A Claim of Innocence Is No Longer a Roadblock to Parole

Date of Alert: 
Thursday, November 13, 2014

BEACON, N.Y. — After 28 years in prison, Freddie Cox emerged from the Fishkill Correctional Facility, not quite a free man, but free enough.

A sister had cued up Sam Cooke’s “A Change Is Gonna Come” on her car’s CD player, and, after hugs, Mr. Cox put his two small bags and his typewriter in the car and squeezed in alongside the others, heading away from prison, windows down.

Mr. Cox had been imprisoned for a 1986 murder in Coney Island, Brooklyn. He said then and he says now that he is innocent — and he has maintained that position at four parole hearings.

Three times, the parole board rejected Mr. Cox, even though a co-defendant — who admitted to the murder, and has said Mr. Cox was innocent — was granted parole three years ago.

The predicament that had confronted Mr. Cox is known as the parole paradox: Admitting guilt has historically given inmates a better shot at parole. “Claiming to be innocent was, in the past, considered to be denial,” said Daniel S. Medwed, a professor at Northeastern School of Law.

But now, as New York and other states confront a growing number of wrongful-conviction claims, lawyers, inmates and parole experts say the beginnings of a change are occurring.

On his fourth try, Mr. Cox’s request was granted. Lawyers from the Exoneration Initiative successfully petitioned this summer that there was enough evidence to cast Mr. Cox’s guilt in question, and that his claim of innocence should not be held against him.

Rebecca E. Freedman, one of his lawyers, said they would soon ask a review unit created by the Brooklyn district attorney to review his case.

At least three other men, convicted in Brooklyn courts, have won their freedom despite not admitting guilt: Derrick Hamilton, charged with a 1991 Bedford-Stuyvesant murder, got parole after 20 years in prison; Sundhe Moses, who was convicted in a 1995 shooting that killed a 4-year-old child, was granted parole last year; and Robert Hill, who was convicted of a 1988 murder, was granted parole in May.

“They’re considering actual innocence,” said Tom Grant, a New York State parole board member from 2004 to 2010. With DNA evidence and news media coverage of wrongful convictions, he added, “you can justify a release now.”

On the West Coast, men in California and Alaska who maintained their innocence were granted parole this fall; lawyers in those states said such decisions were exceedingly rare.

“Parole commissioners, like the rest of society, have come to recognize that there are far more innocent people in prison than we had ever imagined, so they’re more receptive to that argument,” said Ron Kuby, a civil rights lawyer who represents Mr. Moses.

In 2011, Mr. Moses made his first appearance before the parole board. He said he had lied and said he was guilty, and he expressed remorse in the hopes of gaining his freedom. Parole was denied.

In his second appearance, Mr. Moses gave the board various evidentiary problems with his conviction, and proclaimed his innocence. Parole was granted.

The parole board’s adjustment on Mr. Cox’s case is notable because his is not clear-cut: There is no new DNA evidence, and there is still not a consistent take on the events that led to Mr. Cox’s conviction — and a man’s death.

At about 6 a.m. on New Year’s Day 1986, a 37-year-old man, Cornelius Davis, was shot to death in an elevator in Coney Island. There was one witness: Gloria Mack, a neighbor of his. She initially told the police she had seen Mr. Cox, along with two others, Kelvin Green and Henry James, at the murder scene, with Mr. Cox holding a gun and standing over the victim.

The three were known to the police — they had committed a robbery together in 1985. Mr. Cox pleaded guilty to attempted robbery and said he spent a few months in jail.

When questioned by the police about Mr. Davis, Mr. Cox, then 19, had an alibi: He said he had celebrated New Year’s Eve with his girlfriend in Times Square, where they watched “Rocky IV” and a ninja movie. They ended up at her home around 4 a.m., and slept until 10 or 11 a.m.

Mr. Green and Mr. James were soon arrested. They told similar stories: The three had intended to rob Mr. Davis, but after things went awry, Mr. Cox shot the victim. Mr. James would later testify, though, that he was pressured to identify Mr. Cox.

“All I want is Freddie Cox’s name,” Mr. James recalled a housing police officer saying.

By trial, Ms. Mack, the sole witness, who had severe psychiatric problems and was a self-described alcoholic, had changed key elements of her story. She said she recalled four assailants, not three, and one was her own son.

Then there was the presumed murder weapon, recovered from the home of Mr. Cox’s girlfriend. It matched Ms. Mack’s description of a long-barreled silver gun.

But the gun had no fingerprints, and the ballistics expert at trial was not certain that it was the murder weapon. Other physical evidence found at the scene — a hat, a knife — also could not be linked to Mr. Cox.

“Gloria Mack is, in essence, this case,” Kenneth Taub, the prosecutor, told the jurors.

The jury convicted Mr. Cox of second-degree murder, criminal possession of a weapon and robbery. He was sentenced to 25 years to life.

Mr. Cox’s girlfriend at the time, Chantay Burnell, did not testify at the trial. Reached in Pennsylvania, Ms. Burnell remembered the details of that New Year’s night well: the movies, the sunrise, the B36 bus she and Mr. Cox took back to Coney Island.

According to police reports, Ms. Burnell had told detectives that Mr. Cox owned a gun. Mr. James and Mr. Green came by on New Year’s Day morning to drop it off, she told the police. She brought the police to her home and told them where the gun was.

When informed of the police account, Ms. Burnell was incredulous.

“No. No, no, no, no, no,” she said. “That is not what happened.”

She said she had never seen Mr. Cox with a gun.

She recalled that detectives at the precinct station house told her they had a search warrant for her house, and that she had to go with them.

She remembered standing downstairs in her townhouse during the three-hour police search, punctuated by an officer’s shout of “Bingo” after he said he found the gun.

Ms. Burnell said she always felt terrible about Mr. Cox’s conviction.

“I’ve always wondered, How did they convict him?” she said. “Now I see.”

Throughout his prison term, Mr. Green continued to insist that he had killed Mr. Davis and that Mr. Cox was not there. (Mr. James, for his part, said as recently as 2012 that Mr. Cox was the gunman.)

Even at his trial, Mr. Green told the judge that “they already convicted Freddie Cox for it; but he didn’t do it — it was me.”

“He was there, wasn’t he?” the judge said.

“No. Nowhere around,” Mr. Green said.

Mr. Cox’s first chance at parole came in 2010.

“Do you take responsibility for these crimes?” a commissioner, Joseph P. Crangle, asked.

When Mr. Cox said he was innocent, Mr. Crangle replied, “You were found guilty, and we go on the facts that we have.” The commissioners denied parole, and denied it two subsequent times.

Mr. Cox said he never considered saying he was guilty because the murdered man had children. “I don’t want anybody to think that I’m responsible for taking away their parent,” he said.

Mr. Cox’s own parents, as well as a brother and two sisters, died while he was in prison. He attended their funerals in shackles and handcuffs, accompanied by prison guards.

Mr. Cox tried to use his time productively. When he entered prison, he said he could barely read and write. Over the years, he earned a high school certificate and a college degree, studied Islam and counseled prisoners about gun violence.

At Mr. Cox’s parole hearing this August, the mood had changed, as he discussed his innocence claim.

“I believe in justice and want to do what’s right,” a commissioner, Ellen Alexander, told him.

Parole was granted. The release was set for Oct. 15.

That day, just after 10 a.m., Mr. Cox emerged from the Fishkill prison.

He is now 48 years old. He had not used a straw or chewed a piece of gum in 28 years. He had never operated automatic car windows, or a smartphone, or heard a computerized voice give driving directions. When the group that had come to greet him stopped at a diner, he was amazed by the luster of the plates, by the vibrancy of the salads, by the fact that a waiter cleared away dirty items.

He was exuberant. But parole is not freedom; parole is curfew. There are limitations to where he can go, and a felony remains on his record.

Mr. Cox was primarily concerned with the victim’s family. Once they know he is innocent, he said, “that’s where my freedom really begins.”

As they rode back to the city, Sam Cooke was still playing. Mr. Cox looked out the window, distracted, as his sisters discussed a welcome-home party.

“It’s been a long, long time coming,” Mr. Cooke sang. As the greens and reds and auburns of the autumn Hudson Valley leaves streamed by the window, Mr. Cox’s head fell forward into his hands and he cried, silently, his shoulders shaking.