Lessons Not Learned - The Innocence Project

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Selective Recording of Deskovic’s Statements The police had no problem getting Jeffrey Deskovic to talk to them about Angela Correa. On seven separate occasions between December 12, 1989, and January 25, 1990, Deskovic spoke with the authorities about the case. 24 The Peekskill detectives also had the wherewithal to record their interrogations of Deskovic. 25 By recording those sessions only selectively, and by failing to record those portions of the interrogations in which Deskovic allegedly made his most incriminating remarks, the police denied the jury an essential tool for evaluating the setting in which the statements were made. The police failure to create a complete taped record of their interrogations of Deskovic was likely a major cause of this erroneous conviction. Legal academics as well as many who have scrutinized the causes of wrongful convictions have long advocated the videotaping of police interrogations, at least those involving serious crimes 26 . Significantly, even when it is not mandatory, law enforcement in many jurisdictions has embraced electronic recording, believing that it both provides a complete record of an interrogation and that it protects police from unwarranted claims of misconduct 27 . In 1989 and 1990, when Deskovic’s case arose, the Peekskill police had the capacity to record interrogations and, indeed, they did some of the time or selectively. Both Detective Levine and Detective McIntyre had ready access to micro cassette recorders and standard recorders for this purpose. 28 Levine and McIntyre taped portions of their police station 24 See Notice to Defendant of Intention to Offer Evidence Pursuant to Section 710.30 CPL (describing Deskovic’s statements to police on December 12, 1989, and January 9,10, 22, 23, 24, 25, 1990). 25 See id. (indicating that at least portions of the January 10, 1990 statement and the January 22, 1990 statement were recorded). 26 Findley & Scott at 391-93; Kassin at 225; Canadian Commissions of Inquiry, “Report of the Working Group on the Prevention of Miscarriages of Justice,” October 20, 2005. Currently, Great Britain and four U.S. states – Minnesota, Alaska, Illinois and Maine – all require that interrogations be recorded in some form. Kassin at 225. In Massachusetts, the Supreme Judicial Court stopped just short of mandating videotaping, holding instead that, if an interrogation resulting in a confession is unrecorded, then the defendant will be entitled to a jury instruction urging caution in the use of that confession. Commonwealth v. DiGiambattista, 442 Mass. 423, 813 N.E.2d 516 (Mass. 2004) 27 See Thomas P. Sullivan, “Electronic Recording of Custodial Interrogations: Everybody Wins,” Crim. L. & Criminology, 1127 (2005) (cataloguing jurisdictions where recording occurs). 28 See Testimony of Det. Levine, Trial Tr. at 637-43; Testimony of Det. McIntyre, Trial Tr. at 1094-99, 1144, 1199. 94 THe InnoCenCe PRoJeCT
interrogations of Deskovic on January 10th. 29 In addition, Levine recorded his entire telephone conversation with Deskovic on January 22 nd as well as a brief conversation he had with Deskovic outside a friend’s home later that evening. 30 The Westchester District Attorney’s office also recognized the potential evidentiary value of taped statements. The prosecution introduced the tapes of those portions of the interrogations that had been recorded during its direct case at Deskovic’s trial. 31 That the detectives chose to record some of their interrogations with Deskovic renders their failure to record others particularly questionable. For example, Levine acknowledged that he and Lieutenant Tumulo spoke with Deskovic for approximately four hours at the police station on January 10 th , but had the recorder running for only about 35 minutes. 32 Specifically, Levine turned on the tape at 3:55 p.m. that afternoon, but turned it off around 4:15 p.m. He did not reactivate the recorder until 5:20 p.m. and he shut it off again, for good this time, at 5:40 p.m. 33 Levine offered a series of explanations for his conduct, all of them unpersuasive. On one occasion, he contended that he turned the tape off when he went to get coffee and forgot to turn it back on. 34 Later in the interrogation, he claimed that he turned off the machine because he believed Deskovic was uncomfortable with it on. He did not explain, however, why, only a moment before, he had decided to remove the recorder from his pocket and place it on the table, where Deskovic could see it, thereby triggering his supposed discomfort. 35 These explanations notwithstanding, the record strongly suggests that the decision about when to press play and when to press stop was governed, at least in part, by a tactical desire to choreograph which parts of the interrogation a fact-finder would ultimately hear. The recorder was fully operational, for example, when Levine professionally read Deskovic Miranda warnings and Deskovic calmly waived his rights. 36 When Deskovic drew his supposedly incriminating crime scene diagram, in contrast, Levine had switched off the recorder. 37 Similarly, by the time 29 See Testimony of Det. Levine, Trial Tr. at 637-43; Testimony of Det. McIntyre, Trial Tr. at 1094-99. 30 See Testimony of Det. Levine, Trial Tr. at 723-39. 31 See Trial Tr. at 637, 725, 739, 1169. 32 See Testimony of Det. Levine, Trial Tr. at 780. 33 See Testimony of Det. Levine, Trial Tr. at 821-23. 34 See Testimony of Det. Levine, Trial Tr. at 668, 671. 35 See Testimony of Det. Levine, Trial Tr. at 708-09. 36 See Testimony of Det. Levine, Trial Tr. at 663. 37 See Prosecutor’s Summation, Trial Tr. at 1508. RePoRT on ConVICTIon oF JeFFReY DesKoVIC 95
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APPenDIx A APPenDIx A FULL PRoFILes
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APPenDIx A ecution for DNA testing
Page 43 and 44: APPenDIx A process. On July 18, 199
Page 45 and 46: APPenDIx A The initial description
Page 47 and 48: APPenDIx A and if it was still avai
Page 49 and 50: APPenDIx A The following year, all
Page 51 and 52: APPenDIx A Eventually, the evidence
Page 53 and 54: APPenDIx A On December 19, 2002, on
Page 55 and 56: APPenDIx A On the night of April 19
Page 57 and 58: APPenDIx A His chance to test the e
Page 59 and 60: APPenDIx A defenses. Prosecutors al
Page 61 and 62: APPenDIx A suggested she had been r
Page 63 and 64: APPenDIx A from the defendants pres
Page 65 and 66: APPenDIx A brother’s moving busin
Page 67 and 68: APPenDIx A days or weeks. The bandi
Page 69 and 70: APPenDIx A While the case was being
Page 71 and 72: APPenDIx A watching television, he
Page 73 and 74: APPenDIx A The Office of the Chief
Page 75 and 76: APPenDIx A Deskovic’s alleged con
Page 77 and 78: APPenDIx A consistent” with Brown
Page 79 and 80: APPenDIx B APPenDIx B RePoRT on THe
Page 81 and 82: RePoRT on ConVICTIon oF JeFFReY Des
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Page 85 and 86: scientific evidence exonerated him.
Page 87 and 88: It is, of course, theoretically pos
Page 89 and 90: · · a murder that he did not comm
Page 91 and 92: wholly unsupported by anything poli
Page 93: investigative reports strongly sugg
Page 97 and 98: a confession. 44 During part of thi
Page 99 and 100: emained steadfast. Finally, on Janu
Page 101 and 102: Deskovic’s knowledge of Correa’
Page 103 and 104: As it was, the Grand Jury was denie
Page 105 and 106: he was aware, as the jury was not,
Page 107 and 108: On this record, the trial judge may
Page 109 and 110: without his attorney. 112 There is
Page 111 and 112: Court’s Mid-trial Loss of Evidenc
Page 113 and 114: arrested. District Attorney DiFiore
Page 115 and 116: occasions a voice tape recorder was
Page 117 and 118: The Innocence Project was founded i
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