative, to allow other innocent people to remain in prison for lack of being able to get their cases reviewed? Many people do not understand that procedurally, the wrongfully convicted only have two levels of review as a matter of right in both state and federal courts.

Here is a explanation of the process, in the order in which cases travel, including what happened to me at each stage, for the purpose of illustrating the need for further review:

  1. A) The Appellate Division. The first appeal. This is a state court. Appeals to this Court are as a matter of right. Rearguement motions can be made to this Court after losing a decision, but this is up to the Court to decide whether to grant the motion and reconsider the case or not. In my case they ruled 5-0 against me, claiming that evidence against me was “overwhelming” even though there was no evidence other than the coerced, false confession, with the DNA and hairs not matching.

Then I filed a reaguement motion asking them to reconsider their decision, arguing that it was at odds with the facts and the law. The court decided not to grant the motion.

  1. B) The Court Of Appeals: New York’s highest court, and the last court for a state prisoner to take his or her case to at the state level. In order for a case to reviewed by this Court, a prisoner must first obtain permission from them. In my case, the Court declined.
  2. C) Habeas Corpus: This is a federal issue, pursued in Federal District Court in which state prisoners argue that their convictions are in violation of the Constitution. Review by this court is as a matter of right. In my case because the court clerk gave my lawyer incorrect information regarding the due date for my petition, it was filed 4 days too late. At the District Attorney’s urging the court time-barred me.
  3. D) The United States Court Of Appeals: This is the federal version of the Appellate Division. Permission must be obtained from this Court to before being allowed to appeal to it. In my case, I was granted permission to argue that the ruling to time bar me was wrong.

When they decided my case, the court ruled that the Habeas court was correct to time bar me even though I had argued that to so rule would result in a miscarriage of justice, and had requested more sophisticated DNA testing, of the type that would go on to clear me. A re-argument motion was filed in that court, asking it to reconsider its decision because of the miscarriage of justice that would result, but the court declined to grant that motion.

  1. E) The United States Supreme Court: This is the highest court in the land, therefore there is no other court to go to upon being turned down here. Permission must be obtained from this court before being allowed to appeal to them. This court historically accepts about 5% of all cases nationwide. In my case I was not able to overcome the odds. They declined to grant me permission to appeal to them.

What happened to me was that despite being seemingly involved in 7 court proceedings, in effect my case was reviewed on the merits by one court. What is apparent from my judicial history and this layout is that more mandatory review is needed. Can anyone, considering what happened to me and the many others who went on to be cleared long after their appeals had run out, conclude any differently?

A Review Apparatus, Independent of the Appeals Process and The Executive Branch, Needs To Be Established To Look At Cases Wherein There Is a Factual Dispute of Guilt or Innocence.

My case, along with so many others in New York, involving people who have been wrongfully convicted and yet whose appeals all failed them, demonstrates a need for an additional review mechanism wholly apart from the court system. As our cases show, the courts all failed to give us justice. The power of the pardon by the Governor is in no way a sufficient remedy since pardoning on the grounds of innocence is normally done only under the most extraordinary circumstances, and politically is a very risky act, especially for those who plan to run again.

We need a review mechanism made up of wrongful conviction experts. A listing of particular recent failures to correct injustice: and the years served, all in N.Y.:

Scott Fapiano: served 21 years wrongfully; Alan Newton: served 21 years wrongfully; Doug Warney: served 10 Years wrongfully; Vincent Jenkins: served 17 years, wrongfully; John Kogut: served 17 years wrongfully; John Restivo: served 17 years wrongfully; Dennis Halstead: served 17 years wrongfully; Jeffrey Deskovic: served 16 years wrongfully.

Reforms pertaining to Evidence

Withholding of Exculpatory Evidence Should Be A Crime

The withholding of information favorable to the defense is nothing new and is a major cause of wrongful conviction. Sami Leka served 13 years for a murder he was innocent of. An off-duty police officer observed the shooting from his apartment and saw that it was not Leka, but this information was not turned over to the defense. More recently, on Feb. 7, 2006, Anthony DiSimone’s conviction was overturned by Federal District Judge Charles L. Brieant after DiSimone had served 7 years. Prosecutors had withheld 376 pages and 52 boxes of evidence. Judge Brieant categorized the withheld evidence as having “raised very serious issues of actual innocence, clearly arising to the level of reasonable doubt.”

Police and prosecutors sometimes withhold evidence which results in innocent people being wrongfully convicted and therefore serving prison time, often long sentences. There are laws against this, but there are no teeth in them, and there are no penalties which personally affect those who commit such acts; they get away unpunished. It should be a crime whenever police or prosecutors withhold evidence, punishable with heavy fines and prison time. This would give pause to those who would sacrifice truth and fairness and make patsies of innocent men and women in order to simply solve a case and get a conviction.

There Needs To Be A Better Evidence Preservation System In New York; Failure to Preserve Evidence either Pre-Trial or Post Trial Should Be Automatic Grounds For Dismissal Of The Indictment.

The failure to preserve evidence is quite serious because it prevents innocent defendants from being able to use that evidence to establish their innocence, or at the very least argue it. In cases where evidence was sought after conviction in order to perform DNA testing, and the evidence has not been preserved, the accused remains in prison. Alan Newton served 21 years in the N.Y. Prison System for a rape which DNA proved that he did not commit. Twelve of those 21 years were spent while police claimed that they could not locate the evidence which when tested would clear him. When it was located, it was right where the defense had been saying it was. If that evidence had never been located, Alan would have remained in prison, because under the current law when evidence is lost and therefore can’t be tested for DNA, the wrongfully convicted remain in prison, thereby penalizing the innocent for the failure of law enforcement to do their job of evidence preservation.

The law should be changed so that in such cases the defendant is given the same results he or she could have obtained if the evidence had been preserved and a negative DNA test result obtained.

“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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About The Author

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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