BROOKLYN EAGLE
April 24, 2019 Noah The Brooklyn prosecutor tapped to run DA Eric Gonzalez’s new Parole and Clemency Unit is facing a renewed accusation of prosecutorial misconduct over a murder case he handled in the mid-1980s. Defense lawyers who worked the case say he’s not fit for the promotion.
They say Paul Burns, now the executive assistant district attorney for court operations in Brooklyn, committed “egregious” misconduct while prosecuting a 1984 murder case that sent two men to prison for 25 years to life.
Kevin Smith, one of those two men, was released on parole in 2012 and still maintains his innocence. He and his lawyers have accused Burns of coercing a sole eyewitness to testify — despite that witness recanting his testimony just before trial — and failing to turn over material that could have helped the defense in the 1987 trial.
Kevin Smith was convicted of the 1984 murder of Gary Van Dorn. He claims Paul Burns, the prosecutor on the case, coerced the sole eye-witness into testifying. Eagle photo by Noah Goldberg.
“Paul Burns had [the eyewitness] arrested for perjury and threatened him with seven years if he didn’t go back on his testimony,” Smith said.
Those who have worked with Burns paint a very different picture of the career prosecutor.
“His reputation for diligence, fairness and unparalleled institutional knowledge is well known,” said Michael Farkas, a defense attorney who worked as an assistant district attorney in Brooklyn in the 1990s.
“I can think of no one better suited to lead the new Parole and Clemency Unit, which is at the forefront of criminal justice reform,” Farkas said.
“Executive ADA Paul Burns is extremely well-qualified to be the Chief of the Parole and Clemency Unit and is a well-respected prosecutor with unwavering integrity,” said a spokesperson for the Brooklyn DA.
Smith and codefendant Calvin Lee were charged and convicted of the Nov. 10, 1984, murder of Gary Van Dorn in Bedford-Stuyvesant. The sole eyewitness in the case was Vernon Richardson, the cousin of the victim.
The Parole and Clemency Unit that Burns was appointed to lead is part of a new three-pronged bureau called the Post-Conviction Justice Bureau, which Gonzalez announced on April 17. The bureau also includes the Sealing Unit, meant to “encourage and facilitate” applications to seal convictions, and the Conviction Review Unit (CRU), started in 2014 under former Brooklyn DA Ken Thompson. The CRU looks into past convictions and has the power to overturn them.
Smith’s case has idled before the CRU for five years. The CRU has not made a determination on whether or not to overturn his conviction.
A witness recants, then unrecants
At trial, Richardson testified that Smith and Lee killed his cousin — but prior events proved it’s not that simple.
In the initial police report filed just hours after the murder, Richardson told cops he had seen the murder. He said he was with friends on Bergen Street and Buffalo Avenue when “at least two male blacks approached the group,” according to the police report.
One of the men shot at the group, Richardson said. Despite Richardson later saying he knew Smith for years before the shooting, there is no mention of Smith in the report.
The police also spoke with a man named Frederick Shaw who said he saw Smith pass a gun to Lee but that he did not see the shooting because he had left the scene beforehand.
In 1987, months before Smith’s trial, Shaw recanted his statement and claimed it was coerced. “Police officials harassed and coerced us into making statements,” he said in a sworn statement before the trial.
“It’s not right to send an innocent man to prison.”
Just days before the trial, Richardson also said he would not testify that Smith and Lee killed Van Dorn.
In a closed-door hearing the Friday before the trial began, Richardson told the judge, his attorney and Burns that he did not know who shot Gary Van Dorn and that he would not testify, according to court transcripts.
He said he was afraid to testify and also that he had not seen anything.
This statement contradicted the original claim he made in front of a grand jury, according to court documents. At that time, Richardson said Smith and Lee were the murderers.
After Richardson, the sole eyewitness, recanted his statements to the grand jury, the judge on the case released Smith from jail without bail. Smith had been locked up on Rikers Island for the previous 495 days.
“They had no more evidence against me, so the judge had to release me on my own recognizance,” Smith told the Brooklyn Eagle. “I was super excited. The case was beginning to unfold. The truth was finally coming out.”
But that’s not how the case unfolded.
Smith’s lawyers allege that Burns then purposefully lied to the court, saying he would let Richardson go for the weekend before the case was recalled the next Tuesday.
“He specifically told the court that he was taking the witness over to clear up a warrant and that he was going to be released,” said Ron Kuby, a defense lawyer who represented Smith until this year.
Instead, Richardson was arrested outside the courtroom for perjury based on his inconsistent statements and was held at the 81st Precinct over a long Labor Day weekend. After four days at the 81st Precinct without his lawyer present, Richardson was taken back to court for his arraignment on the perjury charge.
There, Richardson spoke with a member of the DA’s Office who told him the perjury charge would be dropped if he testified honestly at Smith and Lee’s trial, according to Richardson’s testimony at Smith’s trial.
“[Burns] single-handedly coerced this man to come back in there and say Kevin Smith committed this crime. I have a problem with that, because Kevin did almost 30 years for that,” said Derrick Hamilton, a paralegal working on Smith’s case who had his own murder conviction overturned by the Brooklyn DA’s CRU in 2015.
Richardson’s lawyer at the time, Frank Paone, was not informed of his client’s arrest.
“I was never told by Assistant District Attorney Burns or any police officer that Richardson was going to be arrested and charged with perjury,” Paone said in a sworn statement.
“By not advising me about the anticipated arrest and arresting Mr. Richardson after I left court, Mr. Richardson would not have had an attorney on that arrest, encouraging the District Attorney to circumvent the ethical prohibition of speaking to an individual — especially a defendant — who had an attorney without an attorney present,” Paone said.
The Brooklyn DA’s Office said that the perjury charge and Richardson’s original recantation “were all fully disclosed at trial and fully examined on both direct questioning and cross examination.”
“The record clearly reflects that his reluctance to testify was due to concerns for the safety of himself and his family,” said a spokesperson for the Brooklyn DA.
Smith’s attorneys also say that Burns failed to turn over an audiotaped interview with Richardson from the day of the murder.
Smith’s codefendant’s lawyer confirmed that the audiotaped statement, which Smith’s lawyers obtained from the CRU in 2015, differed significantly from Richardson’s statements at trial.
“I obviously did not have this tape, which is in my view a violation of the Rosario and Brady rules,” said Lee’s trial lawyer, Joseph Giannini, in a sworn statement.
The rules Giannini referred to define material that must be shared with opposing counsel during a trial. The Rosario rule requires that any prior statements made by a witness be turned over to the other side — defense or prosecution — for use on cross-examination. Brady material is any evidence in the prosecution’s possession that may be favorable to the defendant. Prosecutors must turn that evidence over to the defense.
“All materials and transcripts were turned over,” said a spokesperson for the Brooklyn DA.
Richardson eventually testified at Smith and Lee’s trial, saying he lied under oath the week before when he said he did not know who shot Van Dorn.
Smith and Lee were both convicted of second-degree murder.
Life after prison
Smith was released on parole in 2012, just in time to reunite with his mother, who died a little over a year after his release.
At two separate parole hearings, he admitted to the murder. Smith said he lied to get out of prison and see his family, not because he actually committed the crime.
He said he loves Facebook, which he learned about when he was released. He posts every day.
He works with Man Up, an organization battling gun violence. “That’s very important to me today. I go out and educate kids.”
Release from prison, however, is not enough for Smith. “It’s great, and I’m out with my children and my grandchildren, but it’s difficult because I have this conviction hanging over my head.”
Right unit, wrong leadership
Smith and his lawyers have mixed feelings about the Brooklyn DA’s new Post-Conviction Justice Bureau.
Gonzalez is doing “radical and groundbreaking” work when it comes to the Parole and Clemency Unit, Kuby said.
“I think it’s a wonderful and radical innovation in the criminal justice system. It reverses the presumption of endless incarceration in favor of a presumption of redemption,” Kuby said.
Kuby feels differently about Burns, however.
“It would seem to me — given the pool of talent available to DA Gonzalez — he could have picked someone who has not committed egregious prosecutorial misconduct, which includes coercion of a witness and lying to a court to obtain a conviction,” Kuby said.
Smith agrees with his former lawyer. I believe the unit might turn out to be a great unit, but I don’t think Paul Burns is fit to run it,” he said.
