BROOKLYN - Righting an Injustice

"Brooklyn DA Moves to Free Man after Long-Buried Evidence Surfaces" by Joaquin Sapien, ProPublica 4/7/2014

Jonathan Fleming has served more than 24 years in prison for a 1989 murder.  Now it has emerged that law enforcement had evidence all along showing he was in Florida at the time of the shooting.

At a hearing tomorrow in Brooklyn Supreme Court, District Attorney Kenneth Thompson is expected to consent to the release of Jonathan Fleming, who has served more than 24 years in prison for a murder that an emerging pile of evidence suggests he did not commit.

The dramatic turn reverses years of steadfast opposition from the District Attorney's Office, which vigorously fought Fleming's appeals for two decades.

Even after extensive exculpatory evidence surfaced during a joint review by former District Attorney Charles "Joe" Hynes' Conviction Integrity Unit and Fleming's attorney, Anthony Mayol, efforts to free Fleming appeared to have stalled.

"It's an amazing feeling for everyone involved," Mayol said of Fleming's sudden impending release.  "We spoke to [Fleming] before it was officially confirmed, and to the extent he believes it's going to happen he is elated, overjoyed, and relieved.  He is beside himself with happiness."

A spokesperson for the Brooklyn District Attorney's office confirmed that Fleming, 51, would likely be released tomorrow, but declined further comment.

That will effectively bring the case against Fleming to a close.  According to a source in law enforcement, Thompson intends to dismiss charges against Fleming "in the interest of justice."

Fleming's quest to prove his innocence got a boost from Taylor Koss, the former deputy chief of the Conviction Integrity Unit, who agreed to help with Fleming's exoneration effort late last year.  Koss was also a central figure in Hynes' decision to release David Ranta, an unemployed printmaker wrongly convicted of killing a Brooklyn rabbi in 1990.

Over the last year, investigators for Fleming and the unit discovered a range of evidence casting doubt on Fleming's guilt and supporting his long-held assertion that he was in Orlando, Fla., visiting Disneyworld with his family when 22-year-old Darryl "Black" Rush was shot to death on August 15, 1989.

Investigators found a receipt showing that Fleming had paid a phone bill at a hotel in Florida just hours before the murder took place; an Orlando police report confirmed that several hotel employees remembered Fleming being there.

The team also found evidence supporting the claim that a key witness had only agreed to testify against Fleming to avoid criminal prosecution, unearthing a command log from the 90th Police Precinct showing the witness had been arrested prior to Fleming's trial.

None of that material was turned over by prosecutors at Fleming's original trial in the summer of 1990.  Asked about the phone receipt, a detective testified that he had "no recollection" of it.

In an interview with ProPublica, Koss said he was "disgusted" when he learned that prosecutors hadn't turned over the phone bill receipt, especially given that Fleming's defense attorney had specifically asked for it.

The push to free Fleming appeared to gain crucial momentum last November, when a member of Hynes' conviction integrity unit traveled to South Carolina with Fleming's private investigators to speak with a man suspected of being the getaway driver.  Not only did he tell them that Fleming wasn't involved in the shooting, he also implicated another man.

"It was an amazing day," said Kim Anklin, a private investigator for Fleming.

But that very night, Hynes lost his bid for re-election, raising concerns that he wouldn't make a decision on what to do with the new evidence before leaving office.  The next month, the head of the Conviction Integrity Unit resigned, telling Fleming's attorneys that the decision on whether to release Fleming had would rest with Hynes.  Hynes never acted, however, effectively punting the decision to Thompson.

As months passed in silence, Fleming's attorneys grew frustrated with Thompson, complaining that he had not communicated how the District Attorney's office would proceed.  On Monday, Mayol said his annoyance with the process had given way to joy.

"The disappointment in the delay goes out the window when you know that your client is going to be vindicated and set free," Mayol said.  "He's waited a long time for this and the paramount focus for me is him getting out."

Fleming has acknowledged that at the time of the shooting he was a drug dealer in Williamsburg.  He had a criminal record, but he always maintained he had nothing to do with Rush's murder.

At Fleming's original trial, the prosecution's case was based primarily on testimony from a single witness who said she had seen the crime and fingered Fleming as the shooter.

Fleming's defense attorney countered with several pieces of evidence to argue that Fleming was in Florida at the time, including plane tickets and video footage of his client enjoying time with his family there.  Several relatives who accompanied Fleming on the trip testified on his behalf.  Fleming's uncle said he picked him up from the airport when he returned on August 16, 1989.  The murder took place at approximately 2:15 a.m. on August 15.

But the assistant district attorney who handled the case, James Leeper, pointed out that there was no footage of Fleming in Florida on August 15, and it was possible that Fleming could have flown to New York, shot the victim, and then flown back to Florida.  Fleming's defense attorney stipulated to that being a possibility, even though Leeper had no evidence proving it.

Not long after Fleming was convicted in July 1990, the eyewitness recanted, saying she only testified because she was threatened with jail time if she didn't cooperate.  Judge Albert Koch, who presided over the trial and the initial appeal, didn't believe the recantation, however, and affirmed Fleming's conviction.

Fleming has filed numerous appeals since then, but each was defeated by the District Attorney's office.

Last week, in preparation for a hearing later this month, Mayol and Koss sent a letter to the New York State Board of Parole that laid out all of the exculpatory evidence, including sworn statements from new witnesses implicating another shooter.

In the last three years, the parole board has granted parole to at least two other Brooklyn men based on newly discovered evidence.

That won't be necessary for Fleming.

"Thank goodness we don't have to go to the parole board," Koss said.  "To me this was never about getting him paroled, this was about getting a consent to release, this was about getting the indictment dismissed, not 'you are a convicted felon out on parole, but you are an innocent man.'"