A New York judge recently decided to vacate the conviction of Jonathan Fleming, 51, who spent nearly 25 years in prison for a murder he did not commit.  Fleming was found guilty in 1989 for the death of Darryl Rush in Brooklyn, New York.  He always maintained his innocence and stated that he was vacationing in Florida at the time with his family.  Rush was killed on August 15, 1989 in a dispute over money.  After years of reviewing documents and investigations between Fleming’s defense attorneys and the Brooklyn District Attorney’s Conviction Review Unit, it was determined that the only evidence against Fleming was a witness who recanted their testimony.

“As you can imagine, after sitting in jail for 25 years for a crime he didn’t commit, he can’t help but feel vindicated,” said one of Fleming’s lawyers, Anthony Mayol, “On the flip side, that’s 25 years that have been stolen, that he’ll never get back.”

At his trial, defense lawyers provided family photos and home videos showing he was in Florida around the time, but they did not have any evidence that he was in Florida on that specific day.  The prosecutors persuaded jurors to ignore the alibi evidence.  Fleming told his attorneys he had a phone bill from his hotel room in his pocket when he was arrested, but authorities denied they had any receipt.  The Conviction Review Unit uncovered that police in fact did have this proof of Fleming’s alibi, they had taken it into custody, time stamped and dated.  This evidence solidified Fleming’s claims he was innocent.

“This is proof of alibi that was basically purposely withheld,” Koss said.

The review unit also determined that Fleming’s former girlfriend was credible when she said that Fleming and her talked on the phone the night of murder while he was in Florida.  They found phone records to support the call.  At trial, the prosecution had produced a witness who said she saw Fleming commit the crime, given the fact that he was more than 1,000 miles away at the time, the woman clearly was either wrong or lied.  She recanted her testimony weeks later.  She told a judge that she was on parole at the time and had been arrested that same night in a stolen van and the police persuaded her to say Fleming did it to avoid jail.  The judge didn’t believe her and threw out her recantation because she could not provide facts to back it up.  Judges are often resistant to recantations.

A review of police records came up with a timeline.  The woman on probation was arrested on grand larceny and brought to the Brooklyn district attorney’s office, where she gave a statement.  Within the hour, the charges against her were dropped.  And she later testified against Fleming placing him at the crime scene falsely.  Defense attorneys through their investigation found a man in South Carolina who says he was the getaway driver and he identified a suspect who may be the real killer.  Judge Matthew D’Emic vacated Fleming’s conviction after “careful and thorough review of this case and based on key alibi facts that place Fleming in Florida at the time of the murder,” said District Attorney Ken Thompson.

“He has no job, no career, no prospects.  [He’s been in jail for 25 years.],” Fleming’s attorneys said, “Let’s be honest,” the defense announced that they have plans to bring a civil rights lawsuit against the city and seek damages for his wrongful conviction.

Using the Conviction Review Unit, Thompson, who was elected recently, has already released two men, not counting Fleming.  The other two men were released using DNA evidence.  Antonio Yarbough and Sharrif Wilson were teenagers when they were falsely imprisoned.  After reviewing DNA evidence, the 1992 murder convictions could not stand up to scrutiny and the men were freed.  All three of those cases are unconnected to the questionable tactics used by Detective Louis Scarcella in at least 50 cases, which are being reviewed.  Last week, Thompson appointed Harvard law professor Ronald Sullivan Jr. as special counsel for the Conviction Review Unit.  Sullivan, also heads Harvard’s Criminal Justice Institute and will guide the review of future cases.


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