Disney vacation alibi credited with freeing man after 24 years

24A New York judge Tuesday vacated the conviction of a man who spent nearly a quarter of a century behind bars for a Brooklyn slaying that occurred while he was vacationing in Florida.

Jonathan Fleming, 51, was found guilty in 1989 in the death of Darryl Rush in the Williamsburg neighborhood of Brooklyn and served the next 24 years and 8 months in prison, according to the Kings County district attorney’s office. He was released Tuesday afternoon.

Fleming has always maintained he was on a family trip to Disney World in Florida when Rush was shot to death early on the morning of August 15, 1989, in a dispute over stolen money. After years of reviewing documents and re-interviewing witnesses as part of a joint investigation between his attorneys and the Brooklyn district attorney’s Conviction Review Unit, it was determined that the only evidence tying him to the crime was an alleged witness who later recanted her statement.

“As you can imagine, after sitting in jail for 25 years for a crime he didn’t commit, he can’t help but feel vindicated,” said one of Fleming’s lawyers, Anthony Mayol. “On the flip side, that’s 25 years that have been stolen, that he’ll never get back.”

At his trial, defense lawyers provided family photos and home videos of Fleming in Florida around the time of Rush’s killing. But according to Taylor Koss, another of Fleming’s lawyers, they did not have evidence he was in Florida on the day of the slaying. The prosecution persuaded jurors to ignore the alibi.

Fleming told his attorneys he had paid a bill for phone calls made from his Florida hotel room the night before Rush was killed, and he believed the receipt was in his pocket when police arrested him. But authorities told the defense he had no such receipt, according to Koss.

In the course of the investigation, the Conviction Review Unit found the receipt in police records, time stamped and dated — solidifying Fleming’s claim that he was in Florida at the time of the killing, according to the district attorney’s office.

“This is proof of alibi that was basically purposely withheld,” Koss said.

The review unit also interviewed Fleming’s former girlfriend, who said she called Fleming the night of the killing while he was still at his hotel in Florida. The investigation found her story to be credible, with phone records to support it.

The prosecution also produced a witness who said she saw Fleming commit the crime.

According to Koss, the woman recanted her testimony weeks after Fleming’s conviction. She later testified in front of a judge that she was on parole and had been arrested with another woman for being in a stolen van the night of the killing. She said police persuaded her to give a statement against Fleming to avoid going back to jail.

Koss said the judge threw out her later testimony because she could not provide enough facts to back up her story.

A review unit search of police records years later came up with a timeline. The woman on probation was arrested with another woman on grand larceny charges and brought to the Brooklyn district attorney’s office, where she gave a statement. Within the hour, the investigation found, charges against her were dropped.

Koss said defense investigators even found a witness in South Carolina who claims to have been the getaway driver during Rush’s killing and who even identified someone they say is the real killer.

Judge Matthew D’Emic Tuesday vacated the conviction after a “careful and thorough review of this case, and based on key alibi facts that place Fleming in Florida at the time of the murder,” said District Attorney Ken Thompson.

Koss and Mayol say the next step is ensuring that Fleming has a way to support himself after he is released.

“He has no job, no career, no prospects,” Koss said.

“We’re suing everybody, let’s be honest,” Koss added, saying Fleming’s legal team intends to bring a civil rights lawsuit against the city and seek reparations from the state under a provision set up to redress wrongful convictions.

Thompson, who became district attorney at the beginning of the year, has already released two men who had been in prison for more than half their lives in connection with three killings after DNA evidence tore holes in their convictions in February.

Antonio Yarbough and Sharrif Wilson were teenagers when they were imprisoned. But after reviewing DNA evidence, Thompson said the previous convictions for the 1992 murders in Brooklyn would most likely not stand up in court and agreed the two men should be freed.

Those cases, as well as Fleming’s, are not connected to investigations into Detective Louis Scarcella, whose questionable tactics have led to a review of some 50 other cases, the district attorney’s office said.

On Monday, Thompson named Harvard law professor Ronald S. Sullivan, Jr. as special counsel to the district attorney for the Conviction Review Unit. Sullivan, who heads Harvard’s Criminal Justice Institute, will guide the group in future cases brought for review, according to the District Attorney’s office.

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