Barry Gibbs - False Accusation, Officer Misconduct

Gibbs, Barry; murder; NRE: perjury/false accusation, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

H18 [598] "Barry Gibbs...was convicted of murder in Brooklyn...What happened was that a man was observed on [599] Bell Parkway taking a body wrapped in a blanket and dumping it off the side of the road near the riding stables. There was a jogger coming who made observations from 300 feet away. There was a park ranger, too, and they both observed this, and they gave a description of a man with white hair that had tossed the body [as being] about 5'6", 140 pounds. As the investigation proceeded that day, in comes [an NYPD] detective named [Louis] Eppolito. Eppolito all of a sudden takes over the case and starts conducting the investigation. The victim turns out to be African-American and had a history of prostitution.

"Eppolito goes to a local neighborhood and starts asking around for the last white guy that had ever been in the presence of this woman. Before you know it, Barry Gibbs, who is over six feet tall and 190 pounds, is brought to a lineup, worked over pretty good by this cop, very fishy circumstances in the lineup. The guy identifies him, and boom, there is a case.

"Gibbs went to trial, and based on the jogger's testimony, which changes all of a sudden in terms of the description, he is convicted. And then he writes us, and we want to find fingernail scrapings and maybe hairs because we think this could prove him innocent. We start looking for it, and everything is lost.

"Lo and behold last fall [of 2005] the United States Attorney's Office in the Eastern District of New York issues a spectacular indictment. They arrested two former [NYPD] officers in Las Vegas, Nevada, one of whom is Eppolito. The accusation is that in 1986 -- and this crime happened in November of 1986 -- Eppolito and his codefendant, [Stephen] Caracappa, had decided they were working for organized crime in New York -- the mafia -- and, in fact, were doing hits for organized crime. It was alleged they would dispose of the bodies on the Bell Parkway in New York, not that anybody believes they did in this case.

[600] "I called for the Brooklyn [DA], who I am lucky enough to have known for twenty-five years, and the U.S. Attorney in the Eastern District of New York, and they sent out their agents. And last week they called and said, 'You are right. This guy was coerced into the identification. He never believed your client was the person. He was coerced by this cop. We are dismissing the case.' And they let him go. And today if you look at the Metropolitan Section of the New York Times, there is a wonderful article by Joyce Purnick, describing how this man gets out of prison, and he has nothing. Nothing. He has less than you would get if you were convicted of a crime, and you did the nineteen years that he did, and you were let out, and there are no social services. There is nothing available for him."

2008 WL 314358; 2/4/08; civil suit

"[T]he only eyewitness...came forward and recanted his testimony...assert[ing] that Eppolito coerced him to identify [Gibbs] as the person he saw leaving the scene where the murder victim's body was found.

"In his published memoir, 'Mafia Cop,' Eppolito states that he beat and tortured [another murder suspect] in an unsuccessful effort to extract a confession from him."

[550:400]; 2nd Dept. 1/22/90; affirmed

"While there are some inconsistencies in the evidence of the eyewitness it is obvious that the jury believed he had accuratey identified [Gibbs] as the person he saw disposing of the body in the early afternoon under good weather conditions..."

[According to Barry Scheck above, at least one of the two witnesses saw the body being dumped from a distance of some 300 feet. That's the length of a football field. How could anyone give an accurate description of a person from that distance? Of course, the appellate decision neglected to mention the distance involved here.]

"[W]e are satisfied that the verdict was not against the weight of the evidence..."

from Records and Briefs:

[3] [Detectives James Fairchild and Louis Rango, and Sgt. John Muldoon and Lt. Anthony Marra are named in civil suit.]

"Ten to fifteen minutes before Park Police radioed that they had discovered the body, [U.S.] Parks Police Service Detective Gentile was driving east on the Mill Basin Bridge on the Belt Parkway and observed a white man with a mustache, in his forties and approximately 5'6" to 5'8" in height leaning against a car parked near the entrance to the Jamaica Bay Riding Academy. The man was leaning against a gray car that appeared to be an Oldsmobile from the late 1970s. Detective Gentile observed the man and the car for approximately ten to twelve seconds."

"Upon receivng the radio transmission about the discovery of the body in the same location where he had observed the [4] man and the car, Detective Gentile drove to the Jamaica Riding Academy. When he arrived at the scene Officer Dorogoff and Lynch and [U.S.] Parks Service Sergeant Rivera were present, together with an individual by the name of Peter Mitchell, who was identified as a witness.

"Peter Mitchell, a 26-year-old African-American and a former Marine who had two prior criminal convictions, was under supervision of the California Department of Parole, and was in violation of his parole reporting obligations.

"Mr. Mitchell claimed that while he had been jogging on the Bell Parkway he had observed an individual approximately fitting the description of the man observed by Detective Gentile removing the body, wrapped in a blue blanket, from a gray Oldsmobile parked at the Riding Academy entrance. Mr. Mitchell would later state that he saw the man for no more than three seconds, and that he had viewed the man from about 1,000 feet away,* on the Mill Basin bridge."

[* It is difficult to reconcile this distance with the '300 feet away' distance reported in the above (H18) article (which also refers to the jogger's distance away).]

"On November 4, 1986, Barry Gibbs was five feet, eleven inches tall, weighed approximately 212 pounds, and had no facial hair."

"During interviews with NYPD officers, Peter Mitchell's account of what he had seen from the Mill Basin Bridge shifted, and revealed -- within only an hour of Mr. Mitchell's alleged observations -- that his credibility and capacity for observation was limited. For example, while he told Detectives Gentile and Ruggiero that the man he had seen was in his forties, Mitchell told Officer Prior that the man was in his sixties."

"Detective Canderossi prepared notes and/or a report of a full interview with and statement of Peter Mitchell, which documented discrepancies in Mr. Mitchell's cross-racial identification and other observations. This document was never produced to prosecutors or to Mr. Gibbs's defense counsel."

"At approximately four o'clock on November 4...NYPD Detective Eppolito arrived at the entrance to the Jamaica Bay Riding Academy and informed Detective Canderossi that he, Eppolito, had been assigned as the lead detective in the investigation, and that he would be taking over the investigation from Canderossi. Also present with Eppolito were his partner...Detective Fairchild, and other NYPD personnel.

"Mr. Gibbs was known to Detective Fairchild, who approximately one year earlier had arrested Mr. Gibbs at his home, which was located near the home of Ms. Robertson [the murder victim]. On November 4, 1986 Barry Gibbs was 38 years old and lived in East Flatbush, Brooklyn, a predominantly African-American neighborhood."

"At the time of and prior to the Robertson murder investigation...NYPD supervisors, including Muldoon [and] Marra...permitted Eppolito to beat and otherwise coerce suspects and witnesses -- including, as in this case, in the precinct. Moreover, these supervisors failed to investigate or monitor use of force complaints against Eppolito, failed to investigate allegations of Eppolito's misconduct made by civilians and NYPD personnel, failed to scrutinize his investigations or his documentation thereof, and otherwise failed to respond to the significant, obvious, and foreseeable risk that Eppolito and fellow detectives would violate the constitutional rights of its citizens."

[5] "[D]espite knowing that Detective Gentile, a federal law enforcement official, had viewed an individual suspected of being the murderer for approximately ten seconds and was one of only two eyewitnesses in the case, neither Eppolito, Fairchild, or Rango ever documented or disclosed any conversation or interview with Detective Gentile.

[6] "During [his] interrogation... Eppolito repeatedly slapped and beat Mr. Gibbs so badly that other NYPD officers entered the room to pull Eppolito off of Mr. Gibbs."

Fairchild, Eppolito and others made suggestive, coercive, and/or threatening comments to Peter Mitchell in order to ensure that Mr. Mitchell would select Barry Gibbs from the lineup."

"The suggestive features of the [lineup] procedure included the following: [7]

A. Eppolito and Fairchild provided direct suggestion to and/or coerced and threatened Mr. Mitchell before and/or during the lineup in order to cause him to select Mr. Gibbs;

B. Eppolito recklessly and/or deliberately seleced lineup 'fillers' who bore no reseblance to Mr. Gibbs, and did not match the initial suspect descriptions given by Mr. Mitchell, all of whom were police officers who had been in the 63rd Precinct on November 14 or November 4, or both days. Eppolito knew and/or should have known that Mr. Mitchell actually recognized one or more of the fillers as police officers."

"Neither the lineup shown to Peter Mitchell, nor any of the other live or photograph lineups was ever viewed by Detective Gentile... Eppolito, Rango, and Fairchild failed to make the basic investigative step of procuring a corroborative identification from Detective Gentile because they knew that Detective Gentile could not properly identify Mr. Gibbs."

"Based on the unduly suggestive lineup investigation, the suggestive circumstances of which were never documented or disclosed to the prosecution, Mr. Gibbs was arrested..."

"Nothing was found in the [police search of] the apartment that linked [Gibbs] to Virginia Robertson or her murder."

[7] No forensic evidence was presented at trial linking Mr. Gibbs to the crime, despite the fact that he provided hair samples for comparison to Caucasian hairs found on the clothing of the victim."

"The only other direct evidence against Mrs. Gibbs was...testimony from Henry Fogelman, a professional jailhouse snitch with fourteen prior convictions who, by his own account, had been an informant in approximately ten cases. Mr. Fogelman testified, falsely, that Mr. Gibbs had confessed his guilt while incarcerated in pretrial detention at Riker's Island."

"[T]he jury heard evidence...that when Mr. Gibbs allegedly confessed, Mr. Fogelman was in fact at Riker's Island at the behest of police and prosecutors for the purpose of informing on another inmate. The jury also heard that... Fogelman had, without authorization, gained access to Mr. Gibbs's cell and to legal papers relating to his criminal defense."

"In addition, several details of Mr. Gibbs's 'confession' were patently false, including Mr. Gibbs's alleged statement that an eyewitness had seen him on November 4 and that he had a full beard and mustache at the time. In fact, no eyewitness had ever described the man who disposed of Virginia Robertson's body as having a beard, and other witnesses testified that Mr.Gibbs was clean-shaven since the summer of 1986."

 

from NRE synopsis (by The Innocence Project):

"A witness told Eppolito that he had been jogging on the day of the crime and had seen a white man and a black woman sitting in a gray car parked by the highway. The man said he then watched the white man walk to the passenger side of the car and pull out a body, lay it on the ground and place a blanket over it. The jogger said the perpetrator noticed him after just three seconds and ran back to the driver's side.

"Eppolito apparently learned that Barry Gibbs knew the victim. Gibbs voluntarily participated in a line-up and consented to a police search of his apartment. During the search, police found a pair of red jeans that matched eyewitness testimony of what the perpetrator was wearing during the crime; however, the jeans did not fit Gibbs. Police also discovered that Gibbs owned a gray car similar to the perpetrator's car but Gibbs' car was inoperable, had two flat tires, and had not been driven for a substantial amount of time.

"During the police lineup, the witness who observed the perpetrator dispose of the victim's body identified Gibbs as the perpetrator despite physical differences in stature and weight. Additionally, a park police officer told responding police officers he had seen the perpetrator but was never asked to identify the suspect in a police line-up.

"The jogger testified about seeing a white man dump the body. Another state witness was a jailhouse informant who had a very close relationship with a criminal investigator in the Department of Corrections and an extensive arrest record. The informant, who had testified for the state in several other cases, testified that he spoke to Gibbs while he was in jail awaiting trial and Gibbs admitted killing the victim. A defense witness, who was also incarcerated with Gibbs pre-trial, offered contrary testimony that in conversations with Gibbs over a 4-month period, Gibbs always maintained his innocence. Based on the eyewitness and snitch testimony, Gibbs was convicted and sentenced to 20 years to life in prison."

"In 2005, the eyewitness who had testified at Gibbs' trial that he had seen the perpetrator while jogging in the area recanted his testimony. He said Eppolito had threatened his family if he didn't identify Gibbs in the lineup and again in court.

"Based on the witness's recantation, Gibbs was freed from prison in 2005 and cleared. He had served more than 17 years in prison for a murder he did not commit.

"In 2010, Gibbs settled a wrongful conviction lawsuit against the city of New York for $9.9 million. He later settled with the state of New York for an additional $1.9 million.

"Gibbs died in March 2018."

[All emphases added unless otherwise noted.]