A New York man, freed Tuesday after spending more than two decades in state prison, would not have been convicted if vital evidence had not been withheld by investigators, the man's lawyer alleged.
"Where the hell was this evidence all these years, and why wasn’t it turned over until 25 years later?" attorney Taylor Koss asked.
Jonathan Fleming, 51, was 27 years old when he was convicted of a murder that he insisted he did not commit. Now, 24 years later, he has been released from Washington Correctional Facility in Comstock, N.Y.
Brooklyn District Attorney Kenneth P. Thompson said in a press release Tuesday that his office was dismissing murder charges against Fleming following a re-examination of his case by the office's Conviction Review Unit. Thompson said he made his decision based on "key alibi facts."
Koss, along with attorney Anthony Mayol and a team from the private investigative firm Management Resources, had spent the past year collecting evidence to prove Fleming's innocence.
According to Koss, it was recently discovered that two vital pieces of evidence had been kept from Fleming's original defense team. That evidence, Koss said, shows that Fleming was in Orlando, Fla., on Aug. 15, 1989, the day Darryl Rush was gunned down outside a Brooklyn housing project.
"He told his attorney he had in his pocket at the time of his arrest a phone receipt from paying a phone bill at [a Florida] hotel late in the evening of Aug 14, 1989," said Koss.
"The receipt was pretty strong alibi evidence," Koss continued. "His attorney went to the district attorney's office and asked for the receipt, and they said they did not have it. The police detectives also denied ever recovering the phone receipt. Fast-forward 25 years and the case file is opened again, and there is the phone receipt."
The receipt shows that Fleming paid a phone bill at an Orlando hotel at 9:30 p.m. on Aug. 14, 1989 -- roughly four hours before Rush's slaying, Koss said.
That's not all.
"Additionally, a report from Orlando police was found in the file," Koss said. "[Orlando police], investigating it in Florida on behalf of New York investigators, said they found multiple employees at the hotel who saw Mr. Fleming. That was another great piece of evidence showing him in Florida on August 16."
Those two pieces of evidence, Koss argues, would have likely persuaded a jury not to convict Fleming of second-degree murder.
In his Tuesday press release, Thompson acknowledged that the hotel receipt would have corroborated Fleming's alibi. "Today's actions follow a careful and thorough review of this case, and based on key alibi facts that place Fleming in Florida at the time of the murder, I have decided to dismiss all charges against him in the interest of justice," Thompson said.
Aside from the most recent evidence in the case, Koss said there was other evidence presented at trial that should have persuaded the jury of Fleming's innocence.
When police questioned Fleming on Aug. 18, 1989 -- three days after the homicide -- he told them he had been vacationing in Florida with his family and had just returned. He provided police with the names of those family members, the name of his hotel and the stubs from the plane tickets.
"I explained to the Detectives that I could provide any and all pertinent information I could come up with to support my assertion that I was not in Brooklyn, New York or any of its surrounding counties several days before, during, or days after the murder of Mr. Rush," Fleming wrote in a 2010 statement that was posted on Causes.com.
But an eyewitness claimed that she was sitting next to a window in her house that night and saw Fleming shoot Rush. As a result, Fleming was officially charged with second-degree murder. He was found guilty the following year and sentenced to life in prison.
In the months that followed Fleming's trial, the eyewitness recanted her testimony, saying she had identified Fleming as the shooter in exchange for dismissal of an unrelated felony charge that she was facing. ''I was scared, nervous and on probation ... so I lied,'' the woman wrote in a signed affidavit.
The woman further alleged that she told investigators the truth prior to testifying at trial, but was threatened with arrest for perjury if she backed down.
The woman's recantation surfaced during Fleming's appeal hearing, but the judge let the jury verdict stand.
In addition to the evidence about Fleming -- both old and new -- Koss said they now believe they know who is responsible for the shooting.
"There are two new witnesses, one of which admits to being the getaway driver from the shooting," Koss said. "He has come forward and given a sworn statement. He said Mr. Fleming was not a part of this in any way, shape or form, and he has identified who he claims is the actual shooter."
Meanwhile, Fleming has a lot of adjusting to do, according to his attorney.
"He is very happy that this day has finally come, but it's an emotional day that's tempered by the realization that he had to suffer in a jail cell the last 24 years, knowing he was an innocent man," Koss said.
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