“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.
By Jeffrey Deskovic
The phrase never again, although identified with the cause of European Jews, millions of whom were exterminated under the Nazi German regime, is, in a broader sense, identified with the notion that ‘never again’ would the world watch while an aggressor nation invaded weaker nations, conquering them, and slaughtering a people while the rest of the world watched and did nothing, not wanting to get involved, because of the sacrifice that intervention and involvement would entail. In my usage of the phrase, however, I mean that ‘never again’, insofar as it lies within my power and ability, should anyone else ever be wrongfully convicted and go through what I did. Certainly, in any case, it should never happen through the flaws that are known at this time to exist. We need to have a better review mechanism in place so that if a wrongful conviction does occur, it will not take 16 years to correct.
I do not believe that wrongful convictions will ever be totally eliminated. But, I do believe that the frequency with which they occur can be, and should be, significantly reduced, and that the flaws in our criminal justice system that we know exist can be corrected.
Collectively, we must insist that the injustices that presently exist be eliminated. No one engaged in the struggle may withdraw until they have done all that they can do, and then some, no matter that it will entail sacrifice and the diverting of some energies, resources, and focus from one’s pursuit of individual happiness. How can anybody be at peace while others suffer? Additionally, a lesson of war, reiterated by Dr. Martin Luther King, Jr., is that ‘injustice anywhere threatens justice everywhere’. Perhaps today you are not personally affected, but how long will it be before you 
are? Can anyone be certain that they will never be? Evil never stops on its own, it must be confronted and defeated.
We know, based on the evidence of the slaughter in Rwanda, Bosnia, and now in Darfur, that the world, once again, failed in its promise. Can we do better in this matter? I am committed to combating wrongful convictions, but I know that I cannot be successful by myself. Everyone must do their part, do the little bit that they can. Below are listed changes that must be made in the system, to ensure that others do not suffer in the same way that I did, along with a rationale supporting each proposed change.
Will you, yes you, join me by contacting Governor Spitzer, Attorney General Cuomo, Speaker Silver, and Senate Majority Leader Bruno, in asking that these legislative changes be advocated and enacted? Or, will you wait, doing nothing, until eventually, like Pearl Harbor, the problem comes home directly to you and you find yourself, or a loved one, wrongfully arrested and convicted?
Changes
The ultimate goal is to bring about legislative changes. Below are the changes I am advocating. Having been through the system, I know all too well where the cracks in it lie, both from what I experienced first-hand, and from my studies on wrongful convictions, which I was forced to become well-versed in back when I was incarcerated and took to studying in a desperate effort to find something that I could emulate so that I too could be exonerated.
You know, it is common that when we adopt new laws, we frequently name them after the person whose suffering inspired them, thus both honoring them and ensuring that neither they nor what they went through will ever be forgotten. Hence the appellations, for example, of “Jenna’s law” which pertains to sentencing repeated violent offenders and “The Kirk Bloodsworth Innocence Protection Act,” whose aim was to protect innocent defendants but which wound up getting watered down before being passed.
Naturally, I would be honored if a bill containing my proposed changes were named after me. However, instead of it containing my first name, and thus being named “Jeffrey’s Law”, I would much prefer it be known as “Deskovic’s Law”, thus making it easier for those who certainly will come after me to discover who I was and what I went through. Not for vanity’s sake, mind you, but because I would never want people to forget what happened to me; that the awareness is brought home that a wrongful arrest and conviction can happen to anyone, at any time, through a wide variety of possible ways, even above and beyond a coerced, false confession.
It is through this awareness that I would hope that a sense of alarm will be triggered in the minds of the People, followed by actions, efforts, and a never rest-type of determination until concrete changes are achieved, lowering the possibility of a wrongful conviction, and making it safer for everybody. Nobody should ever go through an unjust prison sentence as I did, much less have to endure that injustice for 16 years before exoneration.
NEVER AGAIN.
All interrogations must be videotaped
Videotaping interrogations would enable there to be a complete record of what was said, when, and in what context. It would also prevent police officers from omitting those unpleasant little details that they would rather the world not know about. Similarly, some officers would refrain from some abusive tactics because they would know that the tape is playing. Videotaping would enable interrogations to be more easily reviewed by courts, juries, false confession experts. Additionally, the police practice, sometimes unintentionally engaged in, that involves providing suspects with intimate details of a crime in the course of interrogating them, then ascribing those details to the suspect, claiming that “only the killer would have know them,” would be seriously curtailed. Conversely, police interrogators would be more protected from false allegations of coercion.
To be sure, videotaping interrogations is not a panacea, for the tape does not show what was said or done prior to the tape being turned on, nor what happened once it was turned off. Yet it is always better to have some measure of protection, even if it is not total, rather than none at all. Of course, all videotaped interrogations must begin with the clear and unmistakable issuance of complete Miranda warnings to the suspect, thus insuring that whatever statement is made was voluntary and knowing and that the individual interrogated was aware that he had the right to remain silent, that any statement he made might be used against him, that he had the right to the presence of an attorney, and that if he could not afford an attorney, one would be appointed.
Other tactics which are known to produce false confessions and therefore wrongful convictions must be outlawed.
According to The Innocence Project, with respect to DNA exonerations, false confessions have been the cause of 25% of wrongful convictions. There needs to be many changes made in order to reduce the risk of false confessions. Below are specific tactics which are currently in use which produce false confessions, and which should be absolutely banned:
Lengthy Interrogations
The treatise False Interrogations In The Post DNA World by Drizin and Leo, discussing cases of false confessions obtained following lengthy interrogations, declares, “More than 80% of the false confessors were interrogated for more than six hours, and 50% of the false confessors were interrogated for more than twelve hours. Interrogation-induced false confessions tend to be correlated with lengthy interrogations in which the innocent suspect’s resistance is worn down, coercive techniques are used, and the suspect is made to feel hopeless, regardless of his innocence.”
Threats
Threats result in false confessions. When physical harm is threatened, either explicitly, via literal verbiage, or implicitly, then physical self-preservation at any cost becomes the goal. Threats of being overcharged or a longer prison sentence are posed, along with the similar game of we already know it is you, so you are going away whether you admit it or not. How is it going to look for you if you don’t admit it?
Claiming to have evidence that doesn’t exist
This tactic results in false confessions because like threats, it conveys the futility of maintaining innocence. It is important to understand that this doesn’t happen in a vacuum, meaning all at once. Rather, we are speaking about a period of time, during which innocent suspects are worn down by psychological tactics, food deprivation, and lack of supportive people present to boost morale. Once a futile mindset has been established, the goal of the accused becomes ‘since I am going to be arrested anyway, I don’t want to make it worse than what it already is.’
Use of the polygraph
Polygraph machine use has been linked to the obtaining of false confessions. There is a consensus in the scientific community that the polygraph, also called a ‘lie detector,” is not reliable. The premise of the test is that a person who is lying will become nervous and therefore their pulse rate, their respiration and other physiological indicators will change significantly. The pulse
rate is the primary measurement. It has been established that the test is inaccurate because frightened but innocent people often fail the tests because their fear causes their pulse rate to go up (See Psychology Today, an article by Lykken, March 1975, pp56-60).
The purpose of falsely telling a suspect that they failed the test is to employ it as a psychological weapon to convey the idea that ‘the maintenance of one’s innocence is futile, we already know that it is you, don’t make it worse on yourself than it already is by lying to us’. Use of the polygraph should be disallowed because in any case, the polygraph is not accurate, and it has been repeatedly shown that police are perfectly willing to misuse it, leading to wrongful convictions.
It is unfortunate but, nevertheless true, that most often once juries either learn or get the impression, rightly or wrongly, directly or indirectly, that a defendant has failed a polygraph, they often rely upon this to the exclusion of all else, placing a disproportionate amount of weight where no weight should be placed at all.
Having already proven itself to be an unreliable method from which many wrongful convictions have been obtained, we should outlaw the use of polygraphs to improve the reliability of results obtained in the courtroom. In my own Appellate Brief, page 12, testimony is referenced by the polygraphist that “When unable to say Deskovic failed the first test, he administered two more, and told him ‘…you told me within yourself that you did it. I just want you to tell me from your mouth that you did it..’ ” The polygraph was utilized to obtain the coerced, false confession. My case is by no means an isolated example.
Interrogation Of Those Who Are Mentally Retarded Or Have Other Psychological Problems Without A lawyer Should Be Banned
The reason for this is that often a hallmark of the behavior of the mentally ill is their desire to please others. It becomes obvious that police want a confession, and, in an effort to please them, the mentally ill provide false confessions. Consider the case of Earl Washington. Earl had an IQ of 68, and, as his case profile on the Innocence Project’s website states, ‘psychological analyses stated that “to compensate for his disability Washington would politely defer to any authority figure he came into contact with.” He gave police concessions to five different crimes. Four of them were discounted as unreliable. Somehow one of them was seen as reliable and he was prosecuted based upon it. Earl was convicted in Virginia of capital murder and rape and sentenced to death. He came within 9 days of being executed. Ultimately he was cleared by DNA, after serving 17 years, 10 of them on death row.
In New York Doug Warney served 10 years for a murder and rape which DNA later proved that he did not commit. He was interrogated for 12 hours. He, too, had mental health issues, and an eighth grade education. There was no law in place to prevent police from questioning him without a lawyer present, and he therefore gave a false confession which caused him to needlessly spend 10 years in prison. Prosecutors originally attempted to convict him for a capital murder charge for which he would then be eligible for the death penalty.
There Should Be A Pre-Trial Hearing In Which False Confession Experts Review all Alleged Confessions for Truthfulness Prior to a Confession Being Allowed as Evidence
Presently there is no pre-trial hearing whose purpose it is to determine truthfulness. The only pre-trial hearing that exists right now with respect to alleged confessions is a Huntley Hearing, in which the focus is on whether or not a confession was made knowingly, willingly, and voluntarily, whether the Miranda Warnings were issued, and whether Fifth Amendment rights were violated. This is not sufficient protection to innocents, because normally no matter how horrendous the circumstances were under which the confession was procured, judges routinely allow them in as evidence and juries regularly convict.
A hearing is needed to determine truthfulness, and this review should be
made by those trained in this field, namely, false confession experts. By analogy, when it comes to identification testimony, before eyewitness testimony is allowed in as evidence at a trial, its reliability must first be passed upon in a pre-trial hearing, to ensure accuracy, because when that type of evidence is allowed in it presents a serious obstacle to be overcome.
Thus, the hearing is a type of protective screening method to try to prevent wrongful convictions. Such protection is also needed in the area of confessions. On page 950 of the Drizin and Leo study, it is pointed out, “In cases of wrongful conviction in our sample, 80% (35/44) of the false confessors received prison sentences of longer than ten years.
While the length of sentence may not be surprising in light of the severity of the crimes for which they were convicted, this finding underscores the potential risk of putting a false confession before a trier of fact even though the defendant is factually innocent.” On page 953 of the study they further point out, “The safeguards built into the criminal justice system failed to prevent wrongful prosecution and conviction, lengthy incarceration, and, in some instances, years on death row.”
To further underscore the risk and need for such a hearing, I quote another section of the treatise, which declares, “81% of the false confessors who chose to take their case to trial were wrongfully convicted. In other words, approximately four out of every five innocent individuals who chose to take their case which was typically based on nothing more than a confession that was subsequently proven false, were wrongfully convicted!” Clearly, additional protections are needed. This measure will add another layer, another barrier of protection between the innocent and wrongful conviction.
“Jeffrey Deskovic, JD, MA, is an internationally recognized wrongful conviction expert and founder of The Jeffrey Deskovic Foundation for Justice, which has freed 7 wrongfully convicted people and helped pass 3 laws aimed at preventing wrongful conviction. Jeff is an advisory board member of It Could Happen To You, which has chapters in CA, NY, and PA. He serves on the Global Advisory Council for Restorative Justice International, and is a sometimes co-host and co-producer of the show, “360 Degrees of Success.” Jeff was exonerated after 16 years in prison-from age 17-32- before DNA exonerated him and identified the actual perpetrator. A short documentary about his life is entitled “Conviction”, and there episode 1 of his story in Virtual Reality is called, “Once Upon A Time In Peekskill“. Jeff has a Masters Degree from the John Jay College of Criminal Justice, with his thesis written on wrongful conviction causes and reforms needed to address them, and a law degree from the Elisabeth Haub School of Law at Pace University.
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