NEW YORK (BKDAO / News Release) – Brooklyn District Attorney Eric Gonzalez today announced that following a thorough investigation by his Conviction Review Unit (CRU), he will move to vacate the conviction of Sheldon Thomas, 35, who was convicted of a 2004 murder in East Flatbush. The DA will also ask to dismiss the indictment and free Mr. Thomas, who’s been incarcerated for over 18 years. The defendant was arrested based on a witness identification of a different person with the same name – a mistake that was first concealed and then explained away during the proceedings. In fact, the reinvestigation concluded that detectives were intent on arresting the defendant and used the faulty identification procedure as pretext.
District Attorney Gonzalez said, “We must strive to ensure fairness and integrity in every case and have the courage to correct mistakes of the past. That is what we are doing in this case, where an extensive reinvestigation by my Conviction Review Unit revealed that it was compromised from the very start by grave errors and lack of probable cause to arrest Mr. Thomas. He was further deprived of his due process rights when the prosecution proceeded even after the erroneous identification came to light, making his conviction fundamentally unfair. I am determined to continue doing this critical work whenever we discover a questionable conviction in Brooklyn.”
The defendant will appear in court today at 2:15 p.m. before Brooklyn Supreme Court Justice Matthew D’Emic in 320 Jay Street, 15th Floor.
The District Attorney said that three alleged gang members, including Thomas, were charged with killing 14-year-old Anderson Bercy and wounding another individual on December 24, 2004, in East Flatbush, Brooklyn. The evidence indicated that two guns were used and that the shooters were inside a white car. A witness initially identified two men she knew, who did not include defendant Thomas, as being in the car.
The case detective then asked to unseal the defendant’s prior arrest so he could use his picture in a photo array (that prior case involved the defendant pointing an inoperable gun at officers and resisting arrest). Before that request was completed, detectives obtained a photo of another Sheldon Thomas from a police database. They showed an array with that photo to the witness, who identified the wrong Thomas as being in the car with 90 percent certainty. Based on her identification, the detectives went to the defendant’s address – not to the address of the Sheldon Thomas whose photo the witness had identified – and arrested him. The defendant denied any involvement in the homicide, but the same witness who identified the other Thomas in the array also identified defendant Thomas in a lineup – effectively identifying two different people as the perpetrator. Thomas was then indicted along with the two others.
It wasn’t until a pretrial hearing in June 2006 that the array identification of the wrong Thomas came to light. After initially identifying the defendant as the Thomas in the photo array and testifying that he had never seen him before the arrest, Detective Robert Reedy, on cross examination, admitted that he falsely testified, and the defendant was actually not in the array. Another detective testified for the first time that the defendant got on their radar based on an anonymous tip and also conceded that, when questioned a few days after the murder, the defendant had told them that it wasn’t him in the photo array. (There is no indication the detectives memorialized this information and the partner’s claim that he had reported the array error to a prosecutor before the grand jury presentation was refuted in affirmations from prosecutors.)
Despite these revelations, the judge found that there was probable cause to arrest Thomas based on “verified information from unknown callers” and the fact that he resembled the other Thomas from the photo array. (Then-retired Det. Reedy was later disciplined following an investigation by the Internal Affairs Bureau.)
Before the trial started, the DA’s Office dismissed the charges against one of the three suspects, who the same witness failed to identify in a double-blind lineup and because prosecutors thought he had a credible alibi. Thomas stood trial with a codefendant, who allegedly threatened the victims two days before the shooting. The jury acquitted that codefendant. Thomas was convicted of second-degree murder, attempted murder and related counts, and was sentenced to 25 years to life in prison.
The CRU conducted a full reinvestigation and reinterviewed many of the witnesses involved in the case. It concluded that the defendant was denied due process at every stage, making his conviction fundamentally unfair. The reinvestigation found that detectives, particularly Reedy, repeatedly harassed the defendant after his gun arrest. That substantiated conduct contradicts the detective’s testimony that he had never seen the defendant before and can explain why he arrested him for the murder despite the lack of evidence.
The CRU concluded that the witness’ identifications of Thomas were prompted by the detectives. It also concluded that – despite assertions by police, prosecutors, the trial judge and an appellate panel – the Thomas in the photo array and the defendant do not look alike. Notably, in a study commissioned by the defense, 32 law students of color were shown a photo of the defendant (who is black) and then the photo array. Of them, 27 concluded the defendant was not in the photo array. Of the other five, only one thought the Thomas in the array was the defendant.
The CRU found no evidence that anonymous tips played a part in the police’s interest in the defendant as a suspect and concluded that, under the circumstance involving the erroneous photo array, there was no probable cause to make the arrest. It found the prosecutor’s tactic after the mistaken identification came to light – which was to discount the array because the witness wasn’t 100 percent sure – to be improper, since prosecutors had previously notified the defense that defendant had been identified in a photo array. The prosecutor also improperly elicited testimony that the witness saw the suspect whose case was later dismissed shooting from the car – without the jury knowing that the driver’s case was dismissed. Finally, the CRU identified serious errors by the defense counsel that were detrimental to his client and determined that judicial decisions were based on misrepresentations.
For all these reasons and others, the CRU recommended to vacate the conviction as “the errors undermined the integrity of the entire judicial process and defendant’s resulting conviction.” Because the evidence was and is defective, the case cannot be retried, and the CRU recommended to dismiss the underlying indictment.
To date, the work of the Conviction Review Unit has resulted in 34 convictions being vacated since 2014. Currently, CRU has approximately 50 open investigations.