Investigation: Charged dismissed, but still in jail

May 24, 2011 6:04:07 AM PDT
An explosive Eyewitness News investigation about an unbelievable breakdown in the justice system.

A Brooklyn man convicted of charges that were dismissed before he ever got in the court, but that man is still in prison and the district attorney's office putting up a fight to keep him there.

"They have a Judge, a DA, a defense counsel, and everybody miss this?" said defendant Oswind David.

When we visited Oswind David in Sing Sing prison last week, he was still waiting for the Brooklyn District Attorney's office to correct the mistake that's kept the 31-year-old man behind bars for five and a half years. He was sentenced to 23 years and never should have gotten here.

"They tried me on charges that was dismissed? They submitted those charges to my jury which was never supposed to happen," he said.

But it did happen. He was convicted on two counts of first degree assault stemming from a fight with a box cutter outside a relatives' home in Bed-Sty, Brooklyn.

"It was a fight. I didn't set up to injure anyone," he said.

Six months before David's trial, a judge had dismissed the two counts of assault because of a prosecutor's procedural mistake in the grand jury.

So how could so many people miss this decision? The court, the prosecutor (apparently the same one before and after the trial) and the defense attorney too. There were other attorneys later.

"It was just a bunch of errors that were compounded," Rita Dave, David's attorney, said.

Dave has now taken on David's case pro bono His original defense attorney declined comment.

"This was just a complete utter mess-up, on every level," she said.

David just happen to notice the mistake recently when he received a copy of the DA's response to his latest motion. To add insult to injury, the "mistake" was buried 19 pages into the brief, and made the argument that since David and his attorney didn't object earlier, it's too late now.

WALLACE: "Essentially the DA's office blamed you for not catching this."
DAVID: "Mind you, I was indicted on 20 counts?"
WALLACE: "So it was confusing."
DAVID: "Yeah. From the day they realized this, they should have contacted somebody and got me out of jail."

But the DA is claiming that David should stay in prison because his convictions on first degree assault automatically includes second degree assault and those charges weren't dismissed. David believes that argument will never hold up and that he will get out soon.

WALLACE: "You're looking at this as a second chance?"
DAVID: "It's what I have been praying for."
WALLACE: "When you get out, you believe you'll be on the right track?"
DAVID: "I know I'll be on the right track."

David's attorney plans to go before an appellate judge in Brooklyn Tuesday morning to ask for immediate bail pending any other legal steps.

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