Thursday, August 14, 2008

Westchester Guardian/Jeffrey Deskovic.

Jeff Deskovic

At The Forum On Wrongful Convictions
Held Recently In Buffalo

On July 31, 2008, a forum designed to raise public awareness of wrongful convictions was held at the Pratt Center in Buffalo, New York. In order to illustrate just how widespread wrongful convictions and other inequities in the Criminal Justice system are, the event featured multiple speakers. Since it was only an hour-long event, everybody was given ten minutes to speak, after which a question and answer session was held.

Nathan Hare, the Executive Director of Community Action Organization of Erie County, opened up the discussion by stating that New York has had many wrongful convictions. He said that proactive corrective action was needed on the part of the Legislature in order to make the Criminal Justice System more accurate.

Some reforms that he championed included videotaping of interrogations, improving eyewitness identification procedures, having a unified statewide system of defense attorneys rather than having each county with it’s own localized public defenders office, in order to secure more oversight and quality control. He also gave support to a review apparatus, independent of the appeals process, to both review cases in which a defendant had a colorable claim of innocence, and to have power to grant relief, and to review cases once innocence has been proven.

The idea is to identify what went wrong and what could be done in the future to ensure that it does not happen again; somewhat akin to investigators looking into plane crashes to see what went wrong in order to prevent future ones. I appreciated his mentioning of this reform, since it usually gets overshadowed by others that are championed by advocates who are trying to reform the System.

Hare then tied wrongful convictions to the death penalty by stating that as horrible as being wrongfully imprisoned was, that at least when a mistake was made the person could be released and given back their freedom, whereas once an execution was carried out there was no bringing a person back. He then introduced Jim Michalek, of New Yorkers Against The Death Penalty, who acted as master of ceremonies.

Michalek began by thanking all of the speakers for participating. Setting the tone for the forum, he wasted no time in stating that wrongful convictions were a serious problem, and that no one was safe from having it happen to them. Supporting that theme, he too mentioned that New York was one of the leading states in terms of wrongful convictions, at 23 DNA based exonerations, and that there were many other
injustices present in and around the Criminal Justice System.

One of those issues is racial inequalities in terms of sentencing in that often a Black defendant, convicted of the same crime as a White defendant, often gets a more severe sentence. He also pointed out the role slanted media coverage plays: defendants are frequently tried and convicted in the press prior to even being found guilty in court, defendants running an uphill battle before the trial even gets started. It is na├»ve, he pointed out, to believe that jurors hadn’t read about sensationalized cases prior to being picked, with the result that a bias in their mind has already occurred.

I was the first speaker Michalek called upon. Given the time constraints, I was only able to give a brief thumbnail sketch, mentioning how, at 16 years of age, I was arrested and convicted based upon a coerced and false confession along with the fabrication of other evidence, despite a
DNA test showing that semen found in the victim did not match me.

I mentioned how the appellate process failed me every step of the way, including the Appellate Division’s having stated that there was “overwhelming evidence of guilt” and ruling five to zero against me; the Court Of Appeals refusing to hear my case on the rationale that “there was no merit in law to justify reviewing my case”, and the federal court, at the urging of then-Westchester DA Jeanine Pirro, urging that I be time barred based upon my petition being four days too late because a court clerk gave incorrect information to my then-lawyer
regarding the filing procedure.

I re-mentioned the reforms that Nathan Hare had spoken about earlier, and added having a standardized evidence preservation system, and giving all prisoners the right to DNA testing. Lightly touching upon the impact that wrongful convictions have upon people, with myself as a case in point, beyond the loss of freedom, I referenced the disruption of my natural life cycle, having to cope with what happened to me and readjusting to being free; the experience of being in a strange planet and in a time warp, being in a very difficult position financially, difficulty
in breaking in socially, family relationships, losing touch with friends, and having to learn technology that the average person is up to speed on.

In response to a question from the audience regarding whether I had been compensated for my ordeal, pain and suffering, and lost wages, and to help me get on my feet, I replied that there was no mechanism in place for that, but that I believed that there should be immediate money given to all wrongfully convicted prisoners upon their being released, of fifteen thousand dollars per year of incarceration, in addition
to that awarded as a result of a lawsuit, to cover expenses that immediately come at a person, such as housing, cost of living, mental health services, as well as education and health insurance.

I pointed out that the court process typically takes between two to seven years, and that often the government exploits the desperate financial condition of such people by dragging the legal proceedings out for as long as they can, and then offering small amounts of money. I further stated that I was ineligible for the services that non-profit organizations offer to those who are on parole, many of whom were guilty.

Gary Beeman spoke next. Beeman had been wrongfully convicted of murder and sentenced to death in Ohio. He spent three and half years in prison on Death Row before being cleared. Incentivized witnessing, which is when a witness receives a reward in exchange for testifying against another person, was the cause of Beeman’s wrongful conviction.

Beeman was in jail for writing bad checks. Another prisoner, who had been sentenced to a prison term of ten to thirty years for selling cocaine, and who had a past record of several assaults and an escape, claimed that Beeman admitted to him, while in jail, that he committed the murder in question. Beeman said that not only was the inmate’s story untrue, but it made no sense, because where the prisoner’s cell
was located, relative to his cell, would have resulted in other prisoners hearing him confess. The prisoner lied and claimed that he did not get a plea bargain agreement in exchange for testifying against Beeman. Yet the day after Beeman was found guilty, the prisoner walked out of prison.

Beeman obtained a reversal of his conviction because the Judge at his trial would not allow one of Beeman’s witnesses to testify who would have stated that the witness admitted to him committing the crime and falsely implicating Beeman. Once he obtained a reversal, the state retried him. During that second trial, the prisoner who testified against Beeman got arrested for drunkness and was sent to a city jail. While
there, drunk, he admitted to four other prisoners that he had gotten away with murder and was pinning it on Beeman.

Based upon this testimony, the jury this time found Beeman not guilty. David Kaczinski, the Executive Director of New Yorkers Against The Death Penalty, told the story of how he came to be involved in his crusade against the death penalty. A suspect known as the Unabomber, had been on the FBI’S Most Wanted List for many years. He was making pipe bombs and sending them through the mail. Three
people were killed, and twenty three people were injured in the process.

The crisis for Kaczinski started when The Washington Post published the Unabomber’s Manifesto, which was a written document containing the Unabomber’s reasoning and rationalization as to why he was sending the bombs. Kaczinski read it and realized that it very much sounded like his estranged, mentally ill brother Ted. He was placed in the terrible position of either remaining silent, and in effect having the blood of future victims of Ted’s on his hands, or turning in his own brother to be likely executed since his crimes were death penalty eligible.

After much soul searching, and consultation with his wife, Kaczinski decided to strike a deal with the FBI: He would tell authorities who he thought the Unabomber was, if they would agree not to seek the death penalty, in light of his obvious mental illness, paranoid schizophrenia. The deal was struck, and Ted, indeed, turned out to be the Unabomber. Several unmailed pipe bombs were discovered in his house.

The FBI reneged on their promise and sought to execute Ted anyway, and they also violated their promise not to reveal his identity to the press. In the end, at least partially because the media realized the injustice of seeking the death penalty against a mentally ill person and gave news coverage, the government ultimately decided to offer the plea bargain of life imprisonment.

That episode is what caused David to take on the cause of ending the death penalty, and subsequent information that he has learned along the way, such as the danger of executing innocent people, and victim family members being forced to relive the crimes due to the increased media
coverage that typically surrounds the legal appeals of condemned inmates.

Kaczinski then told the story of his friend Bill Babbitt, who he had come to know in the course of his cause, who had a very similar story and case, and yet a very different outcome. Babbitt’s brother Manny had fought in the battle of Khe San in Vietnam. Manny returned from combat with Post Traumatic Stress Disorder, paranoid schizophrenia, and flashbacks. In addition, he had shrapnel lodged in his head. Based upon these ailments, he had spent three years in a mental institution. He continued to suffer from them even after being released.

Bill Babbitt came to realize that Manny was guilty of breaking into a seventy-year old widow’s house and murdering her. He therefore turned him in, figuring that there was no way that he would be executed given his illnesses. Nonetheless the State of California sought and obtained the death penalty, despite a mental health expert testifying as to his afflictions, as well as stating that based upon the victim having a war
movie on at the time of the crime and tying a leather strap on her ankle- a practice reminiscent of the tagging of the bodies of dead soldiers in Vietnam, he was likely having a flashback when he committed the crime.

Unlike Kaczinski, Bill Babbitt wound up having to watch his own brother’s execution. Kaczinski pointed out some important differences in the two cases, which he believed spoke to the injustice in both the death penalty and the Criminal Justice System in general: race, in that Ted was White and Manny was Black; and the disparity in legal representation, in that three million dollars was spent in Ted’s defense for legal services, whereas Manny had a public defender.

Finishing up his presentation, Kaczinski further drove home the point that the death penalty wastes financial resources. He stated that better, though still inequitable federal standards for public defense, the federal government spent five million dollars prosecuting Ted and three million defending him, for a total eight million dollars to obtain the result that they could have obtained from the beginning without seeking the death penalty, life without parole. Ken Case, who is the leading candidate for the Erie County District Attorney’s of-fice, was also in attendance at the forum.

He arrived a couple of minutes late, and upon his arrival immediately was recognized by Michalek. Case not only shook everybody’s hand, but he also stood up and gave an unexpected short talk. Case emphasized that, as he saw it, it was not simply the job of the district attorney to prosecute but also to prevent wrongful convictions and clear people once their innocence was established. He stated that once it became
clear that Anthony Capozzi, who had been wrongfully convicted of rape in Buffalo and served twenty years before being cleared by DNA, was innocent, “he should not have spent another twenty seconds in prison”, whereas there was hesitation on the part of the current DA in releasing him. As an illustration of his commitment to both functions of a prosecutor, he recounted a story of when he was prosecuting a murder case along with another prosecutor, and he became convinced of the innocence of the defendant. He urged the lead prosecutor
to drop the case, and the response that he got was that the case should proceed anyway, and, “let the jury sort it out.” Unwilling to do that, he went to his superiors and eventually got the charges dismissed. He also stated that Lynn Dejac, whose story was also touched upon, deserved to know what had happened to her deceased child.

Case also cited reasons for his opposition to the death penalty, based upon its uneven application, hurting victims’ family members, the risk of executing innocent people, and the waste of financial resources that could be better spent. John Walker spoke next. In 1976, 16-year-olds Darryl Boyd, Darryn Gibson, and John H. Walker Jr. were all charged and found guilty in a questionable murder conviction in a brutal
beating death. Boyd served 26 years in prison, Walker served 22, and Gibson, who is still in prison, has thus far served 34 years. Walker said that the he has been on a crusade to clear his name since he has been released from prison on parole, not to mention during his whole time in prison.

He stated that although he had been out on parole for years, he was not free. He stated that his ability to participate in forums was limited because of a curfew; that he could not travel past a certain distance, that he had to answer to a parole officer, and that he didn’t even feel free to date women because he had to be inside his house at a certain time. He also expressed that although he was happy at Buffalo locals Anthony Capozzi being cleared and Lynn Dejac being exonerated as well as a host of others across the country he, at the same time, felt frustration at not being able to exonerate himself. He stated that all he wanted was for someone to give his case “an honest look”. He then referenced a previous statement by Judge James A. W. McLeod, who said “They didn’t do it, and I say that without hesitation or reservation, based on the evidence”.

At the time of the original trial McLeod was a defense attorney for a fourth boy who was also initially charged with the murder, Floyd T. Martin, but who was acquitted of all charges thanks to Mcleod’s diligence in pursuing facts and investigating the case. Walker found it both
ironic and frustrating that the State was sending people to prison based on that judge’s saying so but that the state would not clear someone,
or at least look into a case, based upon his expressing that they are innocent.

With tears periodically coming down from his eyes, Walker also spent significant time speaking of his co defendant and friend Darryn Gibson, who remains behind bars and is not likely to be released on parole due to his inability to express remorse for something he didn’t do. He said that Gibson had thus far been denied parole four times based upon this.

Walker then reiterated a statement which he had uttered on previous occasions: “If I had anything to do with the murder, you wouldn’t know anything about me. I would have been quiet somewhere, not having nothing to say about anything. But because I had nothing to do with it, I’m going to scream at the top of my lungs and I’m never going to shut up, until they look at the case, because it would be an injustice
by not even looking at it - just look at it.” He then closed out his presentation by making an appeal to Case to please review his case if he became district attorney. Case responded by pledging to look at it, by saying “On Jan. 2nd, you will be in my office and I will look at your case. All of you here can hold me to that.” He also made a similar promise to another woman in the room who said that her son had been wrongfully convicted.

Michalek next called upon Lynn Dejac, who was in the audience, to add a few comments. In 1994 Dejac was convicted of 2nd Degree Murder and sentenced to 25 years to Life in prison in Buffalo, New York for the murder of her 13-year-old daughter, Cyrstallynn. Lynn, who had just given birth to twin boys, Keith & Douglas, was torn away from her life, her son Eddie, who was 9 years old, her boyfriend the father of her twins whom she married while in prison, and everyone else she held dear. She served 13 ½ years in the prison in Bedford Hills, NY. As The Buffalo News reported, a judge overturned her conviction based upon DNA, showing that bloodstains in the room where the body of her 13-year-old daughter was found belonged to her former boyfriend. But the boyfriend, Dennis Donahue, who in September had been charged with the murder of another woman that he dated, will never be tried for the murder of Dejac’s daughter, despite the DNA match
and even though members of the Buffalo Police Department’s cold case squad suspect him of committing the crime, because prosecutors granted him immunity in exchange for his testifying against Dejac.

After her release, current Erie County District Attorney Frank Clark stated that he intended to retry Dejac despite the DNA, saying: “The question of guilt or innocence still has not been determined. That’s why we have every trial.” On Feb 14, 2008, The New York Times wrote an article, in which the following facts were exposed: That the prosecutor, Frank Clark, said that it had been determined that no one killed
the girl — the medical examiner had erred in his autopsy 15 years ago. She was not strangled, but died of acute cocaine intoxication. After the conviction was reversed, a further review of the autopsy and toxicology reports led to the determination of cocaine poisoning.

“There was sufficient cocaine in her blood to cause death and no other competing cause of death,” said Dr. Michael M. Baden, a former chief medical examiner for New York City, who helped Dr. James J. Woytash, the current Erie County medical examiner, re-examine autopsy and toxicological reports, as well as other evidence. Dr. Baden said that the ruling of death by strangulation arrived at by the medical examiner, Dr. Sung-ook Baik, was made even though there were no typical signs like bruising of the neck or damage to the windpipe. There were bruises found on the girl’s head, he said, although they could have resulted from an attack, or from a fall after an overdose. An overturned table was found in her bedroom, Mr. Clark said.

Sitting in the audience, Dejac stated that even though she was cleared, it was obvious that she was not the only woman who had been wrongfully convicted; it was just that she was one of the fortunate ones who had been cleared, and that she was quite sure other women are currently wrongfully convicted.

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