Martin H. Tankleff: Andre Brown Must Be Saved from Going Back to Prison – a Potential Death Sentence

Update: Andre Brown was supposed to turn himself in to Bronx Criminal Court on March 14, but got a temporary reprieve by the district attorney’s office when he filed a clemency petition with New York Gov. Kathy Hochul. The victims’ families have opposed that petition, which is still being reviewed.

By Martin H. Tankleff

In 1923, Justice Learned Hand, wrote, “our [criminal justice] procedure has always been haunted by the ghost of the innocent man convicted.” 2 Tragically, according to the National Registry of Exonerations, there have been 446 ghosts in New York State (state and federal crimes), and I was one of those ghosts. To reduce the ghosts in New York, the powers that be should refrain from sending Andre Brown back to prison.

Andre Brown served 23 years of a 40-year sentence for a crime he did not commit. His case was reexamined, and a judge vacated his conviction. He was freed based on evidence that proved he could not have committed the crime – evidence his lawyer neglected to bring up at the initial trial.

“I did not do the crime,”Brown said. “I’m the third victim of this crime that no one ever speaks about.”

Andre’s case reminds me of the CJ Rice case where Jake Tapper’s father, CJ’s doctor, established that CJ could not have committed the crime.

In December 2022, Andre was reunited with his wife, son, and daughter, just in time to spend Christmas with his family for the first time in his adult life. Then, on Christmas Eve 2024, just two short years later, the phone rang, and Andre received devastating news – the appellate division had reinstated his conviction and told him he had to turn himself in to serve the remainder of this sentence. Another 17 years. He has been ordered to surrender on April 25th.

Andre’s son is 14 years old; he will be 31 if Andre survives serving this sentence – it’s unfathomable.

This issue is important to me because starting in October 1990, I was 90T3844. That was until my 50-years-to-life sentence and conviction was reversed on December 21, 2007. This reversal came after appeals to State and Federal Courts in New York and even the United States Supreme Court. Yes, I was a victim. My family were victims. Suffolk County citizens were victims. Those responsible for my parents’ murders remained free to commit additional crimes while I was imprisoned, creating more victims.

The harm done by a wrongful conviction is permanent. To take a person away from their family, remove them from their community, and imprison them wrongfully is one of the greatest harms the state can inflict upon the individual. And yet, in New York, Criminal Procedure Law §440.10 imposes insurmountable procedural bars that prevent New Yorkers from clearing their names through proscribed legal channels.

The prosecutors who are seeking to return Andre Brown to prison, are the type of prosecutors who are seeking finality above justice are ignoring the long-held principle that, “It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

It is those prosecutors who victimize citizens of New York when they prosecute the innocent and allow the guilty to remain free and victimize our communities. There is a clear reason why some prosecutors oppose letting Andre Brown remain free – to protect the wrongdoing emanating from their offices. Official misconduct contributes to more than 50% of exonerations in New York – that is why prosecutors don’t want the legislation passed. However, many may not even be aware that the American Bar Association has codified specific rules for prosecutors in post-conviction matters.

“When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and

(2) if the conviction was obtained in the prosecutor’s jurisdiction,

(i) promptly disclose that evidence to the defendant unless a court authorizes delay,

and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.” ABA Rule 3.8(g)(h)

Sending Andre Brown back to the New York State DOCCS, where two men were recently murdered by prison guards, exposes him to a death sentence. There is no rationale to justify returning Andre to prison. Even assuming, arguendo, that Andre is guilty, he has already served enough time. In countries like Iceland, someone convicted of murder would serve no more than 16 years – Andre has already served 23 years.

NYS Appellate Division Second Department Justice Ellerin said in 1994, “The greatest crime of all in a civilized society is an unjust conviction. It is truly a scandal which reflects unfavorably on all participants in the criminal justice system.”

If someone doesn’t step in and save Andre from being sent to prison, New York will once again be plagued by scandals of wrongful convictions. New York needs to be a leader when it comes to eradicating and correcting the mistakes of its past, and sending Andre back to prison would be a step backward, not forward.

Martin Tankleff is Special Counsel to Barket Epstein Kearon Aldea & LoTurco, LLP, Adjunct Professor of Law at Georgetown Law Center, and the Peter P. Mullin Distinguished Visiting Professor at Georgetown University and a nationally recognized exoneree.

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