DA tosses first non-murder conviction, allowing immigrant to stay

District Attorney Ken Thompson
Brooklyn Daily
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Brooklyn’s top prosecutor is asking a judge to throw out the 1986 burglary conviction of an immigrant facing deportation.

The wrongful conviction claim for Michael Waithe for a crime prosecutors now say “never happened” is the first following District Attorney Ken Thompson’s Wednesday announcement that he is expanding the scope of his office’s review of questionable convictions to include serious non-murder felonies such as gun possession and burglary.

“We’ve been dealing with the priority cases, the ones that were in prison for murder, but now we have to start looking at these other cases,” Thompson said after a speech at a meeting of the New York State Bar Association in Manhattan.

Thompson is set to formally ask a judge to vacate Waithe’s conviction in court this afternoon.

The expanded review includes “a handful” of non-homicide cases on top of the 130 cases selected for review, of which 100 remain. Thompson’s office has tossed 11 convictions to date.

Thompson unseated former District Attorney Charles Hynes in 2013, ending Hynes’s 23 years in office. Hynes’s retirement has been bumpy so far. He now faces allegations that he paid a political consultant more than $1.1 million in public funds from 2003 to 2013, including $220,000 in cash seized from criminals.

The city probe that documented the charges also revealed e-mails between Hynes and New York City chief judge Barry Kamins showing the judge consulted with Hynes on Hynes’s campaign and on cases being prosecuted by the District Attorney’s Office, and that he gave Hynes legal advice. The revelations prompted Kamins to resign.

Waithe was convicted under Hynes’s predecessor Elizabeth Holtzman.

Thompson’s Conviction Review Unit is made up of 10 prosecutors whose job consists of re-investigating cases where there is reasonable suspicion that a claim of wrongful conviction is genuine. The task force began its review in 2014, with 71 of its cases involving convictions built on evidence, confessions, or witness testimony brought by an allegedly crooked detective, Louis Scarcella.

Thompson said none of the non-murder cases under review are linked to Scarcella.

Thompson’s most recent exoneration was that of Derrick Hamilton, who was convicted of a fatal shooting in 1991 even though he had strong proof he was in Connecticut at the time. Hamilton was released in 2011, but his felony conviction had hung over his head until Thompson asked a judge to toss it.

In a speech to members of the bar association on Wednesday, Thompson said he set out to clean out bad convictions as a service to innocent people behind bars and to restore faith in law enforcement in Brooklyn.

“If you have any doubt that people are starting to lose faith in or system of justice, all you have to do is look at the tens of thousands of people who have been marching and protesting in the past couple of months throughout the country from Oakland to Brooklyn,” he said. “Those calls reflect that public trust is going down, and we have to do something about it.”

Reach reporter Noah Hurowitz at or by calling (718) 260–4505. Follow him on Twitter @noahhurowitz
Updated 11:48 am, January 16, 2019: Updated to reflect that Waithe's conviction was for burglary, not robbery. The initial language came from a District Attorney's Office press release.
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