For a Respected Prosecutor, An Unpardonable Failure

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.

Acevedo's argument made an impression on Feldman, but ultimately failed to persuade the jury. At Acevedo's sentencing, Feldman said she had "no idea what the real circumstances were" that led him to kill.

"I suspect the truth lies somewhere between what you said and what the district attorney said," Feldman told Acevedo in court.

She then sent him away for 20 years to life.

But the case was back before Feldman eight years later. Something new had come to light: evidence that Acevedo's account known legally as a "duress defense" was genuine. A prosecutor in a subsequent, unrelated case had taken testimony from a man who said he was the person who had forced Acevedo to carry out the killing. The man said he had kidnapped Acevedo and ordered him at gunpoint to fire the deadly shots.

Leeper was the prosecutor who took the potentially exculpatory statement. The information gained in 1992, three years after Acevedo's conviction and five years before his release was never turned over to Acevedo. The man's account had surfaced in yet another unrelated Brooklyn case, and Acevedo's lawyers had brought it to the court's attention.

Feldman, presented with the new information, didn't waste much time. Acevedo pleaded guilty to a lesser charge and was released.

"I remember feeling that this guy had told a story at his trial that was true and just feeling very good about letting him out," Feldman said in an interview last month with ProPublica.

It remains unclear to this day what Leeper was thinking. The man who had confessed to forcing Acevedo to kill had also admitted to Leeper a long string of violent crimes. As well, Leeper had not previously prosecuted Acevedo and the circumstances of his conviction might well not have been known to him.

There is no evidence Leeper was in any way sanctioned. Feldman, in releasing Acevedo, appears to have only dealt with the new evidence, and not the question of Leeper's apparent failure. Still, a spokesman for the district attorney's office would years later acknowledge the failure to alert Acevedo to the new evidence was a mistake.

The law, after all, requires that information favorable to the defense be turned over by prosecutors as soon as they discover it, even after someone has been convicted.

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For a Respected Prosecutor, An Unpardonable Failure

A Prior Offense?

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