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Jonathan Wheeler-Whichard

Other New York Murder Cases with Inadequate Legal Defense
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On April 20, 1996, Joseph Foster was fatally shot in the lobby of the apartment where he lived at 153 Marcus Garvey Boulevard in the Bedford-Stuyvesant neighborhood of Brooklyn, New York. Police soon arrested 16-year-old Jonathan Wheeler-Whichard after witnesses identified him as the gunman.

At the time of his arrest, Wheeler-Whichard was free on bond after he was charged in February 1996 with arson. He rejected an offer from the prosecution to plead guilty to the arson in return for a sentence of one to three years in prison.

In April 1997, Wheeler-Whichard went to trial in Kings County Supreme Court. The prosecution’s case centered on the testimony of Sandra Woodard, and an acquaintance of Wheeler-Whichard named DaShaun Reed.

A pathologist who performed the autopsy testified that Foster died of a gunshot wound. A detective testified that he recovered a .32-caliber weapon from a garbage bag outside of the building that based on a firearms analysis, was the gun fired the shot that killed Foster.

Woodard testified that she saw Wheeler-Whichard confront Foster at the door of the elevator in the lobby of the building. After arguing about money and “stuff,” she saw Wheeler-Whichard pull out an object, and point it at Foster. She said she then heard shots fired and saw Foster fall down and cry for help. Woodard told the jury that Wheeler-Whichard threatened her as he left through the back door of the building. Woodard said she went out the front door and called 911 from a pay phone.

Reed testified that he and his cousin Dre encountered Wheeler-Whichard as he ran up a rear stairway between the first and second floors of the building right after shots were fired. Reed said that Wheeler-Whichard expressed regret for what he had just done. Reed said that he and Dre then went with Wheeler-Whichard into an unspecified second floor apartment. Reed also testified that he saw Wheeler-Whichard attack Foster with a bat on two occasions in the past. After one of those attacks, Foster retaliated by slashing Wheeler-Whichard on the side of his face, Reed said.

Reed told the jury that on the morning of the shooting, Wheeler-Whichard had pointed to his facial scar in a local pizza parlor and announced to all within earshot that he was, in effect, seeking revenge.

Reed also testified that on the morning after the shooting, he heard Wheeler-Whichard tell Wheeler-Whichard’s mother that he had tossed the murder weapon in the garbage chute. As a result, police had recovered the .32-caliber revolver.

On April 15, 1997, the jury convicted Wheeler-Whichard of second degree murder and criminal possession of a weapon. On May 7, 1997, at his sentencing hearing, Wheeler-Whichard was asked if he had anything to say. “I feel sorry for Mr. Joseph’s family, but I didn't do it, that's all I have to say,” Wheeler-Richard said. Kings County Supreme Court Justice Herbert Lipp sentenced him to 25 years to life in prison. On May 29, 1997, he pled guilty to the arson charge and was sentenced to seven to 14 years in prison to be served concurrently with the murder conviction sentence.

His convictions were upheld on appeal. In 2007, after filing a pro se motion for a new trial, attorney Lynn Fahey, of Appellate Advocates, who had represented Wheeler-Whichard on appeal was appointed to represent him once more. Fahey filed a revised motion and Justice Joseph McKay presided over an evidentiary hearing in April 2009.

At the hearing, Reed recanted his trial testimony. He said he was not at the scene, but driving back to Brooklyn from the Bronx at the time of the shooting. He said he learned about the shooting later that day from Dre, his cousin.

Woodard died in 2005. The motion to vacate Wheeler-Richard’s convictions contained a 2007 affidavit from a friend of Woodard claiming she recanted to him, and that at the time, she was paid drugs for her false testimony.

Wheeler-Whichard testified that he was with friends in an elevator in the building when they heard the shots fired. Four witnesses who were with Wheeler-Whichard corroborated that testimony and two other witnesses corroborated parts of the alibi but not at the very moment of the shooting. These alibi witnesses testified to being on an elevator with Wheeler-Whichard when they heard shots fired as the elevator ascended to the fourth floor of that building. Wheeler-Whichard lived in apartment 4G with his family. Wheeler-Whichard and the witnesses testified that they had just left a nearby party celebrating the birthday of Wheeler-Whichard's two-year-old niece.

Wheeler-Whichard’s trial defense attorney testified and said he had no memory of the case. He insisted that neither the exhibits nor the trial testimony that was brought to his attention during the hearing refreshed his recollection.

On July 30, 2009, Justice McKay granted the motion and vacated Wheeler-Whichard’s convictions.

Justice McKay credited the testimony of the alibi witnesses. “Without any hint of rote adherence to a script, each of the witnesses testified credibly and consistently to essential facts of the alibi, the preceding family party, the shots heard in the ascending elevator or in the 4th floor hallway, and gathering in apartment 4G,” Justice McKay wrote.

“The overriding theme struck by the prosecutor on cross-examination of each defense hearing witness was their failure to take any decisive remedial action when defense counsel rested without calling any of them as witnesses at trial,” the Justice noted. “They were repeatedly asked why they did not complain to the Court or more vociferously complain to the defense attorney and why they remained inactive until the instigation of this…motion years later. While this may have been a legitimate avenue of inquiry, the challenging and repeated nature of the questioning along this line demonstrated to the Court a lack of appreciation for the palpable powerlessness felt by each of these witnesses, who were for the most part unsophisticated and unschooled in the ways of the criminal justice system. Their failure to do more was quite understandable under the circumstances, and in the eyes of the Court in no way damages the strength or veracity of their testimony.”

Justice McKay said that the defense attorney had given a late notice of alibi and then failed to call any of them—a decision “which was never adequately explained.”

“[T]rial counsel's professed near total memory failure made it difficult, if not impossible, to determine the reasons for the many decisions and apparent mistakes he made, all of which proved disastrous for the defense at trial, the chief one being his failure to call the alibi witnesses,” Justice McKay said. “[Defense counsel’s] many other mistakes and failures went similarly unexplained and in the Court's view cannot be justified. For example, there is no evidence that counsel ever hired an investigator or visited the scene and strong inferences which I accept that he did neither. These and other demonstrated failures by the defense at trial, recited in the post-hearing memoranda of both sides, made it easier for the Court and jury in 1997 to overlook the deficiencies in the prosecutor's case, thereby paving the way for the guilty verdicts which the Court now labels a miscarriage of justice.”

Justice McKay noted that Fahey presented evidence pointing to Michael Kirkland as the person who “ordered the hit on Foster” and that Reed’s cousin, Dre, had been the actual gunman. In addition, Justice McKay said that Fahey had presented evidence that Kirkland “orchestrated the frame-up of [Wheeler-Whichard] for Foster’s murder. “It seems to this Court that the foregoing is a plausible and even likely scenario to explain all of these events, although it was not proven by anything close to admissible evidence sufficient to prosecute Kirkland,” Justice McKay said.

“But the time to have begun an investigation into Kirkland's involvement and any other person's criminal responsibility for this murder was in April 1996, and those responsible for pursuing this investigation should have been the police and the District Attorney,” Justice McKay declared.

Regarding Reed’s recantation, Justice McKay said, “While his recantation is more believable to the Court than his implausible trial testimony, he failed to give any credible reason why he lied at trial and why he was now recanting. However, despite this lack of candor, much of his hearing testimony was supported by other evidence and it also served to eliminate conflicts with Woodard's testimony. Standing alone, this recantation would be of dubious probative value. In the context of the trial and the hearing testimony, however, even this recantation undermines the case the People presented at trial and tends to support defendant's actual innocence claim.”

Justice McKay criticized the failure of the police and prosecution to fully investigate the case from the beginning. “I note a total failure to connect the evidentiary dots concerning the one and only true caller about this homicide to 911,” he said. “There was sufficient documentary and audiotaped evidence available well before trial for the police and the prosecutor to have learned, as was clearly established at the hearing, that it was a female tenant in a second floor apartment of the same building, Judy Gregory, who made that call. Once that was known other salient facts would have emerged, such as that Sandra Woodard must have been lying about calling 911.” Moreover, Justice McKay said, it would have been “highly unlikely” for Reed to have encountered Wheeler-Whichard on the back stairs and in the second floor hallway right after the shooting.

“Further, it now seems plain to the Court that virtually no police or prosecutor in-depth investigation was done into the character and credibility of the People's main witnesses,” Justice McKay added.

Justice McKay dismissed the charges altogether. “[I]t would be abhorrent to my sense of justice and fair play to do other than to vacate defendant's convictions on both grounds and to declare that he is innocent of this horrible murder, and to ensure he does not continue to serve any more time in prison for these convictions,” Justice McKay said.

Although the murder case was over, Wheeler-Whichard remained incarcerated until 2013 serving the remainder of the arson sentence as well as a 1½ to three-year term he received for possession of illegal contraband in prison.

In 2011, Wheeler-Whichard filed a claim with the New York Court of Claims seeking compensation for the time spent in prison on the wrongful murder conviction. However, the claim was denied. The Court of Claims ruled that he had suffered no harm because he was serving the sentence for the arson conviction.

– Maurice Possley

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Posting Date:  Before June 2012
Last Updated: 9/2/2021
State:New York
County:Kings
Most Serious Crime:Murder
Additional Convictions:Gun Possession or Sale
Reported Crime Date:1996
Convicted:1997
Exonerated:2009
Sentence:25 to Life
Race/Ethnicity:Black
Sex:Male
Age at the date of reported crime:16
Contributing Factors:Perjury or False Accusation, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No