Kerry Kotler - Mistaken ID, Perjury, Police Misconduct
Kotler, Kerry; sexual assault, burglary, robbery; NRE: mistaken witness identification, perjury/false accusation, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence
N4 [24] "In the matter of Kerry Kotler, the complainant was raped. A few minutes later, another person was raped nearby. The perpetrator of the second rape matched the description given by the complainant. The second victim was shown Kotler's photo but did not identify him, thereby permitting the argument that someone other than the accused also committed the earlier crime. The defense was not told about the second rape and the failure of the second victim to identify [25] Kotler. Further, the defense was not told that when the complainant selected Kotler's photograph, she said only that he looked like the rapist. Finally, the lead detective on the case destroyed both his original notes about the second rape and the original of the police report. Kotler learned all of this after the conviction. While the Brady violation was not the sole cause of the wrongful conviction, it might have contributed to it." [Latter emphasis original.]
from NRE synopsis (by the Innocence Project):
"Kerry Kotler was convicted for the rape, burglary, and robbery of the same victim on separate occasions in 1978 and 1981. A man in a ski mask and armed with a knife had raped and robbed her in her home. She could not identify him and reported only the burglary to the police. In 1981, she returned home to find a man who claimed to be returning for another visit, this time without a mask, who again raped and robbed her at knife point.
"The victim identified Kotler from a photo book, as well as by voice and at a live lineup. Testing by conventional serology could not exclude Kotler as the depositor of the semen on the victim's underwear. Kotler appealed based on many issues, but his conviction was affirmed.
"In 1989, Kotler succeeded in having the evidence sent to a laboratory for DNA testing. The amount of DNA, however, was insufficient and the evidence was returned. The evidence was then sent to Forensic Science Associates. PCR testing revealed that Kotler could not have been the depositor of the semen on the victim's underwear. The prosecution contended that the profile found could have been a mixture of a consensual partner and Kotler. The evidence was then sent to the Center for Blood Research, whose findings were the same as FSA's. The victim's husband was then tested and also excluded.
"In March 1992, based on these results, the defense filed to vacate the judgment. Besides the DNA results, the defense brought up the withholding of evidence including police reports that showed the victim's description to be quite different from Kotler and that the identification itself was not positive. The court held a hearing regarding the new DNA evidence, resulting in the prosecution joining the defense to vacate the conviction. The conviction was vacated on December 1, 1992. Two weeks later, the indictments were officially dismissed. Kotler had served eleven years in prison.
"He subsequently received $1.5 million in damages from Suffolk County. He also filed a claim for compensation in the New York Court of Claims and was awarded $1,512,000."
[All emphases added unless otherwise noted.]
