Realizing the need for a New York-based organization dedicated to representing the wrongfully convicted whose cases lack DNA evidence, especially after the closure of The Second Program, a prolific non-DNA Innocence Project at Brooklyn Law School, Glenn A. Garber applied his 20 years of experience as a criminal defense attorney to create and direct EXI. He brought together a diverse team of attorneys, law students and premier New York City law firms to fight for the forgotten innocent inmates languishing in prison without a voice.
The Exoneration Initiative has its roots in the overwhelming response to the article, Actual-Innocence Policy, Non-DNA Innocence Claims, co-authored by Glenn A. Garber and Angharad Vaughan and published in the New York Law Journal in April 2008. In the days and weeks following publication of that article, Mr. Garber received hundreds of letters from inmates urging him and Ms. Vaughan to review actual innocence claims in non-DNA cases. They also received calls from the bar at large to assist with post-conviction litigation.
EXI started as a self-funded pro bono component of the law firm of Glenn A. Garber, P.C. with the pro bono assistance of Paul, Weiss, Rifkind, Wharton & Garrision LLP, and Skadden, Arps, Meagher, Slate & Flom, LLP.
The Initiative was incorporated in December 2008 and achieved its tax exempt 501(c)(3) status in March 2009.
08 May 2013
Exoneration Initiative client Devon Ayers was released from prison on January 23, 2013, after serving more than 17 years behind bars for two 1995 Bronx homicides he 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 Ayers or to one another - they were connected only by the prosecution's witnesses who claimed that Ayers and his codefendants committed both. Ayers was 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 finally conceded that Ayers' conviction for the second murder must also fall.
Ayers' release came three months after EXI, in conjunction with attorneys from the Legal Aid Society, filed a motion to exonerate him of both murders. He is thrilled to be reunited with his family, including his 18 year old daughter who was only 4 months old when he went to jail. Had he not been exonerated, Ayers would have had to serve 50 years to life in prison.
Ayers was released with the understanding that the Bronx District Attorney's Office would be given 90 days to decide whether it had any credible evidence to justify re-trying him and his codefendants. But on the 90th day, the Bronx District Attorney's Office announced for the first time its intention to attempt biological testing on evidence recovered in the Federal Express executive's murder. This testing had been requested by Ayers and his codefendants numerous times over the past decade, but the Bronx District Attorney's Office previously opposed these requests, claiming that the evidence was not relevant. It now insists that the charges against Ayers and his codefendants cannot be officially dropped until the testing is completed, further delaying justice for these innocent men and preventing them from moving on with their lives.
ABC Eyewitness News Reports on Ayers' Release
Read More in The New York Times
15 April 2013
On June 20, 2012, the Appellate Division, Second Department reversed Derrick Deacon's 1990 conviction for a Brooklyn murder and ordered a new trial based on newly discovered evidence of innocence: two federal cooperators who were insider gang members knew the real killers, who confessed to them. An eyewitness to the crime also recanted her trial testimony.
EXI investigated the case and filed a motion to vacate the conviction. Attorneys from Paul, Weiss, Rifkind, Wharton & Garrison, led by Roberto Finzi, conducted the post-conviction hearing and after the motion was denied, successfully argued the appeal in the Second Department. EXI filed an amicus brief in support of Deacons appeal and in an effort to advance doctrinal law in the Second Department - namely, that fairness requires state courts to take a comprehensive, integrated view of the evidence when considering post-conviction newly discovered evidence claims, especially in non-DNA innocence cases.
It is extremely rare that an appellate court will make credibility findings that conflict with the lower court as the Appellate Division did in this case. After finding that the hearing witnesses' testimony was "credible and compelling," the Court held that "the likely cumulative effect of the newly discovered evidence and the recantation testimony established a reasonable probability that the result of a new trial would be a verdict more favorable to the defendant."
Read the Decision
Read More in The New York Times
Read More in The New York Law Journal
The Kings County District Attorney's Office appealed the decision to the New York State Court of Appeals, but EXI successfully moved to dismiss that appeal.
The Kings County District Attorney's Office has now announced its decision to re-try Deacon after 24 years. EXI will be representing Deacon at his retrial, which is currently scheduled for the end of May, 2013.