Looking Back: Selwyn Days Round 3

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Jeffrey Deskovic speaking in Davis at an Annual Vanguard Event

By Jeffrey Deskovic

“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.

The death of a 79-year-old wealthy Eastchester widower together with his 35-year-old home-health-aid in November of 1996 which first came to trial in late 2003, ending in a hung jury, and again in the spring of 2004, resulting in a conviction for second-degree murder, has once again been brought to trial. This latest round was necessitated by the actions of Judge Jeffrey Cohen granting a 440.10 post-conviction motion to overturn the conviction in December 2009.

Defendant Selwyn Days, who has already spent ten years incarcerated; four awaiting his original trial, and, six following his conviction, a Mount Vernon resident, brain-damaged since early adolescence, is accused of having murdered Eastchester resident Archie Harris and his aid Betty Ramcharan. Each of the three trials have featured a videotaped confession by Days as the centerpiece of the prosecution case despite the lack of any forensic evidence connecting Days to the crime scene.

Days, arrested February 15, 2001, had been in Mount Vernon police custody from 10:45 AM until 4:30 PM when police from Eastchester arrived. Interrogation then started from 5:30 PM till nearly 3 AM in the morning with only a few minor breaks; the first seven hours of which were not recorded.

The prosecution is being conducted by Assistant DAs Christine O’Connor and Perry Perrone. The opening statement, delivered by Mr. Perrone, began with an alleged statement attributed to Selwyn Days to the police, “Did you all know I had something to do with it? Why did it take you so long to come and get me?” Perrone made clear that the prosecution’s case hinged on a confession by Selwyn Days that he had in fact murdered Harris and Betty Ramcharan, in retaliation for Harris’ having sexually molested his mother. Perrone conceded that police work “was not perfect” but that they did not engage in coercion.

The defense team, headed by co-counsel Glenn Garber of The Exoneration Initiative, the agency which successfully filed the post-conviction motion that overturned Mr. Days’ 2004 conviction, and co-counsel Roberto Finzi from Paul, Weiss, Rifkind, Wharton & Garrison, Paul Weis Lifton and Garrison, are arguing the position that Days’ confession was both coerced and false, a combination of details that were embedded within police questions to which Mr. Days simply replied, “Yes,” and confabulations that are demonstrably incorrect. In their opening statement, delivered by Finzi, the defense declared, “The best scientific evidence cannot put Selwyn Days within 500 miles of that crime scene.” They asserted that Days was in Goldsboro, North Carolina, at the time of the murders and that the absence of forensic evidence was further proof of innocence, coupled with an as-yet unidentified Caucasian hair found on Harris’ sock, provided further reasonable doubt.

Finzi emphasized to the jury that Selwyn Days was a man of, “limited intelligence,” vulnerable to suggestion, and that the false confession was only forthcoming following 17 hours in police custody and seven hours of intense interrogation. Furthering his point, Finzi boldly declared, “We don’t run from that confession! We embrace it!”

Already commanding the jurors’ rapt attention, attorney Finzi now raised some eyebrows as he pointed out the prosecution’s need to expand the timeline that they had used in two prior trials, back from November 19 to November 18, the net effect of which would tend to undercut the anticipated testimony of alibi witnesses.

Detective Barletta of the Eastchester Police Department, one of the interrogating officers, testified that it was his voice heard questioning Days in the videotaped statement despite the fact that he is unseen on the tape. On cross-examination, Glenn Garber established that Barletta had had prior contact with Days as a result of a complaint that Days’ mother Stella had filed with the Eastchester Police regarding Archie Harris. Turning in another direction, Garber asked Barletta whether he was familiar with the interrogation techniques known as “themes” and “minimization,” which Barletta stated he was unfamiliar with. Garber then followed up by showing him an interrogation manual, asking him if he was familiar with it, which he denied. Asked whether he had ever heard of the Reid Technique, Barletta continued to profess his ignorance. Capping off the line of questioning, Garber asked Barletta whether he had ever received any interrogation training, to which Barletta continued to plead ignorance, stating that he had “not received any training” and that “police interrogation is something learned on the job.”

Analysis

This confession is obviously false based upon a variety of factors. Firstly, several of the questions were preloaded with information, which the defendant merely regurgitated. Secondly, despite all the information fed to him, he still made many mistaken assertions, such as the claim that his hands were full of blood and that he washed them in the sink, and further he had disposed of the knife, when in fact there was no blood residue in the sink and the knife lay beside the body of Ramcharan. Thirdly, it is highly improbable that a man of Days’ limited mental capacity could commit two such brutal murders while leaving not a trace of his presence—no fingerprints, no body fluid, no shoeprints, no hairs, absolutely nothing connecting him to the crime scene.

Barletta’s statement about having received no formal training in interrogation procedures at any point and that is it learned “on the job” defies belief in that it is commonly known that the Reid Technique is the standard interrogation paradigm utilized by the majority of police agencies across the country. It is impossible for Barletta, engaged in police work for thirty years, to have never heard of it.

My impression of newly-minted county court Judge Barry Warhit is that he is functioning as the third prosecutor in the room in this trial, seeming to sustain a good 85 to 90% of prosecutorial objections, while seldom sustaining defense objections. Furthermore, before the start of the trial, he barred the defense from presenting false confession expert testimony, despite its having been admitted at the trial in People vs. Kogut, a recognized New York false confession case that ended in acquittal. Such experts do not testify as to whether a particular confession is false, but rather provide helpful contextual information pertaining to factors that cause false confessions. Such information is critical when evaluating a confession’s truthfulness, because of the commonly held mistaken belief that innocent people do not confess.

Warhit further demonstrated his willingness to bend over backward for the prosecution, even before the trial began, when they demanded and he granted removal of Richard Blassberg from the courtroom, former editor of The Westchester Guardian and frequent critic of the DA’s office—predicating their demand on the pretext that he might possibly be called by them as a witness, given the fact that he had served as a defense attorney/investigator at the second trial. It seemed more likely to me that the real reason they didn’t want him involved was their fear that his familiarity with the case would enable him to possibly point out something helpful to the defense as the trial unfolded; and/or might report on the case in some other venue; and out of general vindictiveness.

 “Jeffrey Deskovic, Esq, MA, is an internationally recognized wrongful conviction expert and founder of The Jeffrey Deskovic Foundation for Justice, which has freed 9 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 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.  Jeff is now a practicing attorney.

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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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