November 9, 2022 • 44 mins
What happens to an exoneree after they are released? Let's find out as we welcome BACK today’s guest, Jeff Deskovic. A truly remarkable human, Jeff is an exoneree, an advocate for criminal justice reform, a lawyer, and the founder of the Jeffrey Deskovic Foundation.
I would encourage you to go back and listen to his first interview (which is two parts) on DIE-ALOGUE where Jeff shares his practically unbelievable story. He was wrongfully convicted of the rape and murder of Angela Correa, only to be exonerated (on the grounds of ACTUAL innocence) 16 years later.
Listen to Jeff’s 1st interview on DIE-ALOGUE here:
Today he’s come back to help us understand what happens to an exoneree after their release. Listeners, prepare yourselves: it’s horrible. The better news is that Jeff is working tirelessly to change that and he gives us ways to join the cause. You don’t need to be rich, talented, or have a certain type of career- we can ALL do SOMETHING.
If you care about wrongful convictions, this conversation is a must listen. Please share! Resources listed below, including a link to Jeff’s Foundation’s Patreon page.
https://www.deskovicfoundation.org/
https://www.deskovicfoundation.org/donate
https://www.deskovicfoundation.org/contact
If you appreciate DIE-ALOGUE, here is how you can support the show:
Subscribe/follow on your podcast app - make sure you get new episodes downloaded!
Leave a five star rating and review on Apple, Spotify, or wherever you listen!
Rate on Apple: https://podcasts.apple.com/us/podcast/die-alogue-a-true-crime-conversation/id1470890320
Follow the show share it on Instagram and Twitter and tag @diealoguepresents
Become a DIE-HARD on Patreon and receive early, ad-free + bonus episodes! https://www.patreon.com/creator-home
DIE-ALOGUE is sponsored in part by She’s Birdie – the stylish and effective, personal safety alarms that I honestly don’t leave home without! You can get 10% off your Birdie purchase when you shop this link: https://www.shesbirdie.com/?rfsn=4885943.d5e5e8
Thank you for joining the conversation. You can always drop me a line via my website https://www.rebekahsebastian.com/discover/#contactvia
or via email: rebekah@yellowtapemedia.com
DIE-ALOGUE is part of the Crawlspace Network, and is hosted and edited by Rebekah Sebastian. Audio engineering and additional editing by Jason Usry. @jasonusryTheme song by OIivia Himes. @oliviaprimehimes
I would encourage you to go back and listen to his first interview (which is two parts) on DIE-ALOGUE where Jeff shares his practically unbelievable story. He was wrongfully convicted of the rape and murder of Angela Correa, only to be exonerated (on the grounds of ACTUAL innocence) 16 years later.
Listen to Jeff’s 1st interview on DIE-ALOGUE here:
Today he’s come back to help us understand what happens to an exoneree after their release. Listeners, prepare yourselves: it’s horrible. The better news is that Jeff is working tirelessly to change that and he gives us ways to join the cause. You don’t need to be rich, talented, or have a certain type of career- we can ALL do SOMETHING.
If you care about wrongful convictions, this conversation is a must listen. Please share! Resources listed below, including a link to Jeff’s Foundation’s Patreon page.
https://www.deskovicfoundation.org/
https://www.deskovicfoundation.org/donate
https://www.deskovicfoundation.org/contact
If you appreciate DIE-ALOGUE, here is how you can support the show:
Subscribe/follow on your podcast app - make sure you get new episodes downloaded!
Leave a five star rating and review on Apple, Spotify, or wherever you listen!
Rate on Apple: https://podcasts.apple.com/us/podcast/die-alogue-a-true-crime-conversation/id1470890320
Follow the show share it on Instagram and Twitter and tag @diealoguepresents
Become a DIE-HARD on Patreon and receive early, ad-free + bonus episodes! https://www.patreon.com/creator-home
DIE-ALOGUE is sponsored in part by She’s Birdie – the stylish and effective, personal safety alarms that I honestly don’t leave home without! You can get 10% off your Birdie purchase when you shop this link: https://www.shesbirdie.com/?rfsn=4885943.d5e5e8
Thank you for joining the conversation. You can always drop me a line via my website https://www.rebekahsebastian.com/discover/#contactvia
or via email: rebekah@yellowtapemedia.com
DIE-ALOGUE is part of the Crawlspace Network, and is hosted and edited by Rebekah Sebastian. Audio engineering and additional editing by Jason Usry. @jasonusryTheme song by OIivia Himes. @oliviaprimehimes
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:49):
Welcome to Dialogue Podcast. I'm yourhost, Rebecca Sebastian, and this is
the true crime podcast where I interviewthe leading voices in crime, culture and
justice, and we're in a seriesabout wrongful convictions. Right now, we're
on week two and today what I'mtalking to Jeff Deskovic, and you should
go back and listen to his firstinterview, which is actually two parts,
(01:11):
which happened two years ago. Ican't even believe that I looked it up
and it was September of twenty twenty. I will link to it in the
show notes. But in that episodean interview, Jeff lays out what happened
to him. He was wrongfully convictedfor the rape and murder of a fifteen
year old student at his high schoolat age sixteen. He then spent sixteen
(01:32):
years behind bars. His story isunbelievable. It honestly is, and it's
worth going back and listening to.Today he gives the real bird's eye view
of his personal story as it relatesto a wrongful conviction. But we more
focus on what happens to a personafter they're released. When the state declares
them an exonoree, they are actuallyinnocent, their conviction is vacated. What
(01:56):
happens? What recourse do they have? We've heard of people suing and getting
money. Does anything just get givento them, awarded to them? How
does the whole process work? Obviouslythis was top of mind with a non
Sayed being home, and we talka bit about that case as well as
the West Memphis three. Jeff isso candid and not only does he have
his own lived experience as a wrongfullyconvicted person to draw from. Jeff got
(02:20):
his master's degree and ultimately became alawyer through his incarceration, and after then
he went and used his settlement moneyto start a foundation called the Deskovic Foundation.
It's based here in New York.And like I said, I brought
him on to talk about what happensafter and guys, it is not great
(02:40):
news. It's pretty bleak. It'sreally infuriating, and if you're like me,
you're gonna be pissed. The goodnews is I ask Jeff what we
can do, and he rattled offlike five to ten minutes worth of things
you and I can do. Andyou don't need to be an investigator,
(03:01):
you don't need to be a lawyer. You don't need to be a law
enforcement or work from the criminal justicesystem. There is truly a way everyone
can use their own gifts, talents, and influence to help this cause.
Jeff's foundation is working to change legislation. You're going to hear all about it.
He did not plug his Patreon,but he has one. I am
(03:22):
a supporter since his interview two yearsago, and I will link to that
in the show notes as well.A wonderful way to help is to make
a modest donation. You can donateas little as one dollar a month without
further ado. Please I won't sayenjoy, but hold tight to this episode.
Share this. People need to knowand understand this as wrongful convictions get
(03:44):
a little bit higher in the truecrime consciousness. This is the next step.
Not enough to care, it's notenough to know they happen. What
do we do now? This iswhat we do now. So please take
heart because there is hope. Butbefore that, I guess comes the righteous
Singer. Jeff. Thank you forkilling the small talk. Jeff, welcome
(04:12):
back to Dialogue Podcast. I'm thrilledto have you for the second time.
Thank you. I'm glad to beback as well. You know I realized
it was two years ago. Ithought maybe it was last year, but
it was actually twenty twenty. Andso for anyone who hasn't heard Jeff's story,
do go back. I'll even putthe first it's one of two parts
his two part story in the shownotes, because I think it's important to
(04:33):
frame this conversation with your bigger conversation. But I'm excited about today because I'm
bringing you on as an expert,because that's what you are now. Your
lived experience combined with your legal experience, allows you to speak into wrongful convictions,
which is what I want to revisiton the podcast. But maybe you
could just give the snapshot version ofyour personal story for anyone just tuning in
(04:56):
who doesn't know it, and thenwe'll get into some full conviction kind of
in the weeds, if you will. Yeah, absolutely so. I'm the
founder of the Jeffery Duskovic Foundation forJustice, which has three eleven wrongfully convicted
people, helped pass three laws aimthey're preventing wrongful conviction, an advisory board
member of the National Coalition Group ThatCould Happen to You, which also helped
passing laws, and I sit ona global Advisory Council for Restorative Justice International,
(05:21):
Mebiana had being a lawyer and havingand having obviously having a law degrail,
so have my master's degree. Mythesis is written on rowful conviction causes
and reform. And I had aton of media interviews and I've also meet
readily meet with elected officials in NewYork, Pennsylvania, California, have a
ton of media done on me,and I've written several hundred articles on roewful
(05:43):
conviction. But my motivation, ofcourse is that I was exonerated myself.
I spent sixteen years in prison fromI got in arrest when I was sixteen.
I turned seventeen by the time thetrial rolled around where despite a pretrial
negative DNA test result, I waswrongfully convicted for murder and based on a
coerce Wals confession prosecutorium it's conduct firedby the medical salimenter retirable public defender.
(06:06):
Last seven appeals got turned out footballultimately was exonerating through further DNA testing which
identified the actual perpetrators of my chargewould dismiss on actual instance grounds. The
actual perpetrator was arresting convicted, andI have this mission in life now,
to free other people in the sameposition I was while working, and to
(06:26):
prevent them fromage to other people andclassy. There is the documentary Short Conviction
produced by Geo Works, which isavailable on Amazon Prime, about my life
post exoneration and the ad Secret.Another past dialogue guest I Love It.
Adnan Sayed was in the news veryrecently as his conviction was overturned, and
I saw a lot of sort ofmisnomers being attached to him as an exonoree.
(06:48):
But that was right when his convictionwas vacated. So I thought we
could just start with some real baselinedefinitions, from vacating a conviction to overturning
to exoneration. Actual innocent is somethingyou mentioned. Could you take us through
each of these terms, define themand what are the stages of innocence when
someone goes from incarcerated and then maybeis released to innocence. So let's start,
(07:12):
like, what's the first step tosomebody who the state says this guy
might not have done it, theymight be innocent. Is that the vacated
conviction, well them saying it notnecessarily that might that they might A Conviction
and Review unit, which is awould sometimes called Conviction and Integrity Unit Conviction
Integrity Bureau, different letters, samething. What that is is a unit
(07:38):
within the District Attorney's office itself thatand reinvestigates possible wrongful conviction cases. The
reason why you had defended and thedefense attorney or a nonprofitility working of free
people would want to go there ratherthan going in a court is because,
first of all, it's it's acooperative reinvestigation. You have access to the
(08:00):
District attorney's files. There's probably somethingin there that you wouldn't have access to
otherwise. And in terms of reinvestigatingcases, you can strategically desire like what
witnesses or what people do we wantto talk to, who should the defense
interview, who should the prostitution,which one should be done jointly? And
of course the ultimate advantage of doingworking that way with the Conviction and Review
(08:24):
Unit is if they ultimately agree thatthe conviction should be vacated, then with
both with both sides filing a postconviction motion. While it's not impossible that
the judge would deny it, it'snot very likely. So let me throw
some terms and laid some general groundthat just dawns on me now, and
then I want you to reiterate thoseother points that you asked about it.
(08:46):
So, the conviction review units lookfor actual innocence cases, and just as
a general fyi, it could bebrought to their attention by an attorney,
or it could be by the defendantor cold or it could be on their
own hook, on their own initiative. And while they're looking at actual innocence,
many of the units go beyond that. Beyond guilt innocence, they also
(09:11):
include within the scope of cases thatthey'll look at, is there a violation
of a state or federal constitutional rights, something so basic that they might agree
to overturn the conviction based on that. So, for example and Cleans,
two convictions were thrown out nothing todo with guilt innocence. It's simply that
the trial prosecutor used their challenges toexclude black people from the jury. So
(09:33):
just having something so basic like thatthey overturned. So they might have that,
and they also might simply just lookat sentencing, like if someone is
over sentenced, which means that theythat they were guilty, they should have
been given a prison sentence, butnot as much time as they actually got
so actual innocence means that you factuallydid not do it. You know,
(09:56):
you're innocent, You had no rolein it. So it wasn't that they
had you as the trigger man,but actually you were just the candyway driver.
You didn't hold the victim, youdidn't help plan it, you help
go and get away with it.One hundred percent, nothing nothing to do
with it. That's actual innocence.An exonerate is somebody that's been exonerated,
(10:18):
so they've they've established their actual innocence. An exoneration which is the act of
exonerating somebody. The procedure by whatsomeone's recognized as being innocent typically comes from
the court, but it also couldcome from the governor. If there's a
globernatorial pardon on actual innocence grounds,then that also qualifies as as an exoneration.
(10:43):
And in line with that the definitionby the website National Registry of Exonerations,
which is like a clearinghouse of information. Nobody disputes that its authoritative.
They also they include what I justmentioned as definitions of exonerate of an exonerate,
but also if there's a reversal onan innocence related ground, then followed
(11:05):
by an acquittal at a retrial,or a case even being dismissed. That
also count assessing exoneration. That's incontrast to say, if a conviction is
overturned on some issue of state lawthat has nothing to do with actual innocence.
Okay, So a conviction can beoverturned without someone being actually innocent or
(11:28):
even exonerate correct, right, ifthere was left there was an error of
there was a error of state law, or if there was a constitutional violation.
I mean, my constitutional riots couldbe violated in the context of a
case where I'm guilty, that thatcould happen, right, So how eager
are these integrity units to retry caseslike that or to pursue cases like that
(11:50):
where there is not new information thatcould lead to exposing innocence or a different
perpetrator. But just really on thegrounds at this was an unfair trial based
on state law that may have causeda different outcome. If they're not going
to do it just on like anerror of law by itself, it would
need to be just something just likea basic and fundamental right. So if
(12:11):
the judge gave a wrong jury instruction, they're they're not going to agree to
overturn on that, But if someother basic or fundamental right was violated,
then in the spirit of trying touphold rights, then they might do that.
That having been said, in termsof how eager, there's definitely a
prioritization of cases. For example,someone who's incarcerated, that case is generally
(12:37):
going to be prioritized over a personclaiming actual innocence, but who's no longer
incarcerated they've been rolled or their sentencesbacks down. So on the issue of
prioritization, I think that cases wherethere's fundamental rights that were violated, I
think that that is that that's likea half level to a level less than
(13:00):
an actual innocence case. With thecaveat though, if something is just so
obvious and leaps off their pages andonly requires a little bit of research or
lig work to verify, then that'sprobably going to get done faster than a
really time and fact intensive investigation thatinvolves interviewing, like, you know,
eight to twenty people and doing alot of archival research. So some of
(13:24):
it is how much work does howmuch work does it involve, And that's
not just differentiating actual innocence cases fromthese other cases just fundamental rights. But
that's even within actual innocence cases.A case that only has a couple of
steps is going to be prioritized overa case that has a lot of steps.
And I think also while conviction andreview units have a case thought of
(13:48):
a bunch of cases when they're workingout on once a certain case gets to
a certain point where they're finished lineis in sight, they're going to drop
the other cases for a moment andjust go really hard and intend so that
one and finished that case. Oncethat is done, the head of the
conviction review unit, once it they'vemade a decision, they then have to
get the district Attorney hammer herself tosign off on that. So that unit
(14:13):
is separate from the rest of theoffice. It's independent, and they're supposed
to be direct communication with no whenimmediary between the head of the unit and
the elected official, but the electedofficials still has to give the ultimate a
say on that. Okay, thatmakes sense. So I'm thinking about and
again I'm using this example of anunsay it because it was most recently in
(14:33):
the news when they vacated his convictionand the district attorney released him. He
was not yet, it was notyet overturned. That was a release,
and then they had thirty days todecide to retry him, which they ended
up not well. They overturned theconviction. They overturned. That meant that
(14:54):
the guilty verdict was thrown out,and so legally he's back in a position
where just before the defendant enters aplay if guilty or not guilty, the
case is back at that stage.So they over They did overturn it,
and they released him, but theyhadn't decided if they were going to retry
him. So up until the pointwhere they decided to dismiss the case,
(15:15):
it would not be correct to callhim an exonera because he was not exonerated
at that point. But when theyfinalized their decision to dismiss the case,
then he's exonerated. Remember they overturnedbased on innocence related grounds. It was
you know that the two other suspects, you know, there's some other thing
they haven't quite told us yet aboutthe DNA DNA excluding him, I suspect.
(15:39):
I predict what's going to come outin the news, and I've spoken
to no one behind the scenes,but just my own analysis, I think
it's very likely that that somebody gotmatched to that DNA or other than him.
I am almost positive of that readingbetween the lines. They had to
have been so confident to preemptively releasehim because they could continue to hold him
(16:02):
and see how that all played out. But the fact that they they let
him go does suggest something that strongway. Yeah, exactly. Well,
there's there's no question that the Districtattorney's office had a lot of confidence that
it was going to ultimately agree todismiss the case against him. They wanted
to preserve their options to be ableto do it. That's why they didn't
dismiss outright. But believe me,they knew it was an extremely strong likelihood
(16:25):
that they were not going to beretrying him, you know, and that's
why they that's why they agree to, you know, let let him out
like that. Okay, So thattakes me exactly where I want to go,
which is what happens now for anon what happened for you, and
as a state by state, whathappens to an individual after they're released?
Yes, okay. So is thereis there any federal level compensation or recourse?
(16:49):
Yes? So okay, all right, So there's twelve states that there's
there's twelve states that that do notcompensate. Happily, Maryland does come and
say that's understate that's under state law, okay. So that can best be
understood by listeners as like a likea no fault. So all he would
(17:11):
have to do is just prove hewas innocent, right, which he pretty
much can do because they've conceded thaton a criminal level. So just being
exonerated in a criminal case doesn't preventapplicants from having to prove their innocence to
get compensated, okay, So thatstage it's not skipped. But you would
simply take the evidence that already wasrelied on in court and just re you
(17:33):
know, just re resubmit that right. So there's compensation under state law that
varies from state to state as faras what the process is. Generally speaking,
it does involve a court. Connecticuthas a board for example. It's
not court, but in general andmost of the times it's in court,
and all you have to do tobe compensated is proved that you are wrongfully
(17:56):
in prison. Now, there isa there is the nineteen eighty three Federal
Civil Rights Laws, okay, whichyou can bring. Now, the difference
between that and compensation under state lawis that you have to show in your
wrongfully imprisoned is only half of theequation. The other half the equation is
(18:18):
you have to show that there wasa malicious violation of a constitutional right that
led to the wrongful imprisonment. Soif youself so, if you so,
for example, let's say in ain a rate case, for example,
if a alleged rate victim informed thepolice that they had just been raped,
(18:41):
and you know, and then youassuming the police did do missconduct at all
whatsoever on their own, but theymade the arrest and prosecuted based on that
victim's statements, and later on youwere exonerated, let's say through DNA.
Well, you could file a lawsuit, but it's going to be dismissed because
they had probably cause to believe youcommitted the crime. There was no malicious
(19:03):
violation of your constitution right that ledto it. So in the same way,
if somebody is misidentified, for example, then unless there was police misconduct
that facilitated that misidentification, or unlessthey otherwise committed some other misconduct, then
you would have no grounds for theset You would be bounced out of court,
(19:23):
it would be dismissed. I knowthat almost every place you can bring
both. Texas doesn't allow you todo that. You have to pick one,
which one you're going to do.But in general, the general lay
of the land is you can bringboth. So in a state like New
Jersey, where there's an offset,so whatever you get compensated from by the
state and then you get compensated tothe federal lawsuit, then normally what you
(19:47):
got from the state would be subtractedfrom the amount that the jury awarded you
and then you would be owed thebalance because there's an offset. But in
some states, like New York,there was no offset if you if you
settled, So putting some color toall this theoretical framework going in my case,
so I brought I filed in thestate quarters the quart of claims.
(20:10):
That's where that's where it's housed at, and it's all it's decided by a
judge, and after five years theythe Attorney General, agreed to settle the
case. So the defendant is thestate and as such the attorney general defense
the state in the quart of claims. So they settled with me after five
(20:30):
years. So I correspondingly had afederal nineteen eighty three civil rights lawsuit.
And I had four defendants. Therewas County of Westchester because their medical examiner
committed fraud. There was a cityat peak skill because they coerced the false
confession out of me, and theydid not document witness interviews, and so
(20:53):
they settled with me. There wasWestchester County legal aide that was basically collegal
malpractice claim. So the standard ofrepresentation that they gave me at the trial
was so far below what would beaccepted as bare minimum per professional norms that
they had to settle. And thenI also had the fourth defendant, which
(21:15):
was Putnam County because he was theirpolygraphist who also played a role in coercing
the false confession. He falsely attributeda statement to me, but then also
when he heard the threat made againstme, he was supposed to protect me,
but he didn't. So I wentto trial with him, and I
(21:37):
went to trial with him, andI want I have a million questions.
First of all, it sounds likethe onus is on the formerly incarcerated individual
to drive the process. It is, with the caveat being once you've retained
an attorney that the attorney is goingto take the league, so you have
to decide who you want to representyou, but it will then be your
(21:59):
attorney taking the lead, and itis the defendant that has to prove it.
The defendant has the burden of proof, I not the government. So
it's the opposite of the final trial. So you're right, are those legal
costs yours? Yes? To carry? Yes? Put the caveat yes.
Short answer, yes, putting somecolor because this is a more of an
educational episode. So lawyers take thecase on what's referred to as a contingency,
(22:26):
which means that you don't pay theman hourly wage, which very few
including me, wouldever have been ableto afford. So there's no hourly Great.
The lawyers take it on contingency,which means they only get paid if
you win, which means that ifyou lose all of them, all of
the expenses, that they have,all the money that they lad laid out,
(22:48):
Okay, that's all gone, Andall the time and work they put
into your case just went up andspoke and they get a great big goose
sache nothing but in exchange for themto go on that risk, the lawyers
the standard fee is a third,so thirty three and one third. And
then in addition to that you asthe plaintiff, they subtract all of all
(23:15):
the expenses. So every witness ofevery expert that they hired, the transcripts
everything down to the thumbtack and thestamp and the car and the meal and
the thing that can possibly be legitimatelyconnected to the litigation, that's charged to
the defendants. So the way thatit works is happily we get compensated.
(23:36):
We either one a jury verdict orelse we did a settlement. So the
first thing is that that law firmthen sends you, sends the plaintiff a
bill. These are all of theexpenses, and once there's an agreement on
all of those items, that's subtractedfrom the money. And then after that
it's then divided one third to thelaw firm, two thirds to the plaintiff.
(24:00):
So the way that it works outis that in reality, as a
plaintiff, you keep fifty five tosixty percent of what the case either settled
for that you won by a verdict. Now the third thirty tie, I
just want to quickly mention this.If you're out there and you're listening,
and you are a planman for agoing to be or a family member.
(24:22):
Is I want to warn people offof paying more than thirty three and a
third percent. There's a prominent lawfirm that started out at one point was
charging forty percent, and as Iunderstand it has even gotten it up to
forty five percent. There's more thanenough competent lawyers across the country that will
do these cases for you have tostandard thirty three to third, So please
(24:45):
don't sign with them. And ifyou already have fire them as an attorney
and hire somebody different, you willnot have to pay twice. What will
happen is the subsequent lawyer at theold lawyer will work out who's going to
get what percentage, and so youwould not be double built. And any
(25:07):
plane off should know you have theright to change an attorney at any time
for any reason at all or noreason. Right right now, that's really
that's great practical advice. But I'mjust still astounded that that you didn't get
that full Some I agree, andI understand that the lawyer did the work,
(25:32):
but I think that should come fromanother source. And I would say
any wrongful conviction is a malicious violationof a right like in and of itself.
If anyone has proved to be exoneratedwith actual innocence, that is a
vie to me in the court ofmy opinion, that is a violation.
(25:52):
There should be nothing for them todo or prove, or have to put
out a pocket or survive five yearswhile they're in trial for this, you
know, litigation, like what didyou do during those years to support yourself?
Struggled greatly. So I was makingsome money doing speaking engagements, but
as you might imagine, that's nota consistent form of income. And you
(26:14):
know, I'm not exactly making Clintonesque money for public speaking engagements. Okay,
So I was making between five hundredto fifteen hundred dollars, but that's
not consistent form of income. Andsometimes I would have two or three in
the courses of a month, andthen I might go three months without any
clear I caught on as a weeklycolumnist for a newspaper that just happened to
have started. It was independent paper, and I just started like a month
(26:37):
or so before I was exonerated,And so they were willing to do something
unusual and give me, let mebe a beat writer. For them on
largely unrullful conviction, but other justicetopics. So I did those things,
but beyond that, I was alwayspassed over for a game ful employment,
so I lacked stability of housing andwhen I was a couple of weeks away
(27:00):
going to home the shelter. AndI think part of the problem was that
all these places wanted work history,which I couldn't give, and they seemed
they wanted somebody to hit the groundrunning rather than patients for a little bit
up on the job training. SoI was always passed over. So it
was a very difficult thing. Iwant to say between at that time and
now when I was released, andwe're talking about two thousand and six,
(27:22):
and then I was conversated in twentyeleven, we're now in twenty twenty two,
and so I would say that thespeed at settling cases is a lot
faster now. It was maybe betweenlike two to four years rather than the
five. But because I had somany defendants in the civil rights lawsuit,
it took about ten years before Iwas done with everything. But you know,
(27:45):
the last part being the trial againstthe last entity. Wow, and
these twelve states you mentioned that don'thave recourse for wrongfully convicted. What do
they do and what hope do theyhave to hold on to. Well,
let's crystallize that Pennsylvania, Okay,neighboring states to New York and the Foundation.
(28:08):
As part of our being in thatcoalition that could happen to you,
which has a Pennsylvania chapter, we'reactually working in that state towards passing compensation.
And so what we've done is weput together really instructive video. We've
walked the halls of Harrisburg, whichis there a state chapter that We've done
a ton of media. We've metwith a lot of elected officials. We
(28:30):
bring the exonoes with us, andwe have a statewide coalition. So any
office of any elected official, eitheron the representative side or on the Senate
side, we have somebody in ourgroup that's a direct constituent of them,
and we look, we're always addingto the coalition, We're always looking for
other influential people. Now in thatenvironment of us doing that and building support,
(28:55):
I think that it's made an indirectimpact in the last couple of years
insofar as there have been some exonorreaons that have gotten settlements through their nineteen
eighty three civil rights lawsuit that perhapswould not have if it wasn't for all
of the public chatter and discourse aboutcompensation under state law. So there have
been a few people that have gottenthat, maybe like three or four,
(29:18):
but most people have not. Andagain, you know, it's hard to
prove a molist's violation of a constitutionalright, and what we're trying to do
would go backwards. So we're notgoing to say, okay, well,
everybody from this point forward its ownearned compensation. One of our lines and
this is that this has to encompasseverybody that already has been exonerated, So
(29:41):
it has to go backwards. Sothere's a lot of money that's owed on
the front end, but then itwould norm out and you really would be
talking about, however many cases youwould be talking about in the course of
a year. But I will say, just taking a perverse example, West
Memphis three case, which was inArkansas, where the god if it's a
(30:06):
district attorney or the attorney general there, but let's just say the government,
right, so one of their perverseincentives for getting them all to plead out
right, where it was pretty clearthat it was very very likely that all
of those convictions were going to bethrown out. But the problem was one
of the defendants was on death row, and so if that was not thrown
(30:29):
out, he could have been executed. And it became like a package deal
everybody and nobody, and so thedefendants basically took one for the team to
save the other person's life. Buton the governmental end of it, when
this prosecutor was explaining his rationale topeople, because there were even people right
of right that were like, well, why did you do that? Even
(30:52):
though there was some DNA, hewas explaining that, well, this conviction
was likely going to be overturned.You know, I don't think I would
have been able to find them guiltyit ultimately Arkansas would have had to pay
the millions of dollars. But Istopped all that. Wow, I stopped
all that with my with my deal. So at times it can be a
(31:14):
disincentive to do it, but thatbeings sense. I don't think that that's
like every day. I think thatthat subwhat of an outlier, But I
wouldn't say that it never is amotivation either, you know, And in
terms of the financial amounts, Iassume that varies widely and is it based
(31:36):
on lost income over a certain amountof years. I'm sure there's like specific
calculations, but what's the average rangean EXONERI ends up with at the end
of their litigation if they're successful.Well, let me go over the factors
first, so in a particular order, length of time served, how old
was the person that Then you knowwhat mistreatment did they happen while they were
(31:57):
in prison? What was their wages? Like what were you working at?
What job did you have? Howmuch money would you were you making at
the time, So there's lost wages, there's impacted future wages that are calculated,
which again looks at what your jobis, but also takes into account
what did you do with your lifeafterwards? So like you could make the
(32:21):
argument like taking me, so Iobtained a master's degree. So and so
my lawyers could have argued, well, look he got a master's degree,
and how mufat he did that whilethis happened to him. How much more
could he have been? Yeah,so you see that as an example.
There's also calculation of you know,what are your anticipated mental health costs?
(32:44):
You know, what's that going tocost you're going forward, So that can
be that can be another factor.And then just what was this, What
was the maliciousness of what happened?How egregious was the misconduct? What is
it specifically? So all though allof that mix, like and look,
that's that's part of what internally thecivil rights lawyer representing a plane off is
(33:06):
going to take in a consideration andthey're in coming up with a settlement offer
number what they what they offer orwhat they're going to be willing to take.
Yeah, so you mentioned mental healthcare costs and that was actually going
to be my next area I wantedto talk about, which is there's financial
assistance? What about mental health assistance? Is there anything that's given automatically like
(33:32):
understanding the trauma of what has justhappened that you get put into a program?
No, so anything to assume thatas well? Any Yeah, no,
And the ironic thing is the trickof it is that you know,
treatment is something that's critically needed,just like you know, and one of
(33:52):
the costs on the litigation side that'sinitially borne by the lawyer but ultimately transferred
to to the plane of once they'vebeen compensated, is you know, there's
psychological assessments that have to be thathave to be done to try to gauge
the trauma. So that's definitely anan expense that would be like one type
of expert. But the short answer, though is is no. I feel
(34:15):
very strongly as somebody pushing for acompensation in Pennsylvania that and we have this
in what we're pushing is not simplythe financial but we want we want the
re entry. We want you wantthem to be. You know how I
think there should be housing, mentalhealth, doctor dental, access to public
(34:36):
transportation, job training, job placement, classes on technology. It's like there
is you know, there is aneffort in New York which I've assisted,
which would which would pertain to whichwould address those factors. So any organizations
set up like that or those privateright now, if there are those reentry
type well there's places of help,Well, there's re entry organizations, but
(34:58):
that's that's for the that's for peopleon parole or probation, and that's that's
not for exoneries. So a lotof places, so it used to be
all the virtually all the places wouldrefuse to serve. That happened to me
by the way, I went toreentry place and they said, well,
you're not within our mandate and we'renot funded for that, and my argument
(35:22):
was your right. Plus I wasexonerate, I was innocent, I wasn't
guilty and not on parole. Nonetheless, I have many of the same re
entry needs, and so what ifyou can't cite me in your statistics and
explaining you know what you use thegrant money for our donation for. And
(35:42):
I can't be part of your argumentas to why whoever funded you was going
to re up. So what justgive me an extra chair and serve me
and help me. And they wouldnot do that. So I think that
that remains largely true today, althoughsome places that are softening their stance a
little bit on that. But Ithink that that's still true by and large.
But the other aspect of it isthat these places are are overrun themselves.
(36:07):
There is a big waiting list,so you would still there's no fast
track. If the honore doesn't goto the doesn't go to the front of
the line, I guess I thinkexonorees should be put in the front of
the line. I agree they shouldlisten. Logical to me, I agree,
just like I think that anybody youknow has had one kind of error
(36:29):
or another in their case. Ifif it's you know that that's taken place
state law or federal law, constitutional, non constitutional, If your trial wasn't
fair by the law, I firmlyagree that the conviction should be overturned and
you should get another trial that's notinfected by that error. But I can
believe that and still believe that anactual innostance claim should be put ahead of
(36:52):
that, that should be fast trackedfor for obvious moaller reasons. Yeah,
So what do you tell somebody onthe precipice of potential exoneration or who is
just recently released in that situation,having been through it yourself and knowing what
road lies ahead for them. Well, if you're on the precipice of it,
(37:13):
then I mean those days are moreintense, to become harder to serve
in a way. So I wouldencourage people you know, expect to feel
that way. But you swam theocean already, don't drown in one feet
of water. Okay, this isa time to really bury your head and
(37:34):
double steal your will and keep going. Do not, under any circumstances fold
do not agree to take a dealto come home faster, hold out.
There's a world of difference between youand there's going to be an offer.
There almost always is an offer totake an offered please. Yeah. It
(37:59):
could be yeah, it could bea play guilty and you'll come home,
or that's just a straight guilty play. Could be an alpha play, could
be an a low contender play.But whatever kind of play is offered,
don't don't take you. Okay,there is there's a huge world of difference
between coming home that way versus cominghome completely exonerated, having a name back,
(38:20):
and also being eligible for the compensation. So that's that's the other thing
is if you take the play,the simple way of looking at it is
that you know you're not going tobe compensated. I really appreciate what you
were saying about what you would tellsomebody and that advice you gave about not
taking a deal and kind of keepingthis longer, bigger picture, longer road
(38:40):
in mind, because how hard mustthat be when you've already survived such an
ordeal and you're close to the end. I can just so imagine something in
front of you being closer and easierand just doing it. So that's a
really good word to share. AndI want to end by asking you what
can people like me and my listenerswho aren't maybe personally touched by a wrongful
(39:05):
conviction, but who care and areinterested and horrified, you know, what
is the best place for us tostart to help implementing change in our state?
So I think I think a startingpoint would be find out does your
state offer compensation or not? Areyou one of the twelve then you know?
(39:25):
And also how is your state doing? Does a state mandate that best
practices on lineups? Is it mandatorythat the police record interrogations from beginning to
end, preserving evidence? So findout where your state is in terms of
the systemic deficiencies that lead to wrongfulconvictions. So I think that would be
a starting point. But in additionto that, you can google, you
(39:49):
know, put the name of yourstate in legislature and just throw some key
terms out there for you know,confessions, identification, you know, exonre
compensation. There's bound to bills,because no state has all this right right,
even good ones are still lacking certainthings. So I would see what
bills are already introduced that would addresswrongful convictions, and that would contact the
(40:15):
elected efficients and you know, expresssupport for that and have everybody, have
everybody do that. Those are thoseare certainly important steps. There may be
an organization that's that's in your inyour area, in your state, you
know that you could volunteer for themin one way or another. That could
be in person, that could beremote. I would think about careers so
(40:36):
be odd being a lawyer, aparalegal, or an investigator. Other careers
that might not jump out at people, but certainly on the reintegrative side,
psychology, more psychologists that are ableto treat the PTSD specifically for exoneries a
social worker within the context of nonprofitorganizations. Is other fields fundraising, grant
writing, public relations, or socialmedia. Certainly in the podcast space,
(41:00):
which is you know how you're contributinghend raised docuseries. It could be something
as simple as having like a documentarynight or a movie night, you know
with it's from conviction thing. Sothat's that's certainly possible if you're a student
out there. I mean I wasin Scarsdale High School once and they had
an innocence club in high school,which wow, that's so encouraging. I
(41:22):
thought was super cool and certainly certainlycollege students also could have could have a
Rowful Conviction student group. You shareinformation, bring speakers in, show documentaries,
and get involved even in modest fundraisingefforts. Those are certainly ways if
you're working in a working in acooperation that does supporporate philanthropy, Certainly suggesting
(41:44):
an entity that's doing is kind ofwork, just floating that Cenerally, if
you know somebody in educational institution,they can suggest bringing and speaking in to
talk about mowful conviction. So certainly, I mean that's that's usually how I
get booked to do speaking engagement oneperson or another flow it's an idea to
another person. Yeah, so thoseare always and of course joining an advisory
(42:05):
board or joining an actual board.If you're an investigator but not doing this
kind of work, you know youcould agree to do like pro bone or
work for one case. Or ifyou're a lawyer but a totally different feel,
you can still work on one case, whether it's individually and you get
guided along by people, or youcould volunteer at the organization that's doing this
type this type of work, andso you could do some more collaboratively.
(42:28):
So there's a really is really justlimited by your imagination. Okay, well
you heard it here. There areno excuses. Everybody can participate. Everybody
has something to offer. You don'thave to be a lawyer or in criminal
justice. I love what you justput before us. It's like, do
what you do, do what you'realready doing, just apply it in this
direction and we can all do ourpart to make small changes. Before I
(42:52):
let you go, Jeff, I'masking people at the end of interviews this
season to define justice in their ownwords, And man, do I want
to hear this from you? Howdo you define justice? I define justice
that the innocence go free, whilethe guilty are punished with a punishment that's
proportionate to their crime, with lawfullyobtained evidence, through a court proceeding that
(43:19):
respected all state and federal rights anda constitutional rights all according to the law,
come while all actors defense and otherwiseexerted maximum effort. But that would
be how I would define justice.How often do you think that's happening?
(43:43):
Slim and none. Man. Alwaysgreat to talk to you, Jeff.
Thank you so much for being backon Dialogue. Absolute thanks for having me.
Dialogue is a Yellow Tape media productionaudio engineered by Jason Ussrie and produced,
posted and edited by me, RebeccaSebastian. If you love the podcast,
(44:04):
please consider becoming a diehard by signingup at Patreon dot com, slash
Dialogue other ways to support the show, follow along on social media. We
are at Dialogue pod across platforms,and you can now watch most episodes on
YouTube by subscribing to my channel,Rebecca Sebastian. For more information or to
drop me a note, visit RebeccaSebastian dot com. Until next time,
(44:25):
thank you for listening and killing thesmall talk.
Welcome to Dialogue Podcast. I'm yourhost, Rebecca Sebastian, and this is
the true crime podcast where I interviewthe leading voices in crime, culture and
justice, and we're in a seriesabout wrongful convictions. Right now, we're
on week two and today what I'mtalking to Jeff Deskovic, and you should
go back and listen to his firstinterview, which is actually two parts,
(01:11):
which happened two years ago. Ican't even believe that I looked it up
and it was September of twenty twenty. I will link to it in the
show notes. But in that episodean interview, Jeff lays out what happened
to him. He was wrongfully convictedfor the rape and murder of a fifteen
year old student at his high schoolat age sixteen. He then spent sixteen
(01:32):
years behind bars. His story isunbelievable. It honestly is, and it's
worth going back and listening to.Today he gives the real bird's eye view
of his personal story as it relatesto a wrongful conviction. But we more
focus on what happens to a personafter they're released. When the state declares
them an exonoree, they are actuallyinnocent, their conviction is vacated. What
(01:56):
happens? What recourse do they have? We've heard of people suing and getting
money. Does anything just get givento them, awarded to them? How
does the whole process work? Obviouslythis was top of mind with a non
Sayed being home, and we talka bit about that case as well as
the West Memphis three. Jeff isso candid and not only does he have
his own lived experience as a wrongfullyconvicted person to draw from. Jeff got
(02:20):
his master's degree and ultimately became alawyer through his incarceration, and after then
he went and used his settlement moneyto start a foundation called the Deskovic Foundation.
It's based here in New York.And like I said, I brought
him on to talk about what happensafter and guys, it is not great
(02:40):
news. It's pretty bleak. It'sreally infuriating, and if you're like me,
you're gonna be pissed. The goodnews is I ask Jeff what we
can do, and he rattled offlike five to ten minutes worth of things
you and I can do. Andyou don't need to be an investigator,
(03:01):
you don't need to be a lawyer. You don't need to be a law
enforcement or work from the criminal justicesystem. There is truly a way everyone
can use their own gifts, talents, and influence to help this cause.
Jeff's foundation is working to change legislation. You're going to hear all about it.
He did not plug his Patreon,but he has one. I am
(03:22):
a supporter since his interview two yearsago, and I will link to that
in the show notes as well.A wonderful way to help is to make
a modest donation. You can donateas little as one dollar a month without
further ado. Please I won't sayenjoy, but hold tight to this episode.
Share this. People need to knowand understand this as wrongful convictions get
(03:44):
a little bit higher in the truecrime consciousness. This is the next step.
Not enough to care, it's notenough to know they happen. What
do we do now? This iswhat we do now. So please take
heart because there is hope. Butbefore that, I guess comes the righteous
Singer. Jeff. Thank you forkilling the small talk. Jeff, welcome
(04:12):
back to Dialogue Podcast. I'm thrilledto have you for the second time.
Thank you. I'm glad to beback as well. You know I realized
it was two years ago. Ithought maybe it was last year, but
it was actually twenty twenty. Andso for anyone who hasn't heard Jeff's story,
do go back. I'll even putthe first it's one of two parts
his two part story in the shownotes, because I think it's important to
(04:33):
frame this conversation with your bigger conversation. But I'm excited about today because I'm
bringing you on as an expert,because that's what you are now. Your
lived experience combined with your legal experience, allows you to speak into wrongful convictions,
which is what I want to revisiton the podcast. But maybe you
could just give the snapshot version ofyour personal story for anyone just tuning in
(04:56):
who doesn't know it, and thenwe'll get into some full conviction kind of
in the weeds, if you will. Yeah, absolutely so. I'm the
founder of the Jeffery Duskovic Foundation forJustice, which has three eleven wrongfully convicted
people, helped pass three laws aimthey're preventing wrongful conviction, an advisory board
member of the National Coalition Group ThatCould Happen to You, which also helped
passing laws, and I sit ona global Advisory Council for Restorative Justice International,
(05:21):
Mebiana had being a lawyer and havingand having obviously having a law degrail,
so have my master's degree. Mythesis is written on rowful conviction causes
and reform. And I had aton of media interviews and I've also meet
readily meet with elected officials in NewYork, Pennsylvania, California, have a
ton of media done on me,and I've written several hundred articles on roewful
(05:43):
conviction. But my motivation, ofcourse is that I was exonerated myself.
I spent sixteen years in prison fromI got in arrest when I was sixteen.
I turned seventeen by the time thetrial rolled around where despite a pretrial
negative DNA test result, I waswrongfully convicted for murder and based on a
coerce Wals confession prosecutorium it's conduct firedby the medical salimenter retirable public defender.
(06:06):
Last seven appeals got turned out footballultimately was exonerating through further DNA testing which
identified the actual perpetrators of my chargewould dismiss on actual instance grounds. The
actual perpetrator was arresting convicted, andI have this mission in life now,
to free other people in the sameposition I was while working, and to
(06:26):
prevent them fromage to other people andclassy. There is the documentary Short Conviction
produced by Geo Works, which isavailable on Amazon Prime, about my life
post exoneration and the ad Secret.Another past dialogue guest I Love It.
Adnan Sayed was in the news veryrecently as his conviction was overturned, and
I saw a lot of sort ofmisnomers being attached to him as an exonoree.
(06:48):
But that was right when his convictionwas vacated. So I thought we
could just start with some real baselinedefinitions, from vacating a conviction to overturning
to exoneration. Actual innocent is somethingyou mentioned. Could you take us through
each of these terms, define themand what are the stages of innocence when
someone goes from incarcerated and then maybeis released to innocence. So let's start,
(07:12):
like, what's the first step tosomebody who the state says this guy
might not have done it, theymight be innocent. Is that the vacated
conviction, well them saying it notnecessarily that might that they might A Conviction
and Review unit, which is awould sometimes called Conviction and Integrity Unit Conviction
Integrity Bureau, different letters, samething. What that is is a unit
(07:38):
within the District Attorney's office itself thatand reinvestigates possible wrongful conviction cases. The
reason why you had defended and thedefense attorney or a nonprofitility working of free
people would want to go there ratherthan going in a court is because,
first of all, it's it's acooperative reinvestigation. You have access to the
(08:00):
District attorney's files. There's probably somethingin there that you wouldn't have access to
otherwise. And in terms of reinvestigatingcases, you can strategically desire like what
witnesses or what people do we wantto talk to, who should the defense
interview, who should the prostitution,which one should be done jointly? And
of course the ultimate advantage of doingworking that way with the Conviction and Review
(08:24):
Unit is if they ultimately agree thatthe conviction should be vacated, then with
both with both sides filing a postconviction motion. While it's not impossible that
the judge would deny it, it'snot very likely. So let me throw
some terms and laid some general groundthat just dawns on me now, and
then I want you to reiterate thoseother points that you asked about it.
(08:46):
So, the conviction review units lookfor actual innocence cases, and just as
a general fyi, it could bebrought to their attention by an attorney,
or it could be by the defendantor cold or it could be on their
own hook, on their own initiative. And while they're looking at actual innocence,
many of the units go beyond that. Beyond guilt innocence, they also
(09:11):
include within the scope of cases thatthey'll look at, is there a violation
of a state or federal constitutional rights, something so basic that they might agree
to overturn the conviction based on that. So, for example and Cleans,
two convictions were thrown out nothing todo with guilt innocence. It's simply that
the trial prosecutor used their challenges toexclude black people from the jury. So
(09:33):
just having something so basic like thatthey overturned. So they might have that,
and they also might simply just lookat sentencing, like if someone is
over sentenced, which means that theythat they were guilty, they should have
been given a prison sentence, butnot as much time as they actually got
so actual innocence means that you factuallydid not do it. You know,
(09:56):
you're innocent, You had no rolein it. So it wasn't that they
had you as the trigger man,but actually you were just the candyway driver.
You didn't hold the victim, youdidn't help plan it, you help
go and get away with it.One hundred percent, nothing nothing to do
with it. That's actual innocence.An exonerate is somebody that's been exonerated,
(10:18):
so they've they've established their actual innocence. An exoneration which is the act of
exonerating somebody. The procedure by whatsomeone's recognized as being innocent typically comes from
the court, but it also couldcome from the governor. If there's a
globernatorial pardon on actual innocence grounds,then that also qualifies as as an exoneration.
(10:43):
And in line with that the definitionby the website National Registry of Exonerations,
which is like a clearinghouse of information. Nobody disputes that its authoritative.
They also they include what I justmentioned as definitions of exonerate of an exonerate,
but also if there's a reversal onan innocence related ground, then followed
(11:05):
by an acquittal at a retrial,or a case even being dismissed. That
also count assessing exoneration. That's incontrast to say, if a conviction is
overturned on some issue of state lawthat has nothing to do with actual innocence.
Okay, So a conviction can beoverturned without someone being actually innocent or
(11:28):
even exonerate correct, right, ifthere was left there was an error of
there was a error of state law, or if there was a constitutional violation.
I mean, my constitutional riots couldbe violated in the context of a
case where I'm guilty, that thatcould happen, right, So how eager
are these integrity units to retry caseslike that or to pursue cases like that
(11:50):
where there is not new information thatcould lead to exposing innocence or a different
perpetrator. But just really on thegrounds at this was an unfair trial based
on state law that may have causeda different outcome. If they're not going
to do it just on like anerror of law by itself, it would
need to be just something just likea basic and fundamental right. So if
(12:11):
the judge gave a wrong jury instruction, they're they're not going to agree to
overturn on that, But if someother basic or fundamental right was violated,
then in the spirit of trying touphold rights, then they might do that.
That having been said, in termsof how eager, there's definitely a
prioritization of cases. For example,someone who's incarcerated, that case is generally
(12:37):
going to be prioritized over a personclaiming actual innocence, but who's no longer
incarcerated they've been rolled or their sentencesbacks down. So on the issue of
prioritization, I think that cases wherethere's fundamental rights that were violated, I
think that that is that that's likea half level to a level less than
(13:00):
an actual innocence case. With thecaveat though, if something is just so
obvious and leaps off their pages andonly requires a little bit of research or
lig work to verify, then that'sprobably going to get done faster than a
really time and fact intensive investigation thatinvolves interviewing, like, you know,
eight to twenty people and doing alot of archival research. So some of
(13:24):
it is how much work does howmuch work does it involve, And that's
not just differentiating actual innocence cases fromthese other cases just fundamental rights. But
that's even within actual innocence cases.A case that only has a couple of
steps is going to be prioritized overa case that has a lot of steps.
And I think also while conviction andreview units have a case thought of
(13:48):
a bunch of cases when they're workingout on once a certain case gets to
a certain point where they're finished lineis in sight, they're going to drop
the other cases for a moment andjust go really hard and intend so that
one and finished that case. Oncethat is done, the head of the
conviction review unit, once it they'vemade a decision, they then have to
get the district Attorney hammer herself tosign off on that. So that unit
(14:13):
is separate from the rest of theoffice. It's independent, and they're supposed
to be direct communication with no whenimmediary between the head of the unit and
the elected official, but the electedofficials still has to give the ultimate a
say on that. Okay, thatmakes sense. So I'm thinking about and
again I'm using this example of anunsay it because it was most recently in
(14:33):
the news when they vacated his convictionand the district attorney released him. He
was not yet, it was notyet overturned. That was a release,
and then they had thirty days todecide to retry him, which they ended
up not well. They overturned theconviction. They overturned. That meant that
(14:54):
the guilty verdict was thrown out,and so legally he's back in a position
where just before the defendant enters aplay if guilty or not guilty, the
case is back at that stage.So they over They did overturn it,
and they released him, but theyhadn't decided if they were going to retry
him. So up until the pointwhere they decided to dismiss the case,
(15:15):
it would not be correct to callhim an exonera because he was not exonerated
at that point. But when theyfinalized their decision to dismiss the case,
then he's exonerated. Remember they overturnedbased on innocence related grounds. It was
you know that the two other suspects, you know, there's some other thing
they haven't quite told us yet aboutthe DNA DNA excluding him, I suspect.
(15:39):
I predict what's going to come outin the news, and I've spoken
to no one behind the scenes,but just my own analysis, I think
it's very likely that that somebody gotmatched to that DNA or other than him.
I am almost positive of that readingbetween the lines. They had to
have been so confident to preemptively releasehim because they could continue to hold him
(16:02):
and see how that all played out. But the fact that they they let
him go does suggest something that strongway. Yeah, exactly. Well,
there's there's no question that the Districtattorney's office had a lot of confidence that
it was going to ultimately agree todismiss the case against him. They wanted
to preserve their options to be ableto do it. That's why they didn't
dismiss outright. But believe me,they knew it was an extremely strong likelihood
(16:25):
that they were not going to beretrying him, you know, and that's
why they that's why they agree to, you know, let let him out
like that. Okay, So thattakes me exactly where I want to go,
which is what happens now for anon what happened for you, and
as a state by state, whathappens to an individual after they're released?
Yes, okay. So is thereis there any federal level compensation or recourse?
(16:49):
Yes? So okay, all right, So there's twelve states that there's
there's twelve states that that do notcompensate. Happily, Maryland does come and
say that's understate that's under state law, okay. So that can best be
understood by listeners as like a likea no fault. So all he would
(17:11):
have to do is just prove hewas innocent, right, which he pretty
much can do because they've conceded thaton a criminal level. So just being
exonerated in a criminal case doesn't preventapplicants from having to prove their innocence to
get compensated, okay, So thatstage it's not skipped. But you would
simply take the evidence that already wasrelied on in court and just re you
(17:33):
know, just re resubmit that right. So there's compensation under state law that
varies from state to state as faras what the process is. Generally speaking,
it does involve a court. Connecticuthas a board for example. It's
not court, but in general andmost of the times it's in court,
and all you have to do tobe compensated is proved that you are wrongfully
(17:56):
in prison. Now, there isa there is the nineteen eighty three Federal
Civil Rights Laws, okay, whichyou can bring. Now, the difference
between that and compensation under state lawis that you have to show in your
wrongfully imprisoned is only half of theequation. The other half the equation is
(18:18):
you have to show that there wasa malicious violation of a constitutional right that
led to the wrongful imprisonment. Soif youself so, if you so,
for example, let's say in ain a rate case, for example,
if a alleged rate victim informed thepolice that they had just been raped,
(18:41):
and you know, and then youassuming the police did do missconduct at all
whatsoever on their own, but theymade the arrest and prosecuted based on that
victim's statements, and later on youwere exonerated, let's say through DNA.
Well, you could file a lawsuit, but it's going to be dismissed because
they had probably cause to believe youcommitted the crime. There was no malicious
(19:03):
violation of your constitution right that ledto it. So in the same way,
if somebody is misidentified, for example, then unless there was police misconduct
that facilitated that misidentification, or unlessthey otherwise committed some other misconduct, then
you would have no grounds for theset You would be bounced out of court,
(19:23):
it would be dismissed. I knowthat almost every place you can bring
both. Texas doesn't allow you todo that. You have to pick one,
which one you're going to do.But in general, the general lay
of the land is you can bringboth. So in a state like New
Jersey, where there's an offset,so whatever you get compensated from by the
state and then you get compensated tothe federal lawsuit, then normally what you
(19:47):
got from the state would be subtractedfrom the amount that the jury awarded you
and then you would be owed thebalance because there's an offset. But in
some states, like New York,there was no offset if you if you
settled, So putting some color toall this theoretical framework going in my case,
so I brought I filed in thestate quarters the quart of claims.
(20:10):
That's where that's where it's housed at, and it's all it's decided by a
judge, and after five years theythe Attorney General, agreed to settle the
case. So the defendant is thestate and as such the attorney general defense
the state in the quart of claims. So they settled with me after five
(20:30):
years. So I correspondingly had afederal nineteen eighty three civil rights lawsuit.
And I had four defendants. Therewas County of Westchester because their medical examiner
committed fraud. There was a cityat peak skill because they coerced the false
confession out of me, and theydid not document witness interviews, and so
(20:53):
they settled with me. There wasWestchester County legal aide that was basically collegal
malpractice claim. So the standard ofrepresentation that they gave me at the trial
was so far below what would beaccepted as bare minimum per professional norms that
they had to settle. And thenI also had the fourth defendant, which
(21:15):
was Putnam County because he was theirpolygraphist who also played a role in coercing
the false confession. He falsely attributeda statement to me, but then also
when he heard the threat made againstme, he was supposed to protect me,
but he didn't. So I wentto trial with him, and I
(21:37):
went to trial with him, andI want I have a million questions.
First of all, it sounds likethe onus is on the formerly incarcerated individual
to drive the process. It is, with the caveat being once you've retained
an attorney that the attorney is goingto take the league, so you have
to decide who you want to representyou, but it will then be your
(21:59):
attorney taking the lead, and itis the defendant that has to prove it.
The defendant has the burden of proof, I not the government. So
it's the opposite of the final trial. So you're right, are those legal
costs yours? Yes? To carry? Yes? Put the caveat yes.
Short answer, yes, putting somecolor because this is a more of an
educational episode. So lawyers take thecase on what's referred to as a contingency,
(22:26):
which means that you don't pay theman hourly wage, which very few
including me, wouldever have been ableto afford. So there's no hourly Great.
The lawyers take it on contingency,which means they only get paid if
you win, which means that ifyou lose all of them, all of
the expenses, that they have,all the money that they lad laid out,
(22:48):
Okay, that's all gone, Andall the time and work they put
into your case just went up andspoke and they get a great big goose
sache nothing but in exchange for themto go on that risk, the lawyers
the standard fee is a third,so thirty three and one third. And
then in addition to that you asthe plaintiff, they subtract all of all
(23:15):
the expenses. So every witness ofevery expert that they hired, the transcripts
everything down to the thumbtack and thestamp and the car and the meal and
the thing that can possibly be legitimatelyconnected to the litigation, that's charged to
the defendants. So the way thatit works is happily we get compensated.
(23:36):
We either one a jury verdict orelse we did a settlement. So the
first thing is that that law firmthen sends you, sends the plaintiff a
bill. These are all of theexpenses, and once there's an agreement on
all of those items, that's subtractedfrom the money. And then after that
it's then divided one third to thelaw firm, two thirds to the plaintiff.
(24:00):
So the way that it works outis that in reality, as a
plaintiff, you keep fifty five tosixty percent of what the case either settled
for that you won by a verdict. Now the third thirty tie, I
just want to quickly mention this.If you're out there and you're listening,
and you are a planman for agoing to be or a family member.
(24:22):
Is I want to warn people offof paying more than thirty three and a
third percent. There's a prominent lawfirm that started out at one point was
charging forty percent, and as Iunderstand it has even gotten it up to
forty five percent. There's more thanenough competent lawyers across the country that will
do these cases for you have tostandard thirty three to third, So please
(24:45):
don't sign with them. And ifyou already have fire them as an attorney
and hire somebody different, you willnot have to pay twice. What will
happen is the subsequent lawyer at theold lawyer will work out who's going to
get what percentage, and so youwould not be double built. And any
(25:07):
plane off should know you have theright to change an attorney at any time
for any reason at all or noreason. Right right now, that's really
that's great practical advice. But I'mjust still astounded that that you didn't get
that full Some I agree, andI understand that the lawyer did the work,
(25:32):
but I think that should come fromanother source. And I would say
any wrongful conviction is a malicious violationof a right like in and of itself.
If anyone has proved to be exoneratedwith actual innocence, that is a
vie to me in the court ofmy opinion, that is a violation.
(25:52):
There should be nothing for them todo or prove, or have to put
out a pocket or survive five yearswhile they're in trial for this, you
know, litigation, like what didyou do during those years to support yourself?
Struggled greatly. So I was makingsome money doing speaking engagements, but
as you might imagine, that's nota consistent form of income. And you
(26:14):
know, I'm not exactly making Clintonesque money for public speaking engagements. Okay,
So I was making between five hundredto fifteen hundred dollars, but that's
not consistent form of income. Andsometimes I would have two or three in
the courses of a month, andthen I might go three months without any
clear I caught on as a weeklycolumnist for a newspaper that just happened to
have started. It was independent paper, and I just started like a month
(26:37):
or so before I was exonerated,And so they were willing to do something
unusual and give me, let mebe a beat writer. For them on
largely unrullful conviction, but other justicetopics. So I did those things,
but beyond that, I was alwayspassed over for a game ful employment,
so I lacked stability of housing andwhen I was a couple of weeks away
(27:00):
going to home the shelter. AndI think part of the problem was that
all these places wanted work history,which I couldn't give, and they seemed
they wanted somebody to hit the groundrunning rather than patients for a little bit
up on the job training. SoI was always passed over. So it
was a very difficult thing. Iwant to say between at that time and
now when I was released, andwe're talking about two thousand and six,
(27:22):
and then I was conversated in twentyeleven, we're now in twenty twenty two,
and so I would say that thespeed at settling cases is a lot
faster now. It was maybe betweenlike two to four years rather than the
five. But because I had somany defendants in the civil rights lawsuit,
it took about ten years before Iwas done with everything. But you know,
(27:45):
the last part being the trial againstthe last entity. Wow, and
these twelve states you mentioned that don'thave recourse for wrongfully convicted. What do
they do and what hope do theyhave to hold on to. Well,
let's crystallize that Pennsylvania, Okay,neighboring states to New York and the Foundation.
(28:08):
As part of our being in thatcoalition that could happen to you,
which has a Pennsylvania chapter, we'reactually working in that state towards passing compensation.
And so what we've done is weput together really instructive video. We've
walked the halls of Harrisburg, whichis there a state chapter that We've done
a ton of media. We've metwith a lot of elected officials. We
(28:30):
bring the exonoes with us, andwe have a statewide coalition. So any
office of any elected official, eitheron the representative side or on the Senate
side, we have somebody in ourgroup that's a direct constituent of them,
and we look, we're always addingto the coalition, We're always looking for
other influential people. Now in thatenvironment of us doing that and building support,
(28:55):
I think that it's made an indirectimpact in the last couple of years
insofar as there have been some exonorreaons that have gotten settlements through their nineteen
eighty three civil rights lawsuit that perhapswould not have if it wasn't for all
of the public chatter and discourse aboutcompensation under state law. So there have
been a few people that have gottenthat, maybe like three or four,
(29:18):
but most people have not. Andagain, you know, it's hard to
prove a molist's violation of a constitutionalright, and what we're trying to do
would go backwards. So we're notgoing to say, okay, well,
everybody from this point forward its ownearned compensation. One of our lines and
this is that this has to encompasseverybody that already has been exonerated, So
(29:41):
it has to go backwards. Sothere's a lot of money that's owed on
the front end, but then itwould norm out and you really would be
talking about, however many cases youwould be talking about in the course of
a year. But I will say, just taking a perverse example, West
Memphis three case, which was inArkansas, where the god if it's a
(30:06):
district attorney or the attorney general there, but let's just say the government,
right, so one of their perverseincentives for getting them all to plead out
right, where it was pretty clearthat it was very very likely that all
of those convictions were going to bethrown out. But the problem was one
of the defendants was on death row, and so if that was not thrown
(30:29):
out, he could have been executed. And it became like a package deal
everybody and nobody, and so thedefendants basically took one for the team to
save the other person's life. Buton the governmental end of it, when
this prosecutor was explaining his rationale topeople, because there were even people right
of right that were like, well, why did you do that? Even
(30:52):
though there was some DNA, hewas explaining that, well, this conviction
was likely going to be overturned.You know, I don't think I would
have been able to find them guiltyit ultimately Arkansas would have had to pay
the millions of dollars. But Istopped all that. Wow, I stopped
all that with my with my deal. So at times it can be a
(31:14):
disincentive to do it, but thatbeings sense. I don't think that that's
like every day. I think thatthat subwhat of an outlier, But I
wouldn't say that it never is amotivation either, you know, And in
terms of the financial amounts, Iassume that varies widely and is it based
(31:36):
on lost income over a certain amountof years. I'm sure there's like specific
calculations, but what's the average rangean EXONERI ends up with at the end
of their litigation if they're successful.Well, let me go over the factors
first, so in a particular order, length of time served, how old
was the person that Then you knowwhat mistreatment did they happen while they were
(31:57):
in prison? What was their wages? Like what were you working at?
What job did you have? Howmuch money would you were you making at
the time, So there's lost wages, there's impacted future wages that are calculated,
which again looks at what your jobis, but also takes into account
what did you do with your lifeafterwards? So like you could make the
(32:21):
argument like taking me, so Iobtained a master's degree. So and so
my lawyers could have argued, well, look he got a master's degree,
and how mufat he did that whilethis happened to him. How much more
could he have been? Yeah,so you see that as an example.
There's also calculation of you know,what are your anticipated mental health costs?
(32:44):
You know, what's that going tocost you're going forward, So that can
be that can be another factor.And then just what was this, What
was the maliciousness of what happened?How egregious was the misconduct? What is
it specifically? So all though allof that mix, like and look,
that's that's part of what internally thecivil rights lawyer representing a plane off is
(33:06):
going to take in a consideration andthey're in coming up with a settlement offer
number what they what they offer orwhat they're going to be willing to take.
Yeah, so you mentioned mental healthcare costs and that was actually going
to be my next area I wantedto talk about, which is there's financial
assistance? What about mental health assistance? Is there anything that's given automatically like
(33:32):
understanding the trauma of what has justhappened that you get put into a program?
No, so anything to assume thatas well? Any Yeah, no,
And the ironic thing is the trickof it is that you know,
treatment is something that's critically needed,just like you know, and one of
(33:52):
the costs on the litigation side that'sinitially borne by the lawyer but ultimately transferred
to to the plane of once they'vebeen compensated, is you know, there's
psychological assessments that have to be thathave to be done to try to gauge
the trauma. So that's definitely anan expense that would be like one type
of expert. But the short answer, though is is no. I feel
(34:15):
very strongly as somebody pushing for acompensation in Pennsylvania that and we have this
in what we're pushing is not simplythe financial but we want we want the
re entry. We want you wantthem to be. You know how I
think there should be housing, mentalhealth, doctor dental, access to public
(34:36):
transportation, job training, job placement, classes on technology. It's like there
is you know, there is aneffort in New York which I've assisted,
which would which would pertain to whichwould address those factors. So any organizations
set up like that or those privateright now, if there are those reentry
type well there's places of help,Well, there's re entry organizations, but
(34:58):
that's that's for the that's for peopleon parole or probation, and that's that's
not for exoneries. So a lotof places, so it used to be
all the virtually all the places wouldrefuse to serve. That happened to me
by the way, I went toreentry place and they said, well,
you're not within our mandate and we'renot funded for that, and my argument
(35:22):
was your right. Plus I wasexonerate, I was innocent, I wasn't
guilty and not on parole. Nonetheless, I have many of the same re
entry needs, and so what ifyou can't cite me in your statistics and
explaining you know what you use thegrant money for our donation for. And
(35:42):
I can't be part of your argumentas to why whoever funded you was going
to re up. So what justgive me an extra chair and serve me
and help me. And they wouldnot do that. So I think that
that remains largely true today, althoughsome places that are softening their stance a
little bit on that. But Ithink that that's still true by and large.
But the other aspect of it isthat these places are are overrun themselves.
(36:07):
There is a big waiting list,so you would still there's no fast
track. If the honore doesn't goto the doesn't go to the front of
the line, I guess I thinkexonorees should be put in the front of
the line. I agree they shouldlisten. Logical to me, I agree,
just like I think that anybody youknow has had one kind of error
(36:29):
or another in their case. Ifif it's you know that that's taken place
state law or federal law, constitutional, non constitutional, If your trial wasn't
fair by the law, I firmlyagree that the conviction should be overturned and
you should get another trial that's notinfected by that error. But I can
believe that and still believe that anactual innostance claim should be put ahead of
(36:52):
that, that should be fast trackedfor for obvious moaller reasons. Yeah,
So what do you tell somebody onthe precipice of potential exoneration or who is
just recently released in that situation,having been through it yourself and knowing what
road lies ahead for them. Well, if you're on the precipice of it,
(37:13):
then I mean those days are moreintense, to become harder to serve
in a way. So I wouldencourage people you know, expect to feel
that way. But you swam theocean already, don't drown in one feet
of water. Okay, this isa time to really bury your head and
(37:34):
double steal your will and keep going. Do not, under any circumstances fold
do not agree to take a dealto come home faster, hold out.
There's a world of difference between youand there's going to be an offer.
There almost always is an offer totake an offered please. Yeah. It
(37:59):
could be yeah, it could bea play guilty and you'll come home,
or that's just a straight guilty play. Could be an alpha play, could
be an a low contender play.But whatever kind of play is offered,
don't don't take you. Okay,there is there's a huge world of difference
between coming home that way versus cominghome completely exonerated, having a name back,
(38:20):
and also being eligible for the compensation. So that's that's the other thing
is if you take the play,the simple way of looking at it is
that you know you're not going tobe compensated. I really appreciate what you
were saying about what you would tellsomebody and that advice you gave about not
taking a deal and kind of keepingthis longer, bigger picture, longer road
(38:40):
in mind, because how hard mustthat be when you've already survived such an
ordeal and you're close to the end. I can just so imagine something in
front of you being closer and easierand just doing it. So that's a
really good word to share. AndI want to end by asking you what
can people like me and my listenerswho aren't maybe personally touched by a wrongful
(39:05):
conviction, but who care and areinterested and horrified, you know, what
is the best place for us tostart to help implementing change in our state?
So I think I think a startingpoint would be find out does your
state offer compensation or not? Areyou one of the twelve then you know?
(39:25):
And also how is your state doing? Does a state mandate that best
practices on lineups? Is it mandatorythat the police record interrogations from beginning to
end, preserving evidence? So findout where your state is in terms of
the systemic deficiencies that lead to wrongfulconvictions. So I think that would be
a starting point. But in additionto that, you can google, you
(39:49):
know, put the name of yourstate in legislature and just throw some key
terms out there for you know,confessions, identification, you know, exonre
compensation. There's bound to bills,because no state has all this right right,
even good ones are still lacking certainthings. So I would see what
bills are already introduced that would addresswrongful convictions, and that would contact the
(40:15):
elected efficients and you know, expresssupport for that and have everybody, have
everybody do that. Those are thoseare certainly important steps. There may be
an organization that's that's in your inyour area, in your state, you
know that you could volunteer for themin one way or another. That could
be in person, that could beremote. I would think about careers so
(40:36):
be odd being a lawyer, aparalegal, or an investigator. Other careers
that might not jump out at people, but certainly on the reintegrative side,
psychology, more psychologists that are ableto treat the PTSD specifically for exoneries a
social worker within the context of nonprofitorganizations. Is other fields fundraising, grant
writing, public relations, or socialmedia. Certainly in the podcast space,
(41:00):
which is you know how you're contributinghend raised docuseries. It could be something
as simple as having like a documentarynight or a movie night, you know
with it's from conviction thing. Sothat's that's certainly possible if you're a student
out there. I mean I wasin Scarsdale High School once and they had
an innocence club in high school,which wow, that's so encouraging. I
(41:22):
thought was super cool and certainly certainlycollege students also could have could have a
Rowful Conviction student group. You shareinformation, bring speakers in, show documentaries,
and get involved even in modest fundraisingefforts. Those are certainly ways if
you're working in a working in acooperation that does supporporate philanthropy, Certainly suggesting
(41:44):
an entity that's doing is kind ofwork, just floating that Cenerally, if
you know somebody in educational institution,they can suggest bringing and speaking in to
talk about mowful conviction. So certainly, I mean that's that's usually how I
get booked to do speaking engagement oneperson or another flow it's an idea to
another person. Yeah, so thoseare always and of course joining an advisory
(42:05):
board or joining an actual board.If you're an investigator but not doing this
kind of work, you know youcould agree to do like pro bone or
work for one case. Or ifyou're a lawyer but a totally different feel,
you can still work on one case, whether it's individually and you get
guided along by people, or youcould volunteer at the organization that's doing this
type this type of work, andso you could do some more collaboratively.
(42:28):
So there's a really is really justlimited by your imagination. Okay, well
you heard it here. There areno excuses. Everybody can participate. Everybody
has something to offer. You don'thave to be a lawyer or in criminal
justice. I love what you justput before us. It's like, do
what you do, do what you'realready doing, just apply it in this
direction and we can all do ourpart to make small changes. Before I
(42:52):
let you go, Jeff, I'masking people at the end of interviews this
season to define justice in their ownwords, And man, do I want
to hear this from you? Howdo you define justice? I define justice
that the innocence go free, whilethe guilty are punished with a punishment that's
proportionate to their crime, with lawfullyobtained evidence, through a court proceeding that
(43:19):
respected all state and federal rights anda constitutional rights all according to the law,
come while all actors defense and otherwiseexerted maximum effort. But that would
be how I would define justice.How often do you think that's happening?
(43:43):
Slim and none. Man. Alwaysgreat to talk to you, Jeff.
Thank you so much for being backon Dialogue. Absolute thanks for having me.
Dialogue is a Yellow Tape media productionaudio engineered by Jason Ussrie and produced,
posted and edited by me, RebeccaSebastian. If you love the podcast,
(44:04):
please consider becoming a diehard by signingup at Patreon dot com, slash
Dialogue other ways to support the show, follow along on social media. We
are at Dialogue pod across platforms,and you can now watch most episodes on
YouTube by subscribing to my channel,Rebecca Sebastian. For more information or to
drop me a note, visit RebeccaSebastian dot com. Until next time,
(44:25):
thank you for listening and killing thesmall talk.
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