 Sheldon Thomas (Photo: CNN)
Freddy Patrice was with Bercy and Drummond, and he was one of several 911 callers. Patrice told a dispatcher that he didn’t know who fired the shots and did not provide a description.
Officers from the 67th Precinct responded to the shooting. They collected shell casings from the crime scene: five 9 mm shell casings and seven .22-caliber shell casings. The police also canvassed the buildings for witnesses. Most of the people they talked to said they heard the shooting and then saw the young men running.
Aliyah Charles told police she was in an apartment at the corner of Snyder and East 52nd, waiting for Bercy and others to return from the store. She said she looked out the window and saw a white car, possibly a Nissan Maxima, on the street. The car moved and then came around again. Charles said she saw Bercy and the others walking down the street and then heard gunshots from the white car. She did not give a description of the vehicle’s occupants.
Drummond and many of the young men with him were members of the Bloods gang. Bercy intended to join the gang, according to his friends.
Police interviewed Drummond at Kings County Hospital. He said that two days before the shooting, a man with the nickname “Yellow” had approached him and Bercy and told them that they were hanging out with the wrong crowd and needed to watch themselves. “Yellow,” whose real name was Dalton Walters, was a member of the Outlaws gang.
Also on December 24, police interviewed Michael Barnwell, another of the young men with Bercy. He said he heard two gunshots and ran toward a nearby bodega for help. He said he did not see who fired the shots.
On December 25, Charles called Detective Robert Reedy, who was leading the investigation, to ask about progress in the case. Reedy asked her to come to the precinct station. She showed up the next day and gave a recorded statement. Charles said she had been looking out the window waiting for the young men to return. She saw a white car double-parked in front of the building. As Bercy and the others neared the building, Charles said, “Yellow” and another man, whom she knew as “Kerns,” were in the car and spotted the group. Charles said she could not see who was driving, but the car’s windows were halfway open, allowing her to see in. Charles said she saw Yellow and Kerns pull out guns and start firing.
Reedy and Detective Michael Martin re-interviewed Drummond on December 26. Again, he said that he could not identify anybody in the car. He also said that he heard that “Yellow” shot him.
Also on December 26, Martin interviewed Daymien Smith, another of the young men with Bercy and Drummond. He said he saw a small white car with the right rear window down and a gun sticking out. Smith said a dark-skinned Black male wearing a blue “muffin” hat (a hat with ear flaps) was firing the gun. Smith said that at least four men were in the car and that he did not know the shooter’s name but could identify him if he saw the man again.
Although the information was not documented, Martin would later say that Charles mentioned at some point in her conversations with police that she had heard from friends the names and nicknames of the people who might have been in the car. Along with Yellow and Kerns, were “Shelly, Sheldon, and Hoz.” Separately, he would later testify, the department received an anonymous tip about 17-year-old Sheldon Thomas.
Martin asked the Kings County District Attorney’s Office on December 27 to obtain an order to unseal the arrest record for Thomas, who had been arrested in April 2004 on a weapons charge after pointing an inoperable gun at police officers. He pled guilty to resisting arrest and received three years on probation as a youthful offender.
Before the file was unsealed, Martin used the police department’s photo management system to pull a mugshot of Thomas, entering the name “Sheldon Thomas” and other information. The computer retrieved the photo of a different Sheldon Thomas. Both were young Black men who lived within the boundaries of the 67th Precinct, which covered a large swath of central Brooklyn.
Martin took a photo array that included a picture of the wrong Sheldon Thomas to Charles’s apartment. She identified Thomas as being in the car. Martin would write in his report: “She picked out number five and stated it looks like him, but she is not totally sure, she would have to see him in person.” Martin said that Charles told him she was 90 percent sure of her identification.
Martin created an arrest document, known as an I-card, that had the picture of the Sheldon Thomas identified by Charles but used the address for the other Sheldon Thomas, who was arrested at 4 a.m. on December 28.
Thomas waived his Miranda rights and gave a statement to Reedy and Martin. He said he had been playing video games in Queens with several friends, although he did not know the address of the house. He first said he had left Brooklyn for Queens at around 11:30 p.m., but then changed his time of departure after learning the murder happened around 9 p.m.
After the arrest, on December 28, Charles, Smith, and Patrice came to the precinct to view live lineups. According to the police reports, Charles identified Thomas and signed the lineup card. Smith viewed a different lineup. The police said Smith identified Thomas but would not sign the card. The police said Patrice viewed the same lineup configuration as Smith and recognized Thomas from the shooting. He also didn’t sign the lineup card.
The police arrested Walters on December 28. He gave the police an alibi. He acknowledged a confrontation with Drummond a few days prior to the shooting, but said there was no threat implied. Martin showed Walters a picture of Thomas. Walters said he had never seen him before.
On January 21, 2005, Martin showed Charles a photo array that included Ernesto Sergeant, who went by the nickname “Kerns.” Charles identified Sergeant as one of the shooters.
On February 8, 2005, Thomas, Walters, and Sergeant were each charged with one count of second-degree murder, five counts of attempted murder, five counts of attempted assault, one count of assault, and several counts of criminal possession of a weapon. Police arrested Sergeant on February 18.
In May 2005, the police conducted a double-blind lineup that included Sergeant. This time, Charles was unable to make an identification.
On June 5, 2006, Thomas appeared at a pre-trial hearing before Justice Vincent Del Giudice in Kings County Supreme Court to determine whether there had been probable cause for his arrest, whether the identification procedures were correct, and whether his statements to police were voluntary.
At the hearing, Reedy testified about Charles’s identification of Thomas in the photo array and her 90 percent certainty in the correctness of her identification. He said that Thomas was the person in the array and that he had never seen Thomas before the arrest. Reedy also testified that Smith identified Thomas in the array, although this identification was not in his report.
But there was a problem. Thomas wasn’t in the photo array.
As part of discovery, the prosecution gave Thomas’s attorney the photo array that day. “When I looked at it, my eyes opened,” Steven Chaikin told the New York Post. “I said, ‘Whoa,’ and I turned to my client and said, ‘Would you tell me which one of these people is you?’ and he said, ‘None.’”
During cross-examination, Chaikin asked Reedy if Thomas’s picture was included in the photo array. Reedy said he couldn’t recall and said he had relied on Martin to pull the photos.
At a sidebar, the prosecutor told Justice Del Giudice that Thomas wasn’t in the photo array. Reedy then admitted that he falsely testified about the photo array and falsely identified Thomas as being in the array. He testified that he and Martin realized the problem after Thomas’s arrest. “It was a mistake,” he said.
Justice Del Giudice asked Reedy whether he had knowingly testified falsely about the photo array with the knowledge that the court would rely on his testimony. Reedy said yes. The judge then adjourned the hearing for several days, suggested that Reedy obtain counsel, and told Reedy not to discuss his testimony with other witnesses.
When the hearing resumed, Reedy’s testimony changed. He now said that he had not knowingly given false testimony; he had believed Thomas (the defendant) was the right person in the photo array, and he had only realized the mistake during cross-examination. He gave two accounts of Smith and the photo array, first saying he couldn’t recall whether Smith viewed the array and then saying that Smith viewed the array but made no identification.
Reedy now said that Martin had previously told him that the wrong Sheldon Thomas was in the photo array. Martin had not recorded this in his reports. Reedy also said that Martin had briefed an assistant district attorney about the issue prior to the hearing.
Martin testified about how Thomas became a person of interest. He admitted that prior to his testimony he spoke to Reedy about Reedy’s hearing testimony and had reviewed “a section” or “one page” of Reedy’s testimony that was on a table in the DA’s office.
Martin said that the precinct had received an anonymous tip about Thomas, most likely on December 26, 2004. He did not talk to the caller or write a report, but rather made an undated notation in a spiral notebook. It said, in part: “Smokie/Sheldon/Shelly/Loke, 384 East 48th Street.” Martin later testified that there were several anonymous calls about Thomas, although he said he did not enter these into his reports because they rehashed the information in the notebook. He testified that he did not enter an address when he did a computer search for Sheldon Thomas. The computer’s information gave a different address than what was in his notebook, but Martin said he thought Thomas had moved.
Martin said Charles had provided him with the nicknames of possible suspects, although most of those names – including Sheldon/Shelly – were not in the transcript of her interview. Martin said he had spoken to Charles several times between the shooting and the photo array on December 27. He said he did not enter these conversations into his reports because they repeated her earlier statements.
Martin then testified about the interview with Thomas after his arrest. Reedy was “in and out” of the room, he said. After Thomas denied any involvement, Martin tried to call his bluff. He told Thomas that “numerous” witnesses had identified him from a photo array. Thomas told him that wasn’t possible. Martin said he showed Thomas the array and said, “There you are in position number five.” Thomas looked at the photos and said, “That’s not me.”
Martin said he looked at the photos and conceded Thomas was not in the array. He testified at the hearing that the two young men had similar noses, eyes, and skin color. In his report about the interview, Martin omitted any reference to the erroneous photo array. He testified that despite the problem with Charles’s identification of the wrong person, he believed they had arrested the right Sheldon Thomas based on his “gut feeling.”
Martin testified that he told the assistant district attorney who prepared the case for the grand jury about this problem. He did not make a record of this conversation and could not recall the prosecutor’s name.
Martin said that he tried to show Smith the photo array, but Smith turned away and did not look at it. This contradicted Reedy’s account.
In oral arguments, Chaikin said there was no probable cause for Thomas’s arrest. The original witness identification was erroneous, and the police had only anonymous tips and rumors to connect Thomas to the shooting. Furthermore, there were no police reports documenting most of this information. The prosecutor said Reedy was a “pathetic figure,” but that his misconduct was not intentional or criminal. Martin’s testimony, the prosecutor said, established probable cause, and “there were many similarities” between the appearances of the two Sheldon Thomases.
Separately, Chaikin moved for a special prosecutor to take over because the trial prosecutor had a conflict of interest. The state had known about the problem with the photo array and failed to turn over that exculpatory evidence to Thomas. The prosecutor said she had not known of the mistaken photo until the day of the hearing. She said the state had no legal or ethical obligation to disclose the problem because Thomas had actually discovered it himself during his interview with Martin. She also said the evidence wasn’t clearly exculpatory. Charles had said she was only 90 percent certain and wanted to view a live lineup. “That the person in the photo array was not the defendant but someone who looks remarkably similar to him does not turn the witness’s statement into a misidentification,” she wrote.
An administrative judge denied the motion for a special prosecutor.
Separately, on July 13, 2006, Justice Del Giudice ruled that probable cause existed for Thomas’s arrest. He said that it was “of no legal consequence” that the photo of another Sheldon Thomas was used in the photo array as that person “resembled defendant Thomas.” He also said that the police committed a so-called “Payton violation” when they used unnecessary force in breaking down a door at Thomas’s house during the arrest.
The state dismissed Sergeant’s charges on August 18, 2006. A prosecutor said Charles had failed to identify Sergeant in the double-blind lineup and that he had a believable alibi and passed a polygraph test.
On October 17, 2006, the joint trial of Thomas and Walters began in Kings County Supreme Court. There was no physical or forensic evidence connecting Thomas to the shooting. Nor was there any evidence that Thomas used the nickname “Smoke,” contrary to the testimony of Martin and Reedy at the pre-trial hearing.
Smith testified that Walters had warned him and others to steer clear of Patrice. Smith said he saw Thomas with a gun in the white car on the night of the shooting. He said that he recognized Thomas because his girlfriend lived in the same neighborhood as Thomas but that he didn’t know his name or nickname. Smith said that he identified Thomas in the live lineup as the shooter. He testified that he did not see Walters or Sergeant in the car.
Charles testified that Kerns and Walters were passengers in the white car; Thomas was driving. She said she knew Walters from the neighborhood and Thomas from seeing him around his neighborhood, which was about a half-mile away. Thomas was a member of the Crips and Walters was an Outlaw, but Charles said she had seen them hanging out in the summer of 2004, and she testified she thought that was unusual because of their gang affiliations.
Charles testified that she saw Thomas driving the white car in the minutes before the shooting and saw Thomas, Yellow, and Kerns in the car when the shots were fired. She also testified that she had seen Thomas driving a similar car at an unspecified earlier time.
The prosecutor asked Charles about her identification from the photo array. She said she had never actually identified anybody but told the detectives that “it looked like him” and she needed to see a live lineup. The prosecutor asked who it looked like, and Charles replied “Sheldon.”
On cross-examination, Charles testified that during her audiotaped statement, she only mentioned Kerns and Yellow and said she could not see the driver’s face. She testified that she didn’t feel she needed to tell the detectives everything. Chaikin asked her why. Charles said she was afraid of Thomas, “Because he beat[s] people up for fun. And shoot[s] people for fun.”
Patrice testified that he was neither an Outlaw or a Blood and that he and Walters got along fine. He testified that he did not see the shooting or a white car. He testified that he did not view any lineups and that the lineups “never happened.”
Chaikin called Martin to testify in an effort to show that the police had bungled the investigation. Martin testified about the workings of the photo imaging system. Chaikin asked Martin whether he did anything to find the Sheldon Thomas identified by Charles in the photo array. Martin said it was not his job to give orders. Martin admitted that he did not go to the address that went with the wrong Sheldon Thomas. On cross-examination, Martin testified that Charles, Smith, and Patrice all identified Thomas during live lineups.
During closing arguments, Chaikin said the state’s case made little sense and was based on two rival gang members working in concert. There was no real proof that Walters and Thomas were friends. He said that Charles and Smith had given inconsistent statements, from the position of the shooters to the tinting on the car windows.
He also noted the problem with the photo array. Charles had initially identified a different person. “In the real world,” Chaikin said, 90 percent is a “positive ID.”
The prosecutor said Walters and Thomas planned the shooting together. She referred to the white car as Thomas’s car and used Charles’s testimony that Charles saw Kerns driving a similar car before the shooting to connect Walters and Thomas. She said that Charles had told the police about Yellow and Kerns two days after the shooting but had held off on identifying Thomas because she was afraid of him.
The prosecutor said that Charles did not actually identify anybody in the photo array but only said that the person she picked “looked like him.” In addition, she said the misidentification, if it occurred, was understandable. “I submit to you, they have similar noses,” the prosecutor said. “They have similar eyebrow structure, the bone under there, they have similar faces and similar lips. I submit, there is a similar resemblance with the person in the picture and the person sitting over there. It looks like him. That’s what she said. And I submit to you that it does look like him.”
The prosecutor said that Smith’s testimony was credible because he knew Kerns and did not identify him as being in the car.
On November 1, 2006, the jury convicted Thomas of second-degree murder, five counts of attempted murder, five counts of attempted assault, one count of assault and two counts of criminal possession of a weapon. Walters was acquitted. Thomas later received a sentence of 25 years to life in prison.
After Thomas’s conviction, the police department’s Internal Affairs Bureau (IAB) investigated a complaint from an administrative judge that Reedy had committed perjury during the pre-trial hearing. IAB determined that the perjury claim was unsubstantiated but disciplined Reedy for inadequate record keeping on the photo mix-up.
Thomas also filed a separate complaint with IAB, stating that a week or so before his arrest, Reedy had approached and searched Thomas and taken his cellphone. Thomas said that the arrest for the shooting was not a mistake; Reedy knew Thomas and targeted him. IAB dismissed the complaint. During an IAB hearing, Reedy denied any interaction with Thomas prior to the arrest.
In his initial appeal, filed in 2008 by William Kastin of Appellate Advocates, Thomas said there had been no probable cause for his arrest. The appeal noted, among other issues, Charles’s identification of a different person in the photo array and Reedy’s admission that he knowingly gave false testimony to the court.
The New York Supreme Court’s Appellate Division, Second Department affirmed the conviction on September 15, 2009. The ruling acknowledged that Charles had identified someone else but said that person “had the same name as defendant, looked like defendant, and lived in the same general area as defendant.” It said an arrest was valid if the police “reasonably believed the person arrested was the person sought.”
In 2010, Thomas contacted Lesley Risinger with Seton Hall University’s Last Resort Exoneration Project, after reading in the New York Law Journal about her work leading to the exoneration of Fernando Bermudez the previous year. Risinger and her husband, Michael Risinger, also at Seton Hall, together with local counsel Don Yannella, represented Thomas in his motion for a new trial, which was filed in 2011.
The motion said the lineups conducted by the police were unconstitutionally suggestive and that Charles wasn’t actually an eyewitness. It also submitted affidavits from several people who said Reedy had stopped and searched Thomas in September 2004, then tried to barge into Thomas’s house. (Thomas had confused the time in his IAB complaint.) The motion said that Reedy had lied when he testified that he had not met Thomas prior to his arrest and that Chaikin had been ineffective because he had erroneously questioned Murphy rather than Reedy about the prior contact.
In addition, the motion included a double-blind study conducted by Professor Brian Sheppard with members of the Black Law Students’ Association at Seton Hall and Rutgers University. Thirty-two students looked at Thomas’s photo for 30 seconds, then looked at the flawed photo array for 25 seconds. Twenty-seven of the students said that Thomas was not in the array. Five said he was, but only one picked the “wrong” Sheldon Thomas as the defendant.
Justice Del Giudice denied the motion on June 5, 2012. He said Thomas’s eyewitness claims had been sufficiently litigated. Although he said the information alleging Reedy’s prior contact with Thomas wasn’t new evidence and could have been available at trial, he did not say Chaikin was ineffective for failing to present this evidence. He also said the Seton Hall study, which he criticized for a lack of peer review, was not newly discovered but rather “newly created” evidence. The Supreme Court’s Appellate Division upheld Justice Del Giudice’s ruling in 2015.
Thomas then turned to the federal courts. His attorneys filed a petition for a writ of habeas corpus on February 18, 2016, in U.S. District Court for the Eastern District of New York.
In the petition, Thomas said that the police should have immediately released him after Martin conceded that Charles had identified a different Sheldon Thomas.
At that point in the investigation, the petition said, Charles had not said she saw Thomas during the shooting. At best, she had told the police that his name was one of several she heard on the street. In addition, the petition said the police steered Charles to select the right Sheldon Thomas after she had selected the wrong one and that detectives created the anonymous call or calls during the adjournment of the pre-trial hearing as a way to cover their tracks.
The petition said Chaikin had not pushed back to refute the state’s claim that the photo problem was understandable because of the strong resemblance between the two Sheldon Thomases. “The result of this failure was that the suppression court adopted the prosecution’s theory, and the spurious assertion of a resemblance became engraved in the appellate record as part of a clearly incorrect finding of probable cause under good-faith-mistake cases,” the petition said.
Judge Ann Donnelly of U.S. District Court denied Thomas’s petition on November 28, 2017, writing that the New York courts had properly resolved his claims. The Second U.S. Circuit Court of Appeals did not allow Thomas to appeal Judge Donnelly’s ruling.
In 2018, Risinger, together with co-counsel Kastin, began representing Thomas before the Conviction Review Unit of the Kings County District Attorney’s Office.
Five years later, on March 2023, the CRU released its findings, recommending that Thomas’s conviction be vacated. The problems were legion, the findings said, with mistakes and misconduct by police, prosecutors, the courts, and Thomas’s attorney. “Together the errors undermined the integrity of the entire judicial process and defendant’s resulting conviction,” the report said.
According to the report, there was credible evidence that Reedy falsely testified that he had no prior contact with Thomas. Thomas’s mother, grandmother, and a family friend gave the CRU consistent accounts of the incident in September 2004. “Against this backdrop, it is apparent that the police were intent on arresting defendant for this crime regardless of the lack of evidence pointing to defendant’s participation,” the report said.
At the time that Martin created the photo array, no credible information tying Thomas to the murder existed. The report said the anonymous tip or tips were likely fictitious, created during the adjournment of the pre-trial hearing.
The report said that police and prosecutors doubled down on the similarity between the two Sheldon Thomases, a position that was adopted by the courts during trial and on appeal. Relying in part on the Seton Hall study, the report said the two men don’t look alike, and the probability of them being mistaken for each other was very low. The report noted that Smith, who knew the defendant Thomas, did not pick him out of the array but identified him in the live lineup. The report said police “guided” Charles in her selection.
Kirk LaPaix told the CRU that Charles, his girlfriend at the time of the shooting, told him that she didn’t see the shooting; she was in the kitchen. Charles told the CRU that she did witness the shooting.
According to the report, “both Reedy and Martin brazenly violated the rule” prohibiting discussing ongoing testimony with future witnesses, it was “an incontrovertible fact that Reedy and Martin perjured themselves on the stand,” and both detectives “were anything but trustworthy.”
The report determined there was no probable cause to arrest Thomas. The information Martin purportedly obtained from Charles was not documented and was “troubling” because it only came to light after it was learned at the pretrial hearing that Thomas was not in the photo array. The information the hearing court relied upon was uncorroborated, some of it was hearsay-upon-hearsay, and the record was “devoid of any good reason to credit either any anonymous caller or Charles’s purported claims to Martin.”
The report said the state had failed to turn over the exculpatory evidence that Charles identified a different Sheldon Thomas in the photo array. The state’s arguments that Charles had not actually made an identification and that there was no need to turn over the evidence because Thomas was aware of the problem were specious, the report said.
“Indeed, we know the exculpatory nature of the revelation was lost on him because defendant did not relay the information to counsel until the time of the hearing, when he was once more confronted with the photo array,” the report said. “This was long past the point when counsel could have made optimal use of it.”
In addition, prosecutors failed to correct false testimony by Martin, who testified at the pre-trial hearing that he had told a prosecutor about the photo problem during the meeting of the grand jury a year earlier. There was no evidence of this conversation, but prosecutors used Martin’s pre-trial testimony to establish probable cause in light of Reedy’s acknowledged false testimony.
To make the case against Thomas, the state presented “Kerns” as a connection between Walters and Thomas, relying on Charles’s testimony. But that was misleading, the report said. The state knew that “Kerns” was Sergeant, and that his charges had been dismissed, based on his alibi and Charles’s inability to identify him in the double-blind lineup.
In addition, the prosecutor made several misstatements in her closing argument. She said that Charles had seen “Kerns” driving Thomas’s car, but there was no evidence that the white car belonged to Thomas. She also repeatedly said that Charles made no identification from the photo array. Separately, Smith had testified that the shooting came from the front passenger window. Chaikin attempted to impeach him with a prior statement that it was the back passenger window. The prosecutor said there was no evidence Smith ever told the police the shooting came from the rear window. But a police report said Smith had made that statement.
The report also said that Chaikin made several missteps. His questioning of Charles allowed her to testify about Thomas as a violent person. He also allowed Martin to testify that Patrice had selected Thomas in the live lineup, even though Patrice had testified otherwise. This enabled the state to bolster its case from two witnesses to three, the report said.
On March 9, 2023, Thomas appeared in Kings County Supreme Court before Justice Matthew D’Emic. “We do not have confidence in the integrity of this conviction,” said Charles Linehan, the head of the Conviction Review Unit.
Justice D’Emic vacated Thomas’s conviction and then dismissed his charges. District Attorney Eric Gonzalez said, “I apologize for the role that my office played in his incarceration.”
Thomas said, “I’ve waited a long time for this day to happen, and there’s so many times that I was in my cell, I would think of this moment – what I would say, who would be there.” He said he had forgiven the persons involved in his wrongful conviction. “God will judge them, just as he has judged me right now.”
In September 2023, Thomas filed a claim for state compensation.
– Ken Otterbourg
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