Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
This is actually more than a week old, but I somehow missed it completely. The New York Times has the story of a ruling from Judge Sotomayor that certainly did not show anything resembling the empathy Obama says he wants in a judge. And it involves an issue I feel very strongly about, access to DNA testing to prove the innocence of someone convicted of a crime.
Jeffrey Deskovic was convicted at 16 years old for the rape and murder of a classmate that he did not commit. He was freed from prison in 2006, having spent half his life locked up. DNA evidence proved that another man, already in prison for another murder, was guilty of that crime and the man admitted it after the testing matched his DNA.
So what does Sotomayor have to do with this? She refused to grant him an appeal in 2000 because of a procedural technicality:
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 remaining 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 Federal District Court contesting his conviction. The court denied the request because the paperwork had 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 Ms. Sotomayor sat.
Ms. 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 found in the victim not only cleared him, but connected another man to the crime.
Empathy indeed. Especially appalling for a member of a racial minority who grew up poor given that such false convictions involve underprivileged blacks and Hispanics. Deskovic has an op-ed at Politico. He writes:
I would like an opportunity to testify at Sotomayor's confirmation hearings to let the senators -- and the country -- know that we need a Supreme Court justice who understands the problem of wrongful convictions and is ready to correct them where the facts deem it necessary. Procedure should never be used as an excuse to override justice. The state must not be permitted to take away an individual's liberty and later argue that his or her actual innocence is no longer relevant. Truth-seeking is central to our understanding of justice.In my case, Judge Sotomayor did not demonstrate that understanding. If that is her idea of "empathy," a trait that Obama sought in his appointee, then God help us all, especially those who are wrongfully convicted and possibly sentenced to death. Innocence can never be ruled as out of order in court.
It is not about politics, nor race. It is about justice. Those of us concerned with wrongful convictions and justice should get the opportunity to verbalize our opposition to her confirmation.
Sounds reasonable to me.
Politics
Comments
Wow. So being four days late amounts to "consider[ing] all of petitioner-appellant's remaining arguments and find them to be without merit"??
Holy shit, I'm really hoping Sotomeyer doesn't get confirmed. But at this point, I'd be afraid that she wouldn't be confirmed for all the wrong reasons, and whoever the next nominee is would be even worse.
Posted by: FastLane | June 18, 2009 10:16 AM
Unfortunately, this is just another example of the prosecutorial mind set. As I have stated several times on this blog, prosecutors are deathly afraid that if new technology causes too many guilty verdicts to be overturned years later, it will result in greater difficulty in their obtaining guilty verdicts, and, in the case of capital cases, much greater difficulty in getting juries to sentence miscreants to the death penalty.
Posted by: SLC | June 18, 2009 10:53 AM
To be fair (i.e., empathetic to the judge), this was a case where the jury already knew that the DNA did not match the defendant, but still decided to convict based on the confession and the prosecutor's argument that the DNA came from consensual sex that the victim had before being attacked. It is hard for a judge who was not at a trial to say that the jury got it wrong. Our system gives a great deal of respect to jury verdicts.
Posted by: Paul S | June 18, 2009 11:21 AM
Or in other words, maybe she empathized with the poor prosecutor, who was after all convinced (as they always are) that they got the right guy, DNA notwithstanding (or that he "got a fair trial", as if that made it okay that an innocent man was convicted).
Posted by: Dave M | June 18, 2009 11:24 AM
My comment crossed with Paul S's, which takes some of the air out of mine. Empathy all around!
Posted by: Dave M | June 18, 2009 11:26 AM
When looking for empathy in a judge, I'm pretty sure we should be looking for one prone to empathizing with the person who is potentially going to prison over empathizing with the person who wants to put him there.
Posted by: Gretchen | June 18, 2009 11:37 AM
I'm not quite clear on the facts here. The story states:
Was DNA evidence involved in any way in the original appeal? The story also states
Is it possible this was a routine denial of an appeal with no merit?
Posted by: Taz | June 18, 2009 11:54 AM
I see Paul S says the DNA was available at the original trial. So what changed 6 years later? Was it because they found someone it matched?
Posted by: Taz | June 18, 2009 12:01 PM
This makes me even more wary of Sotomayor and what she might bring to the court.
Posted by: Anneliese | June 18, 2009 1:28 PM
Gotta disagree, fellows. Not only did Sotomayor do the right thing, it was an easy call. Justice is the maintenance of social equilibrium, not the guarantee of truthful results in every case. Clear Procedure is absolutely necessary if we want to administer Justice as broadly as possible. If Procedure breaks down, Justice breaks down. The day people learn that a deadline is soft, the deadline will evaporate. Here, the procedural door was open to Deskovic and his lawyer but they failed to walk through it. Even when that occurs, there are procedures available to rectify matters if they merit rectification, as evidenced in Deskovic's own case. That they take longer is his fault, not Sotomayor's. She's got more to think about than just his case, and cannot stop the bus for every guy who doesn't bother to come to the bus stop.
Posted by: Adam | June 18, 2009 1:38 PM
Yes, it was DNA that later did prove his innocence because his DNA matched that of a man already convicted of rape and murder in another case. After they found that match, the other man admitted it. That's why he was ultimately freed. But they could have found that out six years earlier if this panel didn't think being 4 days late (and being late only because, according to the man's lawyer, a clerk at the court told him the wrong filing date) was more important than whether he was actually guilty or not.
Adam is absolutely wrong. Putting procedure before concerns about actual innocence is the opposite of justice.
Posted by: Ed Brayton | June 18, 2009 2:01 PM
It's a pity you're too stupid to realize that acceptance of untruthful results in criminal cases is a far more severe threat, in the final accounting, to social equilibrium than relaxation of deadlines.
Posted by: Azkyroth | June 18, 2009 2:03 PM
The link that Anneliese posted is a very disturbing one, though I figured they would rule that way. The Supreme Court just ruled that inmates do not have a right to access DNA evidence for testing after conviction even if they offer to pay for the tests themselves and even as the court admits that DNA testing "has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty." Actual guilt or innocence does not matter. Again.
And remember, folks, that is exactly the position that the Obama administration (and the Bush administration before them) took in the case. The more things change...
Posted by: Ed Brayton | June 18, 2009 2:05 PM
I don't get it. How could the court find out about evidence that wouldn't have become available for several years? It's up to the parties to bring the evidence, not the judge to create it.
Posted by: Brain Hertz | June 18, 2009 2:07 PM
If the court ruling (denying the right of convicts to have DNA tests) stands, and it probably will for some time, there will be an innocent person executed because of that ruling. And while that innocent person is on death row the real perpetrator will be running loose and possibly doing some serious harm.
Perhaps we do not need empathy so much as common sense?
Posted by: Anneliese | June 18, 2009 2:33 PM
Look, I understand that what occurred here was a miscarriage of justice, but I see no way that this can be laid at the feet of the appeals court involved in the habeas petition.
The habeas brief was, according to the article, based on the fact that the DNA at the scene didn't match his, and that the confession was argued to be coerced. Both fine points, except that both of these facts were already known to the jury at the original trial. So where's the new evidence to be considered by the appeals court?
It's also asserted that the brief was filed late because the lawyer was misinformed by the clerk. However, based on this (from the Times article):
The lawyer's argument is just bullshit. The date of the deadline should have been known to the lawyer as a matter of law. That's what they're paid for. It's not up to the court to bring them up to speed on this stuff.
Posted by: Brain Hertz | June 18, 2009 2:45 PM
Upon reading the New York Times story, it appears that the DNA evidence in question was presented at the original trial. Even though it did not match the defendent, the prosecutor argued that it was the result of consensual sex that the victim had some days previously. The jury bought that argument. The trial judge apparently also bought that argument because he did not overturn the verdict, which, as I understand it, he has the right to do in most jurisdictions.
The jury verdict was appealed and the appeal was denied by a panel that included Judge Sotomayor.
The question is, does the appeals court have the right to overturn the verdict because they may disagree with the jurys' assessment of the evidence in the case? It is my understanding that an appeals court is supposed to evaluate the question as to whether the law was properly followed by the trial court judge, which is to say, for example, were his rulings as to items such as the admissibility of evidence constitutional.
The problem here is that the only thing the appeals court has to go on is the trial transcript. Quite obviously, they did not have the opportunity to observe the witnesses and evaluate their demeanor. The only other issue that the appeals court could rule on is the admissibility of the confession, which the defense claimed was coerced. Again, the jury didn't buy that argument. However, if the proper Miranda warning was given and the alleged perpetrator was given the opportunity to consult with an attorney and voluntarily waived his rights, there isn't much that the appeals court can do.
Obviously, in hindsight, the jury was wrong to accept the prosecutors' theory of SODDI, relative to the DNA finding. Apparently, the trial took place in 1989 which was in the infancy of DNA evidence (remember that the OJ Simpson trial in which DNA evidence came to the forefront took place in 1995), so it was quite possible that the jury failed to understand the science. This is a miscarriage of justice but it is not clear whether the appeals court could have ruled any differently in 2000, regardless of whether the appeal was filed on time or not.
Posted by: SLC | June 18, 2009 3:22 PM
I gotta ask, what happened to the kid? Did the warden go, "Sorry for ruining your life, now take a hike," and kick him out the door with a comically sized boot? Or does he get a big sack of cash and/or job training and psychological counseling?
Posted by: Brandon | June 18, 2009 3:49 PM
I agree that Sotomayor did not make an error in her decision. The truth is that even if the appeals court had ruled that the appeal was turned in on time, there was nothing in the appeal that would have overturned the verdict. A habeas corpus has to prove that something was done wrong at the original trial or new evidence that didn't exist proves the defendant not guilty. Neither of these were true from what I can see.
Posted by: Tom | June 18, 2009 3:58 PM
Wow, I've read most of today's ruling on access to DNA evidence from the Supreme Court. It is one of the most appalling and dishonest rulings I have ever read. My jaw has been agape at the sheer audacity of it. I'll have a full writeup for tomorrow or Monday.
Posted by: Ed Brayton | June 18, 2009 5:07 PM
Ed, you are placing blame at the feet of the Appellate Judiciary wrongfully here. This was a direct result of The Antiterrorism and Effective Death Penalty Act of 1996; Title I--Habeas Corpus Reform. As reprehensible the outcome was, Sotomayor was following the law enacted in this legislation. You are in effect, indicting a judge for ruling according to the law. This is wrong, as was the gutting of habeas corpus in this legislation. Place the blame where it belongs; at the feet of foul politicians, who used the victims of The Alfred P. Murrah Federal Building bombing in Oklahoma City as a soapbox from which they gutted Federal Habeas Appeals of persons found guilty under state statutes.
In the Senate, start with the sponsor, Robert Dole, but don't forget: Hank Brown, Dianne Feinstein, Phil Gramm, Orrin Hatch, Jon Kyl, Don Nickles, Alan Simpson, Strom Thurmond, and Jim Inhofe. The bill passed the Senate 90-9-1, so there are many more to blame. There are far to many despicable House members to even begin to do justice by finger pointing, but two very notable members were: Bob Barr and Henry Hyde.
Senator Kennedy had this to say about the gutting of habeas corpus in The Antiterrorism and Effective Death Penalty Act of 1996:
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"It is unfortunate that the unrelated and controversial subject of habeas corpus was injected into this bill in the first place. Proponents say that habeas corpus is relevant because the suspects in the Oklahoma City bombing are charged with a Federal capital offense. But that fact is no justification for changing the rules with regard to State prisoners.
The habeas corpus proposals do not strike a fair balance. The bill denies death row inmates a full opportunity to raise claims of innocence based on newly discovered evidence. It will therefore increase the likelihood that innocent people will be executed. The proposal to limit inmates to one bite at the apple is sound in principle. But surely the interest in swift executions must yield to new evidence that an innocent person is about to be put to death. As Supreme Court Justice Potter Stewart once wrote, "Swift justice demands more than just swiftness."
Also, the proposal would unwisely require Federal courts to defer to State courts on issues of Federal constitutional law. A Federal court could not grant a writ habeas corpus based on Federal constitutional claims, unless the State court's judgment was "an unreasonable application of Federal law."
It is a serious mistake to require a Federal court to defer to the judgment of a State court on matters of Federal constitutional law. The notion that a Federal court should be prevented from correcting a constitutional error because it was a reasonable error is unacceptable, especially in a capital case. Ever since the days of Chief Justice John Marshall, the Federal courts have served as the great defenders of constitutional protections, and they should remain so."
Senator Ted Kennedy, Congressional Daily Record: April 17, 1996 (Senate), Page S3458
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Federal Appellate Courts are supposed to take findings of fact from the District Court as is, unless there has been an obvious violation of law. The Lower Court determined that Deskovic's attorneys had filed their appeal late. It was not up to the Appellate Court to 2nd guess this finding.
Jeffrey Deskovic got screwed royally, but he got screwed by Congress, and over-zealous New York enforcement/prosecutorial/judicial actors. Sotomayor would have been acting as an activist Judge, making law from the bench to have decided otherwise. Damned if she did, and damned if she didn't.
See: The Innocence Project Blog; "NY District Attorney on the Need to Prevent Wrongful Convictions", June 4, 2009
Posted by: a knight | June 18, 2009 9:12 PM
Maybe you think this decision is out of line. Perhaps you've been with Rip van Winkle since about 1976.
Here in Texas our state fought for the chance to execute an innocent man. His appeals, limited by federal law, had been exhausted when another man confessed to the murder. The Texas Court of Criminal Appeals ruled that he'd already had his three habeas corpus appeals, and that his innocence was not a good enough reason to reopen the case in any fashion. The Fifth Circuit Court of Appeals agreed (unanimous, as I recall), and so did the Supreme Court. The man was executed.
Under our system, innocence is presumed, but only until conviction. After that, innocence is not the concern of the justice system.
Sotomayor's decision is right down the middle of the road. It's mainstream. It's one more indication she's no liberal bleeding heart.
Obviously you have a different view of empathy than the federal law, Ed!
Posted by: Ed Darrell | June 19, 2009 2:05 AM
Well, no. Adam is not absolutely wrong. Absolutely right, actually.
Love the blog, Ed.
Posted by: Adam | June 19, 2009 2:52 AM
The judge did exactly what was necessary and i'm sure they followed protocol exactly. That might be great at burger king as a floor mopper but I would never hire that person for a public service job.
Posted by: Richard Eis | June 19, 2009 7:13 AM
Brandon: He hasn't received any compensation or services, at least not yet. He's attending college, with one of the deans at the school personally paying his way; apparently his only source of income is $137/month in "standard welfare" (CT must be one of the few states that still offers General Assistance; here in IL we abolished it back during the Reagan era). While in prison, he converted from Catholicism to The Scariest Religion To Americans. He's pretty socially awkward because he's basically 34 going on 17 (though reading between the lines a bit weakly suggests that it might be Asperger's). All this from a New York Times. There's also a page on his case at the Innocence Project.
Posted by: ebohlman | June 21, 2009 8:35 PM
Please support me by joining my Facebook group "Judge Sotomayor Put Procedure Over Innocence In Deskovic Wrongful Conviction", encourage others to join, and post comments so that we can make our voices heard by the U.S. Senate!!!
Thank You,
Jeff Deskovic
www.JeffreyDeskovicSpeaks.org
Posted by: Jeff Deskovic | June 24, 2009 8:35 PM