Tuesday, July 3, 2007

Nifonged in New York: Report on the Conviction of Jeffrey Deskovic

After serving nearly sixteen years in prison for a crime he did not commit, Jeffrey Deskovic was released on September 20, 2006 when his wrongful convictions for first degree rape, second degree rape, and possession of a weapon were finally overturned at the request of Westchester County (NY) District Attorney Janet DiFiore. In an affirmation in support of Deskovic's motion to vacate the convictions, DiFiore wrote:

On and between November 15-17, 1989, 16-year-old Angela Correa was sexually assaulted and murdered in Hillcrest Park in Peekskill, New York.

During the subsequent investigation conducted by members of the Peekskill Police Department, Jeffrey Deskovic made an oral confession to the crimes committed against Ms. Correa. A Restriction Fragment Length Polymorphism (RFLP) analysis conducted by the FBI laboratory of a vaginal swab secured from the deceased victim developed a DNA profile which excluded Deskovic as the donor. Because the present DNA identification system had not been established at the time the DNA profile was not place in Combined DNA Index System. Until September 2006, the identity of the source of the DNA has never been determined. During defendant’s jury trial in 1990, this exculpatory DNA evidence was fully explored before the trier of fact.

In December of 1990, at the conclusion of the evidence, Jeffrey Deskovic was convicted upon a jury verdict of the crimes of murder in the second degree (two counts), rape in the first degree and criminal possession of a weapon in the fourth degree. On January 18, 1991, he was sentenced to fifteen years to life for the crime of murder, eight and one third to twenty-five years for the crime of rape and one year for the crime of criminal possession of the weapon. The sentences were ordered to run concurrently. The defendant’s judgment of conviction was unanimously affirmed on appeal by the Appellate Division, Second Department (People v Deskovic 201 AD2d 579). Leave to appeal to the Court of Appeals was denied (83 NY2d 1003).

In June 2006 I was contacted by Barry Scheck, Esq. of the Innocence Project, who requested, on behalf of his client Jeffrey Deskovic, my consent to a CPL 440.30 (1-a) motion for a Short Tandem Repeat (STR) analysis of the DNA recovered from the victim and then a CODIS upload of the STR DNA profile obtained in the case of People v Jeffrey Deskovic, Indictment # 90-0192. I agreed that a CODIS upload was most appropriate under the circumstances of the case as the source of the DNA profile was never identified.

On June 28, 2006, Nina Morrison, Esq. of the Innocence Project submitted a proposed motion to my office seeking post-conviction DNA testing pursuant to CPL 440.30 (1-a) (copy attached), However, as evidence establishing that the defendant had been excluded as the donor of the DNA obtained from the vaginal swabs had been admitted at the 1990 trial, the CPL 440.30 (1-a) motion did not provide a legal mechanism to allow for the retesting of the crime scene DNA using STR and entering a search in CODIS.

More particularly, in 1994, CPL 440.30 (1-a) was enacted to establish a procedure whereby defendants convicted prior to 1996 could request post-conviction DNA testing of specified evidence collected in connection with their criminal case. Upon this motion, the court must determine whether any evidence containing DNA was secured in connection with the trial and, further the court must grant the defendant's application if it determines that had "a DNA test been conducted on (the) evidence and (had) the results (of that evidence been) admitted at trial, there exists a reasonable probability that the verdict would have been more favorable to the defendant." (CPL 440.30(1-a) (a), People Pitts, 4 NY2d 303). Since at the trial a DNA profile excluding the defendant was admitted into evidence before the triers of fact, CPL 440.30 (1-a) motion did not lie on the known facts of the case.

Thereafter, members of my staff met with members of the Westchester County Department of Laboratories to discuss a course of action in light of the troubling limitations presented under the Criminal Procedure Law in addressing the specific circumstances of this case. It was unanimously agreed that a new analysis of all of the evidence secured at the scene of the crime by the Westchester County Forensic Laboratory was the only course of action consistent with maintaining the fundamental tenets of justice and the integrity of the criminal justice system.

Since 1999-2000, the Westchester County Forensic Lab routinely performs STR DNA analysis on evidence collected in homicide investigations. All of us agreed that this case should not be treated differently, notwithstanding the duly affirmed judgment of conviction.

By letter dated August 8, 2006 I officially requested Frederick C. Drummond, Chief of the Forensic Science Services, conduct an expeditious STR analysis of the extant forensic evidence in this matter pursuant to the Laboratory’s established protocols for a cold case investigation. Mr. Drummond, who attended the meetings with members of my staff and who was in full accord with the practical resolution of the obstacles presented to a CODIS analysis in this case, immediately agreed. With the cooperation of the Peekskill Police Department all available evidence was submitted to the lab for retesting.

On September 15, 2006, my Office received a written confirmation dated September 13, 2006, from Linda E. Duffy, CODIS Administrator of the Forensic Science Laboratory, that a CODIS match was made with the DNA evidence from the Deskovic case (copy attached). The matched DNA was identified as that of a man who is presently a convicted inmate being held in the New State Department of Corrections. A criminal history of the inmate revealed that upon entry of a guilty plea for a murder committed in the Westchester County he is serving a life sentence and was prosecuted by the Westchester County District Attorney's Office. At this time the identity of the inmate is being withheld as he is now the prime suspect in this investigation into the rape and murder of Angela Correa.

Criminal Investigators from my office with the full cooperation of the Peekskill Police Department, reviewed the file maintained in this matter, interviewed members of the victim’s family and visited the crime scene. On September 18, 2006 my investigators were dispatched to the state prison facility at which the inmate is being housed. During that visit the inmate confessed to the rape and murder of Angela Correa.

On September 18, 2006 I contacted Barry Scheck and informed him of the newly discovered evidence and my intention to consent to a CPL 440.10 motion to vacate Mr. Deskovic’s conviction. There can be doubt upon all of this newly discovered evidence obtained within the last week, the defendant's motion to vacate the conviction must be granted as there is more than reasonable probability that had the jury heard this evidence, the conviction would not have been obtained. The People unequivocally consent to this motion.

On November 2, 2006, the indictment against Deskovic was formally dismissed on the grounds of actual innocence at the request of prosecutors. In apologizing to the wrongfully convicted man who had spent half his life in prison, Acting State Supreme Court Justice Richard Molea stated:
"There is no relief for your unmeasurable loss that I may offer you, Mr. Deskovic, beyond granting the People's motion to dismiss this indictment"
Today, Westchester County (NY) District Attorney Janet DiFiore has released a 38 page report condemning the “prosecutorial tunnel vision” which led to Mr. Deskovic's wrongful conviction. Citing errors on the part of former DA Jeanine Pirro and others, the "Report on the Conviction of Jeffrey Deskovic" offers scathing criticism for the prosecutors, police, and defense attorneys involved in the case. The report was prepared at the request of DA DiFiore and reflects the conclusions of the special, four person commission empaneled to investigate the wrongful conviction. The Deskovic Commission consisted of retired Judge Leslie Crocker Snyder, retired Judge Peter J. McQuillen, former Richmond County (NY) District Attorney William L. Murphy, and attorney Richard Joselson of the Legal Aid Society of New York City.
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  • Police and prosecutorial tunnel vision
  • Police over-reliance on NYPD profile
  • Selective reading of Deskovic's statements
  • Troubling police tactics in dealing with Deskovic
  • Carelessness or misconduct in police investigation
  • Prosecution decision to proceed with Grand Jury prosecution before receiving DNA evidence
  • Prosecution's questionable presentation of scientific evidence

Defense failures were delineated as:

  • Defense failure to use evidence of Deskovic's physcological vulnerabilities
  • Defense failure to maximize the exculpatory value of the scientific evidence
  • Defense conflict of interest in representing Freddy Claxton

In addition to the above failures, the report also cites the Court's midtrial loss of evidence as another contributing factor.

The Mid-Hudson News detailed the report's conclusions as follows:

The report calls Deskovic’s case a “textbook illustration of tunnel vision in action”.

“Once Deskovic was arrested, tunnel vision also distorted the prosecution’s behavior. Convinced that its man was in custody, the District Attorney’s office successfully pressed for an indictment, rather than await the results of potentially exculpatory scientific testing.”

The report is critical of Peekskill police tactics on January 25, 1990, when Deskovic was subjected, for eight hours, to what is described as “an arduous series of interviews, the avowed purpose of which was to elicit a confession”. The procedure produced what amounted to a false confession.

Even Deskovic’s legal defense came under fire. The report faults the public defender defense for not adequately addressing the circumstances that led to the defendant’s false confession. “The Defense was scattered, unfocused and confusing” found the report.

The most scathing part of the report deals with the them District Attorney’s office handling of DNA evidence and its resolve to move ahead with a grand jury presentation before DNA test results were released. As things turned out, the DNA test did not provide a match between Deskovic and Correra.

Interviewed by the Journal News, Jeffrey Deskovic expressed surprise at the comprehensive findings and noted that the report confirmed his worst fears.

"I was surprised because the report was more thorough and critical than what I thought it was going to be," he said from the Mercy College campus in Dobbs Ferry, where he now studies and lives.

"But at the same time, it kind of confirmed my worst fears," he said, that "they were not going to interview any live witnesses and that they were only going to go by a cold record and that they had in fact proceeded without even offering me the opportunity of participating."

Not surprisingly, former DA Jeanine Pirro, who thankfully failed in a recent bid to become New York's Attorney General, responded to the report's findings by denying, through her attorney, recollection of the failures ascribed to her. Absent this recollection, the "raw deal" had by Mr. Deskovic is apparently not Ms. Pirro's fault, according to her lawyer, William Aronwald.

A lawyer for former District Attorney Jeanine Pirro said Tuesday that Pirro does not recall denying or even receiving any requests for DNA tests from a man who had been wrongly convicted of murder.

The convicted man, Jeffrey Deskovic, was freed last year, after 16 years in prison, when Pirro's successor, Janet DiFiore, had the crime scene DNA retested and it implicated another man.

Deskovic has claimed Pirro turned down his request several times. And a report on the case, requested by DiFiore and released Monday, stated that Pirro "consistently rejected" requests to run the crime scene DNA through state and federal databases. But Pirro's attorney, William Aronwald, said Tuesday that if the report's authors had asked her about it, "She would have told them that in fact she has no recollection of ever receiving any correspondence from Deskovic and certainly has no recollection of ever writing back to him or rebuffing any requests that he made for additional DNA testing."

Deskovic "did get a raw deal, but if he got a raw deal it wasn't at the hands of Jeanine Pirro," Aronwald said. [ Newsday ]

Click here to read the entire Report on the Conviction of Jeffrey Deskovic.

2 comments:

kbp said...

This is a wrist slap at best, if the report goes no further than the Outline posted.

Troubling police tactics...
Carelessness or misconduct...


This one rings the bell in the Lax case!
Prosecution decision to proceed with Grand Jury prosecution before receiving DNA evidence [or just refusing to obtain it!].

Anonymous said...

Jeanine Pirro had been tough on Nifong for a long time. But isn't at all surprising to see she Nifonged someone in her past. Once a DA has someone in their sights they never seem to be able to let it go. Be it to keep the voters happy or tunnel vision, it is wrong and has to change.