This week in innocence

April 15, 2014

There have been several innocence cases in the headlines over the last week or so. First, in New Jersey:

The man accused of masterminding one of Newark’s most haunting murder cases has filed suit against the Essex County Prosecutor’s Office, Newark Police Department and U.S. Sen. Cory Booker, claiming he was the victim of a political conspiracy and a malicious prosecution rife with shoddy police work.

The civil suit, filed in Superior Court in Essex County by Lee Evans, contends that police had no evidence tying him to the arson murder of five teenage boys from Newark who disappeared in 1978. It also accuses prosecutors of relying almost solely on a statement given by Evans’ cousin and co-defendant, Philander Hampton.

Evans was acquitted of murder in 2011.

“This system is not about justice, it’s not about justice at all,” Evans, 60, said in a recent interview. “It’s about two things. A win and a loss.”

The suit, which reiterates many of the allegations Evans made after his 2010 arrest, also repeats his claim that the charges were orchestrated to help Booker win a second term as Newark mayor. Evans was arrested two months before an election Booker was heavily favored to win.

Evans also claims a grand jury failed to indict him twice and contends that an indictment was only returned after a police officer altered his statement during a third and final court hearing.

I don’t know enough about Evans’s allegations to have an opinion about them, but it’s an interesting case given that Booker has made a pet cause of criminal justice reform.

Here’s one from Brooklyn:

At a hearing tomorrow in Brooklyn Supreme Court, District Attorney Kenneth Thompson is expected to consent to the release of Jonathan Fleming, who has served more than 24 years in prison for a murder that an emerging pile of evidence suggests he did not commit.

The dramatic turn reverses years of steadfast opposition from the District Attorney’s Office, which vigorously fought Fleming’s appeals for two decades.

Even after extensive exculpatory evidence surfaced during a joint review by former District Attorney Charles “Joe” Hynes’ Conviction Integrity Unit and Fleming’s attorney, Anthony Mayol, efforts to free Fleming appeared to have stalled. . . .

Over the last year, investigators for Fleming and the unit discovered a range of evidence casting doubt on Fleming’s guilt and supporting his long-held assertion that he was in Orlando, Fla., visiting Disneyworld with his family when 22-year-old Darryl “Black” Rush was shot to death on August 15, 1989.

Investigators found a receipt showing that Fleming had paid a phone bill at a hotel in Florida just hours before the murder took place; an Orlando police report confirmed that several hotel employees remembered Fleming being there.

The team also found evidence supporting the claim that a key witness had only agreed to testify against Fleming to avoid criminal prosecution, unearthing a command log from the 90th Police Precinct showing the witness had been arrested prior to Fleming’s trial.

None of that material was turned over by prosecutors at Fleming’s original trial in the summer of 1990. Asked about the phone receipt, a detective testified that he had “no recollection” of it. . . .

At Fleming’s original trial, the prosecution’s case was based primarily on testimony from a single witness who said she had seen the crime and fingered Fleming as the shooter.

Fleming’s defense attorney countered with several pieces of evidence to argue that Fleming was in Florida at the time, including plane tickets and video footage of his client enjoying time with his family there. Several relatives who accompanied Fleming on the trip testified on his behalf. Fleming’s uncle said he picked him up from the airport when he returned on August 16, 1989. The murder took place at approximately 2:15 a.m. on August 15.

But the assistant district attorney who handled the case, James Leeper, pointed out that there was no footage of Fleming in Florida on August 15, and it was possible that Fleming could have flown to New York, shot the victim, and then flown back to Florida. Fleming’s defense attorney stipulated to that being a possibility, even though Leeper had no evidence proving it.

Not long after Fleming was convicted in July 1990, the eyewitness recanted, saying she only testified because she was threatened with jail time if she didn’t cooperate. Judge Albert Koch, who presided over the trial and the initial appeal, didn’t believe the recantation, however, and affirmed Fleming’s conviction.

Fleming has filed numerous appeals since then, but each was defeated by the District Attorney’s office.

James Leeper has prosecuted cases in Brooklyn for the better part of three decades. At least as of December, he was still working in the Brooklyn DA’s office. If he was capable of as egregious a miscarriage of justice as this one, Fleming is probably not the only innocent person he has put behind bars.

Which brings us to our final story this week. Former Brooklyn District Attorney Joe Hynes admitted that he believed another man wrongly convicted by his office, Jabbar Collins, was innocent, and that Hynes’ office withheld exculpatory evidence from Collins’s attorneys. That’s all well and good, but the folks at the Open File blog have some questions for Hynes.

Such a concession from the former District Attorney of Kings County is significant given Collins is attempting to seek reparation for the 16 years he endured in prison through the lawsuit. But it also raises the question, why did Hynes continue to defend his attorneys’ prosecution of the case?

In late 2012, Hynes said in a statement to the press that he had no intention of investigating the conduct of Michael Vecchione, who originally tried the case, despite a swathe of evidence that Vecchione threatened witnesses and withheld exculpatory evidence in order to win Collins’ conviction.

It is a little unclear exactly when Hynes decided Collins was innocent, but from this exchange it seems that Hynes had doubts about Richardson’s statement at the time he made it in 2010. He was obviously feeling pressure to stand by his assistants despite his feelings about Collins’ innocence.

Hynes’ recent admission comes at a welcome moment for Collins as he pursues his lawsuit, but it does not make Hynes’ handling of the case any less shameful. Despite his unethical conduct in this and other cases, Vecchione was never held to account by Hynes; nor did Hynes seek to defend Collins against the accusations of his assistant, Richardson, that he was still guilty while Hynes was still in office.

Prosecutors often talk about personal responsibility and about holding people responsible for the harm they do to others. But it seems to be a standard that’s rarely applied to prosecutors.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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