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A fresh lesson in the significance of “community lawyering,” as causes celebres have come to be known among idealistic young attorneys, came last Friday when an Albany appellate court overturned the murder conviction of an inmate at the Clinton Correctional Facility who was found guilty in 1987 of fatally stabbing a fellow prisoner. Lawyers for David K. Wong, whose troubles are far from over despite his court victory, are quick to credit civil rights activists from New York City and upstate church groups with helping to champion a defense. “We would not have won this case without them,” said Jaykumar A. Menon of the Center for Constitutional Rights in Manhattan, co-counsel in People v. Wong, 13878/15027, decided last week by the Appellate Division, 3rd Department. “They were more than integral, they were the sine qua non.” The groups, added Menon, 36, a graduate of Columbia Law School, raised funds for a private investigator, which led to new evidence that reversed the conviction. Reversal turned on admission by a prosecution eyewitness that he lied in accusing Wong of the prison yard murder, and six other inmate witnesses who fingered the true killer, alleged to be the late Nelson Gutierrez. Attorney and filmmaker Rex Chen has produced a 35-minute video documentary of the Wong saga, from the time that his subject, an undocumented worker from the Fujian province of China, was convicted in 1986 of participating in an armed robbery of a Long Island restaurant. For that, Wong was given an 8-to-25 year sentence at Clinton Correctional Facility in Dannemora. Shortly after his arrival, Wong was arrested during a inmate scuffle and accused of dispatching Tyrone Julius with a shank that pierced clear through the victim’s neck to his brain. At trial, the district attorney presented no blood evidence that would implicate Wong, nor any other manner of DNA evidence. Chen and Menon said Wong, who at the time of his murder trial spoke only Fujianese, was provided with a translator found in a Chinese restaurant in Plattsburgh who spoke Mandarin. But the two dialects, said Chen, “are as different as French and Italian.” To date, Chen’s documentary has been shown to students at New York University School of Law, Fordham University School of Law and St. John’s University School of Law. Chen also has screened his work at film festivals in New York, Dallas and Honolulu. He is currently editing the film to reflect what happened last week in Albany. Soon the documentary will be shown at Brooklyn Law School, where Professor William E. Hellerstein, director of the Second Look Program, assisted in Wong’s defense. “In the old days, law students talked in class about litigating civil rights cases,” said Chen, a 1995 graduate of NYU Law who handles immigration matters for Catholic Charities of Newark, N.J. “These days, you’ve got to let politicians and judges know they’re being watched. And you have to involve the public.” APPEAL SUCCESSFUL Wong’s successful appeal tossed a decision by Clinton County Acting Judge Timothy J. Lawliss. In September 2003, Judge Lawliss rejected Wong’s motion for retrial based on the recantation of prosecution witness Peter DellFava and admissions by the late Gutierrez to fellow inmates at Dannemora that he killed Julius. “[W]e note that County Court’s credibility determinations are generally accorded great deference,” Justice Carl J. Mugglin wrote in the Appellate Court’s unanimous decision. “Nevertheless, while County Court found DellFava’s recantation to be incredible, we do not … [He] now claims that his entire story was a fabrication … [T]he record reveals that, at trial, DellFava was motivated to lie by a promise to be transferred to a prison facility closer to his family and for a letter recommending parole on his first application, both of which subsequently occurred despite his former escape.” As for Gutierrez’s incriminating admissions to six inmates, Justice Mugglin wrote, “[T]hese witnesses uniformly stated that they would not have testified against Gutierrez while he was alive because a reputation as a ‘snitch’ would place them in a position of peril in any prison population. Moreover, the motive attributed to Gutierrez — that he killed the victim in retaliation for the victim having beaten him while they were imprisoned at Rikers Island in a dispute over the use of a telephone — was corroborated to some degree by the victim’s widow.” Presiding Justice Anthony Cardona and Justices Thomas Mercure, Karen Peters and Robert Rose were also on the panel. CONFLICT ALLEGED Until 1998, Judge Lawliss was a law partner of Clinton County District Attorney Richard E. Cantwell, who argued the state’s case against retrial before Judge Lawliss and again in the Albany appeal. From 1999 to 2001, Cantwell was a court attorney for Judge Lawliss. Also, Judge Lawliss acknowledged in court that he might have relatives working in the state prison system, an economic mainstay in Clinton County. Wong’s defenders have insisted that Judge Lawliss should have recused himself from the case. Judge Lawliss declined to comment for this article. In a telephone interview, Cantwell defended Judge Lawliss’ decision against recusal based on conflict of interest. He said the judge initially raised the issue in open court, and that there were no objections to his hearing the motion for retrial. Cantwell cited the state court system’s two-year standard on recusals, noting that the professional relationship between himself and Judge Lawliss ended in January 2001. “Besides, there are about 50 practicing attorneys up here in Plattsburgh,” said Cantwell. “We tend to know one another.” Nevertheless, Hellerstein called Judge Lawliss’ decision “a disgrace,” adding that in his entire career — beginning as staff counsel with the U.S. Commission on Civil Rights during the administration of President John F. Kennedy — he has never employed such language in speaking of a jurist. As an academic, Hellerstein sees the matter as a profound and practical learning experience for young attorneys who will need to ally with community activists in future civil rights cases. “I have never seen such dedication from a group of people,” Hellerstein said of Menon and activists in the David Wong Support Committee. “It’s almost beyond description how so many people could hang in there for so long.” Christopher Chan, a Chinese-American criminal defense attorney in Manhattan who was a leader in the support committee, explained the group’s cohesiveness. “What happened to David Wong could have happened to any of us,” he said. “All of us have had incidents where people have misidentified us, or ignored us, or made us feel invisible.” For his Brooklyn Law students in the Second Look Program, said Hellerstein, “This wasn’t just an academic exercise, this was heavy duty.” DEPORTATION ISSUE Next up in the Wong case will be Cantwell’s decision on whether to try him again for murder, or drop the indictment. Beyond that, Menon said Wong’s time served on the original conviction for armed robbery wins him automatic parole, but that an outstanding deportation order remains to be settled. “We’ll ask for a deferred action,” said Menon, “which is a procedure by which Homeland Security, for humanitarian reasons, leaves the deportation order intact but doesn’t act on it. “I think his case is strong,” Menon added. “He’s spent more than a decade in prison; he’s been wrongfully convicted.” Meanwhile, Wong resides at the Wallkill Correctional Facility in Ulster County. He will soon be returned to Clinton County, where District Attorney Cantwell has not yet decided on Wong’s immediate future. “I’m reviewing testimony of all the prosecution witnesses,” said Cantwell, who did not try the original murder case. As for what transpired last week in Albany, Cantwell stands by Judge Lawliss’ decision to reject Wong’s motion for retrial. Of inmate witnesses at the appellate court hearing, Cantwell said, “There were folks who were doing significant sentences. Some were murderers. If they were pillars of society, I might have thought differently. But if I was a juror, I wouldn’t have believed what they said.”

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