Brooklyn DA to vacate conviction in 2008 murder case after key evidence was withheld

August 11, 2024 Robert Abruzzese, Courthouse Editor

Brooklyn District Attorney Eric Gonzalez, seen here, seeks to release Arvel Marshall, citing failures by the judge, prosecutor, and defense attorney that he believes led to Marshall's wrongful conviction. Judge Matthew D'Emic presided over the hearing on Friday, where Marshall was released. Photo: Jennifer Peltz/AP

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District Attorney Eric Gonzalez announced on Friday that he will move to vacate the conviction of Arvel Marshall, a Brooklyn man who served 16 years in prison for a 2008 homicide in Crown Heights.

The decision comes after a reinvestigation by the DA’s Conviction Review Unit (CRU), which uncovered that a critical surveillance video was not turned over to the defense and was likely never fully reviewed by law enforcement.

The 52-year-old Marshall, who was convicted of murder, had repeatedly requested that the video be shown during his trial but was denied. Marshall, who was convicted based on witness identification and circumstantial evidence, was sentenced to 25 years to life in prison and would have been eligible for parole in 2033.

“An investigation by my Conviction Review Unit found that everyone involved in this case — defense, prosecution, police, and the court — failed, depriving Mr. Marshall of a fair trial,” Gonzalez said. “A critical piece of evidence was not turned over, leading to this unjust conviction. The CRU’s work often reveals systemic failures, and this is a prime example of that. We will continue to expose, correct, and learn from every wrongful conviction that took place in Brooklyn.”

The surveillance video, which was recorded near the scene of the crime, shows two individuals, one of whom matched the description of the shooter given by witnesses. However, due to technical difficulties, the video was never played in court. The prosecutor asserted that still images taken from the footage were sufficient, claiming that the video had “no evidentiary value.”

The CRU’s review of the surveillance footage revealed that it showed a young man, fitting the description of the shooter, walking with another individual just before the crime and fleeing the scene immediately after. The footage, which had not been fully examined during the trial, suggested that someone other than Marshall may have committed the crime.

The CRU’s investigation also highlighted significant failings by Marshall’s defense attorney, who the unit concluded “abdicated his role as an advocate,” and by the judge, who was found to have “abandoned his role of a neutral arbiter.” The defense attorney reportedly did not adequately challenge the prosecution’s evidence, failed to watch the video in its entirety, and did not properly prepare Marshall for his testimony. The judge, meanwhile, dismissed Marshall’s repeated requests to view the video, telling him in front of the jury that the footage was “not relevant” without having seen it himself.

The CRU also revisited a pre-trial investigation that had uncovered a tip suggesting the shooting was orchestrated by a drug dealer who lived next door to the victim. According to the tipster, the intended target was a rival in a drug trade dispute, and the actual shooter was a 16-year-old who mistakenly killed the victim. However, this line of inquiry was not pursued during the trial.

The District Attorney’s Office recommended that Marshall’s conviction be vacated and the indictment dismissed. Marshall appeared in court on Friday before Brooklyn Supreme Court Justice Matthew D’Emic, where Gonzalez formally requested the vacatur.

Since its inception in 2014, the Brooklyn DA’s Conviction Review Unit has vacated 39 convictions, with approximately 60 more cases currently under investigation. The CRU operates under the supervision of Unit Chief Charles Linehan.