Brooklyn Boro

The trio fighting to free innocent New Yorkers from prison

July 29, 2019 Noah Goldberg
The Legal Aid Society launched a small Wrongful Conviction Unit in March, run by Alfonzo Riley (left), Elizabeth Felber (center), and Thomas McCall (right). Eagle photo by Noah Goldberg

An appeals lawyer, a convicted murderer and an ex-detective for the NYPD walk into an office.

There’s no punchline. It’s the daily routine for Elizabeth Felber, Alfonzo Riley and Thomas McCall — the trio that runs the Legal Aid Society’s new Wrongful Conviction Unit, a small new bureau for New York City’s biggest and oldest public defense organization.

It’s a lean team, aided by other departments at the Legal Aid Society.

The unit launched without fanfare or announcement in March and is already arguing a case in Brooklyn for a man named James Davis, who was charged and eventually convicted of the 2004 murder of Blake Harper. The hearing on the case is before Supreme Court Justice Danny Chun and will continue Aug. 8.

“It’s compelling work,” Felber told the Brooklyn Eagle at the Legal Aid Society’s Manhattan offices. She is the supervising attorney of the bureau with previous experience in trials in Brooklyn Supreme Court and Brooklyn Federal Court.

While Davis’ is the only case they are currently arguing, the Wrongful Conviction Unit already has a queue of potential clients lined up. On Thursday, the team headed up to Sullivan Correctional Facility and spoke with three inmates who had applied to have their cases reviewed.

The unit finds clients in two ways. Some cases they get from the Legal Aid Society’s Criminal Appeals Bureau. Others, they get from incarcerated individuals who can apply directly to have their cases reviewed — at least 24 people have applied in this way since March. Felber and her team then investigate the claim and interview witnesses before making a final determination on whether a case can be made to prove the defendant’s innocence.

Only those convicted of a crime in one of the five boroughs can apply. The unit will investigate any type of conviction, though Felber says that so far, only people convicted of murder or sex crimes have applied.

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The unit differs from the Legal Aid Society’s Appeals Bureau because of the reinvestigation aspect, Felber said. The appeals unit mostly handles direct appeals after people are convicted and relies on what is already in the record. The Wrongful Conviction Unit is for those who’ve run out of other options, and can surface new evidence to seek to have the conviction overturned.

A copy of the questionnaire the Legal Aid Society sends out to prisons. Courtesy of the Legal Aid Society
A copy of the questionnaire the Legal Aid Society sends out to prisons. Courtesy of the Legal Aid Society

“The first thing we did was devise a questionnaire to screen our cases,” Felber said.

That questionnaire is distributed in prisons around the state for incarcerated people to fill out and send back to the team in Manhattan.

Felber is aided in her work by two men, an ex-cop and an ex-con. Their histories — in law enforcement and behind bars — are their greatest strengths, at least when it comes to their work.

Thomas McCall was a detective investigator for the NYPD for 22 years. In his post with the NYPD, McCall’s clearest memory is of interviewing arrestees at the precinct as he took their fingerprints. Now, instead of helping secure arrests, he works to get the ones that should not have happened in the first place thrown out.

“It’s better to have 10 guilty men go free than to have one innocent man sit in jail,” McCall said. “I couldn’t imagine, you know, sitting in jail, sitting in prison for a crime that I didn’t commit, and that alone really motivates me to continue this work.”

McCall investigates cases and speaks to witnesses in old cases during his investigations. He uses public records and social media to track down the witnesses who testified in often decades-old cases. People aren’t always excited to hear from him.

“At times people do talk,” said McCall. “People are pretty forthcoming. Other times people will close the door in your face. It’s a hurdle that you kind of have to get over, but it doesn’t mean you walk away,” he said.

In the James Davis case, McCall has found eight witnesses since he started with the unit in May.

The focus on wrongful convictions has intensified throughout New York City in the last decade. The Brooklyn District Attorney Office’s Conviction Review Unit — established under late-DA Kenneth Thompson in 2014 and continued under DA Eric Gonzalez — is lauded across the country by many defense attorneys and criminal justice reform advocates as a model for progressive prosecution. The unit has exonerated 26 people since it was founded.

Legal Aid’s Wrongful Conviction Unit submits its findings to the Conviction Review Unit, hoping that the DA’s Office will throw out convictions before even bringing them to a hearing.

Glenn Garber, director of the nonprofit the Exoneration Initiative, which provides pro bono legal assistance to convicted people fighting to have their cases tossed, says the field of investigating wrongful convictions has grown “a lot in the last 10 years.”

“I think that bureau is great,” he said of the Wrongful Conviction Unit at the Legal Aid Society. “There’s a lot of wrongful convictions and although we’ve come a long way in trying to understand and prevent them, the causes continue to exist. The more help we have in this field the better.”

Garber added that it’s great to have more nonprofit lawyers working in the field; they aren’t looking to bring civil cases against the city to make money, but are just looking for cases where they believe someone has been wrongfully convicted.

Alfonzo Riley notes that he comes to his paralegal job at the Legal Aid Society from a very different background than Felber and McCall. He was incarcerated at 18 for felony murder, meaning he was not the shooter in the case but was charged with murder anyway. He spent 30 years in prison and was granted clemency by Gov. Andrew Cuomo in 2018. While incarcerated, Riley got a bachelors degree and a paralegal certificate.

Riley found out he was granted clemency on New Year’s Eve of 2018. He was told by the superintendent of the prison he had been in for more than 20 years: Shawangunk Correctional Facility in Ulster County.

“She says, ‘Well you’re in trouble. No I’m just joking.’ Then she begins to read an email from the Governor’s Office saying I was granted clemency. When she just started reading that my mind just went almost blank. The feeling was amazing. My eyes started tearing up,” Riley said.

He spent the next four weeks in prison and was released Jan. 28, 2019.

Riley’s time in prison helps him identify wrongful convictions, since he knew people firsthand whom he thought were not guilty of the crimes for which they’d been convicted. Riley handles correspondence with incarcerated people that the unit represents. His knowledge of the law relating to wrongful convictions is expansive from his time studying in the law library during his 30-year incarceration.

“He is unusually schooled in the law on the issues we’re dealing with — Brady violations, ineffective assistance of counsel,” Felber said of Riley. “In addition to screening, he and I bounce ideas off one another.”

While they hope to grow as an independent unit, Felber says they will also be leveraging help from within the Legal Aid Society’s other bureaus — calling on trial lawyers and appeals lawyers for help on specific cases.

The job never stops for the trio. Even while on vacation, McCall found it hard to stop thinking about James Davis sitting in prison. Felber, after visiting inmates she believe may be wrongfully convicted, she said she felt heavy. Still, she tries to maintain some sense of humor.

“I used to joke that we should call the unit the Last Stop Café, she said, “because people have run out of hope and you have to just kind of start from scratch and reinvestigate.”

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