It’s been seven years since I represented an innocent man who was spent nearly five years in jail.

In May 2006, at the age of twenty-one, Xavier* was arrested at his Brooklyn home, without being told why. After spending a night in jail, and being put in a line-up the next day, he was charged with stabbing a man he had never met, in a neighborhood in which he did not live.

After spending two years in prison, he was tried in March 2008 and convicted for the felony of assault in the second degree. I filed an appeal for him in February 2010, and his conviction was overturned in January 2011.

How did this innocent man go to jail for something he did not even know happened? The answer is that the criminal justice system is so flawed that it is quite easy for a prosecutor to convict an innocent person. Prosecutors are rewarded for convictions, so they (too often) play dirty to succeed. They intimidate, they fudge, they withhold evidence, they mislead. That has been my experience.

Xavier’s case haunted me, and although I told plenty of people his story, it was only in the past few weeks that I decided I had to tell it more publicly. What happened that made me want to write about it?

The first trigger was listening to Kanye West during his visit with Jim Brown to the Oval Office three weeks ago (relevant excerpt above), during which Kanye spoke about the prison system and a man named Larry Hoover. I looked into Larry Hoover’s story and was deeply affected by it (more on that later). The straw that made me write this article was when my twins and I were listening to Sam Cooke’s Chain Gang in the car. I could take it no longer.

First, Xavier’s Story

I called Legal Aid in early 2009 to take on a criminal appeal pro bono.

“This is a loser case,” the Legal Aid attorney told me as he sent it to me. “They all are. No one wins these criminal appeals. But it’ll be a good experience.”

“I’d like to speak with Xavier,” I told the Legal Aid attorney.

“You want to speak with the defendant?” he asked. “Why?”

“To find out what happened, to tell him I’m taking on his case—lots of reasons,” I answered.

“That’s rare to call the inmate, but sure. He’s at Bare Hill.”

When I called Xavier, he said, “I have no idea how I ended up here. I never met this [stabbed] kid in my life. They picked me up from home and didn’t even tell me why. They threw me in a jail cell overnight and put me in a line-up the next day. Everyone else in the line-up was almost ten years older than me, even though the fillers were supposed to be black males around my age.”

“Did you testify?”

“My lawyer told me not to. He said there was no evidence.”

This was true, I found out. There was no evidence. But unfortunately, the prosecutor had committed a series of errors and misdeeds that made the jury curious enough to need to hear Xavier’s testimony. They needed to see him on the stand and hear him say, “I’ve never seen this kid in my life. I don’t even live over there.”

But they didn’t hear him, and they convicted him.

The Corrupt Prosecutor

The case was about a kid in his early twenties who was stabbed in a subway station in Brooklyn. We’ll call this kid Abel.

In January 2008, four young black men followed Abel for a few blocks, and then down into a subway station. According to Abel’s testimony on the stand, his ex-girlfriend’s best friend sicced the four men on him.

Abel saw that the four men were after him, so he ran into the Brooklyn subway station to escape. Once down the stairs, the four men jumped him. One of them stabbed him, and Abel immediately passed out. The only eyewitness to this had been the MTA attendant, who later testified that the whole thing happened “in under a minute,” and that the four men were all wearing black hoodies and he could not make out a single face.

Abel met with the police the next day from his hospital bed, during which Abel described the four men exactly the same as each another: “male black, age 19 to 23, thin build, medium to dark complexion.” Abel was so delirious that he did not even remember having spoken with the police officer while in the hospital at all. One week later, Abel came out of the hospital and went to the police station; this would be the first interview with police that he could remember.

The police officer at the station, a detective, put Abel in front of a machine called “Photo Manager.” Photo Manager is a database of all mug shots ever taken. The officer input the description: “male black, age 16 to 25, five-foot-five to five-foot-nine, ever arrested in the Eighty-third Precinct.” Approximately two thousand photos were in this result. Xavier had been arrested for a fight in Bedford-Stuyvesant before he had turned eighteen, so his photo was already in Photo Manager.

With nothing to go on except for his memory of the less-than-one-minute incident one week earlier (before he passed out and spent one week in the hospital), out of the two thousand (2,000!) photos, Abel chose Xavier’s photo as “the guy who stabbed me of the four of them.”

Based on this photo identification alone, the officer went to Xavier’s house and arrested him. The next day, again after having studied Xavier’s Photo Manager photo, Abel chose Xavier out of a line-up. The only third-party witness, the MTA attendant, was not able to choose Xavier out of the line-up. Xavier was thrown in prison awaiting trial.

How did the prosecutor manage to get Xavier convicted on literally no evidence, other than this absurdly shaky Photo Manager identification?

Let’s remember that Abel could not describe a single feature of any of the suspects except for “male black, age 19 to 23, thin build, medium to dark complexion.” Arguably, the fact that the MTA attendant could not identify Xavier in the line-up weakened even this extremely weak identification, making this a weaker than a he-said she-said case. Since Xavier’s attorney did not put him on the stand (the public defender’s argument being that the prosecutor had no case), Xavier could not discuss his alibi, witnesses to his alibi, etc.

At trial, Abel was allowed to describe to the jury what he remembered being a “two [to] three hour[]” “conversation” with the detective at the precinct the evening before the line-up (instead of a session on Photo Manager). The detective was allowed to also refer to this same meeting (which he called a “reinterview” of the complainant). Over objection, the detective further testified that, after the meeting, he picked up Xavier from his house to be the “person of interest” in a line-up. Both Abel and the detective confirmed to the jury that Abel chose Xavier out of a line-up the next morning. The lower court had warned the prosecutor not to elicit this fact from the detective, yet she did anyway—with impunity, and no curative instruction. The detective also testified that, after Abel chose Xavier from the line-up, he arrested Xavier.

The hearsay testimony about the “two [to] three hour[]” meeting at the precinct between Abel and the detective implied to the jury that additional evidence existed against the defendant that was two to three hours-worth, when in fact no other evidence existed. The hearsay allowed the jury to infer that Abel identified Xavier as the fourth perpetrator prior to the line-up, and/or that some other unspecified evidence actually linked Xavier to the crime. This hearsay as to the meeting and its mysterious contents could not even be cross-examined because Xavier would have been forced to elicit from the Abel, or from the detective, that Abel had made a prior photo identification of Xavier, which is inadmissible under New York law due to its prejudice.

So why have Photo Manager if you can’t talk about Photo Manager??

How can you make an arrest based on a victim inputting a vague description into a computer and choosing one photo out of two thousand, an entire week after the incident (during which the victim was delirious and in the hospital), based on an alleged assault that lasted under one minute in a flurry of hoodies?

Let’s add that the detective could and should have done even a modicum of an investigation. We know that Abel’s ex-girlfriend’s friend sicced these four men on Abel, so why Photo Manager instead of an investigation based on the available information? How did this officer get the title of “detective” anyway?

To make matters even worse, the prosecutor got away with improperly putting ADDITIONAL prejudicial evidence before the jury:

• First, the prosecutor improperly tried to discredit her own witness, the MTA attendant, for describing the incident as “extremely brief,” for his inability to identify anyone in the line-up, and for his inability to provide any description of any of the suspects;
• Second, the prosecutor brought in Abel’s blood-drenched shirts to evoke empathy from the jury, when the shirts had no evidentiary value, and looked and smelled horrific;
• Third, the prosecutor improperly got the detective to say that Xavier had an attorney at the line-up, confusing the jury because the attorney was present due to Xavier’s objection that the line-up fillers were materially older than him, and this issue was never even before the jury;
• Fourth, during summation,
  1. The prosecutor repeated all of these errors,
  2. The prosecutor added that Abel had a “hard life” and was “credible” while the defendant was “heartless,” and
  3. The prosecutor repeatedly mischaracterized—and in some cases fabricated—evidence (including repeating to the jury that the only time Abel had ever viewed the defendant was in the line-up, leaving out that Abel had studied Xavier’s photo on Photo Manager).

Freeing Xavier

Xavier’s conviction was reversed based on the fact that the detective told the jury that Abel picked Xavier out of a line-up. Because there was no other actual evidence, other than the shaky testimony of the victim, this prejudicial hearsay called for reversal.

But what if the officer had not said on the stand that Abel picked Xavier out of the line-up? Would it have been enough the prosecutor improperly impeached her own witness (the MTA attendant)? No.

Would it have been enough that the prosecutor improperly put before the jury the bloody shirt? No.

Would it have been enough that the prosecutor significantly mischaracterized, and fabricated, evidence during her summation? No.

Was there any defense against Photo Manager, and how it was in lieu of an actual investigation? No.

What if no one took Xavier’s appeal? Xavier would have been out of luck.

What if someone took his appeal, but missed this one issue of the detective saying that Abel identified Xavier in the line-up (called “improper bolstering”)? Xavier would have been out of luck.

Xavier got “lucky” that one of these many injustices actually called for a reversal of his felony conviction, and that I included it in his appeal. This was after he had served nearly five years of prison, which included one prison transfer that I arranged because he was getting beaten up; the prison transfer was helpful to him, but he was sent to a prison several hours north, which meant his wife and child could barely visit him anymore.

But Wait—There’s More Injustice (Is That Even Possible??)

I had left my law firm by the time the decision came down, and Legal Aid had already convinced Xavier to take a plea deal rather than redo the trial.

“Why didn’t you call me?” I asked Xavier when I finally tracked him down by calling his aunt (I had spoken with various family members of Xavier’s during the trial, to reassure them and keep them in the loop).

“They told me not to take a chance at re-trial,” Xavier replied.

“But there was no evidence! I would have done your retrial. Never mind—what did you plea to? A misdemeanor?”

“Yes, a misdemeanor.”

“Which one?”

“I don’t remember.”

“Please go get your disposition and read the penal code to me,” I told him. He did. Guess what the prosecutor snuck in to his disposition? The same Class D felony he was convicted of: New York Penal Code 120.05, Assault in the Second Degree!

“Holy moly,” I said. I called Legal Aid, informed them of the error on Xavier’s disposition, and had them pull the transcript of his allocution (that’s his statement to the judge about what he was pleading to) to get his conviction “corrected.” The state court’s minutes were (at least at the time) only kept for one year, so had a few more months gone by, this error could not have been corrected.

“On job applications, until it’s corrected, do I have to write that I’ve been convicted of a felony?” Xavier asked me.

“No!” I replied.

Do I think that this prosecutor (who was likely humiliated by the reversal) made a simple error on Xavier’s disposition? After a decade of experience with prosecutors and regulatory enforcement attorneys, I would bet my right arm that it was not an error. Of course she would say it was, and who could prove her wrong?

I met with Xavier a few months later, just shy of his twenty-fifth birthday. His wife had divorced him, remarried, and given birth to another child one day after his release. I took notes of our meeting, having resolved to tell his story at some point, although it took me seven more years to.

Xavier met me on the Upper East Side. This was the first time I had met him in person. On his walk from the Eighty-Sixth Street subway station (at Lexington Avenue) to the cafe across from my apartment building, a white van had pulled up beside him, opened, and someone inside had asked him if he wanted to buy some TVs. In all my years on the Upper East Side, no one ever asked me that. But I digress.

“How are you handling this?” I asked him when we were both sitting—me nine months pregnant with twins, him well-dressed across from me and sipping a coffee. “I’d be in a mental institution.”

“It was rough, but you have to adapt,” he replied. “You have to adjust and survive. I tried to rationalize it by thinking this was for a reason—who knows. That’s the way I eased the pain. Maybe this was keeping me away from other trouble. I told myself these things so I could deal with being in there for something I didn’t do.”

Prosecutors Are Like Sharks: They Roll Their Eyes Back and Bite

When I was in law school, a former Southern District of New York prosecutor told me, “Prosecutors are like sharks. They roll their eyes back and bite.” I told him that this described my experience in Chicago’s Northern District of Illinois U.S. Attorney’s Office to a T.

I had worked on several federal trials in Chicago during law school, and they had all left a bad taste in my mouth.

One U.S. Attorney had asked me to help him triple the prison sentence of a single mom for kidnapping, when really she just needed serious therapy for having become infertile and taking a child from a Greyhound bus station (for all of four hours). We succeeded in tripling her sentence to over seven years, and the prosecutor high-fived me and said we should all go out for drinks to “celebrate.”

In a gun-running case, another prosecutor interviewed a gun store owner from Alabama ostensibly to arrest gang members who were running guns from Alabama to Chicago by using their girlfriends as “straw purchasers.” I took the notes for the man’s 302. The prosecutor then indicted this gun store owner(!), and we were successful in having him convicted. Why didn’t we tell him that he was a target, and advise him to get an attorney, before we interviewed him for hours? The answer is that it would have been much harder for the prosecutor to throw him in jail if he went about it all ethically. The gun store owner, an old man, had a heart attack when the jury read its guilty verdict.

On a pro bono case in New York after I had taken the bar, we represented a defendant against a prosecutor who improperly withheld exculpatory evidence. I’ll repeat that—he improperly withheld exculpatory evidence! The prosecutor (who later became famous for prosecuting insider trading trials), kept the 9-1-1 call from us. The exculpatory 9-1-1 call!

Over the next ten years, I worked in white-collar criminal defense and came against shockingly criminal behavior by nearly every prosecutor and regulatory enforcement attorney. They withheld evidence, lied, misled, tormented, intimidated!

Upward Departures in Sentencing

When I interned at the U.S. Attorney’s Office in Chicago, everyone was always talking about “upward departures.” The judges followed something called the “Sentencing Guidelines,” and a prosecutor could ask for an “upward departure” from those guidelines.

In order to triple the sentence of the single mom defendant in the kidnapping case, we could prove prior crimes by only a preponderance of the evidence (a very low bar—the same bar in a civil case) and then, if successful, tack on that full sentence. Wait—does that even make sense? Barely proving a crime to add the same sentence? It did not make sense to me then, nor does it now. But I imagine that’s how Larry Hoover somehow ended up with six life sentences.

Who Is Larry Hoover, and Why Does Kanye Want Him Free?

Back to Hoover. When Kanye West talked about how Larry Hoover had been indicted on new charges while in prison (seventeen years into a prison sentence) just when he was doing good for the community and organizing the black vote, I remembered what the prosecutors for whom I had worked in Chicago had said: They had bragged (all of them) about “taking down the Chicago gangs in the Nineties! The Gangster Disciples!”

I did not look into it back then, but I decided to now.

Larry Hoover, it turned out, was the former head of Chicago’s “Gangster Disciples” gang. He was sentenced to 150-200 years in prison in 1973 for the murder of a neighborhood drug dealer.

In 1993, while still in prison in Illinois, Hoover renounced his violent past and, and according to Wiki, “became an urban celebrity in Chicago… [the] Gangster Disciples earned fans in the community with charity events and peaceful protests.”

From prison, Larry Hoover transformed his Chicago gang “Gangster Disciples” into the community service organization “Growth and Development.” Its members began fundraising for charities, guiding youth toward education and embetterment, and organizing the black vote through Hoover’s organization “21st Century V.O.T.E.”

Hoover wrote a Blueprint for this transformation (see picture of cover above). Biography wrote:

Hoover’s move to reform began gaining positive attention from the outside. Growth and Development created nonprofit organizations that registered voters, a music label that helped needy children, a series of peaceful protests to fight the closing of public programs, and even a clothing line. Within two years, Hoover’s positive influence had extended to tens of thousands, and encouraged education within the black community.

In 1993, Hoover described some of his goals with his organizations, such as those above and one called “United in Peace”:

Hoover’s organization “21st Century V.O.T.E.” quickly became a formidable political presence in Chicago.

Greg Donaldson, a teacher who observed the election campaign of Gator Bradley in 1994 (promoted by 21st Century V.O.T.E.), wrote about the organization and Hoover’s impact:

[Years ago], Larry Hoover changed the name of the Gangster Disciples to Growth and Development, and began issuing anti dope and stay in school directives. “Lions do not walk among sheep,” declares one such G.D.‘ communication, entitled, “Who are We?” The document distributed to members rea[d], “Our transition from a lifestyle of ill repute to one of respectable and productive people is not from fear or force…. There are many who promised to assist us on our war on oppression, but proven themselves to be unworthy deserters and cowards, afraid to tread unconquered territories.” The second page of the letter list[ed] rules of silence and secrecy as well as a ban on drugs, stealing, missing school, confronting the police, and even littering. … When hordes of young men [started] showing up at protests and political rallies it became clear that Hoover’s idea had given the youth something their hearts yearned for even more than gold chains and state of the art sneakers. … It was time to hold their imagination with a victory in the Third Ward. “We’ve got to win,” a leader of 21st Century VOTE said, “We just got to win.”

In 1995, a few years into a massive turnaround in Chicago led by Larry Hoover and his Growth and Development organization, prosecutors (17 years into his sentence) suddenly indicted Hoover on a conspiracy charge. He was convicted and sentenced to six life sentences and sent to a maximum security prison in Colorado.

At the White House, Kanye West said Hoover was jailed:

… because he started doing positive for the community. He started showing that he actually had power. That he wasn’t just one of a monolithic voice, that could wrap people around… [H]e was doing positive inside Chicago….

Once he was locked up in Colorado, Hoover could no longer influence Chicago or its politics. From accounts that I have read, the new conspiracy charge was dubious at best. But I am not going to go into that–I think my opinion on prosecutors and the criminal “justice” system is clear. Maybe I am biased after my experiences, but I believe that I showed how easy it is to lock someone up for literally nothing. Surely it’s far easier when someone is already in prison.

Author Victor Woods described what thousands have said about Hoover’s sudden additional six life sentences:

Larry Hoover has been incarcerated for thirty-six years. Since his new indictment and conviction in 1995, he has been in a cell 23.5 hours a day, and allowed no physical contact.

Below is the full video compilation (excerpts of which are above):

Maybe Kanye West can help us #freeLarryHoover. We can only hope. But in the meantime, his legacy lives on in Growth and Development movements around the country. May they grow and thrive.

A shout out to a Growth and Development project posted by a member of an organization here in Connecticut that I’ve followed and admired for over a year now. Former graduates from a high school in Bridgeport started the organization Respect My Family (see also its Twitter and Facebook). One RMF member posted a Growth and Development Sundays project (Growth and Development being a separate organization, the one started by Hoover) from this past weekend:

#freeLarryHoover

*The names in this article are changed.

Evie Courtlandt practiced white-collar criminal defense for thirteen years. She represented clients in federal criminal trials, and in regulatory enforcement actions against the Securities and Exchange Commission, Food and Drug Administration, United States Treasury, and other state and federal agencies. She graduated from Columbia College, Columbia University in 1999, and received her law degree from Northwestern University School of Law in Chicago in 2004.

Evie Courtlandt can be reached at evie@eviecourtlandt.com.