Lessons Not Learned - The Innocence Project

evidently elected to forgo the argument. In his summation, however, the prosecutor went on
the offensive, arguing from a photograph that the physical condition of the bra corroborated the
claim regarding it in Deskovic’s statement. 126 Undoubtedly in an effort to assess the validity of
this assertion, the jury, during deliberations, asked not for the photograph, but for the physical
exhibit itself. 127 Only then did the court explain what had happened. 128 It told jurors that it could
not comply with their request.
As counsel pointed out in renewing his mistrial bid, 129 the bra had become important
evidence in the case because the jury asked to see it during their deliberations. Jurors asked for
it, presumably, because it was relevant to their determination of the matter before them. Because
the inexcusable loss of the evidence prevented the court from offering jurors a meaningful
response to their inquiry, it adversely affected the fairness of Deskovic’s trial.
INTRODUCTION
CORRECTIVE ACTION
It is obvious that an enormous and horrific injustice was imposed upon Jeffrey Mark
Deskovic by the State of New York.
Detectives testified at trial that Deskovic confessed to committing this crime. But the
crime scene DNA evidence introduced at trial proved that the semen recovered from the victim’s
body was not his. You would expect that DNA would trump a “confession.” But it didn’t. The
jury gave more weight to an immature and distraught youngster’s unrecorded “confession” than
to the DNA and other forensic evidence (e.g., microscopic hair comparison). The juror’s gave
credence to the prosecutor’s theory – unsupported by any evidence – that the semen found in the
victim’s body was from a consensual sexual relationship with someone else.
As previously discussed, for some time after the conviction, the then-DA refused to run
the unknown DNA profile through the ever expanding State and Federal DNA Databases. No
New York statute offered a remedy to a wrongfully convicted defendant who was seeking a
Database comparison. Courts continually refused to order the DA to act. In June 2006, Janet
DiFiore, the newly elected Westchester County District Attorney, met with Barry Scheck of the
Innocence Project and promptly agreed to have the Crime Lab conduct the more sophisticated
STR analysis on the semen found on the victim and then to seek a match in the CODIS databases
for the unknown crime scene DNA profile.
There was a cold hit in November 2006 – almost 17 years after Deskovic was wrongfully
126 See Prosecutor’s Summation, Trial Tr. at 1511-12.
127 See Colloquy, Trial Tr. at 1677.
128 See Trial Tr. at 1690-92.
129 See Colloquy, Trial Tr. at 1680-87.
112 THe InnoCenCe PRoJeCT