New York Court of Appeals Chief Justice Janet DiFiore’s recent unexpected announcement that she will step down in August, amid a lawsuit filed against her with the New York State Commission. York on Judicial Ethics, gave me the opportunity to reflect on his tenure as leader. judge of the Court of Appeals, as well as his time as a Westchester County prosecutor. Considering that her career has taken her to two of the most powerful positions in New York, I decided to reflect on her and her legacy.
While I was wrongfully imprisoned for a murder and rape I didn’t commit, then Westchester prosecutor DiFiore allowed me to get DNA tests through the DNA databank, which his predecessor, Jeannie Pirro, would not have done. The results matched Steven Cunningham, the real perpetrator, whose DNA was only in the database because, let free while I was imprisoned for his crime, he killed a second victim three and a half years later . DiFiore agreed to dismiss the charges against me on grounds of genuine innocence, Cunningham was charged, and a public report detailing the breakdowns in the justice system that led to my 16 years of wrongful imprisonment was released.
I became an advocate against wrongful imprisonment and created the Jeffrey Deskovic Foundation for Justice, which helped free 11 people and pass nine laws. I also became a lawyer.
Holding two of the most powerful offices in the state, DiFiore accepting my exoneration should have been the first of many steps she had the ability to take to infuse more justice into the justice system. Instead, she squandered the opportunities that few receive.
Chess as Westchester DA
There were immediate signs that my case was a one-time, never-repeated action on his part. First, despite coerced confessions, fabrication of other evidence, medical examiner fraud, an incompetent public defender, and refusal to go for further DNA testing, in countless media appearances , DiFiore has repeatedly called my case “fairly investigated.” .” This eventually forced me to correct the record by writing an editorial against this idea.
My civil rights attorney contacted DiFiore to audit other cases in which autopsies were performed by former Westchester County Medical Examiner Louis Roh in light of his fraud in my case, which allowed the prosecution to overcome the pre-trial DNA exclusion. His fraud cost the county six million dollars. We found three other instances where he altered his findings to better fit the prosecution’s theory. But DiFiore refused. DiFiore’s office has disappointingly fought off possible exonerations of Selwyn Days, who served 17 years in prison for a double murder, and Kian Khatibi, who served 10 and a half years. His office even refused to meet with The Exoneration Initiative, which represented Days.
During Ed Whitney’s trial, which resulted in his conviction, I saw one of DiFiore’s prosecutors argue to the jury that “identification trumps DNA exclusion.”
While the report published in my case listed numerous criminal justice reform measures that could be enacted through legislation to prevent future wrongful convictions, DiFiore never used his platform to speak out in favor of the reforms, myself and other defenders spent year after year in Albany pushing.
An unethical confirmation process that she authorized
As I argued at the time, the State Senate confirmation hearings for DiFiore’s nomination to the Court of Appeals were themselves a sham and emblematic of his lack of fairness and ethics. . My name and case was thrown out by the State Senate as a reason why she should be confirmed.
Based on the Days and Khatibi cases, and DiFiore’s lack of action on measures to prevent wrongful convictions, I opposed confirmation. I wrote to the Senate Judiciary Committee, setting out my reasons and asking to testify. A lawyer also wrote an additional letter for me. No one opposing his confirmation was allowed to testify. Therefore, the procedure was a sham and an injustice.
Someone with morals, ethics and nothing to hide would have done their part to insist that the opposition be allowed to testify and then addressed all the issues I raised.
But DiFiore remained silent.
Failures as Chief Justice
Under DiFiore, the Court of Appeals has been a disappointment.
The court granted leave to very few defendants and almost always ruled in favor of the prosecution on questions of law. While I acknowledge that even as Chief Justice she had only one voice, I am not aware of any impassioned dissent she issued in favor of the defendants.
Instead, the court often ruled as if it were an extension of law enforcement whose job it was to protect the public by finding ways to uphold convictions rather than acting as neutral arbiters of justice. The John Giuca decision was particularly disappointing.
Giuca, convicted of murder, had his conviction overturned for prosecutorial misconduct by the appeals division after the suppression of exculpatory evidence favorable to Giuca denied him a fair trial. The Court of Appeal restored his conviction in a 7-1 decision which argued that the misconduct was “harmless”. Of course, if the misconduct was harmless, why would the prosecution bother to engage in it? Moreover, was not the fact that a defendant had his right to a fair trial violated, an impossible subjective decision as to whether Giuca would have been convicted anyway? In terms of deterrence, this decision continued to send a message to New York prosecutors that despite the recent issuance of its landmark discovery bond order, the court would not respect the rights of the accused.
In a justice system where wrongful convictions are frequently upheld – often rubber stamped – so much so that the average length of a wrongful conviction is 14 years in DNA cases; in a system where technicalities are often used to enforce beliefs; in which courts are more concerned with proceduralism than substantive justice, DiFiore could have infused more justice into the justice system.
She could have spoken out against judicial complacency by defending the state and federal constitutional rights of defendants, she could have worked to exculpate by reviewing old cases by Dr. Roh – which has still not been done – and she could have spoken out loudly in favor of many in need of judicial reform.
But DiFiore did none of that, and because of her inaction, she squandered rarely-obtained opportunities to breathe justice into the justice system.
The author is executive director of the Jeffrey Deskovic Foundation for Justice, criminal justice advocate, exonerated, and lawyer.