“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—not simply applicable to NY.
By Jeff Deskovic
As I have mentioned in previous articles, wrongful convictions are more prevalent than most people realize. I have written at length about a great many of the causes of wrongful conviction. However, two areas that I have not said enough about include aspects that historically frequently go wrong but which usually remain unspoken of; the failures of prosecutors, and trial judges. In this article I wish to elaborate a bit on the topic. Functioning correctly, both prosecutors and judges are supposed to serve as lines of defense, in different ways, to prevent harm to wrongly charged defendants.
It is the role of the prosecutor to convict the guilty while staying within the boundaries of the law, and, to protect and exonerate the innocent. Their mandate is not, despite prevalent practice across the country and particularly here in Westchester over the past 20 years, to simply win convictions, by any means.
Firstly, prosecutors should look critically at any cases that the police have brought to them. They must ask whether the identification procedures that were utilized were suggestive and whether the identification can objectively be said to be reliable? Were the circumstances under which a confession was obtained make that confession unreliable? Is there sufficient evidence?
If the answer to any of the above is negative, the case must be returned to the police with instructions to investigate further and to try to find solid evidence. These questions must be asked by 
prosecutors committed to justice. However, in practice, rarely are.
In addition, if there are alternative suspects, a right-thinking prosecutor should order the police to investigate that other suspect or suspects and produce a solid reason why they must be ruled out.
Beyond that, a prosecutor is supposed to ensure that information that is considered Brady or Rosario material is turned over to the defense on time, as opposed to being withheld or turned over at the last second; and, they should be monitoring the testimony of their own witnesses, to ensure that no perjury is taking place. If it is discovered that someone has committed perjury, it is a prosecutor’s legal obligation to immediately correct the situation. This rarely happens. Prosecutors have the obligation not to engage in misconduct of any kind, not to upset a trial’s fairness.
Yet, all too often that is not the case. Information is frequently purposely withheld, misconduct is engaged in, unethical tactics are resorted to in order to try to win. Perjured testimony is not only not corrected but in many instances is suborned, and, legal arguments are made to the judge that are not in good faith.
After the prosecutor, the next line of defense, the next safety net for the wrongfully accused who is supposed to be ensuring that injustices do not take place, is the trial judge who, all too frequently, fails in that capacity. Said failings very often take place during pre-trial hearings, during trials, and even in post-conviction proceedings before sentence.
It is no accident that a common characteristic in many of the cases that turn out to be wrongful convictions is that the exonerated have long since exhausted their appeals by the time they are finally cleared. Often, when such cases are looked at in hindsight, we discover that there were plenty of red flags along the way that should have served as warning signs that something was wrong. Frequently those warning signs were in the form of issues related to guilt or innocence, that were initially issues that the trial judge ruled on but failed to make the rulings that justice and the law demanded, even before the case got to the appellate level. Pre-trial hearings are the first place where judges typically fail in their responsibilities to ensure justice and prevent injustice.
Wade hearings are pre-trial procedures, the purpose of which is to allow judges to determine whether an identification is accurate, and whether the procedures that were used were in any way suggestive. Courts recognize that misidentification is the leading cause of wrongful convictions, and thus it is necessary to preliminarily review identification evidence before it may be introduced to a jury in order to prevent the use of unreliable evidence.
If it is found that an identification is not reliable, judges are supposed to suppress such evidence rendering it unavailable for use by prosecutors. As I have harped on in numerous articles, misidentification has proven to be the principle cause of wrongful convictions in 75 percent of the now-240 D N A- proven wrongful convictions. Nevertheless, in actual practice judges very rarely suppress identifications which, in hindsight, would seem obvious misidentifications. I have personally seen judges admit into evidence identifications despite a victim, or witness, having described a perpetrator who is 30, 40, or even 50 pounds heavier than the accused. I have also seen cases where the description didn’t fit in other ways, and, yet the judge allowed the defendant to be convicted based upon it.
Some examples include dramatic height discrepancies; a report of a visible tattoo that the accused didn‘t have; a failure to describe glaring characteristics such as visible large scars.
At other times, judges have allowed an identification into evidence despite extremely suggestive procedures employed by police. Examples include one person being much taller than the others, weighing significantly more; the police focusing on one person by asking repeated questions about them and thus making them unduly stick out; being the only member of a racial group in the lineup or photo array, having a black eye, or even being the only one in handcuffs at the time of the identification.
Another area where trial judges often fail defendants during the pre-trial stage is in Huntley Hearings, hearings designed to test whether a confession was given voluntarily as opposed to being obtained by coercion. In this same connection, judges frequently fail to determine whether a suspect was actually given his or her Miranda rights; and, if so, whether they waived them in a legal manner.
The standard for whether Miranda rights have been legally waived involves whether the accused, at any point, requested to speak to an attorney, and if not, whether their waiver was in compliance with Miranda v Arizona, given “knowingly, willingly, and intelligently”.
False confessions have been the cause of wrongful convictions in 25% of the 240-DNA proven wrongful convictions, and in 10, out of New York’s 24, DNA proven wrongful convictions. A leading cause of false confession has been various forms of coercion.
According to the false confession expert Saul Kassin, “Once a confession has been entered into evidence, there is an 80 percent likelihood of conviction.
There have been plenty of cases in which judges have ruled that there was no coercion involved, and thus that a confession was admissible, despite both physical and psychological coercion. Some examples of physical coercion that occurred but which judges nonetheless allowed the confessions to come into evidence include: threats of violence, wearing suspects down after long hours of interrogation; food deprivation and sleep deprivation. Some examples of psychological coercion include lying to suspects, claiming to have evidence that doesn’t exist, false promises, the use of the polygraph, and the notorious game of good cop/bad cop.
Unfortunately, many judges have held that such tactics were not coercive, even when applied to young kids and teenagers. Some examples include the well-known Central Park Jogger case where defendants were 15, my own case 16; and Marty Tankleff accused and convicted to murdering both of his parents at 17.
How a judge could not see the way such tactics used on individuals at that age were coercive defies belief, especially when several of the above-mentioned tactics were employed at the same time. Even more incredibly, other conditions that would seem not to have mattered to judges include suspects with mental health issues, or those significantly retarded.
At other times judges have allowed flimsy cases to go forward to trial, despite pre-trial hearings which were supposed to prevent it. In my case, for example, Judge Nicholas Colabella, who has served for many years in Westchester County Court, allowed prosecutor George Bolen to proceed to trial against me, refusing to dismiss the indictment even though my attorney was arguing that the case should be dismissed in view of the fact that the DNA samples collected from the victim did not match me.
Judge Adler is currently allowing a trial to go forward in the Anthony DiSimone case despite huge amounts of evidence having been being turned over to defense which was previously withheld for many years from the defense and which strongly implicates another suspect who, in fact, confessed to the murder within six days of committing it.
Other pre-trial failures have even included, believe it or not, denials of defense motions for DNA testing, and denials of applications for funding necessary to have experts review evidence and render opinions as an important check and balance when prosecutors intends to offer expert testimony on the same subject following inspection of evidence.
Judges often fail during a trial to ensure that justice is done by not sustaining meritorious objections. There have been a number of cases, some of which I have written about, in which prosecutors have engaged in prosecutorial misconduct in open court, in an effort to gain a conviction through illegal and un- fair means; and judges fail to take appropriate action. Some examples include allowing prosecutors to act as an unsworn witnesses, or to make inflammatory statements during closing arguments while not declaring a mistrial; or allowing prosecutors to get away with withholding important information from the defense until the very last second, thus preventing defense attorneys from using the exculpatory information in the most effective manner.
At other times, judges have not paid close enough attention to witnesses, with the effect that witnesses have perjured themselves in open court with impunity. Judges also have the power to rule on whether evidence produced at trial was legally sufficient, and yet often fail to utilize such power when the facts warrant it.
Trial judges have failed at the post-conviction stage before the sentencing hearing.
Where the facts and law warrant it, judges have the legal option of setting aside a verdict. The most outstanding example in Westchester of a judge having exercised this function involved Federal District Judge Charles Brieant in the Paul Cote case. This perogative is very rarely exercised as few judges have shown the courage necessary even when verdicts blatantly contradict the evidence presented.
The fact that many judges are former prosecutors impacts their conduct inside and outside of the courtroom in many ways. I believe that many, with that background, tend to view most defendants as guilty. I also think that on a subconscious level some judges clearly favor the prosecution, so much so that their rulings are not truly being made from a position of neutrality. Still another problem involves the fact that judges frequently tend to view themselves as a quasi law enforcement officer whose job it is to protect the public, as opposed to being neutral arbiters of law whose function it is to prevent injustices and to ensure that trials are fair and outcomes reliable.
I also believe that, in some instances, judges have been swayed by media coverage and the atmosphere of a case, particularly with high profile cases involving a lot of emotion on the part of the public. Additionally, politics can become a very big factor, particularly when judges may be facing upcoming re- election, or when they may be aspiring to higher appointment, and they are concerned with how they may be perceived if they make particular rulings.
Finally, I believe there are instances where judges have been intimidated by prosecutors.
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