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.
As I have written numerous times prior to her appointment to the United States Supreme Court, Judge Sonia Sotomayor’s nomination represents a threat to justice and to all of our rights. I base my assessment on a variety of factors:
Firstly (and very personally), Sotomayor condemned me to a life sentence. I had led a Habeas Corpus petition in Federal District Court arguing actual innocence, as demonstrated by a negative DNA test. Because my attorney was given inaccurate information by the court clerk regarding the filing procedure, resulting in my petition arriving 4 days late, that petition was dismissed, as urged by then-Westchester District Attorney Jeanine Pirro’s office, despite my innocence issue.
I was then stuck trying to get the procedural ruling overturned. I appealed that ruling to Sotomayor’s court, the United States Second Circuit Court of Appeals, arguing three issues: a) that upholding the ruling would result in a miscarriage of justice continuing—which tied back to my innocence; b) that overturning the ruling would open the door to more sophisticated DNA testing; and, c) that the error was caused by the court clerk, not negligence on either my attorney’s or my own part.
Sotomayor twice signed off on upholding the ruling. In one opinion, she wrote, “The alleged reliance of Deskovic’s attorney on verbal misinformation from the court clerk constitutes excusable neglect that does not rise to the level of an extraordinary circumstance. Similarly, we are unpersuaded that equitable tolling is appropriate based upon Deskovic’s contentions that the four-day delay did not prejudice respondent, petitioner himself did not create the delay, his situation is unique, and his petition has substantive merit.”
In the case of another individual, a defendant well-known to Guardian readers, Paul Cote, Sotomayor was one of three judges sitting on a Second Circuit panel who reinstated Cote’s wrongful conviction which had been overturned by Federal District Judge Charles Brieant, as being against the weight of evidence, which indicated that a fellow Correction Officer, John Mark Reimer, had, in fact, caused the fatal injuries that Cote had been convicted of delivering to a violent inmate.
There were also several cases where, despite her acknowledging that multiple errors had occurred, including prosecutorial misconduct, she nonetheless consistently found that every error was “harmless.”
According to the Mother Jones blog, “Sen. Schumer, bragging about Sotomayor and her confirmability, released his Oce’s own study of Sotomayor’s 848 decisions in federal asylum cases, which included people seeking refuge from alleged violations of the Convention on Torture. Sotomayor ruled in favor of asylum seekers just 17 percent of the time. One defense attorney labeled her a ‘dead bang loser for the defense.’ John Siffert, an attorney who used to teach appellate advocacy classes with her stated that she ‘tends to see relatively few grounds to overturn criminal convictions.’
Criminal Justice Legal Foundation agreed, and on its blog praised Sotomayor on these very grounds: “She has resolved the overwhelming majority of her cases without reaching the merits of a defendant’s claim. Significantly, she frequently concludes that trial defects resulted in harmless rather than structural error. Her restrained manner is most evident in her habeas corpus decisions, in which she strictly adheres to the procedural requirements of the Antiterrorism and Effective Death Penalty Act (‘AEDPA’), often dismissing habeas petitions as unexhausted or time-barred under AEDPA, even when faced with potentially credible—and, in one instance, ultimately proven—claims of actual innocence.”
Concerned about the implications of her confirmation with regard to wrongful convictions, justice, and all of our rights, I unsuccessfully sought to testify at her confirmation hearing in Washington. In addition, the national media, with the exception of the New York Times, Huffington Post, and a short video by the Associated Press, all blacked out the story. I am very sad to say that my fears have already begun to be realized with the recent United States Supreme Court case, Wood v. Allen, whose opinion she authored, which signed off on the execution of a borderline retarded man whose inexperienced attorney did not even present evidence of his mental deficiencies during the penalty phase.
“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.