New York Law Journal: New Evidence Wins New Trial After 20 Years of Incarceration

6/21/12 3:47 PM

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New Evidence Wins New Trial After 20 Years of Incarceration

Andrew Keshner New York Law Journal 06-21-2012

A man incarcerated for more than 20 years on a murder conviction will have a new trial now that a Brooklyn appeals court has ruled that both a witness' recantation and a gang member's claim after trial that another person killed the victim was newly discovered evidence. The Appellate Division, Second Department, yesterday ordered a retrial for Derrick Deacon in connection with a fatal 1989 Brooklyn robbery. The decision reverses Brooklyn Supreme Court Justice Albert Tomei's (See Profile) denial of Deacon's motion to set aside the conviction on newly discovered evidence grounds. "We find that the likely cumulative effect of the newly discovered evidence and the recantation testimony established a reasonable probability that the result of a new trial would be a verdict more favorable to the defendant," the panel wrote in People v. Deacon, 2009-11331. Justices Daniel Angiolillo (See Profile), Thomas Dickerson (See Profile), Leonard Austin (See Profile) and Jeffrey Cohen (See Profile) sat on the panel, which heard arguments on Jan. 13. In 1990, Deacon was convicted in the fatal robbery of Anthony Wynn, who had been shot dead in the hallway of a Flatbush apartment building. At trial, defense witness Colleen Campbell testified she had seen the fleeing attacker, but added that she "barely glimpsed the person" and "didn't look" because "she was scared." Though Campbell testified she had known Deacon for about three years, she said she could not tell if he was the person she saw fleeing. During the police investigation, Campbell had described the assailant as 19 years old and 5 feet 7 inches tall. Deacon, at the time of the attack, was 34 years old and six feet tall. Deacon, who has maintained his innocence since his arrest, testified at trial that he was not at the scene during the shooting. The prosecution's witness, however, said he saw the shooting and claimed Deacon did it. After just three hours of deliberation, a jury convicted Deacon of two counts of second-degree murder, first-degree robbery and second-degree criminal possession of a weapon. He was subsequently sentenced by then-Brooklyn Supreme Court Justice Lorraine Miller to a 25-year-to-life sentence. Deacon's post-conviction challenge was sparked around 2007 when Emile Dixon, the now-incarcerated head of the Patio Crew, a Jamaican gang that controlled the Flatbush area where the murder occurred, managed to get to Deacon a 2001 interview the FBI conducted with Trevor Brown, a high-ranking gang member who became a government cooperating witness testifying against

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New York Law Journal: New Evidence Wins New Trial After 20 Years of Incarceration

6/21/12 3:47 PM

Dixon. In that interview, Brown said that gang member Paul Gary Watson, who was deported to Jamaica in 1998, had murdered Wynn. Deacon brought his post-conviction challenge in 2008. At a hearing on the motion, Brown testified to the facts surrounding Watson's alleged confession. Meanwhile, Campbell testified at the hearing that Deacon was not the man she saw fleeing, but she did not explicitly state that at trial because she feared potential retribution from the Patio Crew. Campbell also said that while she first told police Deacon was not the assailant, either the police or prosecutors leaned on her to offer "vague" testimony on the threat of taking away her children if she did not cooperate. Tomei denied Deacon's motion in 2009, holding, among other things, that there was insufficient indicia to indicate Brown's testimony was reliable. Tomei also held that Brown's claim of Watson's confession did not qualify as a statement against penal interest because it was not shown Watson was not available to testify. Meanwhile, Tomei held that Campbell's testimony was not credible and denied Deacon's effort to include testimony from gang member Dexter Bailey that another gang member also had admitted to participating in the murder and robbery. In its ruling, the panel observed that Brown's testimony as to Watson's confession met all the prerequisites to allow the admission of statements of non-testifying third party witnesses against their penal interests. One such prerequisite was the unavailability of Watson due to his deportation, despite Tomei's finding that it was not established that Watson was unavailable. The panel also said there was "sufficient indicia" to deem Brown's testimony reliable. The panel then turned to Campbell's hearing testimony, which it viewed as "credible and compelling." It observed that she offered a "credible reason" why she did not exculpate Deacon during trial, "namely, that she feared repercussions from the gang members whose activities permeated her neighborhood and who were the focus of the aforementioned federal investigation." Campbell's recantation was further bolstered by the fact that her description of the perpetrator's height and age matched Watson, the panel said. It also added there was no indication of a relationship between Campbell and Deacon that would have caused her to "inappropriately come to the defendant's aid." The Exoneration Initiative became involved with the case in 2008, filing the motion to set aside the conviction. Paul, Weiss, Rifkind, Wharton & Garrison, acting pro bono, handled the hearing on the motion and the subsequent appeal. "We are pleased with the court's decision, and view it as an important step in Derek's ultimate exoneration," said Roberto Finzi, a Paul Weiss partner who argued the appeal. "We're thrilled about the result. Derrick has now served 23 years in jail for a murder he did not commit. His cause of innocence muted for so long has finally been heard. It is rare an appellate court will make credibility findings that conflict with those of the lower court, but this is clearly a case that called for such a determination," said Glenn Garber, director of the Exoneration Initiative, which filed an amicus in the appeal. Assistant District Attorneys Leonard Joblove and Lori Glachman represented the Brooklyn District Attorney's Office. A spokesman said the office is reviewing the decision. Deacon, now 57, is incarcerated at Gouverneur Correctional Facility. @|Andrew Keshner can be contacted at akeshner@alm.com.

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