Thursday, December 28, 2006

The Court Report
By Richard Blassberg

Deskovic: Case Not Handled “Righteously”


By Jeffrey Deskovic

Let me start out by thanking The Westchester Guardian for giving me this opportunity to speak directly to the public. Considering that I was released from prison with merely the clothes on my back to start my life over and to reintegrate back into society after 16 years, this opportunity is much needed.

In this my first article I would like to address the issue of whether my case, at all stages, and by all parties involved, was handled in good faith and reasonably; whether it was, in the words of Peekskill Police Chief Tumolo, righteously investigated. Although this issue has been written about previously by other writers in other papers, I wanted the chance to address this issue myself, reasoning that since I had been fighting to establish my innocence for so many years, which necessitated that I know the facts backwards and forwards, so as to be able to lay them out to anyone and everyone who could potentially be of some help to me, I had acquired a familiarity with them which is perhaps unequaled by anyone. Additionally, unlike other writers, I lived it, and was personally affected by it; therefore this perspective could provide some additional insight to readers.

An understandable initial reaction by the average person to the prospect of an exoneree assessing the investigation and prosecution that resulted in his or her wrongful arrest and conviction would be to think that the
writer would engage in an emotional tirade consisting of bashing, rather than a calm, well-reasoned, analysis
which lays out verifiable facts, and easy-to-follow arguments.

That reaction, however, much as one might reasonably expect it, is not what I am going to do. Rather, I
would like to present an objective account utilizing facts which can be verified in the trial testimony given by the
police, and in legal documents which can be accessed in the Westchester County Court House. Additionally,
these facts can also be found in other newspaper stories about me.

In the aftermath of my exoneration, there was a mad dash by both The Peekskill Police and by former District
Attorney Jeanine Pirro, and Judge Colabella to explain their actions in connection with my arrest and conviction,
and the preservation of that conviction up until the point that I was exonerated. When asked by the media to
comment, Peekskill Police Chief Tumolo, then a Lieutenant, who was the officer in charge at the scene in which the coerced, false confession was obtained, proffered the explanation that ‘while it was unfortunate that I had been wrongfully convicted and thus spent approximately 16 years in prison, the case had been “righteously
investigated.”

Pirro attempted to put the responsibility on her predecessor, Carl Vergari, under whom I was originally prosecuted, even though she had opposed me tooth-and-nail during the appeals process, often successfully arguing that my issues, including that of innocence, based upon the DNA, “should not even be considered,” upon several occasions in the appeals process in both State and Federal Appellate Courts.


In one such appeal, when timeliness regarding my filing became an issue, four crucial days separated our respective positions and became a point of contention in the courtroom (Habeas Corpus Petition, Second Circuit United States Court of Appeals), within the context of whether that court should agree to hear my case. Judge Colabella stated, “He got a fair trial.” I will lay out the facts so that readers may decide for themselves what occurred. I would encourage everyone to think objectively and critically, and to push past the sound bytes and the spin to see if the facts support the conclusion. I would ask that, above all, readers consider whatever their mind and heart of hearts tells them.

• Police

The circumstances, as testified to by the police, regarding how the coerced false confession was obtained are as follows: The police told Deskovic to come to the police station the next day to take a lie detector test, and he did so. They did so without first informing his mother or asking her permission. In fact, they testified that they knew that his mother did not want them talking to her son. They did this on a school day, which meant that nobody would have realized that he was missing and therefore look for him. They drove him to Brewster, in Putnam County.

The significance of this, as pointed out by Deskovic’s lawyer in the Appellate Division brief, was that he was
in an unfamiliar place and was not able to leave independent of them. He was put in a room and attached
to a polygraph machine. The polygraphist himself was dressed in civilian clothes and pretended to be a civilian,
even though in reality he worked as an investigator for the Putnam County Sheriff ’s office. He testified that
he did not give Deskovic Miranda Warnings, which all police officers are required to do, but simply gave Participatory Warnings, the gist of which is that any incidental opinions that were rendered by the polygraphist
would be turned over to the police. This is different from Miranda Warnings which inform suspects that anything
that they say “can and will be used against you in a court of law” so that if they choose to, they can, in the words
of the case law on the subject, waive those rights “knowingly, willingly, and intelligently,” thus ensuring all of
society’s continual enjoyment of the Fifth Amendment every day, and not merely when the authorities wish to
accord it.

A question one needs to ask oneself, in considering all of the above, is that even if those warnings were issued, what 16-year-old boy would have understood them? The polygraphist also noted that the 16-year-old took 17-20 minutes in order to read a four-page brochure which purported to explain how polygraph works, and that the manual included such big words as “immunity”, “coercion”, and “duress” (see brief at Appellate Division, p.9).

When asked about the propriety of this by Deskovic’s trial attorney, the polygraphist’s response was “It was not my job to determine the intelligence of Deskovic.” According to police testimony, “Jeffrey was interrogated at times by one, two, and three officers.” There was no attorney present with him despite the fact that he was only 16 years old. Also, according to police testimony, all kinds of psychological tactics were used in order to try to obtain a confession, including “passive and stressful” interrogation, and the game which has come to be known, and decried in the study of interrogations as “Mutt and Jeff ”, in which one officer plays a rough, no-nonsense menacing/threatening type role, and the other one pretends to be friendly and on the suspect’s side. The purpose of this tactic is to create fear in a suspect while simultaneously offering the illusion of someone on their side that they can turn to.

Polygraph tests, as alluded to in an article in Psychology Today, “Guilty Knowledge Test, The Right Way to Use a Lie Detector” by Lykken, often produce false results because they are failed by “frightened, innocent persons.” (March 1975, pp56-60). The polygraphist admitted to eliciting a “lying reaction” to a “non-lying question.” When unable to say Deskovic failed the first test, he administered 2 more, and told him “…you told me within yourself that you did it. I just want you to tell me from your mouth that you did it.” (Brief at the Appellate Division, p.12).

Before the interrogation was all over, Deskovic, according to Detective McIntyre, had “broken down and started to scream and crawl under the polygraph chair and remained in what I would call a fetal position… crying very heavily” (Brief at the Appellate Division, p13) The police testified that Deskovic was with them for 7 ½ hours and that he was not given anything to eat. Over that amount of time, and under those circumstances, anyone would get worn down.

The interrogation, by the way, was neither tape recorded nor recorded on video. It was only at some
point after the false confession was obtained that Deskovic was ever given anything that day, at about
6-7pm (Brief at the Appellate Division, p.45).

The police never attempted to have DNA Tests performed on 2 other individuals that they claimed had been suspects, however briefly.


Under District Attorney Carl Vergari:


Carl Vergari as The Westchester County District Attorney, George Bolen as the Assistant District Attorney
who prosecuted me in court.

• I was prosecuted based on the false confession despite the circumstances under which it was obtained,
which made it highly questionable.

• I had been arrested prior to the completion of the FBI’s DNA Test Results, which were negative. Once those results were in, as well as those of the Hair Comparison Test, which showed that hair found on the victim also did not match me, ADA Bolen would not acknowledge that a mistake had been made. Instead, he opposed the Defense when we attempted to have the indictment dismissed.

Under District Attorney Jeanine Pirro:


• District Attorney Jeanine Pirro continued to single-mindedly oppose all of my appeals, even though I was repeatedly raising the issue of my innocence, based on the DNA and the Hair Comparison Tests, and the manner in which the false confession was obtained. One would think that arguments such as these, based upon uncontradicted facts supplied by the Prosecution’s own experts, would have sent up red flags and given further thought, resulting in a acknowledgement that a mistake had been made and a innocent man was in prison.

• A letter Written To District Attorney Given Short Shrift

Mrs. Pirro, in the course of her failed campaign against Andrew Cuomo for Attorney General, when the issue of my letter to her asking for my DNA evidence to be reviewed came up, implied that no such letter had been sent and that therefore I was lying. Let me state that anyone convicted of a crime which they did not commit for which there was a DNA Test that showed they were innocent, but for which the courts were nonetheless upholding their conviction, and for which they remained incarcerated while more and more years of their life was slipping away, and they became aware that there was now a District Attorney in office other than the one who prosecuted them, who had made a variety of public statements in the newspaper indicating her belief in DNA in the aftermath of the exoneration of Westchester County resident Terry Chalmers, should they not, in only in desperation, write a letter to her? Can anyone doubt that such a letter and response were exchanged?

District Attorney Jeanine Pirro urged the Federal Court to time bar me without even having my issues looked at on the merits.

My attorney asked the court clerk if it was suf-ficient that my Petition be postmarked by a certain date, or if it had to be physically there by the deadline. The clerk incorrectly told my lawyer that it was sufficient that it be postmarked; this resulted in my petition being four days late. Mrs. Pirro’s office urged that my case be dismissed because of this, without even having my issues, including the grounds of innocence, looked at. The Court unfortunately adopted this position.

District Attorney Jeanine Pirro urged the next highest Court to uphold this ruling, even though my lawyer argued that this would result in a miscarriage of justice in light of the DNA evidence; and then she urged the U.S. Supreme Court not to agree to review my case, positions that each of those two Federal courts adopted.

Federal Court Request By Deskovic For DNA Testing Successfully Opposed.

Then, in legal documents filed in the 1999-2000 calendar of the United States Second Circuit Court of Appeals, my brief contained a request that new, recently developed and more sophisticated DNA protocols be employed on the materials from my case allowing for more sophisticated testing. is, too, was opposed by Pirro, and again the courts sided with her.

What possibly could have been lost by permitting such testing? Steven Cunningham, the real murderer of Angela Correa, had been convicted three and a half years after that crime for which I was convicted, for killing still another woman, Pat Morrisson. Therefore, his DNA was in the DNA Database, and thus had the test been conducted when I requested it, I would have emerged from prison, exonerated, six years sooner than I was.

Trial Judge


• Judge Colabella allowed the “confession” to be admitted into evidence, even though, as testified to by the police, it was obtained under highly questionable circumstances.

• Judge Colabella allowed the polygraphist to testify as to charts and opinions, while forbidding the Defense from cross-examining him as to his methods for reaching conclusions, and his terms of employment with the Peekskill Police, which went to the matter of objectivity. Additionally, allowing the polygraphist to testify at all was as prejudicial, as it indirectly allowed the polygraphist to tell the jury that Deskovic failed the test, even though polygraph test results are not allowed into courtrooms because they are not considered reliable. It has been proven that juries cannot put it out of their minds when they are told words to the effect that a defendant failed a polygraph test, despite any verbal admonition by judges that the tests are unreliable and that they are not to
speculate on the results themselves.

• The Judge denied Defense applications to have the charges dismissed based on the grounds that the
evidence was legally insufficient and did not establish guilt beyond a reasonable doubt.

• At the Sentencing, the Judge told me, “maybe you are innocent,” then went on to say that was a matter for the jury to decide, and he agreed with the verdict. He proceeded to sentence me to 15 years to Life, of which I served 16 years before being cleared.

• The Judge allowed a “chewed bottlecap” to be admitted into evidence, supposedly located 70 days
after a police grid search, without insisting that the Prosecution first lay a foundation for it by using Dental
Impressions Testing. This was prejudicial because Detective Levine testified that he had seen me chewing
one on a previous occasion.

• During the trial, the victim’s clothes, including her bra, got thrown out after they had been admitted into evidence, but before the trial was over. The jury asked to see the bra, but it was no longer available. According to my trial attorney, the significance of this is that one of the statements in the false confession was that “I ripped off her bra”, and there are some bras that one cannot rip off, and he had indicated to me that he was relying on this. To provide a further context for how important the bra was, the Prosecution categorized that piece of evidence as it’s “most significant.” To substitute for this, the Judge allowed a photograph in which the bra could “almost” be seen. By law I was entitled to a mistrial, because according to the case Brackley v. Donnell, 53 A.D.2d 849, once evidence has been submitted to the jury and is no longer available to it during deliberations, it becomes “physically impossible to proceed with the trial in conformity with law”.

• The Judge repeatedly made statements on the record which reflected his pro-prosecution bias rather
than being objective. He expressed concern that the Prosecution be protected from an “inordinate burden” or “negative inference” in the Prosecution’s meeting of its obligation to prove its case beyond a reasonable doubt. (Brief at the Appellate Division, p.68)


Analysis of Additional Comments Made by The Three Peekskill Police Officers

Police


• Police Chief Tumolo, in an article appearing in the Daily News, stated, in commenting on Detective McIntyre who obtained the false, forced confession, “The evidence he developed was so compelling, it was a textbook case.” What evidence?

An unnamed source at the Police Department, opined that, “It’s unfortunate that he did all that time in prison, but I gotta tell ya nothing improper was done.” First off, was this “unnamed source” even there to know? If not, what did he base his statement on? Is it simply more of the same institutional Us vs. Them mentality in which one part of the system simply covers and invents excuses for the other, lest anyone’s colleagues toes be stepped on?

Given the circumstances reviewed above, can anyone objectively conclude that “nothing improper was done”? Can anyone conclude that the false confession was voluntary? Are those tactics described, as testified to by the police, consistent with a voluntarily given confession? As a society of law-abiding citizens, is that the way we want our police departments to behave?

• Former District Attorney Pirro, in an article in the Daily News, stated, “No new evidence was presented to my office when I was the District Attorney,” yet, firstly, the same info was presented to D.A. DiFiore, and she allowed DNA Testing to go forward producing the results which could have been obtained years before. And, secondly, why was there a need to have any new information presented, anyway, given that a DNA Test already showed that the semen found in the victim did not match me, and that hair found on the victim also did not match mine. Why was this not enough, especially with the lack of any reason to believe that the victim, only 15 years old, had engaged in a consensual sexual encounter so as to be able to explain the presence of
the semen which we now know belonged to the real perpetrator, Steven Cunningham?

• Mrs. Pirro’s spokesperson, speaking to the New York Post, stated, “It’s insane to reopen a case, absent
new evidence, merely because a convict says that he is innocent.” My response to that is that in each and every case in which the facts warrant it, a case should be looked at again, because to not do so would be to replicate the type of result that occurred in my case. In light of all the exonerations nationwide which indicate the fallibility of the court system, why would we not want to reexamine cases when we have an objective reason to do so?

Why should we not take all steps that we can? Who really benefits from having an innocent person in prison? In my case in particular, A DNA TEST WAS ON THE RECORD AS HAVING NOT MATCHED THE DEFENDANT. IF THAT IS NOT SUFFICIENT TO WARRANT A SECOND LOOK AT A CASE, WHAT IS?

More importantly, I would like to point out that each time an innocent person is incarcerated, it leaves society
in danger because it leaves a perpetrator free to commit another crime. In this particular case that perpetrator
did go on to commit another crime, a murder.

Finally, Judge Colabella had said “There was no basis for me to set aside the verdict. It wasn’t unreasonable.”
Given that neither the DNA, nor the Hair Comparison Test, matched me, as well as the circumstances surrounding the false confession, was his conclusion reasonable? The Judge also said “He got a fair trial.” Given all of the above, can anyone honestly say that comment squares with the facts? In closing, I ask, Was the Deskovic Case “righteously investigated” and handled at all stages?

Editor’s Note: The Westchester Guardian, having contacted Peekskill Police Chief Eugene Tumolo, with respect
to the Jeffrey Deskovic case, was told the following by Tumolo:

“ I’ve said all that there is to say about the case. And there is nothing more that can be said.” Attempts to reach former Assistant District Attorney George Bolen went unanswered. However, the Guardian was informed that Mr. Bolen went into retirement a couple of weeks before Jeffrey Deskovic emerged from prison.

The Westchester Guardian, in addition to investigating and reporting the circumstances surrounding this important example of injustice within the criminal justice system of Westchester County, now provides Mr. Deskovic with the opportunity to speak directly to the issues.

– RB

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