David Herion has been waiting for nearly three years to clear his name — after more than three decades in state prison for attempted murder.
Herion’s case is one of 36 pending before Brooklyn District Attorney’s Eric Gonzalez’s vaunted Conviction Review Unit, known as the CRU, including one that has dragged on for eight years.
But Herion, whose 45-year prison sentence was commuted by Gov. Kathy Hohcul last month after THE CITY highlighted that his victim was even pushing for a pardon, can’t speak on the status of his case, because of a cooperation agreement people have to enter before the CRU will consider their case.
“Mr. Herion didn’t commit the crime,” said his lawyer, Kathrina Szymborski Wolfkot of the MacArthur Justice Center.
“The governor recently commuted his sentence based on an application that highlighted his innocence, but true justice won’t be done until he’s been exonerated,” she added, saying she’s “grateful” the CRU is “reviewing his conviction” and “dedicated to righting past wrongs.”
The Brooklyn CRU was one of the first in the nation and has been used as a model for others in the city and throughout the country. Since its total redesign in 2014, it has recommended the exoneration of more people — 35 — than any similar division, according to Oren Yaniv, a spokesperson for Brooklyn District Attorney Eric Gonzalez.
But criminal justice advocates and legal experts want to know: How long can it reasonably take before a decision is made, especially when every day in prison can be a matter of life and death.
“The problem with actually doing something, which they’ve done, is that people want you to do it better,” said defense attorney Ron Kuby, who represented Thomas Malik, whose subway token-booth murder conviction along with two other people held for a decade before a CRU exoneration in July 2022.
Making It Easy
Overall, it currently takes 1.36 years on average before cases in the unit are concluded with either a recommendation for an exoneration or decision to let the original conviction stand, according to Charles Linehan, who took over the unit in January 2022.
Linehan, a former prosecutor at the Manhattan DA’s office who also worked on investigating wrongful convictions in the private sector, says he’s trying to narrow the investigative timeline to between six months and a year.
“That’s my goal,” he told THE CITY during an extensive interview. “We’re looking to correct mistakes that were made, get innocent people out of prison or otherwise exonerated, and learn lessons from it.”
He has also revamped the application process to a uniform 10-page questionnaire detailing basic information about each case. Previously, review requests were mostly submitted by defense lawyers but not all applicants were able to pay for representation.
Additionally, Linehan says he has created an internal “case management system” where all updates to each case are put into a computer system. That gives Linehan and his staff of eight lawyers the ability to independently view progress — or sudden hiccups — in each investigation.
“We can be in constant communication on the details of the case,” Linehan said, “and we don’t have to deal with trying to figure out where the last communication came from.”
Under his leadership, the unit has also gone from six attorneys to nine, with another one expected to be added this year, he added. He says that has helped clear a backlog of 70 or 80 cases that existed when he first took over.
In the last year and a half, the CRU has also exonerated six people — double the number of the prior two years combined.
Even one vociferous critic of the unit is cheering Linehan’s appointment and reforms.
“The best thing they’ve done is hire Charlie. He’s a good guy. A good lawyer. That’s definitely a step up,” said defense attorney Mark Bederow, who represents John Guica, whose 2003 murder conviction of college football player Mark Fisher in Ditmas Park Brooklyn was upheld by the CRU in 2015.
The changes in the unit come after Mark Hale, the former head of the CRU, retired in July 2021, leaving the division without an appointed chief for about six months.
Hale had helmed the unit since 2014 when former DA Kenneth Thompson completely overhauled the entire operation.
Under Thompson, the CRU voted to overturn 21 wrongful convictions in 2 ½ years and grabbed national attention as a model of reform. But the number of exonerations initially slowed when Gonzalez took over after Thompson’s death in October 2016.
Three convictions were vacated in 2017, zero in 2018, three in 2019, two in 2020, one in 2021, three in 2022 and two this year so far.
By all accounts, the original burst of exonerations was largely tied to new DNA evidence or cases related to disgraced former NYPD detective Louis Scarcella, who retired in 1999. Despite numerous official findings of bad practices, including misleading a jury in one case, Scarcella has never been criminally charged or faced any other formal sanctions.
Since then, the unit has been left with more complex filings reliant on new witnesses, evidence, and accusations of prosecutorial “tunnel vision” — zeroing in on the wrong person while ignoring other possible leads, according to Linehan.
“These are deep dive investigations and they take a lot of work,” said Linehan.
Sworn to Secrecy
The first step is identifying which cases they agree to take on.
That process involves Linehan and two deputies who review each application to make sure it meets a basic bar.
To start, they determine if whatever argument is being made would lead to a possible exoneration. If yes, they then determine whether there’s a legitimate investigative path to figure out whether the new facts each petitioner is pointing to about their case are true.
“It keeps out kind of the cases where we’re going to spin our wheels for a long time and get nowhere and waste a lot of time when we could be working on a real viable case where someone is locked up,” Linehan said.
The CRU prioritizes cases filed by people who are currently in prison, he noted.
Before lawyers in the DA unit begin a new probe, attorneys for the defendants are sometimes urged to sign so-called “cooperation agreements,”
Before lawyers in the DA unit begin a new probe, attorneys for the defendants are asked to sign so-called “cooperation agreements.”
That deal makes all documents and witness interviews and any other newly uncovered information “confidential” until the review is complete. Critics of the process say this step muzzles defense lawyers who might criticize the process, and contributes to some of the long delays.
“It’s a nondisclosure agreement,” said one defense attorney with a case before the CRU who asked not to be named. “It unfairly blocks us from saying anything.”
Most lawyers with cases before the unit have been reluctant to speak about it, including representatives at the Legal Aid and the Innocence Project.
Fiona Guthrie, chief spokesperson for the Innocence Project, declined to discuss the unit.
“Thank you for the invitation and for thinking of us but we are going to pass at this point,” she told THE CITY, adding the organization couldn’t talk because staff had “competing priorities.”
Yaniv, the DA’s chief spokesperson, defended the agreements.
“I think it’s completely sensible that if we work in cooperation, you won’t go to a third party to exert pressure on me,” he said, noting defense lawyers can share information with the press after the reviews are complete.
‘A Snail’s Pace’
As part of the CRU process, staff try to interview witnesses in person, which can sometimes take multiple attempts — and also involve travel, according to Linehan.
The unit’s longest running open case has taken eight years and counting largely due to a new criminal investigation it has triggered, Linehan said. The next longest case, which has taken three years so far, involves a person who was released from prison in 2004, he added. That person, Brian Kendall, was deported to Guyana the same year, records show.
The longest case ever seems to be the one involving three teen defendants who were all convicted of pouring gasoline into a subway token booth slot and then lighting a book of matches on Nov. 26, 1995.
The booth clerk, Harry Kauffman, 50, caught fire and died two weeks later.
Lawyers for the three defendants — Vincent Ellerbe, James Irons and Malik — argued for years that their clients were coerced into confessing by overly aggressive Brooklyn detectives, including Scarcella, who has been tied to multiple other exonerations.
The CRU took a decade before deciding to exonerate the men in July 2022, two of whom were still in state prison at the time. The case dragged on so long it extended over the tenure of three Brooklyn DAs.
Kuby, who represented Malik, said it was an “extremely difficult case” and “extraordinarily complicated given all the things done so catastrophically wrong.”
He can appreciate that the CRU wanted to make sure that “every stone was looked under” because it was such a high-profile murder, Kuby said.
“These guys spent an additional 30 years behind bars that they should not have,” he said of the time they collectively spent waiting while the CRU’s probe dragged on , calling it an “outlier case.”
Former Brooklyn DA Charles Hynes — who originally launched the CRU in 2011 with a staff of one — didn’t take nearly as long to bring the original case that convicted them, Vincent Ellerbe’s older sister, Evelyn, told THE CITY.
“They lost their whole lives. They had no childhood,” she said.
Her brother was 17 when he was arrested and interrogated by police without his mother in the room. They all later argued they were forced to confess by over-aggressive detectives, including Scarcella, who oversaw the probe.
Criminal justice activists are still pushing for legislation that would mandate minors talk with a lawyer before they waive their so-called Miranda rights and speak with detectives. The proposed measure — which did not gain enough traction in Albany last legislative session — would also require officers to make every effort to contact parents or guardians before a child can be moved from the scene of an arrest.
Despite the accolades, criminal justice reformers contend the CRU operates more like a band-aid and are pushing for a different framework that isn’t prosecutor driven.
Many are urging the Gov. Kathy Hochul to sign the Challenging Wrongful Conviction Act, which the state legislature passed in June. The bill would make it easier for people to get potentially wrongful convictions heard by a judge without depending on the whims of any prosecutor. The legislation also ensures people filing claims have the right to a lawyer.
“The only people the current system really works for is the prosecutors,” said Nick Encalada-Malinowski, the civil rights campaign director at VOCAL-NY.
“They are able to stage manage almost every exoneration — DAs like Gonzalez can free a few people while also protecting his office,” he added. “Less progressive DAs upstate can ensure that no exonerations happen at all.”
As for Herion, he’s set to be released from Sing Sing Correctional Facility on Oct. 10. He and his co-defendant, Michael Flournoy, have long maintained their innocence.
Herion said he was visiting his friend in the hospital when the shooting occurred. That friend has twice sworn in affidavits that Herion was at the hospital at that time.
While his case is being probed by the CRU, the Brooklyn DA supported his clemency application with Hochul, the spokesperson Yaniv said. The overall conviction review is ongoing, he added.
As for Ellerbe, he said he and his two co-defendants were happy the CRU exonerated them last year but they worry about other people still behind bars waiting for a decision.
“There’s a lot of guys that [are] still in there,” he told THE CITY, “but [the CRU] is moving at a snail’s pace.”
“Not to say that they are not good,” he added, “because had it not been for that unit being formed a llot of these cases wouldn’t even be looked at.”