Jeffrey Deskovic: wrongfully convicted of murder at age 17, he was freed after spending 16 years in prison on the basis of DNA evidence which served to support his contention that the detectives coerced his confession. At age 34, having lost half of his life in prison for a crime he did not commit, the Times details the everyday travails of a man who is doing things like swimming and opening a window for the first time in 16 years.
We’ve been though this familiar route so many times, it’s time to start asking some different questions:
It is now accepted fact that eyewitness identifications are often inherently unreliable. However, most prosecutors will tell you that a good eyewitness identification is the strongest evidence they have. If you have read The Seven Sins Of Memory you know the reasons why eyewitness identifications are unreliable. That being said, what do we do? We can start by changing the jury instructions to deal with situations in which there is only an eyewitness identification without any supporting evidence. Something along the lines of the jury instruction on a defendant’s statement- that “the jury should treat an eyewitness identification without supporting evidence with extreme caution.”
Judges and prosecutors need training (note we didn’t write “better training” because we don’t believe that most judges or prosecutors have any clue as to how unreliable an eyewitness identification really is. Before they can have better training, they need some training first.) on eyewitness identification.
Next up are confessions. Florida needs to pass a law requiring the police to videotape confessions. The fact is that innocent people confess. Just ask Jeffrey Deskovic.
The changes in the way conflict attorneys are compensated in Florida is a recipe for disaster. Instead of getting better trained lawyers, defendants charged with the most serious of crimes will have poorly trained and underpaid attorneys handling their cases. If we’re lucky there will be one Jeffrey Deskovic a year in Florida. More likely, there will be one a month.
Yes, we have an adversarial jury system. But we must recognize that mistakes will happen. When Jeffrey Deskovic was sentenced, he told the judge he was innocent. The judge responded “that may be so, but the jury has spoken.” Off went Deskovic to spend half his life in prison for a crime he didn’t commit.
Anyone who abandons their common sense on the altar of “the jury has spoken” deserves to be removed from working in the criminal justice system. These are peoples lives we are dealing with. Surgeons in a hospital have a weekly conference in which they have to account to their colleagues for any mistake that occurs during an operation. The legal system has nothing remotely similar. When mistakes are made, we shrug, say “sorry”, give the poor soul a few hundred thousand dollars and send them on their way.
It’s time to change the paradigm.
And finally, we must do away with the trial tax. If we believe in a system that guarantees a trial by jury, it is time for prosecutors to stop whispering to defense attorneys “This judge will max your guy out if you lose.” A judge needs to take the excessive punishment out of the equation and sentence a defendant with reason and responsibility. The BS that the judge increased the sentence after the plea offer because s/he learned more about he case after the trial is just that: bull shit. It is a fiction and we all know it and it is time we speak up about it. If you try a case and if you lose, and if the sentence ends up being something like 5 or ten times the plea offer, it is time to put the facts on the record, accuse the judge and prosecutor of vindictiveness, and preserve the issue for appeal.
There are judges sitting in our Miami courthouse today who have been reversed for vindictiveness for giving – and we are now speaking about one particular instance- a defendant 99 years after a PVH in which the defendant turned down a plea offer of a guideline sentence of 57 months. This kind of crap has to stop, and Judges who do this need to suffer some type of ramification. This judge in question suffered nothing more than the embarrassment of the Third DCA’s opinion. Something more should have happened to a judge who so cavalierly tossed a man’s life away for no good reason. Perhaps they shouldn't be a judge, or shouldn't be in criminal court.
The legal system thrives on suing doctors who make mistakes, and yet does very little to lawyers and judges who make similar mistakes. When a doctor screws up, the patient dies. When a Judge mistakenly and vindictively sentences an innocent man to life in prison, the man dies a little bit every day. We'd take the former over the latter without any hesitation.
See You In Court.