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 gun possession, 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