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Yet another example of the danger of relying on eyewitness testimony

Ohio man freed after another man confesses to crime

Cuyahoga County Courthouse

Yet another example of the danger of relying on eyewitness testimony

Ohio man freed after another man confesses to crime

A Cuyahoga County man who was just about to get a long prison sentence has been released after another man confessed to the same crime.

Deontae Wilson was “minutes away” from being sentenced in July when word broke that another man may have been responsible for the crime. Wilson was released from jail in August after prosecutors determined he could not be guilty.

The case shows the dangers of relying purely on eyewitness testimony to convict someone. There was no physical evidence Wilson was guilty, but both victims identified Wilson as their attacker. The office of Cuyahoga County Prosecutor Michael O’Malley chose to prosecute based on their eyewitness testimony.

Wilson was convicted of 14 counts of aggravated robbery, felonious assault and aggravated burglary in February.

According to the National Registry of Exonerations, a man with a gun confronted a 32-year-old woman in her driveway in Cleveland and demanded money. The woman was then forced into the basement of her home, where the assailant and another man tied up the woman, her boyfriend and her nine-year-old daughter. The two men robbed the house and the woman was physically assaulted.

When the woman told her landlord what happened, she mentioned that the first man had a missing tooth. The landlord thought of Wilson, whose tooth is also missing. He pointed out a photo of Wilson on Facebook and the woman positively identified him as the man who attacked her.

She and her boyfriend both testified that Wilson was the man who attacked them, although the child was unable to say if it was Wilson. Common Pleas Judge Nancy Fuerst found Wilson guilty after a three day trial.

While Wilson was awaiting sentencing he told his lawyer that another man in the Cuyahoga County jail, who also had a missing tooth, had admitted to him that he was the one who had committed the robbery. The lawyer informed prosecutors and the judge on the morning Wilson was supposed to be sentenced, and the sentencing was delayed while the issue was investigated.

Three weeks after Wilson was originally scheduled to be sentenced prosecutors vacated the conviction and Wilson was let out of jail. The motion to vacate said Wilson “cannot be guilty of this matter beyond a reasonable doubt.”

For years experts have said eyewitness identification is unreliable, but prosecutors have continued to trust it.

The Innocence Project has said “Eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in more than 70% of convictions overturned through DNA testing nationwide.”

California prosecutor punished a second time for conduct in prosecuting high profile child molestation case

California prosecutor punished a second time for conduct in prosecuting high profile child molestation case

The State Bar of California has given a public reproval to a San Mateo prosecutor after ruling that she made false statements about a potential witness in a criminal case.

Under a settlement agreement, Deputy District Attorney Melissa McKowan stipulated to one count of violating the business and professions code while she was prosecuting the child molestation case of William Ayres. It is the second time McKowan has faced discipline due to her conduct in the Ayres case.

The arrest and prosecution of Ayres generated national attention because he was a prominent child psychologist before he was arrested and charged with molesting numerous underage male patients.

Ayres first trial in 2009 ended in a hung jury. Before he was to be retried in 2013, Ayres pleaded no contest to the charges and was sentenced to eight years in prison. He died in 2016 while still locked up.

After Ayres’ first trial ended in a mistrial, journalist and victim’s advocate Victoria Balfour expressed concern about McKowan’s conduct and filed a complaint against her. In that complaint, Balfour accused McKowan of lying to a victim’s mother about having talked to a potential witness who could rebut Ayres’ defense that his physical examination of patients was proper.

McKowan later admitted she hadn’t contacted that potential witness and the San Mateo District Attorney’s Office suspended her for three days and placed a formal reprimand letter in her file in 2012. The California Bar also issued a private reproval against McKowan in 2013.

McKowan’s misconduct, however, continued. In May 2013, she sent an email to the father of another child who claimed Ayres had molested him and lied about Balfour’s earlier accusations against her. She wrote: “Every agency that has been forced into investigating this case by (Victoria) Balfour has found that her accusations are entirely false and have no bases whatsoever.”

Robert K. Sall, special deputy trial counsel for the State Bar, said McKowan’s email contained information that the prosecutor knew was not true, and Sall lodged additional disciplinary charges against her. As reported in The Almanac, “[i]n the complaint, Mr. Sall says that neither the DA nor the state bar found that accusations by Ms. Balfour, a victim’s advocate, to be ‘entirely false’ or to have ‘no bases whatsoever,’ adding that Ms. McKowan ‘willfully violated Business and Professions Code … by engaging in dishonesty and moral turpitude.’”

McKowan ultimately agreed to the reproval after admitting that she had engaged in “misrepresentation.”

Balfour, who has “been credited for shedding light on Ayres’ crimes after a victim confided in her,” blamed the District Attorney’s Office for what she described as delayed accountability.

“This all could have been avoided seven years ago had the DA not ignored my complaints,” Balfour said. “This is about victims’ rights and having the victims be treated with respect. It shouldn’t have to be this hard to get the DA’s office to be held accountable for its actions.”

As part of the settlement, McKowan is prohibited from commenting on blog posts or social media about the Ayres case. She is still a deputy prosecutor in the office of Steve Wagstaffe, who said it wasn’t appropriate for him to comment.

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Brooklyn district attorney candidates spar for title of ‘most progressive’

Waseem Salahi

Brooklyn district attorney candidates spar for title of ‘most progressive’

In Bedford-Stuyvesant’s historic Mount Pisgah Baptist Church on Tuesday night, candidates vying for the Democratic nomination in the race for Brooklyn’s next district attorney gathered to compare their progressive track records and reform-driven plans. The forum, hosted by Faith Over Fear, a “faith and justice coalition,” focused heavily on police accountability, the protection of immigrants, cash bail, and racial disparities in the criminal justice system.

“I’m the true progressive candidate in this race,” candidate Marc Fliedner, a former homicide prosecutor, told the audience as he described his primary goals for Brooklyn.

Fliedner’s tone and versions of his claim were reiterated by candidates throughout the night as they answered questions, gratifying a crowd that cheered for answers that seemed to reflect an understanding of racism and inequity in the criminal justice system. Anne Swern vowed to make change happen on “day one,” and later noted that she would assess who in the office is “being unfair” and remove them.

“I will not only talk about reform, but I will actually do reform,” said Swern. The candidate, who has worked for both the district attorney’s office and Brooklyn Defender Services, later said she thought “this whole forum could be about racial disparities.”

Patricia Gatling, the former commissioner for the city’s Commission on Human Rights and assistant district attorney to former Brooklyn District Attorney Charles Hynes, also emphasized a desire to tackle disparities in prosecution and policing.

“Justice must be meted out fairly across the borough,” said Gatling. “Not just in black neighborhoods, not just where poor people live. That is the problem.”

Gatling’s responses also indicated an interest in increasing the transparency of the office, including making more data and transcripts publicly available on the office’s website.

New York City Council member Vincent Gentile said as Brooklyn’s next District Attorney, he would draw on his strong relationships with labor unions. (The proposal garnered meek applause.)

The elimination of cash bail, particularly for defendants facing low-level, nonviolent crimes, was a more divisive topic. Candidate Ama Dwimoh said she wouldn’t support its use it for low-level offenses, and Fliedner said he wanted to end the use of cash bail “throughout the country,” and noted he wouldn’t “take money from bail companies,” referring to Acting District Attorney Eric Gonzalez’ choice to accept campaign contributions from bail bond companies. (Gonzalez later returned the money, and did not respond to Fliedner’s comment.)

Gatling agreed that the use of cash bail is problematic, and suggested she would increase the use of ankle monitors for pretrial supervision in lieu of detaining people. Gentile stopped far short of agreeing that the use of cash bail should end, saying instead that he supported its reform and believed the state should “mandate that judges have before them the financial status of the defendant” when making pretrial decisions.

Tension escalated when candidates were asked if they believed people of color are punished disproportionately in Brooklyn. None dared dispute the claim — though Gentile suggested the borough needed better data collection on racial disparities in prosecutions before he could create a “roadmap” for change.

Fliedner, who is white, noted that slavery is America’s “original sin,” before announcing that he would say something “nobody else at this table says out loud … Black lives matter. I say it, I’ve marched.” The crowd cheered, but Dwimoh was less pleased.

“I don’t have to say, ‘Black Lives Matter,’” Dwimoh retorted. “I am a black woman in America. I live it. You sit here and say I have to ‘say it?’ How dare you.”

The crowd roared. Gonzalez also reminded the audience that his experience as a Latino man and his Brooklyn upbringing, during which he felt “over-policed and underserved,” gave him insight and empathy into the experiences of young men of color in Brooklyn. The acting district attorney leaned heavily on his close relationship to former District Attorney Ken Thompson, whom he replaced after Thompson’s death in 2016, and projected a broad message of “safety and fairness” as his primary goals.

One audience member asked the contenders if they thought any “broken windows” offenses should be prosecuted.

Dwimoh said she would never prosecute any of those minor offenses, such as public urination, littering, and low-level transit-related crimes. She noted that as a policy, “broken windows” disproportionately impacts black and brown New Yorkers — “people that look like me.” Fliedner agreed, observing that “broken windows” policing can be “inconsistent with public health policy,” such as targeting people struggling with substance abuse for possessing syringes, or using the possession of condoms as a pretext to arrest sex workers.

Fliedner also pointed out that the prosecution of “broken windows” offenses can endanger immigrants: “There are ICE teams waiting in the criminal courts to apprehend [immigrants] and take away their lives.”

Swern called “broken windows” a “failed policy” that “fosters fear” in immigrant communities. Gonzalez dodged the “broken windows” question, diverting the conversation to the work he has done to shield immigrants from deportation, such as hiring immigration attorneys.

“My obligation is to protect the people of Brooklyn no matter where they came from, or how they got here,” said Gonzalez.

While some candidates emphasized past and current connections to the Brooklyn District Attorney’s Office, implying those relationships would be beneficial, Gentile pointed out that he is “the only one with no connections” to the office — a separation that he said would help him create a fresh start, with no allegiances to tiptoe around. In a similar vein, Dwimoh reminded the crowd that she was the only candidate that had always supported Thompson, but never Charles Hynes, who held the office for 24 years before losing to Thompson in November 2013. (Hynes was accused of illegally spending money seized by his office from drug dealers on his campaign, though prosecutors ultimately dropped the investigation.)

New York City’s primary election is on September 12th. With no Republican competitors on the ballot, the candidate that wins the primary will presumptively be Brooklyn’s next District Attorney.

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