Prosecutors disavow 3 convictions in 1995 New York subway killing

By JENNIFER PELTZ

Associated Press

July 15, 2022 11:06 AM PT

NEW YORK — Prosecutors are disavowing the convictions of three men who spent decades in prison for one of the most horrifying crimes of New York’s violent 1990s — the killing of a clerk who was set on fire in a subway tollbooth.

Vincent Ellerbe, James Irons and Thomas Malik confessed to and were convicted of murdering token seller Harry Kaufman in 1995. The case resounded from New York to Washington to Hollywood after parallels were drawn between the deadly arson and a scene in the movie “Money Train,” released four days before the attack.

But Brooklyn prosecutors now plan to join defense lawyers in asking a judge Friday to dismiss all three men’s convictions.

“The findings of an exhaustive, years-long reinvestigation of this case leave us unable to stand by the convictions,” Brooklyn Dist. Atty. Eric Gonzalez said in a release. He cited “serious problems with the evidence on which these convictions are based” and acknowledged “the harm done to these men by this failure of our system.”

The confessions conflicted with evidence at the scene and with one another, and witness identifications were problematic, prosecutors say. Some of the men have long said they were coerced into falsely confessing in the case, which involved a lead detective who later was repeatedly accused of forcing confessions and framing suspects.

Ellerbe, 44, was paroled in 2020, but Malik and Irons, both 45, have remained in prison.

Malik was still absorbing the news Friday, lawyer Ronald Kuby said. “Yesterday was the first day that he actually allowed himself to believe that he’s going to be free,” said Kuby, who also represents Ellerbe and said the latter is “extraordinarily happy” to see his conviction thrown out.

A message seeking comment was left with Irons’ attorney.

Kaufman was working an overnight shift at a Brooklyn subway station on Nov. 26, 1995, when attackers tried to rob him, then squirted gasoline into the booth and ignited it with matches while he pleaded, “Don’t light it!” authorities said at the time. The booth exploded, and Kaufman ran from it in flames. Kaufman, 50, who had a wife and children, died of his injuries two weeks later.

The attack bore some resemblance to a scene in “Money Train,” an action movie that had been released four days earlier.

Then-Senate majority leader and Republican presidential candidate Bob Dole took to the Senate floor to call for a boycott of the movie. Authorities gave mixed signals over the years about whether they believed the film had inspired the killing.

Police scoured for suspects and eventually came to question Irons, getting a confession that he was acting as a lookout. He implicated Malik and Ellerbe as the men who had torched the tollbooth.

From their arrests on, Ellerbe and Malik maintained that they had been coerced into false confessions, with Malik saying that Det. Louis Scarcella had screamed at him and slammed his head into a locker. Scarcella testified that he cursed and pounded a table and was trying to scare Malik, then 18, but didn’t beat him.

Gonzalez’s office said its review found that Scarcella and his partner fed important details about the crime scene to Irons — details that prosecutors later used at trial to argue that his confession was so specific that it had to be true. But it included clearly dubious claims. For instance, he said he had been able to see his supposed accomplices jump into a getaway car, though it was parked a block away and around a corner, prosecutors said.

At the time, Scarcella was a star Brooklyn homicide detective in a city reeling from crime. Citywide, killings topped more than 2,200 at their 1990 peak; that compares to 488 last year and a low of 295 in 2018.

After questions arose about Scarcella’s tactics, the Brooklyn D.A.’s office began in 2013 to review scores of cases that he had worked.

Scarcella, who retired in 2000, denied any wrongdoing. While more than a dozen convictions in his cases were overturned, prosecutors stood by scores of others.

Brooklyn prosecutors’ reexamination of old convictions is widely viewed as one of the most ambitious of its kind. In New York and around the country, such efforts have become more common over the last 15 years as DNA evidence, a growing body of research on false confessions, and other factors made some prosecutors feel compelled to become more open to investigating wrongful-conviction claims.

“This is no longer about one or two bad apples. This is about a systemic rot,” Kuby said.