Tag: court

Nearly four decades after they were busted for the New Year’s Day murder of a French tourist in Times Square, two childhood friends who have long professed their innocence appear to be on the brink of finally clearing their names.

In an Oct. 6 letter a top prosecutor in the Manhattan District Attorney’s Office asked a judge for a “pre-motion conference to discuss an anticipated motion to vacate the convictions” of Eric Smokes and David Warren.

The letter from Terri Rosenblatt, head of the Post-Conviction Justice Unit (PCJU) said the DA’s office is “prepared to concede … that there is newly discovered evidence that creates a reasonable probability of a more favorable outcome …”

The Daily News first wrote about Smokes and Warren, childhood buddies from East New York, in 2017, when their lawyers were planning to file a motion to vacate their convictions.

They were busted Jan. 8, 1987, a week after 71-year-old French tourist Jean Casse was mugged and robbed outside Ben Benson’s steakhouse on W. 52nd St. a few minutes after midnight on the morning of Jan. 1.

Smokes, then 19, and Warren, then 16, said from the start that they went with friends to Times Square to celebrate the new year and that when Casse was attacked they were outside the Latin Quarter nightclub, four blocks away from the steakhouse. They then headed further south because they didn’t have enough money to get in.

Casse, visiting the city with his wife and others — was heading back to his room at the Plaza Hotel with his group when he was knocked to the ground with a punch and struck his head on the ground, causing injuries he would die from later that day. His wife, Huguette Casse, 65, was not hurt.

Based largely on eyewitness testimony, both teens were charged with murder and convicted. Smokes, accused of punching Casse, was sentenced to 25 years to life, and Warren, accused of rifling through the victim’s pockets, got 15 years to life.

“I just went into shock,” Warren recalled when The News first interviewed him. “I might have been in shock for two years, honestly.”

In 2005, Smokes got a letter in prison from James Walker, the prosecution’s key witness.

Walker, 16 at the time, was busted for a mugging a day after Casse was killed and told a detective he had done robberies with Smokes and Warren, and that Smokes earlier on Jan. 2 said he’d “caught a body” in Times Square.

The letter, an apology in which he said he told the police what they wanted in exchange for preferential treatment in his own case, was all Smokes needed to hear.

“There was only one way to go,” Smokes told The News in 2017. “Getting out and just letting it go, sucking it up — ’25 years is just 25 years’ — that wasn’t an option for me.”

Warren was released from prison in 2009, Smokes in 2011. They found steady work in construction, married the women they were dating and set out to clear their names.

Their lawyers found two other witnesses who recanted, saying they had been pressured by police and prosecutors to pin the murder on Smokes and Warren.

“They kept asking me who did it,” Robert Anthony testified in 2018. “I kept telling them I didn’t know. I didn’t do anything. And they said, yeah, well…If they didn’t do it, you did it.”

After repeatedly saying he saw Casse on the ground but not who attacked him, Anthony testified that after 12 hours of being grilled he finally told cops what they wanted to hear.

“I was scared,” he explained.

The other witness, Kevin Burns testified that as he was being questioned for an unrelated robbery on Jan. 2, 1987 he said he was outside the steakhouse the night before and saw Casse confronted by Smokes and Warren.

When he then tried to take back that statement, explaining he had lied, he said an assistant district attorney told him it was too late, vowed to out him as a snitch if he didn’t stick with his original story and promised he’d get no deal in his own pending case.

“I lived with this lie,” he said at the 2018 hearing. “Everybody has something in their life they’re ashamed of and wish they had a chance to rectify. This is my chance to rectify this lie that I told 30 years ago.”

But Judge Stephen Antignani in January 2020 dealt Smokes and Warren a serious blow when he denied their motion to vacate the convictions.

Antignani said Smokes and Warren had not “established their innocence through clear and convincing evidence” and he agreed with Assistant District Attorney Christine Keenan, who had argued that neither police nor prosecutors involved in the original investigation pressured witnesses.

Witnesses Anthony and Burns were “not credible,” the judge said in his ruling, and he gave only “limited credence” to Walker’s claims, which he repeated in an affidavit, but was not able to testify to because he died after getting shot in an unrelated incident.

But as the lawyers for Smokes and Warren, James Henning and Pierre Sussman, prepared to appeal, the DA’s office changed course. The PCJU, formed by District Attorney Alvin Bragg, decided to review the case, sharing information and witness access with defense lawyers.

PCJU’s Rosenblatt in her letter said “new evidence” had emerged — including photographs “which were misplaced and not found until after” the motion to vacate hearing. Smokes is listed as 5 feet 10 inches tall and 230 pounds — not 6 feet tall and skinny, as witnesses told police at the time.

There were also leads to other suspects that were not turned over, with Rosenblatt pointing out that there is “no evidence” the DA’s office was aware of this during the vacate hearing.

Rosenblatt also notes an account from someone who in statements revealed for the first time he said he was “99% confident” he was with Burns the entire night and that neither of them were outside the steakhouse; a contention from a witness who in 1987 placed Smokes and Warren at the crime but now said he made that claim because cops had threatened to charge him if he didn’t; and so-called “scratch notes” that were located in another file that suggest police fed Anthony facts, including Warren’s name and photo, before he identified him as being involved.

“The People do not take the decision to consent to vacate two homicide convictions lightly, and come to this Court with significant deference to both the jury verdict and the prior litigation,” Rosenblatt said in her letter. “The People are aware of the resources that went into both, and the thoroughness of the Court’s prior decision.

“However, based on the newly-discovered evidence, the People believe that the only legally correct and just outcome is to move to vacate these convictions.”

It wasn’t immediately clear if Henning and Sussman would contest whether the evidence found during the review constitutes a Brady violation, which is a failure to turn over to the defense exculpatory evidence and could constitute malfeasance.

The lawyers said they, Smokes, now 56, and Warren, 53, wouldn’t comment until a decision is made in the case.

The DA’s office had no comment on the letter.

A decision in the case is not expected for at least several weeks.