Exonerations in Brooklyn highlight a national problem

For the last month, Joel Fowler has been living life as a free man. After spending more than seven years in prison for a crime he did not commit — second degree murder — on Aug. 4 he became the 14th person to have a wrongful conviction vacated in Brooklyn since Kenneth Thompson became district attorney there in January 2014.

An investigation by the Brooklyn DA’s Conviction Review Unit (CRU) found that Fowler had inadequate legal defense and that the case relied on unreliable witness testimony, false identification and a false confession by Fowler, who was only 17 years old at the time.

There is a presumption that if “someone confessed, then they were guilty, and what more was there to think about?” said his attorney, Lynn Fahey. But that is not always true, especially in cases involving young or mentally ill defendants or others who might believe that a confession offers the best chance of escaping life in prison, she added.

Fowler’s case illustrates a national concern, since reforms to assist prisoners who claim postconviction innocence are lagging. The CRU under Thompson is dedicating significant resources to look into alleged miscarriages of justice. Many legal advocates believe that others should follow his example, because as a 2014 report by the National Registry of Exoneration points out, there is no reason to believe that the problem of wrongful convictions is limited to Brooklyn.

More than 40 percent of exonerated defendants who were younger than 18 at the time of the alleged crime gave a false confession, according to the report from the National Registry of Exonerations, a project of the University of Michigan Law School. The number jumps to 69 percent when the accused is mentally ill or deficient, compared with just 8 percent of adults with no known mental disabilities who confess to a crime they did not commit. 

False confessions have been a contributing factor nationwide in about 13 percent of exonerations, according to another report by the project. 

Last year Brooklyn was one of three offices (along with Dallas and Harris counties in Texas) that, combined, were responsible for three-quarters of 125 total nationwide exonerations — an annual record.

The number can been attributed to the impact of review units, said Samuel Gross, the editor of the National Registry of Exonerations. In Brooklyn in a very short time, there have been an extraordinary number of exonerations in cases involving serious violent crimes, he said. On the basis of his research, he said, he sees no reason to doubt that other large urban areas with high homicide rates in the past also made wrongful convictions.

Thompson campaigned on reviewing cases in which defendants claimed they were innocent. After being elected, he beefed up the CRU, which was created by his predecessor. There are 10 prosecutors and three investigators assigned to review cases. The office has has an independent review panel of three lawyers and dedicates $1.1 million annually in resources. “The establishment of CRUs will help restore the public faith in our criminal justice system that has been lost and … rectify the tremendous damage done to individuals who were wrongfully convicted,” Charisma L. Troiano, a spokeswoman for the Brooklyn district attorney’s office, wrote via email.

The office has accepted more than 100 cases for review, with decisions made in more than 40 of them, according to Troiano.

Seventy-two of the cases being examined are linked in some way to retired New York City Police Detective Louis Scarcella, whose work has been scrutinized for allegations of misconduct. Scarcella has denied wrongdoing.

So far, the Brooklyn CRU has reviewed 35 of those cases. In 29 the conviction stood. However, six convictions were vacated, Troiano wrote.

One of the cases tied to Scarcella was Derrick Hamilton’s. In 1991, Hamilton was accused of shooting to death a 26-year-old man. He was convicted of second-degree murder and sentenced to 25 years to life in prison. When his case went to trial, neither of his alibi witnesses was called. One of the witnesses even alleged that the police threatened to arrest him if he testified on Hamilton’s behalf. Additionally, the first person to point the finger at Hamilton was Jewel Smith. She recanted her testimony before sentencing. Smith said she blamed Hamilton because Detective Scarcella told her that unless she did so, she would be charged with the crime.  Hamilton was exonerated in January after 21 years behind bars. The contributing factors to his release included perjury and false accusations, misconduct and inadequate legal defense. The re-investigation also found that medical evidence did not support witness testimony.

“Louis Scarcella is not the problem. Louis Scarcella is a symptom of the problem,” Gross said. “Louis Scarcella did terrible things…but there were a lot of people around who either should have known better or did know better and did not stop him,” he added. “And there is no reason to believe that that is unique [to Brooklyn].”

David McCallum and Willie Stucky were also exonerated by the work of the Brooklyn CRU late last year. They were 16 years old when arrested in 1985. A year later, the two were convicted of second-degree murder They were both sentenced to 25 years to life. McCallum is now a free man. However, Stucky died of a heart attack while in prison in 2001. Half of his life was spent behind bars for a crime he did not commit.

Stucky was one of two men exonerated posthumously under Thompson’s office.  Darryl Austin died in prison after spending 13 years incarcerated for a murder he did not commit. All but one of the men vindicated in Brooklyn had been accused of murder.

Michael Waithe was 22 years old he was convicted and imprisoned for a burglary that, it turns out, never occurred. He fought for nearly 30 years to clear his name. An examination of his case revealed that his accuser Delores Taylor fabricated a story about Waithe being one of three men to break into her apartment because she believed he might have stolen her car months earlier. Waithe had not.

There had been no forensic or physical evidence linking Waithe to the burglary for which he was sentenced – not even a fingerprint. And Waithe had witnesses who could testify that he was elsewhere, according to his lawyer Matthew Smalls.

Waithe, an immigrant from Barbados, served 18 months. Upon his release he was listed as a convicted felon. Years later when Waithe was returning to the U.S. from his daughter’s wedding in Barbados he was detained at the airport. Because of his convicted felon record – and new regulations that were put in place post 9/11 – the government began deportation proceedings against him, Smalls said.

At Waithe’s request, the Brooklyn District Attorney’s CRU agreed to look into the case. The stigma of the convicted felon tag stuck with Waithe until February, when he was exonerated.

“Mr. Waithe is the victim of a wrongful conviction. I won’t let him be the victim of a wrongful deportation,” said Thompson.

“Looking back the case just looked absurd,” Smalls said. The country has to prevent this type of injustice going forward, he added, saying that prosecutors, in particular, need to think about delivering justice – not just winning their cases.

Sadly, Waithe’s case is par for the course. Nationwide from 1989 through June 2015, 1,614 people have been exonerated. In the 125 known exonerations in 2014, no crime took place in almost half (46 percent) of them, according to the National Registry of Exonerations.

For example in Harris County, Texas, 33 people had been convicted of drug possession in what turned out to be “no-crime cases,” said Gross, the law professor who oversees the national registry. These defendants pled guilty, but when the lab tests came back, there was no evidence of controlled substances. Those are much simpler cases than the murder cases in Brooklyn, although the fact that so many occurred in Harris County is very disturbing, Gross said.

Gross said the lack of funding in the criminal justice system is a key problem. “One thing that is necessary is simply being willing to pay for the quality of justice we claim to have. We're not. We have a system of justice that depends on getting people to plead guilty and take whatever punishment is offered to them so they can get it over with as soon as possible. And that is how we do business,” he said.