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.
20 March 2013
Richard Rosario has served 15 years in prison for a 1996 Bronx homicide that occurred when he was more that a thousand miles away in Florida - an alibi confirmed by 13 witnesses. Despite the overwhelming evidence of his innocence, his post-conviction motions were denied largely on procedural grounds. At the request of Richard and his attorneys at Morrison & Foerster and the NAACP LDF, EXI is reinvestigating his case and preparing to return to court to see that justice is finally done.
In furtherance of our investigation, EXI has filed two lawsuits against the NYPD to compel it to turn over police records which may exonerate Rosario.
On March 15, 2013, EXI prevailed in our first lawsuit against the NYPD. The court found that the records we requested "may have information that helps Rosario as he attempts to prove his innocence," and ordered the NYPD to disclose them to us. Instead of turning the records over, the NYPD has appealed the court's decision.
Read the Court's Decision in EXI v. NYPD
Read more about EXI v. NYPD (2) in Thompson Reuters
Read what the NY Times had to say about Richard's case
03 August 2012
On July 25, 2012, EXI was awarded a $199,170 grant from the United States Department of Justice to aid us in our mission of exonerating innocent prisoners in New York State whose cases lack DNA evidence. The grant is funded by the DOJ's Wrongful Conviction Review Program which was created to provide high quality and efficient representation for potentially wrongfully convicted defendants in post-conviction claims of innocence, particularly those that challenge eyewitness identifications, confessions, and forensic evidence.
Read More in the New York Law Journal
08 April 2012
EXI is investigating the case of Rafael Jiminez, who has spent 18 years in prison for a 1992 Bronx murder that we believe he did not commit. Rafael, a New York born Puerto Rican, was 17 years old at the time of the crime. Both eyewitnesses - who were also Puerto Rican - told police that the shooter was a 24 to 26 year old Dominican man who spoke with a recognizable Dominican accent. Rafael did not match other aspects of the killer's physical appearance that they described, either. The only witness to identify him in a lineup prior to trial viewed a "wanted" poster featuring his photo shortly before making the identification.
08 April 2012
Cory Epps was convicted of a 1997 Buffalo murder that was supposed to have stemmed from a road rage dispute. Based on the description provided by the only eyewitness, police created a composite of the killer's appearance, which resembled Cory. Cory was identified after he volunteered to stand in a lineup that he believed would exonerate him. Foreshadowing what we now know about eyewitness identification, the trial judge expressed strong doubts about the reliability of the uncorroborated identification testimony when sentencing Cory. EXI is currently investigating evidence that originally surfaced before Cory's conviction was final - evidence which points to the real killer.
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