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In the Fight Against Wrongful Conviction

Written by: Jeffrey Deskovic, Esq., M.A.; Exoneree

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Coerced, false confessions have caused wrongful convictions in 29% of the DNA proven wrongful convictions. While adults have given coerced, false confessions, particularly vulnerable populations are youth and people with mental health issues.

I was wrongfully convicted in 1990 in Westchester County, New York, at the age of seventeen of a murder and rape which I didn’t commit- despite a pre-trial negative DNA Test-based upon a coerced, false confession; prosecutorial misconduct; fraud by the medical examiner; and an inept public defender. Having been charged, tried, and convicted as an adult, I was given a fifteen to life sentence despite the Judge saying, “Maybe you are innocent.” I was sent to a men’s maximum security prison.

At the age of sixteen, the Peekskill Police coerced a false confession out of me. I got on the police radar because some of the kids in the high school told the police that they might want to talk to me, because I was quiet and to myself. The death of my high school classmate who had been in a couple of classes as a freshman and one as a sophomore caused an emotional reaction in me, and the police thought that since I barely knew her, that was an indicia of suspicion. A psychological profile by the NYPD purported to list the characteristics of the perpetrator, which I unfortunately matched. Over the next six weeks, the police played a game with me: they would start out questioning me as a suspect, then when I would become frightened, Jeff as 'a junior detective helper' theme was developed. They told me that the kids would talk freely around me, but not around them, so I should let them know if I heard anything; they would ask me opinion questions and congratulate me that my opinion was correct. I was susceptible to this because, prior to being a teenager, I aspired to be a cop when I grew up. Other tactics included telling me to stop in from time to time; they would give me details and then ask me questions which necessitated that I parrot them back to them. They encouraged me to do that by saying that I "was doing remarkably well." Later, in court, these encouraged responses would be framed as if I had guilty knowledge 'only the killer would know', rather than it being a conversation in which I echoed information that they previously gave me in order to answer their hypothetical questions. All of this went on without my Mother's knowledge.

My father was never in my life and that intersected with another police tactic: good cop-bad cop, otherwise known as, “Mutt and Jeff”, where one officer pretended to be my friend while the other was the bad cop. In time I began looking up to the good cop as a father figure. Eventually the police told me that they had some new information that they wanted to share with me, which would allow me to be more helpful to them; but first, I had to take a polygraph, so I agreed. The next day, rather than go to high school, I went to the police station for the test. My Mother and Grandmother thought I was in school, so they didn’t call around looking for me. When I went there, they instead drove me forty minutes away by car, across county lines, to the town of Brewster in Putnam County. That meant I couldn’t leave anymore on my own; I was dependant on the police. The psychological games continued on the way there; I rode in the car with the good cop. The bad cop and the lieutenant were in another. The polygraphist was a Putnam County Sherriff Investigator, but he was dressed like a civilian and never identified himself as law enforcement nor read me my rights. I had no attorney present nor was I given anything to eat while I was there. I didn’t understand the four page brochure which explained how the polygraph worked because it had a lot of big words in it beyond my comprehension; but I overrode my own objection, reasoning that I was there to help the police. What difference did it make? Let’s just get on with it. I was then put in a small room, given countless cups of coffee, and was then wired up to the machine. The polygraphist then launched into his third degree tactics: he raised his voice at me; he got in my face; he kept repeating his questions over and over. As each hour passed, my fear increased in proportion to the time. He kept that up for six and a half to seven hours. Eventually he said, “What do you mean you didn’t do it; you just told me through the test that you did. I just want you to verbally confirm it.” That really shot my fear through the roof. Then the cop pretending to be my friend came in the room and told me that the other officers were going to harm me; that he had been holding them off, but could not do so any longer; I had to help myself. Then he told me to tell them what they wanted to hear- that I wouldn’t be arrested- that they would stop what they were doing and that I could go home. Being young, naïve, frightened, overwhelmed emotionally and psychologically, plus the push-pull dynamic of the possibility of harm and the false life preserver he metaphorically thrown me, I took the out which he offered and made up a story based on the information I had been given that day and in the six weeks run up to it. By the time it was over, I had collapsed on the floor in a fetal position, crying uncontrollably. The interrogation had not been video-taped nor audio taped, nor was there a signed confession- it was just the cop’s word for it. Obviously, I was arrested: I was charged with murder and rape. When the officers later testified in court, they left the threat and false promise out.

To explain away the negative DNA test, the prosecutor got the medical examiner to commit perjury: six months after doing the autopsy, he suddenly claimed that ‘he remembered that he forgot’ to document medical findings that he claimed showed the victim was promiscuous. A total lie which besmirched the reputation of the victim in the furtherance of trying to wrongfully convict me. The prosecutor claimed that was how the DNA didn’t match me and yet I was guilty. He even named another youth by name that he claimed slept with the victim; but he never tried to prove that by getting a DNA sample or calling the other youth as a witness. He just made the unsupported argument to the jury. The police went into the field and interviewed seventeen witnesses who knew the victim in one capacity or another; they all told the police that she had no boyfriend and that there was no consensual sex. But the police never documented any of the interviews and so the defense never learned of them.

My public defender essentially didn’t defend me. He rarely met with me; when I tried to explain that I was innocent and what happened in the interrogation room, he was always shutting me up. He said he didn’t care if I was guilty or innocent. He never explained the DNA to the jury, nor used it to argue that it proved that the confession was coerced and false. He never cross examined the medical examiner. He should have never represented me because of a conflict of interest; the other youth the prosecutor was falsely saying had slept with the victim was represented by another member of that public defender agency, and this conflict prevented the defense from calling him as a witness or asking him for a DNA sample. Sometimes he argued to the jury I never confessed; at other times he argued that I did confess but that it was coerced; at still other times he argued that it was a false confession. By taking an approach of throwing mud against the wall and hoping that something stuck, he had to have been standing in front of the jury with no credibility. He wouldn’t allow me to testify, saying it wasn’t his job to prove I was innocent, which, although correct as a legal principle, is a very naïve way to practice law.

I lost seven appeals. The first court ruled that I was free to come and go as I wanted and that therefore the statements were voluntary; they ruled that there was overwhelming evidence of guilt- a head scratcher since the DNA didn’t match me and the only evidence they had was a confession obtained under highly questionable circumstances; and they knocked out my other eight issues with one sentence: they looked at the other issues raised and found them to be either without merit or not preserved for appellate review. My re-argument motion was denied, while the NY Court of Appeals denied permission to appeal. Then Westchester District Attorney Jeannine Pirro’s office declined to give me further DNA testing through the letter I wrote requesting the testing. I lost the Habeas Corpus Petition because my attorney was given the wrong information by the court clerk about the filing procedure, and so my petition arrived four days too late. Pirro’s office successfully argued that the court should simply rule that I was late, without even considering my issues. That is what the court ruled, which resulted in my petition being time barred. That decision was upheld by Federal Court of Appeals, which included future US Supreme Court Justice Sonia Sotomayor; and that same court also denied the reargument motion requesting all of the judges on the circuit to hear the case. Then the US Supreme Court declined to grant me permission to appeal to them. My appeals were exhausted, and therefore the only way back into court was if I found some previously unknown evidence of innocence which probably would have led to a different outcome. Because I had no money to hire an investigator or a lawyer, I wrote letters for four years, looking for pro-bono assistance, rarely getting answers. Then, because I stood on my innocence rather than expressing remorse and taking responsibility, I was turned down for parole.

Eventually, with the assistance of The Innocence Project, I was exonerated through further DNA testing via the DNA databank, which not only confirmed the prior negative result but also identified the actual perpetrator. His DNA was in the databank because, left free while I was doing time for his crime, he killed a second victim just three and a half years later who was a schoolteacher and mother of two. On Sept. 22, 2006, my charges were dismissed on actual innocence grounds, while he was arrested and convicted. Since my release, I became an advocate, eventually obtaining a Masters Degree in Criminal Justice, with a thesis written on wrongful conviction causes and the reforms needed to prevent them; formed a non-profit organization intended to be a legacy, The Jeffrey Deskovic Foundation for Justice, which has freed fifteen people and helped to pass nine laws; and became an attorney. I have delivered several hundred presentations, authored several hundred articles while being published in ten different publications; and regularly meet with elected officials in NY, PA, and CA.

In terms of preventing wrongful convictions caused by false confessions, there are a number of measures that can be done on the legislative, defense attorney, police, and judicial levels.

Legislatively, interrogations should be recorded from beginning to end, which will ensure that there are no threats or false promises, no coercion, and make clear whether a suspect knew non-public facts or was given details of a crime which were regurgitated. It would also make for better evidence and protect honest cops from false allegations of coercion. Police should be banned from lying to suspects during interrogation because that is inherently coerce, and I advocate for the passage of a Youth Interrogation Bill, which would grant seventeen year olds and kids younger a non-waiveable right to counsel- that they would have to first speak to a lawyer to explain their rights to them before they can waive them and speak to police without an attorney. Reflecting on myself, I never understood my rights. Every time the police read that portion of my Miranda Warnings which said that anything I said could and would be used against me in a court of law, I never understood what that meant. My mind went to what I saw on television and various civil court contexts. I would think, “Court? What are you talking about; we’re not going to court.” False confession expert testimony should be allowed in the court. Such experts are not allowed to give an opinion about whether a particular confession is false or not but instead testify about what factors have been proven to cause innocent people to confess. A measure that a few false confession experts, including Steve Drizin, have begun to advocate for is a pre-trial hearing in which a court has to determine the accuracy of a confession before it could be admitted as evidence- kind of a confessional version of a Wade hearing- rather than only having the currently mandated pre-trial hearing on the issue of voluntariness.

Defense attorneys defending a case in which there is a false confession should answer the confession, explain the confession, and disprove it. That can be done by calling the defendant as a witness and a false confession expert, while also introducing external evidence disproving whatever portions of a confession that can be disproven, then bringing it all together in closing arguments.

On the police level, they should not stop investigating simply because a suspect has confessed; they should try to prove each fact in a confession through external evidence. They can also videotape the interrogation- whether it is mandated by law or not- and then review it to ensure that details or a crime were not inadvertently given to a suspect which they then subsequently regurgitate. Supervisors should review the recording looking for same, as well as whether details were intentionally given.

Prosecutors should carefully analyze a case brought to them which features a confession, reviewing the confession in light of known red flags which indicate that a confession may be false, rather than immediately prosecuting every case brought to them. What are those red flags?

  • A lengthy interrogation, particularly when combined with food deprivation;
  • Starting and stopping of the video or audio tape;
  • Use of yes-no questions rather than open ended questions;
  • The level of language exceeds the formal education and life experience of a suspect;
  • The facts of a confession are contradicted by external facts;
  • Police providing details of a confession which are then regurgitated;
  • Co-defendants give differing accounts of a crime;
  • Suspects are asked to bring law enforcement to additional evidence, but they get it wrong (Where is the body; the gun; or the money?);
  • Police involved in an interrogation were involved in another false confession case/misconduct on their part that bubbled to the surface in an unrelated case;
  • Suspect is a youth or has mental health issues

Courts can more carefully carry out their gate keeping function of keeping coerced confessions out of trials, and appellate courts can uphold the rights of defendants by suppressing coerced, false confessions when the issue is raised post-conviction. There have been far too few instances of this, which is why the average length of wrongful imprisonment in DNA proven wrongful convictions is fourteen years, and that typically by the time the wrongfully convicted are exonerated their appeals have long since by exhausted. When the case summaries in such cases are read, there are often plenty of red flags along the way including that a confession was coerced, yet courts failed to correct the wrongful convictions by upholding defendant’s rights.

Attorneys who do post-conviction work, including analyzing actual innocence claims and the viability of exoneration, need to evaluate what was used as evidence of guilt. They should know what red flags exist indicating that a confession may be false when evaluating a confession, just as they should know what other red flags are indicating that other types of evidence are flawed. Lying informants have cause wrongful convictions in 15% of the DNA proven wrongful conviction cases.

Red flags that an informant may be lying include:

  • Their story keeps evolving;
  • They are asked to lead law enforcement to additional evidence but fail;
  • Receipt of undisclosed benefits.

Misidentification has caused wrongful convictions in 71% of the DNA proven wrongful convictions. Red flags that an identification may be mistaken include:

  • Witnesses are allowed to consult each other rather than making an independent identification;
  • Poor lighting;
  • Length of viewing;
  • If a weapon is used, because research shows that witnesses eyes focus on the weapon rather than the face of the rapist;
  • Far distance;
  • If a witness is drunk or high;
  • If the suspect sticks out from other fillers in the lineup or photo array;
  • Cross racial identifications are particularly problematic
  • The variance between the lineup and photo array best practices and the actual procedure used.

The best practices include:

  • Everybody in the lineup should resemble the description given so that no one unduly sticks out;
  • Sequential viewing rather than simultaneous so that each person can be ruled in or out based on memory rather than compared to each other;
  • The double blind method should be used so that accidental clues or cues are not given;
  • Witnesses should be told that the actual perpetrator may not necessarily be in the lineup or photo array so that undue confidence isn’t felt;
  • Witnesses should be told that the investigation will continue in the event that no identification is made, so that witnesses don’t feel pressure to make a selection lest a perpetrator escape justice;
  • The lineup should be recorded;
  • Witnesses should be asked how confident they are in their identification (it is critical that this evidence is captured at the time of the identification rather than later on at trial);
  • There should be no congratulatory statements made once an identification is made because this can artificially bolster the level of confidence in a witness.

If a case involves junk science, that is a red flag. Examples of junk science that previously have been accepted for decades in court, which sound scientific, but are not, include:

  • Footprints;
  • Bite marks;
  • Tire tracks;
  • Dog scent evidence;
  • Hair comparison;
  • Bullet lead analysis.

These are junk science because there are no underlying studies or statistics indicating what the error rate is. Fingerprints are not rock solid because is there is no agreement with how many points of match there must be to indicate a match. Blood type testing, while not a junk science, is nonetheless not sufficient because it is not discriminating enough- it can merely narrow down the perpetrators blood type and the blood type of the suspect. That is way too large a population. Arson science is a junk science; they are simply oral traditions passed down from one fire chief to another. As such it is not replicable nor is the error rate known. The utilization of a junk science can be the basis of seeking to overturn a wrongful conviction.

Forensic fraud is another wrongful conviction cause. There should be a check as well regarding whether all experts are properly credentialed and whether they exceeded what their expertise is. The presence of a bad actor whose misconduct has bubbled to the surface in an unrelated case, is also a red flag.

In terms of viability of exoneration, investigative directions to go in which could theoretically lead to previously unknown evidence of innocence which probably would have led to a different outcome, should be kept in mind. Examples of directions to go in:

  • There is evidence that could be subjected to DNA Testing (semen, saliva, hair, cigarette butts, clothing worn by perpetrators which was sweated into) [Note: DNA testing is only available in 10% of all serious felony cases];
  • A case that features an alternative suspect;
  • Similar crimes in nearby areas;
  • Reinterviewing a witness who appears to have lied;
  • Interviewing a new witness that has bubbled to the surface;
  • The discovery, via FOIL request, of documents previously withheld that were supposed to have been turned over. Such documents can be the basis of a Brady violation claim or can form a new investigative direction to go in.

In terms of the scope of the problem of wrongful conviction, since 1989, there have been 3,725 exonerations nationally. There is a Wayne State University study indicating that 10,000 people are wrongfully convicted each year. Knowing the causes of wrongful conviction, the red flags indicating flawed evidence, and how to screen cases, is important to the goal of advocating on behalf of the actually innocent rather than spinning one’s wheels for nothing. To be sure, there are some people who falsely claim innocence when they are really guilty.

We need more people to get involved in working to free the wrongly convicted; there are not enough non-profit organizations nor attorneys doing this work. Of the organizations that seek to exonerate the innocent, too many of them only take cases in which DNA testing is an option, which is only 10% of all serious felony cases. Additionally, there is a big gap between the resources and the need for assistance. All the organizations have a long waiting list.

Therefore, I encourage lawyers and future lawyers to take on at least one wrongful conviction case pro-bono in the course of their career. There is a role for other professionals: paralegals, investigators, forensic scientists/experts; researchers; within the context of non-profit organizations, there are the roles of: public relations; social media; grant writing; policy work; fundraising; and document management. On the reintegration level, there is a role for psychologists and mental health professionals as well as social workers. Investigative journalists, as well as regular journalists, documentary makers, podcasters, blog writers, blog talk radio, movie makers, influencers, celebrities and people with a public platform, all have a role to play in the fight against wrongful conviction. We similarly need wrongful conviction aware police officers, prosecutors, defense attorneys, judges, jurors, elected officials and their staffers.

I also encourage people not in the legal field or in any of the previously mentioned professions to lend a hand, and do what they can. In many cases that ended in exoneration, non-lawyers played a critical role in helping to build the bridge between the wrongfully convicted and the necessary legal help they needed, so I encourage people not in the legal field to not feel powerless, but instead to help the wrongfully convicted to network. Assisting them with putting together websites with information on their case, or managing a social media page for them, or simply helping them look up addresses of people who can potentially help them, all have value. We should encourage District Attorney’s Offices to have Conviction Review Units (sometimes referred to as Conviction Integrity Units), which is an independent division in the DA’s office, separate from the rest of the office, which review claims of innocence, just like we should encourage and vote for candidates running for public office to have a wrongful conviction prevention portion of their policy plank.

Lastly, we need organizations and people to support wrongful conviction prevention legislation. We need to encourage bill sponsors to introduce legislation aimed at preventing and correcting wrongful conviction. Incredibly, many states do not have a law granting automatic new trials for people who have been convicted at least in part through the use of junk science. There are eleven states, including Pennsylvania, which do not have exoneree compensation, and many states that do offer compensation do not have critically needed re-entry services for exonerees. That should be provided separate and distinct from financial compensation, to help exonerees get from Point A to Point B in their lives, because it often takes two to five years between exoneration and compensation. Housing, cost of living, mental health services, access to public transportation, job training and placement, doctor and dental care, classes on technology, should all be provided immediately upon release from wrongful imprisonment.

Compensation is an indispensable tool for trying to put one's life back together. Similarly, re-entry assistance is critical, rather than the current approach, which is to simply release exonerees with nothing, akin to releasing a wild animal back into the forrest to fend for itself as best as it can. It took me five long years between when I was released and when I was compensated. I personally struggled in all of these areas: I was released with nothing. I was always passed over for gainful employment, so I lacked stability of housing, at one point coming within two weeks of a homeless shelter. Thank God that Mercy University (then called, "Mercy College") allowed me to live on campus, while giving me meal plan card. That was how I avoided the shelter. I did become a columnist for a weekly newspaper, but they only wanted one article per week. I was making money doing speaking engagements, but that was only when I got booked. Every would be employer wanted someone with work history, which I didn't have, and who could hit the ground running. Given that technology had passed me by- cell phones, GPS, internet hadn't yet been created, I couldn't meet that criteria. I could have used classes on technology and afterwards job training and job placement. It took a while before I finally found a mental health professional who would treat me on a lien basis, with my compensation litigation as the security, but I know that professionals who will do that are few and far between.

Jeffrey Deskovic will be presenting Wednesday's Plenary address, Wrongfully Convicted, Rightfully Exonerated: Jeffrey Deskovic’s Journey to Advocacy at ISHI 36 in West Palm Beach, Florida.

More information available at www.ishinews.com/agenda.