Second Department panel finds unreliable DNA testing technique used by New York City Medical Examiner’s Office cannot form the sole basis to support the conviction.
Barket Epstein Kearon Aldea & LoTurco partner Donna Aldea, head of the firm’s Appellate and Post-Conviction Litigation group, won a significant victory in the Appellate Division on a case that has received widespread local and national attention. Mayer Herskovic, a Brooklyn man convicted and sentenced to four years in prison for his role in a Gang Assault against a gay, African-American man in Brooklyn based on DNA evidence, has now been cleared of all charges after the appellate panel overruled the trial judge’s verdict after a bench trial, holding that the verdict was against the weight of the evidence and dismissing the indictment.
“Today, Mayer is an innocent man. And he is deeply grateful to the court for undoing the injustice of his conviction, and to all those who have stood beside him and believed in him over the years as he struggled to clear his name. The court’s decision in this case, finding the DNA evidence “less than convincing” — and not only reversing the conviction, but dismissing the indictment — is very important, because it underscores the lack of reliability in the methods used by the OCME in this, and thousands of other cases, by “tweaking the protocols” for High Sensitivity Testing and using its Forensic Statistical Tool to report a misleadingly high “likelihood ratio” based on the limited population statistics in its databank. The DNA analysis is a powerful tool, and has great value to law enforcement, both in exonerating the innocent and in convicting the guilty. But it must be properly applied, understood, and limited to what it can and cannot prove; otherwise, it becomes dangerous, because its potential for misuse is enormous, and the consequences devastating. Mayer was taken away from his children, his home, and his family based on nothing more than a statistic, unreliably gleaned from a few cells of skin on the outer heel of a sneaker. There was no other evidence. No identification, no confession, nothing. This could have happened to anyone. It did happen to him, and it ruined the past four years of his life, which he will never reclaim. This decision should be a wake-up call to all of us. We need to examine the system, and make some serious changes to ensure that this does not happen again.”
People v. Herskovic Appellate Brief as filed
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