FOR IMMEDIATE RELEASE
Friday, August 9, 2024
Brooklyn District Attorney Moves to Vacate Conviction of Brooklyn Man Who Served 16 Years for Homicide After Critical Video Wasn’t Turned Over
Defendant Requested to Watch Surveillance Tape Throughout Trial but Was Denied;
Technical Difficulties Prevented Showing it; Defense Lawyer Was Ineffective and Judge Unfair
Brooklyn District Attorney Eric Gonzalez today announced that following a thorough reinvestigation by his Conviction Review Unit (CRU), he will move to vacate the conviction of Arvel Marshall, 52, who was convicted of a 2008 murder in Crown Heights. He would have been eligible for parole in 2033. A surveillance video showing the gunman shortly before and right after the shooting was not turned over to the defense and seemingly never fully viewed by law enforcement. The video, requested by the defendant throughout the trial to no avail, would have likely led to a different trial outcome. In addition, the CRU found that the defense attorney “abdicated his role as an advocate” and the judge “abandoned his role of a neutral arbiter.” The full CRU report is available here.
District Attorney Gonzalez said, “An investigation by my Conviction Review Unit found that everyone involved in this case – defense, prosecution, police, and the Court – failed, depriving Mr. Marshall of a fair trial. A critical piece of evidence was not turned over, leading to this unjust conviction. The CRU’s work often reveals systemic failures, and this is a prime example of that. We will continue to expose, correct, and learn from every wrongful conviction that took place in Brooklyn.”
The defendant will appear in court today at 10:00 a.m. before Brooklyn Supreme Court Justice Matthew D’Emic at 320 Jay Street, 15th Floor.
The District Attorney said that on the night of July 15, 2008, 22-year-old Moustapha Oumaria was fatally shot in the head while sitting outside his Crown Heights home with three friends. Marshall became a suspect based on claims that he and the deceased, who dated the same woman as the defendant, had an ongoing dispute. The three friends who were at the scene identified Marshall as the killer (although initial accounts described the gunman as a teenager and the defendant was 36 at the time).
Marshall testified and professed his innocence throughout the trial. There was a video containing surveillance footage near the scene from which police made four still photos depicting two individuals, one of whom matched the clothing description of the shooter that was provided by witnesses. But the prosecutor was unable to play the video in court, making several attempts to do so. He said that his understanding was that the stills represented the pertinent parts of the footage, and that the video has “no evidentiary value.” It appears that no one actually watched the entire video, and the issue was not pursued later in the trial. Marshall was convicted and sentenced to 25-years-to-life in prison.
The CRU was able to view the surveillance footage, which included two different angles. The footage shows a young man wearing a white t-shirt and dark pants, matching exactly the description of the shooter, walking along with another individual wearing all black. The footage shows the first man reaching under his shirt on his right side, removing an object from his waistband, handling the object by his right hip, then lowering his shirt back over his waist. When the two men go off screen, the footage shows two older men walking in the street in the same direction as the two young men. At one point the two older men stop and look toward the area of the shooting, then start walking back in the opposite direction while glancing over their shoulders. Moments later, the younger men in white and black are seen sprinting down the street away from the area of the shooting, never looking behind them. The one with the white shirt is seen with his right arm extended straight down by his side and slightly away from his body while appearing to be holding something.
A police note attached to the disc containing the surveillance footage lists several timestamps, none of which include the pertinent portions. The footage—which the defendant, in front of the jury, repeatedly asked to be shown to the jury—is grainy but seems to point to a different suspect. The CRU concluded that the videos were favorable to the defense and should have been turned over.
The reinvestigation also followed up on a pre-trial defense investigation (whose findings were not brought up at trial), in which a tipster claimed that the shooting was arranged by a drug dealer who lived next door to the victim and ordered a hit against a man he believed to be encroaching on his drug territory. The unknown tipster claimed that the deceased was killed by a 16-year-old in a case of mistaken identity. The dealer confirmed the drug trade dispute to the CRU but denied being involved in the murder.
Finally, the CRU identified serious errors that were committed by all parties. Defense counsel did not advocate effectively; his client raised valid questions that the attorney made clear were his client’s concerns and not his, effectively disparaging the defendant; he blindly accepted the representation that the video was unreadable, despite the fact that stills were made from it; and he didn’t prepare his client before he testified and did not question him on the stand. The prosecutor should have watched the video footage and not state without firsthand knowledge that the stills represented everything of significance in the footage. The judge responded to the defendant’s many outbursts with disdain; he instructed him to “shut up” and “be quiet” and told the defendant, in front of the jury, that the footage was “not relevant” despite never having watched it; when the defendant was testifying, the judge denigrated and belittled him in front of the jury; and he did not insist on playing the video. The police investigators didn’t seem to have watched the entire footage and likely falsely reported to the prosecutor that the stills showed all relevant parts of the footage.
Because of these mistakes and the failure to turn over evidence, Marshall was deprived of a fair trial. The District Attorney recommends that his conviction be vacated and the indictment dismissed. There are no viable avenues to further investigate the defense investigators’ claims.
To date, the work of the Conviction Review Unit has resulted in 39 convictions being vacated since 2014. Currently, CRU has approximately 60 open investigations.
This case was investigated by members of the Brooklyn District Attorney’s Conviction Review Unit, under the supervision of Charles Linehan, Unit Chief.
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