The defense team that helped exonerate Latisha Johnson and Malisha Blyden included, from the Office of the Appellate Defender, left to right, Senior Staff Attorney Kerry Jamieson, Reinvestigation Project Director Anastasia Heeger and Attorney-in-Charge Richard M. Greenberg. Inset: Claudia Trupp, of the Center for Appellate Litigation. (NYLJ/Rick Kopstein)
ALBANY – The elements common to many wrongful convictions—young defendants, false confession, mistaken eyewitness identification—converged in a Bronx case and forced two women to spend seven years behind bars for crimes they did not commit.
Yet, Latisha Johnson and Malisha Blyden, who were sentenced to 40 years in prison for attempted murder, had the benefit of doggedly persistent attorneys and the luck to have the Bronx district attorney’s office willing to consider that maybe, just maybe, the prosecution got it wrong back in 2007.
Richard Greenberg, attorney-in-charge of the Office of the Appellate Defender, which filed the successful motion to vacate on behalf of both women, suspects that most of the unjustly imprisoned are not so lucky.
“How many others are still there, waiting?” he asked. “I lose sleep over it.”
The case of Johnson and Blyden, who walked out of Bedford Hills Correctional Facility on Jan. 17, highlights how the criminal justice system can commit an injustice.
The women’s nightmare began with a misdialed telephone number.
In September 2005, a man met two women and brought them back to his apartment. The women spent the night and found in their host’s cupboard what they thought was a fortune’s worth of cocaine but was actually Kassava flour. They left the following morning, but returned later with five men to pull of a robbery.
According to a press release issued by Bronx District Attorney Robert Johnson at the time of sentencing, the victim was beaten, kicked, shot, bound, robbed, stuffed in a closet and left for dead. He suffered injuries requiring 15 surgeries and lingered in a coma for three weeks.
When the victim awoke, and while heavily drugged with morphine, he told police that one of the women had used his cell phone. Police promptly checked the log of outgoing calls and discovered that one of the telephone numbers, which was unfamiliar to the victim, connected to a man named Tyrone Johnson.
Johnson had an 18-year-old daughter, Latisha, who bore something of a resemblance to one of the women involved in the scheme. Police brought a photo array to the hospital, and the victim identified Latisha.
Authorities caught up with Latisha Johnson a few weeks later when a transit cop cited her for playing music too loudly on a subway. She was accompanied at the time by Blyden, who looked something like the second woman. The victim identified Blyden.
In the course of a roughly 24-hour interrogation, police elicited a 30-minute videotaped confession from Johnson in which she provided details that generally fit the facts as then known to detectives. Johnson implicated herself and Blyden.
At trial, Assistant District Attorney Lawrence Piergrossi did not use Johnson’s confession, apparently because, as facts later suggested, portions of it were inaccurate and seemingly contradicted other evidence in the case. Instead, the prosecution relied primarily on the victim’s identification and the telephone call that allegedly tethered Johnson to the crime.
Late in the trial, when discrepancies arose over the timing of phone calls on the victim’s telephone, the prosecution for the first time handed over an unredacted log of the calls.
Those records showed that the telephone number for Johnson’s father was one digit different from a number the victim had called repeatedly, suggesting that the call that led police to focus on Latisha in the first place was a misdial. But it was apparently too late for the defense to make much use of the new information, and besides, the victim identified the defendants as the perpetrators.
With little else for the defense to use, Johnson and Blyden were convicted at trial of attempted second-degree murder, first-degree robbery, first-degree assault, first-degree burglary and second-degree criminal possession of a weapon.
Then-Supreme Court Justice Megan Talmer sentenced them both to 40 years in prison. Johnson had rejected a six-to-eight year plea offer and Blyden had refused a two-year deal.
First Clue: Misdialed Phone
When the Office of the Appellate Defender (OAD) was assigned to represent Johnson on appeal, senior staff attorney Kerry Jamieson quickly latched on to the apparently misdialed phone number that set off the series of events leading to her client’s conviction.
Jamieson believed Johnson was innocent and enlisted the help of Anastasia Heeger, who runs the OAD reinvestigation unit, to prove it. Blyden’s attorney, Claudia Trupp of the Center for Appellate Litigation, was equally convinced of her client’s innocence and joined in the investigation.
For nearly three years, OAD worked the case, pounding the pavement, tracking down witnesses and interviewing anyone who would talk.
There were hits and misses along the way, but ultimately the investigation uncovered iron-clad alibi witnesses and revealed that the victim gave a much different story in a civil action against his landlord than he had at the criminal trial.
The probe yielded evidence that the victim’s former girlfriend, who had seen the women the victim brought to his apartment, had never identified the defendants. OAD also interviewed all of the male defendants in the case, every one of whom said that Johnson and Blyden were not the women who initiated the crime, records show.
Painstakingly, the attorneys put together a comprehensive and persuasive presentation and brought it to Johnson, the district attorney, along with information on the real culprits.
After conducting its own year-long independent investigation, spearheaded by Piergrossi, the prosecutor who convicted the women, the district attorney agreed to release Johnson and Blyden and will move to dismiss the indictment on March 11.
Steven Reed, spokesman for the district attorney, said all bureau chiefs are on the lookout for cases where the defendant has a colorable claim of innocence.
“From day one, when ADAs are sworn in, the office places a heavy emphasis on the fact that although the prosecution of the accused is something that our community demands, the community also demands that we take great care in ensuring that the right person is prosecuted,” Reed said, adding that the responsibility to get it right “is not diminished” simply because a conviction is secured.
There have been no new arrests in the case, but officials said the investigation is continuing.
Jamieson said the wrongful convictions resulted from a perfect storm of coincidences and circumstances, all wrapped in a theory that police embraced from the start and would not let go.
“It was really a confluence of a number of factors,” Jamieson said. “One of the key problems in this case was the police had tunnel vision. They fixated on a phone number and they made everything fit into that puzzle. That was the main problem in this case. The police failed to follow obvious leads.”
Heeger said the investigation was “very labor intensive” and consumed untold hours of work. But she said the effort yielded a compelling case that, to its credit, the district attorney’s office was willing to consider.
“They took it seriously and investigated,” Heeger said.
The reinvestigation unit Heeger runs was established about four years ago, partially with a Department of Justice grant, and is regularly brought in when attorneys think they may have a wrongful conviction on their hands.
“When things come in on intake we try to get a sense of what the case was about, and there are things that will trigger our interest—a case that relies entirely on eyewitness testimony or informant testimony or when a statement is the only evidence,” said Heeger, a former Associated Press and ABC News reporter who is now a lawyer. “Those are red flags for us. When we think there is a problem, we keep looking.”
But Greenberg said exonerating clients depends not only on diligence, but fate.
“We had two senior attorneys and an investigator working on the case for more than two years,” Greenberg said. “There were leads, dead ends and new leads. It is a very laborious process. There are a lot of investigations that don’t get as far and don’t result in this type of success. That doesn’t mean we aren’t convinced the client is innocent, but in these non-DNA cases it is just very difficult.”
Trupp said the case was unusual in that the defense was not only able to present evidence that the convicts were innocent, but also had proof implicating others.
“Without that fortuity, without being able to prove the actual culprit existed, it would have been very difficult to prove actual innocence,” Trupp said. “I am just so relieved for my client. It has been very difficult, knowing that she was innocent and waiting for her to be exonerated. We are so grateful that she is out of prison, and thankful that she will get her life back. But it is an example of how fallible the criminal justice system is, and it is really, really scary.”