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Thomas Malik

Other Exonerations with Misconduct by Detective Scarcella
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On July 15, 2022, a judge in Brooklyn, New York, vacated the convictions and dismissed the charges against Thomas Malik, Vincent Ellerbe, and James Irons, who had been convicted in 1996 of second-degree murder in the death of Harry Kaufman, a subway token-booth attendant. At the heart of these wrongful convictions were false confessions each man made to officers with the New York Police Department, including Detective Louis Scarcella and his partner, Detective Stephen Chmil.

“The horrific murder of Harry Kaufman shocked our city and devastated a loving family,” said Kings County District Attorney Eric Gonzalez, “but the findings of an exhaustive, years long reinvestigation of this case leave us unable to stand by the convictions of those charged.”

On the morning of November 26, 1995, Kaufman was working in the token booth at the subway station at Fulton Street and Kingston Avenue. Shortly before 1:40 a.m., Kaufman’s booth erupted in flames, and two explosions followed. Kaufman ran out of the booth, up the stairs and into the street, where passersby extinguished the flames on his body.

Officers with the Police Department’s Transit Bureau arrived first. Kaufman had severe burns but was conscious, and several transit officers took him by patrol car to a nearby hospital. One officer would later testify that Kaufman said, “They blew up the booth. They blew me out of the booth.”

Quickly, a decision was made to take Kaufman to the Cornell Medical Center Burn Unit in Manhattan, and he was accompanied by Transit Bureau Officer Michael Santo. During the trip, Kaufman told Santo that two men had approached his booth, and he thought they were buying tokens. The men squirted liquid into the booth through the change slot and set it on fire. He told Santo that both men were Black. One was light-skinned, 6’ tall, 200 pounds, 20-25 years old, wearing a green sweater and a brown jacket. The other was dark-skinned, 5’ 6” tall, 150 pounds, also 20-25 years old. Kaufman made no reference to either man showing a weapon.

The crime occurred just days after the release of the film Money Train, which includes a scene where a robber steals money from a token booth by threatening to set the attendant on fire.

In the subway station, the police recovered several pieces of evidence, including: a loaded .30-caliber rifle with a folding stock and a banana clip; a plastic bottle containing gasoline residue; a book of matches, which had all apparently been lit simultaneously; and a burnt glove.

Technicians were unable to lift any usable fingerprints. In addition, a fire marshal said that the fire was started in the coin slot with gasoline.

Eighteen 911 calls had been made in the aftermath of the explosion, and police began interviewing these callers. One caller was Darlene Williams, who lived on Kingston Avenue, a half block south of Fulton Street. She said she saw two very light-skinned Black men and a darker-skinned young Black man run out of the station down Kingston, toward Herkimer Street, which ran parallel to Fulton Street. Williams later said she saw the two light-skinned men get into a dark-colored, four-door car parked on Herkimer Street, while the darker-skinned man ran east on Fulton Street. Williams said she knew the men, whom she called “boys,” from the neighborhood, and had seen them at a nearby record store a few hours before the crime. She did not name any of the men.

One of the 911 calls had been made by 18-year-old James Irons, who lived with his family on Fulton Street, three apartments west of the subway entrance. Irons had called 911 at 1:41:54 a.m. and said that someone was on fire at a corner store on Kingston and Throop avenues. The 911 operator said that those streets didn’t intersect, and Irons handed the phone to his mother, Miriam Graham. She said, “Hello? . . . the token booth on Kingston and Albany just blew up. Man came running out, he’s on fire ... there’s a whole lot of people standing right out there.”

The police interviewed Graham on November 26, and she repeated what she told the 911 operator. She did not mention that Irons had made the call and had also spoken to the operator.

Separately, the police found a witness named Jacqueline Robinson. She told police that she and a co-worker were parked in her car on Kingston near Herkimer at about 1:40 a.m. when she saw two young men walk toward the station. One had a clear plastic bottle with a rag or napkin stuck in the top. The other appeared to be holding something in his right hand. Robinson said a black Trans Am with tinted windows was parked nearby, with the lights on and the motor running. Robinson said she saw the two men run down into the subway station. There was a boom and the two men ran back out. Another boom followed. One of the men said, “We got him,” and they entered the passenger side of the Trans Am, which then drove off.

In early December, an informant told the police that two men, S.M. and R.B., were involved in the crime. On December 7, Scarcella and Chmil presented a photo array including S.M. to Robinson. According to Scarcella’s report, she immediately picked S.M.’s photograph and began shaking and screaming. She said he had held the clear bottle and laughed and said, “We got him” after the explosion. The next day, after giving a taped statement to an assistant district attorney, Robinson looked at a second photo array that included R.B. She identified him as the second man she saw headed to the subway with S.M.

Kaufman, who was 50 years old, died of his injuries on December 10, 1995. Two days later, the police ruled out S.M. and R.B. as suspects. R.B. was in jail at the time of the crime, and the police investigation determined that S.M. was in Baltimore, Maryland.

Separately, another informant had told police that three men, known as “Sport,” “Crime,” and “Biz” had blown up the token booth. The informant said she had seen the men at a party shortly before the crime, and that Biz had a rifle. Her description matched the rifle found at the crime scene. Officers interviewed Biz, who confirmed he was at the party. Sport and Crime were never interviewed.

On December 13, Chmil spoke with a third informant who said that a young man named Ricardo James had admitted to the informant that he and three others – Tyrone, Pop, and Pepe – robbed the token booth. James and Irons lived in the same building. When police arrived to interview James, they talked to James’s mother, who said her son was outside making a telephone call. Irons was hanging out in front of the building, and the police first thought he was James. After that mistake was cleared up, the police asked Irons about James, and eventually he led them to the subway, where James was on the phone.

The police asked James to go to the precinct and answer some questions. It was now about 11:30 p.m., and James did not want to walk home alone. He asked Irons to come with him.

At the precinct, the informant identified James as the person who the informant said had confessed to him. Detectives interviewed James while Irons sat on a bench.

At around 1 a.m. on December 14, Detective Michael Paul approached Irons, and they began talking. The officer would later say that he thought that Irons was a witness waiting to be interviewed. According to Paul, Irons first said that he had seen some of the incident by looking outside from his apartment window but then changed his story to say that he was in the station around the time of the explosion. Paul said he ended the conversation, found Chmil and relayed what Paul said Irons had told him.

Although Irons had told Paul that from his window he saw two men on Kingston near the subway, Chmil thought Irons wasn’t telling the truth. He would later say that he was familiar with Irons’s apartment building, and he thought it was “very hard” for Irons to have seen what he said he saw.

At 1:30 a.m., Chmil began interviewing Irons. Scarcella was also present. At 2:30 a.m., according to the police records, Irons signed a form waiving his Miranda rights and gave a statement. This part of his interrogation was not recorded, but according to the written statement, Irons had tried to rob the token booth with 17-year-old Vincent Ellerbe, 18-year-old Thomas Malik, a man named “Eric,” and two brothers named Chris and Andre. In the statement, Irons said Ellerbe had come up with the idea, but that Irons had first pushed back on the plan because the booth was too close to where he lived.

Irons said his job was to be the lookout. Inside the subway station, he said, Ellerbe squirted the gasoline into the change slot, while Malik squirted gas near the booth’s door. (He would later say that the gasoline was held in a clear bottle, like that used to hold dish soap.) After the first explosion, they all ran out of the station. Eric received burns in the blast, Irons said. According to the statement, Irons also said that a man named “Ringy” was there and had a gun. Irons said Ringy had shot him in the leg a year earlier.

Irons signed the statement at 3:10 a.m. At 6:12 a.m., an assistant district attorney began taking a videotaped statement from Irons. As a later re-examination of the case would note: “Many of defendant’s answers were conflicting. And at times, when defendant could not recall certain names or details, the ADA helped him.”

For example, Irons could not recall Malik’s first or last name. The prosecutor helped him out. The prosecutor also helped him smooth out the timeline of events and provide a clearer narrative of how he and the others made their way to the getaway car that Robinson had seen.

The police quickly began looking for Ellerbe and Malik. Ellerbe was in Binghamton, New York, but agreed to return to Brooklyn. He was taken to the 79th Precinct just before midnight on December 14.

At 3 a.m. on December 15, Ellerbe waived his Miranda rights. Detective Anthony DeRita then took his statement. Ellerbe said in the statement that the robbery was Malik’s idea, and that Ellerbe, Irons, “Chris,” and two people he did not know took part in the crime. The only weapon he mentioned was a .32-caliber revolver that Malik gave to Irons. Ellerbe said that Irons gave him a white bottle with a spray top as they headed down the subway stairs and told Ellerbe, “If anything goes wrong, just spray it.”

When they were in the subway station, Ellerbe said, Irons stuck the revolver in the coin slot and demanded money from Kaufman.

According to the statement, Ellerbe said that he sprayed the glass on the token booth with his graffiti tag “Teff,” which was short for “Teflon Don.” Malik then took out matches, and Kaufman yelled at Malik not to light them. Ellerbe said he headed for the staircase and then saw a flash and loud blast. He ran out of the station and down Kingston Avenue.

Later that morning, Ellerbe gave a videotaped statement to an assistant prosecutor.

Malik was brought into the police station at around 1 p.m. on December 15. Scarcella read him his Miranda warnings, which Malik waived. According to Scarcella’s report, Malik first said he knew nothing about the crime and that he was with his girlfriend at the time. The police paraded Ellerbe into and out of the interview room. Malik acknowledged knowing Ellerbe. He was shown a photo of Irons, whom Malik said he did not know.

At 5:10 p.m., Malik made a confession, writing, “O.K. man I was there I was down on the whole thing. It was a robbery but it was not supposed to go like that. It was me [Irons] and [Ellerbe], there were two other guys there also. [Irons] had the gas in a plastic bottle, he squirted it and lit it. One of the other guys got burned on his gloves. I think his hands are burned … I was just the lookout I thought they were just bluffing. Now I just ran Man all I was, was the lookout. The explosion was loud. I was so fucken [sic] scared I just ran. I ran up Kingston Ave.”

Malik then gave to an assistant prosecutor a videotaped statement, which was later described as “evasive and inherently inconsistent.” In the statement, he said the bottle used in the crime was a soda bottle. Malik also referred to a getaway car, a Ford Taurus or similar make, but his account of who was in the car and where it was parked was jumbled, with Scarcella often leading him to answers.

At 11:40 p.m. on December 15, Darlene Williams looked at a lineup that included Malik. She made no identification. The next day, Jacqueline Robinson viewed a lineup that included Malik. He was the only person wearing a red shirt. Robinson identified him as the man she saw holding the plastic container on the way to the subway station and also laughing after the explosion.

Irons, Ellerbe, and Malik were each charged with second-degree murder. Irons was also charged with attempted first-degree robbery.

After the arrests, the police stopped looking for other suspects. Notes from a prosecutor’s file dated March 1996 raised a question about suspects others had named, asking “How did we ultimately eliminate crime, sport et. al.?” A later review didn’t find a clear answer.

On January 2, 1996, a man named Rayquan Shabazz contacted Diego Rivera, an investigator with the Kings County District Attorney’s Office. Shabazz was in the Rikers Island jail with Malik, whom he already knew from an earlier incarceration. Shabazz gave a sworn statement on January 11, which said that Malik had confessed his involvement in the crime. According to Shabazz, Malik said that Ellerbe had come up with the idea after seeing Money Train. Later, Shabazz would tell investigators that Malik made threats to harm Ellerbe and Irons.

Prior to their trials in Kings County Supreme Court, each defendant moved to suppress his confession. Justice Joseph Egitto, who presided over the trials, denied these motions.

Irons’s trial began on October 8, 1996. Santo, the transit officer, was among the first witnesses. He testified about Kaufman’s statements en route to the hospital, including the skin tones of the two men who approached the token booth. Santo was not asked and did not give any testimony either on direct or cross-examination about Kaufman’s descriptions of the heights and weights of the men. None of the defendants was taller than 5’ 7”, and none fit the description of a light-skinned Black man, 6’ tall, 200 pounds.

A fire marshal testified that a “pour pattern” was present in the coin slot. There was no testimony presented suggesting gasoline had been poured near the door, contradicting Irons’s statement. The fire marshal also testified that a two-liter bottle found at the scene contained a liquid that smelled like gasoline and appeared to have been crushed by hand.

Paul testified about his initial conversation with Irons, and how he quickly confronted Irons about his statement of what he could have seen from his apartment window. Chmil also testified about the view from Irons’s apartment. But on cross-examination, he acknowledged that he hadn’t been to Irons’s apartment to confirm his suspicions. Chmil testified that it was only after Irons was arrested that he learned that Irons had placed the 911 call. He testified that he never listened to the call.

The jurors also heard Irons’s videotaped statement. Darlene Williams testified for the defense. She said she did not recognize Irons as one of the men she saw in the aftermath of the explosion.

Miriam Graham testified that her son came home from a party between 12:30-1 a.m. on November 26, 1995. She said that she heard the explosion and yelled to Irons that the corner store had been bombed. She said she ran to the window, opened it, and stuck her head out. She saw a man on fire, running, and told Irons to call 911. He spoke first to the operator, but then Graham took the phone from her son, and told the operator what she saw. Graham also testified about her apartment. Her family lived on the fourth floor, and there were two locked doors at the front of the building.

Irons testified in his own defense. He said that he had dropped out of school in the 10th grade, could not read, and could only “write a bit.” (He had misspelled his last name when signing his Miranda waiver.)

Irons said that the detectives wrote his statement and told him what to say on his videotaped statement. He said a detective, whom he did not know, threatened him with a gun. He said the detectives supplied him with information about the crime, including the type of weapon found at the crime scene and the location of the getaway car.

At the onset of the trial, Irons’s attorney had moved to admit the 911 call made by Irons and Graham into evidence. Prosecutors objected, stating that Irons’s portion couldn’t be admitted if Irons himself didn’t testify. After Irons testified, his attorney again moved to admit his part of the call. Prosecutors again objected. For reasons that aren’t clear in the record, Justice Egitto did not allow jurors to hear this part of the call. They did hear Graham’s portion of the call, and the 17 other 911 calls.

Irons’s attorney also asked Justice Egitto to allow the jury to visit the crime scene. There were two reasons, the attorney said. First, jurors needed to be able to see whether Irons could see what he said he saw. Second, there was a question about whether Irons could have made it from the subway station to his apartment in time to make a 911 call less than two minutes after the explosion. Justice Egitto denied the request and said the visit was “logistically impossible,” based on the trial schedule.

During closing arguments, Irons’s attorney said it was “simply unlikely” that Irons could have made it back to the apartment in time to make the 911 call. He also said that there were substantial inconsistencies between Irons’s written statement, which Irons could not read, and the videotaped statement, raising doubts about the truthfulness of the statements.

The state argued that Irons had given a detailed account of the crime and that “every aspect of the confession was corroborated by independent evidence.” The prosecutor told jurors that when Graham spoke to the 911 operator, her first words were “the token booth just blew up.”

“How would she possibly have known?” the prosecutor asked. “How could anybody possibly have known that the source of that explosion and the reason a man on the street was on fire was because the token booth had just blown up unless you were there? And she had no clear view and no clear vision of the subway station or the token booth underneath it. Understand that and know that there’s only one reasonable answer.”

The jury convicted Irons of second-degree murder and attempted armed robbery on October 17, 1996. He was sentenced to 25 years to life in prison.

Malik and Ellerbe were tried together before separate juries, beginning November 18, 1996.

Robinson testified that on the morning of November 26, she was parked in her car, sitting in the passenger seat, and talking with a co-worker who was “going through trials and tribulations.” The car was on Kingston Avenue, about three car lengths from the entrance to the subway. Robinson said she saw Malik and another man walk past. Malik held a clear soda bottle in his hand. The other man had his hand straight, as if he was holding a baseball bat. Robinson said that after the men went past, she and her friend continued their conversation until she heard the explosion. She then saw Malik and the other man walk past her, heading away from the subway. She said she heard Malik say, “I got that motherfucker.” The two men then got into a black car, parked a few cars behind Robinson, and the car drove off.

On cross-examination, Robinson acknowledged that she had initially identified S.M. as the man with the bottle, but she said the mistake was because she had only seen S.M.’s picture while she had seen Malik in person.

Scarcella testified about Malik’s confession and about Robinson’s identifications. He acknowledged that Robinson had initially identified S.M., but he was not asked about his report, which noted that Robinson screamed and shook when she saw S.M.’s photo.

Scarcella said that he cursed at Malik, banged on a locker, and accused him of lying. He said he didn’t harm Malik but wanted to bring a “sense of drama” to the interrogation. He told the jury that he knew Malik was lying because Malik would not look at him, which was also what his children did when they were not telling the truth.

Shabazz testified that Malik had confessed his involvement in the crime when they were at Rikers Island. He also testified about Malik’s alleged efforts to harm Irons and Ellerbe. Shabazz had given prosecutors a letter Shabazz said Malik had written that outlined his plans. A handwriting expert testified at trial that Malik “definitively” wrote the letter.

At the time of the trial, Shabazz had already testified for the state in an unrelated murder case and been granted work release instead of a prison sentence. He had pending burglary convictions in Queens County and Rockland County and his sentences in those cases depended on his truthful testimony at Malik’s trial. But he admitted on cross-examination that in the past he had lied to avoid going to jail and he would do the same again.

Prosecutors again presented the testimony of Ricardo James, the man whom Irons had accompanied to the police station, and who had testified against Irons at his trial. He did not see either Malik or Ellerbe. James testified that he heard the first explosion while he was at a nearby liquor store and saw Kaufman on fire after he ran out of the subway station. James said police detectives initially questioned him as a suspect. Defense attorneys called for a sidebar and said that the only purpose for James’s testimony was to show that James was “one young Black man” whom Scarcella did not beat or arrest. Prosecutors argued that the defense had opened the door for James during opening statements when they accused Scarcella of harassing and intimidating Black suspects.

After James’s testimony, Justice Egitto asked how James first became a person of interest. The defense didn’t know; prosecutors didn’t tell the court and hadn’t disclosed to the defense that an informant had said James confessed his involvement.

Detective DeRita testified that when he began interviewing Ellerbe at about 3 a.m. on December 15, 1995, he did not know Ellerbe’s name or why he was in the interview room. He testified that Ellerbe quickly volunteered that he had made a mistake and might be in trouble. DeRita testified that he left the room to get a Miranda card for Ellerbe to sign and didn’t talk to any of the detectives about Ellerbe before returning to the room. He testified that he took no notes between 3 a.m. and 4:30 a.m., when Ellerbe signed the statement that DeRita had written.

Neither Ellerbe nor Malik testified, although the juries heard their videotaped statements. Ellerbe presented an alibi defense; a woman named Michelle Brigham, from Binghamton, said that Ellerbe was Upstate with her on November 26, 1995. Her credibility was questioned, based in part on previous arrests for drug possession and bouncing a check.

Williams also testified for the defense and said neither Malik nor Ellerbe, whom she knew, were the men she saw near the subway station. In closing arguments, Malik’s attorney highlighted Robinson’s initial identification of S.M., which fit Kaufman’s description of the taller man, and said that Malik was too slight and short to fit either of the descriptions provided by Kaufman. The attorney also said that Malik’s videotaped statement did not mesh with Robinson’s testimony. In the statement, Malik said he walked to the station with Irons and Ellerbe, and that the keys to the getaway car were in the ignition. Robinson had testified she saw only two men walk past, and that someone else was waiting in the car. The attorney said Malik’s confession was false and involuntary, coerced by Scarcella and Chmil.

Ellerbe’s attorney told jurors that DeRita’s testimony about striking up a casual conversation with Ellerbe, prior to his statement, was “implausible.” The attorney also said that Ellerbe’s statement didn’t match the known facts of the case. There was no spray bottle cap found at the crime scene, and spraying the outside of the booth with lettering wouldn’t have caused an explosion.

In the summation before Ellerbe’s jury, the prosecutor said that Ellerbe’s statement was corroborated entirely by Kaufman. The prosecutor said that according to Kaufman, there were “two young men; one light-skinned, one dark-skinned, one taller and slimmer, one who is huskier, heavier. The dark-skinned man is [Ellerbe], he’s the slim man. The light-skinned man is [Malik], he’s the heavy-set guy. And what does he say they did? Well, they came to his booth. They displayed guns. They poured a liquid into the dish where you buy the tokens. They demanded money and they lit matches and then they blew me out of my booth.”

The reinvestigation of these convictions would note: “The deceased did not say that. He did describe one male as light-skinned and one as dark-skinned. And he did describe one male being taller than the other, and one weighing more than the other, just not in the combinations that the People claimed … The People also misstated that the deceased reported that the two men who approached his booth had guns. Not only is this wrong, but also previously, in Irons’ trial, Santo was specifically asked whether the deceased mentioned weapons, and Santo said no.”

Ellerbe’s jury convicted him of second-degree murder on November 26, 1996. Malik’s jury returned the same verdict a day later. Both men received sentences of 25 years to life.

All three defendants unsuccessfully appealed their convictions.

In 2013, the Brooklyn District Attorney’s Office Conviction Review Unit began investigating about 70 murder cases connected to Scarcella. The investigation was triggered by the 2013 exoneration of David Ranta for a Brooklyn murder. A few months after Ranta was released, The New York Times published an article accusing Scarcella, who retired in 1999, of misconduct in many investigations: fabricating evidence, coercing witnesses, and concealing evidence of defendants’ innocence.

On July 14, 2022, the district attorney’s office released lengthy reports on the convictions of Irons, Ellerbe, and Malik. The next day, attorneys for the three men moved orally to vacate the convictions.

In all three cases, according to the reports prepared by the district attorney’s office, there was substantial official misconduct and new evidence of innocence. Dr. Saul Kassin, a psychologist at John Jay College of Criminal Justice of the City University of New York, reviewed the three confessions. Kassin said the cases were very troubling, and “comparable to some of the worst wrongful convictions I have seen.”

The CRU reports said there were numerous inconsistencies among the statements. Most troubling, the CRU said, was that Ellerbe and Irons said they went straight from Irons’s apartment to the subway. Malik was the only defendant who said he and the others met up on Herkimer Street, but it was critical because it meshed with Robinson’s testimony. In Irons’s case, according to the CRU report, his statement to police had been contaminated by Scarcella and Chmil feeding him information about the crime, including the type of weapon and bottle left in the subway station. In addition, Irons’s statement, as recorded by Chmil, said that a man named “Ringy” had shot him in the leg when no such event occurred.

As part of the investigation, the CRU visited the apartment where Irons had lived. It found that Irons could have looked out his window and seen two men running “near the subway,” as he first told the police. “Had the jury been allowed to visit the scene and defendant’s apartment, as the defense requested, the jury would have realized that defendant’s claims were plausible,” the CRU report for Irons said.

Most important, the CRU report said, Justice Egitto erred when he didn’t allow the jury to hear Irons’s portion of the 911 call. A detective who listened to this section as part of the reinvestigation noted that Irons sounded calm and was breathing normally; he did not sound like a person who less than two minutes earlier had been near an explosion in the subway and then run up 31 stairs out of the station, unlocked two doors, and hustled up four flights of stairs.

Prosecutors had argued that Graham’s statement to the 911 operator about the token booth blowing up was information known only to Irons and his co-defendants. But that wasn’t true. Five other callers, none able to see the token booth, said the same thing. The CRU report said that Irons’s attorney, the prosecution, and Justice Egitto failed to understand the significance of this evidence.

In Ellerbe’s case, the CRU investigation said that his confession, while not obtained by Scarcella or Chmil, was contaminated by their roles in the confessions of Irons and Malik. The review also suggested that DeRita most likely gave false testimony about his interaction with Ellerbe when he said that he had no knowledge of Ellerbe when the two began talking. DeRita told the CRU that he would never interview any suspect without learning about the case and that he did know Ellerbe’s name and what the police knew about his potential involvement in the crime. In addition, other records suggested that DeRita was with Ellerbe for up to two hours before he left the room to get the Miranda card.

Robinson never identified Ellerbe; she had identified R.B. as the person accompanying the man she first identified as S.M. and later as Malik. At Ellerbe’s trial, the jury heard her statements identifying R.B. Ellerbe’s attorney did not give a photograph of R.B. to the jury. During closing arguments, the prosecutor said that Robinson had only said that the man she saw “looked like” R.B. and that he and Ellerbe shared enough features that it was not an “outrageous comparison” to conclude that Robinson had effectively identified Ellerbe. But R.B. was eight years older than Ellerbe, and the photograph prosecutors used did not indicate R.B.’s height or build. The CRU report said prosecutors made an improper argument, and Ellerbe’s attorney should have objected.

The report noted that Ellerbe’s description of how the explosion happened made little sense and didn’t match the evidence. Spraying his name in gasoline on the outside of the booth wouldn’t have been sufficient to cause the blast. It was one more inconsistency in his statement to the police.

The CRU investigation of Malik’s conviction found that Robinson’s testimony was inconsistent with her earlier statements. After being reminded that she had initially identified S.M., she qualified her answer and said she had only said he “looks like the guy.” She then said she was better at identifying people in person than from photos. But none of that hesitancy was recorded in the police reports. Malik’s attorney failed to get Robinson to explain the difference, the CRU said, and “Scarcella likely misled the jury when he claimed not to recall that Robinson did not hesitate in identifying [S.M.]; a claim that is not supported by his [report].”

The police had ruled out S.M. as a suspect, believing him to be in Maryland. That turned out to be incorrect.

Robinson told the police that she was in the driver’s seat. She testified that she was in the passenger’s seat. She also testified that she was about three car-lengths away from the entrance to the subway. But her initial statements to police suggest that she was a block south, and her descriptions of what she heard were more in line with witnesses who were a similar distance from the explosion.

Finally, Robinson gave incomplete testimony about why she was in her car at 1:40 a.m. on a Sunday morning. She testified that the man with her was a co-worker, but she told detectives he was her boyfriend, and a detective who worked the case later told the CRU that Robinson and the man were having sex at the time of the explosion. It’s not clear if this information was in the police reports. The CRU said that “since Robinson was engaging in sexual relations, she would likely have been paying less attention to her surroundings than her testimony suggests.”

The CRU investigation also examined Shabazz’s testimony. It determined that much of his information was cobbled together from newspaper reports, which were often at odds with the specifics of Malik’s statements to the police. In addition, records from Rikers Island contradicted Shabazz’s testimony and statements about his interactions with Malik. Following Malik’s conviction, Shabazz continued to work as an informer. His testimony in these cases was so flawed that a judge in Manhattan issued a permanent injunction in 2003 barring Shabazz from contacting any law-enforcement agency regarding matters outside his own cases.

On July 15, 2022, Justice Matthew D’Emic of Kings County Supreme Court vacated the convictions of Irons, Ellerbe and Malik, and then granted separate motions dismissing their charges. Malik and Irons were released from prison. Ellerbe had been paroled on December 10, 2020.

“More than 25 years later, we do not have any confidence in the integrity of those convictions,” said Lori Glachman, an assistant district attorney and the editor-in-chief of the Conviction Review Unit. David Shanies, Irons’s attorney, said at the hearing that he was pleased with the outcome but disappointed that the district attorney’s review was largely silent on what he called prosecutorial misconduct, such as the failure to disclose that a confidential informant had said Ricardo James confessed to the crime. “Failing to acknowledge injustice in the past is the surest way to perpetuate it into the future,” Shanies said.

Ron Kuby, who represented Malik at trial, represented him and Ellerbe at the hearing. He said, “The truth is, you cannot practice mass incarceration as we did in the 1980s and 1990s and not do the kinds of things that were done to completely innocent people like Malik, Irons and Ellerbe and so many others. Nobody except the defendants in these cases has suffered any consequences because of their misconduct.”

During the hearing, Ellerbe said he had a daughter, now 26 years old, who grew up without him. “Twenty-five years I had to look in the mirror knowing that I was in prison for something I had nothing to do with,” he said. “The penitentiary breaks you or turns you into a monster and I had to become something I’m not just to survive.”

– Ken Otterbourg

Report an error or add more information about this case.

Posting Date: 8/10/2022
Last Updated: 8/10/2022
State:New York
County:Kings
Most Serious Crime:Murder
Additional Convictions:
Reported Crime Date:1995
Convicted:1996
Exonerated:2022
Sentence:25 years to Life
Race/Ethnicity:Black
Sex:Male
Age at the date of reported crime:18
Contributing Factors:Mistaken Witness ID, False Confession, Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No