NY Law Journal

'Open Minded' Judge and Prosecutor Lead to Man's Exoneration

by John Caher


A thoughtful judge, a prosecutor willing to consider the possibility that his office got it wrong, a dogged attorney, and a lot of luck, got Michael Clancy out of prison, with a $2 million check in hand.

Michael Clancy
Michael Clancy

Ronald Kuby
Atty. Ronald Kuby
Clancy, 38, who spent more than 10 years in prison for a murder he says he did not commit, said he is among the lucky few wrongfully convicted individuals able to win their freedom, even though there was no physical evidence such as DNA to prove his innocence. His attorney, Ronald Kuby, said it was the open-mindedness of Bronx Supreme Court Justice Denis Boyle (See Profile) and Bronx Assistant District Attorney Gary Weil that brought Clancy's nightmare to an end.

"The lesson is the same lesson that has been taught repeatedly, but not learned, and that is that when police, and in this case a prosecutor, focus exclusively on gathering evidence against someone they believe to be guilty and deliberately ignore exculpatory evidence because it doesn't fit the prosecutorial narrative, innocent people go to prison and guilty people go free," Kuby said. "Sometimes it is just a series of unfortunate events, and that happens. But this was not. It was a wound entirely inflicted by the prosecution on the criminal justice system."

Now retired Bronx Assistant District Attorney William Racolin, who prosecuted Clancy in the late 1990s, disputed Kuby's claim.

Racolin, in an interview yesterday, said that he was aware of a witness who would implicate someone other than Clancy, and promptly notified the defense, and court records indicate that he did exactly that. However, Racolin said the witness would not testify, leaving him with a case with two independent eyewitnesses who identified Clancy as the shooter, and one uncooperative witness of dubious credibility who wouldn't testify.

"I think any prosecutor would have done the same thing, and I think we were right," Racolin said. "We had two, I thought, good credible witnesses, and we had a jury of 12 people who reached a verdict of guilty."

The case is rooted in a 1997 Easter Sunday murder in which John Bueno was shot inside a Domino's Pizza store in the Bronx. Detectives believed the shooting was drug-related and dug out photos of several individuals believed to be involved in neighborhood drug trafficking. Clancy's photo was among them.

A 16-year-old Domino's employee viewed the photo array but did not immediately make an identification. Three days later, however, she was shown the pictures again and identified Clancy as the shooter. A patron of the pizza parlor was shown the same photos and identified Clancy. Later, Clancy was placed in a lineup and both witnesses separately identified Clancy as the man who had killed Bueno.

While second-degree murder charges were pending against Clancy, a drug dealer named David Prieto, who had been at Domino's, was negotiating with federal prosecutors. Prieto was facing capital murder charges in a narcotics racketeering matter and agreed to cooperate with the federal case, records show. In addition to providing information about the federal matter, Prieto told the assistant U.S. attorney about the Domino's matter and said that it was not Clancy, but a man named "Drew" who had killed Bueno.

The federal prosecutor alerted Racolin and Racolin notified Clancy's defense counsel, Samuel Karliner. Racolin also suggested to Karliner that "Drew" might be a man named Andrew DeJesus.

According to a lengthy decision Boyle wrote in ordering Clancy's release in 2008, the federal prosecutor, then Southern District Assistant U.S. Attorney Bennett Capers, was concerned that Prieto's usefulness as a federal witness would be compromised if he testified in the state action and Racolin treated him as a hostile and unbelievable witness. Records show that Prieto's attorney advised him to not testify in the Clancy case until the federal matter was concluded.

Clancy, on the strength of the eyewitness testimony, and without the benefit of Prieto's testimony, was convicted of second-degree murder and sentenced by Boyle to the maximum term, 25-years-to-life. A decade later, Prieto came forward to exonerate Clancy.

Boyle in 2008 threw out the conviction on a CPL §440 motion for newly discovered evidence and released Clancy on bail.

Boyle noted that Racolin had provided Karliner with the information about Prieto and that Karliner "pursued every feasible avenue towards obtaining the evidence prior to trial which I find now to be newly discovered." He also noted that Prieto, with his "utterly chilling criminal history," would likely have been impeached by the prosecution.

But the judge, in his decision releasing Clancy, found that the height and build of DeJesus and what Prieto said he was wearing at the time of the shooting "is strikingly consistent" with the description provided by the eyewitnesses. Bronx District Attorney Robert Johnson dropped the case against Clancy and obtained an indictment accusing DeJesus of the Bueno killing. DeJesus is slated for trial later this month.

Racolin said he does not believe that Prieto, if he had testified, would have made any difference in the outcome of the Clancy trial.

"I would have loved to have cross examined him," Racolin said. "Considering that Mr. Prieto has an extensive criminal history, one can only imagine the impression he would have made on the jury."

Kuby acknowledged that "Racolin did what he was legally required to do" in providing the defense with information about Prieto.

But "Racolin had no interest in meeting with the witness or finding the truth," Kuby said. "All Racolin had an interest in was obtaining impeachment information to make sure if Prieto ended up testifying that he would be in a position to attack his credibility as a defense witness… Racolin not only didn't pursue the truth but was sufficiently antagonistic to the truth that he made sure the truth would not be heard."

Karliner, Clancy's trial counsel, said Racolin "was not overly cooperative."

"I always suspected that Racolin knew more and was hiding behind the veil of 'it's the feds,'" Karliner said. "Given the evidence he had, what kind of investigation did he do?"

Additionally, former federal prosecutor Capers, in an affirmation supporting Clancy's motion to vacate the conviction, said Prieto "told me information which led me to believe that the Bronx District Attorneys's Office was prosecuting the wrong individual" for the Bueno murder. Capers said he spoke to Racolin at least twice.

"The tenor of the conversation stands out to me, because after ADA [Racolin] asked me several questions about Prieto, I had the distinct sense that [he] was not attempting to ascertain Prieto's credibility, but instead was looking for impeachment information so that he could cross-examine Prieto in the event he was called as a defense witness," Capers said in the 2007 affirmation. "That impression might have been wrong, but it was the impression I was left with."

Racolin said the Prieto implications were thoroughly explored and reviewed throughout the district attorney's office.

"Not only did I speak to the witness, not only did I have the witness produced in my office via court order because the witness was in jail, but the witness refused to speak to me in the presence of his own attorney," Racolin said. "I made the witness available to the defense counsel. I told the defense counsel when the witness would be in my office. I gave the defense counsel the opportunity to speak to the witness."

Award From the State

The settlement approved by Court of Claims Judge Alan Marin (See Profile) is among the largest payouts the state has ever made in a wrongful conviction case, records indicate.

According to a Court of Claims decision in an unrelated case—-Baba-Ali v. State of New York, 087328, 2009—the state through 2009 had compensated at least 60 individuals for wrongful convictions, 19 of whom received more than $1 million.

Through 2009, the $2 million award to Clancy was the fifth highest. However, since then there has been at least one higher settlement. In 2010, the state agreed to pay $4.25 million to a mentally ill Buffalo man, Anthony Capozzi, who spent 22 years in prison for two rapes that, DNA evidence later showed, were committed by someone else.

Unlike Capozzi, Clancy did not have the benefit of DNA evidence to prove his innocence. Clancy acknowledged he could have spent the rest of his life in prison if Kuby hadn't pursued the matter, the judge hadn't been receptive to reviewing a verdict in his own court and a prosecutor hadn't been willing to look at new evidence.

But Clancy said he never lost hope.

"I said to myself, somewhere, somehow, somebody knows the truth and eventually it will come out," Clancy said. "It took a little while, but thank God it did. I have a lot of people to thank, including the judge. He did something that many judges wouldn't have done and gave me the opportunity after trial for a hearing."

Clancy said he took a picture of the state's $2 million check, "with a nice amount of zeroes." But he said it's small consolation for the 11 years he spent in Green Haven Correctional Facility in Dutchess County, the breakup of his marriage and the fact that while his friends were building families and buying homes he was holed up in a maximum security prison for a crime he did not commit.

"Some might think I won Lotto, but this is not a gift, not something to be celebrated," Clancy said. "It is a matter of righting a wrong. But it wasn't worth it. I would rather have those 11 years back."

Assistant Attorney General Robert Schwerdt represented the state.

Steven Reed, spokesman for the Bronx District Attorney's office, declined comment on the settlement. "Our focus at this time is on prosecuting Andrew DeJesus," Reed said.

@|John Caher can be reached at jcaher@alm.com.

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