For a Respected Prosecutor, An Unpardonable Failure

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.

by Joaquin Sapien, ProPublica, June 4, 2014 Leeper

In the late eighties, James Leeper was a fast-rising prosecutor known for his fairness and loyalty. Decades later, his alleged misconduct in Fleming's case has shocked colleagues and adversaries alike.

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 sue2014both 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.

Pages: 1 · 2 · 3 · 4

News and Issues, Legal, Women of Note, Senior Women Web, Articles, Sightings, What's New

For a Respected Prosecutor, An Unpardonable Failure

A Pupil Becomes a Foil

More Articles