Tag Archives: Prosecutorial misconduct

Families of Wrongfully Convicted Call on NY Mayor to Reform NYPD Policies

Lonnie Soury

In a Letter to Mayor de Blasio and a rally at New York’s City Hall, victims of infamous Brooklyn detective Louis Scarcella, including some men who have been recently released after decades in prison, joined families of the wrongfully convicted to ask Mayor Bill de Blasio to immediately institute reforms that could help prevent wrongful convictions in New York City.

Families called on the NYPD to institute universally accepted methods to help prevent wrongful convictions by recording all interrogations and conduct “double blind” procedures in live police lineups and photo arrays. These practices have been endorsed by the International Association of Police Chiefs. It is the law in 22 states including New Jersey and Connecticut. The New York State Senate passed reforms in last session for the first time in years, but the State Assembly failed to act.It was a moving tribute to all those wrongfully convicted.

We were joined by Henry McCollum, who spent 30 years on death row. He gave a moving talk about how he and his brother, who were visiting NC from Jersey City , as young teens, were essentially kidnapped by police and coerced into a false confession. He talked about his disabled brother who was tortured into confessing, and how he watched 42 men go to their deaths while they were on death row. They were exonerated last year, but are damaged for life. If ever there was a testament to the need to reform NYPD procedures for recording interrogations, this was it.

Families also asked the NY City Council and NY State Legislature to establish an independent Innocence Commission, provide oversight of the five District Attorneys offices by establishing disciplinary procedures for ADA’s and police who engage in obtaining coerced confessions, withholding evidence and falsely identifying suspects. These practices were employed by notorious Brooklyn detective Louis Scarcella who, with the complicity of former DA Charles Hynes, engaged in actions that led to wrongful convictions and the imprisonment of scores of men for decades. Dozens of cases are still under review in Brooklyn while many remain incarcerated. As a result of Scacella and other cases, New York City has recently paid in excess of $100 million to wrongfully convicted victims.

They highlighted recent “conviction reviews” that were deeply flawed and resulted in maintaining the wrongful convictions including Manhattan DA Cy Vance’s 18-month review of Jon-Adrian Velazquez’s case, John Giuca’s case in Brooklyn and former Nassau DA Kathleen Rice’s three year review of Jesse Friedman’s case, made famous by the film, Capturing the Friedmans. In all of these cases, the conviction reviews were rejected by prosecutors with little or no transparency.

According to the Innocence Project

In NYC, 11 real perpetrators identified went on to commit five murders and three rapes

52% of New York’s DNA exonerations involved eyewitness misidentification, 48% of New York’s DNA exonerations involved a false confession.

Of the 330 DNA exonerations, 150 actual perpetrators were identified and went on to commit 70 sexual assaults, 30 murders and 25 other violent crimes

Families of the Wrongfully Convicted was started by exoneree Derrick Hamilton when he called me on the phone from prison with Shabak Shakur, exonerated this year,  Danny Rincon, and Nelson Cruz, both still serving life terms, innocently.

False Confessions, , , , , , , , , , , , , , , , ,

Nassau County DA Kathleen Rice Sued for Defamation By Jesse Friedman

Lonnie Soury

Jesse Friedman, who was wrongfully convicted for child sexual abuse in a mass hysteria case in 1988, chronicled in the Oscar nominated film, Capturing the Friedmans, filed a defamation suit against Nassau County District Attorney Kathleen Rice for knowingly publishing false and defamatory statements in a report summarizing her review of Friedman’s 1988 conviction. The suit names Kathleen Rice, in her official capacity as Nassau DA and individually, as well as her public information officers John Byrne and Shams Tarek.

Rice’s Report and the accompanying press release issued in June 2013, included dozens of false statements. In one example, DA Rice made the fabricated  claim that Jesse Friedman, “wrote, possessed and distributed” shocking pornography involving incest, bestiality, and child rape while in prison, and was punished for it.  The DA provided as proof a printout of a series of shocking pornographic stories. The report was widely distributed to the public and leaked to the tabloid media by her office. The DA’s report also includes a false psychological evaluation by a discredited psychologist.

The DA’s office did not merely publish the defamatory material in the report, but highlighted it in press releases to poison the well against Jesse Friedman.  Within a few days of releasing the report, the DA’s publicity officer John Byrne distributed copies of the alleged stories to the New York media causing sensational headlines.

Rice directed her subordinates to supply the text of these materials to, at least, the New York Times and the New York Post.  In response to receipt of these materials, the New York Post published a series news stories under the headlines:

— Jailbird Perv a Smut Writer  

— Convicted Child Molester Jesse Friedman Wrote Porno Stories During His Time In Prison

— DA: Convicted child molester Jesse Friedman found with porno stories during his time in prison.”

The stories provided details of the pornography and stated that Friedman “was disciplined in July 2000 after prison guards found the stomach-churning smut in his cell.”  That same day, at least fourteen other publications with the headline “Perv was a ‘Horny’ Jailbird Smut Writer,” published variations of the story, each linking to the New York Post. The Associated Press, which reaches news outlets in hundreds of markets across the United States, also ran a story sourcing the material falsely released by DA Kathleen Rice.

A standard Google search of any of the text attributed to Jesse Friedman reveals instantly that it is material available on the Internet, written by and credited to someone else, whose email address appears at the bottom with an invitation to contact her.  As the DA was well aware, Jesse Friedman was incarcerated at a maximum-security prison, and had no access to the Internet for downloading such stories, nor did he have an email address.  Jesse Friedman did not “write,” “pen,” “possess,” nor “distribute” this material.

According to the defamation suit: “This claim arises from acts or omissions of the defendants, and alleges multiple false and defamatory statements that were designed to, and did, harm Friedman in his reputation, enjoyment of life, quality of life, and economic interests.  These acts and omissions include publishing statements that Friedman was punished while in prison for writing and distributing horrific pornography that described acts similar to those for which Friedman was convicted, and statements alleging that Friedman was a psychopath.  These were false and defamatory statements of material fact, and Rice and her agents knew, or it is highly likely that they knew, that these statements were false.  The purpose of such statements, as noted by the Hon. Justice F. Dana Winslow, J.S.C., was to portray Friedman publicly as a “‘bad guy.’”

Friedman’s attorney, Ronald L. Kuby, said, “The DA falsely accused Jesse of having written bizarre pornography celebrating the very kinds of crimes of which he had been accused.  And she timed the false claims so they appeared in the press at a time when they would have the greatest negative impact on Jesse – while all eyes in Long Island and elsewhere were watching for the DA’s three-year-delayed verdict in her so-called “unbiased review” of the Jesse Friedman case.  The fact that they also showed these false materials to the members of a panel charged with overseeing the DA’s investigation, reveals the DA’s desire to undermine any fair re-evaluation of this case.”

When challenged on the statement in a later court hearing, rather than admit the mistake, the DA’s office accused Friedman’s counsel of forging the documents that disproved it. Days later,  the DA’s office  conceded that Friedman did not possess the pornography, could not possibly have penned the pornography, and was never punished for it in prison.

Denying Jesse Friedman’s request to overturn his wrongful conviction was tragically unfortunate, it is quite another to double down and distribute the most horrible lies and innuendos to the public, the New York Times and New York Post. The New York Times refused to publish the lies. The New York Post apparently did not care to check facts and contributed to this travesty…Lonnie Soury

 
False Confessions, , , , , , , , , , , , ,

Victims of Brooklyn Detective Scarcella Call For Justice

Lonnie Soury

Victims of infamous Brooklyn detective Louis Scarcella, including some men who have been recently released after decades in prison, joined families of the wrongfully convicted at a news conference on the steps of New York City Hall to ask new Brooklyn DA Ken Thompson to hasten his review of the Scarcella related cases and other questionable convictions by former Brooklyn DA Charles Hynes. Derrick Hamilton (21 years), Sundhe Moses (18 years), Kevin Smith  (27 years), all recently released, claim they were wrongfully convicted based upon false evidence obtained by Detective Louis Scarcella and used by prosecutors.

Derrick Hamilton was sentenced to life in prison after Detective Scarcella coerced an eyewitness to change her testimony to implicate him in a murder. Although the woman recanted, Brooklyn prosecutors hid the fact. Paroled, Hamilton recently won a landmark appellate ruling reopening his case based upon an actual innocence claim.  Hamilton said, “There is tremendous frustration among those wrongfully convicted. While some of us have been released, we are still on parole and continue to suffer as we begin to rebuild our lives. Prosecutorial and police misconduct is not only a serious problem in Brooklyn, it happen in every district attorneys office in the city.”

 The Need for an Independent Commission to Review Wrongful Convictions

Many believe only a truly  independent conviction review process can be effective as there is little faith that New York City’s district attorneys can effectively review their own cases.  Recent “conviction reviews” that were deeply flawed and resulted in maintaining the wrongful convictions include Manhattan DA Cy Vance’s 18-month review of Jon-Adrian Velazquez’s case and Nassau DA Kathleen Rice’s three year review of Jesse Friedman’s case, made famous by the film, Capturing the Friedmans. In both of these cases, the conviction reviews were conducted by prosecutors with little input from defense attorneys and no transparency.  “When the Federal Appeals Court for the Second Circuit stated that I was ‘likely wrongfully convicted’ and asked DA Rice to conduct a reinvestigation I was thrilled. I turned over tremendous evidence of my innocence including victim recantations, all my thousands of case files and gave the DA approval to contact anyone involved in my case. To my and my attorneys shock, the DA spent three years trying every which way to undermine my innocence, and she succeeded,” Friedman said.

Experts recommend the Brooklyn DA establish a Conviction Review process modeled on one currently in place in the Dallas District Attorney’s office by DA Craig Watkins. The Dallas CIU has helped to overturn approximately 44 wrongful convictions.“The most important aspect of these relationships is information sharing: the petitioner seeking relief presents evidence of innocence or due process claims to the Dallas CIU and the CIU, in turn, gives complete access to the prosecution file. There are open, cooperative discussions as to which witnesses will be interviewed and by whom. The results of witness interviews and forensic testing are shared.” 

In an article by investigative journalist Hella Winston, defense attorney Ron Kuby who has worked with CIU in Manhattan, Brooklyn and Nassau County, said, “The Dallas model is far superior. Number one, [in Dallas there is] complete transparency. Both sides share all of their information. We get everything in their file, they get everything in our file, except certain privileged communications. And, second, the investigation is undertaken in a collaborative way. We sit down together and we discuss witnesses. And we discuss…what would be the best side to approach this witness. Should we do it together? Should the defense pursue this witness because frequently the defense is able to win trust where the police don’t, or should the police pursue this particular witness?”

NYPD Should Record All Interrogations and Conduct “Double Blind”  Live Police Lineups

Families are asking NYPD to institute universally recognized methods of preventing wrongful convictions,  by recording all custodial interrogations of suspects and witnesses to prevent false confessions and false testimony. They also want  “double blind” procedures in live police lineups and photo arrays, to prevent witness misidentification. These practices have been endorsed by the International Association of Police Chiefs. Both New Jersey and Connecticut routinely video record interrogations and use “double blind” live witness identification procedures successfully. Marty Tankleff, who recently settled with the New York State Attorney General in his wrongful conviction, said, “There is no reason that police departments across the city and state should not immediately begin recording all interrogations and witness interviews. It could go a long way to curtailing false confessions and false testimony, and reduce the incidence of wrongful convictions like mine. It is universally recognized as a benefit to both police and defendants alike.”

Louis Scarcella is a symptom of a broken system that continues today. There is no Scarcella without a Brooklyn District Attorney who was complicit in encouraging and condoning his actions, and a judiciary that allowed tainted evidence before jury after jury after jury. This happens not only in Brooklyn, but in every borough in this city. It has to stop, and it will only stop when those responsible are held accountable.

There are changes that can be made today that can help prevent wrongful convictions. If custodial interrogations were recorded it is likely that Anthony Yarborough’s false confession would not have happened, nor Sundhe Moses or Marty Tankleff, nor dozens more in New York City and hundreds from around the country.

False Confessions, , , , , , , , , , , , , , , ,

Another Scarcella/Vecchione Case:NY Court Rules Actual Innocence

Lonnie Soury

The New York State Appellate Court for the Second Department made a groundbreaking ruling in the case of Derrick Hamilton, allowing judges to rule on actual innocence claims in ordering a new hearing for Hamilton.

Derrick Hamilton was convicted of murder and sentenced to 25 years to life for a crime he did not commit. Although he was in New Haven, CT, at the time of the murder of a drug dealer in Brooklyn’s Bed Stuy neighborhood, notorious Brooklyn detective Louis Scarcella was able to “convince” a young drug addict to testify against Hamilton even though she had told cops at the scene she was nowhere near the murder. The judge in the 1991 case held off sentencing Hamilton for close to a year as he became aware of police and prosecutorial misconduct. That was until infamous Brooklyn prosecutor Michael Vecchione entered the courtroom.

Hamilton served over 20 years. While in prison he became a jailhouse lawyer and even received a paralegal certificate. He helped many men with their cases and helped free many others. He also filed a number of appeals on his own behalf based upon evidence of police misconduct, new witnesses, and even strong alibi witnesses including a decorated New Haven, CT policewoman. All to no avail.

Derrick contacted me from Auburn Correctional Faciilty in upstate New York after he read about my work in the Marty Tankleff and Damien Echols (WM3) cases. He asked me to review all the evidence and to help free him. I told him I could not take his case unless he was able to pay, as I had exhausted my ability to work pro bono on these matters. A few days later I received a $500 check from the Auburn Correctional Facility Commissary account…imagine my embarrassment. Derrick is a man you cannot say no to. Derrick was a street kid from Brooklyn with a record and he needed legal help and the resources of a large law firm. Unfortunately, although we tried, even those firms who profess their commitment to pro bono representation are not anxious to represent a Black man from Bed Stuy with a record. Luckily he found an excellent attorney, Jonathan Edelstein, who did take Hamiton’s case pro bono.

Although denied parole on numerous occasions, Derrick maintained his innocence and finally convinced the parole board in 2011 they should consider his innocence as well. Although he was free, Hamilton did not give up his fight to overturn his conviction. Now, this compelling man will have the opportunity to prove his innocence without the procedural bars numerous judges have used to prevent him from having a full review of his case. And along the way, he just might have helped an untold number of men and women in New York prisons who reside there innocently.

 

 

 

False Confessions, , , , , , , , , , , ,

Marty Tankleff Settles Wrongful Conviction Suit for over $3 Million

Lonnie Soury

While the settlement of the civil case is good news, it does not begin to repair the damage to Marty Tankleff from his false imprisonment and the murder of his parents, Arline and Seymour. Those responsible for the murders still remain free. In fact, Jerry Steuerman, the man most believe was behind the double murder, took the fifth 140 times in a recent deposition. Until there is justice, only then will Marty gain a measure of peace.

On September 7, 1988, on the first day of his senior year in high school, Marty awoke to find his mother brutally murdered and his father clinging to life. Marty was taken from his home by Suffolk County detectives who told him his father had awoken from a coma to implicate him in the attack. It was the first of many lies. A coerced confession, police and prosecutorial misconduct and a judge anxious for notoriety resulted in his wrongful conviction and a 50-year to life sentence

Marty Tankleff has always been innocent. Ten years ago a retired Suffolk County judge said, “That kid is innocent and everyone in Suffolk County knows it. But, he will never get a fair trial here. He will win in the Appellate Court.”

And, that is exactly what happened in December 2007.

Lonnie Soury, led public campaign to free Marty Tankleff

False Confessions, , , , , , ,

The Case of Debra Milke- Steve Drizin

Lonnie Soury

Steve Drizin, one of the world’s leading experts on wrongful convictions and false confessions, writes: I love the unexpected e-mail or phone message announcing a win in a wrongful conviction case.  Such e-mails are rare, but even rarer in a capital case.  I received such an e-mail today in the case of Debra Milke, an Arizona woman on death row for more than two decades for allegedly hiring two men to murder her son.  I’ve always had my doubts about Milke’s guilt but I’ve never doubted that she was interrogated by a “bad cop” by the name of Saldate.  The only evidence against Debra was an alleged unrecorded confession that was the product of an interrogation by a detective who was ordered to record the interrogation but refused to do so.  The trial boiled down to a swearing contest between Milke and Saldate which Saldate won and these credibility findings have haunted the case ever since even as evidence of Saldate’s mendacious character surfaced again and again.  The  State knew that Saldate was a liar who had a long history of misconduct and disciplinary violations – yet they failed to produce this information to the defense.  It was only through the brilliant post-conviction and habeas work of Milke’s lawyers – Lori Voepel, Mike Kimerer, and Larry Hammond – that the full scope of Saldate’s misconduct came to light.  And the state court and the federal district judges paid little attention to it.

Their hard work finally paid off today in the stunning opinion of the 9th Circuit.  The opinion is based on Brady and Giglio but it is the concurrence of Judge Kozinski that deserves special mention for those who support electronic recording of interrogations.  Kozinski would have ruled that Milke should have been given a new trial on Miranda violations and on voluntariness grounds.  His opinion provides one of the strongest arguments for electronic recording of interrogations and raises questions about how much deference to give to state court factual findings when there was no basis for the interrogating officer not to record the interrogation.  Without a recording, Kozinski, writes the state of Arizona is prepared to execute a woman solely on the sayso of an admitted chronic liar, who disobeyed a direct order to record the interrogation.  That is simply too thin a reed upon which to rest a capital conviction (or any conviction, for that matter).  It’s hard to do justice to Judge Kozinski’s opinion which not only takes Saldate to task but takes his supervisors and prosecutors to task for continuing to let him interrogate suspects and build cases with confessions after his misconduct came to light.

Congratulations again to the lawyers and to Ms. Milke. After such disappointment, today is a day they can relish at least until they have to get back to work to prevent a higher court from snatching away their victory.  The Center on Wrongful Convictions has been proud to play a small role in this effort.  We filed an amicus brief in this case in 2007.  Much of Judge Kozinski’s opinion – especially his defense of recording and his lack of faith in factual findings based on unrecorded interrogations (at least in a case with Saldate) – tracks arguments we made in the amicus brief.  My colleague Laura Nirider, then “only” a law student, co-wrote the brief with me.

Steve Drizin, Center on Wrongful Convictions, Northwestern University School of Law

False Confessions, , , , , , , , ,