Anthony Broadwater - Mistaken ID - Poor Defense

Broadwater, Anthony; rape; [not on NRE list:] mistaken witness identification, false/misleading forensic evidence, inadequate legal defense, prosecutor misconduct, police officer misconduct, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

Bench trial

"Words Fail: The Tortured Bond of Alice Sebold and Anthony Broadwater, the Man Wrongfully Convicted of Her Rape," by Rachel Aviv, The New Yorker, May 29, 2023, pp. 42-53.

"A few months ago, the writer Alice Sebold...and I had recently begun corresponding, a little more than a year after she learned that the wrong man had been sent to prison, in 1982, for raping her. In 1999, she had published 'Lucky,' a best-selling memoir about the rape and the subsequent conviction of a young black man named Anthony Broadwater."

"Sebold was raped in a pedestrian tunnel in a park around midnight on May 8, 1981, the last day of her freshman year at Syracuse University. 'I heard someone walking behind me,' she wrote in an affidavit. 'I started to walk faster and was suddently overtaken from behind and grabbed around the mouth.' When she tried to run away, the man yanked her by the hair, dragged her along a brick path, pounded her skull into the ground, and said he'd kill her if she screamed. Eventually, she stopped resisting..."

"She walked back to her dorm, bleeding, and a student called an ambulance. According to a medical exam, her nose was lacerated, her urine was bloody, and her clothes and hair were matted with dirt and leaves. When she was intervewed by the police that morning, she said that her rapist was a black man, '16-18 yrs. of age, small and muscular build.' In the affidavit, she wrote, 'I desire prosecution in the event this individual is caught.' But the detective on her case seemed skeptical of her account -- he wrote, without explanation, that it did not seem 'completely factual' -- and recommended that 'this case be referred to the inactive file.'"

[44] "[Several months after the rape, in the fall of that same year, Sebold] saw a man who looked like her rapist. 'I was hyperware,' she wrote in 'Lucky.' 'I went through my checklist: right height, right build, something in his posture.' A few minutes later, she saw the man crossing the street toward her. 'Hey,' the man said. 'Don't I know you?' He was actually talking to a police officer named Paul Clapper, who was behind Sebold, but she thought he was addressing her, and she suddenly felt certain that he had been on top of her in the tunnel, and that he was mocking her, because he'd got away. She couldn't speak. 'I needed all my energy to focus on believing I was not under his control again,' she wrote. She walked away quickly and heard him laughing."

"Sebold sketched the man's face, and the Syracuse Police Department issued an alert to its officers. Clapper, the cop who had been chatting with him, recognized the description. Nine days later, Anthony Broadwater, who was twenty years old, was arrested...Broadwater was working as a telephone installer. He couldn't remember what he'd been doing when Seabold was raped, nearly five moths earlier, but, he told the police, 'I know I wasn't doing that. He had [45] greeted Clapper because he remembered him as a rookie cop who used to patrol his neighborhood." [Emphasis original.]

"Sebold was asked to identify Broadwater in a lineup. He was the fourth in a line of five black men wearing jail uniforms. Sebold identified the fifth man. After signing a form that confirmed her decision, she felt a wave of nausea. She sensed that she'd made the wrong choice. The detective on her case looked downcast and told her, 'You were in a hurry to get out of there,' according to her account in 'Lucky.'

"The [ADA assigned to her case was] Gail Uebelhoer ...Sebold felt that she had failed Uebelhoer. But, Sebold writes in 'Lucky,' Uebelhoer reassured her that her mistake was understandable. 'Of course you chose the wrong one,' Uebelhoer said. 'He and his attorney worked to make sure you'd never have a chance.' She said that Broadwater had intentionally duped her by asking an almost identical-looking friend from jail to stand in the No. 5 spot and stare at her, to scare and fluster her. (In fact, Broadwater was not friends with the man in the No. 5 spot, and they did not look the same.) In a memo, Uebelhoer wrote that Sebold had chosen the wrong man because he was 'a dead ringer for [Broadwater].'"

[Thus, we have now had a policeman and an ADA communicate to Sebold that she had chosen the 'wrong guy.' Moreover, the ADA, Gail Uebelhoer, had simply fabricated that story about Broadwater getting a 'dead-ringer' friend to stand next to him in the lineup.]

"Broadwater's attorney, Steven Paquette, assumed that the case would be dismissed. He was shocked when Uebelhoer presented it to a grand jury that day. He wondered if she was trying to compensate for the indifference with which the police had originally met Sebold's account of her rape. 'I think she may have been driven by a feeling of "Darn it, this isn't going to happen to this young lady again,"' Paquette said. (Uebelhoer didn't respond to requests for an interview.)"

"On the witness stand, Sebold tried to explain her error. 'Five did look at me almost in a way as if he knew me even though I realized you really can't see through the mirror,' she said. 'I don't know, I was very scared, but I picked five basically because he was looking at me and his features are very much like No. 4.'

"'You picked him out of the lineup,' a juror said to her. 'Are you absolutely sure that this is the one?'

"'No, five I am not absolutely sure,' she said. 'It was between four and five, but I picked five because he was looking at me.'

"'So then, what you are saying, you are not absolutely sure that he was the one?' the juror asked.

'Right.'

"When Clapper testified, a [grand] juror asked him, 'When someone is picked out of a lineup, doesn't it have to be absolutely sure that the person that they picked out of the lineup is the one they've seen before?'

"'That's correct,' Clapper responded.

"Uebelhoer cut him off. 'He really can't give you an opinion on that,' she said. "Broadwater was indicted after Uebelhoer told the grand jury that a pubic hair found on Sebold's body during her rape examination matched a sample of Broadwater's hair. Then she read from the medical records, saying that Sebold had been a virgin."*

[* What does that prove? Obviously, nothing. The only reason for Uebelhoer to have said this to the grand jury was in an effort to urge them to indict THIS man on the purely emotional basis that Sebold had lost her virginity to a rapist. ]

"Paquette recommended that Broadwater choose a bench trial, because he thought it was likely that a jury would be all white. Paquette assumed that a judge, confronted with the story of a black man raping a virginal white college student, would be more impartial."*

[* Nickel made a similar (incorrect) assumption.]

"At the trial, Broadwater was the only person to testify for the defense.

"'When is the first time that you ever saw Alice Sebold?' Paquette asked him.

"'Just today,' he said. 'Never seen her before.'

"He explained that he had a scar on his face and a chipped tooth, neither of which Sebold had included in her description of her rapist." "The trial lasted only two days..."*

[* Also true of Nickel's (bench) trial. Somehow, it seems that, if somebody's going to be sentenced for many years or even decades, a trial should be a bit longer than that. ]

"Sebold felt that, in order to save herself from being murdered, she had been forced to participate in her own rape. On the witness stand, she described how she helped the man undress her; she had to kiss him and give him oral sex, so that he could maintain an erection. After he finished, 'he told me that he wanted to hug me,' she said. 'I wouldn't come near him. So he came over and pulled me back to the wall and hugged me and apologized for that, he said, "I am sorry, and you were a good girl"' Then he asked her name. 'I couldn't think of anything else, because I was very scared,' she said. 'I said "Alice," and he said, "It is nice knowing you, Alice, and I will be seeing you around".'

"To draw attention to the biases inherent in the proceedings, Paquette asked Sebold, 'How many black people do you see in the room?'

"'I see one black person,' she answered. Except for Broadwater, everyone in the courtroom was white."

[46] "During a brief recess, the judge, who had four daughters, chatted with Sebold and asked about her family and what her father did for a living. Immediately after the closing statements, the judge pronounced Broadwater guilty."

[The name of this 'judge' -- which does not appear in the New Yorker article -- is Walter T. Gorman. ]

[This is very much like Judge Paul Czajka's 'deliberations' in the Nickel case -- of just two minutes. (Moreover, this 'chatting' the judge did with Sebold seems highly inappropriate.)]

"In the year after the trial, the Syracuse Herald American reported, the [DA's] office lost nine rape cases in a row."

[Even for the early 1980s, when rape cases were still pretty difficult to prosecute due to cultural as well as legal factors, this seems unusual.]

"Broadwater appealed the verdict, arguing that Sebold had a 'reduced ability to perceive objects accurately due to the fear she felt during and after the attack.' At the time, there was only limited recognition of the fallibility of eyewitness testimony. Since then, studies have shown that roughly a third of eyewitness identifications are incorrect, and that, when the defendant and the witness are not the same race, the witness is fifty percent more likely to be mistaken. Broadwater argued that Sebold had 'probably added the person she saw on the street in Syracuse to the mental file of her assailant.' His appeal was denied."

'As a convicted sex offender, Broadwater was targeted by other prisoners."

"He would give gang leaders pages from his appeal and transcripts from his trial. 'That was the only way I could really save my life,' he said. At Attica prison, an imam read parts of his transcript aloud to his cell block...[A]fter the imam finished reading, men came up to him and said, 'You shouldn't be in prison, man.'"*

[* Nickel has received similar comments after sharing details of his own case.]

[47] "In 1990, after eight years in prison, Braoadwater was granted a hearing before the parole board. 'I want to prove to myself and the people of Syracuse that it wasn't me,' he told the board's commissioners. 'I feel a crime like that every day, every night,' he went on. 'It hurts me, hurts me just to be convicted of a crime like that.' He explained that he could have been working and saving money during these years. 'I accept the fact that it's going to always be with me,' he told the board. His parole was denied."

"Two years later, whe went before the board again...The board denied him parole, citing the fact that he couldn't acknowledge his guilt. "Two years later, [h]e was denied parole again."

"In 1998, Broadwater was...asked again to meet with the parole board. This time, he told a jail administrator that he was declining the opportunity."

"Several months later, an officer came to his cell and told him to pack up, because he was going home...He had been in prison for sixteen years and seven months and had reached his conditional release date, which is determined by a committe that considers a person's record in prison."* [* That's not quite correct. One's 'conditional release date,' or 'CR' for short, is calculated based on the percentage of the total sentence he must serve before he's eligible for conditional release. Back then, everyone's CR was two-thirds, or about 67%, of their maximum sentence. (Later on, under Governor Pataki, that would be changed to 85%.) At that point, one would be eligible for release, provided that the Time Allowance Committee agreed that one's disciplinary record in prison was satisfactory. Thus, two-thirds of Broadwater's 25-year maximum sentence was 16.67 years, or about 17 years and seven months, as the article notes above.]

"Broadwater was thirty-eight. He moved in with a cousin, whose mother was the only person who had regularly sent him letters while he was in prison...He applied for temp jobs, but, as a registered sex offender with a sixteen-year gap in his work history, he was rejected. He bought a nineteen-dollar shovel from a hardware store and began clearing people's driveways after snowstorms. When winter ended, he mowed their lawns."

"A year after his release, one of his cousins set him up with a woman named Elizabeth, who worked as a roofer. On their first night together, he told her that he wanted to be in a relationship with her but that she had to read his trial documents first. He slept on the couch while she spent the night in his bedroom with the transcripts. In the morning, she came into the living room where he was sleeping and said, crying, that she believed him."

[Recall that, when he was in prison, Broadwater invited other inmates, as well as an imam, to read his transcripts -- the latter even doing so out loud in the cell block. When all of these people read/heard what happened, they believed him. And yet, the bench trial judge in his case, who apparently took very little time 'deliberating' the verdict, (apparently) did not.]

"They found jobs that they could do together, like roofing, janitorial, and factory work. They requested night shifts, because Broadwater wanted a potential alibi during what he called the 'witching hours' -- the time when most violent crimes occur ...[T]hey decided not to have children, because they didn't want their child to grow up with the stigma of the crime.

"He had been free for two years when the police knocked on his door, to ask him about an eighteen-year-old white woman named Jill-Lyn Euto, who had been murdered in her apartment in Syracuse. 'I was scared to death,' he said. 'I said, "Oh no, not me -- I work from six at night to six in the morning. I'm on the [49] computer. I'm on camera."' The police didn't ultimately pursue him as a suspect, but the encounter made him so afraid that he didn't want to work with female employees...He became preoccupied with the mechanics of surveillance: he wanted jobs where he could punch into a clock, his movements recorded by cameras in each room. The idea of just being loose in the world, without a method of proving where he had been, was such a source of terror that sometimes he imagined he'd feel less anxiety if he was back in a jail cell."

"In 2010, Jane Campion, the only woman to be nominated twice for the Academy Award for best director, called Sebold. Campion wanted to adapt 'Lucky,' which she had found 'gripping, funny, devastating,' she said. After Sebold agreed, Campion asked Laurie Parker, who had produced Campion's film 'In the Cut,' to write the screenplay."

"[A]fter Parker read the trial transcripts, she felt disturbed that there wasn't more evidence."

"As Parker continued writing, she thought about an episode from her own life. When she was nineteen, living in San Francisco, an older man had sexually assaulted her. She became so afraid of encountering him in the city that she moved to Berkeley. Several months later, she was at a library and thought she saw the man in a study carrel. 'I froze,' she said. 'It was a kind of out-of-body experience. I was tingling, and my face was tingling. It was the sort of terror that teleports you back to the original trauma.' For about thirty minutes, she couldn't move. Finally, though, she had to leave for an appointment. As she walked out of the room, the man looked at her. 'There was just no recognition at all,' she said. 'And then I saw it: I'm wrong. That is not the same person.'

"She had a 'visceral but somewhat unconscious' sense, she said, that Sebold's certainty may have been unreliable, too. 'Because I had experienced being wrong myself, I just had this fundamental feeling of the subjectivity of every single person involved.' She didn't feel that she could write a script in which the actor shown raping Sebold appears on Marshall Street five months later. 'I just felt that we couldn't perpetuate this story,' she told me.

"By the summer of 2014, after interviewing Paul Clapper and a few other Syracuse cops who knew about the case, Parker had reached the point where she felt that 'there was so little evidence that it should not have resulted in a conviction,'* she said. She decided that the only way she felt comfortable telling the story was from a highly subjective point of view: the camera would be like a bird on the Sebold character's shoulder. In her script, Parker referred to the man on Marshall Street not as the rapist but as "SHORT MUSCULAR MAN," and never says if the man has been convicted. 'That script had no objective perspective, no signifiers of any kind,' she said."

* So, here we have yet another person (with no 'axe to grind') who, having explored the transcripts as well other aspects of the case, cannot understand how a conviction could have happened.]

"When she submitted the script, she was told that it was not 'viable.' The project collapsed. Parker was a single mother, raising two children with special needs, and the movie could have transformed her career. Nevertheless, 'there was a part of me that definitely didn't want to make the movie, and I'm aware of that,' she said. 'On some level, I probably knew that I was killing the project.'"

[Ms. Laurie Parker is a person of great courage and strength of character. (And so, for that matter, is Alice Sebold, who has now acknowledged that the wrong man was convicted.)]

"Not long afterward, Parker began volunteering in prisons, holding writing [50] workshops. 'I think that connection was pretty direct,' she told me. 'I felt like the perspective of the person who was convicted is not present, and it should be.'

"A year and a half later, James Brown, who had recently produced the Oscar-winning film 'Still Alice,' signed on to adapt 'Lucky.'...Brown enlisted Karen Moncrieff, the writer and director of two well-regarded films about violence against women, to write the script."

"But Moncrieff felt uncomfortable with the script...Sebold became a hero fighting for justice against an evil, unknowable stranger, who would pay for what he had done to her, with little consideration of the violence or fallibility of that form of payment. Sebold described the poem she's written in [a writing] workshop as a 'permission slip -- I could hate.' But sometimes it reads as if she is repeating lines that she's been told, assenting to a kind of cultural belief in the redemptive power of getting revenge. The fantasy of the poem -- 'If they caught you' -- was fulfilled. But, when they caught and punished him, she did not find the promised relief."

"In April, 2021, her casting directors recommended a young Canadian actor named Adrian Walters [to play the rapist]...Walters read the memoir and the script and then spent a week praying about whether to accept the role. 'I remember something popped up on my TV when I was in contemplation,' he said. 'I heard something along the lines of "young black person killed by the hands of police" and what-not. That was the moment where I got the sign I needed from God, saying, "No, you can't do this role. This will not be of service to people who look like you."'

"When he explained his reasoning to Moncrieff, she decided that she could not move forward with the script. 'Since going down this road, and then embarking on the reality of actually casting the part, I have tried to get with the program, but find that I just can't,' she wrote to Brown. 'That it is true* doesn't make it The Truth.'

[* Except, it really wasn't even that. ]

"She submitted a revised draft, which Brown accepted. In the new version, the rapist would be white."

"The movie's financier, Timothy Mucciante, was a disbarred attorney -- he had spent a decade in prison after being convicted of bank fraud and forgery of bonds -- but he had been upfront about his past. Yet the funds to begin shooting never materialized."

"Not long afterward, he asked his employees to investigate the details of Sebold's rape. James Rolfe, an associate producer for the company, said, 'I told him [51] to drop it. We'll move on. But, as soon as control of the project was taken away from him, he wouldnt let go.'

"When his employees couldn't find information about the crime, Mucciante hired Dan Myers, a former sheriff who worked as a private investigator."

"Myers called Paul Clapper, the officer who had been talking to Broadwater on the street. 'He mentioned the bad lineup,' Myers said. Clapper suggested that the right man may not have been caught. 'I got the impression that he had been dying to tell someone for quite a long time.'

"Broadwater was sixty and lived on the south side of Syracuse, across from a cemetery, in a house with broken windows covered by tarp. Myers fround Broadwater in front of the house. He asked if Broadwater knew that people were making a movie about the woman he'd been convicted of raping.

"'It's a lie,' Broadwater said. 'The whole conviction.' He explained that, since his release, he'd been trying to find a lawyer to take his case. He'd paid three hundred dollars for a polygraph test, which he passed.

"'Well, let me tell you something,' Myers, who recorded the conversation, said. 'Officer Clapper -- you know who that is?'

"When Broadwater was growing up, he responded, Clapper was an overbearing figure in the neighborhood who would 'try to make you snitch.'

"'I talked to Clapper, and he believes in your innocence.'

"'No kidding!'

"'The people that hired me want to help you,' Myers said.

"'Hell yeah.' Broadwater's voice gathered strength. 'I'm on board with that -- hundred per cent.' Broadwater said he'd give Myers all his legal documents. 'This is something with my head, man, like a black shadow,' he said. 'Believe it or not, I want to write a book. I want to tell my story.'" [Emphasis original.]

"Myers shared what he'd learned with two Syracuse lawyers, Dave Hammond and Melissa Swartz, saying he believed that Broadwater was innocent. They both read 'Lucky.' 'We were, like, Oh, my God, there's newly discovered evidence,' Hammond said. What had been, for hundreds of thousands of readers, a story of justice was, in their eyes, a careful recounting of prosecutorial misconduct."

"Mucciante raised money for Hammond and Swartz to work on Broadwater's case. He also hired Red Hawk Films, a small production company, to make a documentary about Broadwater's quest to prove his innocence. It would be called 'Unlucky.'"

"Swartz asked William Fitzpatrick, the Onandoga [DA], for whom she had previously worked, to read the transcript of Broadwater's trial and give her his opinion. The transcript as so short that Fitzpatrick read it in about an hour. 'I was stunned,' he told me. 'I couldn't believe that, in 1981, in a non-jury trial, a guy could be convicted on that.'"*

[* Twenty years later, Nickel's supporters in that courtroom had similar reactions to his conviction.]

"In October 2021, he contacted Sebold...In an e-mail, Fitzpatrick explained that Broadwater had new lawyers who were filing a motion to vacate his conviction, based on newly discovered evidence. 'You have done remarkabkle things in removing some of the barriers encountered by sexual assault victims,' he wrote. 'The problem is the hair testimony.' He explained that the methdology used at trial had been discredited. In 2015, in one of the country's worst forensic scandals, the Justice Department and the FBI acknowledged that, for two decades, forensic examiners had been applying erroneous standards to the comparison of hairs.

"Sebold wrote back a few hours later, thanking him for keeping her updated. 'It sounds like Broadwater's attorney is doing the right thing on behalf of her client and that there will be many steps going forward before there is an end result one way or another,' she wrote. Sebold told me, 'I was very passionate in my belief that he was guilty, and the last twenty years of no one saying anything would only underscore that.'

"A month later, Fitzpatrick e-mailed Sebold to say that he'd had a call with Gordon Cuffy, the judge who was reviewing Broadwater's motion, and Cuffy wanted to know if the scenes in 'Lucky' describing the lineup -- and the commentary by Uebelhoer after it -- were accurate. In those passages, Fitzpatrick explained, 'the inference could be drawn that you were coached on how to handle the issue at trial which is not an ethical approach by law enforcement.'

"Sebold responded, 'I felt an immense responsibility to portray things as truhfully as I was capable of.' She believed Uebelhoer had told her details about the lineup, she wrote, because 'she had a natural understanding that knowing what was happening in the case helped center and soothe me.'

"Five days later, Fitzpatrick e-mailed Sebold again. 'After a brief hearing moments ago Judge Gordon Cuffy vacated Mr. Broadwater's conviction,' he wrote. The foundation of Broadwater's conviction, Cuffy had concluded, rested on a debunked hair analysis and a lineup that had been tainted."

[52] "Sebold has a box in her house labelled 'R,' for rape, where she keeps documents from the criminal proceedings, as well as her journals from that time. For the past year and a half, she has wanted to open it and reread the material but finds that she can't...She could discuss the exoneration on a broader level, but 'it's the details,' she said. 'It's the finding out of [53] the details. I can't dive into it without losing a sense of who I am even am. My perceptions of other people, my trust in myself. That I can fuck up so badly and not even know it.'

"Broadwater was disappointed that Sebold had not yet asked to meet him in person, bit Sebold said that, when it comes to 'identity destruction,' she was pacing herself...Broadwater hoped to 'compare notes,' so that he could understand how the [DA's] office 'duped her and kept her blind.'"

"'What I thought was the truth and wrote about as the truth -- which then was validated year after year for 20+ years as a never out-of-print title -- was not only NEVER the TRUTH, but the truth resided with Anthony B,' Sebold wrote to me. 'He and his loved ones have held a lonely vigil all along.'

"Shortly after his exoneration, Broadwater sued the State of New York for wrongful imprisonment. He also filed a federal lawsuit for violation of his civil rights."

"In February, the state settled with Broadwater, for five and a half million dollars."

[All emphases added uness otherwise noted.]