Brooklyn District Attorney Moves to Vacate Unjust Convictions of Three Defendants Who Confessed as Teenagers to Horrific Murder of Clerk Whose Token Booth was Set on Fire and Exploded

Friday, July 15, 2022


Brooklyn District Attorney Moves to Vacate Unjust Convictions of
Three Defendants Who Confessed as Teenagers to Horrific Murder of
Clerk Whose Token Booth was Set on Fire and Exploded

Will Bring Number of Exonerees Since the Conviction Review Unit Was Established to 33

Brooklyn District Attorney Eric Gonzalez today announced that following a thorough investigation by his Conviction Review Unit (CRU), he will move to vacate the convictions of James Irons, Thomas Malik and Vincent Ellerbe for the 1995 murder of token booth clerk Harry Kaufman, citing problematic identifications and false and contradictory confessions. Each of the defendants was sentenced to 25 years to life in prison. Malik and Irons remained incarcerated, and Ellerbe was paroled in late 2020. The complete CRU reports on their cases are available here, here and here.

District Attorney Gonzalez said, “The horrific murder of Harry Kaufman shocked our city and devastated a loving family, but the findings of an exhaustive, years long reinvestigation of this case leave us unable to stand by the convictions of those charged. Above all, my obligation is to do justice, and because of the serious problems with the evidence on which these convictions are based, we must move to vacate them and acknowledge the harm done to these men by this failure of our system. My heart aches for the Kaufman family and my office remains resolute in our commitment to seek justice for victims, while ensuring fairness to all.”

The defendants will appear in court today at 2:15 p.m. before Brooklyn Supreme Court Justice Matthew D’Emic. in 320 Jay Street, 15th Floor.

The District Attorney said that on November 26, 1995, at about 1:40 a.m., inside of the subway station at Kingston Avenue and Fulton Street in Bedford-Stuyvesant, Brooklyn, two men approached the token booth where Kaufman was working. One of the men poured gasoline from a clear plastic soda bottle into the coin slot, then he or his accomplice lit a book of matches, igniting the gasoline and causing the token booth to explode. Kaufman was blown out of the booth.

A witness reported seeing three men exit the station and flee the scene. Kaufman emerged from the station engulfed in flames and passersby helped to extinguish the flames. He suffered burns over 80 percent of his body and died of his injuries two week later.

Subsequently, New York City Police Department detectives, including lead case detectives Stephen Chmil and Louis Scarcella, identified the defendants as suspects. All three defendants confessed to taking part in the crime and each was convicted by a jury at trial largely based on those confessions.

More than 25 years later, following a reinvestigation of the case, the DA’s Office cannot stand by the convictions. Among many reasons are the problematic circumstances of the identifications, the myriad factual contradictions between the confessions and the evidence recovered at the scene, and the material contradictions between the confessions themselves.

The review found that Scarcella and Chmil fed key details to Irons, who was 18 years old at the time, showing him photographs of evidence found at the crime scene, including a rifle, and either describing or showing him a photograph of a gasoline container, before Irons said anything meaningful about either item. these details were used to argue at trial that the confession was so detailed it could be relied on by the jury. Furthermore, details of his confession were false, including that he was shot in the leg a year earlier, even though he was not, or physically impossible, such as he was able to see his accomplices enter the getaway car, which was parked a block away and around the corner. He also claimed that gasoline was squirted on the door of the token booth, but this fact was negated by expert testimony from a fire marshal at one of the co-defendant’s trials, who said the gasoline was poured into the coin slot opening and nowhere else.

Malik, who was also 18 years old at the time, was identified by a witness as someone she saw holding the bottle of gasoline and entering the subway with another man, even though she had earlier identified Scarcella’s and Chmil’s top suspect, a different person (who was not charged) as holding the bottle. Notably, she was screaming, crying, and shaking, saying she would never forget his face, referring to the person who was not charged. Another detective working on the case later put Malik in a lineup, dressed in a red shirt (the only person in the lineup in a red shirt) and the same witness identified him as holding the bottle. The jury never heard that the witness made numerous material inconsistent pretrial statements, involving among other things, the location of her vehicle which would have undermined her credibility about what she claimed to have seen, impacted her ability to identify Malik, and raised doubts about other testimony she provided relating to the getaway car.

Finally, Ellerbe, who was 17 years old at the time, made a confession that was inconsistent with the facts and the evidence. He said in his statement that he used a spray bottle to spray gasoline, to actually spray his street name, Teff, on the front of the token booth in direct contradiction to the fire marshal who said that the gasoline was poured into the coin aperture. There is no evidence that a spray bottle was used, and CRU determined that if the booth had only been sprayed it would not have exploded. Also, Ellerbe said in his confession that four people stood in front of the token booth, though the victim told police there were two people.

To date, the work of the Conviction Review Unit has resulted in 33 convictions being vacated since 2014. Currently, CRU has approximately 50 open investigations.

This case was investigated by Assistant District Attorney Eric Sonnenschein, Deputy Chief of the District Attorney’s Post-Conviction Justice Bureau and Assistant District Attorney Lori Glachman, Editor-in-Chief of the Conviction Review Unit, under the supervision of Charles Linehan, Chief of the Conviction Review Unit.