A Single Line Changes History
It is a single line on Page 120 of the appendix to Judge Sonia Sotomayor's Senate Judiciary Committee questionnaire - the document listing all of the cases the U.S. Supreme Court nominee has heard as a federal Court of Appeals judge.
But it is the only one of the judge's cases that really matters to Jeffrey Deskovic, who spent nearly 16 years in prison for a Peekskill murder he did not commit.
In April 2000, Sotomayor and a colleague on the 2nd Circuit Court of Appeals, Judge Rosemary Pooler, upheld a court ruling refusing to overturn Deskovic's conviction. Neither court considered the DNA evidence that he argued would exonerate him - because his lawyer submitted the writ of habeas corpus paperwork four days late in 1997.
Without the new look, Deskovic would spend six more years in prison. He was finally exonerated in 2006, after a DNA match linked another inmate to 15-year-old Angela Correa's 1989 killing, and that man, Stephen Cunningham, confessed.
She put procedure over justice. We're talking about a man's life," said Deskovic, who opposes Sotomayor's nomination and wants the opportunity to speak at her Senate confirmation hearings. "She, in effect, condemned me to serve a life sentence in prison for something I was innocent of without even looking at my innocence issue."
Deskovic's anger has settled for years on the police who forced his false confession and the prosecutors who exploited it to win the conviction. Although Jeanine Pirro was not the district attorney at the time of his conviction, she joined the list in the mid- 1990s, when she rejected his request to have the DNA evidence retested.
But he also harbored resentment about all of the appellate rulings that went against him as he languished in prison.
So Sotomayor's name was painfully familiar when he heard President Barack Obama had nominated her for the nation's highest court.
"I was immediately concerned with what that would mean for other people who were wrongfully convicted," Deskovic said.
What particularly rankled him was that Obama had tapped Sotomayor for her empathy. Where was her empathy, Deskovic wondered, when she could have overlooked the procedural flaw in his filing?
"The bedrock principle of our justice system is supposed to be that innocent people are released and guilty people are punished," he said. "That's the intent of the law, so on that level what she did was not what the law called for. "
Deskovic knew that habeas corpus applications were almost always rejected. But he contended that his constitutional rights were violated by the way detectives got him to confess.
His more compelling argument, which turned out to be right, was that semen found on Correa was not his and likely belonged to the real killer. The prosecutor at his 1990 trial explained away the DNA evidence by arguing that the 15-year-old girl could have had consensual sex with someone before she was killed.
Deskovic, just 17 at the time, was convicted of murder and sentenced to 15 years to life in prison.
He exhausted his state appeals years later and he had until April 24, 1997, to file the habeas corpus petition. A lawyer in Georgia handling his case had asked a court clerk about the deadline and was incorrectly told it had to be mailed by April 24, not received.
Sotomayor and Pooler found that the lawyer's reliance on that misinformation amounted to neglect "that does not rise to the level of an extraordinary circumstance" that would compel them to ignore the missed deadline. They were not persuaded that Deskovic's case had "substantive merit."
At the time, Deskovic found the rejection "traumatic, surreal," not understanding how a four-day paperwork delay could keep an innocent man behind bars.
"I couldn't believe the courts would make such an unjust ruling," he said
Bennett Gershman, a professor at Pace University School of Law, said he understood Deskovic's frustration after the fact. But the ruling would have been made by any appellate judge hearing the case, he said.
"Judge Sotomayor was following the law. It was unexceptional; it was not surprising," Gershman said. "You don't get to the merits on a habeas case unless the petition satisfies the procedures. ... Procedures often trump the merits."
Deskovic, now 35, lives in Tarrytown and spends much of his spare time speaking and writing about wrongful convictions. He graduated from Mercy College last year and is pursuing a master's degree at John Jay College of Criminal Justice. He has long been frustrated that key players in his case were never disciplined, but kept their jobs and even got promoted. Now he sees it happening with Sotomayor. He has set up a Facebook group encouraging people to write to their senators opposing Sotomayor's confirmation and urging that Deskovic get a chance to tell them in person of his ordeal. He is frustrated that politics seems to be trumping justice. Democrats, he said, likely would have raised the issue if Sotomayor was nominated by a Republican president, and don't want to stand in the way of Obama's choice.
Republicans don't raise his issue, Deskovic said, because they like it when judges rule against prisoners.
"If the senators are OK, if the world's OK, if the media's OK with what happened to me, don't report it, don't use my case. Confirm her," he said. "But if it's not OK, then will somebody please take a moral stand?"
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