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Jan 31 2014

Time to Right a Wrong in Brooklyn

I have represented David McCallum pro bono for over nine years in an effort to overturn his wrongful conviction. Our team in this effort is comprised of Dr. Rubin “Hurricane” Carter, Ken Klonsky and Gary Dolin of Innocence International in Canada; Professor Steven A. Drizin, Director of Northwestern University’s prestigious Center on Wrongful Conviction; and Laura Cohen, Director of the Rutgers Urban Law Clinic and Clinical Professor of Law at Rutgers University School of Law. This year attorney John O’Hara has also agreed to serve pro bono as my co-counsel. Together, with many others, we have repeatedly but unsuccessfully tried to get the former head of the the Brooklyn DA’s Conviction Integrity Unit to acknowledge the strong evidence establishing Mr. McCallum’s innocence. Mr. McCallum was convicted in 1986 when he was 16 years of age – he is now 45 years old.

David McCallum.2While the DA’s Office did provide some assistance, for example agreeing to test some crime scene evidence for DNA (none of which matched Mr. McCallum or his co-defendant Willie Stuckey – who died in prison in 2001), they eventually began ignoring our communications and requests despite repeated promises to address certain issues. All members of the McCallum team are highly experienced in analyzing and overturning wrongful convictions and all of us are in agreement that David’s case is a clear example of a wrongful conviction and one that would be acknowledged if an objective DA’s office were to look at the facts and evidence we presented.

Let me provide a brief summary of the case facts and where we have gone since our involvement.

Case Facts
On October 27, 1985 David McCallum and Willie Stuckey (both age 16 at the time) were arrested in connection with the kidnapping and murder of Nathan Blenner, in Queens NY. On October 20, 1985, two neighborhood boys had witnessed two young male blacks force Mr. Blenner into Mr. Blenner’s car, a Buick Regal, and drive off. The next day, Mr. Blenner’s body was found face down in Brooklyn’s Aberdeen Park; he had a single gunshot wound to his head. The Blenner car was found on October 22, 1985, after a security guard had reported it being burned by a group of young men on Fulton Street in Brooklyn.

After being interrogated by Detective Joseph Butta (now deceased) subsequent to their arrest, both boys gave very brief, videotaped confessions to an Assistant District Attorney that same night and were then charged with two counts of Murder in the Second Degree, Kidnapping in the first Degree, Robbery in the First Degree, and Criminal Possession of a Weapon in the Second Degree. McCallum and Stuckey were tried together before one jury in a trial that began on October 21, 1986.

On October 27, 1986, both Willie Stuckey and David McCallum were found guilty on all counts, even though, at no time then or since, has a single piece of forensic evidence or evidence of any kind ever tied McCallum or Stuckey to the crime. On November 17, 1986, they were sentenced to a term of 25 years to Life. As I stated before, Willie died in 2001, while David remains incarcerated at Otisville Correctional Facility, as he has been for more than twenty-eight years.

Confessions

Both defendants immediately recanted their confessions and pled not guilty, opting for trial and rejecting a plea bargain of fifteen years to life. They both insisted that confessed only because they were coerced, tricked and physically assaulted. Before and since Stuckey’s death, Mr. McCallum has consistently maintained his innocence; even before the Parole Board which has consistently denied him parole principally for his “failure to express remorse.” He has fought in both state and federal courts to get his conviction overturned and his appeals and 440 motions have been denied. Even though the confessions lasted less than three minutes, there are numerous factual inconsistencies between the confessions and the physical evidence. For instance, the boys described very different versions of events and the methods in which they both described the victim was shot does not comport with the autopsy report.

David McCallum.3.At the time of Mr. Stuckey’s and Mr. McCallum’s trial in 1985, the study of false confessions was in its infancy. In the past two decades, however, extensive social science research into the phenomenon of false confessions has greatly increased the understanding of the causes and consequences of false confessions. The advent of DNA testing has resulted in 218 exonerations to date, approximately 25% of which, according to the Innocence Project, involve false confessions. Many of the false-confession exonerations involve young men like Mr. McCallum and Mr. Stuckey. Two of the most highly-publicized exonerations of recent times – the Central Park Jogger Case and Marty Tankleff’s case, both involved young men confessing to crimes they did not commit. Professor Drizin, a leading authority on false confessions, has examined the tapes in this case and found them troubling and containing many of the key indicators of false confessions.

DNA and Fingerprint Evidence

Our investigation into this case revealed several pieces of evidence that were never tested for DNA material as that science did not exist at the time of the conviction. In particular, after the car was recovered, numerous cigarette butts and a marijuana roach were found inside the ashtray of the car, a car in which Blenner family members were not permitted to smoke. As far as we can ascertain, Mr. McCallum’s defense attorney never received the results of any hair, fiber, or blood analyses that may have been conducted prior to his trial. We do know, however, that none of the many fingerprints obtained matched those of Mr. McCallum or Mr. Stuckey. In 1985, the police determined that one print, taken from the left side of the car, matched one of three boys seen near the car just before it was set on fire. Similarly, a palm print lifted from the kerosene can, which police believed was used in the arson of the car, was not that of Mr. McCallum or Mr. Stuckey. Recent print comparisons conducted by the DA’s office have revealed two additional matches. One, also obtained from the outside of the car, matched another of the three boys. The second, obtained from a “stub” card found inside the car, matched a man whose name does not appear in the DD5’s and who died in 1992.

Most significantly, we got the DA’s office to agree to conduct DNA analysis of the nine cigarette butts found in the car. Two of these butts matched the same person who is also in the New York DNA registry on the basis of past criminal conduct. My investigator Van Padgett and I tracked down this man in a rural town in upstate NY and he has told us that he does not know how two different cigarettes carrying his DNA found their way into Mr. Blenner’s car, an obvious fabrication.

Despite all of the above, the DA’s office inexplicably denied our requests to test more of the physical evidence recovered from the vehicle.

An Earlier Similar Incident

Following Mr. Blenner’s abduction, police from the 106th precinct canvassed the area and spoke with several people in the neighborhood. Only the two neighborhood boys reported seeing anything related to the crime. Their trial testimonies differed markedly from the grand jury testimony. The most significant difference was that in the grand jury, they testified they were playing outside, and that they clearly identified Nathan Blenner in his car. At trial, however, they said they couldn’t see Nathan because they were inside the house when the abduction occurred. There were other departures between their two testimonies, but Peter Mirto, David’s defense lawyer chose not to cross-exam them at all.(Mr. Mirto is deceased. He was disbarred from the practice of law for lying and theft subsequent to this conviction, though not for any acts or omissions that related to this conviction. In the Matter of Mirto, 126 A.D.2d 362 (2d Dep’t 1987).

During the canvass, a woman we’ll call Chrissy said that at approximately 2:00 p.m. on October 20, 1985 (about an hour earlier from the Blenner kidnapping) she was washing her car in front of her residence on 117th St, right around the corner from the Blenner household. She also owned a Buick Regal, only one year newer than the make and model of the Blenner vehicle. She told police she observed two black males walking north on 117th. She described both males as in their twenties. One was 5’6, thin build. The other was 5’10, with a thin build. One had hair in braids. One of the males said, “That’s a nice car.” She replied, “If it’s not here tomorrow, I’ll know where to look.” The men continued walking north toward 111th St. Neither Stuckey nor McCallum had braids and both were 5’5” tall; they were 16, not in their twenties. The only DD-5 report regarding Chrissy clearly indicates that she told the investigating officer that she could identify the two men and would be willing to go to the police station to view mug shots; that statement was given when she called the police a few days after the Blenner abduction to tell them that her Buick Regal was stolen.

David McCallumWe were able to track down and interview Chrissy a few years ago out in Suffolk County. She informed us that after calling the police about her stolen car, she was visited by a Brooklyn detective who brought mug books of robbery arrestees from the Brooklyn precinct handling the Blenner murder. She spent time going through all of the mugbooks but could not identify anyone. Mr. McCallum and Mr. Stuckey had previously been arrested in that precinct for a robbery charge; it is therefore highly likely that their mugshots were contained in one of those mugbooks. But, more importantly, no DD-5 exists of this visit to Chrissy.

Even more important is the way the prosecutor and the arresting officer dealt with the Chrissy issue at trial. They took great pains to distance the two individuals who accosted Chrissy from the two individuals who abducted Nathan Blenner. In fact,the DA’s office’s Appeals Bureau -which opposed our 440 motion – stated in its opposition affirmation that it is the Kings County
District Attorney’s position that Chrissy was accosted by two individuals other than Stuckey and McCallum. Why was this critical and problematic for what was then Joe Hynes’ Office?
Because Willie Stuckey was made to confess to the facts of the Chrissy incident in his initial statement to the police. So, declaring in court in 1986 that these are two unrelated incidents and affirming that position again in court via opposition to our 440 motion is a declaration by the Kings County District Attorney’s Office that, back in 1985, 16 year old Willie Stuckey’s confession contained essential false facts. Defense counsel for McCallum, due to lack of diligence and investigation, never presented the Chrissy evidence in detail to the jury and never picked up that the ADA and lead detective had essentially admitted that Willie Stuckey had “falsely” confessed to the Chrissy incident. At trial, the ADA and Detective Butta engaged in a twisting of the actual facts to hide the more obvious conclusion: that whoever accosted Chrissy also abducted and killed Nathan Blenner. Since McCallum and Stuckey did not at all resemble the two people Chrissy saw moments before the Blenner abduction, they could not be the perpetrators.

This evidence and argument was ignored by the 440 court and by the Conviction Integrity Unit. Our team kept imploring them to just look at this one issue again, as it establishes the falsity of the confessions and the unfairness of the original trial. In an email to me dated December 19, 2012, the ADA stated he would “again review the confession and relevant sections of the trial transcript” if I detailed my argument to him in an email. I did precisely that the same day. Despite repeated calls to him following up on the email, I never received a response. Finally on August 6, 2013, I wrote DA Hynes directly asking him to intercede and elicit a response from the ADA. The ADA wrote me on August 15, 2013 dismissing the Hank issue because it was raised in our 440 motion, despite his express, written promise to take a new look at it. He also said he found no evidence supporting our claim that Det. Butta had shown photographs to Chrissy which may have contained the defendants’ mugshots even though we had submitted an affidavit from Chrissy to that effect. Furthermore, his position that the argument had been made before is disingenuous as he had agreed to take a fresh look at the case and as that is the whole purpose behind the CIU.

David McCallum WindowThat is what we are asking again right now, knowing that the truth is self-evident and will support our assertions. This week, we have written newly elected DA Ken Thompson asking him to look at this case once again. I have only included the main issues here (it’s already a long blog post as it is) but there is even more evidence pointing to the injustice done to David and Willie. And our work continues. Just yesterday, Van Padgett and I interviewed a witness in Riker’s Island who provided new information about further police cover-ups in this case. He provided an affidavit that we hope will form the basis of a new 440 motion.

In our letter to DA Ken Thompson we closed with the following paragraph:

By your resounding victory in the November election, the people of Kings County sent a clear message: they want a new voice and fresh slate in their prosecutor’s office. This case was among the very first to be investigated by the Conviction Integrity Unit. Our experience with your predecessor’s Conviction Integrity Unit, however, reveals that this Unit was in the past more interested in hiding the mistakes and transgressions made during the tumultuous 1980’s when the office was overworked and understaffed; defendant’s rights and protections went by the wayside as the office was dealing with rampant crime and insufficient resources. I ask that you allow me one hour to set forth all the proof and arguments establishing David’s innocence and the multiple injustices that have occurred in his case. Once it is detailed to you, I am confident that you will consent to the vacatur of his conviction and his release from his wrongful incarceration.

This has to happen now – One life was already lost to the prison system when Willie Stuckey died. David is consistently denied parole because he refuses to “acknowledge” his guilt. Basically, the Parole Board is telling him now what the 83rd Precinct told him all those years ago – “Just say you did it and you can walk out that door.” David says he fell for that false promise once when he was 16, he’s not falling for it again even if he knows that just expressing guilt and remorse could get him released.

I want to thank intrepid filmmakers Ray Klonsky and Marc Lamy for the great pictures of David I have included in my post. They have been working on a documentary on David for as many years as I have been on the case and this year, it should be released on Canadian television. Let’s hope David will get to see it from a nice comfy easy chair and not a prison bench!

22 comments

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  1. Gloria Wolk

    He was sixteen. That grieves me terribly. To imagine how this must have affected such a young person, the shock of being convicted, the realization he is a victim of the judicial system. And everything you and the other attorneys have done going nowhere. When you first agreed to help him nine years ago, it must have raised his hope. By now he must be despairing he will ever be exonerated.

    I hope a large segment of the public reads this and realizes that when the police and the prosecutors team up against an innocent person, this could happen to someone they care about, a relative, a friend. It is time we join forces and demand systemic changes to the system that is guilty of so much injustice.

    1. Oscar Michelen

      David has been on a rollercoaster ride these last few years – we keep finding more evidence proving his innocence but the Kings DA’s Office seemed to want us to solve the crime not just show that David was wrongfully convicted. So his hopes have been raised and dashed many times over the years. But he is inspired by Dr. Carter’s story and Rubin has been his biggest advocate so David remains hopeful that one day justice will be done. May this be the year.

  2. Rev'd Jack Barrett

    The miscarriage of justice is not simply a problem for the convicted, it is a problem for the family, society and other potential victims of the person(s) who actually committed the original crime. A similar case of wrongful conviction occurred in Nova Scotia, Canada when Donald Marshall Jr. (a youth at the time, from a visible minority) was convicted of murder. Subsequent appeals and inquiries ultimately resulted in his release with a strong condemnation of the ‘justice’ system at the time During the inquiry, the police chief interfered with the investigation and actually sat on the case file in his office while investigators went through the stored files on the case.

    I commend Mr. McCallum on his integrity.

    Justice for one = justice for all.
    Miscarriage of justice for one = miscarriage of justice for all.

    1. Oscar Michelen

      Thanks for the comment!

  3. Mattie

    I am speaking from a family member’s perspective.
    It is hard surving on the streets these days so, can
    You imagine surving 28 years in NYC prisons.I commend
    David for his strength and determination by not
    giving up his hope and continuing his fight for his
    freedom. OSCAR, RAY, KEN, MARK, VAN, GARY, (LATE)
    HURRICANE CARTER, LAURA, RUTGERS UNIVERSITY /
    LAW SCHOOL, ALONA, LAURA, AND MANY OTHERS
    On behalf of myself and my family. We THANK YOU
    for all for the hard work,time,dedication and,most
    all the belief in his innocence.

    1. Oscar Michelen

      Thanks so much

    2. Sherry McBee

      Mattie, I am so overjoyed that your brother is now home! I literally wept with joy after watching David and Me. I actually couldn’t go further than watching him tell of his coerced confession before loking him up to see if he had been free. Why? Because his spirit is evident even through film! I wish I could have the privilege of telling him this myself but please do so for me. I wish him peace, wellbeing and health in abundance. All my love and best wishes to all your family. I’m so thrilled for each of you!!

  4. Roberto Rosario

    I met Mr. Mccallum in prison some years back. I always would say what is this guy doing in hete. He so humble and respectful. David you a good guy a strong man and I’m sure although prison life is a lonely stressful place I’m sure God will help assist you in living life on this side without a problem. Take it one day at a time all will fall in place. GOD BLESS!!

    1. Oscar Michelen

      Thank you Mr. Rosario I will pass o your message to David

  5. Cheryl

    Is the State of New York going to compensate Mr. McCallum for his wrongful incarceration?

    1. Oscar Michelen

      Good question – we are in the midst of litigation

      1. brenda Gonzales

        This is my husbands story!

        http://ladydraper.tumblr.com/post/92711619596/story-of-a-wrongfully-convicted-man

        Can you please read my husbands story and let me know if you can help us in anyway please!!

        1. Oscar Michelen

          Dear Brenda: Its hard to read that and understand why your husband is still in prison or at the very least why he cant get a hearing on a post conviction motion. A few questions (1) Did the description given by Patricia and Clarissa match each others? (2) Have you written the Innocence Project at Colorado Law School? They cold get DNA testing on the confession letter and see if it matches the DNA found at the crime scene. (3) As a NY lawyer I cant do much in Colorado. What does your husbands trial lawyer say about all this?

          1. brenda Gonzales

            Dear Oscar, thanks for responding to my husbands story. As the questions you had for us. 1. Patricia and Clarissa description was similar but didn’t come close to my husbands description. 2.He did reach out to the Colorado Innocence project but they weren’t able to help him as they said he had to exhaust all his resources before they could intervene. And 3. He has a public defender lawyer as we’re not able to afford a paid attorney. But it seems so unfair because he’s still sitting in prison and has innocent. Just wish we could get better help to fight for his freedom.
            Thanks again Brenda

          2. Oscar Michelen

            Will see if I can reach out to someone

          3. brenda Gonzales

            Thanks Oscar we both would be most greatful to you. We definitely need a blessing! God Bless you too!

  6. T

    I knew a guy who was convicted of murder when I was a kid. Later they found out he wasn’t the killer. This crap happens way too often! Lazy police work, lazy defense team, and a rush to judgment!

    1. Oscar Michelen

      Exactly

  7. Sherry McBee

    Mr. Michalen, I want to commend you on your work to free Mr. McCullam. I rejoice that he is now a free man. I live in Memphis and since the West Memphis Three have wondered how such injustices can continue for so long. I have watched 5 documentaries in the last 2 years about wrongful convictions being (eventually) overturned. Other than voting very carefully at our local level what can everyday people like myself do to help change things in our justice system? Do all major cities have a review system for these disputed convictions?

    I greatly appreciate your time in answering my questions. I wish you well.

    1. Oscar Michelen

      Dear Sherry: Thanks so much for your kind words. I will pass them along to David. To answer your questions, (1) You are already doing your part by educating yourself and others around you about this problem. Make it an issue in your local prosecutors’ and attorneys general elections. Maybe try and get your school or library to schedule a film you like about wrongful conviction and have a dialogue with a local prosecutor and defense lawyer about causes and prevention of wrongful convictions. Write an article for your local paper reviewing the movie. Any of this can help spread the word. Most importantly – serve on a jury if you are called and give it your complete attention. (2) Sadly only 25 counties across the entire country have some form of Conviction Review Unit and many of those are understaffed and without sufficient resources. Here is a great recent article from the University of Pennsylvania about CRUs across the country http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2615&context=faculty_scholarship
      Thanks for your comment and your support

  8. Erwin

    Hello Oscar,

    I wanted to leave this message and let you know that you are an amazing attorney and commend you for the hard work that you and your team accomplished in battling this huge and almost impossible obstacle . After seeing the documentary David & Me I told myself that you folks made the impossible POSSIBLE. Stories like these are what make me realize that there is hope and hope is something that we always have when nothings is there, hope comes in different ways and in this one came in a team that went out above and beyond above all.

    If there is a way that I can personally send a note to David McCallum please email me.

    Take care! and Thank You!

    Erwin

    1. Oscar Michelen

      Thank you for the kind words. His email is d.mccallum347@gmail.com

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