"I don't expect to be justified by the laws of man"--Bob Marley
With the West Indian Day Parade just hours away, steel pan drummers filled Labor Day morning with pulsating rhythms. As floats carried revelers along Flatbush Avenue for the pre-dawn Caribbean celebration of J'Ouvert, a special homecoming took place.
Waving the flag of his native Trinidad, 39-year-old Colin Warner rode on a float of his own, family and friends by his side. Band members swayed to the music, wearing T-shirts that declared "VICTORY FOR OUR HERO COLIN WARNER."
Warner, an electrician's apprentice who lives in East Flatbush, has lived through the impossible, twice over. He went to jail for 21 years for a murder he did not commit, and successfully mounted his own case--with the help of a devoted childhood friend, Carl King--to convince a judge to set him free.
For Warner, with King by his side, there were autographs to sign, hugs, tears and well-wishes to share. One NYPD officer asked to shake hands with him. "It still throws me that people would feel this way," Warner says modestly. "It's not for me personally. People have family and friends caught up in the system, and I'm just out here representing how they feel."
These days, Warner revels in the simple pleasures he never knew if he'd ever experience again--a cool breeze, a cell phone, time with his wife and her 13-year-old daughter. "A lot of guys who come out of prison don't have a family structure, so this is a blessing in itself," he says.
Suddenly, Warner has returned to a city he had never truly adjusted to in the first place. "Slowly, I'm getting there, but I think it's harder than I thought it would be," he admits. Entering a bus in Brooklyn recently, Warner incorrectly swiped his Metrocard. "I jammed it and my wife was laughing because everyone else got on the bus for free."
Warner takes these things in stride, but the gut-wrenching truth of stolen years is never far from his mind. "I am relieved that this nightmare is over, but it is not really over because I will have to live with this for the rest of my life," he says.
Last April, Warner and his lawyer, William Robedee, filed a $92 million claim under the Unjust Conviction and Imprisonment Act, which provides for compensation for people who have been wrongfully convicted in New York State courts. They have also filed a notice of claims against the NYPD and the Brooklyn District Attorney's office, for a civil rights suit charging that the NYPD deliberately misled child witnesses during interrogations and that the D.A.'s office maliciously prosecuted Warner by ignoring evidence pointing to his innocence. The state Attorney General and Brooklyn D.A. both declined to comment on the pending cases.
A Hollywood studio would reject the story behind Warner's conviction and his eventual release as "over the top." But his story is not unique, and it's a product of some inescapable realities of New York's criminal defense system. Court-assigned lawyers for the indigent don't have the resources to conduct their own investigations; they're paid so little, in fact, that they can barely stay in business, just $25 an hour for out-of-court work. In preparation for trials, defense attorneys have extremely limited access to evidence such as police reports and grand jury minutes--a constraint that also makes it difficult to get a conviction overturned.
"What lawyers need is time: to interview clients, investigate cases, think about them. But fees are so incredibly low that work goes undone," says Jonathan Gradess, executive director of the New York Defense Association. "That right to counsel, supposedly the crown jewel in the Bill of Rights, is not really counsel at all. If you don't have the tools of forensic evidence, you can appeal the case, but you don't have the evidence to get a conviction overturned." Gradess' organization, which provides support and information to defense lawyers, is ill-equipped to pick up the slack: As a result of this year's state budget cuts, the group has laid off seven staff and closed its intake of new cases.
Court-appointed attorneys agree that they are not equipped to carry out investigations. "Which investigator wants to work for a [court-appointed] attorney? asks Elsie Chandler, a criminal defense lawyer who works with poor clients. "They're not going to work on a case for those who can't afford to take on those cases." Once a verdict is handed down, New York convicts do not have a right to an attorney to get a judgment vacated, no matter how badly a case may have been mishandled.
With a defense so readily hobbled, a prosecution can write most of the script in court. And that's what happened in the case of The People of the State of New York v. Collins Hillary Warner. Sitting in the courtroom during his trial, barely old enough to vote, Warner had to watch helplessly as false testimony from a 16-year-old instantly decided his fate. Judge Albert E. Murray's statement before the sentencing reveals the level of doubt swirling around Warner's involvement: "The system that we have, we put in process. Is it perfect? Is this verdict true? I don't pretend to know. I don't have the capacity to know. I'm not superhuman."
"You hear people say how your life flashes before your eyes? Well that literally happened to me," says Warner. "I was so naïve because I believed that no matter what was being said, I could not be convicted. It was like a snowball effect where it started rolling down the hill and nobody was trying to stop it."
The year was 1980. Brooklyn's streets were surging with new energy. The borough took on a distinct Caribbean flavor as immigrants poured in from Trinidad and Tobago, Jamaica, Haiti, and Guyana. The 1980 U.S. Census reported that the areas of Crown Heights and East Flatbush boasted Caribbean populations of well over 20,000.
Warner, then 18, had arrived to New York from Trinidad just two years earlier, joining his mother in Crown Heights. Warner, like others in the Caribbean, was dazzled by tales of how the Big Apple's streets were said to glisten with opportunity and adventure. "Brooklyn was a candy store to me, because Trinidad is a small place," he recalls. "We were always on the streets, not robbing or stealing, but just enjoying life."
Young men from the islands, though, were in for a rude awakening as they received the cold shoulder from some of their black American counterparts. As Rastafarians, Warner and his friends were isolated into their own clique. Run-ins with the police happened often for Rastafarians; their flowing locks and green army jackets stereotypically branded them as a bizarre cult or a menacing band of gun-toting drug dealers.
Warner and his friends learned the streets could be fertile ground for trouble when they found a .38 caliber pistol whose trigger was apparently missing. During a stop-and-frisk in 1979, Warner was arrested and charged with gun possession, receiving three years' probation--and a mug shot in the police files.
A year later, Warner had just completed a mechanics' training course. He was moving in a new direction. "He was a pretty cool and loving guy," recalls King. "We were rebellious and we didn't feel we needed a college education, but he was real educated and liked to write poetry."
But on April 10, 1980, his life came to a crashing halt, starting with an incident he knew nothing about. That afternoon, as classes ended at Flatbush's Erasmus Hall High School, Mario Hamilton, a 16-year-old Jamaican immigrant, stood a block away on Lott Street between Erasmus Street and Snyder Avenue. A 15-year-old school friend, Norman Simmonds, walked up to Hamilton and fired a single bullet into the back of his neck. Two other friends of Simmonds' witnessed the murder.
Mario's younger brother, Martell, found out about the shooting a couple of minutes later, when a friend of his brother's, 14-year-old Thomas Charlemagne, ran to find Martell several blocks away. "We ran back to the scene and I was hoping I was mistaken," Martell recalls. "As soon as I got to the corner of Lott Street and Snyder Avenue, I knew it was no mistake because I recognized my brother's pants and the shoes he was wearing as he lay in the street. What will always stay in my mind is the amount of blood I saw."
While consoling Martell, Charlemagne told him that he had witnessed the shooting. As Mario was rushed to Kings County Hospital, officers from the 67th Precinct drove Charlemagne and 15-year-old Martell to the station house and took statements for nearly six hours. Paralyzed with grief, Martell sat outside of the room where Charlemagne was interrogated. "They kept showing Thomas different photographs. They were shooting really hard questions at him and I basically heard Thomas quivering," says Hamilton. "They showed me photos as well, but I didn't know any of the faces they were showing me."
According to police transcripts, Thomas Charlemagne told detectives it was a drive-by shooting. The passenger in the front seat, he said, jumped out of the car, shot Mario Hamilton, and pointed the gun at him before re-entering a speeding Buick. He identified Simmonds as the driver of the car. During his interrogation, Charlemagne confirms, when asked by an officer, that he picked out Warner's photo and identified him as the shooter.
Hamilton contends that he and Charlemagne were interviewed alone; his grieving parents weren't notified their son was being interrogated, and as far as he knew, Charlemagne's weren't, either. According to criminal lawyers, the police were following standard procedure.
The next morning, detectives went to the Hamilton home for a follow-up interview. "I had been crying all morning. My sister took me to the kitchen where they were. [The detectives] then told her, even though she was an adult at the time, to leave the room," says Hamilton.
According to Hamilton, a detective placed five photos on the kitchen table. "They kept asking me if I recognized any of them, and I told them no," he recalls. He also told detectives that two days before the shooting, Norman Simmonds had threatened to kill his brother Mario. Hamilton now says he felt intimidated by the lead detective, whom he describes as a "very big and burly guy." The atmosphere made it unlikely for a young teen to make a rational decision, which could explain what happened next. One detective "pointed at Colin Warner's photo and pushed it out of the pile so it stuck out," says Hamilton. "Just so he could stop harassing me, I said I might have seen him before."
The day of Mario Hamilton's murder found Colin Warner driving around Crown Heights with a friend in search of a variety store. He had no clue that he was in the final hours of life as a free man.
Warner didn't even know any of the young men involved in the case. He told police of his whereabouts on the day in question. None of it was enough; he was arrested, charged with murder in the second degree and held without bail.
Six months later, police arrested Norman Simmonds in front of Erasmus Hall as an accomplice, and likewise held him without bail. Simmonds, speaking out for the first time, tells City Limits that he was shown pictures from a mug book and asked to identify his collaborator. "As a matter of fact, one of them was of Colin, but I told them that I didn't know anybody." Simmonds, too, maintains that he was interrogated without a parent or lawyer present.
Simmonds had arrived from Jamaica in July 1977, on the day of the city's infamous blackout. At Erasmus, he developed a friendship with Mario Hamilton, but things soured between them when Simmonds accused Hamilton of fatally shooting a mutual friend. Simmonds was pumped with thoughts of revenge when he fired the fatal shot. (Simmonds now concedes that Mario didn't shoot their friend, but implies there were other motives behind the murder: "Hamilton's enemies were my friends.")
As the case moved to the grand jury, the prosecution built its case around Charlemagne's account. Warner and Simmonds were indicted on charges of second-degree murder and criminal possession of a weapon.
Then Charlemagne suddenly disappeared--for two long years. As they awaited the start of the trial, Simmonds and Warner would meet, for the first time, on Rikers Island. "I was a skinny little kid, and I was a little afraid because this man was in jail for my crime," Simmonds reflects. "Colin didn't seem like the type to hate anybody, but if he wanted to do something to me, I could understand."
But realistically, all Warner could do was hope that a jury would sort everything out. "I have come to terms with [Simmonds]," says Warner.
When Thomas Charlemagne finally resurfaced, the prosecutors had a new challenge: Their star witness was accused of holding up a Brooklyn restaurant in an armed robbery. Warner's attorney, Robedee, suspects that Charlemagne decided to continue cooperating because testifying in the murder case provided him with the promise of a lenient plea in his own case.
This time around, Charlemagne's testimony differed drastically from his own previous accounts. The grand jury, the district attorney, detectives, and now the jury all heard different stories, which changed considerably each time they were told. At the trial, Charlemagne reversed his account and identified Warner as the driver of the car used in the murder. Norman Simmonds, he now said, was the front-seat passenger who shot Mario Hamilton. "I never knew [Charlemagne] existed," says Simmonds now. "I knew that everything that guy said out of his mouth was a lie because the real witnesses never took the stand."
Bruce Regenstreich, who represented Warner in the first trial, says he firmly believed in his client's innocence and was convinced that the evidence against him was too weak for the case to proceed. "I filed a motion to have the case dismissed because [Charlemagne] admitted on the witness stand that he lied to the grand jury." The motion, however, was denied. The trial transcripts suggest that the judge may have been swayed by the prosecution's technical argument that only a jury could decide on the credibility of witnesses.
So why did Charlemagne lie? The answer still remains a mystery. Years later, when Warner's legal team attempted to contact Charlemagne, they learned he was deported to Haiti and most likely killed in 1994, during coup-related violence.
"He didn't realize what he was putting himself into. You can't tell a little fisherman's story and figure there are no repercussions behind it," says Hamilton, who was a material witness in the trials. Hamilton did have strong doubts about Warner's involvement, but says he began to second-guess himself. Through the course of the trial, as the prosecution made its case, he became convinced that it was possible for Simmonds to have known Warner and recruited him to kill his brother.
Unable to decide on a verdict in either of the charges Simmonds faced, the trial ended with a hung jury. Warner was acquitted of weapons possession charges, but he still faced the murder charge.
Warner believes his attorney fought hard, but admits his defense was damaged when his friends did not testify. They were with Warner that day, and could have provided crucial testimony proving he was nowhere near Erasmus Hall when Mario Hamilton was killed. "The evidence was so shaky, my lawyer decided not to call them," Warner recalls. Regenstreich says he does not recall why Warner's friends were not called to testify: "I wouldn't make that decision."
Simmonds was presented with a deal to take a two- to six-year sentence, which also offered the chance to have charges dropped against Warner. Simmonds, however, refused, believing he could beat the charges. "No one asked me if I did this crime," Simmonds says. "I knew I did this crime, but they were going to have to prove that I did it. I didn't have the ability to think that if something went wrong, [Warner] would have to spend the rest of his life in jail."
In the end, Warner and Simmonds were convicted of second-degree murder. Simmonds, because of his age, was later sentenced to nine years in juvenile prison. In June 1982, Warner received a 15-to-life sentence. At the trial, there was no testimony to support Charlemagne's version of events. The jury and Judge Murray found his testimony credible. It was all a lie.
Warner spent about a month at the Elmira Correctional Facility, an upstate detention center for juveniles, before he was transferred to Coxsackie, an adult prison in Greene County. Each day, he fought against becoming immersed in the new culture. "It's humiliating. You have to lower yourself in certain situations in order to survive," Warner reflects. "If you claim you're [tough], and act like that, you cannot in prison. [Other inmates] will try to break you physically and mentally."
Warner admits to "losing himself" during his first several years behind bars. A few scrapes with other inmates landed him in solitary confinement and led to his being transferred to other prisons. Warner recalls a complicated relationship with correctional officers. "Everyone isn't bad, but you're part of a system which has me in prison, even though you didn't directly partake in my conviction," he says.
Trying to identify with the outside world from inside prison's walls proved difficult. "What [prisoners] believe in, what they do, how they talk--their whole lives is prison. And that's what I was fighting against. Yes, I'm in prison, but I'm not a part of it." This realization gave Warner new ways of handling minor incidents full of explosive potential. "It can get really petty. In the TV viewing area, some people were claiming tiles," Warner says, laughing at the absurdity. "They need something to control because their lives are being controlled."
The shadow of wrongful imprisonment haunted Warner daily. "It got to the point where I felt like I was born in prison. Prison became more real than the life I had, so everything that I did, every book that I read was geared toward my freedom," he says. He went on to earn a degree in business management.
As Warner battled for a new hearing, King reintroduced him to a mutual friend, Catherine Charles. She became an important ally, and later, his wife. "We started writing as pen pals and built a relationship," Warner says. "She's a strong black woman to stand by my side with a life sentence. I told her it was not guaranteed that I would be out, but her faith was so strong."
Warner made his first direct appeal with the belief that freedom was at hand. After all, he reasoned, his innocence was so obvious. But losing the appeal dashed the slim faith he had in the criminal justice system. "It felt like I was going through the whole thing all over again, because I had a lot of hope about the appeal," he says. "I lost my trial and I kept hoping that people would realize the mistake they made."
By 1995, Warner was up for parole, but he had little chance of getting it. One strike against him was his scrapes in prison, but the parole board also took serious heed of his refusal to admit to the murder. Warner had two subsequent parole hearings, and was struck down both times, for a total of four more years behind bars. "In their eyes, I was a convicted murderer who was not accepting responsibility for the crime," says Warner. "They only look at the crime and not what the person has accomplished in the years since. They have that as a guideline, but they don't follow it."
Slowly, painfully, it became clear that justice was not going to be an available commodity. "If I never stayed on top of this case," contends Warner, "it would have been no problem for the state to just let me die in there."
Carl King wasn't going to let that happen. He and Warner were acquainted in elementary school in Trinidad, but it was in Brooklyn that they bonded as street-corner pals--a relationship that only deepened with Warner's troubles.
At the beginning of the ordeal, King started out no more aware than his friend that the public defense apparatus had little to offer his friend. "When he was arrested, I was 17 and I didn't really have too much knowledge about the law," remembers King. "I figured the law is above me and that I really had to study it in order to know it."
Through much of the 1980s, Warner and a series of court-appointed attorneys tried numerous direct appeals. In retrospect, Warner and King agree, the case was mistakenly fought by revisiting technical violations the prosecution had committed at the trial. While there was plenty of evidence that Warner did not receive a fair trial, the new efforts did not aim or suffice to prove him innocent. "We were focusing on how the judge instructed the jury, and the double jeopardy [clause] because Colin was charged as the shooter in the first trial and they dropped the gun charge, but he was still charged with murder in the second trial," King says.
From his cell at Clinton Correctional Facility, Warner did what he could, sending letters to 60 Minutes, Dateline and other news outlets, as well as legal groups advocating for the wrongly accused. "I wrote to every organization that supposedly helps people who are convicted falsely," Warner says. But proving innocence often takes a time-consuming investigation, and the resources to challenge a conviction are scant, says Ron Tabak, a New York lawyer instrumental in drafting the American Bar Association's 1997 resolution calling for a nationwide moratorium on capital punishment. "Usually when I get a letter from a prisoner, I have to turn them down either because there are not many people with the proper qualifications to handle it or due to a lack of time," he says.
Defendants without access to financial resources are left to launch their own investigation, starting with the paper trail from the original trial and moving into a full-blown private hunt for new evidence. "It's not easy to reinvestigate a 20-year-old murder without any resources," says William Robedee. "It requires someone to say, 'I'm going to do this whether or not I make any money,' and it's the [financial] reality that keeps a lot of people from getting involved in something like this."
There were other shortcomings in the defense. Despite their intimate knowledge of Colin Warner's case, King says he and Warner's family were never included in legal strategizing. "Whenever we would ask the lawyers any questions, they were acting as if we were not supposed to ask them. So, I realized we had to do this thing on our own, partly because we knew this case better than any other attorney." King started paying for attorneys, private investigators and copies of court transcripts, spending at least $40,000 out of his own pocket. When he learned that a family member was working as a summons server, he became one too--and gained direct access to the courts. Intrigued by the investigation process, he reasoned that Warner's freedom would be proven not in a courtroom, but in the streets. "To overturn [the conviction] an attorney had to bring in a movie camera to reenact that scene. It's too much for an attorney who isn't going to go out in the street, especially a crime that happens in a black or Hispanic neighborhood. It takes an investigator who can fit in with the people," says King.
The intense work wasn't without its toll. In the middle of it, King split with the mother of his two daughters, leaving him a single parent. "A lot of people in my family couldn't understand how committed I was to this," admits King. "I still owe MCI and Sprint for long-distance calls related to the case, and there were times when funds were exhausted." King says he stayed motivated by recalling the story of boxer Rubin "Hurricane" Carter, who was wrongfully convicted for a 1967 murder.
Warner's lawyers put forth little effort, says King. "We weren't getting too many answers. No one actually said, let's go back and find out what happened from day one on April 10, 1980."
One afternoon two years ago, King distributed business cards outside the courthouses in downtown Brooklyn. He was looking not only for a job assisting attorneys, but for a lawyer prepared to fight Warner's case like no one had before.
William Robedee was a man in transition when he received King's card. After working for the Brooklyn D.A.'s office, Robedee was setting up his own law practice with his wife, Shirley, out of their Bay Ridge apartment. Robedee called King seeking office help. Once he was hired, King wasted no time directing the attorney's attention to the Warner case.
Given the case's many twists over two decades, Robedee had some reservations, but he finally decided to take a look. "I told [King] to bring the files over," recalls Robedee. "He came over with a box with about 2,000 pages stuffed inside--trial transcripts, paperwork, and all the stuff Colin saved for years. I was just so impressed that Carl was so devoted to him." It wasn't long before Robedee realized just how badly the case had been handled. "The statements from the eyewitnesses were coerced by the police and the D.A.'s office," he contends. "They got the indictments against Colin, but at the same time they're looking for Norman Simmonds, which is a little strange. No one is asking what Colin's motive was. Why would he have done this?"
After two decades of appeals, Warner had seemingly exhausted all the resources available to him. Lawyer William Kunstler had even taken the case, filing a motion arguing that the evidence used against Warner at the trial was so weak that it violated his constitutional right to due process. "It was an interesting argument. Maybe someone would have bought it in the '70s, but they weren't buying it now," Robedee says. "This is a real law-and-order kind of city now. We have a lot of fantastic judges, but no one wants to be on the front page of the New York Post saying that a convicted murderer was let out on a technicality."
It's exactly this climate, legal advocates for the accused agree, that punishes innocent inmates for their wrongful convictions. "Once you're convicted, there is no longer a presumption of innocence. There is a presumption of guilt and it's very overwhelming," says Ron Warden, whose Chicago-based Center for Wrongful Conviction receives about 75 cases each year.
Warden's organization has won the release of several innocent inmates. For each case it takes on, a journalism student obtains the trial transcript and probes into basic facts. "We look for things that can establish the innocence of this person," Warden explains. "Is there a witness no one knew about at the time? Is there physical evidence that can shed light on the case?"
In Warner's case, the biggest piece of evidence was Norman Simmonds. In 1991, in support of a motion to overturn Warner's conviction, Simmonds had agreed to file an affidavit for Warner, stating that he was solely responsible for Mario Hamilton's death. The court, however, struck the motion down. "The system wasn't going to listen to what I had to say because I was convicted," says Simmonds. "It didn't matter how many letters you write."
Seven years later, King tracked him down, and Robedee sent a letter pleading for Simmonds' help once again. Recalls Simmonds, "I went home and got a letter telling me Colin was still in jail. As soon as I finished reading it, I started to cry." Simmonds says he immediately drove from Long Island to Robedee's office. In a lengthy interview with Robedee and King, Simmonds gave his motive for killing Hamilton. And for the first time, he also revealed the names of other witnesses to the shooting.
King hit the streets in pursuit. Using 20-year-old addresses and phone numbers, King tracked down the witnesses and encouraged them to come forward. Memories of the murder, seared deep into the consciousness of Simmonds' friends, motivated them to eventually agree to help. "It was the most traumatic events of their lives. We forget the fact they're children who saw someone get his brains blown out right in front of them, and from that moment they all changed permanently," says Robedee.
The team still needed one more thing: the support of the Hamilton family. "We wanted them to believe in this," says Robedee. "No judge, [despite] how compelling the evidence is, will let a convicted murderer out if this victim's mother is screaming 'How dare you let that pig out? He killed my son!'"
Martell Hamilton was wary when he learned of efforts to revoke Warner's sentence. "It brought back a lot of painful memories," he says. "But when I saw all of the evidence, it blew my mind." For him, analysis of the autopsy report revealing it was impossible for his brother to have been killed in a drive-by shooting was especially convincing. That evidence had never been brought up at the original trial.
It took 21 years to prove Warner's innocence and just a week to overturn his conviction. Among the evidence Robodee brought before the court last January was a complete record of the police investigation, analysis of the autopsy, and the depositions of Simmonds and his friends who witnessed the murder. The Brooklyn D.A.'s office then conducted its own investigation by subjecting the eyewitnesses to polygraph tests. It decided not to oppose Warner's release.
Colin Warner left prison on February 1, 2001. "The day Colin was released was like a miracle you prayed for and worked hard to see," says King, who showed up with Catherine Warner and a crowd of news media to greet Colin at Fishkill Correctional Facility.
But now, nearly a year after his release, the state is fighting Warner's multimillion-dollar claim under the state's Wrongful Conviction act, which is seeking compensation for pain and suffering and lost wages. In papers signed by Assistant Attorney General Janet Polstein, the state argues that although Robedee listed numerous factual grounds for overturning Warner's conviction in his motion to get the case dismissed--including misconduct by prosecutors and the use of false evidence to obtain a jury decision--Judge John Leventhal never cited any of them in his ruling, thus making Warner ineligible for an award.
New York is unusual in even offering the prospect of compensation; Ohio is the only other state with such a law. The state legislature created the Wrongful Conviction and Imprisonment Act in 1984, the culmination of a series of efforts to compensate the unjustly incarcerated that date back to the 24-year imprisonment and near-execution of Izzy Zimmerman, a hotel doorman who had been framed as a murder accessory by gangsters. Since the act was passed, no more than 200 people have filed cases, according to the Court of Claims. Of those, fewer than 20 have received awards. That's partly explained by the law itself, designed to limit the volume of claims: People whose convictions were overturned on the basis of factual evidence are eligible, but those who were released on constitutional or technical grounds are not. The ex-con also has to prove to a judge beyond a reasonable doubt that he or she is innocent. This serves to exclude not only perpetrators from collecting awards, but some innocent people, too.
When it comes to viable claims for compensation, the state has consistently worked to minimize how much