Jerimiah Brinson - Perjury
Brinson, Jeremiah ; robbery; NRE: perjury/false accusation, no crime
407 F.Supp.2d 456; W.D.N.Y. 1/5/06; writ granted , due to barring defense from cross-examining victim re: alleged racial bias, wrongful striking of victim's testimony, and prosecutorial misconduct
"Brinson's conviction stems from the alleged robbery of Jeremy M. Gavin ...Gavin, the complainant and the sole witness to the crime, testified that at about 1:30 a.m. on May 28, 1997, he was walking down main street in the City of Geneva after leaving a local bar, the Rum Runner...According to Gavin, a black man who he did not know approached him and asked if he could spare a few dollars...Gavin stated that as he was attempting to extract a few bills from his wallet, the man grabbed at the wallet...Gavin testified that he 'tried to defensively push him away' but 'ended up sprawled on the ground.'...Gavin related that the man then pulled out a razor knife, raised it up to about shoulder-height, bent down, picked up the money that had fallen out of the wallet (about $60) and started to walk away...Gavin stated that as the man drew the knife from his pocket, a piece of paper fell out; this turned out to be Brinson's Social Security card which Gavin brought to the police station when he reported the crime...Gavin described the person who robbed him as a black man wearing jeans, a white sweatshirt and a black baseball cap.
"Shortly thereafter, Officer Mark Cirone...observed Brinson about one-tenth of a mile from the alleged robbery scene. Since Brinson matched the description given by Gavin, Cirone transported him to the police station where Gavin identified Brinson at a show-up identification procedure. The police found Brinson to be in possession of a razor knife which Gavin eventually identified as the knife with which he was threatened. However, Brinson did not have any money on him.
"Brinson's verson of the events that evening as told by him and his supporting witness was poles apart from Gavin's version. Defense cousel called Joel Richardson...who testified that on the night of the incident, he was driving around downtown Geneva with Brinson and Shawn Dunson...As they passed by the Rum Runner, a 'white dude' asked if he could get a ride to Pulteney Street. They agreed, and the man got into the car...Richardson testified that he asked the man for gas money, but the man said he did not have any...Richardson then dropped the man off and drove away. Defense counsel did not ask Richardson whether the white man to whom he had given a ride was present in the courtroom. The prosecutor then moved to have the testimony stricken in its entirety, and the court agreed. Defense counsel did not object or attempt to recall the witness.
"Next, Brinson testified that as he was driving around with Richardson and Duncan, they encountered Gavin coming down the street...According to Brinson, Gavin came up to him and said, '[C]ould you hook me up with a dime bag of weed[?]'...Gavin explained that he and his girlfriend had just broken up, and his 'connection' was out of town...According to Brinson, Gavin got into the back seat of Richardson's car and sat next to Brinson. Brinson explained that he had taken his razor knife out of his backpocket and placed it on the car seat because he could not sit on the knife and was afraid of breaking it...Brinson testified that he used the knife, which he called a 'carpet cutter,' at his job at the Ramada Inn...When they got to Pulteney Street, Brinson got out of the car and put the knife back in his pocket. Gavin said he could only get a 'nick' (a nickel bag) because he only had $5. At that point, Brinson became suspicious that Gavin was a 'narc' and said, '[G]et away from me, man, I'm going home.'...Brinson then started to walk to his sister's house on Pulteney Street. According to Brinson, Gavin started following him saying, '[J]ust go half with me. . .all I want to do is get high. . .I'm having a bad night'...At that point Brinson spied a police car, and was worried what the police would think if the saw a 'black and white guy [sic] walking around' at that late hour...Brinson testfied that Gavin, who was still following him, 'made some kind of motion' to the police. Brinson said to Gavin, '[Y]ou are a narc, aren't you?' and kept walking hurriedly awat...Gavin then yelled after him, '[Y]ou Nigger, come here, Nigger[.]'...Brinson testified that he was walking home when a police car pulled up and an officer took him into custody because he fit the description of the perpetrator of a robbery that had been reported earlier.
"Brinson also testified that he had lost his Social Security card approximately one month prior to that incident, and that he had requested and been re-issued a new one because he needed identification for his job...Brinson claimed that he did not have a new card on his person that night...He also testified that the card found at the scene and introduced into evidence was the card that had been missing for a little over a month...He admitted that the card appeared to be in the same condition as when he had lost it.
"Brinson faults counsel for calling as witness, Joel Richardson, whose testimony was stricken...Notwithstanding defense counsel's failure to object [to the striking of Richardson's testimony], the trial court should not have excluded the evidence even in the weak form introduced by counsel...It does not matter that Richardson did not idetify the victim or whether he could or could not identify the victim. Rather, the mere fact that the presence of a white male in the automobile at or about the time of the incident reasonably tended to corroborate Brinson's account of the incident. By excluding such evidence, the trial court eviscerated a substantial portion of Brinson's factual defense by preventing corroboration of Brinson's testimony on this point. Such exclusion made it extremely difficult for Brinson to argue an alternative scenario and prevented his counsel from arguing the complainant's possible motive for testifying falsely. When coupled with the critical evidentiary errors committed by the trial court, the cumulative effect of these errors create a disturbing picture and a substantial doubt that [Brinson] received a fair trial...
"Upon my review of therecord, I fund that the prosecutor's questioning of Brinson was overly aggressive and improper, because it appears to have crearted an inference, although subtle, that Brinson was covering for someone who had engaged in the sale of drugs. Such inferences , created by a prosecutor who should know better, are often slipped in with full knowledge that an objection will be sustained, but with an awareness that they will be suggestive to the factfinder and create cumulative damage."
[As is virtually always the case, the offending prosecutor was not actually named in this decision.]
[In Nickel's case, such improper inferences by Prosecutor Peter Torncello were constant, and not at all subtle. Moreover, the fact-finder there , Judge Paul Czajka , largely did not actually enforce the ostensible 'sustaining' of defense counsel's objections to such tactics.]
"Brinson asserts that he was denied his Sixth Amendment right of confrontation due to the trial court's erroneous limitation of defense counsel's cross-examination of the complainant, Gavin, regarding racist remarks made by Gavin during the summer of 1997, shortly after the incident...[D]efense counsel attempted to cross-examine the complainant about his allegedly having been fired from his food service job at Perkins Restaurant for refusing to serve African-American patrons...The prosecutor objected on the ground that this line of testimony was 'not relevant.' The trial court agreed and did not allow defense counsel to ask Gavin whether he had been fired from Perkins."
[Defense counsel then stated to the judge, outside the presence of the jury:] "'[H]e told his supervisor he's not serving any fucking Niggers.'" [The judge then 'ham-strung' the defense on this issue, focusing on the absolutely irrelevant issue of precisely when Gavin worked at the restaurant.]
[ This is highly reminiscent of when, in the Nickel case, Czajka ham-strung the defense re: what expertise is required -- and methods utilized -- by McEvoy and similar photo analysis experts, focusing instead on the absolutely irrelevant issue of how Nickel would have 'looked' at the time the sex photo was taken. (See Day Two of annotated trial transcript.)]
"Defense counsel then sought to call June Orbaker...a woman who alleged that she lived with Gavin 'between late May and early June.'...According to defense counsel, Orbaker would have tesified that about a month prior to trial, Gavin told her that 'all Niggers who come ito Rite Aid knew that he's the one that had accused Jeremy [sic] Brinson.' The prosecutor objected...The court [sustained the objection]."
[The Second Circuit subsequently affirmed the granting of this writ.]
NRE synopsis (by Maurice Possley):
"Brinson was sentenced to 18 years in prison."
"On May 15, 2009, Ontario County Judge Frederick Reed dismissed the case 'in the interest of justice' after Brinson's attorney argued that the original trial file was missing* and many witnesses to Gavin's racist conduct could not remember key facts."
[ * This is highly suspicious. We are unaware of any other New York State case -- or for that matter, any other case nationwide -- for which the original trial file somehow 'went missing.']
[All emphases added.]
