Kings County District Attorney Kenneth P. Thompson, left, recruited Ronald Sullivan from Harvard Law to guide a new Conviction Review Unit that has been sifting through reports of wrongful convictions at a fast clip. (Michael Appleton/New York Times)
On June 3, Roger Logan, who had spent 17 years in prison for a murder he insisted he did not commit, was awakened in his cell at the Clinton Correction Facility with news he said he had been praying for.
He was about to be freed.
“It’s just a blessing to be home,” a jubilant Logan told reporters later that day outside a Brooklyn courthouse, after the charges against him had been dropped.
Such scenes, the product of a groundbreaking post-conviction review effort by the Brooklyn District Attorney’s Office, are becoming increasingly common.
Defense lawyers have generally welcomed the review process by District Attorney Kenneth Thompson’s office, though some say they would like more information about how reviews are being conducted.
During last year’s election, Thompson accused then-District Attorney Charles Hynes of fostering a win-at-all-cost attitude that spawned questionable convictions.
Six months after Thompson took office, his Conviction Review Unit is working its way through the cases of about 90 defendants who claim that their convictions were unjust.
Thompson inherited about 80 of those case from Hynes, including 57 linked to former Detective Louis Scarcella, whose investigative tactics came under scrutiny last year, after an indictment was dismissed against a man who had spent 23 years in prison for murder.
Thompson has sought and obtained the dismissal in the interest of justice of seven murder convictions in which the released inmates had collectively spent at least 140 years in prison. In an eighth case, Thompson dropped an appeal to a habeas corpus grant by a federal judge who described the prosecution as “rotten from day one.”
See Related Article: Vacated Brooklyn Convictions
University of Michigan Law School Professor Samuel Gross, who tracks exonerations nationwide, said Brooklyn’s review unit was in a different class from other units. He described the caseload as “staggering,” saying Thompson was overturning convictions “at a fast clip” with an “unprecedented” review process by outside experts.
“This could become a model for other big-city D.A.’s offices,” he said.
In an interview Monday, Thompson would not speculate about the pace of future exonerations nor estimate how long it would take to dispose of the current inventory of cases under review.
“I take each case as presented,” he said, later adding, “Each case is going to get a fair review and each case is different. It’s more important to get them right than to rush.”
Thompson said the review process, which he has budgeted at $1.1 million a year, is a “top priority because the people of Brooklyn must have confidence in the integrity of the criminal justice system. To give them that confidence, we must thoroughly and fairly investigate wrongful conviction claims, so that justice is done.”
Thompson has assigned 10 prosecutors full-time to review convictions, up from the three at the height of a Conviction Integrity Unit started under Hynes. The expanded unit also has three investigators plus support staff.
The district attorney also has brought in Ronald Sullivan Jr., a former Washington, D.C. public defender, who directs Harvard Law School’s criminal law clinic, to guide the effort.
Sullivan is “fearless, well prepared, very much someone who knew folks on both sides of the aisle, willing to make sure what he did was fair and objective,” said Charles Ogletree, Jr. a professor at Harvard Law School who taught Sullivan.
After Hurricane Katrina, Sullivan took a leave of absence from Yale Law School, where he was teaching, and worked as executive counsel to public defenders as they set out to revamp New Orleans’ public defense system.
Derwyn Bunton, chief district defender for Orleans Public Defenders, remembered Sullivan being “charismatic, responsive, very tactful” and having a “high social IQ.” Sullivan knew he “was going to draw a lot of heat” by challenging the courts in New Orleans, Bunton said, but never blinked from his duties.
“[He] cut a path for reform for us,” Bunton said. “I would expect he would do this job [in Brooklyn] similarly.”
In an interview Monday, Sullivan said it was an “absolute honor” to participate in Brooklyn’s review process. “I haven’t found anything more rewarding,” he said, adding that it has been “the most important work I’ve done.”
While Sullivan oversees the unit, Assistant District Attorney Mark Hale, a former homicide prosecutor, manages its day-to-day operations.
Under New York’s Rules of Professional Conduct, prosecutors are required to come forward with new evidence that casts doubt on a conviction. Rule 3.8(d) states that when the prosecution “knows of clear and convincing evidence establishing that a defendant was convicted … of an offense that the defendant did not commit, the prosecutor shall seek a remedy consistent with justice, applicable law, and the circumstances of the case.”
But conviction review units like the one in Brooklyn are relatively new. The Dallas District Attorney’s Office established the first Convictions Integrity Unit in 2007. Manhattan followed suit in 2010 and Hynes’ office in 2011.
Daniel Medwed, a professor at the Northeastern University School of Law, said he knows of about a dozen programs in state prosecutor offices nationwide. He said some have adopted “reactive models” where defendants and their lawyers file review requests and offices look into them.
“The best units are both reactive and proactive, initiating motions on their own. That’s what I’m looking forward to seeing in Brooklyn,” he said.
Thompson said the office has taken up cases submitted by attorneys and inmates but launched some reviews itself.
An Ex-Detective Under Fire
Former Brooklyn Assistant District Attorney John O’Mara, who led Hynes’ review unit, said in a statement that the longtime D.A. deserved credit as one of the first prosecutors in the U.S. to establish a conviction integrity unit, one that evolved and expanded during Hynes’ last two years in office.
The unit under Hynes achieved the dismissal of two assault cases and one murder conviction. David Ranta, who was charged with slaying a rabbi, was freed after 23 years in prison. Earlier this year, the city agreed to pay Ranta $6.4 million.
Scarcella was one of the detectives assigned to the Ranta investigation. His tactics in that and other cases have been widely criticized. Hynes’ office joined a motion to vacate Ranta’s conviction, acknowledging that the evidence against him had “significantly eroded.”
Scarcella worked on four of the seven cases dismissed after review by Thompson’s unit. The district attorney’s office has decided that 11 of the convictions in which Scarcella was involved should stand.
Scarcella stands by his work, said one of his attorneys, Alan Abramson of Abramson & Morak.
Abramson said detectives such as Scarcella coped with an environment during the 1980s and 1990s where “you had hundreds of murders a year in Brooklyn, especially during the crack epidemic.”
Because violence often occurred in “dark alleys” and “crack dens,” most witnesses were not ideal, he said, but insisted that no information was hidden from the prosecutors, judges and juries.
Abramson said Thompson’s review of Scarcella’s old cases has been a “good faith effort” but pointed out that prosecutors have made no determinations of innocence. “They made determinations the trial itself had flaws. It’s honorable when D.A.s take that sort of review.”
Abramson declined to say whether Scarcella has been questioned, noting only that “we have had contact with the D.A.’s office.”
Thompson declined to comment about Scarcella.
Each prosecutor in Thompson’s review unit is assigned up to three cases for reinvestigation and meet often to discuss progress and common issues, said Eric Gonzalez, counsel to Thompson.
The unit gives top priority to cases that are most “problematic,” raising issues of actual innocence and/or due process violations, Gonzalez said. In the latter case, he said the office sees if the verdict’s integrity was undermined by mistakes, errors or behaviors that were “so dramatic” as to actually determine the outcome and interfere with the jury’s fact-finding capabilities.
For example, in three vacaturs linked to Scarcella—Darryl Austin, Robert Hill and Alveana Jenette—prosecutors said in court that upon review, it was imprudent to rely on an “incredible” drug-addicted eyewitness who acted as a witness in several other murder cases (NYLJ, May 7).
“If something is seriously wrong, if there’s a serious issue, that goes to the top of the list,” Thompson said, adding that the office weighs whether the defendant is still incarcerated as it determines priorities.
When the internal unit finishes reviewing a case, it recommends to Thompson how to proceed. That recommendation, and all the underlying materials and defense submissions, goes to an outside review panel that reports only to Thompson.
The panel’s members are Bernard W. Nussbaum, a partner at Wachtell, Lipton, Rosen & Katz; Jennifer Rodgers, executive director of Columbia Law School’s Center for the Advancement of Public Integrity and defense attorney Gary Villanueva.
More than 20 cases have been sent to the panel, Gonzalez said. While the outside panel does not do investigations, it can ask prosecutors to address questions it thinks are unanswered or need further investigation.
Thompson makes the final decision. He said he meets often with Sullivan and Gonzalez to discuss investigation developments and whether the independent panel has “all the evidence it needs.”
Meanwhile, Thompson said, “Our ADAs are now being trained to have best practices to avoid wrongful convictions in the future.”
Defense Counsel Reaction
Defense attorneys are encouraged by the steps Thompson has taken but say they want to hear more about what procedures the office is using in its reviews.
Thompson, Sullivan and other office members have agreed to meet with the defense bar, but no meeting has been scheduled, said Barry Scheck, co-founder of the Innocence Project at the Benjamin N. Cardozo School of Law.
“I’m under no illusion that just because a prosecutor says it has a conviction integrity unit, that that means anything,” Scheck said. But added that “so far, what I’ve seen in Brooklyn, there’s cause for optimism.”
Scheck praised the choice of Sullivan and said it was his impression the district attorney’s office has been giving “extremely careful thought” to how it structures the review process.
Looking ahead to the upcoming meeting, Sullivan said the office would discuss the process, and emphasize that it should be collaborative. The unit works with defendants and defendants’ counsel if represented, from the beginning to the end of the process, he said.
Defense attorney Zachary Margulis-Ohnuma said it was clear Thompson was “ramping up a serious effort to review these cases. He demonstrated that effort is underway and moving forward, but there’s lots and lots of work to do ahead.”
One of Margulis-Ohnuma’s clients, Anthony Yarbough, and another man were freed earlier this year after Thompson’s office withdrew opposition to post-conviction challenges that the office had fought under Hynes.
Margulis-Ohnuma said he and other defense counsel want the office to clarify the standard on the threshold for review when a defendant asserts newly discovered evidence, actual innocence or a miscarriage of justice.
“If we can show one of these three things, they should investigate the case,” he said.
Margulis-Ohnuma is chairman of the Brooklyn Conviction Review Subcommittee of the New York City Bar Association’s Criminal Law Committee, but emphasized he was speaking only for himself.
Sullivan said Thompson was not reviewing the cases in the context of appellate litigation. “Rather, he’s making a determination as to whether justice was done in every particular case.”
Defense attorney Rita Dave of Brooklyn, who has two murder cases before the unit—one linked to Scarcella—said so far Thompson’s office has been responsive. “Under Hynes … nobody was open to anybody,” she said.
Oscar Michelen of Cuomo LLC, who leads the legal effort to vacate David McCallum’s 1986 murder and kidnapping conviction, which is not linked to Scarcella, said everything was a battle in the review process under Hynes.
Based on early interactions with Thompson’s unit, Michelen said he was confident the office would take another look at McCallum’s case and said there is a much more accepted feeling that defense lawyers will be heard fairly.
Ronald Kuby is handling six cases related to Scarcella. He credited Thompson’s office for working to ensure that attorneys on both sides share information.
Still, he said, “We cannot exclusively trust the good intentions of the state. We need a process that ensures fairness. I would like to say Thompson is moving in that direction. He hasn’t gotten there yet. I don’t know where this will end up.”
The review process puts Thompson in a delicate position, according to Margulis-Ohnuma. He said the district attorney has to vacate wrongful convictions without jeopardizing internal morale or cause staff to question his commitment to prosecuting culpable individuals.
“Any large government agency like this has inertia and doesn’t want to upset decisions made in the past, and that’s exactly what we’re asking them to do,” he said.
Margulis-Ohnuma criticized Scarcella’s tactics, but said the detective was not alone: “The police department at the time was so overwhelmed with crime, it had a culture of cutting corners.”
The review now, decades later, is a “remarkable flushing out of a very, very bad era. I don’t think it’s limited to Brooklyn, but I think Brooklyn is the worst,” he said.
For his part, Thompson said he has not made any determination on what to make of many cases originating from around the same time period.
“I’m here, determined to clean up this mess,” he said.