Jaythan Kendrick - Perjury - False accusation

Kendrick, Jaythan; murder; NRE: perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, witness tampering or misconduct interrogating co-defendant, perjury by official

Suggestibility issues

296 F.Supp.2d 348; E.D.N.Y. 11/25/03; writ denied, but Certificate of Appealability issued; however, 2nd Cir. later also denied writ

"[Kendrick] was convicted primarily of second-degree murder for the stabbing death of an elderly woman on a sidewalk in Queens. His conviction was achieved largely on the basis of the identification testimony of a single eyewitness, a ten-year-old boy who observed much of the assault from an apartment window three floors above the street.* The boy was initially unable to identify [Kendrick] from a lineup as the assailant, instead identifying a 'filler' as the killer. He changed his mind and identified [Kendrick] only after asking a detective whether his choice had been 'right' and being told that it was not. The boy was allowed by the state court judge to identify [Kendrick] at trial, nearly assuring a conviction."

[* Even as low as from the third floor, it is unlikely that anyone could positively identify someone on the street below.]

"A reasonable jurist could conclude that the pretrial lineup was unduly suggestive and that the witness's pre-trial and in-court identifications of [Kendrick] were unreliable...Were this court sitting in a direct appellate review of [his] conviction, vacatur of the judgment and a new trial would be seriously considered. A federal habeas court, however, owes great deference to the rulings of state courts..."

"Proof of [Kendrick's] guilt was not particularly strong. The boy...described the assailant to police as a male African-American, wearing a white or whitish-yellow jacket, white shoes without socks, dark blue sweatpants and an army-type camouflage hat. [Kendrick] caught the attention of police officers after they saw him -- an African-American man wearing a white jacket, dark pants, shoes with no socks, and an ordinary baseball cap* -- during their canvass of the neighborhood...When officers noticed a red stain on his jacket they asked him to accompany them to the precinct house. (Testing later showed the stain to be what [Kendrick] claimed it was -- lipstick.)"

[* Yes, what Kendrick was wearing largely matched the boy's descripton of the killer. But, the hats were clearly different: an army-type camouflage hat vs. an ordinary baseball cap. What is Kendrick supposed to have done -- changed his hat but nothing else he was wearing -- particularly the jacket that supposedly had blood on it?]

"[The boy] viewed the lineup after being told that the killer was in it (a serious error in suggestion to begin with)."

"The hearing court denied a motion from defense counsel to suppress the boy's identification of [Kendrick]:

'[T]he conduct of Detective [Thomas] Deutsch with respect to his directions and comments to [the boy] at the time of the lineup was...proper in all respects.'

[ Baloney. ]

"There was no physical evidence linking [Kendrick] to the stabbing. Although officers seized clothing from [his] home, no traces of the victim's blood were found. No forensic evidence at the crime scene linked [Kendrick] to the killing. No fingerprint evidence was introduced."

"[One] prosecution witness -- who was testifying for the prosecution in the hope of receiving sentencing consideration for his conviction for an unrelated crime -- testified that he saw [Kendrick], whom he knew, running away from the scene of the stabbing with a pocketbook clutched under his arm like a football. He described [the assailant] as wearing a white jacket, camouflage hat, brown pants, and shoes without socks."

Q. [by defense counsel]: What did they [the police officers at the precinct house] keep saying to you?

A. They kept getting closer. Then they started pushing me, slapping cups of coffee at me. Calling me nigger. I mean they just -- it turned horrible.

Q. Wait a minute. Hold that. Who called you nigger?

A. The police did.

Q. Which one?

A. I believe it was Deutsch started first...They kept saying every M.F. nigger is guilty until he proves his innocence...'"

from NRE synopsis (by Maurice Possley):

"At about 3:30 p.m. on November 30, 1994, 70-year-old Josephine Sanchez was attacked and robbed as she walked through the grounds of [an apartment complex] in the Long Island City neighborhood of Queens...She was stabbed twice and died on the spot.

"[A 10-year-old boy] told police he heard shouting and looked out of the third-floor window. He said he saw a black man punch Sanchez, struggle over the woman's black purse, and then flee with the purse. [He] said the man was in his 30s and was wearing a white jacket, dark blue sweatpants, white sneakers, no socks, and an army camouflage hat.

"He said the attacker fled toward the middle of the housing development where there was a park that led to exits in all directions. Police found a single blade of a pair of scissors about 150 feet from the attack.

"During a canvass of the area, police interviewed 18-year-old Mario Aguilo, who lived in the development. He said he saw 'an old lady lying on the ground,' but did not see the person who attacked her.

"Donna Williams, a resident of the complex, told police she attempted CPR on the victim.

"Maria Valle Rivera was visiting family members in the apartment directly below [the 10-year-old-boy witness]. Rivera said she saw the attack but could not identify the man who ran away.

"More than 6 hours later, around 10 p.m., a New York City police detective saw 36-year-old Jaythan Kendrick standing on a corner of the housing development. He was wearing an off-white jacket, black pants, brown shoes, and a black cap. When the detective waved Kendrick over, he noticed a red spot on the shoulder of the jacket, which he suspected could be blood. Kendrick said it was lipstick and subsequent testing would should it was not blood. Kendrick agreed to go to the police station for questioning.

"He told the police that he spent the day watching television, hanging out near the park, and talking to an acquaintance before returning home. He said that he came out of his building after the attack and asked an officer what happened. He said the officer told him that a woman had been stabbed to death with scissors.

"Kendrick gave the lead detective, Thomas Deutsch, permission to search his apartment. At 12:30 a.m. on December 1, police conducted the search. Kendrick turned over two pairs of white sneakers from his closet, as well as a camouflage army-style hat that was next to the couch in the living room that Kendrick shared with a roommate. Police found a blue purse, but Kendrick did not consent to turn it over because it belonged to his estranged wife. (Kendrick's wife subsequently confirmed that the purse was hers).

"Kendrick went back to the police station where his interrogation continued. During questioning, police said Kendrick made two statements that indicated he was involved. As he was insisting he was innocent, Kendrick said, 'If I was going to kill somebody, I wouldn't stab them with a scissor.' When Detective Deutsch expressed suspicion that Kendrick knew what the murder weapon was, Kendrick explained that he heard it from a police officer at the scene and that Deutsch had mentioned it during the interrogation.

"Deutsch denied ever mentioning it. The interrogation was not recorded."*

[* Neither was Nickel's .]

"Around 2 a.m., Deutsch asked Kendrick how he would explain it if his fingerprints were found on items recovered from the scene. Deutsch said that Kendrick said certain items were missing from his apartment, including kitchen knives, a wallet, a hat, and a pair of scissors.

"Deutsch said that Kendrick, a military veteran and former U.S. postal worker who was on disability, said he supported himself with pensions. He said Kendrick also said he had a $70 to $80-a-day cocaine habit.

"Police determined that Kendrick had an outstanding warrant for seventh-degree drug possession and used it to hold him. Police brought [the boy-witness] to the station to view a lineup. On the way over, an officer told [him] that the killer would be in the lineup.

"At the lineup Kendrick was in position number three. [The boy] had said the attacker was about the same height as his father, who was 6 feet 2 inches tall. Kendrick was 5 feet 7 inches tall. After viewing the lineup, [the boy] asked for each man to walk toward the one-way window. He then indicated that the man in position number six 'looks like the guy who stabbed the lady.'

"[The boy] would later testify at Kendrick's trial that he asked Detective Deutsch whether he had identified the correct person and Deutsch said he did not. So, [he] said, 'It was number three, wasn't it?'

"Deutsch testified that he only said to [the boy] that it did not matter who he chose as long as [he] picked the person he thought committed the crime. At that, [he] volunteered, 'It's number three.'

"On December 4, police interviewed Aguilo a second time at the police station. At the time, Aguilo was 18 years old and on probation for robbery. Initially, police questioned him and then an [ADA] arrived to record an interview with Aguilo. During this interview, Aguilo said he was leaving his girlfriend's apartment when he saw a black man in his 30s wearing a green camouflage hat, a dirty waist-length jacket, brown pants, no socks, and black or brown shoes. He said the man, who he knew as 'Jay,' was carrying a black or brown purse under his arm.

"That same day, Detective Deutsch obtained a search warrant for Kendrick's apaetment. During the search, police recovered crack paraphernalia and three purses. One was black.

"On December 6, 1994, Kendrick was charged with second-degree murder, first-degree robbery, and criminal possession of a weapon.

"Kendrick went on trial in September 1995 in Queens...[The boy-witness] testified and identified Kendrick as the killer. On the morning before [the boy] testified, detectives went to his apartment and held Kendrick's jacket up to the approximate spot of the attack. [The boy] looked out his window and saw it. In court, he testified that it looked like the jacket worn by the killer. [He] also testified that he initially identified someone else and then identified Kendrick.

"[The boy] also testified that the black purse looked like the one taken from the victim. He said that the prosecutor had shown him the purse before he testified. [He] also said the camouflage hat taken from Kendrick's apartment looked like the one worn by the attacker.

"Aguilo testified that he was leaving his girlfriend's apartment in the [apartment] complex about 3:30 p.m. when he saw Kendrick run past holding a purse. He said that Kendrick was wearing a white jacket and a camouflage hat. But he also said that Kendrick was wearing brown pants -- not dark-blue sweatpants -- and brown or black shoes, not white sneakers. Aguilo claimed he saw Kendrick run in the opposite direction of where [the boy] said the attacker ran and where the scissor blade was found.

"Aguilo said that as he continued walking, he came across Sanchez. He said she was 'bleeding, with blood around her head.' He said he asked her if she was all right and when she did not respond, 'I went home.'

"Aguilo admitted he was on probation for an attempted robbery and that two weeks before the trial, he had been charged with committing a different robbery with a man named Frank Longo. The prosecution said that no promises had been made other than if Aguilo were convicted of a robbery, the prosecution would make known his testimony against Kendrick and would explore the possibility of Aguilo entering an in-patient long-term drug treatment facility as a condition of any sentence.

"Detective Deutsch testified about the second search of Kendrick's apartment, which Kendrick shared with a female roommate. Deutsch said that the black purse had been found 'between the TV and the wall' in Kendrick's bedroom, although the voucher for the inventory search said the purse was found on top of the television.

"A serologist testified that blood found on the scissor blade at the crime scene was the same blood type as Sanchez's blood and that this blood type would be found in 12.138% of humans.

"The trial recessed for four days. When it resumed, the prosecution called Jaime Diaz to testify. He was a previously undisclosed witness -- there weren't any police reports or any interviews with him, he had not testified before the grand jury, and he was not on the prosecution's witness list.* He said he was on parole for an attempted drug sale and had been released from prison in April 1994. He said that he had been in Kendrick's apartment four to six weeks prior to the murder and although it was dark, he saw scissors on top of a dining room table."

[* We have seen several wrongful convictions where a defense witness was precluded from testifying because his or name was not on the defense's witness list. And yet, here we have such a prosecution witness brought in and testify, with apparently no problem whatsoever.]

"When the prosecutor showed Diaz the scissor blade found at the scene (the prosecutor acknowledged that he had already shown it to Diaz) and asked if it looked like the one he saw at Kendrick's apartment, Diaz said, 'It can be similar because from where I'm sitting I can't get a real visual, you know what I'm saying, I mean I'm sorry.' When the judge asked that it be moved closer, Diaz said, 'It looks like the scissor.'

"During cross-examination, asked if what he saw in Kendrick's apartment was a single scissor blade, Diaz said, 'It's hard to see. You don't want me to lie, do you?'

"Kendrick testified and denied committing the crime. He said that he was unable to run -- as witnesses said the killer did -- because of a combination of muscular myopathy, asthma, a pinched nerve in his neck and a disk and nerve injury to his back."

"The jury deliberated for two days and sent out 10 notes, at one point indicating they were unable to reach a verdict. The judge then instructed them to keep deliberating and encouraged jurors to reconsider their positions. On September 29, 1995, the jury convicted Kendrick of second-degree murder and first-degree robbery. He was sentenced to 25 years to life in prison.

"His convictions were upheld on appeal. In 2003, a federal petition for a writ of habeas corpus was denied, although U.S. District Judge Jack Weinstein said that if he had been sitting 'in direct appellate review' of the convictions, he would seriously consider granting a new trial because of an unduly suggestive lineup. The lineup, he said, was 'troubling;' the identification was 'fraught with problems.'

"Kendrick had written dozens of letters to innocence projects and lawyers seeking help on his case. He said that the detectives repeatedly used racial slurs during the interrogation.

"In 2016, attorney Thomas Hoffman agreed to take the case without charge along with attorney Jonathan Hiles. In 2017, during his re-investigation, [the above boy-witness] recanted his identification of Kendrick, saying he never could identify the attacker's face. He said he saw 'mostly colors, such as the perpetrator's black complexion, white sneakers and white jacket.' He said that he did not recognize anyone in the lineup, but because he had been told the killer was in the lineup, he wanted to be helpful. He said he made his first pick based on skin tone and when he was told he was wrong, he guessed again. At trial, [he] pointed to the ony black man in the courtroom.

"Evidence showed that in addition to being arrested with Frank Longo on robbery charges three weeks before he testified against Kendrick, Aguilo and Longo were suspects in an additional robbery that occurred the same night. In that case, the victim had been shot in the chest and survived. And a week later -- two weeks before Kendrick's trial -- the victim had identified Aguilo and Longo as his attackers The prosecution, however, did not disclose any information about the second case to Kendrick's defense lawyer, in violation of its obligation to reveal impeachment evidence relating to the prosecution witnesses.

"Hoffman moved for DNA testing of evidence in the case, at which time Susan Friedman, an attorney with the Innocence Project, began consulting on the case. DNA recovered from the victim's fingernails identified two males and Kendrick was excluded. The DNA profiles, however, were not suitable for uploading to the FBI DNA database of convicted defendants and unsolved crimes.

"In addition, testing of the black purse excluded Sanchez as the source of DNA on the strap and the interior of the purse. This suggested, according to the DNA test report, that Sanchez was not 'a habitual user or the owner of the black purse.'

"In October 2017, the Innocence Project and the law firm Wilmer Cutler Pickering Hale and Dore LLP joined Kendrick's legal team. To support [the boy-witness's] recantation, they asked a crime scene reconstruction expert to go to the apartment where [he] lived at the time of the crime and photograph what [the boy] would have witnessed from a distance of more than 100 feet away. The photographs demonstrated that it was difficult, if not impossible, to identify the face of the assailant, especially since the assailant was wearing a hat and the attack lasted less than two minutes.

"In January 2020, Queens [DA] Melinda Katz established a Conviction Integrity Unit (CIU). Innocence Project lawyers Friedman and Vanessa Potkin as well as lawyers Ross Firsenbaum, Charles Bridge and Brett Atanasio from the law firm of Wilmer Cutler Pickering Hale and Dorr LLP and attorney Janet Carter asked that Kendrick's case be re-investigated based on the new evidence.

"This new evidence also included statements from four witnesses. Donna Williams, the woman who had performed CPR on the victim, said there was no blood visible when she approached Sanchez. Only after performing CPR did blood become visible, she said -- contradicting Aguilo's testimony that he saw blood around Sanchez's head.

"Maria Valle Rivera, who had been visiting her family after arriving from Puerto Rico and was in the apartment below [the boy-witness], said she heard shouting and looked out to see a man wearing a light-colored jacket fighting with a woman. She could not tell what race the man was because of the distance. She said the man fled in the same direction that [the boy] gave, which also contradicted Aguilo.

"During the CIU re-investigation, two additional witnesses were interviewed. Jose Torres, another resident of the complex, said he also responded to the scene and heard a boy...shouting from a window. Torres said he saw no one besides Williams approach Sanchez, further contradicting Aguilo's testimony.

"And Jennifer Park, who was Aguilo's girlfriend at the time of the crime, told the CIU that she was in class at Middle College High School that day, contradicting Aguilo's testimony that they spent the day together. The CIU confirmed her account through school records.

"In November 2020, Kendrick's legal team and the Queens [DA] filed a joint motion seeking to vacate Kendrick's convictions. Kendrick's legal team filed an affirmation in support of the motion stating that after an eight-month investigation, 'the CIU concluded that Mr. Kendrick is entitled to relief, that his conviction should be vacated. . .and the indictment should be dismissed.'

"The testing of the purse was significant because, the motion noted, Detective Deutsch's false testimony about the purse being 'wedged behind the TV' was highly prejudicial and suggested a consciousness of guilt -- that Kendrick purposefully hid it. "Indeed, the motion said that during closing argument, the prosecutor seized on that testimony to say that the purse had been 'stashed behind the TV set between the TV set and the wall in [Kendrick's] apartment.'

"On November 19, 2020, during a hearing before Queens...Judge Joseph Zayas, [DA] Katz said, 'We believe that the new evidence makes it much more probable than not that the outcome of the trial would have been extremely different.'

"Innocence Project Attorney Susan Friedman said, 'Today the system that had wronged him takes a first step at correcting the injustice.' "Judge Zayas granted the motion and vacated the convictions. The prosecution then dismissed the case. Kendrick was released -- more than 25 years after his conviction in 1995. Kendrick was met by his cousin, Clarence Hughes, a resident of Georgia, who had helped Kendrick write letters seeking help and was the one who convinced attorney Thomas Hoffman to take the case in 2016.

"In December 2020, Kendrick filed a claim for compensation in the New York Court of Claims.

"Kendrick died in January 2022. In January 2024, his family filed a federal lawsuit seeking $100 million in damages from the city of New York."

[All emphases added unless otherwise noted.]