Opinion: More Transparency Needed on Brooklyn’s Tainted Convictions

“Brooklyn’s Conviction Review Unit is rightly considered a national model,” DA Eric Gonzalez said in advance of a Barclays Center panel discussion in late January. Last week, the CRU exonerated Bladimil Arroyo, bringing the total number of Brooklyn exonerations to 25 since 2014.

That laudable number means that Brooklyn is far ahead of its local counterparts—particularly Queens, which has no review unit—in addressing its flawed practices. Chicago, under Kim Foxx, is now the national pace-setter in overturning wrongful convictions.

Gonzalez encouraged his Twitter followers to check out the CRU’s report on the Arroyo case, stating that it would show the “lessons learned” by the office from the wrongful conviction. Arroyo had spent the last 16 years in prison, after his 2003 conviction for a murder two years earlier in Sunset Park.

This is the first of the 25 exonerations when the CRU has made its report widely available. Yet while it describes the police investigation, trial and subsequent CRU findings in considerable detail, the report conspicuously does not name the lead prosecutor in the case.

That the assistant district attorney who handled Arroyo’s murder trial, Timothy Gough, is currently chief of the homicide bureau in the Brooklyn DA’s office may cause some concern about the lessons learned from the case. If nothing else, the office’s refusal to name Gough suggests that the CRU needs to take further steps to become a national model of transparency.

On September 16, 2001, Bladimil Arroyo confessed to the murder early that morning of a man named Gabor Muronyi in a dispute outside of Sweet Cherry, a strip club on 42^nd Street and 2^nd Avenue in Sunset Park. Arroyo told police investigators in a videotaped statement that he stabbed Muronyi. The next day, the autopsy report came back showing that Muronyi had been shot to death—and not stabbed—in the incident.

In its investigation, the CRU found that several police reports identifying other suspects at the scene were not turned over to Arroyo’s defense lawyer. But in the CRU’s view, foremost among the “several missteps” made by the prosecutor in the case was that he “should have questioned the circumstances of the confession.” As ADA Gough was aware at the time, Arroyo had relayed false info fed to him by a detective.

Although the CRU’s report identifies that detective, Robert Keating, it refers to Gough only as the “trial prosecutor.” In her 2010 rejection of Arroyo’s appeal, federal judge Dora Irizarry named Gough, who was promoted to homicide bureau chief by Gonzalez in early 2017.

Asked to explain the CRU’s omission, Gonzalez’s spokesman Oren Yaniv also refused to identify Gough by name. “The ADA in this case has a long track record of professional and highly ethical conduct, and while we can’t say when or even if he received the missing documents, we are committed to learning from these cases [and] implementing best practices to ensure that mistakes are not repeated,” Yaniv told me via email.

Pace University law professor Bennett Gershman, an authority on prosecutorial misconduct, sharply disputes that assessment. “It’s very troubling,” Gershman says, “that the ADA who tried this case is not named, and even more troubling that he is the chief of the homicide bureau. He sent an innocent man to prison for nearly twenty years, and he should have known based on the information he had that Arroyo was innocent.”

In at least a couple past Brooklyn exoneration cases, the public has learned the names of the ADAs involved. In exonerating Jabbar Washington (2017), the DA’s office identified former prosecutor Kyle Reeves in court filings. In the 2016 Wayne Martin case, the name of prosecutor Marc Fliedner emerged.

In his statement, Yaniv said the office “did not diverge in this case from our past procedures regarding CRU [exonerations].”

That said, simply making the report public is a new development, one that provides increased, though incomplete transparency.

Another murky element of Arroyo’s case involves the role of his attorney for the exoneration lawyer, David Cetron. He is a former Brooklyn assistant district attorney who was a colleague of Gonzalez, Gough and CRU chief Mark Hale at the time of the Arroyo case.

Neither Cetron nor Yaniv answered my questions about when and how the lawyer became acquainted with Arroyo. Cetron, however, recalled a meeting with Arroyo and the CRU in October 2017. During that same year, Cetron made three contributions (totaling $1000) to Gonzalez, who was seeking election in his own right to the DA job to which he ascended on an interim basis upon Ken Thompson’s death in 2016. The final $250 donation from Cetron (who has donated to other DA candidates in the past) came in December 2017, when the new DA was no longer actively fundraising.

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Whether the CRU’s report on Arroyo shows that the office is fully committed to changing its practices is an open question. Its final recommendations present Gough’s acceptance of the discrepancy between the confession and the autopsy report as an example of “confirmation bias,” or “the tendency of people to embrace information that supports their existing beliefs and reject information that contradicts those beliefs.” The report then calls for prosecutors to be trained on this issue.

But in Gershman’s view, such a bias may explain what happened in Arroyo’s case, but that “doesn’t justify it.” In the CRU’s estimation, Gough’s actions reflected “poor judgment.” Regardless, Gershman says, he “should be held directly responsible for prosecuting an innocent man.”

Theodore Hamm is chair of journalism and new media studies at St. Joseph’s College in Brooklyn. He is the editor of Frederick Douglass in Brooklyn (Akashic Books, 2017).