NEW YORK — On July 12, the U.S. Court of Appeals for the Second Circuit issued a 49-page opinion reversing the denial of the petition for a writ of habeas corpus of Sami Leka, and directing that the writ be granted. The petition in question was regarding Mr. Leka’s conviction on murder and weapons charges in connection with a 1988 Kings County shooting. Mr. Leka, who has been in prison for nearly 12 years, was represented in his habeas corpus petition by lawyers from McDermott Will & Emery’s New York office.
As part of the Firm’s pro bono program, the legal team, led by Michael S. Sommer, has been representing Mr. Leka since he filed his petition in the U.S. District Court for the Eastern District of New York nearly three and half years ago. The petition presented evidence that, among other things, the prosecution had knowingly concealed evidence demonstrating Mr. Leka's innocence, and the police had employed impermissibly suggestive and bullying identification procedures to secure an identification of Mr. Leka from a witness.
"We are gratified by the Second Circuit's decision and are thankful that our efforts to right this egregious injustice, which resulted in the wrongful imprisonment of Mr. Leka for over a decade, have no longer fallen on deaf ears," commented Mr. Sommer.
In November 1999, the district court denied Mr. Leka's petition, and the Second Circuit reversed that decision. According to the court, the sole evidence presented against Mr. Leka at trial was the testimony of an eyewitness who identified Mr. Leka as the person involved in a shoot-out, which led to the death of one of its participants. The prosecution, however, concealed the fact that an off-duty police officer also witnessed the shooting and would have contradicted the testimony of this state's eyewitness. As the court noted, "The prosecution failed to disclose [the police officer's] testimony and for a critical time actively suppressed it. According to the court, the prosecution never disclosed at any time to the defense the true nature of [the police officer's] testimony." In addition to the misconduct of the prosecution, the court's decision also made clear that the state's eyewitness had acknowledged, post-trial, that he had been pressured by the police into making an identification of Mr. Leka, notwithstanding his having informed the police that he could not make an ID.
The Kings County district attorney's office has 90 days to retry Mr. Leka. It is doubtful that such a re-trial could succeed in light of the fact that the state's sole witness has recanted his identification and no other evidence exists implicating Mr. Leka in the shoot-out.
McDermott Will & Emery became involved in this pro bono representation more than three years ago as a result of discussions that occurred between Cheryl Reicin, a corporate partner resident in the Firm’s New York office, and a news reporter who was covering Mr. Leka’s case.