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Don't Let the Prosecutor Off the Hook

There is hardly ever a postmortem of a derailment in the criminal justice system, as there typically is when a train derails, or a plane crashes.
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Jonathan Fleming is the 1,350th person officially exonerated in the U.S. since 1989, when the National Registry of Exonerations began to record wrongful convictions. He spent nearly 25 years in jail for a murder he didn't commit. He had a powerful alibi that the prosecutor didn't believe. And he was represented by an attorney who was no match for the prosecutor. The media's report of Mr. Fleming's ordeal, and exoneration, is similar to the hundreds of other reported exonerations -- dry, clinical, and not overly curious about how it happened. It appears from the reports that Fleming was a victim of a tragic mistake, and a series of blunders by law enforcement that caused an innocent man to spend half of his life in prison. But nobody, certainly nobody in the media, has attempted to examine this case more closely and to ask probing questions about how this human tragedy could have happened? Indeed, almost never do commentators, reporters, or the U.S. justice system itself ask this question. There is hardly ever a postmortem of a derailment in the criminal justice system, as there typically is when a train derails, or a plane crashes.

The facts are straightforward. At 2:15 a.m. on August 15, 1989, Darryl Rush, a drug dealer, was shot to death outside a housing project in Brooklyn. Police a few days later arrested a young woman named Jacqueline Belardo -- an admitted crack addict -- who claimed she recognized the gunman from her window 400 feet from the shooting despite the darkness, and identified Fleming as the shooter. Based on her uncorroborated account Mr. Fleming was charged with murder and the jury convicted him.

Given the circumstances of her identification, it would be reasonable for any prosecutor trying this case to question the accuracy of her identification, even assuming that this witness had no interest in the case. But this witness had a powerful interest in the case, which any responsible prosecutor would have been alerted to. This purported "eyewitness" was arrested for grand larceny for stealing a van a few days after the Rush shooting, was questioned by the police, and after she identified Mr. Fleming the charge was dismissed and she was released. Belardo recanted her testimony after Fleming was found guilty, but before his sentence. She claimed in an affidavit she was threatened with jail unless she implicated Fleming. Notwithstanding a substantial basis to believe that her testimony was fabricated, the prosecution did not believe her recantation, and the trial judge agreed, upholding Fleming's conviction and sentencing him to life.

Moreover, Mr. Fleming had an alibi, a powerful alibi. He claimed he was in Florida at the time of the shooting on a family vacation in Disneyworld. He had plane tickets and home videos to prove his claim. He and his family stayed at the Orlando Quality Inn, and he had evidence to prove this, aside from records of the guest registry. He had a phone receipt showing a phone call he made from the motel at 9:29 p.m. on August 14th, less than five hours before the shooting. This phone receipt was discovered in Fleming's pocket by police after he was arrested. Moreover, employees at the motel confirmed that Fleming was there, because the Orlando Police Department had interviewed these employees at the New York Police Department's request and sent a report to the NYPD. Did the Brooklyn prosecutor who tried Fleming know about the phone receipt? Did he know about the Orlando police report providing strong circumstantial evidence that Fleming could not have committed the murder? The receipt and the Orland police report were never revealed to Mr. Fleming's lawyer. Isn't it reasonable to ask whether the prosecutor knew, or should have known, about this exculpating evidence. Did the police hide this proof from the prosecutor? Or did the prosecutor fail to ask the police about any information that might be favorable to Mr. Fleming?

Ultimately, the only witnesses to vouch for Mr. Fleming at his trial were members of his family, and another family member who testified that he picked up Fleming at the airport in New York on August 16, the day after the murder. However, as the prosecutor argued to the jury, the testimony of members of Fleming's family is suspect, and not believable. And anyway, the prosecutor argued, apparently with a straight face and without any evidentiary support, even if Fleming was in Florida he could have flown back to New York, shot Rush, and then flown back to Florida.

Mr. Fleming has filed several petitions over the years seeking his exoneration, and the Brooklyn prosecutors have continually resisted his efforts. However, recently, after considerable prodding from investigators for Fleming, prosecutors from the Brooklyn District Attorney's Conviction Integrity Unit unearthed evidence proving Fleming's innocence -- police records supporting Belardo's recantation, Fleming's phone receipt, and the Orlando police report. In addition, investigators located a man in South Carolina suspected of being the getaway driver in the Rush shooting who stated that Fleming was not involved and identified the name of another man as the gunman.

Is this case just another instance -- along with probably thousands of other cases -- of the criminal justice system breaking down and an innocent person convicted? Should there be an "accident-reconstruction" investigation to determine how the system crashed? Should there be a commission appointed to conduct a postmortem, and recommend ways to prevent wrongful convictions? But we don't investigate how criminal cases miscarried. We don't investigate how the system malfunctioned. And we don't investigate those officials who caused the malfunction. And, of course, the most important governmental official in the justice system responsible for causing malfunctions - or preventing malfunctions -- is the prosecutor, whose duty is not solely to win convictions but to serve justice.

In that context here are some questions: Given the obvious weakness of the proof against Mr. Fleming, didn't the prosecutor have a legal and ethical responsibility to be skeptical about Fleming's guilt and the credibility of his accuser? Didn't the prosecutor know that eyewitness testimony is notoriously weak but has a powerful impact on a jury? Didn't the prosecutor have a legal and ethical responsibility to conduct an exhaustive investigation into Mr. Fleming's alibi to determine whether it was truthful or not? Since the prosecutor was put on notice about the existence of exculpatory proof, didn't the prosecutor have an obligation to investigate the existence of the phone bill, or the exculpatory testimony from the motel staff, as well as any other favorable evidence supporting Mr. Fleming's claim of innocence?

A prosecutor is not a partisan seeking a conviction at all costs. And even if a prosecutor does not through misconduct railroad an innocent defendant, the prosecutor has the power, as the Fleming case dramatically shows, to cause the conviction of an innocent man through negligence and terribly bad judgment. And as we know, notwithstanding a prosecutor's ability to use his or her awesome powers to convict an innocent man, a prosecutor is never held accountable for negligence and bad judgment.

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