Evidence of a convicted murderer’s possible innocence sat buried in a case file for more than two decades. Now, a prosecutor in Brooklyn will have to answer for the mistake
On the afternoon of July 18, 1990, James Leeper, a newly minted homicide prosecutor in Brooklyn, had to make a challenging closing argument. The man he had charged with murder had mounted a substantial defense—offering plane tickets and video footage indicating he had been vacationing at Disney World when a man named Darryl Rush was shot dead in front of a Brooklyn housing project. Leeper acknowledged to the jury that it seemed like the "perfect alibi."
Nonetheless, Leeper confronted the defense straight on: Yes, the defendant, a man named Jonathan Fleming, could have been in Florida around the time of the murder, Leeper conceded to the jury. But Fleming had ample opportunity to fly back to New York, kill Rush and return to his family vacation, Leeper argued. In fact, Leeper told the jury, there were 53 possible airline flights Fleming could have taken to do just that.
Leeper's presentation won the day. The jury returned a guilty verdict. Fleming, 27, was sentenced to 25 years to life in prison.
It took 24 years, but eventually it became clear that there had been much more to Fleming's alibi defense, and that Leeper had failed to disclose it to the jury.
The original case file from 1990 contained a time-stamped receipt showing that Fleming had paid an Orlando hotel phone bill just hours before Rush's murder. The file also contained a letter from the Orlando Police Department informing Brooklyn detectives that Fleming had been seen at the hotel around the time of the killing. By law, Leeper was obligated to turn that material over to Fleming's lawyer. But he had disclosed none of it.
In April, Fleming was set free, the latest victim of a string of wrongful convictions involving the Brooklyn District Attorney's office. But Leeper's role in the case has packed a distinctive mix of shock and dismay.
Interviews with an array of current and former Brooklyn prosecutors, his adversaries in the defense bar, and at least one former Brooklyn judge have uniformly produced glowing testimonials to Leeper's skill, compassion and integrity. People, even those with unflattering views of Leeper's longtime boss, former District Attorney Charles J. Hynes, and the office he ran, find it close to impossible to accept the fact that Leeper knowingly hid vital evidence in a murder case.
"He was universally thought of as a model prosecutor," said Dan Saunders, now a Queens Deputy Executive Assistant District Attorney, who once worked with Leeper in the Brooklyn District Attorney's office. "You'll hear that from everybody. He was a trustworthy and reliable guy. The kind of guy you want to entrust with the difficult work of being a government prosecutor. I hope people say something like that about me one day."
To date, the district attorney's office has said nothing about the Fleming case, other than to acknowledge that its Conviction Integrity Unit had discovered the receipt and additional evidence in recent months. The office offered no explanation for how or why the evidence had remained buried for so long, and, with respect to Leeper's role in the case, has said only that it is "under review."
ProPublica spent several weeks exploring Leeper's career as a prosecutor in Brooklyn, and found an amalgam of genuine respect and personal troubles. Interviews with several current and former colleagues detail his quick, initial rise in the office, but also a long-standing struggle with alcohol. Those interviews with people who worked with Leeper show that eventually his drinking earned him a demotion two years ago.
ProPublica's review also shows that Leeper's career included a 1997 case in which he and the Brooklyn District Attorney's office were accused of withholding evidence that might have established the innocence of a convicted murderer.
Leeper, in a telephone interview, refused to comment. He did not respond to further requests to discuss the Fleming case, his career or any issues with alcohol.
The reputation of prosecutors in Brooklyn has been battered in recent years.
Earlier this week the New York City Department of Investigation issued a scathing report finding that Hynes, among other violations, received political advice from a top New York state judge and misused public money to fund his ultimately failed 2013 re-election campaign. In a lawsuit, he's also been accused of having long overseen an office of rogue prosecutors, where misconduct was condoned, even encouraged. Hynes has denied the charges in the lawsuit.
One of Hynes's top lieutenants, Michael Vecchione, has been accused of railroading an innocent man on a murder charge, a claim he has vehemently denied. Another senior prosecutor left the office in 2012 after she was accused of having withheld exculpatory evidence in a high-profile rape case that soon was abandoned. Some 90 murder convictions involving the office are under review, many involving a retired police detective, any one of which might hold additional trouble for current or former prosecutors.
For all the accusations and embarrassments, however, few in the New York legal world would have predicted Leeper would be at the center of the latest tumult.
Until last month, Leeper still had a portfolio of cases he was prosecuting. On May 5, he was due in court to make another closing argument in a murder case. The family of 23-year-old Nikita Grebelskiy, a passenger in a livery cab who was shot in the head during a botched robbery, was awaiting justice. Leeper had already laid out all the evidence against 21-year-old Michael Magnan. When he was arrested the night of the crime, Magnan had a .380 caliber shell casing in his shoe, the casing matched the bullet lodged in Grebelskiy's head, a gun found near the crime scene matched both the bullet and the casing, and there was DNA found on the gun that matched the shooter.
All that was left for Leeper to do was sum it all up in one final statement to the jury. But he didn't show up.
He was nearly 40 miles away, in a hospital, recovering from a damaging bout with alcohol, according to numerous current and former colleagues.
"I've never heard of anything like this happening before," said Martin Goldberg, Magnan's defense attorney, who has worked on New York criminal cases for more than 30 years.
Three weeks ago, the Brooklyn District Attorney's office, now run by former federal prosecutor Kenneth Thompson, announced that Leeper had been suspended. The office did not say why, and refused to answer any questions about Leeper's career or his role in any possible misconduct.
Taylor Koss, a former Brooklyn prosecutor who spent years working alongside Leeper, has said Fleming intends to sue—both to learn the truth of what happened and to be compensated for the loss of more than two decades of his life.
"This man suffered behind bars for 25 years because this information wasn't turned over," Koss said.
A Pupil Becomes a Foil
Taylor Koss joined the Brooklyn District attorney's office in September 2001. He was a young, ambitious lawyer, eager to realize his long-held dream of being a top prosecutor, one that he said harkened back to his teen-age days watching hours of Law & Order on television.
James Leeper was one of Koss's early bosses and mentors. At the time, Leeper was running one of the most active bureaus in the office. Prosecutors in it handled nearly all criminal prosecutions in some of the most violent areas of Brooklyn, and the unit was known officially as the "Red Zone." Koss said he wanted to shine there, and saw in Leeper a man to impress and to learn from.
"He had a reputation for being a very strong homicide prosecutor, that he earned it, as opposed to others who were thought of as being political appointees," Koss said of Leeper. "People respected Jim for being a workhorse who earned his spot."
Leeper himself had already been in the Brooklyn office for 14 years. He, like Koss, had his heart set on being a prosecutor in his first years out of law school. So much so that he applied twice, enduring a rejection by the Brooklyn office's top brass in 1985, according to the office's personnel records.
"An [assistant district attorney] plays two vital roles in society," Leeper wrote as part of his second, successful application. "The position requires one to be an advocate within the criminal justice system as well as a neutral and objective representative of the people in the district in which he or she works."
"In the latter role, one has the responsibility to thoroughly investigate all 'leads' in a case and to approach cases with a non-advocacy, or non-adversary, perspective. In that sense, one of the A.D.A's most important duties is to ensure that a defendant's constitutional rights are preserved and protected."
The letter moved the district attorney's office, then run by former U.S. Representative Elizabeth Holtzman, to hire Leeper away from private practice. By 1990, with Hynes having succeeded Holtzman, Leeper had secured a position as a homicide trial attorney, an impressively advanced assignment for a young man with only three years of experience as a prosecutor.
By the time Koss was christened as a fledgling prosecutor in 2001, Leeper was head of the Red Zone, and "everyone," according to Koss, "wanted to work in the Red Zone."
"It had the coolest people in it. The coolest bosses," said Koss. "It was the place to be and I got it. I got lucky."
Koss reported to Leeper for more than a decade, and he, like so many others who worked under Leeper, revered the man for his fairness and loyalty. Leeper stuck up for younger prosecutors when they made missteps; he took them aside to school them in the art of persuading a jury; he gave them opportunities to challenge themselves.
"He had implicit faith in me, and if you earned that trust, he'd never micromanage," Koss said. "He believed I could handle myself. He only came to see me do one trial. I had a cooperating witness and he came to watch me put him on, and after that he never questioned me again. I wanted him to trust me because I wanted to be in his good graces. People wanted him to think you were a good D.A."
But those who worked with Leeper came to see a troubled side of him, too. In interviews, more than half a dozen lawyers who worked in the office at the time said Leeper's drinking became pronounced, and, as a result, a problem. Two years ago, according to numerous people in the office, Leeper's drinking cost him his title. Personnel records show he was demoted from chief of the Red Zone back to the homicide bureau, but do not list a reason.
The district attorney's office would not comment on the cause for the demotion.
For his part, Koss moved on to his own new job within the office: deputy bureau chief of the Conviction Integrity Unit, a small group of assistant district attorneys and investigators tasked with re-examining old convictions that might have been flawed.
Koss, in his new job, soon found himself in the uncomfortable and unpopular position of reviewing cases handled by prosecutors who had made their marks years before. He says, however, that he came to feel a sense of gratification in the work: finding evidence that might lead to an innocent person's release, rather than a guilty person's incarceration.
Koss's first case wound up widely celebrated. Over a year-long investigation, Koss and his supervisor, John O'Mara, found evidence that an unemployed printer had been wrongly convicted of murdering a beloved Williamsburg rabbi in 1990. Hynes consented to the release of David Ranta following Koss' investigation in March 2013.
"I'm sure people resented me for it, but I didn't really care," Koss said of the unit's work.
In June 2013, three months after Ranta's release, Koss left the office. But he said he had made a critical observation in his last year there, one that would stay with him in the coming months: Murder cases, especially those tried in Brooklyn in the early, bloody 1990s, could be seriously flawed, and so could the prosecutors who handled them.
Newly in private practice, Koss came to learn of an imprisoned man named Jonathan Fleming, and shortly afterward he joined Fleming's bid for freedom. Fleming's case was pending before the Conviction Integrity Unit Koss once helped run, and Koss realized quickly what lay ahead: He'd be challenging the work and perhaps the ethics of his onetime mentor.
The Alibi Defense
Jonathan Fleming didn't have an unblemished record or reputation in Brooklyn in the late 1980s, having racked up a number of convictions, including for robbery and weapons possession.
But the evidence that Fleming was the man who had gunned down Darryl Rush back in 1989, even at the time of the trial, was less than overwhelming.
One witness, a crack addict, had testified that she had seen Fleming shoot Rush. But it was ultimately shown that she had been more than 400 feet from the scene of the shooting and had not been wearing her glasses at the time. Another witness had been so reluctant to testify that he had to be dragged to the witness stand by a court officer.
As a result, Fleming had spent years after his conviction pressing for a re-examination of his case. The crack addict had recanted shortly after the trial. The man who had reluctantly testified turned out to have testified under a false name. New witnesses had emerged saying that another man was the likely shooter.
Fleming's efforts, however, got nowhere. Prosecutors dismissed the recantation and the reliability of the new witnesses. Judges routinely denied his motions for a rehearing.
Then, in the summer of 2013, with the Brooklyn District Attorney's office under fire for a variety of alleged misconduct, Koss's former colleagues agreed to look into Fleming's claims of innocence.
The ex-colleagues unearthed a bombshell: The Fleming case file had been found, and its contents crippled the case against him. There was, among other evidence, the receipt that had been taken off of Fleming's person at the time of his arrest, and it showed he had paid a phone bill at his hotel in Orlando at 9:27pm on Aug. 14, 1989. The murder took place in the Williamsburg section of Brooklyn at approximately 2:15 a.m.
Koss recalled the moment he got word of the discovery made by his old office.
"I was instantaneously nauseous; physically sick to my stomach," he said.
"You want to believe that these mistakes don't happen," he said. "Then, slowly, you come to the realization that these mistakes do happen, and it results in people losing years of their lives."
Koss credits the work of the Conviction Integrity Unit. But the district attorney's office has said nothing about the botched case, other than to consent in court to Fleming's release.
Had the case file been lost? Overlooked? Buried in a police file not shared with prosecutors? Intentionally withheld by Leeper?
James Devereaux was one of the detectives who worked the Fleming case. At the original trial, Fleming's attorney had asked Devereaux several questions about the phone bill receipt, including whether he recalled telling Fleming he'd make a Xerox copy of it. He testified that he had no recollection of a receipt, but, under questioning, conceded it was possible that one existed and even that he had assured Fleming he would make a copy of it. But the receipt was never entered as evidence in the case.
In an interview with ProPublica, Devereaux said he didn't remember the Fleming case, but he was firm about his evidence disclosure practice at the time.
"I'm not in a position to try to put blame on anybody, especially when I don't recall the case," Devereaux said. "But when a case goes to trial, you go to the D.A.'s office with your file and everything goes over to them."
The law is certainly clear about the responsibility for gathering and disclosing evidence. Leeper was the person ultimately responsible for discovering it and turning it over.
Bennett Gershman, a law professor at Pace University and a leading expert on prosecutorial misconduct, wrote a recent column about the case entitled Don't Let the Prosecutor Off the Hook. In an interview, he said prosecutors will often try to deflect blame for evidence disclosure problems onto police.
"But even if we assume it was in the police file and not the district attorney's file, and the prosecutor had no firsthand knowledge of this thing, once the defense attorney says, 'Hey, check this out, this is a major claim of innocence,' the prosecutor has got an obligation to go back to the police and say, 'Do you have this receipt? Did you write a report? Did you ask the hotel if he was there?'
"It goes to what your obligation is as a prosecutor," Gershman said. "Is it to bury your head in the sand? Or is it to follow all possible leads to find out whether this guy is innocent? This wasn't a needle in a haystack; this was something that was right under his nose."
A Prior Offense?
Anne Feldman served 26 years as a judge in Brooklyn, but across those years, she only once exercised the power to set a convicted prisoner free. The prisoner was Julio Acevedo, and the prosecutor whose failure factored in his release was James Leeper.
In 1989, Feldman had presided over Acevedo's initial murder trial. Acevedo had been charged with fatally shooting a man in a housing project hallway in Brooklyn. At trial, Acevedo had claimed that he'd been caught up in an ugly street beef over drugs and had been forced, with his own life threatened, to carry out the deadly shooting.
Sisodia is accusing Yogendra Yadav of targeting party chief Kejriwal, while Damania and Menon withdraw their resignations hours after submitting it
Differences in the top rung of the Aam Aadmi Party (AAP) have come to the fore with Manish Sisodia accusing Yogendra Yadav of targeting party chief Arvind Kejriwal and making internal matters public.
In a letter written in response to Yadav’s email, Sisodia said, “Your (Yadav) broad allegations are Arvind (Kejriwal) does not listen to the suggestions of the PAC (Political Affairs Committee). I am surprised reading your email because till the time Arvind agreed with you, he was democratic.”
Sisodia was referring to the recent row between Naveen Jaihind and Yadav after which Jaihind quit the national executive and the latter the PAC membership.
Yadav and Jaihind had unsuccessfully contested from Gurgaon and Rohtak Lok Sabha seats, respectively. The former was the Haryana in-charge while the latter was the party’s state convener.
Sisodia and Yadav were not immediately available for their comment.
The letter, which was written earlier this week, said that it was Kejriwal who backed Yadav’s decision of contesting from Gurgaon despite other PAC leaders opposing the move, but the AAP chief managed to convince others.
“When you wanted to become Haryana in-charge and wanted to be projected as the CM candidate despite opposition from other PAC members, Arvind backed you. At that time he was democratic (for you).
“The state of affairs of the party in Haryana is in a shambles. Volunteers talk about your fight with Jaihind,” he said.
Meanwhile, AAP leaders from Maharashtra, Anjali Damania and Preeti Sharma Menon, made a U-turn after submitting their resignations. After being assured of the formation of a transparent new state executive, both withdrew their resignations on Thursday evening.
In a tweet, Mayank Gandhi, AAP leader from Maharashtra confirmed the withdrawal of resignations by Damani and Menon.
Earlier on Thursday, Damania, in her resignation message to top AAP office bearers had said, “Dear colleagues, with a heavy heart, I am ending my association with AAP”.
Further move on Nifty may be indecisive
Indian markets, which opened with a lull on Thursday took a quick plunge into the negative and after hitting the day’s low, the benchmark indices witnessed a gradual recovery. In the last few minutes of the trading session, S&P BSE Sensex re-entered the level above 25,000 for the second time during the day and stayed there till the end.
Sensex opened at 24,828 while the NSE 50-share Nifty opened at 7,400. Sensex hit a low of 24,645 and moved higher to hit a high at 25,044 and closed at 25,020 (up 214 points or 0.86%), while the Nifty moved from the level of 7,361 to the level of 7,485 and closed at 7,474 (up 72 points or 0.97%). The NSE recorded a volume of 161.69 crore shares. India VIX fell 0.75% to close at 15.4475.
Prime minister Narendra Modi on Wednesday, held discussions with Secretaries of all the Ministries and senior officers of the Departments of the Government of India. Such a meeting has taken place after more than eight years. The Prime Minister listened extensively to suggestions and comments of the Secretaries for nearly two and a half hours.
He called upon the senior bureaucrats to simplify and streamline the administrative rules and procedures to make them people-friendly. He also encouraged the officers to take decisions and assured them that he would stand by them.
Prime Minister Modi is reportedly visiting Washington to meet President Barack Obama in September, signalling a new start in ties with a leader once denied a visa by the United States.
Coming back to the markets, Tata Power, which was recently in news over its subsidiary, Tata Power Renewable Energy, successfully commissioning a 25MW solar farm in Maharashtra's Satara district, was among the top four gainers in the Sensex 30 pack. Tata Power rose 3.64%.
Mahindra & Mahindra launched the limited edition 'XUV500 Sportz' in India. Built on its W8 model, the Sportz is priced at Rs. 13.68 lakh (ex-showroom, Mumbai). The stock was the top loser (1.46%) in the Sensex 30 stock.
Shares of oil marketing companies were in focus on Thursday as news made rounds that the oil ministry will consult the Prime Minister's Office (PMO) and Finance Ministry on hiking LPG and kerosene prices. BPCL (6.95%) was among the top two gainers in the ‘A’ group on the BSE.
Credit Suisse has downgraded Max India to underperform with a target price of Rs292 per share. The brokerage says that after the recent 50% run-up on expectations of an increase in insurance FDI limit to 49%, it will offer little upside hereon. The stock was the top loser (6.30%) in the ‘A’ group on the BSE.
US inidices closed Wednesday marginally higher.
Service industries in the US expanded at the fastest pace in nine months in May. The Institute for Supply Management said its services sector index rose to 56.3 last month from 55.2 in April as new orders, order backlogs, and hiring increased.
A private report showed employment rose less than economists projected. Private employers added 179,000 jobs to their payrolls last month after hiring 215,000 workers in April, according to payrolls processor ADP.
The influential US non-farm payroll data for May 2014 is due for release tomorrow, 6th June 2014.
Except for Hang Seng (0.18%), Straits Times (0.02%) and Seoul Composite (0.65%) all the other Asian indices closed in the positive. Shanghai Composite (0.79%) was the top gainer.
European indices were trading in the green. US Futures were also trading higher.