Looking Back: Thoughts of Wrongful Condemnation After Thanksgiving 2009 – Part 2

Jeffrey Deskovic speaking at Davis in 2019 at the annual Vanguard event

By Jeffrey Deskovic

“Looking Back” will feature reprints of articles Jeff previously wrote while a columnist at the Westchester Guardian, which encompass topics applicable here in California as well as across the country and not just applicable in NY.

As an advocate for the fight against wrongful convictions, I do my best to follow the news in the field. This information includes exculpations, developments, findings and updates regarding the causes of wrongful convictions, efforts to obtain legislative changes to make the system more accurate, information on the death penalty and sometimes even cases of wrongful convictions that are still ongoing, such as my recent article questioning the conviction of Fernando Bermudez before it was dismissed. In addition to receiving Google alerts on wrongful convictions and exonerations, I also view various relevant websites, subscribe to blogs, and receive list services.

6) Michael Toney, Texas Conviction: 1999. Charges Dismissed: 2009. Toney was released from prison on September 2, 2009, after the state dropped all charges against him for a 1985 bombing that killed three people. “The Texas Court of Criminal Appeals overturned Toney’s conviction on December 17, 2008, because the prosecution had suppressed evidence relating to the credibility of its only two witnesses. “The Tarrant County District Attorney’s Office later withdrew from the case based on the misconduct findings.

In September 2009, the Attorney General’s office, which had been specifically tasked with the case following Tarrant County’s withdrawal, dismissed the indictment against Toney. He had always maintained his innocence. The case remained unsolved for 14 years until a prison inmate told authorities that Toney had confessed to the crime. The inmate later retracted his story, saying he had hoped to get an early release. The state said it was continuing its investigation into the murders. Toney was killed in a car accident a month after his release. The state said it was continuing its investigation into the murders.

7, 8) Yancy Douglas and Paris Powell, convicted in Oklahoma in 1995 (Douglas) and 1997 (Powell). Charges Dismissed: 2009. Oklahoma District Attorney David Prater dropped charges against Yancy Douglas35, and Paris-Powell36, after deciding key state witness unreliable

“Ethically and out of duty, I couldn’t pursue this case and had to dismiss it,” Prater said. Derrick Smith, a member of a rival gang to the defendants and the state’s main witness, was one of the apparent targets of the shooting. A federal appeals court in 2006 found that Smith received an agreement from prosecutors that was not disclosed to the defense and quashed Powell’s conviction but refused to relieve Douglas.

Smith testified against Powell and Douglas in their separate trials, but later admitted that he never saw who shot him, that he was drunk and stoned that night, and that he only testified because that prosecutors had threatened him with more jail time.

The United States Court of Appeals for the 10th Circuit reviewed the district court’s findings in 2009. With respect to Mr. Powell, the circuit court upheld the trial court, stating that “we are d agreement with the district court that Mr. Powell’s trial did not result in a trustworthy verdict. With respect to Mr. Douglas, the Circuit Court said, “Assessment of the prosecutor’s flagrant conduct in light of the trial record leaves us in serious doubt as to the validity of the jury’s verdict and convinces us that Mr. Douglas has the right to habeas relief from his capital murder conviction.

Upon their release, the district attorney added, “We all came to the opinion that without Derrick Smith we had no case that we could prove beyond a reasonable doubt.”

Jack Fisher, Powell’s attorney, said his client had always maintained his innocence and that Powell’s release was “bittersweet”. This should have happened a long time ago. It’s unfortunate that he had to spend 16 years of his life in prison. That’s like saying they had no proof that he was guilty. The testimony they used to convict him was false.

9) Robert Springsteen. 2001, Charges Dismissed: 2009. On October 28, 2009, in Travis County, Texas, prosecutors decided to dismiss all charges against Michael Scott and Robert Springsteen, who had been convicted of murdering four teenagers in a Austin yogurt store in 1991. (Springsteen was convicted in 2001; Scott in 2002.) Springsteen had been sentenced to death and Scott was sentenced to life in prison. Both men’s convictions were overturned by the Texas Court of Criminal Appeals because they had not been given sufficient leave to cross-examine each other.

State District Judge Mike Lynch had released the defendants on bail in June, pending a possible retrial by the state. However, sophisticated DNA analysis of evidence from the crime scene did not match any of the defendants and the prosecution announced it was not ready to go to trial.

The judge granted the state’s motion to dismiss all charges. Prosecutors are still trying to match the DNA of the crime with a new defendant. “It’s been a while to come,” Scott said after the charges were dropped, “and I’m happy to be here.” Scott and Springsteen became involved at the time of their arrest, eight years after the crime. However, both claimed their statements were coerced by the police. The police investigation had been compromised from the start as the building had been set on fire and thousands of liters of water had been dumped at the crime scene before an investigation could be carried out.

My minds

After thinking about the information in the email, a number of thoughts came to mind as I pondered various things we should all be grateful for that have been denied to men as they were on death row before they were cleared, and which continues to be denied to other wrongfully sentenced death row inmates as well as to death row inmates not sentenced to death.

Many of the things I’m going to mention are taken for granted and often overlooked. We shouldn’t feel too safe: after all, any of us could be wrongfully convicted at any time. Keep in mind all that would entail, in terms of what you couldn’t do, while thinking about the following things:

be grateful for the ability to breathe, instead of having it challenged by a court ruling.

be gratefull for the opportunity to gather around family members or friends, enjoy their company and perhaps a meal, as opposed to the isolation of prison and often being sent to places that make family visits difficult, if not impossible.

be grateful for the ability to walk around as you wish and have freedom of movement, as opposed to being confined to a cell and only being allowed out at certain times and in certain areas, which are all in prison .

be gratefull for the ability to use the phone whenever you want, for as long as you want instead of only being allowed to make collect calls for limited periods of time, and only if the line to use the limited number of phones is not too long.

be gratefull for the possibility of accessing the news, picking up a newspaper or magazine, relatively easy access to information and books, as opposed to the limitation of the information prisoners have access to and the difficulty it even takes to get the information there.

be grateful for being able to go to a grocery store, instead of being allowed to buy very limited groceries once every two weeks, with many items not even being sold, and some even being considered illegal.

be grateful for the possibility of visiting the burial places of the deceased, instead of never being allowed to do so.

be grateful that you have the ability to turn on a television in your home, contrary to the fact that in many facilities in-cell televisions are not permitted, and televisions in the recreation area are tuned to one channel specific which must not be modified, lest danger be incurred.

be grateful for the ability to choose the direction of one’s life, as opposed to the limitations imposed on it in prison.

be grateful for the ability to wear whatever clothes you choose, provided you can afford them or they are given as gifts, whereas in prison many clothes are prohibited, certain colors are not allowed, and a series of Seemingly insane rules, such as clothing items having to be a single solid color rather than mixed colors, are enforced.

be grateful for your ability to use a computer and to send and receive e-mail.

be grateful to be able to open a window.

be grateful to be able to know what time it is, as opposed to often not knowing and having to rely on external signs, which are sometimes but not always available.

be grateful for access to a fan or air conditioning in the summer, and for heating in the winter, instead of being in a cell that is either very cold in the winter or extremely hot in the summer, because the bars of the cells absorb the heat from the sun so it gets really hot even after midnight.

be grateful to have privacy when using the bathroom, as opposed to having no door to close when using the toilet in a cell.

be grateful that the price of visiting family and friends is not that you have to submit to a striptease.

be grateful that neither your life, nor that of your family and loved ones, nor that of your friends, has been disrupted by wrongful conviction. And then remember that, for many other people, this is the case.

“Jeffrey Deskovic, Esq, MA, is an internationally recognized expert on wrongful convictions and founder of The Jeffrey Deskovic Foundation for Justice, which freed 9 wrongly convicted people and helped pass 3 laws to prevent wrongful convictions. Jeff is a member of the advisory board of It could happen to you, which has chapters in CA, NY and PA. He sits on the Global Advisory Board for International restorative justiceand sometimes serves as a co-host and co-producer on the show,”360 degrees of success.” Jeff was exonerated after 16 years in prison – from 17 to 32 – before DNA cleared him and identified the real perpetrator. A short documentary about his life is titled “Conviction“, and episode 1 of his story in virtual reality is called, “Once upon a time in Peekskill“. Jeff holds a master’s degree in John Jay College of Criminal Justicewith his written thesis on the causes of wrongful convictions and the reforms needed to address them, and a law degree from Elisabeth Haub Law School at Pace University. Jeff is now a practicing attorney.


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