The Appeal: Queens D.A.’s Office Failed to Share 911 Tapes in Murder Trial and Then Lost File, Attorneys Say

By Aaron Morrison
June 05, 2019

The year 1990 has played on an endless loop in Carlton Roman’s mind. It’s the year the Queens County district attorney’s office won a conviction against him for murder—a guilty verdict Roman has been trying for decades to reverse.

On the evening of March 16, 1989, Roman’s close friend, Lloyd Witter, was killed and another man was injured in a double shooting at a home in Jamaica, Queens. Detectives swiftly identified an eyewitness who later testified that Roman, then 26, was the triggerman. He was arrested the following day. But Roman, who was newly engaged and had a 9-month-old daughter, maintained that he was with his baby and fiancée, running errands and visiting his mother’s home, at the time of the shootings. No weapon was ever recovered or linked to Roman.

“The evidence of Mr. Roman’s guilt at trial was in no sense overwhelming or mountainous,” James Henning and Pierre Sussman, Roman’s attorneys, wrote in a court filing last year. “Indeed, the evidence presented against Mr. Roman would be more accurately characterized as a molehill.”

Yet the jury was convinced. On Nov. 20, 1990, Roman, who had no criminal record before the murder case, was found guilty of second-degree murder, attempted murder, first-degree assault, first-degree burglary, and second-degree criminal possession of a weapon and sentenced to 43 years to life.

During the trial, a witness, Paul Anderson, testified that he saw Roman shoot Witter and that he had been held against his will at the scene, before escaping and later alerting police. Jomo Kenyatta, the second man shot in Anderson’s home, testified that he saw Roman and his co-defendant running from the scene.

But according to Roman’s attorneys, the prosecution discouraged at least one of Roman’s alibi witnesses from testifying, and the DA failed to turn over all relevant evidence to his defense attorney, including copies of 911 recordings that call the police timeline for the shootings into question. During the trial, Anderson and Kenyatta were found to have lied about their prior criminal records.

Ultimately, the attorneys say, Roman did not get a fair trial. “For me, it was like being hit by a train—like an express train,” Roman told The Appeal by phone from Green Haven Correctional Facility in Stormville, New York. Even on the day police arrested him, Roman remembered feeling that somehow his alibis would pan out and he would be free to grieve his friend.

“Well, it’s 30 years later, and that still hasn’t happened yet,” he said. “I couldn’t understand why the powers that be weren’t doing anything. Nobody cares that you didn’t do it. That part of it never really sunk in, until later.”

The Queens DA’s office disputes this notion, adding that since Roman’s conviction, the case was reviewed by three executive assistant district attorneys who found no evidence he was wrongfully convicted.

Now 57, Roman says his best hope for exoneration may come when voters in Queens elect a new district attorney this year. The Democratic primary is scheduled for June 25, and there are seven candidates running to replace Richard Brown, who served for nearly 28 years until his death in May. Each of them has pledged to root out the type of misconduct Roman and his attorneys allege by establishing a conviction integrity unit (CIU) to review cases in which defendants have alleged prosecutorial misconduct. Across the country, work done by CIUs resulted in roughly 60 exonerations last year. Queens is the only New York City borough that doesn’t have one.

“I hope the district attorney comes in and is very aggressive about righting these kinds of wrongs,” Roman said. “People make mistakes. I understand that. I’m just saying, it shouldn’t take 30 years to correct a mistake.”

A lost file

After two decades of seeking help through different lawyers and desperate for a breakthrough in his case, Roman came across an article about Rev. Robert Dickerson, a local activist and former NYPD officer working as a private investigator based in the Bronx. He first contacted Dickerson in 2012.

“I was advised by an older guy [in prison] to concentrate more on getting your case investigated and not so much on the legal aspects of it,” Roman said. “I’d almost already bankrupted my family from hiring lawyer after lawyer, and they were pretty much doing the same things over and over.”

Dickerson began by tracking down potential witnesses and neighborhood residents who weren’t interviewed or subpoenaed for testimony for the original trial. Dickerson said he found residents still living in the neighborhood where the 1989 shootings took place who had information to share but said they had not been interviewed by police or prosecutors before Roman’s trial. One family, for instance, remembered shots fired around the time that “Jeopardy!” was on television, which conflicted with the police account.

Dickerson said he requested Roman’s case file in 2012, but the following year he learned that the file had disappeared. The office certified in 2015 that the materials were missing.

“Imagine if this case got national attention—that a Queens County district attorney’s office literally lost a murder case file,” Dickerson told The Appeal. “A man is actually doing time in the state for this crime, and you don’t have a record to reflect on.”

After not receiving Roman’s file, Dickerson requested the file for Hollis Laylor, Roman’s co-defendant, who was freed in 1994 after two hung juries, and after Anderson, the same witness as in Roman’s case, refused to return to the U.S. from Jamaica to testify in Laylor’s trial.

In Laylor’s file, Dickerson and another pro bono private investigator, Dan Levine, made a surprising discovery: 911 recordings that Roman was unaware of and his current defense attorneys are certain Roman’s original defense lawyer, now deceased, never heard.

According to a recent court filing, the recordings revealed that the prosecution’s two key eyewitnesses, Anderson and Kenyatta, gave inconsistent and “demonstrably false” accounts of the time, manner, and place of the shootings. Laylor’s file also contained no records of police interviews with any of the three 911 callers who reported the shooting, according to Roman’s attorneys.

Robert J. Masters, executive assistant district attorney for legal affairs in Queens, said the 911 callers only heard gunshots but didn’t see anything and that’s why they weren’t interviewed. He said some of Roman’s file had become commingled with Laylor’s because Laylor’s case relied on almost identical materials.

“Although we lost certainly the outside jacket and maybe parts of documents that were contained in Roman’s file at the time it was tried, duplicates of it exists from the Laylor file,” Masters said. “There’s no document that we’ve ever sought, that has ever been requested, that we haven’t been able to find.”

Masters balked at the suggestion that evidence could have been hidden, noting that the trial prosecutor referenced the 911 recordings in Roman’s trial. “It defies all sorts of logic,” he said, arguing that the claim would have been made earlier if it were valid.

Dickerson has made it his personal mission to free Roman from prison, but so far his efforts have been in vain. Roman’s appellate teams have never been granted even an evidentiary hearing, after failing at least three times to convince courts that his appeal has merit.

In 2018, Judge Ira Margulis of the New York Supreme Court affirmed that the 911 calls were referenced in Roman’s trial and it was incumbent on his original legal team to explore them further if warranted. “At best, he presents evidence that may be inconsistent but does not support his claim of actual innocence,” Margulis concluded in a decision issued on Aug. 20.

Yet there’s nothing stopping acting District Attorney John Ryan from taking action himself, said Henning, one of Roman’s lawyers. “It’s completely within their power to walk in tomorrow and say, ‘Look, we think we screwed up here, and this guy doesn’t deserve to be doing another day in jail,’” he said.

That’s why the upcoming district attorney’s election is so important, Levine said. One of the most pressing questions is whether the next DA will establish a conviction integrity unit to investigate cases like Roman’s.

“This is a bellwether case for prosecutorial misconduct and police misconduct,” Levine said. Carlton’s civil rights were violated. … We’ve got to get a Queens DA who cares.”

Fighting misconduct

Roman’s case is far from the only one to raise questions about prosecutors’ conduct in Queens, say attorneys with the Legal Aid Society. Some were wrongful convictions and others were cases that should never have been pursued.

Joel Schmidt, an attorney with Legal Aid recalled one such case involving 34-year-old Terrell Gills, who was arrested, held on $10,000 bail, and spent 18 months in jail on Rikers Island for armed robbery of a Dunkin Donuts in Jamaica, Queens. The assistant district attorney assigned to the case relied largely on the word of a suspect in similar robberies, who later admitted to implicating Gills under duress. Gills was acquitted in 2016.

Though Queens has yet to establish a conviction integrity unit, it does review cases, Masters said. When a wrongful conviction claim is filed, he said, the district attorney assigns staff members to the cases and requires them to report back. Roughly 25 people who were prosecuted and convicted in the borough between 1986 and 2011 were subsequently exonerated, according to the National Registry of Exonerations.

Nationwide, there were 155 exonerations in 2018 alone, aided by grassroots innocence organizations and conviction integrity units in DA’s offices. According to the registry, there are at least 44 conviction integrity units operating in cities like Los Angeles, Philadelphia, and the Dallas-Fort Worth area.

But not all conviction integrity units are effective, explained Lara Bazelon, a professor of law at the University of San Francisco and author of “Rectify: The Power of Restorative Justice After Wrongful Conviction.” Though being housed in prosecutor’s offices offers them valuable access to records and witnesses, the units must be independent to succeed.

“Their bias is going to be toward thinking that whatever error occurred wasn’t that problematic,” Bazelon said. “I think they have to be structured in a very particular way, and the DA has to be progressive and committed to giving them independence and autonomy.”

The Brooklyn district attorney’s conviction review unit, established in 2014, is often cited by advocates as the gold standard among such units, having reviewed 80 cases between 2014 to 2017. The unit vacated 26 of those convictions, Oren Yaniv, a spokesperson for the district attorney’s office, told The Appeal.

Many of those convictions date back to the tenure of former Brooklyn DA Charles Hynes. Under his watch, cases investigated by disgraced NYPD detective Louis Scarcella led to a record number of exonerations for false charges related to drugs and violent crimes. But there have been only four exonerations in Brooklyn since 2017, according to the DA’s website, which recently drew criticism from families who say their loved ones were also wrongfully convicted.

Yaniv said the unit is functioning as it should. “This fully staffed unit pores over evidence, including interviewing witnesses, visiting crime scenes, and reviewing voluminous court transcripts to do justice,” he said in a statement. “Its conclusions elate those who are exonerated and, naturally, disappoint those who aren’t. We remain fully committed to exonerating those who have been wrongfully convicted.”

The city’s other conviction integrity units have exonerated far fewer people. The Bronx district attorney’s office has vacated four convictions since the creation of its CIU in 2016, office spokesperson Patrice O’Shaughnessy told The Appeal. The Manhattan district attorney’s office, the first office to establish a CIU in New York City, secured exonerations for nine people since its creation in 2010, office spokesperson Justin Henry told The Appeal. The Richmond County district attorney’s office, serving Staten Island, was the most recent city borough to establish a CIU in 2018. The office did not respond to a request for information about exonerations by its unit. And across the country, CIUs have had mixed results, in some cases because the units are anything but eager to investigate their own.

“Having the label ‘conviction integrity unit’ is meaningless if the unit doesn’t fully commit itself to the serious business of examining the integrity of convictions that have been credibly challenged,” Bazelon said.

Candidates weigh in

Mina Malik, one of the candidates for Queens County DA, first heard about Carlton Roman from Rev. Dickerson, whom she met after launching her campaign in February. Malik told The Appeal she would not only create a conviction integrity unit if elected, but review Roman’s case with “fresh eyes.”

On the campaign trail, she has touted her role in revamping Brooklyn’s conviction integrity unit under the borough’s former DA, Ken Thompson. “One of the most rewarding and emotional moments in my career has been helping to exonerate the wrongfully convicted … and hearing a judge utter the words, ‘You are free to go,’” Malik said. “I welcome the challenge to build a true and meaningful conviction review unit in my own home borough as district attorney.”

The Queens district attorney’s office has likely contributed to many more wrongful convictions than is known by innocence organizations, said Rory Lancman, chairperson of the City Council’s committee on the justice system. Lancman said he has already supported legislation establishing a state commission on prosecutorial misconduct. And he has pledged to establish a code of ethics for Queens prosecutors that’s enforced by an independent ethics officer.

Former Supreme Court Judge Greg Lasak, who spent 25 years as an assistant district attorney in the Queens DA’s office, said during the campaign that he oversaw as many as 20 exonerations even without a conviction integrity unit. “I was doing wrongful conviction exonerations before anyone had ever thought of a Conviction Integrity Unit because it was the right thing to do,” Lasak said in an email to The Appeal.

In a statement, Jose Nieves, a former prosecutor in the New York state attorney general’s office, said he would support the creation of a conviction integrity unit. Candidates Tiffany Cabán, a Manhattan public defender, and Betty Lugo, a criminal defense attorney, said the same.

Melinda Katz, the Queens borough president, said all convictions should be assessed for racial bias and for the existence of new technology to review past evidence. “Conviction Integrity Units in other boroughs have exonerated dozens of innocent people, overwhelmingly people of color, but Queens is lagging behind,” Katz told The Appeal via email. “Every wrongful conviction destroys a person’s life while leaving a guilty person on the streets.”

‘I’ve never lost hope’

Roman said he feels certain that the person who actually killed Witter got away with the crime. The toll his incarceration has taken on his family is immeasurable, Roman said, but he doesn’t regret his decision nearly 30 years ago to reject the prosecution’s offer of three to nine years in prison if he pleaded guilty. “I’ve never lost hope that this thing would be fixed at some point,” he said. “And pretty much, that’s what’s kept me going.”

Dickerson, the private investigator, is in regular contact with Roman’s mother, Arel Claudette Phillips, and said she has helped raise awareness about her son’s case.

“She’s trying hold on,” he said of Phillips, who is in her late 70s and in poor health. “She wants her son home before she leaves this world.”

Nadine Roman, Carlton Roman’s daughter, told The Appeal she often ponders whether her life would be measurably different if her father had not been convicted when she was 2 years old.

“I imagine the Queens County DA’s office doesn’t lose as much sleep or concern itself with such matters,” Nadine Roman said. If it did, she said, “the grievous mistakes they’ve made would have been corrected by now.”