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Exoneree Accuses Brooklyn DA’s Office Under Joe Hynes of Prosecutorial Misconduct in Denying his Freedom of Information Request

Letter from Jabbar Collins warns that his case is likely only “the tip of the proverbial iceberg”

Charles J. Hynes
MTA of New York [CC BY 2.0]

Exoneree Accuses Brooklyn DA’s Office Under Joe Hynes of Prosecutorial Misconduct in Denying his Freedom of Information Request

Letter from Jabbar Collins warns that his case is likely only “the tip of the proverbial iceberg”

When Jabbar Collins was exonerated in 2010 after serving more than 15 years in prison for murder, the Brooklyn District Attorney’s office was forced to reckon with the dubious practices that led to many wrongful convictions under the Charles “Joe” Hynes administration (1990–2013). Collins was freed after a federal judge found that prosecutor Michael Vecchione had deployed “shameful” tactics of witness coercion to secure his conviction.

But Collins now tells In Justice Today that he would have been released eight years earlier if not for another shameful but lesser-known tactic used by the Brooklyn DA’s office. In his view, the office has still not adequately acknowledged the impact of its failure to hand over exculpatory material requested by defendants under the Freedom of Information Act.

In a mid-December letter to Brooklyn’s newly elected District Attorney, Eric Gonzalez, Collins detailed his experiences, along with those of Tasker Spruill, whose 1998 murder conviction was overturned by a Brooklyn judge this past summer. Collins and Spruill had both requested information on their cases from Brooklyn Assistant DA Morgan J. Dennehy, the FOIL (New York’s version of FOIA) appeals officer since Hynes appointed him in 2001. Collins argues that the two men spent nearly 20 years in prison because Dennehy blocked their requests for case records.

While at New York’s Green Haven Prison in late 2002, Collins asked for all material witness orders (used to compel reluctant witnesses to testify) that had been obtained by Vecchione as part of his prosecution. The DA’s office denied that initial request, so, per official policy, Collins appealed to Dennehy, who rejected the follow-up request in early 2003 on the grounds that the office possessed no such orders.

But, in 2009, separate litigation revealed that Vecchione, during Collins’ trial, had used a secret material witness order to hold one reluctant individual in jail for a week. According to Collins, the belated revelation of Vecchione’s action — which Dennehy, in denying the initial FOIL request, helped to conceal — caused Federal Judge Dora Irizarry to “become infuriated,” leading to Collins’ exoneration in 2010.

Beyond casting a light on this important, but little-known, component of his exoneration story, Collins’ letter has also revealed a crucial factor in the outcome of many criminal cases. A DA office’s response to a defendant’s Freedom of Information Act request can determine the success or failure of that defendant’s appeal.

Collins maintains that Dennehy also impeded Spruill’s access to crucial case material. According to the judge who overturned Spruill’s conviction, the prosecution withheld evidence of its use of “bullpen therapy,” or the repeated shuttling of a reluctant witness back and forth to jail in order to coerce testimony. During Spruill’s appeals, Dennehy blocked the release of records proving his office had deployed this shady tactic, thus shielding another coercive practice of the Hynes era from scrutiny.

“Morgan Dennehy is an extremely competent and aggressive advocate for the prosecution,” says Ron Kuby, a criminal defense and civil rights attorney who has dealt with him in other exoneration cases. “But for that same reason, he should not have the final word on what materials defendants receive.”

A spokesperson for the Brooklyn DA’s office would not comment on whether, in light of these revelations, Dennehy will continue to oversee its FOIL appeals. According to the spokesperson, “DA Gonzalez is fully committed to making sure that wrongful convictions are reviewed and overturned, and that his staff learns from the mistakes of the past so that no one else is wrongfully convicted in Brooklyn.”

Yet, as Collins warned Gonzalez in his letter, Dennehy’s role in obstructing his and Spruill’s cases is “likely the tip of the proverbial iceberg.” According to Collins, countless more wrongful convictions based on prosecutorial misconduct under Joe Hynes’ watch may be exposed.

For New York Prisoners, a Package Policy that Effectively Pits TV Against Books

A little-known New York Department of Corrections and Community Supervision policy has limited access to books in at least nine prisons for years.

Multiple policies in New York state’s correctional system limit access to materials shown to reduce recidivism.
Eric Francis/Getty Images

For New York Prisoners, a Package Policy that Effectively Pits TV Against Books

A little-known New York Department of Corrections and Community Supervision policy has limited access to books in at least nine prisons for years.

In a downtown Manhattan high-rise, public defender Ben Schatz’s office overflows with books, from Amy Tan to Leo Tolstoy, many stuffed into returned packages labeled “prohibited,” “refused,” and “not allowed.”

The books were returned to Schatz from upstate New York prisons, where he attempts to send reading material requested by prisoners through Books Beyond Bars, a donation-based project of the New York City-based nonprofit Center for Appellate Litigation.

“We have clients who have been incarcerated for decades, and who have few, if any, contacts outside prison other than their lawyers,” says Schatz, “So to have someone send them a book is an incredible thing. They’re in solitary conditions with literally nothing to read other than their legal papers, which they read every day over and over.”

Corrections officials offer inconsistent explanations for rejected books, Schatz says. But many stem from a curious, little-known directive that has been in place for decades, in at least nine of the state’s 55 prisons.

These prisons — which house more than 10,000 people — are designated as “TV facilities” by the New York Department of Corrections and Community Supervision (DOCCS). A DOCCS rule stipulates that a TV facility “may allow inmates to own television sets,” after they take part in a “vote via secret ballot” on the option to purchase a personal TV set from the prison’s commissary. If a majority votes for TV sets, then prisoners at TV facilities can only receive two packages per year weighing up to twenty pounds from “personal sources” such as family or friends — containing only food. And per DOCCS policy, results of the vote “are irreversible, and all inmates at the facility will be subject to the guidelines [restricting receipt of packages] regardless of their individual choice to own a television set or not.”

Prisoners can continue to buy some items from a list of “approved vendors,” like the retailers Amazon and Walmart. (Like myriad other privatized amenities that cater to prisoners and their families, the prison package business is a lucrative one.) But the problem, Schatz notes, is that many incarcerated people can’t afford to buy books, so the restriction profoundly cuts down on their ability to access any reading material. They’re left with the often scant selection available at the understocked prison library — or, if they’re in solitary confinement, no books at all.

Given that books are among prisoners’ most vital tools for personal development and growth, one would think that DOCCS should encourage incarcerated people to access as much free reading material as they want. But DOCCS plans to cut even more prisoners off from free books in the New Year. This month, it rolled out a new policy at three non-TV facility prisons — one it plans to extend to all state prisons by the end of 2018, including TV facilities — that designates that prisoners at the pilot prisons can only receive books from approved vendors. A DOCCS official defended the policy to In Justice Today, saying that it is meant to stem what he claims has been a recent rise in contraband, including drugs that have led to overdoses.

Many prisoners at TV facilities have filed grievances with the DOCCS regarding returned or missing packages, but these complaints often go unanswered. And there is generally little legal recourse for those behind bars, even when policies are unconstitutional, because they don’t have the money to hire a lawyer.

But some prisoners are fighting back. Jeremy Zielinski, a prisoner at the Clinton Correctional Facility in Upstate New York, recently filed a lawsuit in federal court arguing that the TV policy violates the constitutional rights of prisoners. An hour and half south of Montreal, Clinton is the state’s largest maximum-security prison, and has made headlines in recent years for reports of rampant and sometimes fatal staff-on-prisoner assaults and the dramatic 2015 escape of two men, one of whom was later shot by U.S. Border Patrol agents.

Zielinski’s 30-page pro se complaint chronicles his and other prisoners’ stymied attempts to receive “personal bibles, college correspondence course materials, books and magazines, an inmate’s own published writings, and privileged correspondence from the U.S. National Archives.” Zielinski notes that many approved vendors only have online catalogs that he can’t access, and that some of his requests for printed catalogs by mail have been ignored. Many of the vendors also won’t accept mail orders, making it “impossible” for him to order from them. Zielinski’s lawsuit is currently pending in federal court.

Meanwhile, prisoners in TV facilities are still out of luck when it comes to requesting free books from family, nonprofits, and religious organizations.

“We regularly get requests from inmates seeking books they can use to further their education, or improve their marketability, or learn job training skills upon reentry,” says Schatz. “Prison education and learning job skills reduces recidivism and increases the likelihood of post-release employment, so restricting inmates from accessing these materials only serves to undermine the ostensible aims of the corrections system.”

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“Murder Every Day but the Spotlight on Bike Life”: Amid 343 Homicides, Baltimore Police Crack Down on Dirt Bikes

“Murder Every Day but the Spotlight on Bike Life”: Amid 343 Homicides, Baltimore Police Crack Down on Dirt Bikes

On January 5th, Baltimore Police Sergeant Wayne Jenkins entered a guilty plea in federal court on an array of charges such as racketeering, conspiracy, and robbery. Sergeant Jenkins is just one of eight indicted members of the Gun Trace Task Force (GTTF), a specialized unit focused on getting guns off the streets. The list of crimes Jenkins committed while purportedly protecting law and order for the people of Baltimore included drug sales, illegally stealing cash from people detained in his custody — and stealing dirt bikes. According to local activists, police officers such as Jenkins stole and sold dirt bikes over the past few years taking advantage of a much-touted crackdown on dirt bikes in Baltimore.

The decades-old tradition of illegal street biking — known as “bike life” — is aggressively targeted by police around the country, who have been using tactics against bikers that parallel the very same tactics used in the devastating loop of the drug war: arrest, confiscate, charge, repeat. Jenkins’ guilty plea verifies what the illegal street biking community has long accused cops of doing: Chasing them, terrorizing them, and even stealing their dirt bikes, all under the guise of promoting law and order.

New-Style Broken Windows Policing

Crackdowns on dirt bikes — and four-wheel All-terrain vehicles (ATVs) connected to the street riding scene — are a staple of broken windows-style policing in Baltimore, Washington D.C., Philadelphia, and New York, where they cannot be legally operated on city streets.

In May of 2016, then-NYPD Commissioner Bill Bratton staged a press conference in Brooklyn where he gleefully watched as a pair of bulldozers crushed 69 dirt bikes seized by the police. “These bikes and riders are a menace,” Bratton proclaimed. “And I would, without a doubt, say we crushed it.” The NYPD even tweeted out Bratton’s comments on its twitter account with the hashtag, #UseItAndLoseIt. And in Philadelphia, police arrested rapper Meek Mill for popping wheelies on a dirt bike in New York City; the arrest was one of several that led a judge to recently sentence him to two to four years in prison for violating his probation.

But Baltimore bikers and advocates say that they are a scapegoat for the city’s larger problems. “The confiscation of dirt bikes is anti-black and anti-poor,” explains ShaiVaughn Crawley, a local activist. Dirt bikes, brash and loud, and dirt bikers, mostly young and black, are a convenient target for P.R.-savvy police and politicians — who offer up evidence of black men committing minor noise ordinances and moving violations as evidence of a city out of control and in need of more policing.

More broadly, dirt bikers are, quite simply, a threat to the status quo. In Baltimore, a profoundly segregated city, dirt bikers offer a tangible glimpse of rebellion and freedom; their bikes blur long-established borders between neighborhoods, rich and poor, white and black. As a 2015 Gawker piece on dirt biking observed, “the bikers…have challenged [Baltimore’s] systemic separation simply by riding through it.”

Whose Safety?

When arguing that dirt biking must be punished harshly, police departments around the country attempt to connect the activity — which sits somewhere between hobby, sport, protest, and postmodern performance art — to more serious crimes. Baltimore is no exception. In July 2016, Baltimore police officially announced a Dirt Bike Violators Taskforce “to address the ongoing concerns and dangers associated with dirt bikes.” At the press conference (the one where Commissioner Davis called dirt bikers “gun toting criminals”), police showed police helicopter footage of a dirt biker they said could be seen wiping fingerprints off of ammunition and then putting the bullets into a gun.

But dirt bikers say the greatest public safety threat comes not from them but from the police. “No chase” policies in BaltimoreWashington D.C.Philadelphia, and New York should prevent police from engaging in high-speed pursuits with dirt bikes in their vehicles. But police frequently chase dirt bikes — both in cars or overhead by helicopter — leading to accidents and even deaths. In Nov. 2016, a video circulated online that showed D.C. police in an SUV chasing an ATV rider, crossing the yellow line to get next to the rider, and then pepper-spraying him. In June of 2016, a confrontation between a Philadelphia police officer and a dirt biker ended with dirt biker David Jones shot in the back and killed by Officer Ryan Pownall. Police say they stopped him for erratic driving and searched him; then he escaped, reached for his waistband, and was shot. (Philadelphia Magazine spoke to a witness who disputed this version of events.)

In 2012, two high-profile dirt bike deaths occurred in New York: Eddie Fernandez, killed when police car hit his bike and sent him into a pole; and Ronald Herrera, hit from the back by police car in an accident that also left Herrera’s passenger paralyzed.

In Nov. 2016, a video shot by a Philadelphia dirt biker shows dirt bikers wildly weaving in and out of traffic and disobeying traffic laws, but also a police SUV chasing the dirt bike; not long after the video was shot, a dirt biker ran into a cop car.

When I covered the start of the police crackdown on dirt biking for Baltimore City Paper in the summer and fall of 2015, I frequently witnessed police chasing dirt bikers and was present at the aftermath of three collisions. I also heard many stories from bikers about being bumped by cops. Bikers even described cops driving up and tasing them.

In one incident I covered, on Aug. 30, 2015, a marked law enforcement car struck a dirt biker after he allegedly stopped his bike in the street; then police arrested him, claiming the bike was stolen. Multiple eyewitnesses disputed the official account of the accident — they said the dirt biker was chased and struck by the cop car — and the police later retracted a claim that the bike was stolen. In the end the dirt biker’s stolen property charge was dropped but traffic charges remained.

The City Responds

Since the GTTF scandal, the Baltimore City Council has called attention to police corruption, and, after GTTF member Jenkins admitted to stealing dirt bikes, to the Baltimore Police’s dirt bike crackdown. Today, there will be a public meeting held by City Council for “Increased Transparency About Police-Seized Property,” and along with a discussion of guns, drugs, cash taken by cops “over the last 5 years,” it also demands a “full account” of dirt bikes seized by police.

But activists are skeptical that the City Council will meaningfully address the over-policing of anything, especially dirt bikers.

“I have zero confidence in the Judiciary and Legislative Investigations committee to properly hold BPD accountable, and the meeting will be yet another dog and pony show, something we know all too well in this city,” says Baltimore activist Crawley. “Wheelie Wayne should not have had to pay $25k in bail money. The crackdown of dirt bikes is counter-productive, facetious, predatory and a waste of time.”

Crawley is referring to one of Baltimore’s most popular dirt bikers (along with Meek Mill affiliate Chino Braxton), DaWayne Davis AKA “Wheelie Wayne,” who was arrested in Aug. 2016 and hit with 15 charges connected to manually removing serial numbers, theft and allegedly running a “chop shop.” Numerous bikes and bike parts were found in his West Baltimore home, as well as engines with serial numbers filed off, a damning detail for sure, though a hard-nosed fix if your hobby is illegal and you’re well aware that police chase young black riders — his mentees.

Dirt bikers in the city say Wayne was targeted due to his popularity (weeks before his arrest, he appeared on a since-deleted police list of “dirt bike violators”). In Sept. 2017, Wayne agreed to serve 48 hours of community service and forfeited claims to seized dirt bikes and parts.

If Wayne had it his way, dirt biking wouldn’t be underground. He has been a longtime advocate of a legal dirt bike track. He is joined by others including B-360, a Baltimore non-profit that builds on young people’s dirt bike skills and teaches them engineering through dirt bike repair. But like so many non-carceral dirt bike solutions, it remains grassroots.

“The track would take care of public safety,” activist PFK Boom, who also supports a dirt bike track in Baltimore, told me in 2015. He recommended incentives such as additional time on the track for good grades and ticketed events where residents could gather and watch dirt bikers pop wheelies.

But for now, the track remains a pipe dream; bikers haven’t succeeded in breaking ground on public tracks in other cities. (A more modest “bike life” hub, Cleveland, nearly got a public dirt-bike track off the ground — until residents said they didn’t want the track in their neighborhood.) Meanwhile, dirt bikers think that Baltimore’s focus on bikers will take away from it actually focusing on public safety, especially in high crime cities such as theirs which had a record 343 homicides in 2017.

“Murder every day,” read a popular t-shirt designed by the dirt bikers depicting a police helicopter shining a light on a biker, “But the spotlight on bike life.”

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