Kian Khatibi - Perjury / False Accusation

Khatibi, Kian; assault; NRE: perjury/false accusation, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

[736:238]; 2nd Dept. 12/31/01; affirmed

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

from NRE synopsis (by Maurice Possley):

"On January 11, 1998, 22-year-old Kian Khatibi got into a shouting match with another man at the Lock, Stock & Barrel, a bar in Pleasantville...Kian was ejected by a bouncer, although Kian's brother, Kayvan, told the bouncer that the other man, who was taller and heavier, instigated the incident.

"Kian waited outside for a friend to leave the bar so he could get a ride to his home in Yonkers. When his friend did not come out, Kian went to a convenience store where he bought candy and coffee, then walked back toward the bar.

"He came upon four men shouting and shoving each other. One of them was the man who shoved him earlier in the bar, and another was Eric Freud, who lived with his brother Kayvan.

"When the man who shoved him earlier shouted at him, Kian ran to the Pleasantville police station. A video surveillance camera showed him entering at 1:12 a.m. He asked police for a ride to the train station because he thought some men were chasing him.

"At about that time, the police received a call of a fight and left the station. Kian went to a friend's home and called his sister, who picked him up and drove him to Yonkers.

"Police arrived at the scene of the fight, a few doors from the bar, and saw William Boyar and Brian Duffy walking down the street. Both were heavily intoxicated and bleeding, but only when an officer pulled up their bloody shirts did they realize they had been stabbed. Both men were taken to the hospital. Boyar, who turned out to be the man who confronted Kian in the bar, was treated and soon released. Duffy was hospitalized for nearly two weeks.

"On February 4, 1998, Kian learned that a warrant for his arrest had been issued. Accompanied by a lawyer, he went to the police station to surrender. He was immediately arrested for the stabbings.

"On May 28, 1998, Kian was indicted on charges of assaulting Duffy and possession of a weapon. The grand jury did not indict him for assaulting Boyar.

"Kian went on trial in Westchester County in February 1999. His brother, Kayvan, told the jury that Boyar had instigated the incident inside the bar, but that Kian was ejected. Kayvan said that when he left the bar, he did not see his brother, Boyar or Duffy and was not involved in the fight that left the two men wounded.

"Boyar and Duffy both testified and neither man could identify Kian as the man who stabbed them, but Duffy said he believed Kian was his assailant.

"Kian testified and denied any involvement in the crime.

"Kian was convicted on both counts by the jury on February 10, 1999, and was sentenced to a prison term of seven to 14 years.

"His conviction was upheld on appeal, and in 2006 he was denied parole because he refused to admit his guilt. During his incarceration, Kian filed numerous petitions and dozens of Freedom of Information Act requests, all aimed at obtaining information proving his innocence.

"On November 17, 2007, during a Khatibi family dinner, Kian's father, George, remarked that he felt badly because Kian was not there. At that moment, Kayvan began weeping and admitted that he himself had stabbed both men.

"He said that he and his roommate, Eric Freud, had been involved in a different fight earlier on the day of the crime. He said that he took a knife with him to the bar for protection. After the stabbing, Kayvan said he threw the knife away. It was never recovered.

"Kayvan had battled drug addiction for years and recently had been released from a rehabilitation facility. He told his family that he had not come forward with the truth because he feared going to prison.

"Based on this confession, a motion was filed to vacate Kian's convictions and in July 2008 a hearing was held. Kayvan took the witness stand, but asserted his Fifth Amendment right against self-incrimination and declined to testify abut the confession. Family members, however, testified to Kayvan's confession.

"On September 23, 2008 -- Kian's 33rd birthday -- Judge Barbara Zambelli vacated Kian's conviction and ordered him released without bail.

"On December 2, 2008, the Westchester [DA's] Office dismissed the charges.

"In 2010, Kian filed a federal wrongful conviction lawsuit against the Village of Pleasantville and two police officers who investigated the crime.

"The lawsuit charged that the officers rigged Duffy's identification of Kian -- though Duffy was so intoxicated he could not remember much of what happened that night -- by presenting Duffy with a photo lineup that included Kian's photo along with a pre-printed declaration that he had identified Kian.

"The lawsuit charged that the officers suppressed the videotape of Kian entering the police station at 1:12 a.m. because the fight was reported at 1:17 a.m. They also punched Freud during an interrogation to get him to implicate Kian in the fight and threatened the bouncer with future trouble if he did not say he saw Kian walking down the street to confront Boyar and Duffy outside the bar.

"The lawsuit also alleged that not long after the crime, Kayvan had told the police that he -- not his brother -- was involved in the fight, and the officers threatened him, told him to keep his mouth shut and did not make a record of the statement.

"In addition, the lawsuit charged that police recovered a bloody hat and shirt from the scene, but never booked them into evidence or submitted them to the crime laboratory for analysis.

"In May 2011, Kian graduated with honors from New York University. In 2012, he was accepted as a law student at Benjamin N. Cardozo School of Law. He received substantial scholarships to both institutions.

"In February 2012, the New York State Court of Claims found that Kian had proven his innocence and the claim was settled for $2 million. The federal lawsuit was settled in 2018 for $5 million. By that time, Kian had graduated law school, passed the New York State bar exam and established a law practice in New York City."

[All emphases added unless otherwise noted.]