John Bunn & Rosena Hargrove - Mistaken ID

Bunn, John AND Hargrove/Hargrave/Hardgrave,* Rosean; murder; NRE: mistaken witness identification, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

[* This surname is spelled various ways in legal decisions.]

Suggestibility issues

[Bunn] [620:413]; 2nd Dept. 12/19/94; affirmed

"One day after the shooting, the eyewitness identified [Bunn] in a corporeal lineup as the individual who had approached the driver's side of the vehicle in which the witness was seated and shot the driver in what appeared to be a carjacking.

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

[Hargrove] 1998 WL 635710; E.D.N.Y. 2/9/98; writ denied, but Certificate of Appealability issued

"This case arises out of a car-jacking and shooting that occurred on or about August 13, 1991, sometime between 4:00 and 4:30 in the morning, just outside the Kingsborough Housing Project in Brooklyn...According to the testimony of the surviving victim, Robert Crosson, he and Rolando Neischer -- two correction officers who had known each other for many years -- had been sitting and talking in Neischer's car...when two young men approached the car on bicycles, drew guns, and ordered them out of the car. According to Crosson, [Hargrove's] co-defendant [John Bunn] shot Neischer as he was getting out of the car and [Hargrove] shot Crosson. Crosson then ran away approximately 50-60 feet until the assailants drove off. When he ran back to where the car had been and could not find Neischer, he proceeded in the direction of a nearby hospital to get help.

"Two police officers patrolling the area in a police vehicle came upon Crosson, who identified himself as a corrections officer and told them that he and Neischer had been shot. The two officers, who had heard approximately ten shots fired in rapid succession, had already been heading in the direction of the crime scene; Crosson entered their car and the three proceeded to the area...where Neischer's car had been at the time of the shooting...A bleeding, but still alive Neischer was then found approximately 192 feet away...Mr. Neischer had been shot five times. He was taken to the nearby hospital where he died within a few days. Mr. Crosson sustained a gunshot wound to the hand."

[Certificate of Appealability issued because defense was prevented from questioning Crosson about his alleged previous dealings in stolen goods.]

[But 2nd Circuit then affirmed district court's denial of the writ.]

[Hargrove] 26 N.Y.S.3d 726; Kings Cty. Ct. 4/14/15; motion to vacate granted

"The defense's posture is that the judgment should be vacated because the single identification testimony of Robert Crosson was facilitated by Detectives Louis Scarcella and Steven Chmil, and those detectives have recently been found in other cases to have engaged in 'corrupt investigative practices.'

"On August 13, 1991, two correction officers were shot, one killed, the other injured in the Kingsborough housing projects of Brooklyn. On August 14, 1991, [Hargrove] was arrested without a warrant on the second floor of his family's dwelling. On August 15, 1991, he was identified in a photo array prepared by Detectives Louis Scarcella and Steven Chmil ...On November 24, 1992, [Hargrove] was convicted of murder in the second degree and assault in the first degree, after a jury trial, in which the testimony of one eyewitness was taken...A hearing was conducted [on 9/16/14] on the claim of newly discovered evidence, actual innocence, ineffective assistance of counsel at trial and missing evidence.

"The first witness to testify at the hearing was Robert Crosson, one of the victims. [Hargrove] was convicted of assault in the first degree for the injuries sustained to Mr. Crosson's hand as a consequence of the shooting. At the time of the shooting, Mr. Crosson was a Probationary Correction Officer. Mr. Crosson testified that on August 13, 1991, at about 4:00 a.m., he was in the passenger seat of a Volvo in which his deceased friend, Correction Officer Ronald Neischer, was in the driver's seat. They were parked outside of the Kingsborough housing projects, where they both lived. Mr. Crosson testified that as they were parked, two young black men approached the vehicle on bicycles with guns. Mr. Crosson testified that the men immediately asked Ronald Neischer to give up the car and shots were then fired. Ronald Neischer was shot by the individual on his side of the vehicle. After the shooting, the assailants got into the vehicle and drove away. The bicycles were left at the scene with blood spatter.

"Mr. Crosson could not recall on the stand the description he gave during the trial and prior of the man who shot him..."

"The third witness was William E.Hellerstein, a retired professor of law at Brooklyn Law School, who in the year 2000 established the Non-DNA Innocence Project at the law school. Mr. Hellerstein testified that he undertook an extensive in-depth examination principally of John Bunn's matter, the co-defendant, but also of the [Hargrove] case...Mr.Hellerstein stated that he was troubled about the case. He was attempting to get the bicycles from the case, but he was told they were unavailable.

"The fourth witness to testify was Mr. Edward Boyar, the [ADA] that was assigned to prosecute the case of co-defendant John Bunn and [Hargrove].

"Mr. Boyar confirmed that none of the fingerprints in the bicycles or the vehicle were connected to [Bunn or Hargrove]..."

"In 2007, Detective Louis Scarcella appeared on the Dr. Phil show, a popular daytime talk show. According to the testimony taken at the hearing, Scarcella stated on the show that there were no rules when it came to prosecuting homicide cases and that he did not play by the rules..."

[This statement is so staggeringly stupid on so many levels, that it beggars belief. First of all, it demonstrates absolute ignorance regarding the countless good reasons why proper procedures must always be followed -- especially in the most serious crimes, where the stakes are so high for everyone involved. The historical record clearly demonstrates that when corners are cut, innocent people are far more likely to get convicted; and by the way, the guilty will more often go free as well. Moreover, even if a 'detective' did hold such beliefs, how dumb would he have to be to brag about it on a nationally syndicated talk show?]

"The issue...in this case is the possible unreliability and compromised identification testimony of a witness prepared by Detective Scarcella. The conviction in this case is based solely on the identification of that one witness...[D]uring his trial testimony he described his assailants as two light-skinned black males in their twenties. Mr. Crosson is a black male. [Neither Bunn nor Hargrove] may be accurately described as 'light-skinned' black males.

"The testimony provided at the hearing by Scarcella was false, misleading and non-cooperative. At the hearing, Scarcella refused to acknowledge that he testified in [Hargrove's] pretrial hearing, although he was given the transcript of his testimony to read. He also refused to confirm that he was the detective assigned to [Hargrove's] case. He stated that it was his partner's case and that he did nothing of substance in the investigation...Scarcella did not recall being present at [Hargrove's] arrest or at the photo array prepared for the sole witness or testifying in the pretrial hearing...He stated that he did not remember the case and that nothing could refresh his recollection to contradict that it was not the case...When asked if he remembered the surviving witnesses's name Scarcella stated that he did not, but then said he knew the name because he did hear his name when he first appeared for this matter and he knew who Robert Crosson was...Scarcella admitted that he had spoken with his partner around a dozen times in preparation for this hearing. Scarcella was not forthright in his testimony, and even in the face of undisputed evidence, he refused to acknowledge the truth.

"Scarcella's partner, Detective Chmil, testified at the pretrial hearing that Scarcella was the detective assigned to [Hargrove's] case from the homicide squad.

"There is no evidence Crosson recognized [Hargrove] at the outset of the crime, although they lived in the same housing [complex] for over twenty years and he admitted to knowing [Hargrove's] family, with whom [Hargrove] lived. There were also allegations that Mr. Crosson was involved in some illegality that may have compromised his testimony.

"[Hargrove's] conviction is based solely on the identification photo array that was prepared by Detectives Scarcella and Chmil. Crosson identified [Hargrove] after a line-up organized by Scarcella and his partner, Detective Chmil. [Hargrove's] conviction is based exclusively on this identification by photos taken out of a drawer and placed in a photo array facilitated by Scarcella and his partner Detective Chmil. There were fingerprints taken from the bicycle that did not match either [Bunn or Hargrove]. There were fingerprints taken from inside and outside the vehicle that the assailants drove away in, none of which were [Bunn or Hargrove's] fingerprints. In twenty-three-plus years, the ballistics have not been tested. There is no fingerprint match, biological evidence, or an admission on which to base the conviction other than the one witnesses's identification. Scarcella was intrinsic to the identification array in this case, as he was present, setting up the photo array [and] line-up, and was in part responsible for the outcome as the assigned detective investigating and processing the case."

[Hargrove] 75 N.Y.S.3d 551; 2nd Dept. 4/18/18; above decision to vacate conviction affirmed

[29] "[Hargrove] has remained behind bars for more than two decades for a crime that he has consistently maintained he did not commt. [County] Court, on the basis of newly discovered evidence, vacated [Hargrove's] judgment of conviction and ordered a new trial.

"The [prosecution has] appealed from the [County] Court's order. While the issues implicated by this case represent some of the most pressing and contentious matters facing the criminal justice system today, the [prosecution has] chosen to focus their appeal on an array of procedural and evidentiary arguments, largely ignoring the underlying issues at stake."

[The above would also constitute an apt characterization of the Third Department's decision in Nickel's case. (See State Appeal. )]

"But these rules of procedure and evidence are not to be invoked for their own sake. They do not exist solely as an arsenal to be ranged against the accused or the imprisoned. They exist so that truth may emerge from their considered application. Indeed, it requires no earth-shattering pronouncement to state simply what centuries of jurisprudence make clear: that justice is the whole of the law.

"And although our institutions of law enforcement are the bedrock of our system of justice, they do not deserve our blind faith or allegiance. When we succumb to that temptation we abdicate our duty to ensure that justice is done in every case and under every circumstance. Society's allegiance and faith must be earned through our labors and constantly reaffirmed by our decisions. Recognition of our errors does not make our system weak, it makes it resilient. When we ignore our errors or seek to avoid confronting them, we imperil the very foundations of our legitimacy."

[This clarion decision was written by justices of the Appellate Division, Second Department. To our knowledge, the Third Department, which authored Nickel's appeal decision, has never penned such a jeremiad.]

National Registry of Exonerations; Exonerations in 2018

"John Bunn was 14 and Rosean Hargrave was 17 when they were arrested for murder in Brooklyn...They were among 31 men who were exonerated in 2018 after being falsely convicted on the basis of mistaken witness identifications.

"Both were convicted of the shooting that killed Rikers Island corrections officer Roland Neischer and wounded officer Robert Crosson. The primary evidence against them was the testimony of Crosson, who said he recognized them as the gunmen.

"Bunn and Hargrave became suspects based on the claim of New York police detective Louis Scarcella that he received an anonymous tip.* Hargrave was sentenced to 30 years to life in prison, and Bunn was sentenced to 7 years to life in prison."**

[* As we have noted, so-called 'anonymous tips' quite often come from the very detectives 'investigating' the case in question.]

[** Note that Bunn was just fourteen years old when he was (wrongfully) convicted, not as a juvenile, but as an 'adult.' Had this same person been an alleged victim of sex abuse, there would likely have been much (hypocritical) hand-wringing about how this poor 'child' had been irreparably damaged by the accused adult.]

"Both men were exonerated in 2018 following disclosures that Scarcella engaged in misconduct in numerous homicide cases that resulted in wrongful convictions.

"In ordering a new trial, Kings County...Court Justice ShawnDya Simpson declared, 'Scarcella has been regarded as a legend in the N.Y.P.D. for his number of homicide arrests. There is a saying, when it is too good to be true, it usually is. This new evidence of Detective Scarcella's maleficence requires a new trial.'

"By the end of 2018, a total of 14 men and women had been exonerated of their convictons based on Scarcella's misconduct."

from NRE synopsis (by Maurice Possley):

"Crosson...described the robbers as two light-skinned black men in their twenties."

"[The day after the crime]... Scarcella said he received an anonymous telephone call naming 17-year-old Rosean Hargrave as one of the gunmen and went to the housing project. Scarcella said he got off the elevator on the second floor and 'got lucky' -- he saw Hargrave and arrested him. Later that day, Scarcella, saying he was acting on another tip,* went to another apartment at the housing project and arrested 14-year-old John Bunn."

[* So, Scarcella says he 'got lucky' -- three times, really. Two 'anonymous tips' leading him right to the culprits, and he just happens to run into one of them getting off the elevator. As has been noted elsewhere on this site, the police/detectives themselves are often the ones making such calls -- if/when, that is, such calls were even made. ] "Scarcella's partner, Stephen Chmil, created a photographic lineup. Crosson identified both men, saying that Bunn came to the driver side of the car and shot Neischer, and that Hargrave came to the passenger side and shot him in the hand. Bunn and Hargrave, who were not in ther twenties and were both dark-skinned, were charged with felony murder and felony assault."

"At the hospital, Crosson described the gunmen as light-skinned black men in their twenties. The one on the driver's side -- whom he later said was Bunn -- was 5 feet 9 inches or 5 feet 10 inches tall. He described the other robber -- whom he identified as Hargrave -- as light-skinned and in his twenties.

"Hargrove was about 5 feet 6 nches tall and Bunn was no more than 5 feet 3 inches tall. Both have dark skin.

"Crosson said he had never seen Bunn or Hargrave before, although he lived in the housing project where Bunn and Hargrave also lived. Crosson said that he knew Hargrave's mother and two of his sisters."

"On May 14, 2018, the prosecution dismissed the charges against Hargrave. The following day, May 15, 2018, the prosecution dismissed the charges against Bunn."

[All emphases added unless otherwise noted.]