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.
Since my emergence from prison on Sept. 22, 2006, as a result of further DNA testing that not only reaffirmed my innocence but identified the real perpetrator, Westchester County District Attorney Janet DiFiore—who to her credit voluntarily allowed me to have the testing which her predecessor Jeanine Pirro refused—has touted my case as evidence of her being firmly anti-wrongful conviction and prosecutorial misconduct, and also a strong supporter of legislative reforms which would address the known causes of wrongful convictions.
She holds herself out as a bonafide anti-wrongful conviction advocate, continues to show up at anti-wrongful conviction events, frequently participating in them. Apparently she has managed to fool many legitimate members of the innocence movement regarding her true nature, for other than giving lip service to these sentiments she has no body of work, and at every turn her office’s conduct has demonstrated, time after time, that all of the usual tactics that typically go on at district attorney’s offices that lead to wrongful convictions—prosecutorial misconduct, win-at-all-cost mentality, opposing even meritorious motions by the defense—go on with regularity.
On October 29, 2007, DiFiore appeared at the Harvard Club in a panel discussion about wrongful convictions along with actual anti-wrongful advocates who, unlike her, had a body of work: Dallas District Attorney Craig Watkins, who pioneered the first “Conviction Integrity Unit” which pro-actively looks for ongoing cases of wrongful conviction; then-Senator Schneiderman who had supported many anti-wrongful conviction measures, only to not have enough votes to get them through a floor vote and sometimes not even out of committee; Assemblyman Lentol who has supported and in some cases passed legislation in the Assembly which failed in the senate; and Barry Scheck who co-founded The Innocence Project, which has helped clear over 150 wrongfully convicted inmates, including myself. During that discussion, DiFiore referenced my case as part of the work product of her “Second Look Program,” along with the Anthony DiSimone case.
In point of fact, she has no Second Look Program. There are no employees who work in it. The supposed division is not listed. What wrongful conviction cases have been exposed as a result of it? Any inference, whether direct or indirect, to my case as being an example of its work is fraudulent. Let me once again attempt to set the record straight: I was not cleared as a result of some proactive search by her staff, who, one day, discovered my case, realized that something was wrong, looked further into it, took steps, and cleared me. Rather, she was approached by my post-conviction attorneys at The Innocence Project and she agreed to allow me to have the testing, and then agreed to both vacate the conviction and eventually dismiss the charges once the test results both didn’t match me, while identifying Steven Cunningham. Had she not been approached by them, I would still be wrongfully imprisoned. As far as the DiSimone case is concerned, while her office finally, after 16 months of continuing to withhold exculpatory material pointing to an alternative suspect, turned it over, her office nonetheless turned around and continued to push the case against him.
In 2009 The New York state Bar Association studied 53 cases of wrongful conviction in New York, following which they drafted a preliminary report on wrongful conviction prevention, held a public hearing during which they invited public comment, drafted a final report, and then drafted a number of legislative bills, which Senator Schneiderman passed out of committee but which were never brought to a floor vote due to a lack of sufficient votes to pass it. DiFiore was a part of the Bar association’s group that sat at the hearing, studied the cases, and issued the report.
In 2009 Court Of Appeals Chief Judge Lippman appointed a permanent commission to study wrongful conviction cases and recommend changes. Appointed to that initial panel were Schneiderman, Lentol, and, you guessed it, DiFiore. While Schneiderman and Lentol’s bonafides are beyond question, this panel, in terms of accomplishing its goals, is all sizzle, no steak. There has been no publicized work product out of them, and sources close to the panel have informed The Westchester Guardian that they have been slow to get anything done. Beyond that, any initiatives by anyone on The New York State Court Of appeals, so long as that court does not change its ways, is a joke, in light of the fact that the court frequently rubber stamp denies even meritorious appeals, just as most of the courts in New York and across the country do. Worse yet, the Court Of Appeals often refuses to grant permission to appellants to appeal to them, even those with legitimate claims. The Sammy Swift case, in which Swift was appealing a reinstatement of his murder conviction by the Appellate Division after it had been thrown out based upon a negative DNA test, is an example of this: he was denied permission to appeal.
It has been recognized by Innocence Project Co-Founder Peter Neufeld, and myself, among others, that the appellate process is woefully inadequate at catching wrongful convictions. The average length of wrongful incarceration is 13 years, and frequently the exonerated have long since exhausted their appeals by the time they are cleared. New York is no exception to this trend.
In the past, DiFiore was part of the Spangdenberg Group, commissioned by former Court Of Appeals Chief Judge Judith Kaye, which authored a report following a study damning the state of indigent public defense in New York. Recently, DiFiore has secured an appointment to the transition team of newly elected New York state attorney General Eric Schneiderman.
The actions of DiFiore’s ADAs have, during this same time period, been deplorable. In the Edward Whitney case, I personally watched ADA Priscoe successfully argue to the jury that Whitney was guilty, despite a DNA test showing someone else’s DNA on the trigger guard, argue that “the identification outweighs the DNA.” Whitney was convicted of 3rd Degree Possession of a weapon and sentenced to 2 ½ to 5 years in prison.
In the Kian Khatibi case, which ultimately ended in his being exonerated, the ADA stood in open court and discouraged Khatibi’s brother, the actual perpetrator of the assault with a deadly weapon, from testifying at the post-conviction hearing, threatening to prosecute the brother for the crime, falsely informing him that the statute of limitations had not yet run out when in fact had.
Then in the DiSimone case, in addition to ADA Tim Ward continue to prosecute Disimone, Ward sat in court silently while DiSimone’s attorney Murray Richmond kept asking Judge Adler which charge his client was being prosecuted for: the old depraved indifference murder theory when it was misapplied before the Court Of Appeals straightened it out, or after. Then, once a guilty plea was obtained, via virtual neck-wringing from DiSimone, Ward opens his mouth at the plea allocution and acknowledges, after it is too late, the problem with the depraved indifference murder and the current state of the law.
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.