By Pete Kotz
By Michael Musto
By Michael Musto
By Capt. James Van Thach told to Jonathan Wei
By Kera Bolonik
By Michael Musto
By Nick Pinto
By Steve Weinstein
Listening to Pooh Bear's story in a 27th-floor midtown conference room with floor-to-ceiling windows and striking views of the Empire State Building, Kahn decided to join another attorney at the firm, Chris Withers, and take on Lonnie's case pro bono. Kahn immediately began poring over the records of the first trial, and was shocked by what he found.
"Everything that could have gone wrong did go wrong," Kahn says.
By the time Kahn agreed to join a team of Davis Polk attorneys working on his appeal, Jones had already been in custody for more than four years. He'd been transferred to different prisons three times, because of threats on his life from Bloods at the Downstate and Elmira facilities. In the showers at Elmira, an inmate came at him with a razor blade, trying to collect on the contract that hung around his neck like a price tag. Jones was able to fight off his attacker long enough for guards to tear the man off him, but it was only a matter of time before the next assault would come.
Along with Pooh Bear's account, Kahn's investigators turned up additional witnesses who proved crucial to the case. Acting on a suggestion from Maria, they found three women from Sea Park who all swore that Tawana had to be lying. She couldn't have witnessed the shooting, they said, because she was out with them having dinner at Nathan's when the murder had occurred.
Kahn and the other attorneys, meanwhile, won a retrial motion. A five-judge appellate panel unanimously agreed that Solano had acted improperly when he promised the trial jury that Tawana was telling the truth. "The prosecutor's vouching for the eyewitness went beyond the permissible bounds . . . and should not be repeated at the new trial," they wrote.
Lonnie Jones would have another chance to prove his innocence on January 22, 2007.
For the retrial, Jones's white-shoe lawyers brought out their big gun: Carey Dunne, a former New York prosecutor, is a Davis Polk partner who regularly tries cases for the likes of Credit Suisse and ImClone—when hundreds of millions of dollars are on the line. He is also fairly cynical, saying that he's comfortable defending people he doesn't believe are innocent. But after meeting the three witnesses who swore that the prosecution's single witness was lying, he was convinced he had a case of "actual innocence" on his hands.
Jones's retrial stretched for eight days. Again, the prosecution's only evidence tying him to the crime was the testimony of Tawana. But her credibility crumbled as Dunne called the three new witnesses, one after another, each saying that Tawana wasn't on her balcony when the shooting happened.
After eight days of testimony, the new jury took only two hours to come back with a verdict of not guilty.
"I am confident that I won't be able to top this in my career, and I've done this for 25 years now," says Dunne.
The audience erupted as the verdict was announced. Maria and Lonnie's mother were crying. Jurors were crying. The court officers, among the most jaded actors in the justice system, told Jones to skip the usual required paperwork so that he could leave immediately. One even offered to find a coat for him, since it was cold out that January day.
His lawyers threw a party to celebrate that night, renting out a swank midtown bar with drinks on the house for everyone. It was quite a night. But Jones was conspicuously absent from the revelry.
"He just wanted to go to his mother's house, sleep in a real bed, and leave town the next day," says Maria. And that's what the two of them did.
In 1984, New York passed the Unjust Conviction and Imprisonment Act, also known as "8-b." It was radical in its time. Before 8-b, a person who was convicted of a crime he didn't commit had no cause of action to sue for prosecutors' mistakes. The best the wrongly convicted could hope for was that the state legislature would approve a specific budget item, to pay them back for the inconvenience of undeserved jail time. These private appropriations were few and far between, requiring pressure from voters and the press to encourage lawmakers to act.
With 8-b, New York was one of the first states to offer the wrongly convicted the chance to file a lawsuit. Today, 25 states have similar legislation, but most either cap damages or mandate a specific formula on how judges should determine the monetary award. In California, a person unjustly convicted of a crime receives $100 for each day spent in prison. Massachusetts has no formula, but limits the amount to $300,000.
New York is one of few jurisdictions in which there is no limit on the sum of money that may be awarded, and judges here specifically reject a formula to compute those damages. If a New Yorker is able to prove that he was wrongly convicted and imprisoned, a judge must award the amount of money that will "fairly and reasonably compensate him," according to the statute.
Historically, however, 8-b claims are mostly unsuccessful, and damage awards are usually low. According to Irv Cohen, an attorney who has tried more 8-b claims than any other lawyer, establishing a claim is difficult because you have to show that you were affirmatively innocent, meaning the convicted has to prove his own innocence. Until this year, there were only 18 winning 8-b verdicts. And, as Cohen says, awards in excess of $1 million are "exceedingly rare."
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