New York man cleared of murder after nearly 25 years in prison

[Silent_Bob]

http://www.reuters.com/article/2014/04/08/us-usa-newyork-conviction-idUSBREA3723F20140408

A New York City man who spent nearly 25 years in prison for murder was exonerated Tuesday when a judge found that he had been in Florida on vacation at the time of the crime.

Jonathan Fleming, 51, walked out of Brooklyn Supreme Court a free man after the Kings County District Attorney's Office dropped all charges against him "in the interest of justice."

"He's extremely happy this day finally came but frustrated that he suffered for 25 years for a crime he didn't commit," defense lawyer Taylor Koss said.

Fleming had always maintained his innocence in the 1989 shooting death of his friend Darryl Rush in Brooklyn.

His attorneys said prosecutors rushed to convict him, ignoring evidence including phone bills, photographs, hotel receipts and other evidence that placed him in Florida at the time of the crime.

During his trial, a single witness testified that she had seen Fleming at the crime scene in Brooklyn , but recanted weeks later, his defense attorney said.

Fleming was convicted in 1990 and sentenced to 25 years-to-life in prison.

After nearly a quarter century of appeals and a review by the Kings County conviction integrity unit, District Attorney Ken Thompson said new and existing evidence cleared Fleming of the crime.

"Based on key alibi facts that place Fleming in Florida at the time of the murder, I have decided to dismiss all charges against him in the interest of justice," he said in a statement.

[WithoutAPaddle]

Ed Meese claims that innocence is not grounds for appeal.

Still, I don't get it.  What charges against him are being dismissed?  He was convicted.  There would only be charges pending against him if there were newly discovered evidence that some other crime had been convicted, for which the statute of limitations had not yet run out.  If he got 25 to life 24 years ago, then he basically has served his sentence.

[WithoutAPaddle]

The description of what happened makes a little more sense on the Fox News site.  It says that a Brooklyn judge dismissed the conviction.

http://www.foxnews.com/us/2014/04/08/attorneys-man-to-be-exonerated-18-nyc-murder-after-almost-25-years-in-prison/

Still, I have never heard of a judge having that authority.

[Silent_Bob]

The description of what happened makes a little more sense on the Fox News site.  it says that a brooklyn judge dismisssed the conviction.

http://www.foxnews.com/us/2014/04/08/attorneys-man-to-be-exonerated-18-nyc-murder-after-almost-25-years-in-prison/

Still, I have never heard of a judge having that authority.

People v Hamilton
2014 NY Slip Op 00238
Decided on January 15, 2014

"The question of whether New York recognizes a freestanding claim of actual innocence has not been conclusively determined (see People v Deacon, 96 AD3d 965; People v Jenkins, 84 AD3d 1403; People v Tankleff, 49 AD3d at 182). However, this Court has ruled that "t is abhorrent to our sense of justice and fair play to countenance the possibility that someone innocent of a crime may be incarcerated or otherwise punished for a crime which he or she did not commit" (People v Tankleff, 49 AD3d at 177). Further, a freestanding claim of actual innocence has been recognized by New York courts on the trial level (see e.g. People v Caraway, 36 Misc 3d 1224[A], 2009 NY Slip Op 51466 [Sup Ct, Kings County]; People v Bermudez, 25 Misc 3d 1226[A], 2009 NY Slip Op 52302; People v Bryant, 25 Misc 3d 1206[A], 2009 NY Slip Op 51986 [Sup Ct, Bronx County]; People v Wheeler-Whichard, 25 Misc 3d 690; People v Cole, 1 [*7]Misc 3d 531; Friedman v Rehal, 618 F3d at 159).[FN4]

The Due Process Clause in the New York State Constitution provides "greater protection than its federal counterpart as construed by the Supreme Court" (People v LaValle, 3 NY3d 88, 127; see People v Harris, 77 NY2d 434, 439-440). Since a person who has not committed any crime has a liberty interest in remaining free from punishment, the conviction or incarceration of a guiltless person, which deprives that person of freedom of movement and freedom from punishment and violates elementary fairness, runs afoul of the Due Process Clause of the New York Constitution (see NY Const, art I, § 6; see People v Cole, 1 Misc 3d at 541-542). Moreover, because punishing an actually innocent person is inherently disproportionate to the acts committed by that person, such punishment also violates the provision of the New York Constitution which prohibits cruel and unusual punishments (see NY Const, art I, § 5; People v Cole, 1 Misc 3d at 541-542). Thus, we conclude that a freestanding claim of actual innocence may be addressed pursuant to CPL 440.10(1)(h), which provides for vacating a judgment which was obtained in violation of an accused's constitutional rights (see People v Caraway, 36 Misc 3d 1224[A], 2012 NY Slip Op 51466; People v Wheeler-Whichard, 25 Misc 3d at 702). "

[WithoutAPaddle]

Do we have any lawyers in the audience?  This slip opinion might be the opinion of a trial judge.  Are judges elected in New York?

[Silent_Bob]

Do we have any lawyers in the audience?  This slip opinion might be the opinion of a trial judge.  Are judges elected in New York?

I'm not a lawyer and I don't play one on tv.

The decision came from the appellate division, so it is binding on the trial courts.

Judges are elected, sort of:

"Most of New York's trial court judges are chosen in partisan elections, with judicial candidates competing in primary elections to determine who will represent the party in the general election. According to statute, however, candidates for the supreme court (the major trial court) are chosen through a party convention system, in which primary voters elect convention delegates who choose candidates for the judgeships. Unsuccessful candidates for supreme court judgeships and a watchdog group recently challenged the constitutionality of this process, asserting that it discouraged party outsiders from seeking these seats, but in early 2008, the U.S. Supreme Court upheld the system in a unanimous decision (New York Board of Elections v. Lopez Torres). According to Justice Antonin Scalia, who authored the Court's opinion, "None of our cases establishes an individual's constitutional right to have a 'fair shot' at winning the party's nomination." "

http://www.judicialselection.us/judicial_selection/index.cfm?state=NY

[WithoutAPaddle]

CPL 440.10(1)(h), which provides for vacating a judgment which was obtained in violation of an accused's constitutional rights (see People v Caraway, 36 Misc 3d 1224[A], 2012 NY Slip Op 51466; People v Wheeler-Whichard, 25 Misc 3d at 702).

I just googled 36 Misc 3d 1224 and it led me to what seems to be a trial court slip decision in a family court matter in which some 16 year old girl got pregnant and didn't know who the father was so she went on-line and got some 17 year old kid she didn't know to sign an affidavit saying he was the father of the baby and then had the baby placed with his parents, which I guess she needed to arrange to somehow enable herself to become a resident in the high school district where she wanted to go to school.  http://www.clcny.org/wp-content/uploads/2012/08/samantha-t-v-jeffrey-sk.pdf


Less than a year later, she claimed he had been unfaithful to her, having himself had sex with a minor, and wanted the affidavit vacated because, among other things, it was based on fraud.  Note the irony of her having been the perpetrator of the fraud, as well as the unremarkable transgression of him having sex with a minor, which he would of course also had had to have done previously for the child in this custody matter to really have been his. 

(Before I embarass myself with an Emily Litella disclaimer, I will interject here that based on what I have read, I am not absolutely certain I have even found the right case.)

The court rejected the claims of fraud and duress made by the petitioner and said therefore it did not have to address prospective custody issues but then added:

Were the court to reach the issue, it is the
child's best interests that are paramount ( Savel v.
Shields, 58 AD3d 1083, 872 N.Y.S.2d 597 [3d Dept
2009]; Starla D v. Jeremy E, 95 AD3d 1605, 945
N.Y.S.2d 779 [3d Dept 2012]; Shondel J v. Mark D,
7 NY3d 320, 820 N.Y.S.2d 199 [2006] ). On this
record, I find that bastardizing this child would
clearly not be in his best interests.


I don't have the wearwithall to further digest the facts of that case to try to figure out how it led to a criminal conviction of someone, which a New York appellate court eventually got involved in (if it even did), but it sure looks like the family court system was bending over backwards to make a nightmare of a case go away.

The is an old saying - so old I might not even be remembering it right - that hard cases make bad law.  It could be that the family court did something that it believed was fair and just for the parties, and in particular, for the infant, which led to the creation of some other injustice that made its way to the appellate court, which in turn reached for the sky in "finding", in 2014, some authority under the New York State constitution that no other court had ever noticed over the previous two hundred years of New York State appellate jurisprudence.

The decision to vacate the 24 year old conviction of Jonathan Fleming was rendered by a trial judge, not by an appellate judge or justice.  Would it withstand appellate scrutiny?  Who has the power to appeal it?  Surely the prosecutor's office does, but it appears to have actually supported it.  From the Fox News article I linked:

The exoneration, first reported by the New York Daily News, comes amid scrutiny of Brooklyn prosecutors' process for reviewing questionable convictions — scrutiny that comes partly from the new DA Kenneth Thompson himself. He unseated longtime DA Charles "Joe" Hynes last year after a campaign that focused partly on wrongful convictions on Hynes' watch. Hynes had created a special conviction integrity unit to review false-conviction claims, but some saw the effort as slow-moving and defensive.

So neither proper party will be appealing this decision.  It may be fair and just, but it wreaks of politics.  A prosecutor got elected by campaigning to free the unjustly convicted and appears to be collaborating with the judiciary to do so.  Can any District Court judge now vacate any conviction that he feels was based on a wrong verdict?  There were already legal means in place to deal with suppressed evidence and newly discovered evidence.  Can the prosecutor now judge shop?  Can he arrange, by virtue of his filing discretion, to assure that the elected District Court judge who hears these cases is one who is amenable to them? 

Perhaps somewhere down the line, some aggrieved party will have standing to appeal such a vacated decision.  I think a trial judge is taking a lot upon himself to substitute his judgement for that of the original trial court.  I don't believe that any reasonable construction of the New York State constitution would so-empower a trial court judge.   I suspect that Pandora's box is eventually going to be opened.

[MaineShark]

CPL 440.10(1)(h), which provides for vacating a judgment which was obtained in violation of an accused's constitutional rights (see People v Caraway, 36 Misc 3d 1224[A], 2012 NY Slip Op 51466; People v Wheeler-Whichard, 25 Misc 3d at 702).

I just googled 36 Misc 3d 1224 and it led me to what seems to be a trial court slip decision in a family court matter in which some 16 year old girl got pregnant and didn't know who the father was so she went on-line and got some 17 year old kid she didn't know to sign an affidavit saying he was the father of the baby and then had the baby placed with his parents, which I guess she needed to arrange to somehow enable herself to become a resident in the high school district where she wanted to go to school.  http://www.clcny.org/wp-content/uploads/2012/08/samantha-t-v-jeffrey-sk.pd

Name doesn't match, so that's clearly not the case.

Searching for the name (People v Caraway) and adding the slip number (51466) finds the correct case:

http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51466-u.html

Regardless, it makes more sense to search for People v Hamilton, and read it first, rather than just searching for the citations within that case.

You can read the case here: http://law.justia.com/cases/new-york/appellate-division-second-department/2014/2011-07335.html

According to that, a judge may hear a specific sort of motion in NY to vacate a judgment based upon violations of the defendant's Constitutional rights, and the court held that being wrongfully convicted violates someone's Constitutional rights, if the individual is "factually innocent" (which, it appears, means that there is not simply a procedural error, but rather that the evidence of innocence is so strong that no reasonable jury could possibly have convicted the defendant if that evidence were present at trial).  From the sound of it, they basically mean the sort of evidence that would have gotten the case thrown out by the judge before even going to trial (like the evidence proving that the defendant was over a thousand miles away at the time of the murder, in this particular case).

I would further surmise that the statement in the articles that the DA "dropped all charges" is either a direct error by the reporter in recounting that the DA did not oppose the motion (reporters sometimes try and sound smarter than they really are), or an indirect error in which the DA was asked if there would be a new trial, and the DA responded that the charges would be dropped.

[WithoutAPaddle]

Name doesn't match, so that's clearly not the case.

I repaired the link to the Westlaw case that is denoted "36 Misc 3d 1224" that I analyzed in my post.  I am not familiar enough with the Westlaw case indexing system to be able to explain why that same index number is affixed to this other case.

Searching for the name (People v Caraway) and adding the slip number (51466) finds the correct case:

http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51466-u.html

Regardless, it makes more sense to search for People v Hamilton, and read it first, rather than just searching for the citations within that case.

36 Misc 3d 1224 wasn't a citation within the case that I had found.  It actually headlined a Westlaw page reporting it.

You can read the case here: http://law.justia.com/cases/new-york/appellate-division-second-department/2014/2011-07335.html

According to that, a judge may hear a specific sort of motion in NY to vacate a judgment based upon violations of the defendant's Constitutional rights, and the court held that being wrongfully convicted violates someone's Constitutional rights, if the individual is "factually innocent" (which, it appears, means that there is not simply a procedural error, but rather that the evidence of innocence is so strong that no reasonable jury could possibly have convicted the defendant if that evidence were present at trial).  From the sound of it, they basically mean the sort of evidence that would have gotten the case thrown out by the judge before even going to trial (like the evidence proving that the defendant was over a thousand miles away at the time of the murder, in this particular case).

I suspect that the legislators did not have actual innocence in mind when they wrote that law.  I suspect that it was passed to facilitate the vacating of cases when someone's civil rights that were not at issue in the trial (sex, race) were violated.   In the case of People v Carroway, which affirmed the principle of the lower court vacating a conviction based on innocence while denying its instant case, it said that those issues in Carroway had already been presented to an appellate court and rejected.  I see no reason why Jonathan Fleming did not simply appeal the conviction on that basis, though in fairness to the New York prosecutor, Fleming only had a few months left on his sentence, so initiating an appeal through conventional channels would not have gotten him his freedom any faster.

In People v Hamilton, Jan 15, 2014, there is this footnote:

Footnote 4:. There is legislation pending in the New York Legislature which would add a new CPL 440.10(1)(j), authorizing the court to grant a motion to set aside a judgment of conviction on the ground that "the defendant is actually innocent of the crime or crimes of which he or she was convicted." The finding of actual innocence must be based upon "clear and convincing evidence that no trier of fact would have convicted the defendant under a reasonable doubt standard and in light of all available evidence." If that standard is met, instead of granting the defendant a new trial, the court "shall dismiss the accusatory instrument" (S49-2013; A3492-2013).

It could be that this dismissal comes under the new statute whose passage was still pending four months earlier, if it indeed was enacted.

I would further surmise that the statement in the articles that the DA "dropped all charges" is either a direct error by the reporter in recounting that the DA did not oppose the motion (reporters sometimes try and sound smarter than they really are), or an indirect error in which the DA was asked if there would be a new trial, and the DA responded that the charges would be dropped.

Regrettably, that happens all too often, and will only become more common now that the established, mass media has stopped assigning reporters to courthouses except in high profile cases.

[MaineShark]

I suspect that the legislators did not have actual innocence in mind when they wrote that law.  I suspect that it was passed to facilitate the vacating of cases when someone's civil rights that were not at issue in the trial (sex, race) were violated.

The reasoning quoted in the third reply of this thread would seem to indicate why they believe this is applicable.  Holding someone in prison who is not actually guilty of the crime is certainly a violation of his rights.

In the case of People v Carroway, which affirmed the principle of the lower court vacating a conviction based on innocence while denying its instant case, it said that those issues in Carroway had already been presented to an appellate court and rejected.  I see no reason why Jonathan Fleming did not simply appeal the conviction on that basis, though in fairness to the New York prosecutor, Fleming only had a few months left on his sentence, so initiating an appeal through conventional channels would not have gotten him his freedom any faster.

Generally speaking, innocence is not grounds for an appeal.  An appeal is based upon a legal defect in the case.  There have been a number of cases in which a convicted individual was able to prove that he was innocent, but in which the courts have ruled that his conviction must stand because there was no defect in the trial procedure.  Some states have additional protections, either by statute or case law.  It appears that NY would be one of those.