DERRICK DEACON 2

By KAREEM FAHIM
Published: June 14, 2009

Emile Dixon was not known for his big heart.

He was better known as the most feared member of a crack-dealing Brooklyn gang prosecutors called the Patio Crew and the killer of at least two men, a Jamaican dockworker he shot in the back and a witness who was preparing to testify against another member of the Patio Crew.

“A snitch must die,” Mr. Dixon once told a fellow inmate, according to testimony during his trial. He was convicted in 2003 of drug distribution and murder charges and sentenced to life.

But before he started shuttling between high-security federal prisons, Mr. Dixon succumbed to a bout of generosity, according to lawyers for another convicted murderer in prison since 1989. Mr. Dixon, while looking through his case file, found a 2001 statement made by an informant suggesting that the lawyers’ client, Derrick Deacon, might have been wrongly accused.

A federal prosecutor, two federal agents and a New York Police Department detective were in the room when the informant was interviewed, according to a Federal Bureau of Investigation report. Even so, Mr. Deacon’s lawyers say, no one notified Mr. Deacon of this potentially exculpatory evidence. Mr. Deacon, 54, knew nothing of it for almost three years until Mr. Dixon, who knew Mr. Deacon from their Brooklyn neighborhood, sent the evidence to a relative and asked that it be passed to Mr. Deacon.

The interview is now part of a motion to overturn Mr. Deacon’s conviction, for the robbery and murder of a 16-year-old named Anthony Winn. A hearing is scheduled in Brooklyn this week.

In court papers, prosecutors in Brooklyn have dismissed Mr. Deacon’s new claims, saying that the evidence at his trial was overwhelming — a jury took just three hours to convict him — and that the testimony of the informant, a former member of the Patio Crew who had criminal convictions in several states, is “patently incredible.” They have also said that Mr. Deacon waited too long to make his claims.

The interview with the informant was conducted on June 18, 2001, according to the F.B.I. report. The informant was providing information about Mr. Dixon, and the apparent reference to Mr. Deacon, who went by the nickname “Fire,” appears in just three sentences.

A man named Pablo told the informant that he shot someone “in front of 105 Lincoln Road,” in 1991 or 1992, according to the report, the address where the murder of Mr. Winn occurred.

Mr. Winn was actually killed in 1989 and the shooting took place inside the building, but the report also said:

“Someone named ‘FIRE’ who looked just like PABLO got arrested for the shooting.”

The informant was interviewed at the Brooklyn offices of the United States attorney for the Eastern District of New York, and at least one assistant United States attorney was present, according to the report.

In general, prosecutors are obligated to notify defendants whenever evidence surfaces that might support their innocence, even if they have already been convicted (though there are legal arguments about when, if ever, that duty ends). Mr. Deacon’s case is more complicated, since he was prosecuted by the Brooklyn district attorney’s office, not the United States attorney.

Spokesmen for the Brooklyn district attorney and the United States attorney for the Eastern District declined to comment on the matter, citing the pending hearing. A spokesman for the Police Department and a spokeswoman for the F.B.I.’s New York office also declined to comment.

Daniel C. Richman, a professor of law at Columbia University, who is not involved in the case, said: “The federal prosecutor in an unrelated case who gets information that undercuts the validity, or that might undercut the validity, of a prior state prosecution does not have a constitutional duty to turn it over. I think perhaps they have an ethical and moral obligation, particularly if they think there is any validity to the report.”

He added: “The fact is, in a complicated federal prosecution dealing with gang crime, one hears a whole lot of things.”

Ephraim Savitt, a former federal prosecutor who was one of Mr. Dixon’s defense lawyers, said the obligation of prosecutors to divulge exculpatory evidence was a well-established but ultimately “self-policing” concept. During Mr. Dixon’s trial, he said, federal prosecutors were sorting through the statements of seven or eight cooperating witnesses. “I can understand how it got lost in the shuffle,” he said of the statements mentioning “Fire.”

At Mr. Deacon’s trial, a witness testified that he had seen Mr. Deacon arguing and pointing a gun at Mr. Winn. The witness said he saw Mr. Deacon yank a chain from Mr. Winn’s neck and heard gun fire. Mr. Deacon said in his testimony that he was in another building at the time of the murder.

Mr. Dixon sent the interview report to Mr. Deacon in 2004. A lawyer who took Mr. Deacon’s appeal later had to drop it, and in 2007, Glenn A. Garber, who runs the Exoneration Initiative, stepped in. While Mr. Garber said he had seen no evidence that law enforcement officials tried to make Mr. Deacon aware of the potentially exculpatory information, he said that federal prosecutors had been “valuable resources” in Mr. Deacon’s appeal.

In court papers, Mr. Deacon’s lawyers, Mr. Garber and Roberto Finzi, contend that the “Pablo” referred to by the informant was a member of the Patio Crew who was deported to Jamaica in 1998.

Mr. Garber said the informant had been “thoroughly vetted” by federal prosecutors and “had absolutely no motive to lie.”

In an affidavit submitted to the court in 2008, the informant recalled more details about the murder of Mr. Winn, saying he saw Pablo soon afterward.

“Pablo told me that when he pulled the gun on Wynn, Wynn did not back down,” according to the affidavit, which spelled the victim’s name differently. “Pablo said that he then shot Wynn and thought that he killed him.”
More Articles in New York Region » A version of this article appeared in print on June 15, 2009, on page A17 of the New York edition.