Jeffrey Deskovic – Petition for Reforms

eforms Pertaining To Interrogations

(False confessions have accounted for 25% of the 208 DNA exonerations)

1. All interrogations should be videotaped, from beginning to end, which would prevent police from omitting abuse tactics they use from their testimony. It would allow a complete and accurate record of who said what, when, and what context. It would also protect honest police officers from false allegations of coercion.

1. 2. The use of the polygraph, lying to suspects about having evidence that they don’t have, prolonged interrogations over many hours should be outlawed because such tactics have been linked to false confessions. False confession studies show that these convey to suspects that no matter what, they will be arrested for something they did not do, it is just a matter of whether they will make it worse on themselves by lying through maintaining innocence.

2. 3. Interrogation of the mentally ill and/or retarded should only take place with a lawyer present because mentally ill and retarded people try to compensate for their deficiencies by being compliant.

3. 4. Before confession evidence is allowed into a trial, a pre trial hearing on the issue of whether a confession is truthful should be conducted, akin to a Wade hearing in which identification accuracy is reviewed, because confession testimony is devastating to defendants, resulting in a conviction 80% of the time, and the current pretrial hearing on voluntariness is not enough, since cases in which confessions have been proven to have been false based on DNA, judges have not suppressed such evidence.

Reforms Pertaining To Eyewitness Identification

(Misidentification has been the cause of wrongful convictions in 75% of the 208 DNA exonerations)
4. 5. Sequential lineups and photo arrays should be used, rather than showing many people at once to allow victims to focus intently on each photo or person.

5. 6. Everyone in the array and/or lineup should resemble each other, so that no one sticks out and to improve on the accuracy of identifications.

6. 7. The victim should be told that the perpetrator may not be present, so as to prevent victims from having undue confidence that the perpetrator is there, thus leading to a misidentification.

7. 8. Victims should be told that the investigation will continue if they don’t make an identification so that they don’t feel pressured into making an ID, lest the guilty party escape justice.

8. 9. The officers conducting the lineup should be in the blind as to who is suspected, so as to prevent inadvertent cues or clues from being given.

10. Confidence statements should be taken, in which a victim states, on a scale of 1 to 10, how confident they are about their identification, to give courts and juries further insight into an identification

9. 11. The lineup or photo array should be taped, to ensure its integrity.

Reform Pertaining To Incentivized Witnessing

Incentivized witnessing has been the cause of wrongful convictions in 15% of the 208 DNA exonerations
10. 12. The practice of incentivized witnessing, in which a witness’s gets a reward for testifying-whether a lesser prison sentence, having charges dropped, or just getting financial compensation should be ended; those who have evidence should come forward on a moral basis rather than being rewarded for doing so, because when desperate prisoners have been caught red handed for committing a crime and they have no truthful information to trade on, they falsely implicate others.

Reforms Pertaining To Evidence
11. 13. There should be a standardized evidence preservation system to ensure that evidence is preserved and available for inspection and testing. Right now there is no such system and the first obstacle for the wrongfully convicted is whether the evidence can be located and whether it has been destroyed. If it has, the innocent remain incarcerated with no way to prove innocence.

12. 14. It should be a crime whenever police and prosecutors purposely withhold evidence. History shows that with no personal penalties, morality alone is not enough to restrain some rogue policemen and prosecutors

Reforms Pertaining To Public Defenders

Without quality attorneys, unsaddled with the current disadvantages that public defenders have as opposed to the prosecution, innocent defendants will continue to be wrongfully convicted, and cases will not have just and fair outcomes.
13. 15. There should be one standardized system of defense for the poor statewide, as advocated for in The Spangenberg Group’s report for Chief Judge Judith Kaye on The State of Indigent Defence in New York, because such centralization would allow for more internal oversight, accountability, and review of public defenders. It would allow for more quality control.

14. 16. Those public defenders who have been found to have performed sub-standard performance for indigent defendants should no longer be employed by the state to do so. Because to do so would be to set the stage for future inadequate performances by that lawyer thus resulting in defendants, who are presumed innocent, to be victimized.

15. 17. The defense and the prosecution should have an equal and adequate budget to hire experts and other necessary personnel to assist in the preparation of cases rather than the defense having an extremely limited budget while the prosecution has a huge budget, because on such an unequal playing field, no confidence can be placed on the outcome of court proceedings or verdicts.

16. 18. Public Defenders should have the same size staff as The District Attorneys to ensure that they are not overwhelmed by sheer manpower. Each side should have enough personnel to adequately prepare a case.

17. 19. There should be a limit to the amount of cases each public defender is allowed to take on at one time. In the Bronx, NY, for example, it is not unusual for a public defender to have 120 cases at the same time. Overburdening a public defender prevents him or her from giving each case the time, preparation, and investigation it deserves.

18. 20. Public Defenders should be given pay equal to that of prosecutors, because otherwise the best legal talent will go to one side. Further, quality lawyers should not be discouraged from being public defenders by being given less pay, especially given the astronomical loans that young lawyers have as a result of going to law school.

19. 21. Indigent Defendants should be provided with court appointed attorneys to handle post conviction 440 motions, so that they can have competent legal representation, rather than trying to represent themselves against trained and seasoned prosecutors.

Reforms Pertaining To DNA
20. 22. Allow all of the wrongfully convicted to prove innocence with DNA, even in cases where defendants have pled guilty, because some judges have interpreted the law to prevent such defendants from having access to DNA. In 11 cases nationwide innocent defendants have falsely pled guilty, often as a result of fear of a higher sentence. Allowing the testing causes guilt to be confirmed or innocence to be established.

21. 23. Give Judges the authority to order crime scene DNA comparisons to DNA Databases; currently the law does not explicitly give them that authority, and whether the testing goes forward or not often relies on the discretion of the prosecution, whereas the power belongs in the hands of the judge.

22. 24. Current law allows judges the authority to order DNA in those cases in which DNA could affect the outcome, it should be that in any case in which there is testable material, a test should be done; because DNA will always be germane to guilt or innocence.

23. 25. Prosecutors should not be allowed to explain away negative DNA Test results at a trial by claiming the victim had a consensual sexual encounter, without first proving that such an encounter took place, because without requiring that a factual background first be established, it would allow prosecutors to mute such evidence.

24. 26. When a prosecutor argues that a rape or other crime was committed by one person, and then a post conviction DNA Test shows the defendant is innocent, prosecutors should not be allowed to then change their theory on appeal and claim that a crime was committed by two people, so as to be able to get around the DNA Test, because to allow otherwise would be a way to get around the power of DNA to prove innocence. Conclusions should be based on what the evidence shows, not by making evidence fit a conclusion.

Reforms Pertaining to Post Conviction Review
25. 27. The Court Of Appeals should review all cases, as a matter of a defendants right, as an additional level of review, with the goal of catching more wrongful convictions.

26. 28. There should be a review apparatus, independent of appeals and a pardon, which can review cases in which a defendant has a colorable claim of innocence, because often the wrongfully convicted have had their appeals exhausted, which shows that appellate review is not enough to protect the innocent, while it is a highly charged political environment for a Governor to issue a pardon. Rather, such a review should be independent of both, and be staffed by wrongful conviction experts, who have the power to overturn wrongful convictions.

27. 29. An Innocence Commission Should be created to study what went wrong in wrongful convictions, so that lessons can be learned from such wrongful convictions, and changes adopted, to try to prevent future wrongful convictions.

Reforms Pertaining to compensation
28. 30. An immediate sum of 15,000 dollars per year of wrongful incarceration should immediately be paid to those who have been cleared of a crime, aside from money awarded as a result of a lawsuit, to meet such immediate needs such as housing, cost of living, mental health services, health insurance, and education. A guilty person on parole currently receives more help than an exoneree, who receives nothing.

29. 31. Compensation Lawsuits should receive fast track processing in court, whereby priority would be given to such cases, because the wrongfully convicted struggle financially after being released, following such incarceration.

30. 32. Bad Case Law stating that if an exonerated person has contributed to his or her own wrongful conviction they are not eligible to receive any compensation should be changed, because the idea that anybody would intentionally get themselves wrongfully convicted, sentenced to prison, only to then clear themselves in order to be in position to then sue is ridiculous. To deny anybody who has been wrongfully convicted, is to add insult to injury.

Reforms Pertaining To The Parole Board which bear upon innocence
31. 33. The Parole Board should not be allowed to deny parole to those who profess their innocence based upon their not taking responsibility for their crimes or expressing remorse, because that does not take into account the reality of wrongful convictions. The wrongfully convicted should not be made to remain in prison, based upon their protestation of innocence. It is a fact that some wrongfully convicted prisoners were previously denied parole after finishing their sentence minimums but before they were cleared, based upon this, whereas they could have at least regained their freedom sooner.

32. 34. The Parole Board should not be allowed to deny parole to prisoners based upon their not completing the sex offender class, because such class requires prisoners to explicitly admit guilt to the other people in the class as well as to the instructors as a condition of completing the class. Such a practice places the wrongfully convicted in the catch 22 of either falsely admitting guilt to try to regain freedom, or to lose a chance at freedom as the price for maintaining innocence.

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