International Herald Tribune

June 12, 2009
Procedure versus innocence
Letter from America
Fernanda Santos
NEW YORK

Jeffrey Deskovic heard a TV talk show host announce President Barack Obama's nominee for the Supreme Court last month, and his mind raced. That name; he remembered that name.

He got out of bed and riffled through the boxes of motions, appeals and letters he had accumulated in the 16 years he spent in a New York prison for a rape and murder he did not commit.

And there it was, a ruling from the United States Court of Appeals for the Second Circuit, dated April 26, 2000, and barely two pages long. It was co-written by Sonia Sotomayor.

"We have considered all of petitioner-appellant's arguments and find them to be without merit," the ruling said.

Imprisoned at the age of 16 for the killing of a high school classmate, Mr. Deskovic, now 35, filed a habeas corpus petition in 1997 in U.S. District Court contesting his conviction. The court denied the request because the paperwork arrived four days late. Mr. Deskovic and one of his lawyers ? who he said had been misinformed about the deadline for filing ? appealed the decision to the federal appellate court on which Judge Sotomayor sat.

Judge Sotomayor, along with the other judge on the panel, ruled that the lawyer's mistake did not "rise to the level of an extraordinary circumstance" that would compel them to forgive the delay. There was no need to look at the evidence that Mr. Deskovic insisted would affirm his innocence, they said.

Mr. Deskovic spent six more years behind bars, until DNA that had been found in the victim not only cleared him but connected another man to the crime.

Habeas corpus petitions are rarely granted, and Mr. Deskovic knew that all along. Federal judges routinely deny them, including for purely procedural reasons. But he listened as Mr. Obama, in seeking a new Supreme Court justice, talked about how he wanted a judge with not only great intellect but also great empathy, a judge who knew how the real world worked and who could apply some common sense.

And so Mr. Deskovic is angry. All over again.

"When we filed the appeal, I thought for sure that she and the other judge were going to see the facts of the case, that this wasn't an error of my doing and that upholding a ruling like that would be a miscarriage of justice," Mr. Deskovic said.

Mr. Deskovic ? who since his release has graduated from college and enrolled in a master's program in criminal justice ? is not sure any other judge would have treated his appeal differently. But he wants his anger aired.
"To hear that a judge who put procedure over innocence could be moving to a higher court is very upsetting to me," he said.

Mr. Deskovic was arrested in 1989 after the police found the body of the classmate, 15-year-old Angela Correa, at a park in Peekskill, about 45 miles, or 70 kilometers, north of New York City. Investigators focused on him in part because he seemed unusually distraught over the killing.

After several hours of questioning ? and after being promised that he would go home if he admitted to the murder ? Mr. Deskovic confessed.

DNA extracted from semen found in Ms. Correa's body did not match Mr. Deskovic's, but prosecutors said at his trial that it was because Ms. Correa had had consensual sex with another man before being attacked. Jurors returned a guilty verdict.

In his petition, Mr. Deskovic contested the constitutionality of his conviction, saying that it resulted from a coerced confession and that the DNA offered proof of his innocence.

Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas corpus petitions must be submitted no more than a year after a conviction becomes final or, as the courts later determined, no more than a year from the act's implementation if the conviction became final before that. Mr. Deskovic was convicted in 1990. He had until April 24, 1997, to turn in his request. It arrived four days after that.

In court papers, the lawyer who drafted the petition said that a clerk had provided the wrong deadline. Judge Sotomayor and her colleague, Judge Rosemary S. Pooler, ruled that the "alleged reliance of Deskovic's attorney on verbal misinformation from the court clerk" amounted essentially to neglect.

"There was at least an explanation, which was all the more powerful because of the question of innocence raised by the DNA evidence, but the court paid no attention to it," said another of his lawyers, Eleanor Jackson Piel, who handled the appeal.

There were aspects of Judge Sotomayor's career that might have given Mr. Deskovic hope. She had spent years on the board of a public interest law group, adopting an aggressive stance on issues like police brutality and the death penalty. She also had a record of concern for the quality of lawyers assigned to represent indigent defendants.

But the odds were stacked against Mr. Deskovic. A 2007 report by Vanderbilt University Law
School and the National Center for State Courts, for example, showed that out of 2,384 randomly selected habeas corpus petitions filed by state prisoners in noncapital cases in 2003 and 2004, only seven were granted.

Also, it is rare for appellate judges to reverse a lower court's decision that is based on precedent and stands on solid procedural grounds, explained Jamal Greene, a professor at Columbia Law School.

"She's a very careful judge, and, as far as I can tell, very much believes in the rule of law," Mr. Greene said of Judge Sotomayor.

Mr. Deskovic said that he might be able to understand what happened, but he could never forgive.

"There was a brief moment that I wondered what she would say to me to explain her ruling," he said. "But then I thought that, even if she justified it, it still wouldn't change anything for me. I'm never going to get back the time that I lost."