An Open Letter To Chief Judge Lippman
On Sunday, May 3, I discovered that The Journal News published a lead editorial entitled Another Turn At Justice. Let me quote the opening
paragraphs: “New Chief Judge Jonathan Lippman of the New York Court of Appeals is quickly moving to address the kind of mind-numbing legal travesty that cost Peekskill’s Jeffrey Deskovic much of his youth and liberty, and gave the criminal justice system in Westchester a black eye. Intervening where the slow-moving Legislature had been content to slumber, Lippman is forming a permanent task force to examine wrongful convictions and recommend ways to minimize them.
The initiative is a long overdue reply to a steady string of exoneration cases in New York, most often brought to light by the do-gooder lawyers group the Innocence Project. Aided by ever-improving DNA technology, the New York City-based group played a critical role in securing the 2006 exoneration of Deskovic, who served more than 15 years in prison for the 1989 rape and murder of Peekskill High classmate Angela Correa. DNA testing ultimately ordered by District Attorney Janet DiFiore, who entered office in 2006, led to the stunning revelation that someone else had killed Correa.”The article also contains a picture of me.
Before getting to my open letter to Judge Lippman, there are a few things that I want to clarify. As many people are aware, I served 16 years in prison for a murder and rape which I was innocent of. In the face of a negative DNA test which clearly showed that semen found in the victim did not match me, I was convicted based upon a coerced, false confession, prosecutorial misconduct, and forensic misconduct.
In addition, my public defender was not very good. All of my appeals had been exhausted by 2001. For approximately the next four and a half years I tried in vain to obtain the legal assistance needed to prove my innocence and regain my freedom. Try though I did, nobody would take my case pro bono, as I had no money. I, therefore, languished in prison while desperately trying to obtain assistance.
I was ultimately cleared because The Innocence Project agreed to represent me, and then approached Westchester District Attorney Janet DiFiore who agreed not to oppose further DNA Testing. Once the results matched an individual in the DNA database, who, in fact, had been imprisoned for another rape and murder of another Peekskill woman just three and a half years after my wrongful conviction, DiFiore then joined the defense motion to overturn my conviction and shortly thereafter, have the indictment dismissed on the grounds of actual innocence.
I appreciate her not opposing the testing and deciding to join the defense motions. But that is not to say that I was freed because my case was discovered in the course of a pro-active search of old cases by the DA’s Office, which is one way that The Journal News article
could be mistakenly interpreted. Further, I would like to add that although I was saved from having to litigate for the testing, and again I am grateful for that; if we had had to I haven’t any doubt that The Innocence Project would have won the right to the testing.
Life’s events seldom happen in a vacuum, and the election cycle for Westchester District Attorney is nearing. My photo in The Journal
News article at this time might suggest that I support Janet DiFiore in her re-election bid. I have nothing against her personally, and, as stated previously, I appreciate her doing the right thing in my case. However, I am concerned about more than simply my own case.
I am concerned with both preventing future wrongful convictions and seeing that ongoing cases of injustice are corrected. at is my life’s calling and mission and I cannot, ultimately, betray that mission or the people who support my anti-wrongful conviction advocacy by remaining silent.
I do not support District Attorney DiFiore in the upcoming race, for the following reasons:
A) The Anthony DiSimone case, in which the Westchester DA’s office, under DiFiore, fought up until the last minute before being forced to concede by the federal Court, and only then handing over exculpatory, previously withheld, evidence pointing to a third party suspect, yet continuing in their efforts to retry DiSimone;
B) The Richard DiGuglielmo case, involving DiFiore’s fighting the overturning of the verdict in which the Judge ruled that information had not been turned over to the defense, and then appealing the decision, not to mention the Prosecutor’s conduct, which I personally witnessed, and
that the Judge noted in his decision, that rather than being concerned with the truth the prosecutors were simply trying to win;
C) The Kian Khattibi case, in which the prosecutors first dissuaded the defendant’s brother from telling the truth in court that he committed
the stabbings by falsely threatening him with prosecution although the statute of limitations had run out, and then, once the brother wouldn’t
testify, arguing that the other family member’s testimony as to the confession they had heard was hearsay; when then-Judge DiFiore denied
Khattibi’s meritorious 440.10 Motion placing procedure above justice arguing that his petition contained inconsistent statements by witnesses, some of were on the record and others which were not;
D) Her failure to prosecute rogue Police Officer Wayne Simoes, who ultimately was arrested by the FBI for body slamming Irma Marquez
thereby breaking her jaw and causing multiple physical trauma, even though it was all on videotape; and, instead prosecuting Marquez;
E) Waiting 18 months before dropping her prosecution on false charges against Yonkers police brutality victim Rui Florim.
Dear Judge Lippman,
I have read that you have created a permanent task force in order to address the serious issue of wrongful convictions. As you know, wrongful convictions are much more prevalent than society previously realized. DNA has opened a window into the world of wrongful convictions allowing us to identify the systemic causes as well as common themes and patterns.
Since DNA material is only available in 10-12% of all serious felony cases, it is important that we prevent wrongful convictions in the first place. As it stands for the overwhelming majority of cases, there is no science that can definitively separate guilt from innocence. Additionally, as I can attest personally, the human toll of wrongful conviction on defendants and their families is incalculable.
I would hope that since you are seeking to make the New York State Court System more accurate, you will address issues that contribute to wrongful outcomes which I would respectfully like to point out.
1) More Frequent and Careful Review Is Needed. A common theme in many wrongful conviction cases, especially the 24 DNA-proven cases in New York, is that the Defendants have long since had their appeals exhausted. In many of those cases, including my own, the Court Of Appeals declined to grant permission to the Defendants to appeal to them.
In my case, for example, I was denied permission to appeal to the Court Of Appeals, with a ruling that stated there was “no merit in law to justify the reviewing.” Why is it that in so many of these wrongful conviction cases we can look back and see many red flags that should have been clear signs that something was not right? More cases need to be caught while they are still in the appellate process. Clearly,
what is needed is more review, not less. Therefore, cases that come before the Court should be given a closer look when deciding whether to review them or not. That scrutiny should be done in light of what is known about the causes of wrongful conviction.
Cases based on confessions should be looked at very carefully in terms of the circumstances under which they were procured. In identification-based cases, the quality of the ID and the procedures used to procure them should be closely looked at. Additionally, in many cases involving misidentification, courts have erroneously allowed convictions to stand despite victims having given clearly inaccurate descriptions with respect to height and weight. Cases involving allegations of ineffective assistance of counsel should be looked at carefully since it is known that without quality representation defendants may be wrongfully convicted despite being innocent. Such cases need to be heavily scrutinized and adjudicated on the merits rather than with deference to the defense attorney.
I am aware that such deference is accorded in order to uphold the sanctity of defense counsel and not by way of second guessing one’s strategy. However, either a challenged omission or commission constitutes ineffective assistance of counsel or not; no deference is needed. Instead, it must speak for itself.
If forensics furnishes part of the evidence, the Court must question whether it is based upon sound science, studies and data, or merely junk science. When a so-called science has been exposed as junk, every judge should be on the lookout for it in future cases, and even old cases should be re-examined to see if anything slipped past.
While I understand that the Court Of Appeals does not review cases on a factual basis but merely rules on issues pertaining to law, clearly where claims of actual innocence are present, particularly when DNA is involved, the Court should keep that in mind when deciding whether to accept a case in order to rule on the legal issues it presents.
2) In Confession Cases, Implement A Pre-Trial Hearing On The Issue Of Truthfulness. False confessions have been the cause of wrongful convictions in 25% of the 237 DNA-proven wrongful conviction cases, and in 10 of New York’s 24 cases. Yet, in none of those cases, despite clear warning signs that can be pointed to post exoneration, were the confessions suppressed. False confession literature shows that
once a confession has been entered into evidence there is an 80% conviction rate. Clearly, a pre-trial Huntley hearing where the sole issue considered is voluntariness is insufficient. Instead, a hearing in which the focus is the truthfulness of the confession is needed, akin to a Wade Hearing.
3) Ban Tactics Which Have Been Linked To False Confessions, such as prolonged interrogations, the misuse and abuse of the polygraph, lying to suspects, claiming to have non-existent evidence, and the interrogation of the mentally ill and/or retarded without an attorney present. Such practices, that are acknowledged to be psychologically coercive, lead to false confessions and therefore to wrongful convictions, and run
in the face of the spirit and intent of both New York State and federal Constitutional prohibitions against self incrimination.
4) Reverse Parole Board denials of parole applications as the result of applicants expressing innocence. There have been cases in which otherwise meritorious parole applications have been denied because they maintained innocence at the parole hearing. Such declarations are seen as “not taking responsibility” and “not showing remorse”. Colin Warner served 21 years in prison in New York prior to being proven
innocent. He was denied parole three times, in part because he refused to admit guilt at the Parole Board. Westchester Exoneree Kian Khattibi served nine and a half years before it was revealed that his brother committed the crime, and not he.
Prior to that, at his Parole Board Appearance, he maintained his innocence. The Parole Board denied him parole based upon that fact, saying “Your lack of remorse minimizing your involvement, notwithstanding your institutional adjustments, are a concern, and, when coupled with the violence in the instant offense make you an unacceptable risk for release at this time.”
Such a rigid approach doesn’t take into account the reality that wrongful convictions occur. I am unaware of any person so denied then successfully taking their case to court and obtaining relief. In fact, in many of the rare cases where a parole appeal based on any grounds at all is reversed, frequently the Court Of Appeals has stepped in and reversed the Appellate Division.
The problem of such a policy on the part of the Parole Board is obvious. It places the wrongfully convicted prisoner in the position of potentially sacrificing his or her freedom as the price for maintaining innocence, when in reality it doesn’t need to be done that way. Either an applicant can demonstrate by their record that they are likely to live and remain at liberty without breaking the law or not. The granting of parole need not be tied to a statement of responsibility.
An additional pitfall of such a guilt acknowledgement is that the wrongfully convicted defendant potentially creates additional evidence against himself in the event that his conviction is overturned, as part of the price of trying to meet the Parole Board requirements. An example of this is the John Duval case. He was convicted in 1973 of committing a murder in Rochester, New York, along with his co-defendant Betty Tyson. They were convicted based upon confessions which they stated were beaten out of them, and on the testimony of two teenage runaways.
After his appeals failed, in order to try to obtain his freedom, Duval twice admitted guilt in front of the Parole Board in 1995 and 1997 because he felt that was the only way he could regain his freedom because of the practice.
Later his conviction, along with that of his co-defendant Betty Tyson, was overturned because one of the witnesses recanted his testimony, saying he had lied previously. In addition, prosecutors then came up with a buried synopsis of a police interview with the other teen, in which he denied seeing Duval or Tyson, contrary to what the teen had testified in 1973. However, while the prosecutors dropped the charges
and Tyson was awarded money for her imprisonment, prosecutors retried Duval, using the statements that he had made in front of the Parole Board as evidence.
5) Reverse Prior Decisions Allowing The Department Of Corrections To Mandate Self Incrimination In Order To Continue To Participate In The Sex Offender Program. Prior court challenges of this practice by the Department Of Corrections have not yielded any relief, even when a defendant is still pursuing appeals. In order to have any chance at parole, defendants convicted of sex offenses must admit guilt, to staff and peers, in writing, and give details. To not do so is considered to be tantamount to refusing the program. This, too, forces prisoners to potentially sacrifice freedom as the price for maintaining innocence. This does not take into account wrongful convictions.
I will close by saying there is a great need for incarcerative and financial penalties for rogue prosecutors who intentionally commit Brady and Rosario violations, suborn perjury, fail to correct perjury, and who have patterns and practices established with coroners and other experts, whereby those experts work backwards to prove whatever a prosecutor is trying to prove. I would urge you to include these in your report. After all, what does an honest prosecutor have to lose? To me, prosecutorial misconduct is like any other crime. Don’t do the time if you can’t do the time.
I hope that your report will be hard hitting, critical, and proves to be an impetus by which urgently needed legislation is obtained. The cracks in the system which I have attempted to point out above are correctable judicially. Please do not ignore problems from within while only addressing those from without.
Jeffrey Deskovic, Criminal Justice Advocate and Exoneree