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Allison Kilkenny

Allison Kilkenny

Posted: July 15, 2009 02:55 PM

My Interview with the Man Who Spent 16 Years in Jail Because Sonia Sotomayor Denied His Appeal


Jeffrey Deskovic served 16 years in prison for a murder and rape he did not commit. At the age of 16, he was arrested based upon a coerced false confession obtained from a police interrogation that lasted for over seven hours. Despite the presence of strong DNA evidence that proved his innocence, a coerced confession, and proof of prosecutorial misconduct, Deskovic could not get his sentence overturned, even when he had the supposed "empathetic" ear of Sonia Sotomayor.

His case highlights some startling flaws in the US court and prison system, and a potential weakness in Sotomayor's judicial style: her history of preferring procedure over innocence. Deskovic's failed attempts to offer his testimony at Sotomayor's confirmation hearing also illustrate the politicization of the process in which Democratic Senators may be suppressing his testimony in order to provide smooth transition for Sotomayor to ascend to the Supreme Court.

It all started when the police took a 16-year-old Deskovic out of school and drove him out of county in order to interrogate him about his supposed involvement in the murder/rape, Deskovic explained to me during our phone interview. His parents had no idea he was in police custody. Deskovic was kept in a small room for over seven hours where he was hooked up to a polygraph machine and repeatedly threatened by the police.

I wasn't given anything to eat the entire time I was there... The police played good cop-bad cop. They used all kinds of scare tactics: they raised their voices at me, they invaded my personal space. As each hour passed by, my fear increased in proportion to the time I was there. Towards the end, the polygrapher said to me, "What do you mean you didn't do it? You just told us in the test that you did. We just want you to verbally confirm it."

The polygrapher was lying, but Deskovic had no way of knowing that.

At that point, the officer who was pretending to be my friend entered the room, and he told me the other officers were going to harm me, and that he was holding them off, but that he couldn't do so indefinitely. He said I had to help myself, and he added that if I did as they wanted, not only would they stop what they were doing, but that I could go home afterwards. I was being young - naïve - you know, 16-years-old, not thinking about the long-term implications, but instead being concerned with my own personal safety - I took the out that was being offered, and I made up a story based upon the information they fed me during the course of the investigation.

He was convicted despite a negative DNA test that showed that semen found in the victim did not match Deskovic's sample. On the day of his sentencing, Deskovic referred to the DNA test. The judge responded (on record): "Maybe you are innocent," before sentencing him instead of overturning the verdict. Deskovic tried to appeal this decision several times. First, he appealed to the Appellate Division where his request was denied. He then went to the Court of Appeals, New York State's highest court, which also refused to hear his case. Deskovic then filed a Habeas Corpus petition in the federal court, arguing that DNA evidence proved his innocence and his confession was coerced, which violated his Fifth Amendment rights. Some confusion emerged due to new guidelines stated by the 1996 Antiterrorism and Effective Death Penalty Act that changed the deadline for petitions. Deskovic's attorney asked a court clerk if the petition had to be filed by the cut-off date, or if it could be postmarked. The clerk said it could be postmarked, which was false. Deskovic's petition arrived four days too late.


The D.A. at the time argued that those four days were somehow prejudicial to the people of New York, and therefore, the court should rule that Deskovic was late in filing his petition, and not review his case. That's when Deskovic appealed to the Federal Court of Appeals where Sonia Sotomayor served. His lawyer advanced three arguments: the DNA evidence proved Deskovic was innocent, reversing the ruling would open the door to more sophisticated DNA testing (which in turn could prove the innocence of many more prisoners,) and the error in filing the petition was a clerical error, and not the fault of Deskovic or his attorney.

Sotomayor said she was unpersuaded that the fact that Deskovic was four days late filing his petition should be overlooked by any of those factors.

She therefore denied my appeal. My lawyer then moved to reargue the case in front of her, he requested that the entire panel hear the case, and that too was denied by Judge Sotomayor and her colleague. I then appealed to the US Supreme Court, but they agree to hear very few cases, so they didn't agree to hear mine. So at that point, which was 2001, I no longer had any appeals left, and I no longer had any legal representation. It was not until 2006 that I finally was able to obtain legal representation.

Ultimately, Deskovic was cleared sixteen years later thanks to help from the Innocence Project, a nonprofit organization that was able to obtain further DNA testing that identified the real perpetrator. Investigators took the crime scene DNA, and ran it through a databank, and matched the real perpetrator, who was already in prison for killing another person three years later after he killed the victim in the case where Deskovic served a 16-year sentence.

Now, Deskovic wants a chance for his story to be included in the direct questioning of Sonia Sotomayor during her confirmation hearing. Unfortunately, Democrats don't want to include any testimonies that might harm Sotomayor's chances of being affirmed.

It's not too late for me to be added to the witness list at the [Sotomayor] confirmation hearing. I've been in a lot of contact with the Republican Senate Judiciary Committee, the Democratic Senate Judiciary Committee, I sent them the decisions in my case that the judge made. I expressed to them - a lot of times - that I want to testify at the hearing about the human impact of putting procedure over innocence, and the role Judge Sotomayor played in perpetuating my wrongful conviction, which from her ruling, I ended up serving an additional six years. They omitted me from that, and then when I called Senator Session's office, I got the runaround there. I got a similar runaround from Senator Leahy's staff.

The Senators and their office staffs seem either hesitant to include any negative testimony of Sotomayor, or apathetic to the plights of wrongfully convicted citizens, a calculation Deskovic calls putting "politics over justice."

If this was a nominee from a Republican President, the Democrats, who traditionally have spoken about the issue of wrongful convictions (Senator Leahy is known for his positions on that), they would be all over this issue. I would have been there at the hearing. But because the political party of the President happens to be of the same party, they're worried about going against him. And on the Republican side, wrongful convictions has never been an issue which they have taken up, and in fact -- in many instances - on the federal levels, and on the state level, they're actually the obstacle to getting legislation passed.

Through other advocates, we've reached out to Senator Feingold and we asked him to ask the questions about my case. The response we got from his staff was that they weren't interested in doing that because they're just interested in protecting [Sotomayor]. When I called the Democratic Judiciary Committee, and I asked to be added, they told me they're only calling witnesses who are going to give testimony favorable to the judge.

Deskovic's testimony raises a couple interesting questions. Does Sonia Sotomayor place procedure over innocence, even when the proof of a prisoner's innocence is as clear as in Jeffrey Deskovic's case? Secondly, are US Senators now playing a game of politics during the confirmation hearing of Sotomayor by willfully omitting negative testimony of the judge in order to smooth the way for her ascension to the Supreme Court?


Even if (as she probably will be) Judge Sotomayor is confirmed, this issue of "procedure over innocence" will not disappear overnight. Sotomayor will have a vote in the Supreme Court appeal of Troy Davis, another prisoner who claims he is innocent and wrongfully convicted, and who has drawn a slew of public support. Will Sotomayor again turn away from the overwhelming amount of evidence that proves Davis's innocence, or will she at last show some of that empathy she's been accused of possessing?

Cases like Deskovic and Davis's prove the need for legislative reform that will lead to better DNA testing and videotaped interrogations. Measures to prevent wrongful convictions shouldn't be involved in political games, says Deskovic. "It has nothing to do with being soft on crime, or hard on crime. It's all measures which have to do with increasing the accuracy of the criminal justice system. Every time the wrong person is convicted, then that means a perpetrator remains free to strike again, which is what happened in my case."

Cross-posted from Allison Kilkenny's blog. Also available on Facebook and Twitter.

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