Johnnie O'Neal - Mistaken Witness ID

O'Neal, Johnnie; sexual assault, robbery; NRE: mistaken witness identification, perjury/false accusation, police officer misconduct, withheld exculpatory evidence

196 F.Supp.3d 421; S.D.N.Y. 7/21/16; civil suit

"On January 29, 1985, O'Neal was convicted of rape...and robbery...At approximately 11:00 P.M., on March 16, 1984, a woman referred to as M.R. was raped on the roof of her apartment building at 865 Columbus Avenue. When M.R. attempted to leave the elevator in her apartment building, a man threatened her with a knife and stole her money and jewelry. He proceeded to force M.R. to the roof where he ordered M.R. to the floor, covered her face, removed her clothing, and raped her...M.R. described her assailant as a thin, African-American male in his 20s...She did not indicate that her assailant lived in her building or that he had a mustache or missing front tooth...In the months preceding the March 1984 rape, three other rapes occurred, two on the rooftop of 865 Columbus Avenue and one across the street at 830 Columbus Avenue...The three prior rapes occurred after midnight and shared similar characteristics -- namely, the victim was intercepted in the elevator and threatened with either a gun or a knife, robbed of valuables, forced to the roof, and raped...The victims identified their respective attackers as a thin, African-American male. The ages ranged from 28-30 to 28-29 to early 20s.

" Jose Morales ...was assigned to investigate the rape of M.R. He allegedly noted that the rapist had the 'same m.o. and dialogue' and was described similarly to the assailants in the three other rapes...On March 27, 1984, Morales interiewed M.R.'s mother, B.M., who told Morales that six days earlier, B.M. and M.R. had identified O'Neal as the rapist...B.M. told Morales that on March 21, 1984, M.R. told B.M. that she saw her rapist from the window of her apartment on the 10th floor* ...B.M. told Morales that B.M. followed the person M.R. identified for six hours and that he returned to 865 Columbus Avenue...B.M. told Morales that B.M. called M.R. from a pay phone and told her to come downstairs to identify the person B.M. had been following. B.M. told Morales that M.R. confirmed that the person was her assailant and that B.M. followed the person to the elevator and saw him go into an apartment on the 5th floor.

[* It is impossible for anyone to identify a person on the street from some 80-100 feet above. Even with binoculars or a telescope, the person on the street would have to be craning his neck, staring directly up at the person looking down from the 10th floor, so that the latter could see his face straight on. There are actually several cases in this section where witnesses/detectives make similarly preposterous claims. Even a fourth- floor apartment would likely be too far up to make a reliable identification.]

"M.R. also told Morales that she saw a person she believed to be her assailant from her 10th floor window on March 20, 1984, and again on March 21, 1984, when she told her mother. M.R. and B.M. identified O'Neal as the assailant on March 31, 1984, in a photo array.

"Before July 2, 1984, an unidentified police officer placed O'Neal's photograph in a photo array and displayed it to C.H., the victim of one of the three other rapes. C.H. stated that she did not see her assailant in the array, and that she knew O'Neal and O'Neal was not the person who raped her...O'Neal was also placed in a lineup for another one of the rapes, and the victim did not identify him as the assailant.

"Approximately two weeks before the trial commenced on January 18, 1985, the ADA assigned to O'Neal's case requested that Morales visit M.R.'s 10th floor apartment to determine if facial features of individuals on the street could be discerned from the window...Morales allegedly informed the ADA before the trial that he verified that facial features were discernible from the 10th floor window...During O'Neal's trial, Morales testified that he could see people's faces on the street from M.R.'s window on the 10th floor.

[ Baloney. See above.]

"In 2008, the LAS [Legal Aid Society] commenced an investigation into O'Neal's criminal convictions. The LAS investigation included an interview of B.M., who admitted that she suspected O'Neal because she believed O'Neal had raped another woman in the same building. B.M. denied following O'Neal for six hours to learn his identity...The Conviction Integrity Unit of the NYCDA reinvestigated O'Neal's conviction at his request...The NYCDA...interviewed M.T., who stated that she did not have any recollection of identifying her attacker from the 10th floor window or of her mother...following the attacker...The NYCDA investigators also determined that they could not see facial features from the 10th floor window ...The re-investigation also uncovered evidence that another person confessed to the rape of M.R., and could also have committed the other three rapes."

"On May 28, 2013, O'Neal moved for an order vacating the judgment of conviction and dismissing the indictment...The NYCDA joied the application...On June 21, 2013, the Honorable Marcy L. Kahn issued an order vacating O'Neal's rape and robbery convictions and dismissing the underlying indictment with prejudice."

NRE synopsis (by Maurice Possley):

"[The victim] said her attacker said he had just gotten out of prison.

"The victim refused to go to a hospital and no rape kit was ever prepared."

"Three similar rapes had occurred in the vicinity the past year, two of which were on the same apartment building roof. The victims of those attacks also reported that the rapist was wearing a leather jacket and armed with a knife, and that he claimed to have been recently released from prison...[O]ne victim told police she knew O'Neal and that he was not her attacker -- but this information was not provided to O'Neal's defense lawyer."

"While in prison, [O'Neal] refused to admit his crime and was denied parole several times before he was finally released in 1998. He was returned to prison on several occasions for parole violations..."

"The victim's mother was interviewed in May 2008 and denied that she had trailed O'Neal around the neighborhood for several hours."

"[Around 2011], O'Neal's lawyers...provided a letter that O'Neal had received while in prison a letter claiming that a man named 'Pee Wee' had told people that he had committed the rape for which O'Neal had been convicted.

"The Conviction Integrity Unit investigation confirmed that the victim's mother disavowed her trial testimony about her trailing O'Neal and the circumstances of his identification. Housing records for the apartment building showed that the victim had lived in the building as far back as 1977 -- not the few months that the victim claimed at trial. This undermined the victim's claim that she had never seen O'Neal prior to the rape, because O'Neal had lived in the building virtually his entire life.

"The prosecution identified 'Pee Wee' as Gregory Smith, a drug dealer who had since died. Smith lived near the apartment building, and owned a leather jacket and a knife matching the description given by the victim who accused O'Neal and the victims of other unsolved rapes. Smith also bore a physical resemblance to O'Neal."

"O'Neal filed a federal civil rights lawsuit seeking compensation, but it was dismissed. He also filed a claim in the New York Court of Claims and settled for $4.5 million."

[All emphases added unless otherwise noted.]