Eyewitness Identification Testimony Reform
Identification Procedures Must Be Improved To Increase Their Reliability
Misidentification has been the leading cause of wrongful convictions. We must improve the reliability of identifications.
“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
‘Snitch Testimony’ Of Those Who Have Been Offered Incentives To Testify Should Not Be Allowed
One of the causes of wrongful convictions comes when people who are either facing prison, or, who are already in prison, for unrelated crimes, make deals to testify for the Prosecution against another person in order to either avoid prison, or to get time taken off of their sentences.
When lacking actual information, there have been many who have made up stories, or have gone along with Prosecutors’ stories, so they could make a deal. Nationwide, such lying snitches account for 15% of wrongful convictions. In 2005, Centurion Ministries, a legal group which works to free those wrongfully convicted, issued a report entitled, The Snitch System: How 
Incentivized Witnesses Put 38 Innocent Americans On Death Row.
No witness who testifies should ever receive benefits in exchange for their testimony because the temptation for those who are in desperate circumstances, to lie is too great.
The case profile which the Innocence Project uses to illustrate this point is that of Larry Peterson, who served 17 years for a murder in New Jersey which DNA ultimately proved he was innocent of. After police officers threatened to prosecute three of Larry’s coworkers, in order to avoid being charged, they falsely said, “he confessed to us on the way to work.” Work records showed that Peterson had not even been to work on the day in which the men claimed that he had confessed to them. Additionally, a man who was in jail with charges pending against him in three different counties also claimed that Larry had admitted guilt to him while in jail. A DNA test ultimately resulted in Larry being exonerated after 17 years.
Importantly, the type of murder that Larry was convicted of was a capital murder. He was lucky that he had not been sentenced to death.
The Death Penalty Must Be Kept Out Of New York
The way that the statute is drawn, one aggravating circumstance that determines whether a murder is a capital case, or not, is a conviction for an underlying felony, often a rape. Therefore the type of crime I was wrongfully convicted of would have been death penalty eligible. There was a lot of pretrial publicity, a lot of public fear, a lot of public pressure; it was a heinous crime. I would have received the death penalty. My appeals ran out in 1999-2000. I was not cleared until 2006. Under the death penalty statute, there would have been no 2006 for Jeffrey Deskovic.
Death is final. There is no correcting errors once somebody is dead. At least with incarceration, the wrongfully convicted prisoner can be released to live out however much of his life remains. Not so once someone is dead. What would be the correction in that case? Posthumously acknowledging that they were innocent, and apologize to the family?
If the death penalty is reinstated, it is not a question of if innocent people will be executed, it is a question merely of how many.
Reforms Pertaining To the Parole Board
The Parole Board Must Consider, In Cases Where An Applicant Has a Colorable Claim Of Innocence, The Possibility That a Wrongful Conviction Has Occurred and Therefore Keep it in Mind, By Way Of Background, When Considering an Application
Wrongful convictions occur, and not all of them are corrected. Parole Board considerations should reflect that reality, rather than their utter refusal to even consider the possibility.
In my case, when I went before the Parole Board, I tried repeatedly to raise the issue of my innocence based on the DNA, so that the Board could consider the possibility, just the possibility, that I was innocent, and then keep that fact in mind when considering the merits of my application for parole. Parole boards must consider matters that pertain to the background of a case under consideration rather than taking a cut and dried position that an applicant is guilty. In my case they utterly refused to do so despite several attempts on my part to raise the issue. On the other hand, I realized that they were definitely going to consider the crime for which I was convicted. There was an inherent injustice in that, and it did not bode well for me.
After praising me for my educational accomplishments, a good disciplinary record, some letters of support for my release, including a letter from the prison Islamic Chaplain, they then stated in their decision, “Despite all of this, you have been convicted of a brutal crime and we are therefore declining to parole you.”
An opportunity to remedy an injustice by at least ending my wrongful incarceration went by the boards because of their utter refusal to consider even the possibility that I had been innocent. One year of my life could have been spared from imprisonment. There are others in addition to myself who had served additional years in prison unnecessarily because of the Parole Board’s refusal to consider innocence, cases where after DNA proved innocence, in retrospect, it should have been clear that misidentifications had occurred because of descriptions that did not match height, weight, and physical appearance despite conviction; cases where evidence showed innocence, and yet a conviction occurred; cases wherein the circumstances in which a confession was obtained made its truthfulness highly questionable. The Parole Board was in position to consider this when each applicant raised the issue in front of them, yet they refused and applications were denied, resulting in even more prison time having to be served.
Mandating that the Board consider the possibility that a wrongful conviction has occurred in every case in which there is a basis to believe that is a possibility, is a commonsense remedy for this.
The Parole Board Should Not Be Allowed To Deny Applicants Based Upon The Nature Of The Crime
Denying applicants based on the nature of the crime is counterproductive in a variety of ways, and also is inconsistent with justice. Firstly, at the time that a prisoner is sentenced, the nature of the crime is already known. It will never change, no matter what a prisoner does. Therefore, to deny prisoners, based upon this element, is to discourage them from turning their lives around and becoming productive citizens. It is inherently unjust to those who have put in solid efforts by educating themselves and staying out of trouble, to, in effect, say to them, “Your efforts are in vain because we are not going to parole you because of the nature of your crime, despite the fact that it was known before you did your first day in prison.”
In addition to the inmates themselves, it wrecks families who are waiting for their fathers, brothers, spouses, friends, etc. to come home. With respect to the wrong done to the victims, that has already been taken into account in that those facts are why applicants were sentenced to prison in the first place. Additionally, it deprives society as a whole when this occurs because those who could add to society cannot do so, but instead continue to be a tax burden.
Other than those who are doing a life sentence, all who are in prison will eventually be released. Do we not want them to have educated themselves, turned their lives around so that they do not reoffend? Or, would we prefer them to have wasted their time in prison because they already know that no matter what they do they will not be paroled?
Lastly, there are innocent people in prison who will never get out by being cleared. Not every case has DNA in it to test, and not everyone will be able to get legal representation. The only way such people will be able to get out of prison will be through parole. Therefore, we need to remove the impediment of being denied based on the nature of the crime. Otherwise, much like trying to establish innocence without representation, it becomes virtually impossible in all but the most extremely rare and flukish circumstances. Lest anyone think that this is an unfounded concern, consider that Colin Warner was denied parole three times before he got cleared. Remember that I was denied parole based on the nature of the crime despite the merits that I mentioned before. What would have happened had I not obtained legal representation, or if there was no DNA to test?
The Parole Board Should Not Be Allowed To Deny Parole Based Upon Applicants Not Expressing Remorse
The reason for this is that this is an obstacle for those who are actually innocent, because they cannot meet this criteria. There are many who are innocent who are parole-eligible who go to the Parole Board, and are then turned down because when asked if they feel remorse, state that they were innocent. This should not be required of them, especially since this is not even written into the statute regarding parole, but rather is something that the Parole Board has taken upon itself to often insist upon. Do we really want to place those who are wrongfully in prison in the untenable position of either saying they are guilty, when they are not, in order to express remorse to have a chance at freedom or else being compelled to remain in prison as the price of maintaining innocence? What kind of choice is that? Remember that Betty Tyson and her codefendant were denied parole numerous times before being cleared because of this.
Reforms Pertaining to Prison
The Department of Corrections Should Not Be Allowed to Require An Admission of Guilt as a Condition of Completing Sex Offender Classes.
Prior to being cleared, I was in prison for murder and rape. That meant that in order to complete the programs that the Parole Board would want to see I had completed, I would have to take the Sex Offender Program. I was informed that in order to take and complete the course I would, as a condition of taking the class, be required to verbally admit guilt. Failure to do so would result in my being kicked out of the class and being deemed to have refused. Not only would I have had to admit guilt of a crime for which I was totally innocent, but I would also have had to make up false details, and do all of this verbally and in writing, and in front of the other people in the class. I was thus presented with the choice of admitting guilt to something I did not do, and then being required to say I did rather sickening things, or else practically give up any chance to regain my freedom.
My attempts to talk to the instructor during the pre-program interviews and explain that I was innocent, and that the DNA proved this, that I could not admit guilt to something that I did not do and yet that I needed somehow to complete this class so I had a chance to be released, proved futile. I told him that I wanted to be able to interact with my mother in the free world and, that in light of all this, wasn’t there some way that I could take the class, do all that was required of me without admitting guilt? He flatly refused. I then wrote to the Superintendent of Programs, but got nowhere there either.
This policy must be changed because it punishes the innocent. There is no good reason why the program must be administered in that fashion.
The Measure of Civilly Committing to Mental Hospitals Those Who Are Imprisoned For Sex Offenses Must Be Seriously Considered to Avoid the “End Run” Approach Utilized by Former Governor Pataki.
The reason for this is that there will be some Innocents who get caught up in it.
This measure, recently passed, indicates that after completion of their sentence, those who have been convicted of a sex offense might then be eligible for civil confinement based upon an assessment of their future danger to society.
One of the bases of determining someone’s dangerousness is whether they have admitted guilt and can therefore be considered to have addressed their issue. Where does that leave the Innocent? Wouldn’t they have suffered enough having been wrongfully convicted and then been made to serve out a sentence because the system failed them? When I was a prisoner, I constantly worried that the measure then being debated by the State Legislature would be passed. The prospect of being civilly committed, even if I had somehow been able to overcome the odds of being paroled, weighed heavily on my mind, because I knew that I might not be cleared.
As I think about it, it was wrong on so many levels:
- It is a fiction to believe that anybody, whether professional or not, can say what anybody will do in the future, including a jury of their peers;
- It is morally wrong to hold people once their sentence is up, regardless, even if the new place is a mental hospital.
It is a very slippery slope we are going down, because allowing the state to do this, how long would it be before others seek to expand the program, extending it to those who had been convicted of other crimes?
Yet we believe, and rightfully so, in giving people a second chance.
College Education for Inmates Should Be Reinstated
I obtained an Associates Degree, and went on to work on obtaining my B.A. Yet I was not able to complete it because then-Gov. Pataki cut state financial aid for prisoners, and Senator Helms did the same for federal inmates.
I could have been that much further along, educationally, when I was released. There are other Innocents who are in the same position. The recidivism rate is much lower for those with a college education than those without. One reason is that they are able to get meaningful employment upon release, thus lowering the odds that crime will be resorted to as a means of making money. Therefore, we can prevent the possibility of other victims, and reduce the tax burden of incarceration, by reinstating higher education in our state prison system.
“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 to 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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