Dec 15 2009

Freedom Won for Innocent Man but Maybe at the Cost of Truth

Emel McDowell was 16 years old in 1990 when he was arrested for the murder of Jonathan Powell. From the moment of his arrest, he has maintained his innocence. Yesterday, in Brooklyn Supreme Court, before Judge John Ingram, I secured his release during a hearing where we were trying to establish his innocence. The Kings County District Attorney’s Office decided to offer Emel something he couldn’t refuse: They would throw out his murder conviction and allow him to plead guilty to manslaughter with a sentence of 6-18 years, guaranteeing his immediate release once he gets back to his upstate prison on Wednesday. As anxious as he was to prove his innocence, Emel (and his family who packed the courtroom today) jumped at the opportunity to be free. While it was a joyous scene in the courtroom, the mechanism of how it happened and the fact that no court will ever now declare Emel innocent, although he clearly is, are an indictment on our system, which places so much power and control in the hands of the government, particularly when dealing with indigent defendants.

OK, so here’s the story: October 27, 1990, a party is going on in the community room of a Brooklyn housing project; over 100 teenagers are in attendance, including Emel, his girlfriend and several of their friends. A fight breaks out in the room around midnight, between a few of Emel’s friends and a group including Jonathan Powell. The fight ends and Powell and his friends walk out into the courtyard of the project which is surrounded by four buildings between Gates and Quincy Avenues in the rough and tumble Bed-Stuy neighborhood. As a group of Emel’s friends walk past the Powell group, one pulls out a gun and shoots Powell in the chest and continues walking by. Powell, 18 years old at the time, dies shortly thereafter. That night, Danny Black, one of the boys involved in the fight in the community room from the Powell camp, names Emel as the shooter. Two others from the Powell camp say they saw the shooting as well. Two individuals from Emel’s camp tell police that they believe their friend Brian Blunt did the shooting based on his asking them to hide a gun for him as he “just did a guy” in the courtyard and needed to hide.

Emel ran as soon as he heard the shot. He was near the area where the shooting occurred, but several witnesses said they saw him helping his girlfriend over a wall as soon as the shot was fired. Hours later, when he was brought in for questioning, without a lawyer or a parent, he tells the police he saw Brian XXXXX do the shooting in the manner described by the others.

While at the precinct, Emel is placed in a lineup which is viewed by three people – all closely tied to Powell. Two of them Danny and Dee Thomas, are particularly close. Dee was a 14 year old boy who was the cause of the fight in the room; he had been picked on by some of Emel’s friends and Danny went and got Powell, who was large, to take care of the guys picking on Dee. Danny picks out Emel right away and when he is asked by the cop how he knows the suspect, he says “I had a beef with him last year.” When Dee views the lineup, he says “I’m not sure, its either 4 or 5 (Emel was 4).” He’s not sure, he says,  because the shooter had a hood on and he only saw part of his face. He leaves the room and curiously returns a few moments later to tell the detective he now realizes it was number four. The third witness, Powell’s cousin, Raheem, viewed the lineup but said he could not identify anyone since the shooter had a hood on obscuring his face.

Based on the two IDs, Emel is arrested. He is assigned Lou Candal, a court-appointed lawyer from the homicide panel. Candal does not go to the crime scene; does not interview Raheem; does not obtain the crime scene photos; does not ask for an investigator; does nothing essentially.

At trial, he asked the defendant’s mother to interview witnesses and take photos of the crime scene, even though the DA had advised him that they had 10 photos of the scene available. When they trial started, the pictures the Mom had taken weren’t of any use, because they were of the wrong location. So the jury never knew that Danny’s version of the events was physically impossible from the layout of the buildings. Likewise they never knew that Danny had said he was sure it was Emel because the shooter had on a black goose down jacket but Raheem had said that the shooter had a red jacket on. The jury never knew that Danny had testified that the shooter had on a hood covering his face in the Grand Jury (which was why he had to say he knew it was Emel from his clothing) while at trial he said he had clear view of the shooter’s face. I could go on with the trial lawyer’s deficiencies, but you get the picture.

So Emel was convicted and sentenced to 22 years to life (his first offense, age 17 at the time of sentence). Finally, 19 years later, we obtain a hearing before a judge to hear his claims. The first of his claims that we were trying to establish was that his lawyer was not effective and therefore he didn’t get a fair trial. (I figured, let me start with the easy one). Today, before the start of the hearing we got all of Raheem’s Grand Jury testimony for the first time and we learn that his version of the events matched directly with Emel’s and is in direct contradiction with the other two witnesses. This was never presented to the trial jury and both sides knew that this was the critical question: Was this evidence in the Grand Jury? I was so excited after seeing what I saw the key to Emel’s release in the transcript.

As we wee going through some preliminary matters, my adversary Ken Taub (who is Chief of the Homicide Division in the DA’s office) and I are arguing over some photographic evidence and how we are going to proceed. All my expected witnesses are showing up including two women (age 15 and 16 at the time) who told a mutual friend of theirs and Emel’s that they had seen Brian shoot Powell but did not come forward back then for fear of retribution. After we straighten the evidentiary issues out, I begin to present my case. I am 15-20 minutes in, still just reciting the basics of the case to the judge, when Taub asks for a short recess; Emel was brought back into the detention pens. I had observed Taub reading the Grand Jury testimony of Raheem – he knew the case, and knew what that testimony meant – He conferred with a colleague and then dropped a bombshell: He would be willing to concede the 440 motion and vacate the murder conviction, provided the defendant plead guilty to manslaughter. At first he offered 8-25 (the max for manslaughter in 1990) but when I rejected it saying Emel would never admit to shooting Powell and would not serve a parole sentence, he offered gun possession with 6-18 (which amounted to time served) and Emel would just have to say he was present, name Brian XXXXX as the shooter and that he knew Brian had the gun and intended to use it unlawfully. I looked right at Taub and said “Don’t do this. Don’t make this guy take a plea when you know he didn’t do this and that we should win this thing.” Taub’s reply: “There’s an offer on the table. Are you going to relay it to your client?” I said “You and I both know he’s going to take it. I’m asking you not to make him take it. Why not just concede on ineffectiveness? That way your office is off the hook?” Like the character in the Band classic “The Weight,” he just grinned and shook his head “No” was all he said. Utterly disgusted, I turned away and walked into the pens to talk to Emel. So now Emel had to choose: maintain his innocence, continue the hearing and roll the dice on winning the 440 OR accept the deal that guaranteed him freedom in a day or two. (He would have to go back upstate so that his time could be calculated by State prison officials). When he asked me what I thought he should do, I told him that this was his decision. I felt strongly we could win the motion but after all, I was walking out of the courtroom regardless. If we lost, I said, understand that since you refused to acknowledge guilt, you would be ineligible for parole and would likely serve 35 years in total before they would even consider letting him out. He asked could he speak with his mother and I said “Of course, but you know she’s going to say that you should say whatever you got to do to get out.” I also told him that he and his family and frankly probably everyone in that courtroom knew he was innocent. But he had to decide for himself – no else could make this call. It took him 10 minutes talking with his mother to decide. He took the plea.

So there he was, under oath admitting involvement for something he didn’t do. There I was standing slump-shouldered trying to hold back tears and anger. Everyone knew it was all fiction, but we stood there and let it happen. A DA at the counsel table said “Sometimes truth gets compromised in the pursuit of justice.” That was such a scary phrase to hear from a prosecutor, I wrote it down so I didn’t misquote him later on. I couldn’t even comment and I just had to hope he meant that would only occur to effectuate some measure of justice for the innocent.

It was an emotional moment in court with many of Emel’s family members crying and praising God,the judge and me – thankful that Emel would be home for his birthday (he turns 35 on December 23) and Christmas. While I was enjoying the moment also for Emel, I was professionally disappointed and chagrined that this was the manner in which the case ended. I couldn’t wait to get home myself and take a long hot shower.

Emel had written thousands of letters seeking assistance. He had made countless motions , many of them successful, to obtain portions of the DA’s file and the Grand Jury testimony. All of them contested by the Hyne’s office at every turn. He caught a huge break last month when Candal was found ineffective in a case from 1997 and his former client declared innocent by the court after a full hearing casting doubt on Candal’s ability and preparation (the arguments against him were dramatically similar to our case). It was that twist of fate that led this court to take a closer look at our case. And here we were at the finish line. But the government, probably trying to avoid the embarrassment of having the world know they convicted two innocent men on the backs of an incompetent lawyer, pulled a Vito Corleone and made Emel an offer he couldn’t refuse. They knew that with this plea, there would be no newspaper reporters covering the story and examining what their office knew at the time.  We never received an explanation for why the DA’s office did not put Brian in a lineup as well.  I also was going to argue that this was the first murder case I ever heard of where the prosecutor did not put crime scene photos into evidence.  The trial jury’s first question was  “Can we see pictures of the crime scene and a layout of the buildings?” But they had to be told they could not since there were none in evidence.  The only plausible explanation for the DA trying the case not putting in the pictures is  that he knew they would hurt his case. That alone should have been the last wake up call for the defense lawyer to realize there must be some fertile ground to pursue in the pictures.  To be fair, the existence of photos was fully disclosed to Candal, as was all of the other evidence favorable to Emel that he ignored. Our system is adversarial, with both sides obligated to zealously pursue victory on behalf of their clients.  But case law also holds that prosecutors serve dual roles in our system: yes they are adversaries representing the People, but they are also public officers who are required to make sure they are not over-zealous or participants in an injustice; it cannot be “win-at-all-costs.”

So what’s the moral of the story? I have no idea. Was I naive despite all my years in court to expect the DA’s office to just throw in the  towel and declare Emel innocent? Maybe. I guess that would have opened the case up to scrutiny and media attention in light of the recent case involving Candal and the DA’s office. For example, in the other case overthrown involving Candal, the DA’s office was admonished by the court for overzealousness for arguing the  murder was committed at close range to match the story of the sole witness identifying the defendant, when the autopsy showed that was impossible. The report had been exchanged with the  defense, but Candal never called the coroner or another expert to put that evidence in.  The decision made the DA’s office look bad; I expect they didn’t want another black eye from this case.  So while truth took a hit here, I guess I should take comfort in one thing:  On Wednesday, a scenario will play out that the McDowell family has been waiting for since 1990: Emel McDowell will be a  free man. Happy birthday buddy

24 comments

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    • Diana on December 15, 2009 at 9:46 am
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    Glad to hear an innocent person is now free. That’s great! Never thought a prosecutor would say that “Sometimes truth gets compromised in the pursuit of justice.” In a perfect sytem truth and justice should go hand in hand.–I can see how you were disappointed. Your case also made me think more of the dual role of the prosecutors..interesting.

    • Emel Mcdowell on January 11, 2010 at 1:52 pm
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    This was one of the biggest decisions of my life. As Oscar Michelen stated, it was either tell the truth and stay in prison or lie and go free. I wanted my freedom.
    But I ca not complain. Because there are many factually innocent men and women in prisons throughout the United States. In light of this, all that I can do at this point is be thankful to God for Oscar Michelen’s willingness to intervene on my behalf and get mne a chance to enjoy life as a phhysically free man. There are not many attorneys out there like him.

    • Emel Mcdowell on January 11, 2010 at 1:58 pm
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    This was a truly gut wrenching decision that actually brought tears to my eyes. It was hard to accept having to sacrifice the truth for freedom. But it was a decision that I made and preferred far better than the possibility of spending the rest of my life in prison for a crime that I did not commit.
    The reality is that there are many innocent men and women in Prisons across the country. The difference is that those men and women were not blessed to come across an attorney like Oscar who was willing to commit his time and resources to secure their freedom. So above all. I just thank God for Oscar getting me an opportunity to spend time with my family for the holidays after 19 years.

    • Nicole F. Martin on May 22, 2010 at 9:54 pm
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    Iam very good friend of the family..I know the hardship The Mc Dowells family endure in for 19yrs.. I was there every step of the way.. It was even harder to go visit a man that didn’t commit the crime stay behind while I get to home…God Bless EMEL.. he deserve everything good that god have instored for him…I’m bless to say Emel will overcome his imprisonment…

  1. Thanks for the comment Nicole and I agree that Emel will continue to overcome the hardships he has faced.

    • Terry Byam on February 13, 2011 at 7:57 am
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    I just accidentally found this posting on the net. Emel McDowell was one of my students when I was a teacher in BedStuy. He was an amazing kid…brilliant, loved to read and contributed intelligently to the discourse in my classroom. I enjoyed talking to him and had high hopes for him. I remember being very angry when I heard he was arrested. No way this amazing young man could have killed someone. I thought of him often and so it good to read that his nightmare has come to an end. God Bles you Emel and I am glad you at home. Finally, everyone knows what I always knew… Emel could not have killed anyone.

  2. Thank you Terry for your kind words which I will pass on to Emel. He is now working for a law firm and trying to make up for much lost time. The evidence of Emel’s innocence was clear but unfortunately his lawyer did not do a proper job, did not even go to the crime scene or interview the relevant witnesses. Thanks again

    • Kea on November 30, 2011 at 12:48 am
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    Wow…I am an old friend of Emel’s I’m glad to see he finally made it home… I don’t know if this message will make it to him but if it does tell him I wish him all the best in the years to come.

  3. Kea: Thanks for your post. I will contact Emel and let him know you reached out and wished him well. Emel is now working at the law firm of a friend of mine in NYC as a paralegal and is doing very well!

    • leslie manso on January 14, 2012 at 1:10 am
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    John powell is my brother the victim we were just notified that you were released so if you did not do it then who did this is not a joke my family has been through alot since the lost of my brother i would like to meet you emel

    • leslie manso on January 14, 2012 at 1:20 am
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    I am the sister of the victim we were not notified of any appeals my family just found out last year that you were released.I would like to meet with you

    • ashley powell on January 15, 2012 at 6:52 pm
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    Dear mr.dowell
    The person who was murder name was John Powell not Johnathan Powell.Im am John powell sister Ashley powell. Mcdowell you say that you did commit the murder in you plead guitly because they gave you a deal or no deal.so if u new for 19 years in also from day one that you did not do this why didnt you just keep saying that you did not commit the murder or through the years use internet,write letters,talk to people reach OUT that you did not do the murder or have your family contact some people of your innonects.Im not hear to argue with YOu just tryin find out information about my brother case .im happy that you home, you have a change of life in a second chance in life.Too mad john powell can never have a second chance of life. you say ,you change in are out to help the youth then help john powell seek justice and continue to help other seek justice for people in a sisuation like you BECAUSE THERE IS A LIAR OUT THERE SOMEWERE.

    1. Dear Ashley: Emel has protested his innocence from the very beginning and all the way through to his release. His mother and other family members had been writing letters as well, trying to keep his hopes up. Immediately after his conviction all those years ago, Emel set out to prove his innocence. He wrote hundreds if not thousands of letters looking for help after his appeal was denied. He finally contacted a not for profit organization called Centurion Ministeries which helps the wrongfully convicted. They reached out to me but I already had a few such cases on my plate and could not handle Emel’s at the time(probably around the year 2000 or so). Still Emel wrote and fought to prove his innocence, until finally, he re-contacted me directly and I took the case on. Emel plead guilty to possessing a handgun (even though he di dnot have one on teh night of he incident)out of conveniecne and to finally get out. Read the post: The Brooklyn DA’s office offered him the plea deal knowing it would be too sweet a deal to resist and to make sure there was no public hearing about this case which was a travesty of justice. Your brother was murdered but definitely not by Emel McDowell. If you would like to discuss this further contact me at omichelen@cuomollc.com

  4. Leslie – I will reach out to Emel. The post above details some of what we know of the crime and there are many other details we found out in investigating the case that establish Emel’s innocence beyond doubt. I am sorry if this opened old wounds for you and your family. Mr Powell’s murderer is still at large. You can contact me at my law firm through my email omichelen@cuomollc.com if you want to discuss this further.

    • Emel Mcdowell on April 1, 2012 at 12:15 pm
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    Mr.Terry Byum was a teacher who worked extremely hard to help me and others like me prepare ourselves for a life beyond what many believed that we could become. For the record I WAS NOT involved in the incident leading up to or causing the death of John Powell. So Mr Byum you are correct. Unlike many others. You do know me. Thanks for always believing in me.

    • Emel Mcdowell on April 1, 2012 at 12:38 pm
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    To The general public finding a resolution to a wrongful conviction is easy. Just keeping saying that you’re innocent and one day it will bear out. 10, 15, and even 20 years later. Unfortunately that is not always true. That is why I am actively involved in cases of men and women who are wrongly convicted.

    • Emel Mcdowell on April 1, 2012 at 1:05 pm
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    It is the discussions had here and the lack of discussions on topics of what does the wrongly convicted think, what is that experience like, why do we make decisions that we do make, that is the reason for an upcoming DVD project with a leading Urban novelist exploring the journey to freedom from a man presently incarcerated for a crime that he didn’t commit. Hope fully the public will receive and absorb the information provided.

    • Alicia on May 22, 2012 at 4:27 pm
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    I am jhon powell sister i will like to no what makes u innocent u saying that brian blunt is the killer why u didnt reach out to my family and say sorry if u didnt do it or visit my brother grave if it wasnt u and let him no that u are not guilty that u didnt kill him to me a innocent man stands up for his rights what was your rights that u was in jail all this time and u no that u didnt do it i see your family is happy to see that you are home and that u are a free man and u will soon to begin a new life but my brother life was taken away u may have proof to everyone else that u are a innocent man but i hope that when ur time come i want u to proof to the father above

    1. Alicia: I am very sorry for your brother’s loss but Emel did not commit the crime. He does not have to go to your brother’s grave to express his remorse or do anything further than he has already done – serve years upon years for a crime he did not commit. He has always maintained his innocence and filed motion after motion to prove his innocence ever since he was sentenced. We established that the one alleged eyewitness could not have seen what he said he saw from where he was at the time of the shooting. We also uncovered a witness statement and grand jury testimony from another eye witness -who was someone on John Powell’s side of the argument and who was right at the scene that described the shooter – in clothes that did not match what Emel was wearing that night. Emel’s defense lawyer never looked at that. When the DA saw that, they decided to let Emel go free.

  5. I really would like to meet u emel mcdowell in person

    • Tiffany on January 8, 2015 at 2:53 am
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    This is an amazing/scary/heartfelt story!! I read a small amount about it in a book i picked up at the library called “Innocent: Inside Wrongful Conviction Cases” by Scott Christianson. Although there are a few slight differences in the book from your article, such as the fact that the book names the “more likely suspect” as Baron not Brian. (It also shows a copy of a letter to Mr. McDowell while imprisoned from “Baron”.) Anyway, as of the books publishing in 2004 Emel was still being held for this murder that seemed so obvious that he did not commit!! So i had no choice but to google the case and see if that had changed since then. When i first pulled this article up i was so relieved (yet not really surprised) to see that he had in fact been released; HOWEVER… what i was NOT expecting was the strings that came along WITH his freedom!!! It is truly sad and heartbreaking to think that this is real!! 19 years of hell on Earth for someone else’s sin, and STILL no justice!!?!?! I can imagine the happiness it’s brought him and his loved ones to be home, but such a shame it had to come at a cost!! Smh We can only pray for 1 day a truly fair justice system we can honestly believe in. Gob bless both of you! #ModernDayJoeb

    1. Thanks so much for your comment and support – I will pass it on to Emel who is doing great by the way since his release. While it is was wonderful to secure his release, it was bittersweet. Had this case come up now with the current administration, Emel would have gotten the full measure of relief.

  6. Oscar–my best to you and Emel. He’s a wonderful, positive guy.
    Scott Christianson

    1. Thanks Scott Will pass it on

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