Austin Babb - Mistaken Witness ID

Babb, Austin; murder; NRE mistaken witness identification, perjury/false accusation, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

16 N.Y.S.3d 793; Bronx Cty. Ct. 4/6/15; motions denied

"[Babb]... was charged with shooting and killing Demetrius Jones, and with shooting and wounding three other people, at a party that took place in the Bronx in 2010."

"This case involved a shooting spree that took place at a teenagers' dance party in August of 2010. One young man (Demetrius Jones) was killed inside the sixth-floor apartment where the party was held. A teenage girl (Ariel Hall), who was standing close to Mr. Jones, was shot and wounded. Almost all the partygoers fled rapidly. Two of them -- Daquan Fletcher and Brandi Garcia-Suila -- were then shot and wounded, apparently while running down the interior stairs of the apartment building. Neither Mr. Fletcher nor Ms. Garcia-Suila saw the person who was shooting at them; but Ms. Garcia-Suila did hear the voice of a man in the hallway outside the apartment where the party had been, shouting 'I don't five a f*** about anybody,' or words to that effect, before someone began shooting at the partygoers who were running down the stairs.

"The [prosecution's] chief witness was a young man named Corey Collins. Collins was a close friend of the murder victim Demetrius Jones...He and [Babb]...were strangers...Collins attended the party. A number of weeks earlier, Collins had watched while...Babb and Demetrius Jones had engaged in a 'stare-down' and cursing match in the street. That stare-down had lasted for several minutes and took place in the same neighborhood as the subsequent party."

"On the night of the party, Collins saw Babb (in a red, or red plaid shirt) and a young man in a grey tee shirt parking the bicycles close together in the mail room of the building where the party took place...(At trial...Mr. Collins tentatively identified a photograph of Quiah Wade as a photo of the individual in the grey tee shirt.)

"Later that night, Collins was standing with other partygoers well inside the apartment, resting during a break in the music and dancing...He saw...Babb standing just inside the apartment, near the front door...Collins stated that it appeared that...Babb waited until Demetrius Jones' back was turned, and then Babb [???] pulled out a gun and opened fire...Babb fired his gun several times -- killing Jones, wounding Ariel Hall, and producing a general panic and stampede out of the apartment...Collins later picked [Babb] out as the shooter, from a photo array (of twelve people)...and then from a line-up (of six people)."

"Neither Fletcher nor Garcia-Suila (nor any other witness) saw who it was that shot at the partygoers as they ran down the stairs."

"Demetrius Jones' mother lived several floors below the party...At trial, Mrs. Jones testified that she heard shots and a commotion. She looked out her door and saw a man in a red (or red and white) plaid, or striped, or checkered shirt holding an object in his hands, running down the stairs. She retreated into her apartment and then locked the window. She saw many of the partygoers flooding out of the building and onto the street. She also saw a person she believed to be the same man in the red shirt now trying to ride away from the building on a bicycle. The man abandoned the bicycle on the street in front of the building, and ran away on foot. Police found fingerprints belonging to...Babb, to Quiah Wade, and to a third unidentified person on that 'getaway' bicycle; they also observed that the bicycle's chain had jammed and come off the sprockets."

"Corey Collins had ingested marijuana and liquor on the evening of the shooting, and did feel their effects."

from NRE synopsis (by Maurice Possley):

"Police confiscated the bicycle after dusting it for fingerprints and swabbing it for DNA. A Houston Astros baseball cap found nearby was also taken into evidence for DNA testing."

"[O]ne of the fingerprints was identified...as that of Wade Quiah,* a member of the East Homicide Brims street gang, which was part of the Bloods street gang...[A]nother of the prints was identified...as that of 20-year-old Austin Babb. Detective Steve Smith created two photo arrays, one containing a photo of Quiah and the other a photo of Babb. The photo of Babb was five years old -- taken when he was 15."**

[* The court decision further above gives this person's name as Quiah Wade.]

[** There does not appear to be any good-faith reason why a 'detective' would do such a thing.]

"Collins idenified Babb as the gunman. He did not identify Quiah. When police interviewed Quiah, he admitted being at the party, denied involvement in the shooting, and said he left on a bicycle that crashed. The investigation of Quiah went no further, however, and focused solely on Babb."

"During a pretrial hearing on a defense motion seeking to bar testimony about Collins's identification, Detective Smith testified that there were 'multiple eyewitnesses who saw the suspect come with a bike' to the party and after the shooting 'try to flee on the bike.' The judge asked, 'More than one person said the shooter left on a bike?' Detective Smith said, 'Correct.'

"After Smith completed his testimony, the prosecutor said he wanted to 'correct' the record so there was no 'misimpression' that 'other people had seen the [shooter] riding on a bike.'

"'I don't know what the detective is referring to,' the prosecutor said. '[T]here's only one person [Corey Collins] that made an ID and he didn't see the. . .shooter fleeing on a bike.'

"The defense motion to bar testimony about the identification of Babb was denied.

"Babb went to trial...on October 8, 2014. By that time, Quiah had pled guilty in federal court to a charge arising from an August 2011 murder of someone that Quiah thought was cooperating with the prosecution in the Babb case. Quiah ultimately was sentenced to nearly 20 years in prison.

"Babb's trial lasted more than six weeks. Collins identified Babb as the gunman, but admitted he had been drinking two different brands of brandy and smoked marijuana. He testified that he left the party to go to the bodega. When he was returning, he said he saw two youths put bicycles into the mailroom of the building. He said he went back to the 6th floor apartment where the party was going on. Collins said he was by a window when gunshots were fired. Collins said he recognized Babb as the gunman because a few weeks earlier, he had watched Jones and Babb engage in a stare-down.

"Collins admitted that six months before the trial, he pled guilty to multiple drug charges and entered a drug and alcohol program. He also had been re-arrested on a felony drug charge one week before testifying in the trial. He said he had not been promised any leniency in return for his testimony.

"His testimony was problematic in a number of areas. The prosecutor acknowledged that Collins testified about details that he had not mentioned in prior interviews. For example, Collins had not mentioned the stare-down during the initial investigation. Collins told the jury the gunman wore a red shirt, but the prosecutor noted that during pretrial preparation, Collins said he didn't remember the color of the shirt."*

[* But others had said it was red. Thus, it seems likely that Detective Steven Smith 'helpfully' supplied this information to Collins. ]

"On the witness stand, Collins asserted that he had gotten 'a really good view' of the two men with the bicycles. However, during a break, the prosecutor told the defense attorney and the trial judge that Collins earlier said he 'could not see the entire faces of the two individuals who were putting bikes' in the mailroom.

"Collins also testified that at the request of Detective Smith, he had gone to the precinct station and identified Babb in a lineup. The prosecutor reported that Collins told him that he couldn't remember any lineup. The prosecutor noted that Detective Smith had driven Collins to court on the day of his testimony, after which Collins remembered the lineup.

"Then, one by one, several witnesses testified that they had viewed photo arrays and had not identified Babb as the gunman. Detective Smith had not disclosed the procedures to the prosecutor.

"Brandi Garcia-Suila was the first to disclose that she had been shown a photo array and did not make an identification. During cross-examination, Garcia Suila said that Babb was not at the party.

"Vachelle Jones, Jones's mother, testified that she looked at an array of photographs and was shown an individual photograph of Babb. However, she said she did not recognize him as being at the party.

"The day after Jones testified, the prosecutor disclosed that Ariel Hall also had been shown a photo array. During her testimony, Hall said that Babb was not at the party.

"Daquan Fletcher testified that Babb was not at the party. And when Justine Willis got on the witness stand, she said that she had seen a photo array and had not made any identification. She testified that Babb was not at the party.

"During cross-examination, Detective Smith denied showing photo arrays to the other witnesses, including Vachelle Jones and Ariel Hall. He said he had a 'recollection' of showing an array to Justine Willis. Smith admitted he showed two photo arrays to Willis -- one with Babb's photo and one with Quiah's photo -- and that Willis did not identify either one. Smith claimed that the arrays he showed to Willis were noted in his 'steno book,' something neither the prosecutor nor the defense were aware of. None of the arrays were preserved and the detective did not document in any way the exculpatory arrays where witnesses failed to identify Babb.

"At the time, the trial judge said he was troubled by the testimony, particularly the undisclosed information about witnesses who told police that the gunman was not in the arrays.

"On November 21, 2014, the jury convicted Babb*...[He] was sentenced to 48 years in prison."

[* That the jury could have done so 'beyond a reasonable doubt' is absolutely inexplicable. Remember: some 4-5 people testfied that Babb was not at the party. ]

"On April 22, 2016, the Office of the Chief Medical Examiner notified the Bronx [DA's] Office that the DNA profile from the bicycle had been matched to a man who had been arrested for defacing a firearm* and had not been previously linked to the case."

[* This appears to mean filing off the serial number on a gun, so that it would be much harder to trace.]

"In May 2016, the [DA's] office forwarded the report of the DNA match to Anastasia Heeger, Babb's court-appointed appellate lawyer at the Office of the Appellate Defender.

"Heeger then brought the case to the Bronx [DA's] Conviction Integrity Unit (CIU). Heeger noted that Detective Smith had been involved in obtaining a false confession and several false witness identifications in the prosecution of Malisha Blyden and Latisha Johnson.

"Blyden and Johnson had been exonerated in 2014 of a murder and other crimes. As a result, the CIU began a lengthy re-investigation of the Babb case, including visiting the crime scene and interviewing new and old witnesses. The CIU concluded that 'the integrity of the conviction is impaired, bringing into question the correctness of the conviction.'

"An assistant public defender representing Collins, who was facing a pending narcotics case, said that Collins's file indicated that Collins's three felony cases, which were pending at the time he testified against Babb, were dismissed on the motion of the prosecutor shortly after Babb's trial."

"The CIU interviewed the friend who accompanied Collins to the bodega and returned to the party. The friend, who had never been interviewed by either the prosecution or defense, said that when he and Collins saw the men with bicycles, he asked Collins if he knew them. Collins said he did not. The friend's statement contradicted Collins's claim that he recognized Babb because he had seen Babb in a stare-down with Jones prior to the shooting."

[Thus, it seems likely that the supposed 'stare-down' incident between Babb and Jones simply never happened, and was concocted by Corey Collins and/or Detective Steven Smith in order to supply a sort of 'motive' for the murder. ]

"Just as significantly, the friend identified a photograph of the man linked by DNA after being arrested for defacing a firearm as one of the two youths with the bicycles he saw in the lobby just before the shooting.

"In February 2020, Risa Gerson, chief of the Bronx [DA's] CIU, filed a recommendation to vacate Babb's convictions and dismiss the charges."

"On February 6, based on the joint motion of the prosecution and the defense, Bronx County...Justice Ethan Greenberg vacated Babb's convictions. On February 8, 2020, Babb was released on Bond.

"On July 24, 2020, Justice Greenberg dismissed the charges."

"In October 2021 Babb filed a federal civil rights lawsuit against the city of New York. The case was settled in September 2022 for $3,950,000."

[All emphases added unless otherwise noted.]