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May 26 2017

Recent Philly Exoneration Case Reads Like Textbook on Wrongful Conviction

Shaurn Thomas’ conviction for murder was overturned this week after he served 24 years in jail after Philadelphia prosecutors asked a court to vacate the conviction in the interests of justice. as I was reading about the case in the article in today’s NY Times I was struck by how the case mirrors so many of NY’s recent exonerations, including many that I have worked on in the last twelve years or so and many that have been overturned out of Chicago by Northwestern’s fantastic Center on Wrongful Convictions. The similarities reveal that all major cities should be insisting that their local prosecutors open and properly staff conviction review units as it is highly unlikely that this scourge is confined to NY, Chicago and Philly.

Young Defendants
Mr. Thomas was 16 years old when he was picked up for the murder of Domingo Martinez, who was shot while taking $25,000 to a check-cashing store he owned. Too many cases of wronglfu conviciton
ineffective counsel
I get nasty looks when I speak at bar groups about how ineffective representation by counsel plays a huge role in wrongful conviction but its a fact. As much as we like to blame nefarious prosecutors (and there are those of course in plenty) many exonerees would have never been convicted in the first place if they had competent counsel. In one of my recent exonerations, the case of David McCallum, our re-investigation revealed a previously unknown fact: that his trial defense attorney Peter Mirto (now dead and disbarred for subsequent misconduct unrelated to his horrible job at the McCallum trial) started every morning of hearings and trial with a tall glass of vodka on ice. His 18-b records which we also obtained, established that he tried this murder case having never visited his client in Rikers’ Island and having never visited the crime scene. Part of Mr. Thomas’ exoneration submission was that his lawyer never established tat Mr. Thomas was with his mother in juvenile court on an appearance ticket at the time of the murder. A recent, excellent documentary Gideon’s Army highlights how the under-funding of indigent defense results in numerous, daily injustices.

False confessions
DNA has taught us that nearly one-third of all DNA exonerations have occurred in cases where the defendant has falsely confessed. In the famous case of Marty Tankleff the 17-year-old falsely confessed to murdering his parents, demonstrating the immense power and ability of the police to extract confessions from innocent people. So it should be no surprise that in Mr. Thomas’ case one of his young co-defendants also falsely confessed to the crime and put Mr. Thomas at the scene.

Crack craze
No, I’m not referring to crime committed by folks high on crack. I’m referring to the plethora of wrongful convictions that occurred in the 80s and 90s during the crack epidemic when, courts, judges, police, prosecutors and jurors were willing to put aside or discount people’s rights in order to try and salvage their community from the violence brought on by crack and the business of crack. This phenomenon is succinctly summarized by Mr. Thomas’ current lawyer, Jim Figorski, in the NY Times’ article who was a Philly cop for 25 years before becoming a lawyer:
“I think there was a lot of pressure to solve these homicides.” Yes, and the ultimate victims of those pressures . . . . ?

Continuing Role of the District Attorney
The Philly DA’s office formed a Conviction Review Unit to look at old cases and they collaborated with Mr. Thomas’ lawyers on this case. That collaboration is key and was started with the CRU begun by the late Ken Thompson in the Brooklyn DA’s Office, which remains a model to be emulated. Their investigators re-interviewed witnesses who recanted their trial testimony that Mr. Thomas was there which led to the vacatur of the conviction. But here’s the thing. Despite all of that, the DA’s Office is till considering whether to re-try the case so the Sword of Damocles is still over Mr. Thomas’ head. That’s the same as my experience with the last two conviction vacaturs that I was a part of: Tasker Spruill and Calvin Buari The DAs in both those cases are “considering whether to re-try the case,” despite a judge in Mr. Spruill’s case finding gross prosecutorial misconduct and in Mr. Buari’s case finding that our newly discovered evidence of Mr. Buari’s innocence was credible and would likely have led to as different verdict had his trial jury heard it. Both of these re-trials are near impossibilities in light of the circumstances of the case, but it’s just too hard for these prosecutors to admit that their predecessors (many of whom are in still in the office or just recently retired) got it wrong.

Lost evidence
In April of this year, Steven Odiase had his murder conviction overturned after it was discovered in the case file that a NYPD detective’s form summarizing the canvass of the murder scene—known as a “DD5”— had not been given to the defense attorneys who represented Odiase at trial. Well, that’s not entirely accurate – it had been given to his lawyer during trial but the DD5 that had earlier been handed over had been redacted so that a witness’s description of the shooter that did not match Odiase was missing. I hate when that happens. In Mr. Thomas’ case, an investigative file that had been sought after by Mr. Thomas’ defense lawyers was suddenly found in a hallway at police headquarters. In the file were witness statements that contradicted the accounts that incriminated Mr. Thomas. The NY Times’ article states: “How the file got lost and was finally found was not clear. A [police] department spokesman . . .said no one was immediately available to address those questions.” In Mr. Buari’s case, the crime scene photos and 3 out of 4 of the DA’s files were purportedly and inexplicably lost several years ago, at least according to a response to a Freedom of Information law request. At the start of our hearing, it was revealed by court staff that it appeared that “someone” had rifled through the official court file and left it in disarray and nearly empty.

Persistence
Mr. Thomas has maintained his innocence all along – as have the individuals in each of the cases I have been involved with. Mr. Thomas filed appeals, motions, wrote letters, asked for help from the Innocence Project, and then pursued the Conviction Review Unit. His lawyers, working with the IP in Philly, have been pursuing his case for 8 years. It can be assumed that there were disappointments, dead-ends, lost witnesses, and fruitless efforts all along the way. But if there is one truly unifying factor in all of these cases, it is the steady persistence and resiliency of the wrongfully convicted to continue their pursuit of justice.

Conclusion
The pattern tells us that there are solutions at hand to reduce the likelihood of this ever happening again, or at least reduce the number of times it happens. More open and timely discovery; proper funding of indigent defense; training of police and prosecutors; recording of interrogations from the beginning not just after the purported confession was obtained and then just record it on video afterward; and finally, some accountability when law enforcement is caught gaming the system, perpetrating a fraud or withholding exculpatory evidence. Hopefully, we will never see a crime wave the likes of the crack epidemic, but as we begin to all seem ready to give up many of our Constitutional protections in the name of security in the war on terrorism, let’s all remember that the last time we put those protections aside, we ended up with mass incarceration and innocent people put away for a majority of their lives.

Follow me on Twitter @oscarmichelen

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