COUNTY COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER, NINTH JUDICIAL DISTRICT
–––––––––––––––––––––––––––––––––X
JEFFREY DESKOVIC,
Defendant - Petitioner
Indictment No.: 90-00192
AFFIRMATION IN
SUPORT OF MOTION
FOR POST-CONVICTION
DNA TESTING
v.
THE PEOPLE OF THE STATE
OF NEW YORK,
Respondent
–––––––––––––––––––––––––––––––––X
NINA MORRISON, an attorney duly admitted to practice law in the State of New York,
hereby affirms under penalty of perjury that the following is true and correct:
1.
Unless otherwise specified, all statements made in this affirmation are based upon
information and belief; inspection of the record in this case; information secured from
conversations with Petitioner, State actors, and other persons with knowledge; and
examination of the various briefs and other pleadings filed in connection with this matter.
2.
Petitioner Jeffrey Deskovic was convicted of rape, felony murder, and related
offenses in 1990. He is currently represented by Nina Morrison, and Barry Scheck, Staff
Attorney and Co-Director of the Innocence Project, respectively. The Innocence Project
is a legal clinic affiliated with the Cardozo School of Law that provides pro bono
representation to convicted persons who seek to prove their innocence through DNA
evidence. In its fourteen years of existence, the Innocence Project has been responsible
in whole or in part for exonerating more than 80 of the 180 men exonerated by postconviction DNA analysis in the United States to date. In over forty of these cases, DNA
1
testing not only exonerated the wrongly convicted person, but also led to the
identification of the actual perpetrator.
3.
The purpose of the Innocence Project’s representation in this case is to secure
DNA testing on evidence from Petitioner’s case that could prove his innocence by
identifying the true perpetrator of the crime—whether through a “hit” in the CODIS
DNA databank or by direct comparison to individual suspect(s). Specifically, Petitioner
requests that this Court order the State to permit the evidence collected in connection
with the above-titled action to be subjected to Short Tandem Repeat (“STR”) DNA
testing, which could vindicate his claim that he is innocent of the rape and murder for
which he was convicted in accordance with New York Criminal Procedure Law
§440.30(1-a).
4.
This is a somewhat atypical case under CPL Section 440.30(1-a) in that DNA
testing was conducted pre-trial, with exclusionary results; however, the specific grounds
and technological advances upon which Petitioner seeks retesting were unavailable at that
time. In January 1990, the Peekskill Police Department submitted a sample of
Petitioner’s blood and a sample of the semen recovered from the victim’s vaginal swabs
to the F.B.I. See Infra ¶ 29. Although rudimentary in contrast to what is currently
available, the RFLP-DNA analysis performed at that time was still able to exclude
Petitioner as the donor of the semen. At trial, in order to resolve the discrepancy between
their charge of rape/murder and the presence of another man’s semen, the People argued
that the semen likely belonged to a young man believed to be a consensual partner of the
victim’s, although, upon information and belief, his sample was not tested.
2
5.
The CODIS convicted-offender and unsolved-crimes DNA databank was
developed in the late 1990s, long after Petitioner’s trial. Now, however, its vast
capabilities will permit the DNA profile of the semen donor in Petitioner’s case, upon retesting using current methodology, to be instantly compared to DNA from millions of
convicted felons and evidence collected in unsolved crimes, potentially providing
dispositive new evidence to support Petitioner’s longstanding claim of innocence.
6.
Such was the case with Douglas Warney, who was released from a Rochester
prison on May 16, 2006 after DNA re-testing and a CODIS “hit” proved he had been
wrongfully convicted of murder in Rochester, NY in 1997. Before trial, testing on
biological evidence excluded Mr. Warney as the source of non-victim blood found at the
scene, but the State continued to prosecute him, as they did Petitioner, based on a
confession he had made to the crime. When the evidence was re-tested nine years later,
the DNA profile from blood found at the scene was entered into CODIS where a “cold
hit” identified another prisoner, Eldred Johnson, as its source. When confronted with the
evidence against him, Johnson confessed to the murder for which Mr. Warney had
wrongly served nine years in prison, and Mr. Warney was freed. See Infra ¶¶ 55-56.
Crime
7.
Fifteen-year old Angela Correa (“the victim”), a 5’4”, hundred-six-pound
Columbia native who moved to Peekskill in 1987, was quiet and reserved. (Trial
Transcript (“Tr.”) at 22-23, 1283.) 1 She lived in White Plains, New York with her
mother, stepfather, and younger sister, Diana. (Tr. at 23, 25.)
1
The Innocence Project is in the process of obtaining the complete transcript from the
underlying proceedings. As the complete transcript has not yet been obtained, certain
citations to the Trial Transcript (Tr.) pages 1-9, 62-167 and 427-682 are taken from the
3
8.
Around 2:30 in the afternoon on November 15, 1989, the victim left school and
went home to change clothes. She left her house about an hour later for a school
photography project, carrying her camera, camera accessories, and a cassette player. (Tr.
at 27-28.) When the victim did not return home that evening, her family reported her
missing to the Peekskill Police Department. (Tr. at 34.) An older gentleman, William
Harrison, saw the victim’s missing persons photograph and, in the morning of November
17, 1989, reported to the police that he had seen her taking photographs at around 3:30
p.m. on November 15. (Tr. at 34-35.) At around 11:00 a.m. on November 17, 1989,
police dogs located the body of the victim at “the pit,” a wooded area frequented by
teenagers to drink and “make out” around Griffen’s pond in Peekskill. (Tr. at 17, 19, 20,
22, 34, 36, 169.)
Crime Scene Investigation
9.
The victim was found in the supine position naked from the waist down excepting
her socks; her breasts were exposed from under her shirt and sweatshirt, and she was
partially covered with leaves. Her jeans and underwear2 were rolled into a ball between
her legs, and her shoes were at her feet. (Tr. at 33-34, 37, 189-191, 1276-1278.) She had
been beaten, raped and strangled. (Tr. at 1283-1287, 1291-1302, 1305-1309.)
10.
The clothes that remained on the victim were positioned unusually. While the
victim’s right arm was inserted into her right sleeve, the rest of the sweatshirt was rolled
over and mixed with dirt. One of her pant legs was inside out, and dried dirt on her shoes
was thicker on her toe than on her heel on the right shoe and thicker on the heel than the
Brief of Defendant-Appellant, People v. Jeffrey Deskovic, 90-01563, submitted to the
New York Supreme Court Appellate Division, Second Department, Apr. 16, 1991.
2
The victim’s underwear had a sanitary napkin secured in place. See Forensic Science
Laboratory Report No. 89-440 (Aug. 23, 1990).
4
toe on the left shoe. (Tr. at 189, 248-49, 1278-79, 1311.) A note written by the victim,
stating in part, “Dear Freddie, those eyes, they kill me,” was found under the victim’s
body. (Tr. at 23-24, 244-45, 1490.) It was later determined that the intended recipient
was a boy named Freddie Claxton. Mr. Claxton was in the same sophomore class as the
victim at Peekskill High School and lived in an apartment complex near Griffens Pond.
He was dating another girl at Peekskill High School, Ruth Vega. 3 (Tr. at 26-27.)
11.
The Medical Examiner, Louis Roh, and his assistant, Ken Mangrone, were called
to the scene. With Dr. McGurty, the police surgeon, they formally pronounced the victim
dead at 1:08 p.m. on November 17, 1989. (Tr. at 37, 1279.) Before the victim’s body was
removed, they observed bloody discharge coming from the victim’s vaginal area and
fecal material in the anal region. (Tr. at 1277-78.)
12.
The crime scene was littered with a great deal of debris, including empty beer and
soda bottles, broken glass, cigarette butts, and gum wrappers. (Tr. at 18-20, 188, 1277.)
13.
There were three distinct areas that the police identified in which they believed
that various elements of the attack had transpired. Photographs and detailed sketches
were made of all three, and a comprehensive grid search was conducted at each to find
evidence connected to the rape and murder. (Tr. at 192, 196-98, 225, 282-85.) The first,
“Scene 1,” was the macadam path where the police believed that the victim first
encountered the perpetrator; it was determined that he likely tackled her from behind,
forcing her onto her stomach (Tr. at 32.) The police found a cassette player, a cassette,
3
In her statement to the Peekskill Police Department on November 27, 1989, Ruth Vega
stated that she was dating Freddy Claxton at the time that the victim was murdered, and
that her sister, Zorida Vega, was closer friends with the victim than she was. Zorida
Vega was questioned the same day and confirmed the information that Ruth Vega had
provided; she added that the victim had previously mentioned Freddy Claxton’s eyes.
5
and the bag the victim had been carrying with her camera and camera accessories at
“Scene 1.” (Tr. at 38-39, 213-14, 237, 267-68.)
14.
Police believed that the victim was raped at “Scene 2,” 810 feet down an incline
and east of “Scene 1” on the same dirt path. At that site, the police found the victim’s
torn white bra and a piece that had broken off from her cassette player. (Tr. at 38, 203-04,
238, 265, 268.) Impressions had been made by the struggle in the dirt, and leaves in the
area were visibly flattened into a furrow from the assault. (Tr. at 38, 205, 210, 239, 265.)
Next to the footpath there was an impression in the dirt where leaves appeared to have
been flattened out, which could be seen from the nearby path. (Tr. at 203-06, 210-11,
238-39, 243, 250-52, 266, 590, 593.)
15.
Down another incline and a narrow path and an additional 133 feet away, the
victim’s body was found in a depressed part of the ground near “the pit,” a densely
wooded area that was designated “Scene 3.” (Tr. at 187, 201, 240-41, 267-69.)
Underneath the victim’s body, the police found the “Dear Freddie” note she had started
writing earlier that day, crumpled, wet, and partially torn. (Tr. at 173-74, 177, 899.)
16.
On November 18, 1989, a newspaper article printed a diagram of the various
scenes. (Tr. at 777.)
Preliminary Forensic Analysis
17.
Dr. Roh and his assistant, an African-American male in his mid-fifties, performed
an autopsy on the victim shortly thereafter. (Tr. at 39, 328, 1115, 1281.) Seminal fluid
was found on numerous swabs taken from Ms. Correa’s vaginal canal; eight vaginal
swabs in total were collected. (Tr. at 325, 331, 1306.) Subsequent microscopic
examination revealed intact spermatozoa on the vaginal swabs. (Tr. at 1306.) In
6
addition, pubic combings (containing foreign pubic hairs, with at least one said to be of
probable African-American origin) and miscellaneous other hairs were removed from her
body. (Tr. at 39-40, 1281-82.)
18.
Bruises and scratches were found around the victim’s vaginal area, which were
consistent with forced intercourse. An examination of the hymen led Dr. Roh to
conclude that the victim had likely engaged in sexual intercourse on multiple occasions in
the past, due to multiple previous vaginal tears that had completely healed. (Tr. at 130809.) Although Dr. Roh concluded that the sexual intercourse which preceded her death
was clearly the result of forcible rape, he could not determine whether the victim’s
previous sexual relations had been forced or consensual. (Tr. at 1308-09.)
19.
Dr. Roh pronounced the cause of death as asphyxiation by ligature strangulation
and fracture of the skull from blunt trauma.4 He estimated that the murder occurred
between 3:30 and 4:30 p.m. on November 15, 1989, more than twenty-four hours before
the police arrived on the scene. (Tr. at 1283-90, 1299, 1301.) The victim’s neck had
multiple abrasions and scratch marks ranging from one to two inches in length, and her
scalp had a one-and-a-half inch tear on the back right. (Tr. at 1283-84.) Her skull was
fractured, and a depression of about one inch was identified as the location where the
blunt object had struck her head with force. (Tr. at 1285.) The victim also suffered many
additional injuries consistent with skull fracture and ligature strangulation. (Tr. at 12991300.) Contusions on the victim’s face were consistent with the perpetrator striking
blows to her head with his hand. (Tr. at 1292.) Linear abrasions mixed with dirt were
4
Dr. Roh also testified that certain types of manual strangulation, such as the perpetrator
putting his hands over the victim’s nose and mouth and squeezing her throat, would have
also produced the same result. (Tr. at 1302.)
7
identified along the left side of her torso, consistent with the victim being dragged topless
along the macadam path. (Tr. at 1286, 1302-04.)
20.
Biological evidence found on the victim (including hairs and fibers) was collected
and, along with her clothing and bloodied twigs, was sent to the Westchester County
Department of Laboratories and Research to be examined. (Tr. at 196, 292, 1320-23.)
Jeffrey Deskovic: police investigation and pre-trial forensic analysis
21.
Sixteen-year-old Jeffrey Deskovic (“Petitioner”) was a sophomore at Peekskill
High School and had two classes with the victim. (Tr. at 24, 1155.) While not friends,
they had exchanged pleasantries in the hallways, and Petitioner had delivered romantic
messages to her from another friend. (Tr. at 25, 1155, 1158, 1206.) Petitioner described
the victim as “a polite and quiet girl that dressed nicely” whom he had noticed at the pool
the previous summer. (Tr. at 1155, 1158-59.)
22.
Between December 12, 1989, and January 25, 1990, Petitioner spoke with
investigators eight times (Tr. at 736, 742, 745, 1170-71.) At trial, investigators stated that
they had grown suspicious of Petitioner when they discovered that he was late to school
on November 16, 1989, and appeared overly distraught about the death of a girl with
whom he was not close friends, attending three sessions of her wake. (Tr. at 1155-59.)
23.
Between November 18, 1989, and January 25, 1990, Petitioner conducted his own
“investigation” into his classmate’s death, based on personal observation at the scene and
newspaper articles, and communicated his observations to detectives at the Peekskill
Police Department. (Tr. at 736, 742, 745, 1113, 1170.) He remained in contact with the
police for a period of two months, repeatedly and adamantly denying his involvement,
but agreeing to continue assisting in the investigation. Ultimately, in late January 1990,
8
detectives convinced him to take a polygraph test. After being told that he had failed the
test during an intensive, six-hour police interrogation, Petitioner made a statement
implicating himself in Ms. Correa’s rape and murder, then fell to the ground, sobbing in
the fetal position under the polygrapher’s desk. (Tr. at 1188, 1262.)
24.
Detectives Levine and McIntyre had first approached Petitioner around 8:00 a.m.
as he was walking to school on December 12, 1989. (Tr. at 807-08.) They had
specifically sought him out that morning him to ask if he would go to police headquarters
for questioning. (Tr. at 1142-43, 1197-98.) Petitioner went with the detectives to the
Peekskill Police headquarters, where he was questioned for three to three-and-a-half
hours. (Tr. at 808-09, 1146, 1199.) He stated that prior to November 18, 1989, he had not
been to the Griffins Pond area since the spring of 1989, but since learning of the victim’s
death had visited the site. (Tr. at 1156, 1203-04.) Petitioner denied involvement in the
rape and murder of the victim. (Tr. at 1159.) Detective McIntyre told Petitioner that he
did not believe him, but Petitioner continued to assert his innocence. (Tr. at 1209.)
Around 11:00 a.m., Detective McIntyre asked if Petitioner would submit to a polygraph
examination, and Petitioner said no, because he did not trust polygraph examinations. (Tr.
at 1210.) Petitioner then left the police station. (Tr. at 1160.)
25.
The next contact Petitioner had with the Peekskill police was on January 9, 1990.
(Tr. at 811.) Petitioner was standing across the street from the police station around
midnight at a bus stop, and Detective Levine initiated conversation with him. (Tr. at 81112.) Petitioner inquired as to the progress of the investigation, and Detective Levine
responded that it was going “okay.” (Tr. at 812.) Petitioner told Levine that he had been
conducting his own investigation and had various notes that he wanted to share with the
9
police to aid in the official investigation. (Tr. at 813-14.) Detective Levine, who at that
time already viewed Petitioner as a suspect, suggested that he provide a blood sample so
that the police could establish “if he was involved or not” in the rape and murder. (Tr. at
815.) If so, Petitioner could continue to aid the police investigation. (Tr. at 814-816.)
Petitioner agreed to come to the station the following day. (Tr. at 817.)
26.
On January 10, 1990, Petitioner arrived at the police station a few minutes before
4:00 p.m. to meet with Detective Levine. (Tr. at 817-18.) He gave Detective Levine
typed notes that he had made regarding the investigation and his thoughts regarding
potential suspects and friends of Shariff Goodson, another high school student whom
Petitioner believed to be the actual perpetrator of the crime. (Tr. at 828-32.) Two vials of
Petitioner’s blood were collected by Dr. McGurty sometime after 5:00 p.m. and were first
placed in a locked refrigerator before being transferred to the Westchester County Crime
Laboratory in Valhalla the following day. (Tr. at 242-43, 272-73, 706-07, 843-44.)
Petitioner told Detective Levine that he had visited the scene the night before and then
was given a pad and encouraged to draw two diagrams of the scene.5 (Tr. at 692-97, 83942.)
27.
Detective Levine showed Petitioner’s diagrams to Detective McIntyre, who asked
Petitioner if he would go with them to the scene to point out what he had drawn. (Tr. at
1161, 1216-17.) Around 8:00 p.m., a group of detectives traveled to the scene of the
crime with Petitioner. Petitioner pointed to the areas he believed relevant to the crime,
5
The Innocence Project does not have the final transcript for the proceedings which
occurred on November 28, 1990. The version these cites are taken from is paginated as 1
– 1999, rather than sequentially with the rest of the transcript. Based on the official
transcript in possession of the Innocence Project from the following day of the trial
(November 29, 1990) which begins at Tr. 883, the numbers should correspond to official
transcript pages 684 – Tr. 882.
10
identifying them, for example, as “I believe that’s where the body may have been found,
maybe covered up with leaves.” (Tr. at 1162.)
28.
Petitioner was then questioned again at police headquarters about his theories as
to how the crime might have occurred. (Tr. at 1094, 1096-98, 1219, 1223-24.) At
approximately 10:00 p.m., when Petitioner made it clear to the detectives that his theories
were speculative and based on his own “opinions,” Detective Levine drove him home.
(Tr. at 720, 857, 1169, 1224, 1226-12, 1233.)
29.
On January 11, 1990, Lieutenant Tumolo of the Peekskill Police Department
transmitted two vaginal swabs containing spermatozoa as well as dried blood samples
from the Petitioner and from the victim to the F.B.I. for DNA analysis. (Tr. at 414-16.)
In a cover letter enclosing the samples, Lt. Tumolo requested “whatever priority [the
F.B.I.] could provide in expediting [the] case” because of the “enormity of media
attention [and] fear throughout” Peekskill and the “stark viciousness of the crime and
possibility of this being a serial murder.” (emphasis supplied). See Letter from
Lieutenant E. Tumolo, Peekskill Police Department, to Evidence Control Center, F.B.I.
Laboratory, of 1/11/1990 at 2 (“Cover letter to F.B.I.”) (annexed hereto as Exhibit A).
The letter also made clear the Police Department’s view that any DNA results obtained
would be dispositive of the perpetrator’s identity, to wit: “We anticipate the DNA
developed from analyzing the semen evidence will match that from Deskovic’s blood;
hence either incriminating or exonerating him in this matter.” Id.
30.
On January 23, 1990, Petitioner visited Detective Levine at police headquarters to
show him the key that Petitioner stated that he found on the macadam path leading to
Hillcrest Park. Petitioner told police that he believed that the key had belonged to the
11
victim. (Tr. at 1170-71, 1174.) Detective Levine asked Petitioner again whether he
would submit to a polygraph test, “because he kept coming in with more information,”
and Petitioner said he would think about it. (Tr. at 1174.)
31.
Petitioner returned to the police station on January 24, 1990, at about 8:00 p.m.
and told Detective Levine that he wanted to take a polygraph test. (Tr. at 742-43, 85758.)6 Detective Levine told Petitioner to arrive at police headquarters at 9:30 a.m. the
following day to do so. (Tr. at 744, 752-53.)
32.
Petitioner arrived at the Peekskill police station at 9:30 a.m. on January 25, 1990.
(Tr. at 745-47, 863-64.) Ten minutes later, Detectives Levine and McIntyre and
Lieutenant Tumolo left the Peekskill station with Petitioner to travel to Putnam County,
an hour away, for the polygraph examination. (Tr. at 754-55.) At around 11:00 a.m., they
arrived at a law firm/real estate office in Brewster, New York, where Investigator Daniel
Stephens was to conduct the polygraph (Tr. at 754-55, 949.)
33.
Detectives Levine and McIntyre and Lieutenant Tumolo waited in a room fifteen
to twenty feet from where Investigator Stephens, an officer with the Brewster police
department (in plain clothes), was conducting the polygraph and, through electronic
equipment, listened to the examination as it was being conducted. (Tr. at 755-56, 760-62,
868-69, 955, 1036-37, 1069, 1178.) Stephens had previously been instructed by
Peekskill detectives to “get the confession.” (Tr. at 1034-35.)
34.
Petitioner was held in a small room at the Brewster station for at least six hours
straight. He was provided with coffee throughout the day, but had not eaten since before
6
According to a December 12, 1989, police report signed by Detective McIntyre,
Petitioner was asked if he would take a polygraph test and Petitioner refused, saying that
he did not trust them. City of Peekskill, New York, Police Department, Complaint
Follow-Up, Complaint No. 14023, dated Dec. 12, 1989, at 2 (on file with counsel).
12
9:30 a.m. (Tr. at 757-58, 959, 1051, 1087-88, 1251, 1256-57.) During that time, in
between polygraph sessions, Detective McIntyre spent approximately forty-five to fifty
minutes with Petitioner, asking him pointed questions. (Tr. at 1044-47.)
35.
Petitioner told Detective McIntyre that he did not think that he had done well on
the test, and McIntyre agreed with Petitioner’s assessment, telling Petitioner that several
weeks prior he had become convinced of Petitioner’s guilt based on the details he
provided to the police. (Tr. at 1181-83.) Detective McIntyre later testified that Petitioner
expressed agreement, saying that he had “realized” three weeks ago that he might be the
responsible party. (Tr. at 1183.) Between 6:00 p.m. and 7:00 p.m., Petitioner was finally
given food. (Tr. at 868, 1183-84.)
36.
When asked to state what he had done, Petitioner used the third person to describe
the acts committed by the perpetrator, as he had done since their first encounter on
December 12, 1989. (Tr. at 1184-85.) In the middle of that statement, however,
Petitioner shifted his narrative into the first person, i.e., “I lost my temper.” (Tr. at 1185,
1259.) Petitioner stated that he had hit the victim over the head with a Gatorade bottle,
then chased her down the path and tackled her. (Tr. at 1185.) Petitioner said that the
victim started scratching him. (Tr. at 1185.) Shortly thereafter, Petitioner started
“sobbing, crying” and said that he had his hand over her mouth, perhaps for a little too
long, and that he had torn off the victim’s bra. (Tr. at 765-66, 1185.) Detective McIntyre
told the jury that Petitioner, crying very heavily, said:
Please don’t make me say any more. I don’t want to think about what else
I did up there…No one will understand. They won’t believe me like you
do. They won’t understand that I didn’t mean to do this. I just couldn’t
stop it. How can I face the kids at school? They’ll know that I sometimes
do things that I can’t control.
(Tr. at 1185-86.)
13
37.
Detective McIntyre left the room and Lieutenant Tumolo and Investigator
Stephens entered and asked Petitioner to repeat what he had just said. (Tr. at 1186.)
Petitioner repeated that he did not want to say any more and then fell to the ground,
where he curled into the fetal position, sobbing under the desk. (Tr. 1188, 1262.)
38.
Petitioner was immediately placed under arrest for Ms. Correa’s rape and murder.
(Tr. 979, 1153, 1271.) The detectives drove him from Brewster back to Peekskill
beginning at approximately 7:00 p.m. (Tr. at 758, 1263-64, 1271.)
39.
Two months after Petitioner’s arrest, on March 2, 1990, Agent Deadman of the
F.B.I. notified Lieutenant Tumolo that the RFLP-DNA testing requested on January 10,
1990, had been completed. The results showed that Petitioner was conclusively excluded
as the source of the semen on the vaginal swabs taken from Ms. Correa at autopsy. (Tr. at
419, 422.) Rather than dismiss the case against Petitioner (as indicated it would if such
“exonerating” results were obtained in its initial letter to the F.B.I.), the State opted to
continue to prosecute Petitioner for the crime, using a new theory to explain the source of
the unidentified semen inside the victim.
Trial
40.
Petitioner was charged with murder in the second degree under three separate
legal grounds (intentional murder, depraved mind murder, and felony murder); rape in the
first degree; and criminal possession of a weapon (a glass bottle) in the fourth degree.
(Tr. at 12-16.)
41.
At trial, the People contended that Petitioner had raped and murdered the victim
after abducting her near the area where her body was found. To get to Griffens Pond, the
victim walked through a wooded area to get to a macadam path that would lead her to
14
“the pit,” taking photographs along the way. (Tr. at 29.) While on the path, the People
argued, Petitioner tackled her from behind, landing on her stomach. (Tr. at 32.) The
victim tried to fight off the perpetrator as he rolled her onto her back, scratching him with
her nails as he ripped off her bra, struck her head and face, and vaginally raped her. (Tr.
at 32-33.) The People contended that Petitioner placed his hands over her mouth, nose
and throat, and the victim lost consciousness and was dragged, partially clothed, into a
hallow. (Tr. at 33-34.)
42.
The People’s case rested almost exclusively on the tearful confession that
Petitioner made during his final police interrogation in Brewster on January 25, 1990, and
on his prior statements to detectives regarding his “opinions” as to how the crime had
occurred. Although there was a wealth of forensic evidence collected from the crime
scene and Ms. Correa’s body at autopsy, all of which was subjected to extensive analysis,
not a single item was attributed to Petitioner. For its part, the defense contended that the
confession was given by a vulnerable young man under extreme police pressure, and that
the forensic evidence (particularly from the semen) established that the confession was
false and that Mr. Deskovic was innocent of the rape and murder.
43.
The jury was told about the exclusionary results from the F.B.I.’s RFLP-DNA
testing on the semen from Ms. Correa’s vaginal swabs. (Tr. at 417-19.) At trial, the
People conceded that Petitioner was not the source of the semen, but argued that the
confession nonetheless established his guilt. Although no further forensic testing was
performed to identify the actual source of the semen, the People contended that it was
likely from a prior consensual sexual partner of the victim’s.
15
44.
Specifically, the State claimed that Petitioner raped and murdered the victim in a
jealous rage because she was romantically interested in Freddy Claxton and not
Petitioner. (Tr. at 26-27, 610-18, 906-07.) This alleged motive was based exclusively on
the “Dear Freddie” note found at the crime scene and Petitioner’s statement to police that
he had found the victim attractive. There was no other evidence that Petitioner fostered
romantic feelings for the victim, or had ever expressed jealousy of her relationship with
Claxton or any other boy. (Tr. at 610-18.)
45.
Significantly, the State was not able to identify the actual source of the
spermatozoa found in the victim. Upon information and belief, Freddie Claxton—whom
the State argued was “probably” the source of that sperm—was never ordered to give a
DNA sample for comparison purposes. (Tr. at 1492-93.)
46.
In addition, the State’s experts excluded Petitioner as the source of the numerous
hairs and fibers found on the victim and on evidence in the surrounding area. On April
16, 1990, hair analyst Dr. Peter DeForest received numerous slides containing hairs and
fibers for trace and transfer evidence analysis. (Tr. at 359-61.) On September 7, 1990, he
was also provided with hair exemplars from Petitioner, including head and pubic hairs.
(Tr. at 361.) He identified the hair removed from the victim’s right foot as a fragment of
“Negroid origin,” and the hair found on the victim’s right breast as a “Caucasoid” head
hair, for which he could not exclude the victim as the source. (Tr. at 375-77, 388, 393.)
DeForest also examined the hair retrieved from the pubic combing, which he identified as
a non-pubic, growing “Mongoloid” hair. (Tr. at 376-77.) A shed, medium-brown, nongrowing Caucasian pubic hair was also compared with both the victim and the Petitioner,
and Petitioner was excluded as its source. (Tr. at 379-81, 391-92, 394.) DeForest asked
16
for, but was not provided with, a sample of hair from Dr. Roh, the medical examiner who
performed the autopsy and who was of Korean lineage. (Tr. at 337, 385.)
47.
Petitioner’s fingerprints were not found when the victim’s cassette tape, cassette
player, “Dear Freddie” note, and the bottles, twigs, and Gatorade bottle top found at the
scene were forensically examined. (Tr. at 267, 276-79, 282, 292, 294, 283-85, 592-93,
596, 768, 771, 895, 1137.)
48.
At trial, the Court permitted the detectives to testify regarding the statements they
reported that Petitioner had made in Brewster on January 25, 1990, but excluded the
actual results of the polygraph examination. (Tr. at 922, 946, 1182.)
49.
On December 7, 1990, after a jury trial in this Court, Petitioner was found guilty
of felony murder, rape in the first degree, criminal possession of a weapon in the fourth
degree, and depraved indifference murder. On January 18, 1991, he was sentenced to
fifteen (15) years to life for murder, eight and one-third (8 1/3) to twenty-five (25) years to
life for rape and one (1) year for possession of a weapon, to run concurrently.
ARGUMENT
I.
Advances in Post-Conviction DNA Testing Since Petitioner’s Trial
50.
Since the time of the Petitioner’s 1990 conviction and sentence, a revolution in
science and law enforcement has taken place. While available for limited purposes
during Petitioner’s trial in 1990, in the ensuing fifteen years DNA evidence has become
the foremost forensic technique for identifying perpetrators and eliminating suspects
when biological tissues such as saliva, skin, blood, hair, or semen are left at a crime
scene. See Nat’l Inst. of Justice, Office of Justice Programs, U.S. Dept. of Justice,
17
Postconviction DNA Testing: Recommendations for Handling Requests, Publ’n No. NCJ
177626 at 1 (Sept. 1999).
51.
These advances have largely been made possible through the development of
STR-DNA testing and state and federal DNA databases in the last five years. These
databases, which contain inventories of millions of STR-DNA profiles from unsolved
cases and from convicted offenders, are solving old and new crimes at unprecedented
rates. Law enforcement officials now have the ability to definitively link known suspects
to crimes and identify previously unknown perpetrators through “cold hits” to these DNA
databanks, which were unheard of at the time of Petitioner’s 1990 trial.
52.
For example, from April 2000 to October 2003, approximately 1200 convicted
felons in New York were connected to unsolved crimes through the State’s DNA
database. See Michael Zeigler, “DNA ‘Cold Hits’ Put Freeze on Felons,” ROCHESTER
DEMOCRAT AND CHRONICLE, Oct. 20, 2003, at 1A (describing the significant role of
DNA identifications in solving unresolved crimes in New York State). Through March
2006, CODIS, the F.B.I.’s Combined DNA Index System, has resulted in 33,168
“investigations aided.”7 In New York alone, there have been 3,919 “investigations
aided” through CODIS. Id. With more than ten percent of the nation’s total, New York
is second only to Florida in the number of cases in which CODIS has yielded a DNA
match that otherwise would not have developed.8
Defined as “a metric that tracks the number of criminal investigations where CODIS has
added value to the investigative process.” Fed. Bureau of Investigations, Investigations
Aided, http://www.fbi.gov/hq/lab/codis/aidedmap.htm (last visited May 30, 2006).
8
As of April 2006, Florida was credited with 4,458 “investigations aided,” in contrast to
New York’s 3,919. Fed. Bureau of Investigations, investigations aided,
http://www.fbi.gov/hq/lab/codis/aidedmap.htm (last visited June 5, 2006). Nationally,
34,193 investigations have been aided through CODIS profiles. Id.
7
18
53.
Not only is DNA testing helping apprehend the guilty, but it is also serving to
identify the wrongly accused and convicted. DNA evidence is a method of establishing
the identity of the perpetrator of a crime that is far more reliable than nearly any other
type of identification proof, including eyewitness identification, confessions, or
rudimentary forensic science, such as conventional serology.9 To date, 180 convicted
persons have been proven innocent through post-conviction DNA testing in the United
States. Eighteen of these exonerations occurred in New York.
54.
In several exoneration cases, the same DNA tests led to the identification and
conviction of the true perpetrator through the CODIS databank. Notably, these include
cases like Petitioner’s, in which biological evidence tested prior to trial already excluded
the convicted defendant as the source, yet a post-conviction STR test and CODIS “hit”
later exonerated them. Three examples follow:
a) Douglas Warney (Rochester, NY)
55.
On May 17, 2006, DNA testing excluded Douglas Warney as the perpetrator of
the 1996 murder of William Beason, after a CODIS databank hit on blood from the crime
scene led law enforcement to the real perpetrator. As in Petitioner’s case, at Mr.
9
To illustrate, after identifying a primary suspect and sending evidence for testing at the
F.B.I.’s laboratory, DNA excluded 20 percent of the primary suspects and resulted in a
match with the primary suspect in only about 60 percent of the cases. Nat’l Inst. of
Justice, Office of Justice Programs, U.S. Dept. of Justice, Convicted by Juries,
Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence
After Trial, Pub. No. 161258 at xxviii (June 1996). See also Marcus Franklin, “DNA
Pinpoints a New Suspect in 2003 Slaying,” ST. PETERSBURG TIMES, Jan. 8, 2004, at 1B
(after being entered into the national database, DNA evidence from the crime scene
matched the profile of a convicted sexual predator and cleared a suspect who had been in
jail for one year); “Murder Charge Against Brother Dismissed After DNA Testing,”
CANADIAN PRESS NEWSWIRE, Nov. 4, 2003 (second-degree murder charge against a man
accused of killing his brother dropped due to DNA evidence pointing toward someone
else).
19
Warney’s original trial, the State had no physical evidence linking him to the brutal
stabbing. Indeed, the jury knew there was biological evidence (blood from a donor other
than the victim) that had already excluded Mr.Warney as the source. Yet the State
prosecuted Mr. Warney, and secured a conviction, almost entirely on the basis of a
confession he had given to police before these forensic tests were conducted. Mr.
Warney’s confession, as with Petitioner’s, was said to contain details that only the actual
perpetrator of the crime would know. See Gary Craig, “Innocent Man Freed After 10
Years in Prison,” ROCHESTER DEMOCRAT & CHRON., May 16, 2006; Jim Dwyer, “Inmate
to Be Freed as DNA Tests Upend Murder Confession,” N.Y. TIMES, May 16, 2006, at
B1, B6; “DNA Is Good for the Soul” (editorial), N.Y. TIMES, May 17, 2006, at A22;
Gary Craig, “Inquiry Urged in Warney Case,” ROCHESTER DEMOCRAT & CHRON., May
18, 2006. (Attached as composite Exhibit B.) Such details included that the victim was
wearing a nightgown, that he had been cooking chicken, and that the killer cut himself
with a knife and wiped it with a tissue in the bathroom. See Gary Craig, “Inquiry Urged
in Warney Case,” ROCHESTER DEMOCRAT & CHRON., May 18, 2006.
56.
Once STR-DNA testing was conducted and the profile obtained from blood
evidence retrieved at the scene was entered into CODIS, however, a “cold hit” revealed
that Eldred Johnson—a New York inmate already serving a life sentence for a series of
burglary and stabbing offenses with a highly similar modus operandi—was the actual
perpetrator of the murder. When Johnson was questioned, he told investigators that he
had, in fact, committed the crime and had done so alone. Id. Mr. Warney’s conviction
was vacated by the Supreme Court of Monroe County upon a joint motion by the District
Attorney of Monroe County and Mr. Warney’s lawyers at the Innocence Project. The
20
case received national media attention; on the same day that the Court vacated Mr.
Warney’s conviction, Governor Bredesen of Tennessee granted a two-week stay of
execution to death row inmate Sedley Alley, to whom both courts and prosecutors had
refused DNA testing, so that the courts could reconsider his request for DNA testing and
a CODIS search. See Jim Dwyer, “Lawyers Elsewhere Take Note as a New York Man is
Freed by DNA Tests,” N.Y. TIMES, May 17, 2006, at B1.
b) Entre Nax Karage (Dallas, TX)
57.
In 1997, Entre Nax Karage was convicted of the murder of his 14-year-old
girlfriend; both were Asian-American. Although sperm from an unknown male was
found in the victim’s vagina, as in Petitioner’s case, the State argued that it came from a
consensual sexual partner of the victim’s. It contended that Mr. Karage had killed her in
a jealous rage because she had been unfaithful. At trial, the evidence presented to
support this theory of guilt included prior allegations of violent behavior by Mr. Karage
against the victim; contradictory statements that he had made about his whereabouts on
the day of the murder; death threats that he had made against both the victim and another
boyfriend of hers; and blood found on the defendant’s clothes and in his vehicle, although
that blood could not be further typed. State v. Karage, 1999 WL 454638, 1, 5, 6 (Tex.
App. 1999) (not designated for publication).
58.
After conviction, however, advanced DNA testing on the sperm from the victim’s
vagina was ordered under Chapter 64 so that the profile could be run in the CODIS
databank. When the STR-DNA profile from the sperm donor was entered into CODIS, a
“cold hit” linked the DNA (with 1-in-51.8 quadrillion odds) to Keith Jordan, an African
American man who had been previously convicted for aggravated sexual assault of
21
another 14-year old girl in the same neighborhood. State v. Karage, Agreed Findings of
Fact and Conclusions of Law, Writ No. 2, 5 (Dallas County, June 2004) (on file with
counsel). Amazingly, Mr. Jordan had been on trial for rape in the same courthouse, in
the same month as Mr. Karage’s murder trial.10 With the support of the District Attorney
and the trial court, the Texas Court of Criminal Appeals vacated Mr. Karage’s conviction.
Ex parte Karage, 2005 WL 2374440 (Tex. Crim. App. 2005) (not designated for
publication). On December 22, 2005, Governor Perry granted Mr. Karage a full pardon
on grounds of actual innocence. See Mary Alice Robbins, “DNA Test and Lawyer’s
Tenacity Lead to Client’s Exoneration,” TEXAS LAWYER, March 15, 2004, at 1.
c) Robert Clark (Atlanta, GA)
59.
In 1981, a Georgia woman was abducted by a thin black man, who, at 5’7”, stood
only one inch taller than the victim. After she was repeatedly raped, the attacker stole her
car. The police arrested Robert Clark after he was found driving the victim’s stolen car.
The victim identified him as the perpetrator in a photo array, a lineup, and in court. Mr.
Clark insisted that the car was given to him by a friend, Antonio Arnold. Since Mr. Clark
was 6’2”, he argued that the victim had misidentified him based on the discrepancy
between her assailant’s height and his own, but he was convicted at trial.11
10
Entre Nax Karage was convicted and sentenced November 25, 1997, in the 282nd
District Court, Dallas County (Cause No. F-9700731-K). Keith Jordan was sentenced on
November 12, 1997, in the 203rd District Court, Dallas County (Cause Nos. F96-78296WP and F97-03223-KP). Ex Parte Entre Nax Karage, State’s Proposed Agreed Findings
of Fact and Conclusions of Law, at 2, 3, filed June 2004 (on file with counsel). Both the
203rd and 282nd District Courts are housed in the Frank Cowley Courts Building.
11
See Bill Rankin, “DNA Absolves Inmate of 1981 Rape,” THE ATLANTA JOURNALCONSTITUTION, Dec. 8, 2005; Don Plummer, “Free: Wrongly Convicted Man Savors the
Days,” THE ATLANTA JOURNAL-CONSTITUTION, Dec. 9, 2005.
22
60.
When post-conviction DNA testing was conducted in 2005, the results excluded
Mr. Clark; after twenty-three years in prison for a crime he did not commit, he was
immediately freed from prison. Further, when the DNA profile was entered into CODIS,
Antonio Arnold—the man whom Mr. Clark had originally told the police had given him
the victim’s car—was identified as the source of the sperm in the victim’s rape kit.
Arnold’s DNA was also linked to two other unsolved rapes, and those charges are now
pending against him.12
II. DNA Testing: Statutory and Constitutional Framework
61.
The importance of post-conviction DNA testing was codified by the passage of
Criminal Procedure Law Section 440.30(1-a), which became effective on August 2, 1994.
This statute provides that convicted persons may obtain DNA testing where evidence
containing DNA was secured in connection with their trials and where the court
determines “that if a DNA test had been conducted on such evidence, and if the results
had been admitted in the trial resulting in the judgment, there exists a reasonable
probability that the verdict would have been more favorable to the defendant.” N.Y.
CRIM. PRO. LAW § 440.30(1-a) (2004). The purpose of this statute is to use advanced
scientific technology to test the State’s identification proof—proof that a jury has already
determined to be beyond a reasonable doubt—to determine if a wrongful conviction has
occurred.
62.
In 2004, the New York state legislature amended Section 440.30 of the Criminal
Procedure Law. The amendment eliminated prior language which limited the availability
of postconviction DNA testing to cases adjudicated prior to 1996. The rationale for this
Bill Rankin, “Rape Case Shifts to New Subject,” THE ATLANTA JOURNALCONSTITUTION, Dec. 15, 2005.
12
23
limitation was that post-conviction DNA testing should only be made available to
individuals who did not have access to such testing at the time of trial, as was the case
throughout the early 1990s. This expansion, which enjoyed broad support from the New
York State District Attorney’s Association, the New York State Crime Victims Board,
and the New York Department of Correctional Services (among other groups), recognizes
the ever-advancing nature of DNA technology and effectively permits postconviction
DNA testing with newer methods even when other DNA testing techniques were
available at trial. Under this rationale, there is every reason to perform additional (STR)
DNA testing on the samples from Petitioner’s 1990 conviction, in order to take advantage
of new testing and comparison techniques that could lead to identification of the actual
perpetrator.
63.
Unlike the relatively primitive RFLP-based DNA testing predominant through the
mid-to-late 1990s, STR technology can yield accurate, comprehensive DNA results from
minute traces of biological material, even if that material comes from decades-old
samples stored under poor conditions.13 It is also a highly discriminating method of
DNA testing. For example, the probability of an STR-DNA match between two
13
See, e.g., Tamyra Moretti and Bruce Budowle, The CODIS STR Project: Evaluation of
Fluorescent Multiplex STR Systems, presented at the 50th Annual Am. Acad. of Forensic
Sci. Meeting, Feb. 9, 1998 (“STR typing results can be routinely achieved from typical
forensic specimens, including degraded and low-quantity DNA samples…STR typing is
robust, accurate, highly sensitive, and suitable for forensic application”); I. Findlay, et al.,
DNA Fingerprinting From Single Cells, 389 NATURE 555 (1997) (noting that STR-DNA
testing can often yield reliable results from even a single cell of biological material).
24
unrelated persons in the Caucasian American population is conservatively estimated to be
1 in 575 trillion – exceeding the size of the world’s entire population.14
64.
STR-DNA testing was not validated for use in laboratories nationwide until
1999.15 New York courts first held STR-DNA results admissible in criminal proceedings
in 2001, finding that the technique had quickly attained “widespread use in forensic
laboratories because low amounts of DNA even in degraded form can be successfully
typed.” People v. Owens, 725 N.Y.S.2d 178, 182 (N.Y. Sup. Ct. 2001).
65.
The due process clause of the New York state constitution, N.Y. CONST. art 1, § 1,
has also been interpreted to require prosecutors to disclose exculpatory DNA evidence
after conviction. Before the enactment of Section 440.30(1–a), New York courts
recognized that “notwithstanding the absence of a statutory right to post-conviction
discovery, a defendant has a constitutional right to be informed of exculpatory
information known to the State.” Dabbs v. Vergari, 570 N.Y.S.2d 765, 767 (N.Y. Sup.
Ct. 1990) (citations omitted). The Dabbs court granted petitioner’s motion for DNA
testing of a rape kit, a gauze pad, and the victim’s clothing, id. at 768–69, upon
petitioner’s showing that this evidence was material to his guilt, id. at 767, and in keeping
with the principle that “[t]he State's obligation is not to convict, but to see that, so far as
possible, truth emerges.” Id. at 769 (quoting Giles v. Maryland, 386 U.S. 66, 98 (Fortas,
J., concurring)). In granting petitioner’s motion for testing the Dabbs court observed,
[W]here evidence has been preserved which has high exculpatory
potential, that evidence should be discoverable after conviction.
Nat’l Inst. of Justice, Office of Justice Programs, U.S. Dept. of Justice, The Future of
Forensic DNA Testing: Predictions of the Research and Development Group, Publ’n No.
NCJ 183 697 at 25 (Nov. 2000).
15
See John M. Butler, Forensic DNA Typing: Biology and Technology Behind STR
Markers 9 (Academic Press, 2001).
14
25
Due Process is not a technical conception with a fixed content
unrelated to time, place and circumstances. It is flexible and calls
for such procedural protections as the particular situation demands.
Clearly, an advance in technology [such as DNA testing
unavailable at trial] may constitute . . . a change in circumstance.
Id. at 768 (internal citations omitted). In the instant case, as in Dabbs,16 “to deny
petitioner the opportunity to prove his innocence with such evidence simply to ensure the
finality of convictions [would be] untenable.” Id. at 769.
III. Petitioner Meets the Requirements of C.P.L. § 440.30(1-a)
66.
Post-conviction STR-DNA testing in this case is capable of conclusively
establishing Petitioner’s innocence by identifying the true perpetrator of Ms. Correa’s
rape and murder, whose DNA profile may be stored in the State and/or the National
offender databanks, as well as by linking that DNA to other unsolved crimes that
Petitioner could not have committed. At the very least, such testing has the scientific
potential to establish a “reasonable probability” of a more favorable verdict, which is all
that is required to satisfy § 440.30(1-a).
67.
The Innocence Project has confirmed that the biological evidence Petitioner seeks
to subject to post-conviction DNA analysis still exists and is currently in the possession
of the Westchester County Department of Laboratories and Research (“the Westchester
Lab”) in Valhalla, New York. On March 15, undersigned counsel was informed by
telephone by Linda Duffy of the Westchester Laboratory that she was present on the day
of Ms. Correa’s autopsy, when the Medical Examiner collected numerous vaginal swabs
containing semen and spermatozoa. Indeed, at Ms. Duffy’s request, “extra” swabs were
The testing excluded Dabbs as the source of the seminal fluid found in the victim’s
underwear, and his conviction was vacated and indictment dismissed nine years after his
conviction. Id. at 769 n.3.
16
26
collected at autopsy to preserve for future testing. Ms. Duffy reported that it was her
understanding that only one or two of these swabs had been tested by the F.B.I. during
the original investigation and that numerous additional swabs remained available in
frozen storage for testing at this time. She graciously agreed to search the lab’s storage
areas for those items.
68.
On April 14, 2006, undersigned counsel received a telephone call from Ms. Duffy
confirming that she had successfully located these samples at the laboratory. These
materials include both previously-untested vaginal swabs as well as DNA extract
materials returned to the laboratory by the F.B.I. in 1990. A written list of the items of
biological evidence which are available for testing will be prepared.
69.
This case, of course, is different from post-conviction DNA cases in which the
evidence had not been previously subjected to DNA testing. Here, Petitioner’s DNA and
the biological evidence was submitted to the F.B.I. for testing during the initial
investigation, using a now-defunct method (RFLP) of DNA analysis. At that time,
although the F.B.I. excluded Petitioner as the source of the biological evidence, the
Bureau did not have the capacity to take that analysis further and affirmatively identify
the source. CODIS was not yet operational in 1990, although surely the State would have
uploaded the unknown male DNA profile into the databank if it had been.17 Now,
however, STR-DNA analysis can not only confirm that Petitioner is excluded, but
potentially identify the actual source of the semen.
17
It was not until the DNA Identification Act of 1994 (Public Law 103 322) formalized
the F.B.I.’s authority to establish a national DNA index for law enforcement purposes in
October 1998 that the F.B.I/’s National DNA Index System (NDIS) became operational.
Fed. Bureau of Investigation, CODIS, Combined DNA Index System, CODIS Program,
Mission Statement and Background, http://www.fbi.gov/hq/lab/codis/program.htm (last
visited June 5, 2006).
27
70.
Since Petitioner’s trial, RFLP testing has been supplanted by STR-DNA testing in
all state, local, and national DNA laboratories, because the latter method can obtain a
result on far smaller traces of evidence, and is also (unlike RFLP testing) compatible with
the CODIS databank. The evidence must be retested using the current standard testing
procedure, STR-DNA, in order to enter the results into CODIS.
71.
Once in proper STR form, the profile can be compared to the 3,139,038 convicted
offender profiles that are in CODIS.18 In addition, the databank also contains 136,672
forensic profiles19 that may connect the actual perpetrator of this crime to another that
Petitioner could not have committed. In addition to use in CODIS, a STR-DNA profile
can also be used to compare the semen to other persons under suspicion during or
relevant to the initiation investigation. For example, a saliva sample from Freddy
Claxton, who the People asserted at Petitioner’s trial was “probably” the source of the
recovered semen, can be subjected to STR-DNA analysis. The profile can also be
compared against other suspects from whom comparison samples were never taken. For
example, the profile may match Shariff Goodson, another student at Peekskill High
School against whom rape and assault charges were brought in 1994 and who, upon
information and belief, subsequently committed suicide.20
18
Fed. Bureau of Investigation, NDIS Statistics,
http://www.fbi.gov/hq/lab/codis/clickmap.htm (last visited June 5, 2006). As of April
2006, CODIS contains 157,077 profiles from convicted felons in New York. Id.
19
Id. As of April 2006, CODIS contains 16,405 forensic profiles from unsolved crimes
in New York. Id.
20
On information and belief, Shariff Goodson committed suicide in the mid-1990s.
Although no public record of his death is available to private parties, one newspaper
account of his mother’s subsequent passing in 2005 noted that Mr. Goodson
“predeceased” her. “Obituary of Louise C. Goodson: Peekskill Resident,” NORTH
COUNTY NEWS, Feb. 2, 2005.
28
72.
Proof of Petitioner’s actual innocence could well be provided by STR-DNA test
results that demonstrate that a convicted felon in the database is the source of the semen.
Certainly, at the very least, such STR-DNA test results would create “a reasonable
probability that the verdict would have been more favorable to” Petitioner, thereby entitling
him to testing. N.Y. Crim. Proc. § 440.30(1-a); see also People v. Hayes, 726 N.Y.S.2d 891
(N.Y. App. Div. 2001). Because of the exculpatory potential of STR-DNA testing in this
case, release of the biological evidence for testing is also mandated under the Due Process
Clause of the New York State Constitution.
73.
Certainly, had DNA evidence been admitted at trial demonstrating that a person other
than Petitioner raped Ms. Correa—especially a convicted serial offender with no connection
to Petitioner—there is a reasonable probability that the verdict would have been more
favorable to Petitioner. Indeed, as in the Warney case, it is hard to imagine that were such a
result to be obtained here, the conviction and indictment would not be dismissed outright.
74.
Moreover, STR-DNA testing and a CODIS search could yield a link to other similar,
unsolved crimes. Indeed, one such crime from Westchester County is already in CODIS.
Two years before the rape and murder for which Petitioner was convicted (i.e., when
Petitioner was in junior high school), 20-year old Geraldine Sniffen was found beaten to
death on the Blue Mountain Reservation in Cortlandt, close to where Ms. Correa was
murdered.21 On March 15, 2006, undersigned counsel spoke to Linda Duffy about that
murder, which remains unsolved, and inquired as to whether evidence was still available.
Ms. Duffy confirmed that the Sniffen murder remained unsolved, and that as part of a “cold
case” project the Westchester lab had, on its own, recently tested fingernail scrapings and
David Fondiller, “Peekskill Copes with Murder,” GANNETT WESTCHESTER
NEWSPAPERS, Nov. 21, 1989, at A 15 (“Fondiller article”).
21
29
obtained a foreign male DNA profile from under Ms. Sniffen’s nails, which it had entered
into CODIS. STR from this case can be compared to that unknown profile, along with
thousands of other unsolved crimes in CODIS as discussed supra.
75.
Since it simply cannot be known ahead of time what the DNA testing will show, and
because DNA testing certainly has the potential to exonerate Petitioner (whether by showing
that the DNA profile in the semen matches another convicted felon who admits to the
murder, or an unsolved crime that Petitioner could not have perpetrated), STR-DNA testing
for that purpose is appropriate.
76.
The merits of Petitioner’s request are further confirmed by the fact that STR-DNA
testing and CODIS databank searches have, in recent years, become the norm in police
investigations of similar crimes. Surely, there can be no question that if Ms. Correa’s rape
and murder had been committed in 2006, the State would have immediately performed STR
analysis on the vaginal swabs for purposes of entering the DNA into CODIS. See Nat’l Inst.
of Justice, Office of Justice Programs, U.S. Dept. of Justice, Using DNA to Solve Cold Cases,
Publ’n No. NCJ194197 at 21 (July 2002); see also Nat’l Inst. of Justice, Office of Justice
Programs, U.S. Dept. of Justice, What Every Law Enforcement Officer Should Know About
DNA Evidence (Oct. 1999).
77.
Public safety also warrants further testing in this case. Many serious crimes have
been solved in recent years through hits in the databank, often linking inculpatory evidence
to individuals who were imprisoned for lesser crimes and nearing release or on parole. See,
e.g., David Chanen, “Release Cancelled For Convict Whose DNA Is Linked to '94 Rape;
Retesting Found The Match With a Case Involving a Teen,” STAR TRIBUNE, Apr. 1, 2004, at
7B (DNA from the 1994 rape of a fifteen year old girl was matched to an inmate less than a
30
month before he was to be released from a Minnesota prison where he was serving time for a
subsequent attempted sexual assault); Andrew Blankstein, Richard Winton, & Zeke Minaya,
“DNA Links Decade-Old Murder Spree to Inmate,” LOS ANGELES TIMES, Nov. 4, 2003(DNA
of a California prison inmate matched to biological evidence from five murders three months
before he was set to be released after serving time for armed robbery); Shalia K. Dewan,
“New Testing of DNA Evidence Leads to Arrest in 1994 Death,” N.Y. TIMES, Oct. 9, 2004
(1994 slaying of a woman in the Bronx considered a closed case until a DNA match obtained
from evidence found at the scene proved that her nephew, who was on parole, was the actual
perpetrator). If, in fact, Ms. Correa was raped and murdered by another individual who
remains at large or is about to be released from custody, surely the State would have an
interest in identifying and prosecuting him without delay.
III. False Confessions
78.
The above-mentioned advances in DNA technology in the fifteen years since
Petitioner’s trial have been accompanied by substantial additional research in the area of
false confessions. In large part due to the wave of DNA exonerations over the last
decade, the problem of false confessions by the innocent is now well documented. See
e.g., Steven A. Drizin and Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. REV 891, 892-894 (2004) (documenting 120 proven false
confession cases and discussing the impact of DNA exonerations on false confession
research and interrogation practices). In fact, in approximately 24% of the 180 postconviction DNA exoneration cases to date, the wrongful convictions were based, in large
31
part, on confessions, admissions, or inculpatory statements that DNA evidence later
proved to be false.22
79.
Petitioner, who was only 16 years old at the time of his arrest, was convicted of
the rape and murder of Ms. Correa almost entirely on the basis of his post-interrogation
confession. Yet the fact that the confession contained details of the crime that “only the
perpetrator could have known” does not negate the capacity of DNA testing to prove his
innocence. In June 2003, for example, the convictions of Dennis Halstead, John Restivo,
and John Kogut of Nassau County were vacated after post-conviction DNA testing
proved that, contrary to Kogut’s detailed, videotaped confession, they did not commit the
rape and murder of the 16-year old victim in 1986, as another man was the source of the
semen from her vaginal swabs and slides. Mr. Kogut was acquitted at retrial in
December 2005, and the District Attorney dismissed the indictments against the
remaining two defendants the following week. See Robin Topping, “Cleared of Murder,
22
The cases in New York include the following: Dennis Halstead, John Kogut, Antron
McCray, John Restivo, Kevin Richardson, Yusef Salaam, Raymond Santana, Douglas
Warney and Kharey Wise. The cases in other states include: Kenneth Adams (Illinois),
Dennis Brown (Louisiana), Clyde Charles (Louisiana), Rolando Cruz (Illinois), Richard
Danzinger (Texas), Charles Irvin Fain (Idaho), Dennis Fritz (Oklahoma), Bruce
Godschalk (Pennsylvania), Anthony Gray (Maryland), Paula Gray (Illinois), William
Gregory (Kentucky), Alejandro Hernandez (Illinois), Verneal Jimerson (Illinois), David
Allen Jones (California), Ronald Jones (Illinois), Barry Laughman (Pennsylvania),
Steven Linscott (Illinois), Eddie Lowery (Kansas), Eddie Joe Lloyd (Michigan) Bradford
Marcellius (Illinois), Ryan Matthews (Louisiana), Robert Miller (Oklahoma), Arthur
Mumphrey (Texas) Bruce Nelson (Pennsylvania), Christopher Ochoa (Texas), Calvin
Ollins (Illinois), Larry Ollins (Illinois), Willie Rainge (Illinois), Lafonso Rollins
(Illinois), Frederic Saecker (Wisconsin), Omar Saunders (Illinois), Walter Snyder
(Virginia), Jeffrey Townsend (Florida), David Vasquez (Virginia), Kenneth Waters
(Massachusetts), Earl Washington (Virginia), Dennis Williams (Illinois), and Ron
Williamsom (Oklahoma). See Innocence Project, False Confessions,
http://www.innocenceproject.org/causes/falseconfessions.php (last visited, May 21,
2006).
32
Finally,” NEWSDAY, Long Island ed., Dec. 22, 2005, at A9, A26; Robin Topping,
“Cleared, He Calls for Probe,” NEWSDAY, Long Island ed., Dec. 30, 2005.
80.
New York City’s famed “Central Park Jogger” case is another vivid example of
this phenomenon, and further illustrates the particular susceptibility of juveniles to
interrogation-induced false confessions. When a 28-year-old jogger was brutally
attacked and raped in Central Park in 1989, the police secured the confessions and
convictions of five teenagers, ranging in age from 14 to 16 years old. In 2002, however,
Matias Reyes, who had already committed another rape near Central Park days earlier in
1989, using the same modus operandi, confessed to the rape for which the juveniles had
been convicted, and stated that he acted alone. When DNA testing corroborated Reyes’
confession, on the recommendation of the Manhattan District Attorney, the convictions
of the five men (Yusef Salaam, Kevin Richardson, Antron McCray, Raymond Santana
and Kharey Wise) were overturned on December 19, 2002. See People v. Wise, 194
Misc.2d 481, 752 N.Y.S.2d 837 (2002); Susan Saulny, “Convictions and Charges Voided
in '89 Central Park Jogger Attack,” THE NEW YORK TIMES, Dec. 20, 2002.
81.
Another example of the potential for unreliability in even the most detailed
confessions is the case of Bruce Godschalk, who was convicted of two separate homeinvasion rapes that occurred in 1986 in Pennsylvania. He became a suspect after a composite
sketch was circulated through media, and his sister called police stating that he resembled the
attacker. One of the victims identified him as her attacker, and Godschalk was also linked to
the crimes through blood typing analysis and an informant who testified that, while in jail
awaiting trial, Godschalk admitted to the crimes. By far the most damning evidence against
Godschalk was his taped confession to both crimes, which contained numerous key details of
33
the rapes that had not been released to the public. See Godschalk v. Montgomery County
Dist. Attorney=s Office, 177 F.Supp.2d 366, 368-69 (E.D. Pa. 2001) (listing over ten details
from each attack contained in the confession, such as the fact that prior to sex with one of the
victims the assailant removed the victim’s tampon). In 2002, however, post-conviction DNA
testing performed at two separate laboratories confirmed that a single assailant committed
both rapes and excluded Godschalk as the rapist. He was freed after fifteen years of
wrongful imprisonment. See Sara Rimer, “DNA Testing In Rape Cases Frees Prisoner After
15 Years,” N.Y. TIMES, Feb. 15, 2002.
82.
Petitioner was only sixteen years old at the time of his confession. The existing body
of social science research indicates that juveniles, possessing marked developmental
differences from their adult counterparts, are far more susceptible to interrogative
suggestibility and thereby to confess falsely to crimes they did not commit. See Jessica
Owen-Kostelnik et al., Testimony and Interrogation of Minors: Assumptions About Maturity
and Morality, AM. PSYCHOLOGIST, May-June 2006, at 286, 291. This conclusion is supported
by a range of research, which reveals that adolescents have difficulty understanding lexical
language, including legal terminology, id. at 292, have a higher susceptibility to negative
feedback, id., present differences in decision-making, id., present behaviors more often than
adults that are considered “deceptive” by interrogators, id. at 293, and have more negative
responses to situational risk factors, such as stress, the presence of authority figures, physical
custody and isolation, and confrontation, than adults id. at 295. These factors in isolation or
taken together place adolescents at a higher risk for confessing to a crime they did not
commit, and further warrant STR-DNA testing in the instant case to determine whether Mr.
Deskovic’s own confession may have been false.
34
CONCLUSION
83.
For the foregoing reasons, Petitioner respectfully requests that the Court issue an
order for STR-DNA testing on the vaginal swabs from the victim in this case and for the
DNA profile(s) from the sperm donor on the swabs to be entered into the local, state and
federal DNA databanks.
84.
Petitioner consents to have the testing performed at the Westchester County
Department of Laboratories and Research. If the People or the Court would prefer to conduct
testing at a private laboratory at Petitioner’s expense, undersigned counsel is prepared to bear
all costs of such testing at a mutually agreeable facility.
______________________________
Nina Morrison, Esq.
The Innocence Project
Counsel for Defendant-Petitioner
35