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For a Respected Prosecutor, an Unpardonable Failure

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Posted on Jun 4, 2014

By Joaquin Sapien, ProPublica

    Jonathan Fleming reaches out to hug his mother Tricia Fleming as his exoneration was announced. Fleming was set free in April after spending 25 years in prison for a murder committed in New York while he was away on vacation in Florida. (AP/Bebeto Matthews)

This piece originally ran on ProPublica.

Leeper’s presentation won the day. The jury returned a guilty verdict. Fleming, 27, was sentenced to 25 years to life in prison.

It took 24 years, but eventually it became clear that there had been much more to Fleming’s alibi defense, and that Leeper had failed to disclose it to the jury.

The original case file from 1990 contained a time-stamped receipt showing that Fleming had paid an Orlando hotel phone bill just hours before Rush’s murder. The file also contained a letter from the Orlando Police Department informing Brooklyn detectives that Fleming had been seen at the hotel around the time of the killing. By law, Leeper was obligated to turn that material over to Fleming’s lawyer. But he had disclosed none of it.

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In April, Fleming was set free, the latest victim of a string of wrongful convictions involving the Brooklyn District Attorney’s office. But Leeper’s role in the case has packed a distinctive mix of shock and dismay.

Interviews with an array of current and former Brooklyn prosecutors, his adversaries in the defense bar, and at least one former Brooklyn judge have uniformly produced glowing testimonials to Leeper’s skill, compassion and integrity. People, even those with unflattering views of Leeper’s longtime boss, former District Attorney Charles J. Hynes, and the office he ran, find it close to impossible to accept the fact that Leeper knowingly hid vital evidence in a murder case.

“He was universally thought of as a model prosecutor,” said Dan Saunders, now a Queens Deputy Executive Assistant District Attorney, who once worked with Leeper in the Brooklyn District Attorney’s office. “You’ll hear that from everybody. He was a trustworthy and reliable guy. The kind of guy you want to entrust with the difficult work of being a government prosecutor. I hope people say something like that about me one day.”

To date, the district attorney’s office has said nothing about the Fleming case, other than to acknowledge that its Conviction Integrity Unit had discovered the receipt and additional evidence in recent months. The office offered no explanation for how or why the evidence had remained buried for so long, and, with respect to Leeper’s role in the case, has said only that it is “under review.”

ProPublica spent several weeks exploring Leeper’s career as a prosecutor in Brooklyn, and found an amalgam of genuine respect and personal troubles. Interviews with several current and former colleagues detail his quick, initial rise in the office, but also a long-standing struggle with alcohol. Those interviews with people who worked with Leeper show that eventually his drinking earned him a demotion two years ago.

ProPublica’s review also shows that Leeper’s career included a 1997 case in which he and the Brooklyn District Attorney’s office were accused of withholding evidence that might have established the innocence of a convicted murderer.

Leeper, in a telephone interview, refused to comment. He did not respond to further requests to discuss the Fleming case, his career or any issues with alcohol.

The reputation of prosecutors in Brooklyn has been battered in recent years.

Earlier this week the New York City Department of Investigation issued a scathing report finding that Hynes, among other violations, received political advice from a top New York state judge and misused public money to fund his ultimately failed 2013 re-election campaign. In a lawsuit, he’s also been accused of having long overseen an office of rogue prosecutors, where misconduct was condoned, even encouraged. Hynes has denied the charges in the lawsuit.

One of Hynes’s top lieutenants, Michael Vecchione, has been accused of railroading an innocent man on a murder charge, a claim he has vehemently denied. Another senior prosecutor left the office in 2012 after she was accused of having withheld exculpatory evidence in a high-profile rape case that soon was abandoned. Some 90 murder convictions involving the office are under review, many involving a retired police detective, any one of which might hold additional trouble for current or former prosecutors.

For all the accusations and embarrassments, however, few in the New York legal world would have predicted Leeper would be at the center of the latest tumult.

Until last month, Leeper still had a portfolio of cases he was prosecuting. On May 5, he was due in court to make another closing argument in a murder case. The family of 23-year-old Nikita Grebelskiy, a passenger in a livery cab who was shot in the head during a botched robbery, was awaiting justice. Leeper had already laid out all the evidence against 21-year-old Michael Magnan. When he was arrested the night of the crime, Magnan had a .380 caliber shell casing in his shoe, the casing matched the bullet lodged in Grebelskiy’s head, a gun found near the crime scene matched both the bullet and the casing, and there was DNA found on the gun that matched the shooter.

All that was left for Leeper to do was sum it all up in one final statement to the jury. But he didn’t show up.

He was nearly 40 miles away, in a hospital, recovering from a damaging bout with alcohol, according to numerous current and former colleagues.

“I’ve never heard of anything like this happening before,” said Martin Goldberg, Magnan’s defense attorney, who has worked on New York criminal cases for more than 30 years.

Three weeks ago, the Brooklyn District Attorney’s office, now run by former federal prosecutor Kenneth Thompson, announced that Leeper had been suspended. The office did not say why, and refused to answer any questions about Leeper’s career or his role in any possible misconduct.

Taylor Koss, a former Brooklyn prosecutor who spent years working alongside Leeper, has said Fleming intends to sue—both to learn the truth of what happened and to be compensated for the loss of more than two decades of his life.

“This man suffered behind bars for 25 years because this information wasn’t turned over,” Koss said.

A Pupil Becomes a Foil

Taylor Koss joined the Brooklyn District attorney’s office in September 2001. He was a young, ambitious lawyer, eager to realize his long-held dream of being a top prosecutor, one that he said harkened back to his teen-age days watching hours of Law & Order on television.

James Leeper was one of Koss’s early bosses and mentors. At the time, Leeper was running one of the most active bureaus in the office. Prosecutors in it handled nearly all criminal prosecutions in some of the most violent areas of Brooklyn, and the unit was known officially as the “Red Zone.” Koss said he wanted to shine there, and saw in Leeper a man to impress and to learn from.

“He had a reputation for being a very strong homicide prosecutor, that he earned it, as opposed to others who were thought of as being political appointees,” Koss said of Leeper. “People respected Jim for being a workhorse who earned his spot.”

Leeper himself had already been in the Brooklyn office for 14 years. He, like Koss, had his heart set on being a prosecutor in his first years out of law school. So much so that he applied twice, enduring a rejection by the Brooklyn office’s top brass in 1985, according to the office’s personnel records.

“An [assistant district attorney] plays two vital roles in society,” Leeper wrote as part of his second, successful application. “The position requires one to be an advocate within the criminal justice system as well as a neutral and objective representative of the people in the district in which he or she works.”

“In the latter role, one has the responsibility to thoroughly investigate all ‘leads’ in a case and to approach cases with a non-advocacy, or non-adversary, perspective. In that sense, one of the A.D.A’s most important duties is to ensure that a defendant’s constitutional rights are preserved and protected.”

The letter moved the district attorney’s office, then run by former U.S. Representative Elizabeth Holtzman, to hire Leeper away from private practice. By 1990, with Hynes having succeeded Holtzman, Leeper had secured a position as a homicide trial attorney, an impressively advanced assignment for a young man with only three years of experience as a prosecutor.

By the time Koss was christened as a fledgling prosecutor in 2001, Leeper was head of the Red Zone, and “everyone,” according to Koss, “wanted to work in the Red Zone.”

“It had the coolest people in it. The coolest bosses,” said Koss. “It was the place to be and I got it. I got lucky.”

Koss reported to Leeper for more than a decade, and he, like so many others who worked under Leeper, revered the man for his fairness and loyalty. Leeper stuck up for younger prosecutors when they made missteps; he took them aside to school them in the art of persuading a jury; he gave them opportunities to challenge themselves.

“He had implicit faith in me, and if you earned that trust, he’d never micromanage,” Koss said. “He believed I could handle myself. He only came to see me do one trial. I had a cooperating witness and he came to watch me put him on, and after that he never questioned me again. I wanted him to trust me because I wanted to be in his good graces. People wanted him to think you were a good D.A.”

But those who worked with Leeper came to see a troubled side of him, too. In interviews, more than half a dozen lawyers who worked in the office at the time said Leeper’s drinking became pronounced, and, as a result, a problem. Two years ago, according to numerous people in the office, Leeper’s drinking cost him his title. Personnel records show he was demoted from chief of the Red Zone back to the homicide bureau, but do not list a reason.

The district attorney’s office would not comment on the cause for the demotion.

For his part, Koss moved on to his own new job within the office: deputy bureau chief of the Conviction Integrity Unit, a small group of assistant district attorneys and investigators tasked with re-examining old convictions that might have been flawed.

Koss, in his new job, soon found himself in the uncomfortable and unpopular position of reviewing cases handled by prosecutors who had made their marks years before. He says, however, that he came to feel a sense of gratification in the work: finding evidence that might lead to an innocent person’s release, rather than a guilty person’s incarceration.

Koss’s first case wound up widely celebrated. Over a year-long investigation, Koss and his supervisor, John O’Mara, found evidence that an unemployed printer had been wrongly convicted of murdering a beloved Williamsburg rabbi in 1990. Hynes consented to the release of David Ranta following Koss’ investigation in March 2013.

“I’m sure people resented me for it, but I didn’t really care,” Koss said of the unit’s work.

In June 2013, three months after Ranta’s release, Koss left the office. But he said he had made a critical observation in his last year there, one that would stay with him in the coming months: Murder cases, especially those tried in Brooklyn in the early, bloody 1990s, could be seriously flawed, and so could the prosecutors who handled them.

Newly in private practice, Koss came to learn of an imprisoned man named Jonathan Fleming, and shortly afterward he joined Fleming’s bid for freedom. Fleming’s case was pending before the Conviction Integrity Unit Koss once helped run, and Koss realized quickly what lay ahead: He’d be challenging the work and perhaps the ethics of his onetime mentor.

 


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