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Murder case overturned

New evidence prompted a judge to overturn a 13-year-old murder conviction.

During findings released July 31, appeals Judge Joseph McKay wrote that the case against Jonathan Wheeler-Whichard was a “miscarriage of justice.”

“It would be abhorrent to my sense of justice and fair play to do other than to vacate the defendant’s convictions,” he wrote, according to the New York Daily News.

Wheeler-Whichard, now 29, was 17-years-old when he was taken into custody for the 1996 murder of Joseph Foster.

Police and prosecutors said that Foster was gunned down inside a building on Marcus Garvey Boulevard in Bedford Stuyvesant. Wheeler-Whichard was considered a suspect because he had an earlier confrontation with Foster. He had also bragged about killing Foster, claiming he did it out of revenge, according to at least one witness.

Two witnesses, including the one that overheard Wheeler-Whichard’s so-called revenge plot, were called to testify at his original trial. He was convicted and sentenced to jail in short order.

An appeal went nowhere, although Wheeler-Whichard’s attorney vowed to continue fighting.

During the latest appeal, one of the witnesses to the shooting, who is now in jail on an unrelated charge, recanted his story. Lynn Fahey, Wheeler-Whichard’s attorney, blew holes through the second witness’s testimony and even managed to locate the person who made the initial 911 call. The new witness’s story was very different from the one told before, officials said.

Fahey also proved that there were several other suspects to the murder, including the brother of one of the so-called witnesses.

Wheeler-Whichard, who had also pled guilty to an arson charge, is eligible to get out as early as next month, although his “bad behavior” in prison could keep him inside for another five years, Fahey noted.

Child’s play

Two teens netted for a Flatbush shooting tried to have their cases kicked last week by claiming that detectives preyed upon their youthful appearance.

Defendants Dante Jones and William Henry were both arrested in July 2008, for allegedly opening fire into a crowd and riding away on bicycles. Three people were wounded in the shooting.

Detectives from the 70th Precinct quickly identified the shooters as Jones and Henry, but made a grave misstep when they asked the victims to identify them.

According to the defendant’s attorneys, detectives put together a photo array, but Jones and Henry were the youngest ones shown.

The same thing happened during a lineup at the 70th Precinct, attorneys claimed.

Now both are facing charges of attempted murder, and the defendants claimed that the “photographic arrays and stationhouse lineup were unnecessarily suggestive.”

Judge Vincent M. Del Giudice looked at the photo arrays and determined that they were not “unnecessar­ily suggestive,” meaning that none of the pictures had a characteristic that “draws the viewer’s attention to it, indicating that the police have made a particular selection.”

Judge Del Giudice determined that all of the people pictured in the array looked somewhat similar and were all posed the same way.

The line up was another story, however.

Del Giudice found that all of the “fillers” who participated in the lineup were all police officers and were much older than the defendants.

Prosecutors said that the age difference didn’t matter, claiming that “despite the chronological difference in age, the only issue to be addressed is the physical appearance of the lineup participan­ts.”

Del Giudice disagreed.

“While there are many good things to say about how this lineup was conducted, the defendant is so dissimilar in appearance to the fillers that he stands out, rendering the lineup unnecessarily suggestive,” he wrote. “I find that the lineup does not constitute a fair representation panel upon which a witness could make a reliable identifica­tion.”

Del Giudice ordered the line up suppressed, a move that will assuredly help the two defendants at trial.

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