PART I: 16 Years of Lost Time, The Jeffrey Deskovic Story

I spent nearly two hours on the phone with Jeff, yet it felt like no time went by.

I was on the edge of my seat.

With his thick, throaty New York accent, he is a naturally flowing conversationalist and born storyteller who is warm, engaging, feisty and funny. His intelligence seethes out through his words, quite easily. He told me over Facebook messenger, before we spoke in person, that he would be “easy to talk to.”

Such was certainly the case.

As a boy, Jeffrey Mark Deskovic could swim the length of a pool underwater without coming up for air. On sultry days at the Elmira Correctional Facility, where he spent most of his 16 years behind bars for a rape and murder he did not commit, Mr. Deskovic would close his eyes under a row of outdoor showers and imagine himself swimming. For months after his release in September 2006, he had been yearning for a chance to dive in, to test his endurance, to feel that familiar sensation of pushing his body through the water, to get to the other side. – New York Times: CITATION

I knew Jeff from reading the news and watching his videos, coming across him through my passion for stopping prosecutorial misconduct, which often leads to people like Jeff sitting in prison for decades so a rogue prosecutor can have some cheap fame.

What really struck me reading about him was not only that survived but that he PREVAILED. It was a long conversation, where I interrupted with questions, and where his story telling at times wandered off in digressions and absurdly amusing caveats.

His story was a tale of human fortitude and survival. It was gut wrenching, heartbreaking, and to my surprise….. also deeply funny. Jeff went through living hell, but his experience did nothing to dampen his sense of humor.

He has a ridiculous sense of humor, quick, sharp, and dry New York style; at times pausing during conversation to tell me caveats of “gallows” humor.

The story that sticks out to me is the one about conjugal visits, known as the Family Reunion Program, or “FRP” in prison lingo. Jeff never engaged in those. He was 17 when he entered prison, and a virgin (per the NYT). There were trailers on the prison property, and inmates would marry for the purposes of having sex since only spouses could have conjugal visits. He laughed about the quality of some of the women that the prisoners resorted to marrying in order to participate in the program. “They had missing teeth, some were morbidly obese, others had mental insecurities; women that the prisoner might “never look at on the street,” but the prospect of sex in prison was rare. I bust out laughing with one of those rare deep belly laughs that comes up so hard it hurts your stomach muscles which you would only really only let loose with someone you know really well. I hardly knew him at all but I felt like I had known him for forever. He is real, raw and honest.

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In fact, during the course of the conversation, I experienced a range of emotions. I experienced outrage at how an innocent man can spend 16 YEARS behind bars for a crime he never committed. I experienced sadness, my eyes welling up in tears at times. I experienced laughter with the “gallows humor.” But mostly I was inspired, because of all things Jeffrey Deskovic is, he’s not only a survivor but a winner. He’s a man who wants to commit the rest of life helping to free people who are in the same position he was once in as well as preventing it from happening in the first place. To me his mission makes perfect sense, given how little help he during the most desperate time of his life.

He described prison life as “isolating.” Aside from his Mother, his family essentially abandoned him.

While he was locked up, Ms. McGarr [Jeffrey’s Mom] was Mr. Deskovic’s connection to the outside world (he has never known his father). He wrote letters and sent them to her to type. She, in turn, sent money for cans of oysters at the prison commissary. When he needed to badger a lawyer, she was his voice. But the relationship withered through the bars. Ms. McGarr, 60, said she tired of the lonely 150-mile drives to visit him. Mr. Deskovic said he resented her lack of urgency in tackling his legal appeals. Two days after his release, Mr. Deskovic exploded: “How come you didn’t do more to help me?” –New York Times: CITATION

I was admittedly stars struck when I reached out to Jeff. He actually responded to me via Facebook even though I use a photo of a muppet for my profile photo. Of course I had read about him, and knew his name through circles in the innocence movement and the broader criminal justice reform community. But now here he was communicating with me directly, taking time away from a paper he was writing for the Elisabeth Haub School of Law at Pace University in order to let me interview him.

I stopped him at one point while he was explaining to me about how he learned that he was going home and his last day in prison, saying to him, “I know you must be sick and tired of telling this story, but I just love it.” He reassured me, “actually I don’t tell this story as often as you might think, and because you love it, I’m going to tell it to you.”

He took me into the darkest corners of the unimaginable, he brought me into a living nightmare, and made me laugh and cry while he did it. I saw a video of the opening statement he gave during his Trial Ad class (a trial simulation class), and he is the type of character that will romance a jury on the courtroom floor or simply steal a crowded room with his warmth and endearing humility. He talked to me about fighting off depression, hopelessness, helplessness, thoughts of giving up, and suicidal ideation that he had to fight off throughout the sixteen year which virtually every wrongfully convicted American experiences throughout their wrongful imprisonment.

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He talked to me a little bit about God, about his lines of reasoning in not being angry about what happened to him, moving me to tears and hysterical laughter within a few short sentences over a staticy phone line. He is larger than life. I started to quickly get the picture that this was an innate, natural-born trial attorney. I don’t believe in pre-destination, but God had gifted both talent and now drive. God help the New York legal community when Jeff enters, because if you put him on a courtroom floor in front of 12 jurors, I bet this attorney could argue Charles Manson out of jail. But he wouldn’t do that; Jeff’s direction is clear: he’s on a mission to free the wrongfully convicted. That means filing post conviction motions based on newly discovered evidence and actual innocence arguments and filing appeals of denials thereof as some wrongfully convicted inmate’s angel, freeing people who are suffering just as he was. He is paying it forward.

Jeff’s story begins when he was 16. Classmates found him “quiet” and “strange.” He grew up in Peekskill, a relatively safe suburb of New York where murders were rare. It was an all American suburbia, where people were actually living out the “American Dream.” Jeffrey grew up with a single Mom, younger brother, and his Grandmother. He had no father figure, a fact whose importance will become clear later on in the story.

The year was 1989. A classmate of Jeff’s was brutally raped and then murdered, her naked body discovered in the woods. She had gone out that day by herself with a portable cassette player and her camera to a local park. Then her body was discovered, strangled, naked, and viciously raped.

Jeff was distraught; this was his first real brush with death with someone he knew albeit from a distance who had been in two of his classes as freshman and one as a sophomore. The town was in shock and reeling with grief, as in ‘how could this happen in American suburbia?’ Per reports, Jeff cried and was notably emotional when attending all three wakes. His emotional behavior at the wakes drew the attention of the cops. Additionally, his quiet and awkward reputation at the high school was an additional factor that caught the police’s attention. Additionally, this was a crime that police officers and the district attorney’s office REALLY wanted to solve. The entire community wanted someone held responsible.

Jeff’s six weeks of interaction with the police took on the dynamic that half the time they would speak to him as if he was a suspect and then, when they would start to push too hard, they pretended to need his help to solve the crime, telling him that ‘the kids wouldn’t talk freely around them, but would around him. Let us know if you hear any rumors.” They would ask him opinion questions and then congratulate him on his questions being correct. They told him to stop in from time to time. They made him feel important. They played the “good cop-bad cop” game in which one officer takes on a more aggressive role while the other pretended to be his friend. In the absence of his father in his life, Jeff began to naively look up to the officer who was pretending to be his friend. Thus at the police encouragement, Jeff took on a mini-detective role- perhaps an early sign of a natural born trial attorney, wanting to get to the bottom of the story himself. At the police encouragement, Jeff told them about the rumors he heard and drew a diagram of the crime scene. New coverage of the unsolved crime continued, pressure on the police mounted, as the city in many ways came to a standstill. After all, murders like that just didn’t happen in this small bedroom community.

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The police got Jeff to agree to take a polygraph test by telling him that some new information had just come in to the police file but that to share it with him he would first have to take and pass a polygraph. Plus, the police had promised that they would stop that part of the interaction dynamic of talking to him as if he was a suspect. His mother had long ago told him not to speak with the police, but Jeff trusted the police, having been taught from an early age that the police were citizen’s friends, were there to help and protect, and to always be truthful with them. He thought, “I didn’t do anything, and the police want my help to solve the crime. What could possibly happen if I spoke with them.” Besides, Jeff like the feeling of being a junior detective.

On the day of the polygraph, the police drove him forty minutes away to another county for the polygraph. That meant that Jeff did not know where he was and had no way of leaving on his own. Neither his mother or grandmother knew that he was not in school, he had no lawyer and was not given anything to eat the entire time he was there. Three police officers had come with him from Peekskill, including the officer that had been pretending to be his friend. The polygraphist himself, Daniel Stevens, was a Putnam County Sheriff’s investigator but he was dressed as a civilian and was pretending not to be a cop. Before beginning the polygraph, Stevens gave Jeff countless cups of coffee in order to get him nervous, becoming a virtual human coffee dispenser. As each cup of coffee was drank by the 16 year old, the cup was immediately refilled.

During the interrogation, the examiner raised his voice, invaded this 16-year-old kid’s personal space, and kept repeating his questions over and over again. The questions asked were not neutral; every tactic of intimidation in the book, short of water boarding, was used. By the end of the interrogation he was curled up on the floor in the fetal position, crying uncontrollably. They broke him. This child was young, frightened, and in fear of his own life. Then the “good cop” came in and “threw him a life preserver,” as Jeffrey puts it. He told him to say what they wanted to hear and that the interrogation would end and he could go home, that he was not going to be arrested. Jeff was in fear of his life, emotionally and psychologically overwhelmed, exhausted, not thinking about the long term but instead being concerned with his safety in the moment while being desperate to get out of there, so he made up a story based upon details that had been conveyed to him during the interrogation and in the six weeks prior to that as well as items that had appeared in the newspaper. Jeff’s interrogation was not video-taped or audio taped, nor was there a signed confession. There was just the cop’s word, and they left the threat and false promise out of their reports and testimony.

The investigation continued after Jeff’s arrest but before his trial. Semen taken from the victim was DNA tested. It did not match Jeff, but by then prosecutors “had their man” and they theorized that maybe Jeff didn’t ejaculate. They were hell bent on having a trial. Besides, the community wanted someone held responsible. After all, things like this just didn’t happen in Peekskill. Worse, the prosecutor falsely painted the victim as loose- claiming, based upon fraud by the medical examiner, that she was sleeping around, so maybe the semen came from consensual sex, prior – as they theorized – to Jeff raping and strangling her. Taking the lie a step further, the prosecutor named another youth that he falsely claimed likely had slept with the victim.

Trial ensued.

The photographs of Jeff that can be found in long past media coverage depict a child, wide-eyed, stunned and desperate. To no other description can I render, but it’s the look of an innocent kid.

The public defender essentially did not defend Jeff. He never spoke to or called Jeff’s alibi; never explained to the jury the significance of the DNA not matching him; never used the DNA to argue that the so-called confession was coerced and false; did not cross-examine the medical examiner as to his fabricated finding; and the defense was unable to explode the consensual sex theory by calling the other youth as a witness because he too was represented by another member of legal aid. During the trial, Jeff implored his lawyer to let him take the stand and testify in his own defense, but the lawyer advised him against it, explaining “It’s not my job to prove your innocence, the burden is on the prosecution to prove your guilt.” He also told Jeff that his personal won-lost record was better when his clients did not testify compare to when they did. Jeff, inexperienced at 17, ever impressionable, and fatherless, complied.

The jury was hopelessly hung after many hours of deliberation. They went around and around, finally sending word to the judge: “If we cannot come to a decision, does that mean we will be sequestered over the Christmas holiday?” The Judge said, “Yes.”

Later, Jeff would learn that the vote was 11-1; that there was one juror holding out against a guilty verdict. Upon hearing the response from the Judge indicating the jurors would miss Christmas with their families, the last hold-out gave in.

The sentence was 15 years to life in prison. Jeff says he was numb, and that it felt like “a living nightmare,” a type of horrific “alternative reality.”

At 17 years old he entered prison. He describes it as violent, with daily cuttings and stabbings, and lots of gangs. Jeff, a food lover like myself, also describes in detail the HORRIBLE food; sometimes it was not fully cooked, other times it was burned, while at sill other times it was terribly made. A great example was all of the leftover vegetables that had previously been on the serving line three or four times that week made it final appearance in a soup that was cooked in a vat with water being dumped on top of it with no seasonings or anything else to add any flavor

At times he was assaulted by other inmates. He was labeled due to his convictions as a rapist and nearly lost his life due to being hit on the side of his head repeatedly with a ten pound weight plate.

Jeff took every educational opportunity in prison possible, trying to make the best of things, even in the face of the most inconceivable injustice. He obtained his GED, and then an Associates Degree. He told me he read books too. I asked, “What kind of books?” I eagerly wanted to soak up this spirit of human fortitude and survivalism. He told me he read “self-help” books, books about relationships (since he hadn’t experienced many), politics, government abuse expose and presidential history. Why presidential history? He said he believed that the collective mentality of the country could be traced through the elections. When he exhausted the prison libraries books on those topics, he turned to reading books about topics he knew nothing about, seeking to broaden his general knowledge.

All the while, Jeffrey FOUGHT HARD, like a mother f#cker for his innocence. He frequently went to the law library to learn the law so he could pro-actively assist in the effort to undo his wrongful conviction. He lost all seven of his appeals. He lost at the Appellate Division. The reargument motion filed by his attorney was summarily dismissed without any hearing. The next step was the Court of Appeals, which also turned him down, denying his petition to appeal. Desperate, he went to federal court, but his incompetent representation missed the filing date by four days, and the Judge would not accept it. The Federal Court of Appeals upheld that ruling, and then turned down his re-argument motion. Last he took it to the United States Supreme Court, which also declined the appeal. He had exhausted every avenue. The only thing left was to try to find some previously unknown evidence of innocence, but for that he would need both an investigator and an attorney to help him for free, because he had no money to hire one.

So he started a letter writing campaign, writing letter after letter seeking legal help. He exhausted every appeal possible. But as the years grew, his exhaustion increased, describing those desolate years as being in a state where the frequency of suicidal thoughts increased and simply coming up with new ideas to try became a challenge. The periods of inactivity where he could think of no other places to write were the toughest, while when he sent letters out he felt like he was still on his feet, still fighting.

I think of him and imagine him sitting in some shithole cell, just writing letter after letter to no one who will listen.

He wrote to media outlets, law offices, reporters, and churches and faith based organizations- maybe they would be willing to raise the funds needed in order to help an innocent man. I cannot begin to imagine how hopeless he must of have felt.

It had been 15 years, and Jeff’s sentence was 15 years to life. He was now eligible for a hearing in front of the parole board. Other prisoners told Jeff that he should not assert his innocence because that would almost certainly result in his being denied parole but instead should express remorse and take responsibility. But instead, he stayed true to himself and he proclaimed his innocence. The parole board turned him down-they didn’t want to hear proclamations of innocence. The board ordered him to reappear in front of them in two more years. At that point Jeff felt fairly certain he was going to die in prison for a crime that he did not commit.

Closing in on his sixteenth year, Jeff caught a break. Firstly, a letter he wrote to a book author in care of the publishing company, but someone at the company instead forwarded the letter to investigator Claudia Whitman. Whitman became Jeff’s champion, giving him ideas and trying to get people to take his case. One of her ideas was for him to write The Innocence Project again, which had previously turned him down back in 1992-1993 before the DNA Databank had been invented. Whitman got other respected legal entities to join her in lobbying the Innocence Project to take Jeff’s case. At the same time, Maggie Taylor, who worked in the intake department at the Innocence Project repeatedly presented Jeff’s case after the lawyers turned it down, coming up with new angles as to how DNA could be used to generate new evidence. On the third try, she got them to take his case.

That was his first break. The second break was that former Westchester DA Jeanine Pirro, who was not the DA when Jeff was convicted but who took office before his first appeal was decided, and who had blocked all of his appeals including twice preventing him from getting further DNA testing, left office. Her successor allowed Jeff to have the further testing without having to litigate for it. The third break was that Jeff got lucky that the actual perpetrator committed an unrelated murder, which resulted in his DNA being put into the databank so that when Jeff got the further testing it matched him.

Jeff described to me the day he learned that he was going to go home. It came one nameless morning while in the misery of prison existence, in Sing Sing Prison, having been recently transferred there from Elmira. A prison guard opened Jeff’s cell, telling him that he had a visitor. Not expecting a visitor, Jeff asked “Are you sure? I wasn’t expecting a visit.” By that time, Jeff was barely getting any visits. The four trip to Elmira had grown taxing on Jeff’s mother and so for the last six years she had only been coming to see him once every six months.

The guard affirmed, “Yep, you got a visitor.” Jeffrey quickly changed into a visiting room shirt and rushed to get to the visiting room before the count started, wondering who the hell it could possibly be. He entered the visitation room, and a woman was sitting there “smiling and waving.” He did not recognize her, but he waved back, thinking that either she recognized him from some other prison or that she was mistaking him for someone else. He turned to the guard at the desk and asked who his visitor was, scanning the room and seeing no one he recognized. Irritated, the guard responded that his visitor was the woman who just waved at him. Jeff had never seen her before but he cautiously approached her. She introduced herself as Nina Morrison, his attorney.

She broke the news to him: items had been re-DNA tested. Jeff immediately cut her off and stated that they were not scheduled to be tested for another month. Nina replied that the DA had pulled some strings and gotten the items tested quicker. Then she went further, telling him that the DNA matched the actual perpetrator and that he “would be going home tomorrow.” Jeff replied by saying, “No, I’m not.” They went back and forth three times. Nina had to sit there and hold Jeff’s hands for the next three hours as Jeff’s head spun, with Jeff telling Nina all the different thoughts that were going through his head. Periodically Nina would cut in to ask whether Jeff was ready to talk about tomorrow, but Jeff kept saying no. He could not wrap his head around the idea. What eventually made it real for Jeff was when Nina told him that there was a ton of work to be done with the media and that Jeff’s sizes for a suit and shoes were also needed. Then a different fear entered his head: something would happen between the rest of that day and tomorrow and the DA would change her mind. Then what always happened would happen: the state would fight him and win

But the DA did not change her mind.

Jeff had fought and fought, the twisted, perverted, complex and tangled channels of the US justice system. And by the grace of God, justice finally prevailed. The living nightmare was over. This was actually happening, after 16 years of utter hell. Jeffrey met up with an angel that day, and he was most deserving of the break.

But the story isn’t over.

Stay tuned for Part II.

Please follow soon-to-be Attorney Jeffrey M. Deskovic on facebook, or reach out through his website www.Deskovic.org

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