Watchmen Watching Themselves

Is a Prosecutor Being Set Up to Take Fall for Overturned Double-Murder Conviction?

For DAs to review their own convictions is, necessarily, an exercise in trust. In Brooklyn, ‘there is a growing concern that the review units are not independent.’

Photo Illustration by Lyne Lucien/The Daily Beast

The new Conviction Review Unit created in 2014 by the late Brooklyn District Attorney Ken Thompson has won national attention as a model of reform, overturning the convictions of 22 people in 16 separate cases.

But early concerns about the DA’s ability to investigate itself and the NYPD it works in close partnership with have grown louder as the unit’s pace of exonerations has slowed under the watch of Acting DA Eric Gonzalez, the top deputy who ran the office as Thompson succumbed to cancer. Gonzalez now faces a tough fight in September’s crowded Democratic primary, where his opponents include two of his former assistant district attorneys.

Many of those concerns can be seen in the final probe announced under Thompson’s watch, amidst a flurry of news accounts of in-fighting in the DA’s office. That’s the case of Wayne Martin, convicted in 2010 of a double murder that had taken place five years earlier at a tire shop in East Flatbush.

Spurred by the work of a Brooklyn exoneree, Derrick Hamilton, Martin’s appeals attorneys found that the prosecution had failed to turn over two eyewitness statements to Martin’s defense attorney. This clear Brady violation of the prosecutor’s legal and ethical obligation to share potentially exculpatory evidence led CRU head Mark Hale, a veteran Brooklyn Homicide Bureau prosecutor, to ask New York State Supreme Court Judge Matthew D’Emic to reopen the Martin case last June.

Hale did not identify who had withheld the statements, but a few days later Gonzalez himself took aim at the specific assistant district attorney in charge of the case, Marc Fliedner.

Such direct finger-pointing within a DA’s office is unusual, and it came just days after Fliedner had left the office following a public feud with Thompson, who he accused of “abusive” leadership in an “overly politicized office.” The falling-out stemmed from the high-profile case in which NYPD Officer Peter Liang fatally shot an unarmed man, Akai Gurley, in the stairwell of a Brooklyn housing project. Fliedner, then head of the DA’s Civil Rights Bureau, had won a manslaughter conviction—the first in a decade against a member of the NYPD—but Thompson then chose to recommend that Liang not serve any jail time.

In the Martin case, Hale’s letter to the judge failed to mention his own apparent conflict of interest in the investigation, one that Fliedner says should have led to Hale’s recusal from the Martin investigation.

Here’s the story: One of the two eyewitness identification reports that was not turned over to the Martin defense pegged a different person, Allan Cameron, as the shooter at the tire shop. In the early morning hours after those murders, NYPD officer Dillon Stewart was killed in a gun battle in Flatbush, for which Cameron was convicted.

At the time of his arrest, the NYPD also charged Cameron with the attempted murder in an armed robbery of off-duty officer Wiener Philippe in Crown Heights nine days earlier. NYPD Commissioner Ray Kelly had told reporters that the robbery “was a personal confrontation, one-on-one,” meaning Philippe could clearly identify Cameron.

Ten days after the Stewart killing, a purported eyewitness claimed to have seen Cameron, not Martin, at the tire shop. While in custody on a gun charge at the neighboring precinct, an ex-con named Michael Belgrove gave a richly detailed account of seeing Cameron at the tire shop.

The following week, Brooklyn Assistant District Attorney Mark Hale indicted Cameron for both the Stewart killing and the attempted murder of Philippe—but not for the tire shop shooting. Hale’s case against Cameron for killing Stewart was not seen as a slam dunk (Stewart’s partner never saw the gunman’s face) but he won a jury trial in October 2007. Two months later, Hale dropped the Philippe indictment against Cameron, reportedly acknowledging that the charges would be difficult to prove, in no small part because Philippe had described his assailant as 5-foot-9 to 6 feet tall, whereas Cameron is 6-foot-5.

That sizable discrepancy suggests that the Brooklyn DA’s office and the NYPD were looking to add charges to bolster their murder case against Cameron—which would further explain Belgrove’s dubious jailhouse ID of Cameron.

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In his letter to Judge D’Emic regarding the Martin case, Hale stated that “the prosecution inexplicably never disclosed the existence of a purported eyewitness, Michael Belgrove.” But Hale—inexplicably—never disclosed his role in the Cameron prosecution. The letter, meanwhile, mentions that the CRU had interviewed Fliedner—but only about the other eyewitness statement.

There’s little doubt that Hale knows the route of the paper trail in the tire shop murder before Fliedner was assigned to the case by Deputy Bureau Chief Jon Besunder in early 2008. As a result, there are “serious problems with Hale leading the investigation of the Martin case,” according to Pace University law professor Bennett Gershman, a prominent analyst of prosecutorial misconduct (and a Daily Beast contributor).

Fliedner—who insists that “I disclosed everything in my possession at the time I was given the case” by Besunder and has said that Martin deserves a new trial—argues that “by all means Hale should have recused himself.”

The DA’s office, however, is doubling down on its case against Fliedner.

“We had no choice but to vacate the conviction in this double-homicide case because it became abundantly clear that the prosecutor failed to disclose to the defense critical evidence of potential innocence,” a Gonzalez spokesperson tells The Daily Beast.

Gershman insists that for the conviction review process to succeed, it must be free of any hint of cover-up. A leading skeptic of the Brooklyn CRU, he warns that in Brooklyn and elsewhere, “there is a growing concern that the review units are not independent.”

In one sign of a compromised process, the Brooklyn DA, in the course of reviewing the many cases worked on by Louis Scarcella and asking for convictions to be overturned in seven of them so far, has asserted that the notorious former NYPD detective broke no laws. Yet three judges reviewing Scarcella-related convictions have singled out the work of the detective—who recently testified that it was Besunder who gave him the green light to pursue shaky witnesses—as a reason for doing so.

All of which helps explain why two former assistant district attorneys are running to replace their boss. Ama Dwimoh recently called for a special prosecutor to oversee the CRU. Fliedner says he would “look outside of the Homicide Bureau, and perhaps outside of the office” for the unit’s leadership.

Two lingering questions for any outside watchman assigned to review the work of the CRU that’s itself intended to watch over the work of the rest of the DA’s office:

Why is the DA’s office so determined to pin the Brady violations in the Martin case on Fliedner?

And, if not Wayne Martin, who committed the double murder at the tire shop?