He Says He Was Wrongfully Convicted. His Trial Prosecutor Led The Unit That Rejected His Petition.

On the night of May 18, 1998, Anthony Sims, 22, drove his friend, Julius Graves, 23, to a Chinese take-out restaurant in the Brooklyn neighborhood of Bushwick.

Inside the restaurant, Sims says he saw Graves take out a small shotgun, point it at the cashier, Li Run Chen, and shoot. He and Graves then ran out of the restaurant.

Less than 24 hours after Chen’s murder, Sims was the primary suspect. At trial, the State’s star witness was Graves, who testified that Sims had shot the victim.

In a trial that Sims and his attorneys say was marred by false testimony and improperly withheld evidence, Sims was convicted and sentenced to 25 years to life.

For more than two decades, Sims has tried to overturn his conviction in the appellate courts, without success. Research shows challenges to wrongful convictions have extremely low success rates; even defendants who were later exonerated by DNA evidence had their appeals rejected in more than 90 percent of cases, one study found.

In 2016, Sims wrote a letter to the Brooklyn DA’s conviction review unit, or CRU, asking them to investigate his case. They rejected him.

But the CRU’s preliminary review may have been undermined by a fundamental conflict of interest: Mark Hale, who led the unit from its creation in January 2014 until July of this year, was the lead prosecutor in Sims’ murder trial.

In court filings and statements to the media, the Brooklyn DA’s office has said Hale recused himself from reviewing Sims’ case.

Public defenders and advocates for criminal justice reform say Sims’ case highlights an inherent problem with the Brooklyn CRU and similar conviction review units in DA’s offices across the country, in which prosecutors serve as the gatekeepers for potentially innocent people seeking to overturn convictions that resulted from their own misconduct.

Brooklyn DA Eric Gonzalez is searching for a replacement for Hale, and defenders are urging him to hire someone from outside the DA’s office to lead the unit. A new head of the unit, Sims and his attorneys hope, will give his case a fair review.

“The bottom line is that the D.A.’s Office is fighting to uphold Anthony’s conviction despite overwhelming evidence that Anthony is innocent and never received a fair trial,” said his attorney, Jonathan Hiles. “Anthony should not have to suffer further years in prison while a hearing and likely appeal wend their way through the legal system — even as prosecutors possess evidence showing that Anthony belongs home today with his wife and kids.”

‘I did whatever it was they wanted’

No physical evidence linked Sims to the crime. The gun used in the murder was kept in the apartment where Graves lived. After the shooting, Graves told police that he took the gun home with him and wiped it down to remove fingerprints.

Sims and his attorneys allege that police and prosecutors, including Hale, illegally suppressed evidence of Sims’ innocence and pressured witnesses—including Graves—into making false statements.

One eyewitness, who knew both Sims and Graves, called police and told them that she saw Graves, not Sims, running out of the restaurant with a gun in his hand, according to a report by Graves’ fiancee. According to Sims’ attorneys, Hale never disclosed this information to the defense.

Graves’ testimony was essential for the prosecution’s case. However, three days into the trial, Hale told the judge that Graves was nowhere to be found and asked for a material witness order, which allows law enforcement to take a witness into custody to ensure that they appear in court.

“It is my belief Mr. Graves will indicate he in fact saw the defendant shoot and kill the deceased in this case. As the Court has obviously seen, I have nobody else that has said that,” Hale told the court. “Any of the other testimony […] wouldn’t really matter unless I can get [Graves].”

Hale then obtained a material witness order for Graves’ fiancée as well, even though she was never called to testify at trial. Graves only agreed to testify after his fiance was arrested, according to a statement he gave in 2002, which he has since recanted.

Earlier this year, Graves told the Daily News that Sims killed the victim. But Graves’ 2002 statement said that he did not see who shot the victim and did not know who did, but that police had threatened to charge him with Chen’s murder unless he testified against Sims.

“The police stated that if I do not appear tomorrow morning at the trial, they are going to release Anthony and charge me with the murder,” he said in his 2002 affidavit. “So, I appeared the next day and did whatever it was they wanted.”

This wasn’t the only leverage the prosecution had against Graves. At the time of trial, he hadn’t checked in with his probation officer for close to three years. A few months before Graves testified, the Brooklyn DA’s office filed a Violation of Probation and scheduled a hearing on the matter for May 10, 1999, the same day he testified at Sims’ trial. After his testimony, however, the Brooklyn DA’s office dropped the violation of probation.

Yet, when he appeared at trial, Graves testified that he was in court voluntarily and that he regularly checked in with his probation officer. Despite his obligation to correct false testimony by witnesses, Hale did not challenge Graves’ claims.

According to Sims and his attorneys, Hale committed additional misconduct when he failed to disclose that the Brooklyn DA’s Office was paying for Graves and his family to enter a witness relocation program. In the year following Sims’ trial, Graves and his family received more than $22,000.

Graves did not respond to multiple requests for comment from New York Focus.

Sims said he told his trial counsel that he saw Graves commit the crime and asked to testify, but that the lawyer advised him not to testify. “I never got a chance to tell my story,” Sims told New York Focus.

Sims’ trial counsel has since died. Sims also says he told all his appellate attorneys that he saw Graves commit the crime; his one surviving appellate attorney confirmed this to his current counsel.

In a statement responding to questions sent to the DA’s office by New York Focus, spokesperson Yaniv characterized Sims’ account as novel.

“This case presents a number of disputed factual and legal issues which are appropriately resolved in a court of law and not in the media,” the statement said.

“This is why our office consented to a hearing that would allow Mr. Sims to argue his claim of innocence before a judge, including a new contention, not made in previous motions, that his good friend was the alleged perpetrator and then conspired to frame him.”

But at trial, Sims’ defense counsel said that Graves, not Sims, was the perpetrator. In fact, Hale told the jury during closing arguments: “Now you heard the summation of the defense … Mr. Tims [Sim’ defense attorney] wants you to believe that Julius Graves is the perpetrator of this crime.”

In Sims’ 2016 letter to the CRU—which he wrote himself, without legal counsel—he said that he was innocent and included Graves’ recantation, but did not say he had witnessed Graves kill the victim. In a statement through his attorneys, he told New York Focus that he thought if he accused Graves in the letter, it would “just seem like I was looking for a ‘scapegoat.’”

“I wrote in bold letters, ‘I AM INNOCENT,’” Sims said in his statement to New York Focus. “I expected the CRU to interview me, which would give me a chance to answer their questions and give a detailed account of seeing Julius shoot the victim.”

The CRU did not contact Sims to learn more about his claims. Instead, he received a one page rejection letter stating that it would not investigate the case because “the ‘evidence’ that you are asking the CRU to rely on has already been rejected by multiple courts.”

Sims’ request to the CRU did not present any of the new claims that his attorneys have included in the current petition to vacate Sims’ conviction, including evidence of Hale’s misconduct and eyewitness testimony that Graves was the shooter. It was based almost entirely on Julius Graves’ recantation of his testimony in 2002.

Sims’ trial lasted five days. After three days of deliberations, the jury sent a note to the court saying that they were deadlocked. The judge told them to keep going.

The next day, the jury acquitted Sims of intentional murder and convicted him of depraved indifference murder.

At his sentencing hearing, he professed his innocence.

“I know in my heart and God knows that I am not capable of what I was convicted of,” Sims said, according to a court transcript. “A jury of my peers found me guilty with the evidence that was presented to them and not the true facts.”

At the time, his sons were 4 and 5-years-old. His then-wife, Kisha Sims, said she expected that he would be acquitted and had been planning a coming home party for him. When he was convicted, she told New York Focus, she thought “that was the end of my world.”

A Record of Misconduct

Sims’ experience wasn’t an aberration. From 1990 to 2013, the Brooklyn DA’s office was run by Charles Hynes, under whom more than 100 people were wrongfully convicted, in some cases serving decades in prison before being exonerated.

In 2013, controversy over Hynes’ tactics helped Kenneth Thompson defeat Hynes. After taking office in 2014, Thompson expanded the Conviction Review Unit, fulfilling a campaign promise and earning a wave of laudatory national media attention.

Thompson recruited Harvard professor and former public defender Ronald Sullivan to lead the unit’s efforts—but Mark Hale, the prosecutor from Sims’ case, was charged with supervising the unit’s day-to-day activities. (Sullivan did not respond to a request for comment.)

Hale had a record of alleged prosecutorial misconduct dating back to the 1990s. As deputy chief of the homicide bureau under Hynes, Hale participated in an “office-wide practice of deceiving judges in criminal cases,” witness coercion, and intentional suppression of evidence, according to a federal lawsuit recently filed by exoneree Emmanuel Cooper.

Cooper was imprisoned for the 1992 murder of a subway token clerk. Last year, a New York Supreme Court judge vacated his conviction and, several months later, the DA’s office dismissed the charge.

He served more than 25 years in prison for a crime he did not commit. Hale was the trial prosecutor.

According to Cooper’s civil complaint, two eyewitnesses said they recognized the assailant and it was not Cooper. Two additional witnesses did not identify Cooper from a photo array. Cooper’s appellate criminal defense attorney and civil attorney is Tom Hoffman, the same person representing Sims.

One witness for the prosecution, who was under arrest for an unrelated attempted murder, repeatedly told police he had no information on Cooper’s alleged involvement in the murder, according to Cooper’s civil complaint. He only implicated Cooper after police told him his charges would be dropped if he cooperated.

Three weeks later, all his charges were dropped. Later, when he tried to recant, investigators with the DA’s office told him that the DA would pursue the attempted murder charges if he disavowed his earlier statement.

Hale disclosed none of this to Cooper’s defense counsel, according to Cooper’s civil complaint.

Cooper said he felt he could not have the CRU review his case when Hale was running it. “Mark Hale is not going to fix his faults,” he told New York Focus. “He did so much damage to everybody.”

After dismissing the charges against Cooper, Brooklyn Supreme Court Judge Ruth Shillingford called for an independent investigation into the circumstances that led to his wrongful conviction, saying, “There has got to be an evaluation of what happened in every case. How did it get to that point? And that cannot be done by the District Attorney’s Office.”

In another case, Hale prosecuted Vladymir Campos, 22, for the 1997 murder of 16-year-old Felix Gonzalez. During trial, a state witness testified that police had coerced him into implicating Campos, that he had later recanted his statement to Hale, and that he had failed a lie detector test.

When questioned by the trial judge after the witness’s outburst, Hale initially denied any knowledge of a lie detector test. Then, two days later, he told the court that he had, in fact, ordered the polygraph and helped formulate the questions, according to a transcript of the proceedings.

Hale had also falsely told Campos’ trial counsel that the witness had never recanted. The judge admonished Hale for committing “prosecutorial misconduct.” She struck the witness’s testimony, but allowed the case to proceed.

Campos was convicted and sentenced to 25 years to life.

“I’m sure that there are hundreds of other cases just like mine,” Campos wrote to New York Focus from prison. “I’m sure that some day all of it will be exposed and many people will have their day in court again.”

“Inherent conflict of interest”

Conviction review units have exonerated more than 500 people from across the country. From 2014 until Thompson’s death in the fall of 2016, Brooklyn’s unit exonerated 21 people.

During DA Gonzalez’s tenure, nine people have been exonerated. In April, the CRU also moved to vacate 90 convictions based on the testimony of disgraced NYPD narcotics detective Joseph Franco. Defense attorneys point to Hale’s control of the unit as a key reason for the slow pace of exonerations, New York Focus and The Appeal reported in May.

CRUs are tasked with investigating convictions secured by their own office—often the colleagues, friends and supervisors of CRU staff. To Jabbar Collins, that conflict of interest makes it imperative that a CRU is led by someone outside the office. Collins was wrongfully convicted in 1995 in Brooklyn; his own investigation led to his exoneration in 2010.

“If the true focus of the CRU is to do justice, you need someone who’s not going to get everything from a prosecutorial perspective and look at ways to save the conviction,” said Collins, a legal analyst with Horizon Research Services.

Elizabeth Felber, supervising attorney for the Legal Aid Society’s Wrongful Conviction Unit, said she hopes the next head of the unit, Hale’s replacement, comes from the defense community, as has been the practice in other jurisdictions in New York, such as Queens and Westchester.

“The new head of Brooklyn’s Conviction Review Unit should be someone with no prior connection to the office, in order to avoid any conflicts of loyalty or unconscious bias,” Felber told New York Focus in a statement. “Ideally, the new head should have criminal defense experience, to be able to bring a fresh perspective to the unit.”

In statements to the press, the Brooklyn DA’s office has claimed that Hale did not review Sims’ case. But this is not enough to protect an applicant to the CRU from “an inherent conflict of interest,” said Collins, who met Sims twenty-five years ago while they were both incarcerated in New York.

“I think that’s a farce,” said Collins. “Even if he was not part of the review process, you’re still asking a subordinate to make a finding about his superior.”

Conviction review units, said Sims, should not even be housed in prosecutors’ offices. They should be an “entirely independent agency, totally separate from any DA’s office.”

“A lot of the prosecutors know each other,” he said. “They don’t want to hurt their friends or make their friends look bad. So it’s easy to sweep things under the rug, it’s easy to rubber stamp things.”

“A Sad Injustice”

Sims was 24 when he was convicted. He’s now 46. Before the murder, he said, “I had everything going for me.”

“I remember looking forward to coming home because my sons would hear me in a hallway,” he said. “I would just hear them screaming ‘Daddy, Daddy, Daddy!’”

When he went to prison, his wife, Kisha, brought their children to visit every weekend. Occasionally, the family stayed together in a trailer on the prison grounds.

“I always just wanted to run in the back and just run with my dad and just hide, like, ‘Dad, I’m staying with you,’” Anthony Sims Jr., now 27, told New York Focus.