Another Brooklyn Defendant Released after serving 25 years in prison
By Charisma L. Miller, Esq.
Brooklyn Daily Eagle
Tuesday afternoon, a Brooklyn courtroom erupted with shouts of joy. Jonathan Fleming, 51, was announced released from prison after serving 25 years for a murder he did not commit. “Thank you God!” was yelled from the rows of seated spectators. “Come and hug your mother,” a Fleming supporter commanded of the newly-freed man.
Evidence revealed that Fleming was 1,000 miles away on vacation in Orlando in 1989 when Darryl "Black" Rush was shot to death. Fleming vociferously protested his arrest and subsequent conviction, producing plane tickets and other documentary evidence, to prove that he was not in the New York area at the time of the murder. Police investigators and then prosecutors countered that evidence with the argument that Fleming took a quick flight from Orlando to New York, killed Rush and took the next available flight back to Orlando.
“Fleming’s case had not been in front of anyone for 25 years,” Fleming’s attorney Anthony Mayol told the Brooklyn Daily Eagle in an exclusive interview.
An investigation post trial revealed that exculpatory evidence, including a phone receipt providing Fleming with a solid Florida alibi, was not disclosed to Fleming’s defense counsel in 1989.
The Fleming case is emblematic of a larger problem within New York’s criminal justice system, and in particular the criminal procedure in Brooklyn. In the United States, the number of exonerations for wrongfully convicted crimes reached 87 in 2013. According to a recent report released by the National Registry of Exonerations, New York State is listed as one of the top 4 states with the highest exoneration rates in the country—with eight exonerations in 2013 and a total of 152 between 1989 and 2013.
Brooklyn in particular ranks 5th in the nation with 29 total exonerations in the same time period. Within the past 11 months, Brooklyn criminal courts have approved the release of five defendants—each incarcerated for over 15 years—who were found wrongfully convicted of varying crimes, including murder.
In February, Anthony Yarbough and Shariff Wilson were released after a judge overturned their convictions based on new DNA evidence. The two were accused of killing Yarbough's mother, Annie, his 12-year-old sister and another female in 1992. The victims were found strangled in their Coney Island home.
“In this case, my office examined newly discovered scientific evidence that was not available at the time of the trial,” Brooklyn District Attorney Ken Thompson said in a statement. Yarbough and Wilson each served 21 years in prison before their release.
These was the first releases of wrongly convicted inmates for Thompson, who took office in January, but not the first for Brooklyn.
Jabbar Collins was freed in 2010 after being found wrongfully convicted of the robbery and murder of a Williamsburg man. Evidence discovered after the 1995 trial revealed that witness testimony was coerced and false. Collins spent “16 years of suffering in prison," his attorney Joel Rudin said.
Brooklyn’s seminal exoneration case is that of David Ranta, who was wrongfully convicted of the 1990 murder of a Brooklyn rabbi. A re-investigation into Ranta’s case revealed disturbing gaps in police paperwork intended to document their investigation. Further, an identifying witness came forward in 2011, confessing to Ranta’s attorney, Pierre Sussman, that he "had uncertainty and discomfort" with his identification of Ranta. The witness also provided a sworn statement recounting how a detective, in 1990, had told him to "pick the one with the big nose" — Ranta — out of a police lineup.
“This was a travesty from the beginning,” Sussman said of the facts to Ranta’s case. The prosecution could only agree. “There were a number of things wrong with the case,” admitted John O’Mara, the Assistant District Attorney on the Ranta case.
Why is this happening now?
As the National Registry of Exonerations notes, a common theme in exoneration stories is the availability of DNA evidence testing. DNA evidence testing was not available or proved too costly at the time many of the Brooklyn cases were investigated.
A number of these cases occurred in the late 1980s and early 1990s. The first instance of DNA testing in a criminal case, however, dates back to 1986 when an English court allowed DNA forensics to verify the confession of a 17 year-old boy in two rape-murders in the English Midlands. In fact, here, DNA forensics revealed that the defendant’s confession was indeed false. The following year, 1987, DNA evidence was used for the first time in an American courtroom.
As DNA testing was relatively new technology in the 80s and 90s, the exorbitant cost of testing, in the high thousands of dollars, caused prosecutors to use the tool sparingly. Over the years, the cost of DNA testing has decreased significantly, courts have agreed on its scientific admissibility and DNA databanks have been created allowing DNA samples to be linked to suspects nationwide, ultimately allowing DNA evidence testing to become a staple in criminal courtrooms.
While the evolution of and dependence on DNA evidence testing has increased, DNA forensics accounts for a small portion of exoneration. “The number of exonerations in which DNA played any role [was] 18 [out of 87 exonerations] in 2013,” the National Registry of Exonerations reports.
A more progressive trend is the attention being given to the issue of wrongful convictions by law enforcement agencies and the defense bar.
In 2011, the Brooklyn District Attorney’s office, under the Charles Hynes administration, created the Conviction Integrity Unit (CIU) to examine cases of possible wrongful convictions.
“This was the first district attorney in the country to, while in office, take a look at possible wrongful convictions occurring during his own administration,” Taylor Koss, co-counsel on Fleming’s case, told the Brooklyn Daily Eagle.
Two years later, Brooklyn took the reactive—and presumably proactive—step of creating a 12-member panel to review 40 trial convictions of 50 Brooklyn defendants all involving retired New York Police Detective Louis Scarcella. Ranta and Collins alleged investigative and evidentiary improprieties by Scarcella in their respective wrongful imprisonment civil suits against New York City and State.
Brooklyn’s current DA Ken Thompson seeks to continue on Hynes’ legacy with respect to encouraging confidence in Brooklyn convictions. For the city’s overall FY 2014-15 budget, Thompson is slated to receive $82,748,000.00—the highest DA office budget, second only to Manhattan. During budget discussions, Thompson requested more monies and resources be allocated for CIU.
Innocence over Guilt
The recent influx of exonerations is not necessarily a comment on the defendants’ innocence over their previously perceived guilt. In some instances, as the Scarcella investigation shows, there may have been flaws in the obtaining of evidence or testimony. These errors and possible illegalities do not speak to a defendant’s innocence of a crime but rather shows that the process by which the defendant was convicted was neither just nor fair.
As Attorney-in-Charge of the Legal Aid Society’s criminal practice, Seymour W. James, Jr., stated, “Innocent people falsely confess to crimes for a variety of reasons.” James, a Brooklyn resident noted that “In approximately 25% of wrongful convictions that have been overturned with DNA evidence, false confessions, admissions or statements were made to law enforcement officials.”
Available Recourse for Wrongfully Convicted Defendants
At present, there are few avenues for exonerated defendants to redress the harms incurred as a result of their wrongful convictions. Many defendants, such as Fleming and Collins, pursue a wrongful conviction claim in state and federal court. Using the evidence that was influential, if not determinative, in securing their release from prison, these defendants are seeking financial compensation from the city and state.
“It is not a likelihood that we will file a suit, it is an actuality,” Anthony Mayol told the Brooklyn Daily Eagle.
Another route for defendants is a malicious prosecution claim. Malicious prosecution is generally a difficult case to win in New York. In addition to the accused having to have been acquitted of the charges, a primary element in a malicious prosecution case is that the arrest preceding trial was made with malicious intent. Often claims of malicious prosecution are mistaken for an unfair trial assertion. There is a significant difference between the two.
Brooklyn Federal Court Judge Carol Amon explained the difference, on a federal level, in the 2012 decision of Morse v. Spitzer. In that case, Amon writes that malicious prosecution actions stem from the accused’s right to “be free from baseless prosecution.” A violation of this right only occurs “when probable cause is lacking.” In other words, for a malicious prosecution claim to succeed, the accused must show that the police had no probable cause for the arrest and that the arrest was made with malicious intent.
Ranta filed a claim for malicious prosecution as well as wrongful conviction and settled his case for $6.4 million.
“After a review process and negotiations, my office was able to reach a settlement with Mr. Ranta that is in the best interests of all parties and closes the door on a truly regrettable episode in our city’s history,” New York City Comptroller Scott Stringer said in a released statement.
Preparing for Change
There is room for change in the criminal justice system as it relates to wrongful convictions. In particular, increased interagency communication with the prosecutors office can flag instances where, for example, a common witness repeatedly appears on cases involving a particular detective, as was discovered in the Scarcella investigation.
There has also been a call for a change in legislation making it easier for defendants to bring civil claims against the city and state. In February New York Attorney General Eric T. Schneiderman announced planned legislation, which will allow those who are found wrongfully convicted and imprisoned for a crime to present a claim for damages against the state. The "Unjust Imprisonment Act,” as the legislation will be called, is scheduled to be introduced to the legislature by New York State Assemblymember Joe Lentol (D-Brooklyn).
"New York State law currently presents unnecessary and unjust barriers to recovery for some individuals who have been wrongfully convicted and imprisoned,” said Lentol.
The current law presents a barrier for defendants to financially go after the state for wrongs committed against them. Under the present legal structure, a defendant can pursue a claim against the state for wrongful conviction only if the defendant can show he/she “did not by his own conduct cause or bring about his conviction.” In other words, if a person falsely confessed to the crime for which he/she was convicted or signed a statement under coercion, such person cannot pursue damages against the state if it is later found out that the defendant was innocent of the crime.
According to Schneiderman, the current law includes an overly broad exclusion that disregards certain extenuating, but all too common, circumstances for a false confession. It doubly victimizes innocent people who were in fear for their lives, who had a nervous, mental or psychological problem, or were simply too young to know better, so they admitted doing something they did not do.
“Those who are wrongfully convicted and unjustly deprived of liberty must be allowed to put their lives back together again, and we have a moral obligation to help them do so,” said Schneiderman, speaking to an audience at John Jay College.
Additionally, there has been a push for a social support network for recently released prisoners in the special circumstance of exoneration. “Our state and our city provide nothing for people who are wrongfully convicted,” said Koss. “The only way is to sue the city and to sue the state and get some financial recourse.”
This should be a wake-up call to the legislators. On the day they get out of jail, there should resources available for them.”
Koss and other members of the bar are preparing to create the change they call for. “There are growing discussions and meetings to develop a proper framework so that we can travel to Albany to make a legislative pitch. We need to have a model in place.”
In the interim, released defendants may be able to rely on familial support. “I knew my boy was innocent,” Fleming’s mother, Patricia Fleming told the Brooklyn Daily Eagle, of her only child. “I used to cry over it…[but] he never stopped fighting.”