#433 Jason Flom with Carl Miller

On October twenty fifth, nineteen seventy nine, Rabbi David Akanov was walking with his prayer case in Crown Heights, Brooklyn, when an assailant approached, described as a young black man about five foot nine, one hundred and fifty pounds, he shot the prominent rabbi, stole the prayer case and ran it too an apartment building. Eventually, NYPD found a young man named Daryl Brown, who gave several accounts alleging that a local amateur broxer named Carl Miller had made some

That live there.

But before we get into how that relates to this story and the man who lived at Carl Miller, I'd like to welcome back one of his attorneys, James Henning, to our show.

Pleasure to be back, Jason.

And this time you brought along another attorney who played a major role in this case, Carissa Cokin.

Welcome, thank you.

And now i'd like to introduce the man himself, Carl Miller. And as we record this right now, October twenty fifth, twenty twenty three, it's not only his birthday, but also the forty fourth anniversary of the crime at the center of his wrongful conviction. So Carl, I'm sure that colors how you see this day, but we hope that this one is a happy birthday, and thank you for choosing to spend some of it here with us.

And you're welcome.

Now, Carl, can you tell us a little bit about your childhood.

I grew up in Crown Heights with my family I went to public school to twenty one.

From there went to James D. Lawrence, which is a six hundred school.

My mother and my father moved out, and I just hung around with some of the guys that I was associated with.

Carl did not have his parents around for a while. He was expected to go out and handle his own business.

And you were married, and you were a young father at the time.

That wasn't married at the time, but I was a young father.

I understand you were an amateur boxer.

Yeah.

I did box for Izzyzerland Youth and Recreation Center and Crown Heights, and I had a little reputation in the neighborhood as somebody that you didn't want to mess.

With, and I think that, unfortunately worked against him when he was wrongfully accused.

In the months leading up to the murdering question, Carl had been in a fight in which he was stabbed with a screwdriver and hospitalized with a collapse lung, resulting in an open arrestaurant for assault, which seems wrong for someone defending themselves against deadly force, but that kind of unfair application of the law was nothing new to Carl.

I did have a confrontation with the seventy first Precinct because they used to come around and get guys to go in for lineups, and I started telling them, don't do that because you getting paid five dollars for a lineup, but in not giving you back the picture. So this is my way of like trying to keep them out of the police way.

Which is solid advice. We've seen misidentifications start just that way in so many wrongful conviction cases. So as a young man, Carl had already witnessed injustices to give him that perspective. While in contrast, there appeared to be preferential treatment for the Hasidic community and Crown Heights.

It's a strong voting bocke. It's like you're not going to get elected mayor if you don't have the Hasiatic community because they will vote in droves for the candidate that the Rebbe tells them to vote for.

The Hasidic community before and after World War Two settled in Crown Heights, which had been anointed by the leaders of what is known as the HBBAD or Hobbad Lubovich movement, many of whom had escaped persecution either at the hands of the Germans or those in the Soviet block before and after World War Two. Curiously, the city allowed one of its most powerful voting blocks to operate their own police force, the Jewish Defense League or JDL.

The hard charge behind that JDL philosophy was never again, get yourself a gun, don't rely on the cops. People lived in an era where the cops were hurting you onto the trains to auschwitzenbergen Belsen and Triblinka and whatnot. It's that Merkan slogan, never again, We're not going to be vulnerable. Imagine any other group in New York City having their own police force. There are two very distinct

One of the one that really stands out is the Crown Heights riot. But as I will say to people, prior to Crown Heights riots, you had like Victor Road, he was a guy that was a cost about a JDL.

And of course you're talking about the awful incident on June sixteenth, nineteen seventy eight, when approximately twenty Assitic men beat a sixteen year old kid named Victor Roads into a coma that lasted for two months. And so obviously the tension was high in the area.

So it was always tension, but it wasn't the con attension that the Crown Heights riot had bought.

The Crown Heights riot took place in August nineteen ninety one when a young Hasidic man drove through a red light, veered off the road to avoid now oncoming traffic, and pinned two seven year old Black children under his car, one of whom Gavin Cato, was killed, signetic a race riot.

The story at the scene was the Shibata ambulance showed up and went straight for the Hasidam while kids underneath the car and they're trying to lift it up.

The tension that was building for decades exploded. Jewish people and their businesses were attacked, and the violence played heavily into the nineteen ninety three mayoral election of Rudy Giuliani, who unseated New York City's first African American mayor, David Dinkins. The unrest in Crown Heights was Palpable in nineteen ninety three, and was certainly present when Victor Rhodes was attacked in June of seventy eight, as well as when Rabbi David Akanov was murdered in October seventy nine.

Rabbi David Akanov, the victim in this case, was in his late sixties. He had been born in Ukraine in nineteen eleven studied the Torah under Communist rule there. Actually, after his bar Mitzvah, he wanted to continue studying, but his parents wouldn't let him, so he went on a hunger strike until they gave up and led him. He ended up emigrating to the US after learning that the KGB was looking into him, and he made efforts in the Crown Heights community to help other Jews who were

This was a very high profile case. We've got a very prominent rabbi.

In the community who was shot with a thirty two caliber point blank in the face. There were two eyewitnesses to this shooting.

Both of the eyewitnesses Louis Fazio, who was not a member of the Seated community, and sixteen year old Sinaya Sperlin, who was. It's pretty evident that they saw the same person running from the scene with Rabbi Akinov's prayer case.

Now, the descriptions were actually remarkably similar from the two witnesses. A man who was black, twenty one years old, ish right about five nine, one hundred and fifty pounds, medium built, medium hair, possibly wearing a hat and a dark jacket. Carl, does that description match you or did it match you at that time?

At that time, I was probaby a five one hundred and eighty pounds, weigh a little afro and wear too many hats. Very athletic, not slim, as they had described this person as being a slender person.

That's not me.

They're talking about a guy who's five nine one fifty. You're about six feet tall, right, Yeah, there's a significant difference. You were a boxer, right, so with a class of boxing.

I was in a light heavy, light heavyweight, light heavyweight.

So the descriptions didn't match. What about alibis and things like that.

I was in Queens, New York, celebrating my birthday with my daughter's mother at the time, and I left her house came back to Brooklyn, and that's when I learned about the rabbi being murdered.

Carl had spent the night in Queens, and even after lies and coercion, his daughter's mother, Joanne Davis, maintained that he was there that morning and not in Crown Heights at seven am, murdering Rabbi Akanoff and running off with his prayer case into the apartment building at five point sixty five Crown Street.

And that is where they end up finding a suitcase that belonged to an individual named Daryl Brown.

Rabbi Akonov's prayer case is never found, and in an abandoned apartment they find this suitcase belonging to Darryl Brown with his property in there, and two days later he shows up at the precinct because he heard that they were looking for them.

Daryl Brown essentially ends up being the only person to ever implicate Carl Beller in this crime.

Right, you sure Lock Holmes to figure out a misdirection play there.

Right, You've also got the fact that Darryl Brown is repeatedly lying to them. His statements evolve. His initial statement indicates that he didn't see anything.

And then they received a second statement from Daryl Brown on November eight, nineteen seventy nine, while he was being treated at King's County Hospital for a gunshot wound to the hand. They never investigate the cause of the wound.

When they come back to him, presumably with the ability to turn the screws a little bit, when he's in the hospital with the gunshot wound, he now says that he and two other friends had seen a Jewish man with some money in a pizza falafel store and Carl supposedly said, oh, you should have ripped him off, and that he had heard the shot and saw Carl near the scene.

Carl has always maintained if he was not present either for the murder or that day in the store. We only find out who that actually was much later then.

Darryl Brown in his third documented statement and his first sworn statement the next day on November ninth, he says that he had seen Carl near the scene and he tried to get into five point sixty five Crown where I was staying. I've seen him with a thirty two and I spoke to him the day before the crime about a jew with money in a blue bag. And that's a quote which is important because it departs from his testimony at trial.

On the strength of dwell Brown's ever shifting word, Carl was eventually charged with the murder. However, with his open arrest warrant for assault, his reputation as a neighborhood tough guy, and previous interactions with the seventy first Precinct, they came looking for him way before Brown had ever made any statements. Just a few days after the rabbi's murder in late October.

My sister tell me that the police was looking for me to talk to me, and I called him, said, what are you looking me for? Oh, we want to talk to you. About the homicide. Come to the precinct. I'm like, Noah, we can talk about not come to the precinct. I didn't go because I made he was going to arrest me, so I had an open case.

I had a warrant, which is completely within his rights.

And I think it was November fourteenth. They picked me up at my house, took me to the sixty ninth precinct, questioned me about the homicide, but they arrested me for my warrant.

When Carl does get brought to the precinct, he offers to take a polygraph and provide his fingerprints, and police don't take his prince, but they do take a polygraph, which they claim Carl failed. He then stands in two lineups without council and is viewed by Shanina Sperlin and Louis Fazio, the two undisputed eyewitnesses, neither of whom identify him.

I was held on the warrant.

They took me to Rockets Island, came back out and walking around the street and people was telling me that this guy Brown was talking about me with the police, and I had a confrontation with him when I was accident. Why are you telling um talking to the police about me about this case. Oh, they want me to say and I'm not going to say nothing. I was just telling him leave my name out of it, because I had nothing to do with that at all.

This was around probably right after Thanksgiving.

Daryl Brown on November twenty ninth is given a polygraph quote to test out his earlier statement end quote to the prosecutor and according to the police, Brown's polygraph shows that he was telling the truth about everything, but there was some question about his withholding evidence from the police. Now think about that statement, because we know number one, polygraphs aren't this nuance? Now they weren't this nuance? Then this was a tool for coercion.

It usually is. Polygraphs aren't even admissible in court. And I need our audience to remember that police are allowed to lie to you about evidence, and they routinely lie about polygraph results in order to coerce confessions.

When they arrested me on the fourteenth and I volunteered for the lineup, the guy has said that, oh, you was picked out in Alno, which we come to learn that was not true, that I was never identified in Lano. After I take the polygraph test. They said, oh, you fail, So I'm like, okay, I mean I watched Perry Mason when I was a kid. So if I failed a lot to take the test and I was picked down on the lineup, what more evidence do you need to

After Daryl Brown gives that polygraph statement where according to the police, he was truthful about everything. On the thirtieth they put Daryl Brown in lineups. But what are you putting somebody in lineups for if they've told the truth about everything implicating another individual.

That's a good question. If I'm following this correctly, then they must have suspected that he might have been the guy, right.

It doesn't make sense to conclude otherwise. Either he's telling the truth about everything when he implicates Carl, and okay, authorize the arrest. Certainly, there's no basis the next day to put Darryl Brown in lineups unless you're saying maybe he's still not telling the truth about everything, And instead what they do is revert to tunnel vision and authorize

Freedom Agenda is a proud sponsor of this episode of Wrongful Conviction. Freedom Agenda is led by people directly impacted by incarceration, and they're organizing to get Mayor Eric Adams to follow the law and shut down Rikers Island. Right now, thousands of people are awaiting trial there in life threatening conditions.

When you coming off the street, you know you gotta fight within Rockets Island because that's how it was, so it can be really alled on the person that if you're not really up to it and I was the type of person that I could defend myself, so I had no problem like that. You just waiting to go to trial and prove my innocence.

So nine months later, September eighth, nineteen eighty, you go to trial. I'm assuming you were represented by a public defender.

Yes, I was reaping presented by how it listwise? The guy come in tell me, oh, I never lost a murder case.

I didn't know you didn't have one until you had minds.

There were some very serious discovery issues here, whether you want to blame it on trial council or whether you want to blame it on the prosecution. But two things that we now know happened just prior to trial. There's no indication that Carl knew at the time of trial. It's that Shanina Sperlin shows up at the Brooklyn DIA's office and tells Ada Barbara Newman, the trial prosecutor, that he recognized a possible perpetrator in one of the lineups

There were several other important Brady violations, including more alternate suspects like a man named Derek Peterson, as well as a guy named Willie Easterling who had been seen trying to sell religious artifacts in the area. Police reports did not demonstrate any follow up and were not shared with the defense either, and this conduct was only compounded by

Detective Sorrentino, who's the assigned detective here, testifies that he never told Darryl Brown he was a suspect, which, as we noted earlier, if after the fact of him giving you a completely truthful statement, you're placing him in lineups, there's only one reason to play somebody in a lineup as the subject. Second, the court prohibited Carl's council from questioning Detective Sorrentino about whether he had ever put psychological pressure on a suspect. And there's one more thing. Darryl

Darryl Brown also testified that Rabbi Achanov made no attempt to block the bullet with his hand, which was contradicted by the state's forensic pathologist, citing the black powder stain and stippling on the back of the rabbi's hand. So, while the defense seated doubt about the state's witness, the state attacked Carl's alibi witness, his daughter's mother, Joanne Davis.

From everything in the transcript, everything on the record, all the materials we have, the only indication we can really come to is that Carl's alibi witness was really just spoken to in order to try and get impeachment material for her.

And you know something.

Else that we see as well too, is that false statements are attributed to Carl's alibi witness, which is some thing that we very frequently see in these cases as well. You have unendorsed statements, you have unsigned statements. Then at trial it's the detective's word against the witnesses word.

In this case, the lead detective Sorrentino, testified that Miss Davis said that she saw Karl with the thirty two caliber pistol, the kind of gun used to kill Achanov, even though Miss Davis denied ever saying that, but rather that she'd only seen him with a toy gun. In addition, Sorrentino testified that Miss Davis's mother had said that Carl was not at her home the morning of the murder.

To the credit of Joanne Davis, she's actually asked under oath if her mother is stupid. She's told that Carl supposedly failed to polygraph, She's told that he may never come home, and she doesn't change her account.

The state referred to Miss Davis's story as concocted, and they told the jury to quote wonder about the sense of someone who gave birth at seventeen.

Wooh credit ability was unborn to being attacked by the police and prosecutors.

The state made note that the main issue of the case was whether Daryl Brown had seen the shooting, calling the actual eyewitnesses nothing more than quote distractions unquote, and that eyewitness Louis Fazzio quote didn't add anything to the case unquote. They had to take this tact after all, because Fazio was no help to them.

Fazio was initially subpoenaed by the people, right, So he gets into the courtroom and he tells his wife that Carl is too broad to have been the man that he saw.

As a result, Adia Newman doesn't call him, but the defense does.

He reiterated that he made this remark that Carl was too broad to have been the person that he saw, and he also basically said that he was not able to identify the person who he saw in the courtroom, So meaning, right, it's not Carl.

But the fact that Ada k Newman had subpoenaed him makes two things ridiculous. She asks him, mister Fozzio, were you wearing your glasses as if this is supposed to impugne his account, even though she was going to call him as her witness previously when she thought maybe it wouldn't denigrate her case. But second of all, how you could get up in summation and say he couldn't add anything to the case when you were calling him in a case that did not have a ton of witnesses testifying.

So Fasio was positive for the defense while Joeanne Davis was brutally attacked. But then Carl's lawyer does something absolutely insane at the end of the trial.

It's absurd. It's in his own summation where the verdict is going to come down to a credibility contest between his civilian aliby witness and the sole witness for the prosecution. And first the judge says, actually says on the record, well, it's probably improper for me to express an opinion, but I'm going to say it. I think the alibi has been pretty well discredited. And instead of mister Weiswasser standing up and advocating for his client, he says, quote, I

He didn't really do anything in defense of me. He really didn't and a juri or eleven whites and one black. It was over two hundred asiitics inside and outside the court.

The deck was stacked against me.

Predictably, the jury went out and they came back with guilty on all accounts right felony, murder, robbery in the first degree, in criminal possession of a weapon in the second degree.

When I was found guilty, it was like, Wow, are you serious? You're gonna believe this guy that I killed this man? A lot of things was running through my head. I'm not gonna be raise my son. I'm not gonna be able to raise my daughter, you know, my sisters, my family. So it's a whole lot going through a whole lot. I'm put on that bus to go up to Elmira. It's like the reality starts sitting there.

What are you gonna do? What are you gonna do?

Get caught up in a lot of negative stuff that goes on in prison, or you're gonna get yourself up out of there.

For time being.

You get caught up in a little bit of the negativity stuff to stimulate yourself from the reality of being in prison. That's something that I did to a couple of old timers. Pulled me to the side and said, hey, look, we read about your case. It don't seem right. You need to get your butt in a little library while your indictment it gets still fresh. I had a little

Set your paperwork in front.

I just continue saying what you're saying, maintaining your innocent don't change, and I didn't, and the lo and behold I was parole.

So I kind of glossed over a little bit over thirty years that you spent in prison. Right? Was it that long?

Thirty one?

Thirty one years?

Right?

It's amazing that you survived, and that you seem to really have survived with your spirit intact. And it's also incredible that you were able to go to the parole board and do exactly opposite of what people are advised to do.

Right.

They want to hear remorse, they want to hear that sort of narrative. Right, So for them to be able to act the way that they did shows that they must have known what you had known all along, and what everyone should have known all along, which is that you were actually innocent.

Being released after thirty one years. It was surreal. It was wow, I'm walking the street. Oh man, what am I going to do? Okay, gotta go see parole. That's kind of frustrating because you're still on the supervision. Came out, got married, reconnected. What did I miss? I missed my daughter's first time walking. I missed my daughter's first grade. I missed my son's first grade. I missed my son's first baseball game. I missed so many things that you cannot get back. So when you come out, where do

So where we are right now is we had cooperated for a bit with the conviction review unit here in Brooklyn. We'd received some materials we intend to use in support of emotion at some point. Ultimately, after they interviewed Carl and some of the witnesses in the case declined to be interviewed or could not be located, they closed out

After we wrapped our first interview, we got a call from James and Carrissa asking us to hold on production until they could meet with the Brooklyn DA's office. It turns out that back in nineteen seventy nine, a guy named Robert Simms gave a statement to corroborate Brown about Carl's alleged statement at the Falafel or Pizza store. Now, in October twenty twenty three, some new evidence came to light about Robert Simms and his wife.

Linda Simms, the broken cru in the course of their reinvestigation, had visited her house looking to speak with her husband, Robert Simms, and left the card there. And what we've been told is that Linda Simms, the wife, January of twenty twenty three, reached out to her sister and sent a picture of the assistant's business card that had been

The confession from Linda to her sister Teresa continued implicating Robert Simms.

Linda said, I did that, and then Web meaning her and Robert, brought it up to our father. He was very pissed off and sent me down south. Now there's a fair inference that she was saying that both of us did this. And we now have additional evidence that Linda Simms's father, who was murdered in December nineteen eighty, shortly after Carl's trial, that at various points throughout nineteen seventy nine and nineteen eighty, both Linda and Robert Simms

So what was the guy's name who took the fall?

Meltreus Walker?

Is he still serving time?

He's out now? He essentially says he came over to the house the woman had been shot four times, and Robert said, I need you to help me take care of this.

Now.

What's even more interesting here is before the Brooklyn DIA's office, the cru had learned through Theresa and his sister about Robert's prior charge that he was acquitted of. They interviewed him and he said he did not want to talk about his prior case, which he referred to as sort of a little incident, I believe, but he didn't want

Not certainly plausible that Daryl Brown may have been responding to a request from Robert Simms for yet another big favor.

Going back to the original investigation, the statement attributed to Robert by police was that Robert and Daryl Brown a day or a few days before Rabbi Akinov's murder had been in a pizza shop on Kingston Avenue and seeing a Jewish man with a prayer bag full of money, and according to the police report, Robert and Daryl were thinking of robbing this man but didn't and when they later saw Carl Miller, they said, here's what we saw, and according to the police report, Carl said, oh, you

So where does the case stand now? With the cru they.

Have turned things over to us. We're gathering information and evidence to put a motion into court. We've had several people talk to us and give us additional evidence. We're feeling good that we can get ourselves a hearing where we can subpoena some of these people and get them in to give sworn testimony so we can weed out the truth here.

Absolutely, and now we're working with the CiU. Clearly there are ways and avenues for us to pursue.

We just need people to speak up about it.

Karl deserves it.

Rabbi Akanov deserves to have the right person convicted of this crime. This is a case that is based on one person, Daryl Brown his word. We're not here to judge you. Somebody was already judged in this case, and we submit that it was wrongful. Reach out to us. We'll talk to you. This isn't a witch hunt or something. We just want the truth. We're at eighty six Livingston Street in Brooklyn. We want to get to the bottom of this.

So we'll definitely have your contact info length in the episode description, and with that we're going to go to closing arguments, where first of all, I just want to thank you for joining us, and now I'm going to shut my microphone off, kick back of my chair with my headphones on, and just listen to anything else that you feel is left to be said. So let's start with James, go to Carissa, and then finish it off with you call.

One thing that I think we didn't get into, something that we only learned after we started cooperating with the cru in this case, is that one of the people that we've seen pop up in a lot of these cases is a gentleman that your viewers are certainly familiar with, the detective Lewis Scarcella, and he it just so happens pops up in this case for reasons that have not been revealed to us. Two days after the murder, then Anti Crime Officer Lewis Scarcella is interviewed by the assisting

I'm just really happy that we were able to touch on the fact that Carl was released on parole notwithstanding him maintaining his innocence.

I think that is huge.

Anyone who's familiar with the criminal justice process knows that is huge.

And I really think.

It's no surprise that Fazio played a role and that so as we're saying, if anyone has any more information similar to Fazio.

Maybe they saw something just come forward.

I would like to say thank you in the role for Fixing podcasts, for giving us the opportunity to have this out there in the public so that people can see not just me, but they are a whole bunch of wrongful convictions. And as James and Carissa as stated, it's people that know me. If you know something that need to be spoke on, speak on it. That's all I have to say.

Thank you for listening to Wrongful Conviction. You can listen to this and all the Lava for Good podcasts one week early by subscribing to Lava for Good Plus on Apple Podcasts. I want to thank our production team, Connor Hall and Kathleen Fink, as well as my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Cliburn. The music in this production was supplied by three time OSCAR nominated