The Exoneration Initiative screens hundreds of cases and handles them at all phases of the exoneration process. Two cases in active litigation are featured here. They are representative of the types of cases we select for partnering with New York-area law firms who have shown excellence in and dedication to pro bono criminal defense.
The Case of Derrick Deacon
Derrick Deacon was convicted for a 1989 murder in the Flatbush section of Brooklyn and has served nearly 20 years in prison.
Newly discovered evidence established that the victim's actual killer was a member of a notorious gang that controlled the Brooklyn neighborhood where the murder occurred. This evidence surfaced during a federal investigation and prosecution of other gang members, when a witness, who cooperated with federal authorities, revealed that he was present when the robbery that led to the murder was planned and that a gang member had confessed the murder to him mere minutes after it occurred. The true killer, unlike Mr. Deacon, also matched the description provided to the police by an eyewitness to the murder.
Based upon this newly discovered evidence, post-conviction motions seeking a dismissal of the indictment or a new trial were briefed by Glenn A. Garber, P.C. and co-counsel, Paul, Weiss, Rifkind, Wharton & Garrison LLP on Mr. Deacon's behalf. An evidentiary hearing was granted by the Court.
The Case of Selwyn Days
After a half a day of police interrogation, Mr. Days falsely confessed to an unsolved double homicide that occurred in Eastchester, New York in 1996. The principle evidence against him was his confession, key elements of which were suggested to him by police investigators.
While Mr. Days languished in jail, alibi evidence was discovered that he was in North Carolina when the murders occurred. Mr. Days’s attorney, John Brian Macreery of Deren, Genett & Macreery, sought the assistance of EXI to fight his case in court.
Paul, Weiss, Rifkind, Wharton & Garrison LLP and EXI – working pro bono – recently supplemented an ineffective assistance of counsel claim with a constitutional claim of actual innocence and a newly discovered evidence claim. A hearing was granted and will soon be held in furtherance of Mr. Days’s request for dismissal or a new trial.
21 November 2013
EXI client Derrick Deacon was exonerated on November 18 when a Brooklyn jury acquitted him at his retrial for a 1989 murder he did not commit.
In describing Derrick's case, The New York Daily News put it well: "It's been more than 24 years since Derrick Deacon was jailed for a murder charge he's always denied, 12 years since a different killer was identified, 17 months since an appeals court ordered a new trial - and it took only nine minutes for a jury to finally clear him." Read More
At this recent trial, jurors heard from a federal cooperator was an insider gang member and knew the real killer, who had confessed to him moments after committing the murder in 1989. An eyewitness, who had passed the killer on the stairs as he fled the scene, also testified for the defense. In her emotional testimony, she stated that she was "a thousand million percent" sure that Deacon was not the man she passed on the stairs, and that she had not said so at his original trial in 1989 because prosecutors threatened to take away her children if she told the truth and exonerated him.
Finally vindicated, Deacon wept when he heard the not-guilty verdict on Monday afternoon. He celebrated his release from prison after nearly 25 years on November 20, and is thrilled to return to his family and to a future it seemed might never come. The New York Post reported on Deacon's first night of freedom, during which he enjoyed chicken wings and chili and marveled at how much has changed in the outside world since his wrongful conviction.
20 September 2013
Devon Ayers, Michael Cosme and Carlos Perez were released from prison on January 23, 2013, after serving more than 17 years behind bars for two 1995 Bronx homicides they did not commit: the murder of a Federal Express executive in her apartment, and the felony murder of a livery driver in his cab two days later and four blocks away. There was no physical evidence tying the murders to the men or to one another - they were connected only by the prosecution's witnesses who claimed that Ayers, Cosme and Perez committed both. They were exonerated of the livery driver's murder in December, based on reliable confessions from the true killers which proved that that the prosecution's only witnesses on both murders were wrong. On January 23, prosecutors conceded that their convictions for the second murder must also fall.
EXI worked together with attorneys from the Legal Aid Society, Emery Celli Brinckerhoff & Abady LLP and the Center for Appellate Litigation on the case. Ayers, Cosme and Perez were released three months after motions were filed to exonerate them of both murders, and they were thrilled to be reunited with their families after so many years.
When they were released, it was agreed that the Bronx District Attorney's Office would be given 90 days to decide whether it had any credible evidence to justify re-trying them. But on the 90th day, prosecutors announced for the first time their intention to attempt biological testing on evidence recovered in the Federal Express executive's murder. This testing had been requested by the men over the past decade but the Bronx District Attorney's Office previously opposed these requests, claiming that the evidence was not relevant. It nonetheless insisted in April that the outstanding charges against Ayers, Cosme and Perez could not be officially dropped until the testing was completed, further delaying justice for these innocent men.
As expected, none of the biological testing implicated the men in the murder of the Federal Express Executive in any way. Thus, on September 20, 2013 - nearly nine months after the men were released from prison - the Bronx District Attorney's Office finally agreed to dismiss the indictments against them. It is only now that they have been fully exonerated and their names cleared that they can really begin to move on with their lives.
Had they not been exonerated of both murders, Ayers, Cosme and Perez would have had to serve 50 years to life in prison.
ABC Eyewitness News Reports on Their Release
The New York Times Reports on Their Release
The New York Times Reports on Their Ultimate Exoneration