David McCallum has a plethora of loyal advocates certain of his innocence, a pro bono legal team that has been working on his behalf for a decade, a supportive family that never has stopped believing in him and a district attorney who is willing to listen and even agreed to post-conviction DNA testing.
What McCallum lacks is perhaps the one and only thing that could clear his name after 28 years: evidence that someone else committed a murder.
Recent DNA testing approved by Brooklyn District Attorney Charles Hynes links two other individuals to the crime scene, but cannot show that McCallum was not there. So Inmate No. 86-B-2336 remains in prison on the strength of a confession he made when he was 16 and immediately recanted, claiming a detective had beaten him into implicating himself and another teen.
"Procedurally, we are stuck," said Oscar Michelen, of counsel to Cuomo LLC who has been working pro bono on McCallum’s case for nine years and says he is "100 percent sure" McCallum had nothing to do with the 1985 murder of 20-year-old Nathan Blenner. "We need new evidence. We need to find something that either establishes who did it or definitively establishes that David did not do it."
Michelen became McCallum’s advocate after his pro bono efforts exonerated defendants in two other cases, and he caught the attention of Ruben "Hurricane" Carter.
Carter, a former professional boxer, emerged as an international advocate for the wrongly convicted after his own conviction for a triple homicide was overturned in the mid-1980s. He was the inspiration for Bob Dylan’s song "Hurricane" and the 1999 film "The Hurricane," starring Denzel Washington.
"You don’t say no to Ruben Carter, and that was nine years ago," said Michelen, who is still trying to establish McCallum’s innocence.
In the meantime, McCallum’s hopes lie with a parole board that, despite his pristine institutional record, has denied him release three times at least in part because he refuses to accept responsibility for a crime he insists he did not commit. He is slated to make another appearance before the parole board this spring.
"If you look at the prison records and the arc of his life, he is a person who should be released, regardless of the outcome of the innocence litigation," said Laura Cohen, clinical legal professor at Rutgers Law School who, along with her students, is handling the parole aspect of McCallum’s case. "He has done everything the system has asked of him. He has been a leader in various rehabilitation groups. He has maintained a spotless disciplinary record, a stunningly good record."
Yet, following McCallum’s last parole interview in June, the panel said he was self-centered and that his release would jeopardize public safety, notwithstanding the fact that the board’s own risk assessment placed him at lowest risk of re-offending, getting arrested or absconding.
Cohen said McCallum’s insistence that he did not commit the murder should not be held against him.
"I understand that it is not the job of the board to relitigate the case," Cohen said. "But certainly the strong evidence of innocence should be taken into account as they evaluate his overall record."
The facts of the case are fairly simple and generally uncontested.
On the afternoon of Oct. 20, 1985, Blenner was sitting in his 1979 black Buick Regal outside his home on 111th Street in Ozone Park, Queens, when he was approached by two individuals who forced their way into the vehicle and drove off with him. Two youths, ages 10 and 11, witnessed the kidnapping. Neither could identify the perpetrators.
The following day, Blenner’s body was found in a wooded area of Aberdeen Park in Brooklyn. He had been executed with a bullet to the head. His car was later found in a Brooklyn parking lot. At the outset, officials suspected the crime was part of a larger car-jacking spree in the area.
Ninety minutes before Blenner was abducted, a woman who lived around the corner was accosted by two men who made a comment about her Buick Regal, which was later stolen, records show. Authorities initially suspected the same individuals who confronted the woman, and stole her car a couple of days later, were responsible for the Blenner carjacking and murder.
A Queens teen, Willie Stuckey, quickly became the focus of Detective Joseph Butta’s investigation when an informant told the officer that the 16-year-old spoke of the need to dispose of a gun apparently used in a homicide, according to court papers.
Butta brought Stuckey in for questioning and in short order the teen said he had been involved in the car heist, but that McCallum, also 16, had killed Blenner. The detective then brought in McCallum, who told a similar story, except claiming that Stuckey had been the shooter.
On the strength of their confessions—videotaped and in the presence of an assistant district attorney— Stuckey and McCallum were convicted of second-degree murder. Both defendants promptly said the confessions were false and resulted from beatings inflicted by Butta.
Stuckey died in prison in 2001. Butta is long deceased. And McCallum remains at the Otisville Correctional Facility, where he continues to assert his innocence although his appeals are long exhausted.
At McCallum’s last meeting with the parole board, in June, he told the panel the same thing he told prior panels.
"I was physically beaten by the officers, and I was coerced into making a confession," McCallum said, according to a transcript of the proceeding. "The detectives fed the story…to me…so I basically repeated what Mr. Butta had said."
Parole Commissioner James Ferguson clearly did not believe him.
"I really just don’t see the components you are talking about, about duress, or stress or physical coercion," Ferguson said.
Ferguson observed that McCallum’s claims of coercion were considered and rejected by the court. He also noted that prosecutors are trained to look for signs of abuse, and there is no indication that the assistant district attorney in this case detected anything amiss.
Carter and the organization he started, Innocence International in Toronto, became involved when McCallum reached out to them for help right after the organization was founded in 2004.
Carter and Ken Klonsky, an advocate who works with him, delved into the case, became convinced that McCallum was telling the truth and committed themselves and the organization to his cause. Klonsky said that Innocence International has hired investigators, worked with the legal team and has spent nearly a decade attempting to correct what he views as a grave injustice.
"Reading through the transcripts and police reports, I was disillusioned by the impotence of truth and the priority of procedure in the justice system," Klonsky said. "While not a single piece of evidence ever tied him to the murder, an unsubstantiated false confession, along with an inept defense attorney, was enough to send him to prison for 28 years, and counting."
Facts unearthed in recent years seemingly raise questions about McCallum’s culpability, even if nothing has yet emerged to prove he was not involved in the crime.
Michelen said he tracked down Blenner’s neighbor, the woman whose Buick was stolen around the same time as the murder.
The neighbor revealed that police had shown her pictures of his two suspects in the murder—apparently Stuckey and McCallum—but she had told a detective that they were not the individuals who had accosted her, Michelen said. That evidence, which could have shifted focus away from McCallum and Stuckey and toward the men who confronted the woman, never got before the jury.
"It was the worst representation I have ever seen, period, end of story," Michelen said, referring to the work of defense attorney Peter Mirto, who was subsequently disbarred for stealing another client’s funds and has since died. "Never went to the crime scene. Never went to speak to [the woman whose Buick was stolen]. Never read the detective’s reports. Did no work whatsoever and instead came up with a stupid alibi that was a disaster. And David has been in prison since he was 16."
‘DNA Doesn’t Really Help’
Additionally, McCallum’s advocates persuaded Hynes’ office to submit evidence found inside Blenner’s car for DNA testing, including a cigarette butt.
Neither McCallum nor Stuckey’s DNA was found in the car, but the DNA of two other individuals was detected. One of them had a felony record and was easily identified through the state’s DNA databank; the other is not on file and it is unknown whose it is.
The district attorney’s office interviewed the felon whose DNA was found on the cigarette butt. That potential suspect, who was 13 at the time Blenner was killed and had no record of violence, told authorities he could have been in the vehicle after it was abandoned in Brooklyn and may well have smoked a cigarette, but that he knew nothing of the theft or the murder. There is nothing to contradict his story.
Brooklyn Deputy District Attorney John O’Mara, head of the conviction integrity unit Hynes created in 2011 to investigate possible cases of wrongful conviction, said the McCallum case was one of the first he looked at since it relied so heavily on a confession. False confessions, especially from young suspects, explain many wrongful convictions, research shows.
O’Mara said his office has chased every lead suggested by McCallum’s advocates and interviewed several potential suspects and witnesses, but has not come up with evidence establishing that the defendant is innocent.
"We have pretty much exhausted any immediate avenues of investigation, but if they come up with anything more they want us to look into, we will certainly do that," O’Mara said. "There are all kinds of theories out there, but none of them have borne anything out. It is possible that something could come up, and if it does we will deal with it. This is a colorable claim, but that is as far as it goes at this point."
That leaves Michelen with the daunting and perhaps impossible task of proving a negative.
"Unlike a case where DNA proves a defendant’s innocence, here the DNA doesn’t really help," Michelen said. "We have a lot of strong evidence that neither David nor his codefendant committed the crime, and I am hard-pressed to believe that two 16-year-olds could commit the perfect murder. But we have to focus on trying to find evidence of who did commit the crime because I suspect that is the only way the Kings County district attorney will support our application for release."
McCallum’s sister, Mattie McCallum, said she has nothing but sympathy for the family of Nathan Blenner and could not fault them for opposing her brother’s parole release. Parole records note "significant community opposition" to McCallum’s release.
"I feel for the family," she said in an interview. "If that was my brother or my child, I would want the person who did it to pay. I can’t imagine what it would be like to lose a brother or a child that way. But you need to make sure you have the right person."
Mattie McCallum said the last 28 years have taken a terrible toll on her 75-year-old mother, and said the repeated parole denials are exceptionally difficult for her brother, who is now 44.
"When he goes to the parole board, and they turn him down, it takes a lot out of him," McCallum said. "I am afraid he will lose hope and do something to himself. I keep telling him, ‘Your day is coming, your day is coming, your day is coming.’ I just don’t want him to give up hope."
David McCallum is slated to appear at his fourth parole board interview next month.
@|John Caher can be contacted at firstname.lastname@example.org.