On Wednesday, April 28, 2010, two months after Freddie Peacock's 1976 rape conviction was vacated in Monroe County because DNA evidence established Peacock's innocence, the 1992 Monroe County murder conviction of Frank Sterling was vacated and the charge dismissed when DNA evidence and the confession of the real killer proved Mr. Sterling's innocence. (For a detailed account of the Frank Sterling case see this article and this article) The court vacated Mr. Sterling's conviction pursuant to a motion filed jointly by the Innocence Project, ETKS partner Donald M. Thompson, Dotan Weinman, of Weil Gotshal & Manges and the Monroe County District Attorney's Office.

As was the case with Mr. Peacock (see) the primary evidence against Mr. Sterling was a false confession. This confession was attacked as false at Mr. Sterling's trial at which Dr. Robert Goldstein testified that it was the product of suggestive hypnosis.

Additionally, since 1992 there was evidence that Mark Christie had accurately confessed to the murder for which Mr. Sterling was charged. And yet after Mr. Sterling was convicted, the court refused to even hold a hearing on a 330 motion based on the evidence of Mr. Christie's admissions. And then the Appellate Division, Fourth Department affirmed the conviction (209 AD2d 1006 [4th Dept 1994]), rejecting arguments that the confession was unreliable and that a hearing should have been ordered.

When more witnesses came forward with evidence that Christie had committed the murder a 440 motion was filed and denied. Again, the Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling a new trial (267 AD2d 1053 [4th Dept 1999]).

Mr. Sterling then moved, pursuant to CPL 440.30(1-a, for DNA testing. This motion was denied (6 Misc3d 712 [Mon Co 2004]), on a finding that "the defendant has failed to demonstrate that a reasonable probability exists that a more favorable outcome at trial would have been forthcoming had the results of any DNA testing of the aforementioned items been introduced at his trial." The Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling access to the evidence which would eventually help prove his innocence (37 AD3d 1158[4th Dept 2007]).

Ultimately, despite these court rulings, testing was done and Mr. Sterling's innocence was established. The courts' reliance on a false confession after a twelve hour interrogation, of which only 20 minutes were recorded, led to the repeated affirmance of a wrongful conviction. As a result, Mr. Sterling was in prison for 18 years for murder he did not commit. One continues to wonder when courts will acknowledge the obvious and develop a reluctance to credit statements obtained after unrecorded interrogations. False confessions are present in about a quarter of the wrongful convictions exonerated by DNA evidence (see).

Finally, I am proud to note that for the past 16 years Donald Thompson, my partner and hero, has been the attorney for Mr. Sterling. Don was also the attorney who successfully fought for the exoneration of Mr. Peacock and Douglas Warney (see). (In all three cases Don enlisted the excellent attorneys of the Innocence Project to join his efforts). Three innocent men incarcerated on false confessions and then freed, in part, due to Don's efforts.