 Arvel Marshall with family (Photo: Dave Sanders for The New York Times)
The footage had been in the case file all along, but never reviewed by the prosecution or the defense at his 2009 trial.
In a highly-detailed 62-page report, the CRU concluded that Marshall was wrongly convicted because of a confluence of problems: mistaken witness identifications, inadequate police investigation, misstatements by the prosecution, the failure of his defense lawyer to investigate the case, and a judge who mistreated Marshall during the trial.
“CRU has determined that defendant’s conviction should be vacated and the indictment dismissed,” the report said.
“First, despite defendant’s repeated demands throughout trial, he was not provided with a working copy of the surveillance footage. At trial, the People maintained that they could not get the disc containing the footage to play. They provided photographic stills the police had obtained from the footage and maintained that the stills represented everything in the footage, which they claimed simply showed two males walking down the street around the corner from the crime scene,” the report.
Marshall’s “protests during trial – some in front of the jury – that one of the two males seen in the stills fit the shooter’s description were ignored. Defendant was correct,” the report said.
“CRU was able to play the surveillance footage and it is clear that that male was the shooter who, with the other individual, headed in the direction of the crime scene and, minutes later, ran back from the direction of the crime scene,” the report said.
The report concluded:
- Had the jury seen the surveillance footage, there is a reasonable possibility that it would have found unreliable the testimony of the eyewitnesses…that [Marshall] was the shooter and acted alone.
- Marshall’s defense lawyer failed to advocate effectively for him, including accepting the prosecution’s statement that the footage was immaterial, and making no attempt to review the footage in its entirety. By representing that all requests for the footage came from Marshall, the defense lawyer effectively disparaged Marshall and undermined the legitimacy of his requests.
- The trial judge’s conduct was improper and prejudiced Marshall. The court repeatedly berated Marshall, demeaned his testimony, and declared the surveillance footage irrelevant in front of the jury without having ever viewed the critical parts of the footage.
- The police investigation into the surveillance footage was insufficient. The police apparently never watched all the footage. The photographic stills they provided to the prosecution did not show the shooter and his companion running back from the direction of the crime scene or the civilians on the street reacting to the shooting.
Brooklyn District Attorney Eric Gonzalez said in a news release: “An investigation by my Conviction Review Unit found that everyone involved in this case – defense, prosecution, police, and the Court – failed, depriving Mr. Marshall of a fair trial. A critical piece of evidence was not turned over, leading to this unjust conviction.” Gonzalez said that Marshall’s defense attorney, Alan Stutman, “abdicated his role as an advocate,” and that the trial judge, Vincent Del Giudice “abandoned his role of a neutral arbiter.”
The dismissal of the case was a vindication for Marshall, who had repeatedly and loudly proclaimed during his trial in December 2009 that he was innocent, and that the footage of the surveillance tape was the key to the truth.
The murder occurred shortly before 10 p.m. on July 15, 2008. The victim, 22-year-old Moustapha Oumaria, as well as three friends, were lounging on the porch and front steps of an apartment building at 139 Albany Street in Brooklyn, New York, when a gunman fired several shots from the sidewalk. Oumaria was hit once in the head. He died soon after at the hospital.
Police interviewed his three friends: Tete Eteh-Benissan, who was 20 years old and lived in an apartment in the building with Oumaria, 26-year-old Mamadou Abdoul-Salam Zakari, and 28-year-old Abdoulaye Zibo, who shared another apartment in the building.
Eteh-Benissan described the shooter as Black, 21 years old, 5 feet 9 inches to 5 feet 10 inches tall, with a medium build, wearing a white t-shirt, dark pants and a dark hat or do-rag.
Zakari said the gunman was a Black male wearing a white t-shirt and dark pants. He was unable to describe the gunman’s height or weight.
Zibo said the shooter was a young Black male wearing a white t-shirt and dark jeans.
At 11:50 p.m. on July 15, police interviewed Abraham Omar, who had been one of the people who had called 911 after the shooting. He said that he and Oumaria were close friends. He said that a friend who lived in Albany Avenue called him about 10 p.m. and said Oumaria had been shot, so he called 911.
On July 16, detectives went to a business at 1529 Dean Street, which was around the corner from the shooting, and retrieved security camera footage. Two compact discs were created, one for the police and one for the case folder. Later that day, detectives took one of the discs to the police Technical Assistance Response Unit (TARU), which collects and processes digital evidence for the department. An officer viewed the disc and made still photo images. These were placed in the case folder as well.
At 5 p.m., Detective Matthew Hutchinson interviewed Omar again. In this call, Omar said that Oumaria had told him he had been hanging out with Nicki Callier. However, Callier’s boyfriend had been recently released from jail and had threatened to kill Oumaria. Police determined that Omar was referring to 35-year-old Arvel Marshall.
On July 17, Eteh-Benissan viewed a photographic lineup that included Marshall’s photograph. He selected Marshall as the gunman. In another interview, Eteh-Benissan said that the gunman was alone and after firing the shots, the gunman ran back toward Dean Street.
On July 22, when police went to Callier’s apartment to arrest Marshall, he jumped from a second-floor window and fled on foot. As he ran, Marshall yelled, “I didn’t do anything. Tell me what I did.”
Officers chased him through backyards and over a fence into a car lot, where Marshall crawled under a car. He was ordered to come out. As he did, he repeatedly said, “But I didn’t do anything.” He agreed to climb back over the fence, but stopped on top of it. Police said Marshall said, “I don’t want to come down. I didn’t kill anyone.” After a minute, Marshall surrendered and was arrested.
Later that day, Callier told police that Marshall’s brother, Harold, was married to Callier’s mother, Delores Thornton. Callier said she became romantically involved with Marshall about a year earlier. She also said she became romantically involved with Oumaria at the end of the summer of 2007 when Marshall was in jail. In November 2007, when Marshall was released, she started seeing him again. Callier said Marshall knew about Oumaria, and had said he did not want any other man touching her.
She said that in December 2007, she had spent the night with Oumaria. The following day, Marshall told her that he and Callier’s brother, Jeffrey Thornton, had gone to Oumaria’s residence on Albany Street looking for her. She also said that sometime later, she and Marshall visited Oumaria at his security job, and there were no problems.
Callier said that in March 2008, Oumaria came to her house and argued with Marshall about Callier, saying that she was still Oumaria’s girlfriend. Yelling ensued, police were called, and Oumaria was arrested because he refused to leave, she said. Afterward, she asserted that Marshall had pulled her hair and kicked her.
Around April 20, 2008, Callier had Marshall arrested for beating her. On May 29, 2008, he had been released from jail and went to her house. She said he told her, “You better not let me catch you doing anything.” She understood that to mean “sleeping around.”
About a week prior to the shooting, Callier said she was at Marshall’s mother’s house, and that Marshall was calling her names and saying she was sleeping around with Oumaria and another man he called “Supreme.”
On July 8, 2008, the day after Callier received a $900 income tax refund, she gave $200 to Marshall to buy clothes. In response, Marshall said, “I’m gonna get a gun” to go after someone he called “L,” who lived up the street.
On the day of the shooting, Callier said Marshall left at 11 a.m. to buy her some food. At 4 p.m., however, Marshall’s mother called Callier saying that Marshall was showing his friends naked pictures of her. Callier took a cab to a girlfriend’s house where she spent the night. She said Marshall called her about three times during the night, but she hung up on him. She said that when she got up the following morning, July 16, she had 12 missed calls and six voicemails from Marshall. She said she eventually returned home and told Marshall she needed her keys. She said he arrived about 10 p.m. and accused her of cheating on him.
During a subsequent interview with a prosecutor, Callier was asked if Oumaria and Marshall had fought each other on the day that police arrested Oumaria. Callier said they had just argued. She said they were both drunk and got loud. She said police arrested Oumaria after he got “rowdy” with the officers.
Asked if she knew whether Marshall had used the tax refund money to get a gun, Callier said she didn’t know, but she had never seen a gun in the house.
Callier said she had not heard about the shooting until police came to the house. She said Marshall had never mentioned it.
Police searched Callier’s apartment, but found nothing of evidentiary value.
Later in the afternoon of July 22, Marshall stood in a line-up. He was 5 feet 8 inches tall and weighed 150 pounds. The fillers ranged in age from 25 to 29 – several years younger than Marshall. They ranged in height from 5 feet 9 inches to 6 feet three inches tall and weighed between 155 and 185 pounds. Eteh-Benissan, Zibo and Zakari viewed the lineup separately while the participants stood and while they were seated. Police reported that they each had identified Marshall as the gunman.
When interviewed by police, Marshall was asked if he knew Oumaria. He said he had seen Oumaria with Callier and that they were “friends.” Asked if they were more than friends, Marshall said, “She can [have sex with] who she wants. I can, too. We are grown.”
Asked if he knew why he was at the station, Marshall said, “No, I want to know what’s up.” Told it was for a homicide investigation, Marshall said, “[Obscenity] this, I got nothing to say without an attorney.”
On July 28, 2008, Marshall was charged with second-degree murder and criminal possession of a weapon.
In July 2009, a hearing was held on a defense motion to suppress the eyewitness identifications. Marshall’s attorney, Alan Stutman, argued that the photographic lineup was suggestive. He said that Marshall had cornrows parted down the middle, which was different from the other photographs. Stutman did not challenge the live lineup as suggestive, although all of the fillers were heavier and taller than Marshall, and Marshall was the closest to the descriptions given by the witnesses.
During the hearing, Marshall asked the judge if he could take a polygraph examination. The judge said he could testify instead, but would be subject to cross-examination. Marshall declined to testify.
On September 21, 2009, the court ruled that the identification procedures were not unduly suggestive. The judge said the men in the photo lineup had similar hairstyles. He also ruled that any height or weight differences in the live lineup were eliminated by having the participants viewed when they were also sitting down.
In December 2009, Marshall went to trial in Kings County Supreme Court. Before jury selection began, Justice Vincent Del Giudice asked for the names of any defense witnesses. After Stutman and Marshall had a private conversation, Stutman reported there would be no witnesses, but that Marshall wanted to address the court.
“What do you want, Marshall?” the judge said.
Marshall said he had repeatedly told Stutman about his witnesses. He said Stutman was not listening to him or doing anything. Justice Del Giudice said Stutman was a good lawyer and knew what he was doing. The judge then added, “I mean, you saw the evidence at the hearing. What do you expect [Stutman] to be, a magician? He is not a magician; he is a lawyer. He cannot change things. That’s enough.”
The judge’s comment was a harbinger of exchanges to come.
On December 7, as jury selection was beginning, Stutman said that Marshall wanted him to ask the prosecutor, deputy district attorney Timothy Gough, whether any surveillance tapes existed. Stutman said that Marshall “understands that there are video cameras in the area and he’s asked if there are surveillance tapes, [and] that they be turned over.”
Gough said, “Don’t have any. We have still photos which I supplied [to the defense] months ago.”
“And they’re of no value,” Stutman declared.
“There you go,” Justice Del Giudice said.
Marshall spoke up. “That was too quick,” he said. “It is tapes. He’s lying.”
The case then recessed for lunch.
On December 8, before jury selection resumed, Stutman noted that Marshall had shown him a police report “that he wants to share with the Court.” Stutman said the report said that security footage had been recovered from 1529 Dean Street, that two copies had been made and placed in the case folder.
In response, Gough said, “That is correct,” and noted that there was a follow-up report saying that “stills were taken from those videos.” Gough said he had copies of the videos, but he couldn’t open them. He said that when Stutman came to his office, the videos “were unreadable.” He added that was “one of the reasons why I assume stills were taken.”
Stutman recalled seeing the stills, though he didn’t remember keeping copies. He said he recalled “videos with no evidentiary value in them.”
Justice Del Giudice told Gough to get a copy of the video for Stutman to try to open. Gough said he didn’t believe “anything was transferred” to the video.
At that, Marshall asked why stills could be made if there was nothing on the video. “That’s the thing that’s messing me up,” Marshall said. “I’m confused.” He said he believed there was something on the video that would prove his innocence and he did not want anything erased.
Gough said that the surveillance camera was around the corner and did not show the shooting location. Del Giudice noted, “The police were looking to see if they could possibly see a suspect fleeing.”
The matter was dropped and a jury was selected.
Before the jury could be given its initial instructions. Stutman again raised the video issue. He said Marshall wondered how the prosecutor obtained stills if the tapes could not be opened or played.
Gough explained that TARU officers were “able to go in and get the stills.” He said TARU gave the copies of the videos and stills to the detectives, who turned them over to the prosecution. He said he was unable to view them, that he didn’t know how TARU was able to view them, and that the stills were made from “whatever programs” TARU had. Gough said he would bring in the two discs and give one to Stutman “for whatever computer he can get it to play on.” Stutman then asked that a TARU technician come to court.
Justice Del Giudice asked whether the stills were “all of the representations” from the video.
“Yes, that is my understanding,” Gough said.
“There is nothing else on that disc that hasn’t been made into a hard copy?” Justice Del Giudice asked.
“Yes,” Gough said. “That is my understanding. Correct.” He added that the stills showed “two individuals walking down the street.”
Justice Del Giudice said the prosecution’s position was not proper. He said it would “Fundamentally emasculate the law if the People could say, ‘The police department converted this to a disc. The police department can open it. I can’t open it. I will give it to the defense. If they can open it, they can open it.”
The judge ordered Gough to have someone from TARU or any police agency or the district attorney’s office come to court with equipment to view the video. He said that if it couldn’t be viewed, then he would order the police to allow the defense to view the tape at another location so he could compare the stills with the video.
The trial began with Zakari taking the witness stand first. He described the shooting, but when asked if he saw the gunman in the courtroom, he said he did not. Asked a second time, Zakari insisted the shooter was not in the courtroom. He testified that when he first arrived at the station, police informed him that someone had been arrested that morning. During cross-examination, Zakari said he did not remember telling a defense investigator that police had provided him with information about Marshall, including Marshall’s relationship to Oumaria.
During the cross-examination, Justice Del Giudice repeatedly sustained prosecution objections to questions about what Zakari had told the defense investigator. Marshall reacted, saying, “This is crazy.”
“Be quiet,” the judge warned.
Later, when the judge held a sidebar conference with lawyers outside the hearing of the jury, Marshall said, “I need to speak to the judge.” Justice Del Giudice said, “Be quiet, Mr. Marshall. I’ve warned you to control yourself. Don’t make an outburst…You are hurting yourself. If you keep doing that, you are hurting yourself. Don’t do that in my courtroom.”
Justice Del Giudice then told the jury to take a break and to “keep an open mind. Don’t form or express any opinions. You are all going to be fair. Right?” After the jury left, the judge admonished Marshall. When Marshall said, “Your Honor–“ the judge cut him off.
“Shut up,” Justice Del Giudice declared.
After Zakari left the witness stand, Gough said that he had talked to a TARU detective who explained that a specific program was required to view the video, and that if the prosecution did not have the program, TARU would supply a laptop with the program installed. Gough said he thought his office had the program and he would bring a laptop the following day.
Subsequently, Eteh-Benissan and Zibo testified. They both identified Marshall as the gunman.
The prosecution could not locate Callier to testify and an attempt to introduce her statement to police was rejected.
The following day, before the prosecution rested its case, Gough reported that he could not bring the district attorney’s office laptop, which he knew was able to play the video, because “Tech Services…will not let it out of…sight.” A colleague had brought another laptop but it did not work. The colleague was going to try to get another laptop.
After the lunch recess, Stutman said, “My client would like to know if there are any certifications which would verify the location from which this tape was taken.” When Gough said there were not, Stutman asked how the prosecution got the discs. Gough said the information was in the police reports.
Marshall told Justice Del Giudice that on April 3, 2009, prior to the trial, he had filed a request before a different judge asking for a different defense lawyer, but there had been no response to the ruling. Marshall complained that Stutman had failed to visit him in jail, failed to listen to his account of events, and had not provided Marshall with copies of court documents. He said Stutman failed to discuss legal strategies, return phone calls or respond to his written entreaties.
Justice Del Giudice replied that Stutman was “not a magician. He can’t change things. He can only try to make them not that bad. So that’s just the way life is, all right.”
“You’re not even going to read this motion?” Marshall asked.
In response, the judge said the motion was denied.
The defense called Tonya Marshall, who was Marshall’s sister. She told the jury that on the night of the shooting, she was at home with her children as well as her mother. She said Marshall was there and that at about 9:45 p.m., she watched her mother walk Marshall downstairs to catch a bus in front of the building.
Marshall then took the witness stand. Instead of asking questions, Stutman asked him if there was anything he wanted to say about the shooting. Marshall said yes, but not about the shooting, “but about my whereabouts and what I’m being accused of – wrongly accused of – anyway.”
He said that on the day of the shooting, he went to buy rice and fish for Callier, but then went to see his mother at Tonya’s house. He recounted how he had taken photographs of Callier while they were having sex and showed them to his nephew and Tonya’s boyfriend. He said his mother got upset, and Tonya told him to leave.
He said he had no problems with Oumaria; they had “sat together, dr[a]nk beer together.” Marshall began explaining that Callier’s mother was actually his girlfriend, not Callier, and that Callier dated Marshall’s brother. He then said that he and Callier had an affair while Callier’s mother went to rehab and his brother was in jail.
The judge interrupted. “Marshall. Marshall. Enough with the story. Why don’t you tell us about July 15, 2008?”
“There [is] really nothing I could tell you about July 15 as far as it comes to this guy’s getting murdered,” Marshall said. “Because I was not there.”
He said that when he left Tonya’s house, he went to St. John’s Place and Ralph Avenue where he hung out with friends until 12:30 a.m. when he returned to Callier’s apartment and went to sleep.
He said he did not kill Oumaria and hoped that police would find the person who “really committed the crime.” He added, “There’s tapes. There’s tapes with – “
The prosecutor objected.
“ You mean, I can’t – “ Marshall began.
The judge directed Gough to begin cross-examination. Marshall said he wasn’t finished testifying.
“Be quiet,” the judge said.
A recess was declared. Justice Del Giudice met outside the courtroom with the lawyers. He said Marshall was “talking poetically about things that have absolutely no relevance to these proceedings. He did finally say that he wasn’t there and he doesn’t know who did it and he feels bad that the guy is dead.”
When the trial resumed, Marshall continued to testify. He said he had been locked up for 16 months for a crime he did not commit. He said he ran from police when they came to Callier’s house because he and Callier each had an order of protection against the other. He denied mentioning killing anyone to the police. He said he had never killed anyone and would take a lie detector test to prove it.
“Anything else,” the judge asked.
Marshall said that while in jail, he had tried to get his paperwork.
“That’s enough,” the judge said.
“The tapes –“ Marshall began.
“Be quiet, Mr. Marshall,” the judge said.
“Why?” Marshall asked.
“That’s not relevant,” the judge said.
Marshall said there were “tapes that show the perpetrator, your honor.”
“Mr. Marshall, stop it,” the judge declared. “I’ve warned you several times outside the presence of the jury. Now, I have to do it in front of the jury. Act like a gentleman.”
“What am I doing wrong?” Marshall asked.
“Follow the rules,” Justice Del Giudice said. “Do you have anything that you want to say that’s relevant regarding this trial?...Not some wishful thinking on your part?”
Marshall said there were “legal documents I have right there in my possession. I’m [asking] why that’s not relevant?”
“I find that you are not saying anything that’s relevant to these proceedings,” the judge said. He looked at the prosecutor. “You can cross now.”
“All right, go ahead,” Marshall said. “They don’t want me to show you the proof. This is really crazy.”
During cross-examination, Marshall admitted that from 1992 to 1999, he had convictions for possession of stolen property, robbery and attempted robbery. He insisted he knew nothing about the murder.
After cross-examination was completed, Stutman asked, “Is there anything else you wanted to tell us?”
When Marshall said he was “not able to show –“ the judge interrupted. “Sustained,” he said.
When Marshall asked why, Justice Del Giudice said, “I just sustained it. You are trying to tell the jury something that you know is not admissible.”
“I’m not telling about that,” Marshall said. “You are not even giving me a chance to talk.”
“You had your chance to talk,” the judge said, and ordered the jury to step out.
When the jury were gone, Justice Del Giudice said, ‘Well, Mr. Marshall, it’s clear from the manner in which you testified, I want the record to be clear, you were nasty, you were arrogant. You refused to follow the instructions of this Court. You did everything you could to inflame this jury against you…You purposely went out of your way to attempt to show this jury that in your own perception, you are being railroaded when you don’t even realize what real justice is.”
When the jury returned, the judge said that Marshall, “on occasion, has been acting out. I asked you the first time he acted out yesterday to disregard these things. Don’t hold it against him.”
After the jury was sent home for the evening, the judge told Marshall that he was going to remain impartial no matter “how contemptuous or belligerent…or arrogant or disrespectful that you continue to be.”
“I’m a professional,” the judge said. “I’m going to do everything I can, notwithstanding your antics, to give you a fair trial in this case.”
“Have a nice day, your honor,” Marshall replied.
The following day, Marshall sought to admit into evidence two police reports that said the gunman was 16 years old and 5 feet 9 inches tall, and that the motive for the shooting was unknown.
Marshall also had one of the still photos from the disc showing two males, one of whom appeared to be holding a gun. “This is not me,” Marshall said. He said he had been railroaded and did not understand why the documents would not be admitted into evidence.
“I’ve had enough of you,” Justice Del Giudice said. “All you do is rant –”
“Because I’m innocent,” Marshall retorted.
The judge then threatened to hold him in contempt.
Donald Graham, a defense investigator, testified that Eteh-Benissan had told him that the live lineup participants did not resemble each other. He said that Eteh-Benissan said he could not make a positive identification and had said Marshall looked familiar but he “could not be sure.”
After Graham finished testifying, Marshall said that Stutman was a “buddy” of the prosecutor. Justice Del Giudice held Marshall in contempt and sentenced him to 30 days in jail. He ordered Marshall removed from the courtroom. Marshall replied, “I’ve got pictures of the shooter in my possession, and you all not submitted them as evidence in the case.”
He was then escorted from the courtroom. The judge said the trial would continue without him unless Stutman wanted to talk to him and assure the court that he would behave. After a break to allow Stutman and Marshall to speak, Marshall returned to the courtroom and remained silent during the closing arguments.
The prosecution said the shooting was the result of anger and jealousy over Oumaria’s relationship with Callier. Gough said that Zakari had not identified Marshall in court because he was afraid. The defense argued that the identifications were mistaken and the result of unfair identification procedures.
On December 11, 2009, the jury convicted Marshall of second-degree murder. As the judge thanked the jury for its service, Marshall yelled that he had not killed Oumaria and had “pictures to prove it."
On January 5, 2010, Marshall was sentenced to 25 years to life in prison.
In 2012, the Appellate Division, Second Department, upheld his conviction. In 2014, Marshall, acting as his own lawyer, filed a petition for a writ of habeas corpus in U.S. District Court for the Eastern District of New York. That case was put on hold at Marshall’s request and ultimately was dismissed.
Ultimately, Marshall and his attorney, Justin Bonus, asked the CRU to review his case. In its report, the CRU detailed all of the efforts Marshall undertook to get physical possession of the video. After offering the video for purchase, the state rescinded the offer because of the pending federal habeas litigation.
In May 2024, while the CRU was still investigating the case, Justice Del Giudice retired. At the time, it was reported that he had a reputation as a harsh sentencing judge, and that his sentences had been reversed 19 times by appeals courts, resulting in more than 500 years in reductions.
The CRU found the videos and uploaded them and viewed them “without issue.” The videos show two young Black males, one of whom is wearing a white t-shirt, dark pants and something dark on his head – “matching exactly the description of the shooter provided by all three eyewitnesses,” the CRU report said.
The videos show the youth lift the white shirt, remove a dark object from his waistband, and hold it by his side as he and the other youth go off-screen walking toward Albany Avenue. Then two older men appear. One is walking toward Albany Avenue on the same side of the street as the two youths. The other man was walking two dogs on the other side of the street. The video shows that suddenly both men look toward Albany Avenue and stop walking. Then they both turn and start quickly walking away. Moments later, the two young males come back into the screen, sprinting away from Albany Avenue. The one with the white t-shirt and dark pants is holding his right arm by his side, apparently holding a handgun.
The CRU noted that the trial prosecutor had falsely claimed that the still photos represented the entirety of the videos.
The CRU noted that prior to Marshall’s trial, Zakari told the defense investigator that at the live lineup, Marshall didn’t look like the others in the lineup. He said that he picked Marshall because he “looked like” the gunman. And when the defense had shown Zakari a photo array with Marshall’s photograph, he did not identify anyone as the gunman.
The CRU noted that the defense had received information from “a contact” who said that Jamal Jones, who lived at 137 Albany Avenue, next door to where the shooting occurred, had ordered the shooting. Oumaria was a victim of mistaken identity. The contact said the shooter was a 16-year-old who was part of Jones’s drug operation. Jones was targeting someone who he believed was intruding on Jones’s drug territory, but Oumaria was shot by mistake instead, the contact said.
The CRU interviewed Jones, who denied being behind the shooting. However, he did confirm that at the time of the shooting, he was angry because someone had invaded his drug turf while he had been in jail. Jones viewed the surveillance video and identified one of the two males seen walking toward Albany Avenue before the shooting.
The CRU interviewed Zakari, who said that before he viewed the live lineup, the detectives told him, Eteh-Benissan and Zibo that they “got” the shooter. Zakari confirmed that he identified Marshall because he looked the “most like” the gunman. After the three viewed the lineups, the detectives told them that they had identified “the right guy.”
The CRU concluded that the prosecution had made misstatements about the videos; that the defense failed to investigate it, and that the police apparently never watched the footage in its entirety. “If they had, they would have seen the shooter fleeing from the scene with another individual, and they would have used that information to inform their investigators, and they would have relayed those findings to [the prosecution],” the CRU report said. “[T] police failed to investigate the other witnesses on the video.”
On August 9, 2024, the CRU asked that Marshall’s conviction be vacated and the case be dismissed.
“Because, at this late state, there is no avenue of investigation to locate witnesses seen in the surveillance footage or determine the identity of the contact, or investigate information the contact supplied, the indictment should be dismissed,” the CRU report said.
– Maurice Possley
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