Brooklyn District Attorney Ken Thompson's Conviction Review Unit should serve as a "model" for the rest of the country and Catherine Vogel, the State Attorney for the Sixteenth Judicial Circuit, in and for Monroe County, Florida
|Posted by firstname.lastname@example.org on April 9, 2015 at 10:25 AM|
A recent New York Magazine article on Brooklyn District Attorney Ken Thompson ("Thompson") shows how he and his Conviction Review Unit are now dealing with claims of innocence, potentially wrongful convictions, and unjust imprisonment, thus serving as a "model" for the rest of the country and Catherine Vogel, the State Attorney for the Sixteenth Judicial Circuit, in and for Monroe County, Florida:
On the other side of Thompson's office, past courtroom sketches of his opening argument in the [case against a handful of NYPD officers who sodomized Haitian immigrant Abner Louima] and a picture with President [Barack] Obama, he showed me a poster board that features 12 inmates (11 black, one Latino) whose convictions Thompson has vacated and who collectively served some 235 years in prison for crimes Thompson believes they did not commit. Currently under review by his attorneys are about 100 other cases, most of them linked to Louis Scarcella, a detective alleged to have falsified confessions and trumped up evidence.
During the  campaign [for Brooklyn DA], [the incumbent, Charles Hynes, whose two-decade career as DA imploded in spectacular fashion during the race,] downplayed the Scarcella controversy, reassuring the public he'd already put together a unit, named the Conviction Integrity Unit, to review the potentially tainted cases. When Thompson took over, he found that that wasn't really true.
"When I walked through the door [in 2014], there were 550 prosecutors in the office and only two were assigned to Conviction Integrity," Thompson said. "They weren't even sitting next to each other. They were on different floors in the office." Thompson renamed the office the Conviction Review Unit, and staffed it with ten prosecutors, three full-time investigators, and a wrongful-conviction expert who commutes from Harvard.
"I don't know any office that within a year of taking over has thrown out a dozen cases from the predecessor," says Bennett Gershman, a Pace Law professor. "Murder cases! It's just not done." Thompson has been able to move so quickly, in part, by lowering the threshold for releasing inmates. Instead of seeking a full exoneration, which would require prosecutors to file motions claiming that new evidence called the conviction into question, Thompson has asked judges to simply nullify the convictions. He's not making the legal argument that the inmates are innocent; instead, he's arguing their convictions are based on insufficient evidence. The posture has allowed Thompson to free convicted felons without going through a lengthy written-appeals process. In fact, he has left practically no official paper record of the convictions he's vacated.
"The standards definitely feel a little looser," says Taylor Koss, one former Brooklyn prosecutor who reviewed problematic cases for Hynes. Now in private practice, Koss represented Jonathan Fleming, whose conviction for murder Thompson vacated last year. "They just called me one day and said, 'Hey, your guy is getting released tomorrow. Be in court at 2:30 p.m.' I was shocked. I was like, 'Don't we need to fill out any paperwork here?'" Koss was told he didn't need to file a motion. Instead, he read various statutes into the court record to create a paper trail, so Fleming would have some record of the circumstances surrounding his release. (Like many released inmates, Fleming plans to file suit against the city; legal paperwork alleging a former inmate's innocence is typically central to such compensation claims.)
Thompson's prosecutors also reviewed the case of David McCallum, who was convicted of kidnapping and murdering 20-year-old Queens resident Nathan Blenner in 1985. McCallum came to national attention after the boxing champion Rubin "Hurricane" Carter, himself wrongfully imprisoned for two decades, wrote an op-ed imploring Thompson to review the case. McCallum and his co-defendant, who died in prison, were convicted based primarily on a videotaped confession. Hynes's prosecutors had looked into McCallum's conviction and felt there wasn't enough new evidence to pursue his release, but after six months of review, Thompson and his team came to believe the police had coerced McCallum and his co-defendant into making a false confession and ordered McCallum's release.
Thompson's prosecutors made their assessment without contacting the case's original prosecutor, Eric Bjorneby, now a Nassau County judge, who only found out about McCallum's release after the fact. "It was mysterious and inappropriate," said Bjorneby, who questioned the integrity of a vacated conviction in which the prosecutor wasn't consulted.
Thompson defended the decision. "The video [confession] is what convicted these guys," he told me. "Two young, poor black boys from Bushwick going to Queens and doing a carjacking at 16? No one could even prove that they could drive."
Indeed, the website for Thompson's office explains that:
The Conviction Review Unit, established in 2014, is tasked with reviewing and thoroughly investigating convicted offenders' claims of innocence. The unit is comprised of 10 experienced assistant district attorneys, as well as a team of detective investigators and legal support staff. The unit is jointly led by Professor Ronald Sullivan, Jr., of Harvard Law School, and Mark Hale, a career prosecutor with over 30-years-experience trying homicides and other serious offenses. The unit's work is further reviewed by an independent team made up of three long-tenured attorneys: Bernard W. Nussbaum, Jennifer G. Rodgers, and Gary S. Villanueva. To date, the unit's work has led to the release of 13 defendants wrongfully convicted of various serious crimes.
Correcting Miscarriages Of Justice
When [Thompson] took office [in 2014], he immediately took action to create the Conviction Review Unit (CRU), which is tasked with conducting thorough and fair investigations of cases of potentially wrongful convictions.
What was previously a small unit with only two attorneys, has quickly transformed into an innovative unit that is staffed by 10 Assistant District Attorneys and three investigators. The unit is jointly led by the esteemed Harvard Law Professor Ronald S. Sullivan, and Assistant District Attorney Mark Hale, a 30-year prosecutor with experience in over 200 jury trials.
The [Thompson's] CRU has emerged as a model for the country. The Unit's reinvestigations, 32 to date, have led [Thompson] to move to vacate the convictions or support the dismissal of charges against 12 men who had been unjustly imprisoned as the result of wrongful convictions. Among these men are David McCallum, who was falsely imprisoned since the 1980's, and Michael Waithe, who was wrongfully convicted of burglary in 1987 and faces deportation. The details of their cases illustrate the significant miscarriages of justice that the Conviction Review Unit is continuously seeking to reverse.
David McCallum was just 16 years old when he confessed to the kidnapping and subsequent murder of Nathan Blenner in South Ozone Park, Queens -- a confession that he quickly recanted. The subsequent verdict against him was based entirely on this confession, and McCallum was sentenced to 25 years-to-life in prison, where he remained until 2014. The subsequent CRU investigation and independent panel review concluded that the confessions by McCallum and his co-defendant Willie Stuckey were false. No physical, testimonial, DNA or fingerprint evidence linked McCallum to the crime. Accordingly, [Thompson] asked the court on October 15, 2014 to vacate the murder convictions of both McCallum and Stuckey in the interest of justice, and McCallum was released from prison that day.
Michael Waithe was arrested in Brooklyn in 1986 at the age of 23 for burglary after arriving in the United States as an immigrant from Barbados. Waithe steadfastly maintained his innocence, was convicted at trial and received an 18-month prison sentence. In October 2014, Waithe wrote a letter to [Thompson] because he was facing deportation based on his conviction from more than 30 years ago. Mr. Waithe maintained his innocence and sought [Thompson's] assistance. Members of [Thompson's] CRU thereafter investigated Waithe's case and travelled to Georgia to interview the sole eyewitness who testified against him at trial. Based on the investigation, the CRU concluded that Waithe was framed for a crime that never happened, wrongfully convicted and unjustly imprisoned.
On January 29, 2015, [Thompson] moved to vacate Waithe's conviction in the interest of justice. Waithe, who is 54-years-old with four children and a granddaughter, should now be allowed to avoid deportation and remain in New York, with his family, where he has lived a law-abiding life.
To date, Brooklyn leads the country with exonerations in 2014. [Thompson] is committed to the exhaustive completion of the CRU's investigations. As prosecutors, it is our job "to protect the public and do justice," [Thompson] noted in a speech on these exonerations at New York University Law School.
Not surprisingly, then, Matthew McKnight has reported in the New Yorker that:
[T]oward the end of an hour-long meeting, [Thompson] exhaled heavily several times, as though by breathing he could expel the dilemma in front of him. The directors of a conviction-review unit he formed early last year had just explained their recommendation that he move to vacate Derrick Hamilton's 1993 second-degree-murder conviction, for which Hamilton had served nearly twenty-one years in prison before being let out on parole. Thompson had had about two weeks before the meeting to review the case and a corroborating recommendation from an independent review panel, and now he had to decide whether the evidence exonerated Hamilton.
Just over twenty-four years ago, on January 4, 1991, a man named Nathaniel Cash was shot and killed outside a brownstone in Bedford-Stuyvesant, Brooklyn. In March of that year, Hamilton was arrested for the murder. He was twenty-seven at the time, and had previously been convicted of manslaughter, but was out on parole. Detectives on the case relied largely on one eyewitness, Jewel Smith, Cash's girlfriend, to build their case. Although she had told the first detective on the scene that she hadn't seen the shooting, she ultimately identified Hamilton as the murderer; at trial, he was found guilty, and he received a sentence of twenty-five years to life in prison.
Defense attorneys had focused their case on alibi witnesses who contended that Hamilton was in New Haven, Connecticut, on the day of the murder. Following Hamilton's conviction, in 1993, he and his lawyers maintained this narrative -- to no effect, even after Smith recanted her testimony. In 2011, Hamilton was released on parole, with his conviction still in place, and in January, 2014, prompted by Hamilton's lawyers, Thompson's office began reviewing the case.
One day last year, Mark Hale, the assistant district attorney who runs the Kings County conviction-review unit, visited the scene of the Cash murder. In Smith's account, which prosecutors had relied on to convict Hamilton, she had said that Hamilton shot Cash in the chest while they were standing in the entrance of the brownstone. She claimed that Cash then walked out of the house and up some stairs, then collapsed on the curb of the sidewalk, where he died.
Hale already had reason to doubt the account. There was Smith's recantation, for one, and, what's more, forensic evidence had contradicted her assertion that Cash had been shot in the chest while standing in the building. When Hale saw the brownstone, his suspicions increased. The vestibule was only about six feet wide and five and a half feet deep, a setting inconsistent with ballistics evidence and the medical examiner's report. Neither Cash's body nor his clothes had shown evidence of a close-range shooting, and the location of the discharged shell casings indicated that the shooter had stood in the vestibule and shot outward, in the direction of the street. Hale also saw that Cash would have had to walk down a set of stairs, contradicting Smith's assertion. Moreover, Cash's autopsy found evidence of injuries that would have made it impossible for him to walk after the fatal shot.
These problems proved decisive for Thompson. He decided to submit his motion to a judge, and, if the judge assents, Hamilton will become the eleventh person Thompson's office has exonerated since he took office in January, 2014.
The Conviction Review Unit has been the most profound reform that Thompson has implemented in his year as district attorney. A team of ten lawyers has been tasked with reviewing wrongful-conviction claims and questionable convictions, many of which occurred under the leadership of [Hynes], whose twenty-three-year tenure is suspected of being marked by negligence and questionable ethics -- including using faulty eyewitnesses, manipulating his prosecutorial responsibilities in order to appear tough on crime and win elections, and relying on the work of discredited detectives. One retired detective in particular, Louis Scarcella, has been connected with roughly seventy cases that have come up for review by Thompson's office, including Hamilton's. Meanwhile, one of Hynes's assistant district attorneys, Michael Vecchione, was named in a wrongful-conviction lawsuit brought against the city by Jabbar Collins, who spent sixteen years in prison for murder. Collins claimed that Vecchione and others in the prosecutor's office had threatened a man in order to solicit testimony of Collins's guilt. (Collins was awarded a settlement of ten million dollars last summer. Both Scarcella and Vecchione deny any wrongdoing.)
The [CRU] represents Thompson's attempt to correct systemic flaws in Brooklyn's criminal-justice apparatus, which have included poor oversight, inadequate independent review, and a lack of prosecutorial and police transparency -- and which have enabled problems ranging from mistakes in judgment to deliberate misconduct. Thompson's is the third-largest district attorney's office in the nation, behind those of Chicago and Los Angeles, with five hundred prosecutors who litigate roughly a hundred thousand cases a year, and it is certainly the largest to make such a thorough effort to review past convictions. In scope, the Kings Country [CRU] follows an earlier effort by Craig Watkins, the district attorney in Dallas, who, in 2006, formed a conviction-integrity unit that sought, at first, to review potentially tainted convictions that could be tested with DNA evidence that wasn't available at the time of the original trials.
Thompson's unit differed from Watkins's in that it sought to consider an expanded notion of justice. "They're not simply looking at wrongful convictions in cases in which a person can prove his or her innocence. They're also looking at cases where they may be innocent -- we don't know -- but, definitely, the conviction has no integrity," Peter Neufeld, the cofounder of the Innocence Project, told me. Watkins later expanded his unit in Dallas to include convictions not resting on DNA evidence, but Thompson's office has not yet widened its scope to include cases in which retroactive DNA testing can be applied. Rather, the questionable convictions that the Kings County office has sought to review can largely be traced to human error-negligence, misconduct, or errors in judgment -- and not necessarily to poor technology. "It is much more difficult to set aside convictions in non-DNA cases, so Kenneth Thompson's work in that regard has been especially impressive," Karen Daniel, the co-director of the Center on Wrongful Convictions at the Northwestern University School of Law, wrote to me in an e-mail.
Thompson talks about justice with a more philosophical tone than one might expect from an elected official. "I believe that too many [prosecutors] view their duty as to convict," he told me. "I think that the main duty of the [prosecutor] is to do justice. That means to protect public safety, but it also means that we have to ensure that our criminal-justice system is based on fundamental fairness." Thompson, who is forty-eight, spent his early childhood in Harlem's Wagner Houses. In 1973, his mother became a New York City police officer, which allowed her to move her three children to the Co-Op City neighborhood of the Bronx. "My mother was part of the first group of women -- black or white -- to go on patrol in the history of the city," Thompson told me. "To think that she could become a police officer in 1973, when there were no examples for her, was really extraordinary. She left an indelible impression on me about law enforcement, about issues of fairness and justice."
Among the artwork hanging on Thompson's office walls is a framed courtroom sketch of his opening statement in the 1997 trial of Justin Volpe, an [NYPD]. officer accused of beating and sodomizing a Haitian immigrant named Abner Louima. Thompson was an assistant U.S. attorney at the time, part of a team of federal prosecutors who litigated the case and ultimately secured a guilty verdict against Volpe. His involvement in the Louima case speaks to his awareness that the system is not always right, and that justice ought to be applied to everyone -- an awareness that has carried into his aims in forming the [CRU] "Wrongful convictions, for a lot of reasons, destroy the lives of the people who have been wrongfully convicted, and their family members," Thompson told me. "But they also do damage to the integrity of the system."
In January, 2014, Thompson began the process of recruiting Ron Sullivan to assist in designing his new unit. Sullivan had previously been the chief executive officer for the Public Defender Service, in Washington, D.C., which provides legal representation for indigent citizens. The decision to work with Sullivan was akin to Thompson hiring a defensive specialist to be his football team's offensive coordinator. But the move added to the legitimacy and seriousness of the unit, and Sullivan, who is also a professor at Harvard Law School and the director of the Harvard Criminal Justice Institute, brought a theoretical approach to the project that matched Thompson's ruminative disposition. When I asked Sullivan to explain what it means to "do justice" -- a phrase several people in the [CRU] use -- he said, "The person who's the best advocate can prevail with a conviction even if the evidence doesn't warrant it. Under a justice regime, the notion here is that we're looking for the correct result, the right result. That's what prosecutors are duty-bound to do in the first instance." To that end, Brooklyn's [CRU] was designed to work alongside an independent review panel, made up of attorneys who don't work for the [DA's] office, that makes its own recommendations to Thompson.
According to Hale, the unit has accepted about a hundred cases for review since March, 2014, and has made a determination in thirty-one. Most of the cases that the unit has handled so far involve crimes that were committed in the early nineteen-nineties, during the highest period of criminal activity in the history of Brooklyn, which were also Hynes's first years as [DA]. The highest priority for the unit, Thompson says, is to give freedom to people who were convicted during the concomitant era of mass incarceration but don't belong in prison. He likens the work of the [CRU] to that of a hospital's triage center."
For the moment, two important challenges remain outside the scope of Thompson's unit: understanding precisely why mistakes happened and instituting measures to prevent wrongful convictions from happening in the future. Neufeld argues that the means for accomplishing these goals already exists. "The only sector in society which has not used root-cause analysis" -- a formal methodology for determining the source of an undesirable result -- "routinely to deal with its issues has been the criminal-justice system," he said. "And I don't want to single [DAs] out. It's true of public defenders; it's true of crime laboratories; it's true of police departments; it's true of the courts."
In 2011, Brandon Garrett published a book called "Convicting the Innocent," which assessed two hundred and fifty cases in which defendants were later exonerated based on post-conviction DNA testing. The book's aim was to better understand the flaws in prosecutorial functions and recommend reforms-to perform the kind of root-cause analysis Neufeld would like to see more of from officials. "The trial records in these cases give us every reason to believe that most of the police, prosecutors, forensic analysts, defense lawyers, judges, and jurors acted in good faith," Garrett writes. “They may have suffered from the everyday phenomenon of cognitive bias, meaning that they unconsciously discounted evidence of innocence because it was inconsistent with their prior view of the case, or they were motivated to think of themselves as people who only pursued the guilty."
It is impossible to know how many wrongful convictions have taken place in the United States over the years, even in counties that can count on the good faith of their officials and can rely on DNA evidence. For Kings County, at least, questionable behavior by key members of its criminal-justice system over at least the past two decades, combined with recent events in other jurisdictions that point to biases deeply embedded in American criminal justice, suggests the urgent need for new methods to guard against structural flaws. So far, Thompson's [CRU] has been dedicated to scrutinizing the past. But can he also establish a lasting oversight system to ensure that his own actions, and those of the next [DA], are watched? Thompson admits that there is more to be done, but contends that he cannot divert more resources for those efforts. After the triage period, he says, his unit will begin to address those larger systemic concerns.
On November 22, 2014, just two days before protesters around the country demonstrated against the decision by a grand jury in Ferguson, Missouri, not to bring charges against the police officer who killed Michael Brown, a smaller, but similarly focused protest took place in East New York, Brooklyn. Residents of the Louis H. Pink Houses marched from their homes, carrying candles and signs that read, "NYPD: GUILTY." The crowd was expressing anger and grief over the fatal shooting of Akai Gurley, twenty-eight and unarmed, by Officer Peter Liang, which took place in the stairwell of Pink Houses, on November 20th.
Thompson quickly ordered a full investigation of Gurley's death, which police commissioner William Bratton had called "an unfortunate accident," and will impanel a grand jury in Brooklyn to consider criminal charges. "I'm going to do it because it is important to get to the bottom of what happened to Mr. Gurley, who was an innocent, unarmed man who lost his life," he told reporters.
Gurley's death may yet be determined to truly have been an accident, but such a ruling, should it come, wouldn't diminish what the protesters, some of them residents of Pink Houses, already know. For them, Gurley's name has already been added to the growing list of names that signify the failures of a criminal-justice system that enables the often-fatal mistreatment of black people in America. Outsiders tend, sometimes, to understand such protests as a creak-in-the-joints sense, among oppressed communities, that rain clouds are approaching; protesters in those communities are saying, rather, that they are standing outside, drenched, without an umbrella. Gurley's death embodies the challenge that Thompson has set for himself: to restore the community's confidence that the criminal-justice system will protect them.