Sonia Sotomayor's 'empathy' isn't all it's cracked up to be
By JEFFREY DESKOVIC 6/15/09 6:18 AM EDT
Supreme Court nominee Sonia Sotomayor, who grew up poor in the South Bronx, has worked hard to get where she is.
In a career that took her from a Bronx housing project to Princeton University, Yale Law School, various jobs and now the federal bench, she has said that she tries to keep in mind the real-life implications of her rulings when meting out justice. Such a high-minded moral standard is what we, as a society, should expect and seek from all our judges, especially a Supreme Court justice.
But considering that we are talking about a lifetime appointment to the nation’s highest court, we should see if, in practice, her rulings reflect that.
A review of her record in my case shows that Sotomayor’s practice does not live up to her promise.
At age 17, I was wrongfully convicted of murder and rape, despite a negative DNA test and hair found on the body that did not match mine. My conviction was based upon a coerced, false confession, the fabrication of other evidence, prosecutorial misconduct and fraud by the medical examiner. I was cleared 16 years later — almost three years ago — when further DNA testing reaffirmed my innocence while identifying the real perpetrator, who subsequently confessed and was sentenced.
Since my release, I have made it my life’s mission to battle against wrongful convictions in an effort to bring about legislative changes that would minimize the chances of what happened to me happening to someone else.
The Westchester, N.Y., district attorney assigned four experts to study my case and, though the study in some ways was flawed, they did say that the system failed on every level, including judicially. All seven of my appeals were turned down. Two stops along the way were in Sotomayor’s courtroom.
I had filed a habeas corpus petition in the court below hers, arguing my innocence based upon the DNA evidence and that the fact that my Fifth Amendment rights had been violated by the manner in which the police interrogated me. The court clerk gave my attorney inaccurate advice regarding the filing procedure, and as a result, the lower-court judge said my petition had arrived four days too late. Then Westchester District Attorney Jeanine Pirro’s office argued that those four days were somehow prejudicial to the people and that the court should refuse to even look at my issues. The court sided with the D.A. My claim of innocence was never considered.
I appealed that procedural ruling to Sotomayor’s court, arguing the error was caused by the court clerk and was not of my own doing. I argued that, in light of the evidence of my innocence, it would be a miscarriage of justice to refuse to even hear the evidence because of this procedural error and that reversing the ruling would open the door for more sophisticated DNA testing.
Sotomayor and a colleague upheld the lower court’s ruling, writing that “the alleged reliance of Deskovic’s attorney on verbal misinformation from the court clerk constitutes excusable neglect that does not rise to the level of an extraordinary circumstance. Similarly, we are not persuaded that equitable tolling is appropriate based upon Deskovic’s contentions that the four-day delay did not prejudice respondent, petitioner himself did not create the delay, his situation is unique and his petition has substantive merit.”
A second appeal to her court resulted in the same decision, and the U.S. Supreme Court refused to hear my case. I remained in prison for six more years, with no appeals left, before — miraculously — I obtained legal representation and got lucky that the real perpetrator’s DNA was in the database.
Despite Sotomayor’s rhetoric, her ruling in my case showed a callous disregard for the real-life implications of her rulings. She opted for procedure over fairness and finality of conviction over accuracy. Many of the victims of wrongful convictions serving long sentences had exhausted their appeals long before they were exonerated. In how many of those cases did Sotomayor vote to refuse to even consider evidence of innocence?
My case is far from unique in an age when the reality of wrongful convictions is well-established. We face the prospect that Troy Davis, an innocent man on death row in Georgia, faces imminent execution, absent intervention by the high court or by President Barack Obama.
I would like an opportunity to testify at Sotomayor’s confirmation hearings to let the senators — and the country — know that we need a Supreme Court justice who understands the problem of wrongful convictions and is ready to correct them where the facts deem it necessary. Procedure should never be used as an excuse to override justice. The state must not be permitted to take away an individual’s liberty and later argue that his or her actual innocence is no longer relevant. Truth-seeking is central to our understanding of justice.
In my case, Judge Sotomayor did not demonstrate that understanding. If that is her idea of “empathy,” a trait that Obama sought in his appointee, then God help us all, especially those who are wrongfully convicted and possibly sentenced to death. Innocence can never be ruled as out of order in court.
It is not about politics, nor race. It is about justice. Those of us concerned with wrongful convictions and justice should get the opportunity to verbalize our opposition to her confirmation.