The Alibi versus The Crack Witness

Ace crime reporter Oren Yaniv broke the story of Jonathan Fleming’s release in the Daily News, reminding us yet again of the good fortune of not living in a state where executions are available.  After nearly a quarter century in prison for a murder he didn’t commit, Fleming is “elated.”

Brooklyn prosecutors are slated Tuesday to set free a man who spent more than two decades in prison — the latest in a spate of conviction reversals.

The murder conviction of Jonathan Fleming, 51, will be tossed following a reinvestigation of the August 1989 slaying that landed him in prison for over 24 years, the Daily News has learned.

In August, 1989, Darryl Rush was murdered in Williamsburg, Brooklyn.  Of this, there is no doubt.

The authorities may now go after the true gunman, sources said.

But why had they gone after the untrue gunman in 1989?  No explanation is offered, any more than any explanation is provided for all that went wrong to convict Fleming in the first place.

The key witness against Fleming was a crack addict who recanted after his trial, saying she was pressured by cops who dropped a felony rap against her after she identified Fleming as the killer.

But a judge brushed that aside, letting stand the verdict of a jury that did not buy the defendant’s alibi defense. A recent investigation unearthed the police report that confirmed the woman’s arrest that night and the charge dismissal.

Another Brady violation? Shocking. But what of the alibi defense?

From the start, Fleming told authorities he had been in Orlando, Fla., when a friend, Darryl “Black” Rush, was shot to death in Brooklyn early on Aug. 15, 1989. Authorities suggested the shooting was motivated by a dispute over money.

Fleming had plane tickets, videos and postcards from his trip, his lawyers said, but authorities suggested he could have been in New York at the actual time of the shooting, and a woman testified that she had seen him shoot Rush.

A search for the direct appeal of his conviction reveals no decision from the Appellate Division, Second Department. This isn’t terribly surprising, as “affirmed, no opinion” was the norm back then.  Subsequent efforts to claim ineffective assistance of counsel show cursory denials without explanation.

But the problems will smack anyone who has tried a case in the face.  The eyewitness, sanitized by the Brady violation, careful prep and a new set of clothes, makes for a compelling case to a jury.  There is nothing like an eyewitness identification, facts notwithstanding.

And the wealth of evidence to show the defendant was in Florida at the time of the shooting?  This is the sort of thing that only a trial lawyer can appreciate.  In order to make good use of this evidence, the defense needs witnesses. The defense needs a warm body to get it in. Often, the defense needs the defendant. These are problems.

It’s unclear whether defense counsel at trial blew it.  He may well have, and Fleming complained in a subsequent 440.10 motion that he wanted to testify in the grand jury but his lawyer wouldn’t let him. Maybe this was a terrible decision, or maybe Fleming would have made a terrible witness. Twenty-five years later, who knows?

It appears that Fleming had retained counsel for trial, which might superficially appear to be a good idea, but in cases like these, can often be a disaster.  The problem is that a defendant may have enough money to pay for a lawyer, though often an “inexpensive” one who is willing take a murder case for a fraction of what a good lawyer might charge. But once a lawyer is retained, the defendant is tapped out.  No money for investigation, witnesses, the stuff that is vital for a trial defense.

Then there is the Brady violation, which likely wasn’t viewed as much of an issue because they had decided they had the killer and why would anyone doing God’s work let a killer go free just because the witness was a crack addict who needed a little incentive to do the right thing?  Brady violations are usually easy to rationalize, if you’re on the side of truth and justice.

But what makes this dismissal newsy, aside from another wrongful conviction discovered at the end of a sentence, is that the new Brooklyn District Attorney, Ken Thompson, was on board with the outcome.

[Fleming’s lawyer, Anthony] Mayol lauded district attorney investigators and the new administration, which consented to his client’s release.

DA Kenneth Thompson, who took office at the start of this year, has already agreed to release two men who were doing time for a triple murder and has dropped an appeal relating to a third convict who was freed by a federal judge.

Also Monday, Thompson appointed Harvard Law Prof. Ronald Sullivan to lead that effort by heading the conviction review unit, which has been revamped to include seven prosecutors and three investigators. “We will continue our careful and deliberate review of these cases in our pursuit of justice and fairness,” Thompson said.

The creation of conviction integrity units is a laudable change in prosecutorial attitude toward such old, wrongful convictions as Fleming’s.  But they reflect a distance, a lack of responsibility, as prosecutors have a special unit willing to reconsider some former District Attorney’s screw-ups.  What about the defendants being prosecuted today?  Must they too wait a quarter century before someone is willing to consider that they are innocent? What of the Brady violations in their cases?  What of the problems with introducing evidence to prove an alibi without the ability to put a defendant on the stand?

This is a wonderful development, that prosecutors are willing, if not quite desirous, of reviewing old cases. Now, if they would only be as willing to be as skeptical of new cases so defendants don’t have to spend 25 years waiting for someone to believe them.

4 comments on “The Alibi versus The Crack Witness

  1. Keith Lynch

    Fleming had more than just “plane tickets, videos and postcards from
    his trip.” According to

    Fleming told his attorneys he had paid a bill for phone calls made
    from his Florida hotel room the night before Rush was killed, and
    he believed the receipt was in his pocket when police arrested him.
    But authorities told the defense he had no such receipt, according
    to Koss.

    In the course of the investigation, the Conviction Review Unit found
    the receipt in police records, time stamped and dated — solidifying
    Fleming’s claim that he was in Florida at the time of the killing,
    according to the district attorney’s office.

    If this is true, that’s strong evidence that the police *knew* that he
    was innocent. Whoever is responsible for this ought to also spend 24
    years in prison.

    I hope that judges and jurors read that and many similar news stories,
    and react by disbelieving anything a policeman testifies to.

    1. SHG Post author

      Thanks. The CNN story came out after this post was written, and adds significantly to the meager background information that was available. It answers a number of the questions that remained from the original stories.

  2. Allison Williams

    The police are often ‘bought’ and not always to be trusted but because they are ‘Officers of Law’ everything they say is the truth. The news of Jonathan Flemming fills me with joy and happiness.

    1. SHG Post author

      Why would it fill you with joy and happiness to learn that an innocent man was convicted by concealment of exculpatory evidence, and finally released after serving 24+ years of a 25 year sentence? It’s better than not released, but this is no victory. It’s a condemnation of the system. This is no cause for joy.

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