Looking Back: The Appeals Process Is Woefully Insufficient to Protect the Innocent – Part 1

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

As many people are aware, I served 16 years in prison before being proven innocent by DNA. During that ordeal, in an effort to try to correct the injustice that was occurring to me, I was forced to gain an understanding of the processes involved in post-conviction court proceedings. My survival instinct would not allow me to simply sit back and permit lawyers to work on my behalf while doing nothing. Instead, I learned as much as I could.

I got familiar not only with the process, but also the case law that pertained to the issues I was litigating. This involved reading the opinions of courts in many cases. I also immersed myself in a lot of wrongful conviction literature, oping, in my desperation, to find something, anything, that others had done to help clear themselves, that I might emulate. I mention this so that readers will now that while I have my own first-hand experience with the court system, my perspectives are not based on that alone. Instead, they factor in many cases, of which my case was but one.

Often what goes on outside of courtrooms is as much a factor in how cases turn out as the arguments that go on inside of them. The press has the power to create an environment which may shift the tide of public opinion, which, in turn, often influences judges. When a case is sensationalized, the defendant’s presumption of innocence often flies out the window and articles are written not merely to report the facts or to give an analysis or pinion based upon an objective assessment, but rather, they frequently present he prosecution and police versions of vents as though they are gospel. At times this is exacerbated by defense attorneys who frequently decide not to counter prosecution and police statements.

This extra-judicial environment becomes a part of the feel of a case, and often remains with a case throughout the appeals process. Hence, sometimes defense attorneys in cases involving innocence and the exposure of injustice, call public attention to their case in an attempt to turn the environment around, as well as to inform the public about what is going on in the courtroom. It is not unusual in such cases for prosecutors, to dig in their heels and protect a conviction at all costs; a mentality to counter defense press attention and throw the public off by rhetorical lines such as “This case has been in front of such and such number of courts”, or “This case has been reviewed by such and such number of judges”, implying that prior review and upholding of the conviction is somehow a sign that the verdict is accurate, that no further review is needed, and that the appellate process is enough to protect the innocent.

The purpose of this article is to illustrate that that is far from the case. Appellate courts, at both the state and federal level, have long been in the practice of ‘rubber stamp denying’ meritorious appeals of the innocent, no matter what facts are in the defendant’s argument or legal arguments that are made. Nationwide, there have been 215 DNA exposed wrongful convictions, and in New York there have been 25. In almost every single one of those cases, the appeals process had long since run out for the defendants although they had been proven to be incorrect.

Often, when viewed with the benefit of hindsight, there are many things which are objectively pointed out which should have sent up red flags that something was wrong with the conviction and, therefore, warranted reversal. For example, in a Nassau County case, John Kogut, Dennis Halstead, and John Restivo, co-defendants, served 17 and 16 years in prison before being cleared by DNA, based upon a confession obtained from Kogut under circumstances which should have been obvious to the courts was not admissible as it was obtained after nearly 18 hours of interrogation in which he produced five different versions before the police finally accepted the sixth version. It was so bizarre that the prosecution actually argued that Kogut gave the different version of the confession because he was trying to set the stage for a future defense for himself that the confession was untrue and coerced. Their appeals had ran their course and had long since been exhausted.

State Courts Appellate Division, State Supreme Court

This is the first court that an appellant must go to. It is a very important court in that it is the only state court on the appellate level that is empowered to review questions of fact and of law. Arguments regarding whether the proof showed guilt beyond a reasonable doubt, or whether a verdict was against the weight of the evidence are arguments that can only be entertained here. Despite its important function, the Appellate Division routinely abdicates its responsibility by rubber stamp denying many meritorious claims, thus damning the wrongfully convicted to continued incarceration, and flushing the rights of everybody down the drain.

The Appellate Division has, for the longest time, been extremely biased against defendants, and pro-prosecution. Rather than being the neutral arbiter that it is supposed to be, it has long been in the business of denying defendants’ appeals, rather than looking at the issues raised on the merits and ruling whichever way the law and the facts require. Thus, for a defendant, whether innocent or guilty, an even more important issue than the arguments that he or she raises is whether the courts will even objectively consider their arguments with an open mind or will simply automatically deny the appeal. Most often, the sad result is unjustifiable denial.

Even if they decide to mentally engage the case, there often is a sub-conscious, or in some cases, a not-so-subconscious inclination to try to find a way to rule in favor of the prosecution, and uphold a conviction. This stems from two things: Many of the judges are themselves former prosecutors and tend to look upon every defendant as guilty, and arguments as mere technicalities that are irrelevant to that issue. Therefore, they must find a way to brush aside, and not act as the neutral arbiter that they are supposed to be, but instead they see themselves as a kind of law enforcement which is supposed to protect the public by not releasing “criminals.”

Both mindsets are wrong on their part. New York’s now 25 DNA proven exonerations, third in the nation in wrongful convictions, along with other exonerations in this state by means other than DNA, illustrate that the system is flawed and that not every defendant is guilty. Therefore, it is obvious that some innocent defendants will get caught up in the Court’s mentality. Issues of law are not mere technicalities, but instead are built-in safeguards designed to ensure that trials are fair, thus lending themselves to reliable verdicts. A secondary, but important, function is that in a larger sense they ultimately protect the Constitutional rights and right to a fair trial of all law-abiding citizens. If an individual defendant’s rights are trampled on and allowed to be by the Court, then this sets the stage for future defendants who are innocent to also have their rights trampled on.

Despite being entrusted with the all-important function of ruling on factual issues which go to the matter of innocence, in many cases, when their opinions are looked at, it is obvious that they were not looking. Often the defendant’s legal issues alone truly did warrant reversal so that it should not have had to come down to DNA or discovering some new evidence. Instead of finding a bulwark in the courts to uphold and vindicate rights, the Court has come to be a higher authority which signs off on their violation.

Often it is easy to spot when they have done the appeals version of a show trial. Some of the hallmarks include: The court not ruling and grappling with the issues raised in the brief but instead writing a perfunctory opinion; and the length of the opinion being short. The Nowicki Opinion, written about several issues ago, is a good example of this. Another sign by which this can be spotted is when, after reviewing the briefs from both sides, the Court makes it sound as though the defendant had no issue at all, that even if something is ruled against, that it was not a close call, and that it was almost frivolous for the defendant’s lawyer to have raised it at all. Yet another sign is when they “Affirm, without opinion.” This type of ruling, in effect, says that they uphold the verdict of guilty and all of the rulings in connection thereto, without finding it necessary to elaborate why. Since the defendant, in appealing to the next court, must demonstrate the prior ruling against him or her was wrong, and how the reasoning was flawed, by having no opinion to argue about this challenge is made even more difficult.

When I appealed to the Appellate Division, my primary issues were my innocence, as established by the DNA which did not match me, and that my Fifth Amendment rights had been violated. The Court found nothing wrong with the way that I had been interrogated despite the lengthy interrogations and the abusive, intimidating tactics employed. Despite the dearth of evidence against me save for the coerced, false confession, the Appellate Division found not only that there was legally sufficient evidence, but that there was “overwhelming evidence of guilt.” Is there anyone, who now knows all about my case, who can look back at my case when it was at the Appellate Division stage and say that there was “overwhelming evidence of guilt”?

When a defendant loses an appeal in the Appellate Division, he or she has the option of filing a reargument motion there, asking the Court to reconsider its decision and pointing out how its decision runs contrary to the facts and the law. Should the motion be granted, a new hearing is set and the Court reconsiders the merits of the case and then makes a ruling. Most of the time, these reargument motions fail. My lawyer tried to reargue my case in front of them, but was denied. Of course, to permit reargument is tantamount to admitting they erred.

New York State Court Of Appeals

This is New York’s highest court. This court is only allowed to decide issues of law, and not fact. The procedure is that before the Court will agree to hear the merits of a case, it must first decide whether it will agree to hear it. Thus, defendants must file what is known as a Certificate Of Appealability Application, or COA for short. The responsibility that this Court has in addition to correcting injustices, wrongful convictions, and keeping the light of Constitutional Rights; rights accorded through the New York State Constitution, and rights in general which go to the matter of a fair trial, the Court must also make sure that the law is streamlined in New York by resolving questions of law in which different jurisdictions have ruled differently, and to ensure that cases are resolved correctly under the law.

Instead of doing this, however, most of the time, regardless of the merits of a case, the Court sidesteps it and thereby denies justice to a defendant by declining to grant permission. Such denials are usually unceremoniously written by the Court in a short sentence.

In my case, in addition to having serious Fifth Amendment issues, I also had the issue of law in that the trial court, instead of giving the correct charge to the jury, telling them that custody is defined as “whether or not an innocent person would believe that they were free to go”, as required by the case People v Yukl, instead told the jury that it was “As if the police stopped the Defendant on the street, with guns drawn, and taking him against his will to the police station.” Since the issue of custody was related to whether the confession was voluntary, this issue of law was very important.

Yet the Appellate Division did not overturn my conviction based upon this, instead, summarily dismissing it by ending its opinion, after ruling against me on the Fifth Amendment issue and my innocence issues, ducking all of my other issues, including this one, by saying “We have examined Appellant’s remaining contentions and find them to be either without merit or unpreserved for Appellate review.” Instead of granting me permission to appeal to them, raising this issue along with the custody issue and other issues of law, they stated that there was no merit in law to justify reviewing my case.

“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.

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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1 Comment

  1. David Greenwald

    I just wanted to say, I agree with Jeff here, this is a big problem.  The appellate courts are set up to determine if there is “error” in the trial court process.  But they are not set up to determine claims of innocence separate from determining if there was improper procedures or constitutional violations.

    Scalia famously dissented in a death penalty case involving Troy Davis – who eventually was executed despite serious doubts of his guilt.

    “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent,” Scalia wrote in a 2009 dissent of the Court’s order for a federal trial court in Georgia to consider the case of death row inmate Troy Davis. “Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

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