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Professor Pushes for 'Second Look' at Unjust Convictions 
 

Victoria Rivkin
New York Law Journal 

January 17, 2001 


Prof. William Hellerstein
It seemed like a usual day at New York's Brooklyn Law School in the spring of 1999. William E. Hellerstein, a law professor and former head of the criminal appeals bureau for the Legal Aid Society, was rifling through his day's mail, which, as it often did, included a letter from a prisoner. 

But this letter was different. "It had the detail and the story that, in my experience, people can't make up," said the 61-year-old constitutional and civil rights law professor. The prisoner, Gerald Harris, also included copies of articles by Denis Hamill of The Daily News, which suggested that justice might not have been done in his case. 

Harris, a former Golden Gloves boxing finalist from St. Albans, Queens, detailed his claim that he was wrongly convicted of an armed robbery in 1992. He explained how his brother and two other men robbed a couple in Queens in 1991. Harris' brother even appeared in court to surrender, but the case was postponed and prosecutors did not interview him. Next time the brother was summoned to appear in court, he was serving his own sentence for drugs in South Carolina. Harris was convicted by a jury, and supreme court Justice Randall Eng sentenced him to 9 to 18 years in prison. 

At the time he wrote the letter, Harris had been incarcerated for eight years. "A detailed story is hard to concoct," said Hellerstein, who started a preliminary investigation into the case, which eventually inspired an idea for a program that would enlist Columbia University journalism students to review convictions. 

He called Harris' lawyer, Philip Smallman, and his former fight trainer to get more facts. Smallman, because of his belief in Harris' innocence, had been handling the case pro bono. Hellerstein got on board. 

"Mr. Hellerstein and Mr. Smallman are the best of what the legal system represents," said Bob Jackson, Harris' boxing trainer, who labored for nine years to free him and hired Smallman in 1997. "They approached this like true Knights of the Round Table," he added. 

After spending months creating the record and interviewing people involved, Hellerstein turned his focus to convincing the Queens District Attorney that the wrong man was in jail. "Judges are very reluctant to overturn jury verdicts," said Hellerstein. "So what I do in these types of cases is to try to get the D.A. on my side," he said, explaining his strategy. 

He even consented to allow an Assistant District Attorney to speak with Harris without him being present. "You never leave your client alone. I never do this. But I did it because I knew he was innocent," he said. 

First, consenting to a hearing on a motion to vacate the verdict, the Queens District Attorney's Office eventually agreed to vacate Harris' conviction at a hearing Dec. 12. Justice Eng set Harris free a few days later. In 1993, Eng had denied a similar motion and an appellate court denied the appeal. 

"Mr. Hellerstein is one of the most dedicated advocates for justice that I have ever known," said Jackson, who spent 35 years as a prison guard in Sing Sing. "His very presence and his belief added credibility to the situation. ... And the best I could do for him is buy him a piece of pizza," he said. 

STRAY CAT CASE

This was not the first time that Hellerstein, who grew up in the Bronx, took on what appeared to be a hopeless case. 

His first brush with the legal system came when he was a 10-year-old working for a dry cleaner. He was told by his boss to run to court to pay a summons for littering. Apparently, his boss put out a milk carton to feed a cat and was fined by the police for having the carton on the sidewalk. 

After pleading not guilty instead and spending the entire day in the courthouse, the young Hellerstein finally got to explain to a judge that this law should not encompass feeding a hungry kitten. He won his first case. Although his boss threatened to fire him for missing an entire day of work, his father, an emigre from Czarist Russia, praised his son for doing the right thing, recalled Hellerstein. 

His first taste of justice, however, did not automatically set him on a legal path. This one-time aspiring football player at Brooklyn College eventually wound up in Harvard Law School, but only after his college dropped its football program. That forced Hellerstein to change his major from physical education to philosophy. 

Since that first littering case, Hellerstein has handled many more complex cases, four of which he has argued before the U.S. Supreme Court, and won. As chief of the Appeals Bureau at the Legal Aid Society, Hellerstein founded the Prisoners' Rights Project in 1971. He was nominated four times to the Court of Appeals, but never appointed by New York Governor Mario Cuomo. And in 1985, he was Senator Daniel Patrick Moynihan's choice for a spot on the Southern District Court, but the Reagan Administration refused to nominate him. 

"[Hellerstein] has an extraordinary sense of justice and fairness. He reminds you of why you went into this profession in the first place," said Alan Abramson, a criminal defense attorney with Schuman Abramson Morak & Wolk. Abramson represented pro bono one of the witnesses who testified to Harris' innocence at the hearing in December. 

SEEKING A 'SECOND LOOK'

Now Hellerstein wants to put his expertise and his beliefs to work at the law school. Along with Pulitzer Prize-winner Peg Tyre, a professor at the Graduate School of Journalism at Columbia University, he is looking for funding to start a program where students investigate cases like Harris'. The "Second Look" program will direct students to examine prisoners' letters that arrive in droves at the law school and choose a few cases where convictions appear unjust. 

Smallman and prominent defense attorney Gerald Shargel have both shown an interest in being a part of "Second Look," according to Hellerstein, who is working out the logistics of the program while waiting for outside funding. 

Hellerstein explained that false convictions are often the result of misidentification and bad lawyering. "To say it's a tragedy is an understatement. It's a catastrophe," he said. 

Hellerstein is a tireless advocate for abolishing the death penalty. "As long as the guy is alive you can correct the mistake," he explained. "An innocent person's life can never be a justifiable price," he added. 

Hellerstein, who is married to Michael Gage, who retired last year as the administrative judge of the Family Court, said he has no regrets about his 35 years of defending the rights of individuals. "I have no complaints. I have never had a boring moment." 




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