Robert Fennell - Perjury / False Accusation

Fennell, Robert; murder; [not on NRE list] : perjury/false accusation

M35 [518] "Robert Fennell...was convicted of second-degree murder, together with his co-defendant Joseph Perry, after a jury trial in New York State court. The murder conviction stemmed from the fatal shooting of John Williams on February 1, 1984, outside a Manhattan building well-known as a center of cocaine freebasing activity...and a site where Perry and Fennell both worked to provide security to the drug operation. The prosecution's case against Fennell and Perry hinged entirely on the testimony of a single purported eyewitness, John McKoy, 'a former employee of the base house' and a self-confessed cocaine addict with a lengthy criminal record. No doubt aware of the frailties of its case, the prosecution dangled a generous plea offer before Fennell. Fennell rejected the offer and insisted on his right to proceed to trial.

"At trial, McKoy testified that after a dispute in the base house that night, Perry and Fennell escorted Williams from the building. In doing so, Perry and Fennell allegedly resorted to punching Williams and dragging him outside. From his location on the stoop of the base house, McKoy supposedly observed Fennell withdraw a pistol and fire twice at Williams. This prompted Williams to flee, at which point Perry grabbed the weapon from Fennell, gave chase, and fired four shots at Williams. After Perry's first two shots, according to McKoy, Williams fell to the ground.

"The threads holding McKoy's story together began to unravel on cross-examination. Contrary to his initial assertions, McKoy ultimately admitted that he was receiving leniency on a pending cocaine possession charge in exchange for cooperating in the Fennell-Perry matter. More notably, defense counsel discredited McKoy by juxtaposing his statements at trial against those from his original police interview. Unable to reconcile the two accounts, McKoy claimed to have lied regarding certain, seemingly salient details that he had provided earlier to the police -- 'that he saw Perry pistol-whipping Williams,' that 'Fennell had fired three shots and Perry one,' and [519] that he was standing beside a liquor store at the time of the incident. Still, the jury apparently believed McKoy's depiction of the incident and found Fennell and Perry guilty.

"A startling turn of events then transpired. Following the verdict but prior to sentencing, Perry and his attorney, William Mogulescu, met with Fennell's lawyer, Howard Jaffe. During this meeting, Perry admitted that he had acted alone in murdering Williams, and even expressed a willingness to execute an affidavit to that effect. Mogalescu informed Perry that he had absolutely no obligation to agree to this; he could still invoke his privilege against self-incrimination given that he had not yet been sentenced. The ramifications of any admission of guilt on the part of Perry, Mogalescu explained, could be disastrous for his sentence, his appeal, and any potential retrial in the event of an appellate reversal of his conviction. Although aware that he was 'sinking himself,' Perry completed the affidavit because he knew that Fennell was innocent. In March 1985, Perry executed the affidavit, which, in turn, became the crux of a post-conviciton motion to set aside the verdict against Fennell. After Perry completed the affidavit and Fennell's attorney submitted the moton, the court sentenced Perry to the maximum term: twenty-five tears to life imprisonment."

[Thus, Mr. Joseph Perry, despite being a (self-confessed) murderer, evinced far more strength of character than the police and prosecutor who brought this case, the judge who presided over it, and the members of the jury, who apparently were more interested in going home than in dispensing actual justice.]

"The court held an evidentiary hearing on Fennell's motion in May 1985. At the hearing, Perry reiterated the statements he made in his affidavit: that he had shot Williams and that he had operated alone. As for Fennell, Perry declared at the hearing that Fennell was not on the premises at the time of the shooting. Security routines at the base house dictated that guards work regular, eight-hour shifts, with Fennell scheduled for the midnight-to-eight a.m. stretch. Not only was Fennell nowhere to be found at the time of the Williams murder, Perry testified, but neither was McKoy. [FN130:] [520] In addition to perry, another eyewitness appeared on Fennell's behalf at the post-verdict evidentiary hearing, a man named Charles Gaillard, who lived in the vicinity of the base house. Gaillard testified that he had observed Perry shoot Williams and that Fennell was not at the scene. The prosecution's case at the hearing consisted of a single witness, Harry Martin, 'another member of the base house security' squad, who did little to bolster the prosecution's case and, actually, largely corroborated Fennell's evidence. In particular, Martin claimed to have not seen Fennell during the night in question and recalled that Fennell was slated for the midnight-to-eight a.m. security stint, which started approximately an hour and a half after, by all accounts, Williams had died."

[from FN130:] "What Perry's testimony did not adequately explain was why he had failed to come forward during the trial to clear Fennell's name. Mogulescu, Perry's attorney, supplied this essential piece of the puzzle. After his client testified at the evidentiary hearing, Mogulescu took the rare step of testifying himself and described the circumstances that led to Perry's decision to remain silent at trial...On the stand, Mogulescu asserted that Howard Jaffe, Fennell's lawyer, approached him prior to trial and told him that Fennell was not at the base house the night of Williams's death, let alone a participant in the murder...Mogalescu then consulted Perry, who verified Jaffe's account and offered to testify on Fennell's behalf at trial...Wary of jeopardizing his client's case, Mogulescu advised Perry that testifying would doom his own interests if they were tried jointly...To that end, Perry executed an affidavit -- prior to trial -- indicating his intention to testify in Fennell's defense if their trials were severed...The court, however, denied the severance motion and consequently Perry never testified during the joint trial."

"Despite the compelling evidence of innocence, the trial judge denied Fennell's motion to set aside the verdict in June 1985 -- without issuing an opinion, making any findings of fact, or commenting on the credibility of the witness -- and sentenced Fennell to fifteen years to life in prison. The judge's explanation for rejecting the motion included a few cryptic statements that the jury verdict was 'a correct one' and that Fennell had erred at trial in not calling 'other witnesses available to [him].' For fifteen years, that decision, in essence, represented the final word on the conviction of Robert Fennell, who had always maintained his innocence and insisted that he was with his girlfriend, Anita Gilmore, at the time of the murder.

[521] "Without any promising post-conviction option in the state or federal courts, we set our sights on parole, the only other avenue on the horizon.

[522] "[W]e decided to submit a letter to the parole board on Fennell's behalf..."

"Much to our delight, the board granted Fennell parole...I am convinced that without the intervention and commitment of the Second Look program, Fennell would be languishing in prison to this [523] day. His steadfast plea of innocence, a claim validated through an extensive investigation by a team of pro bono students and law professors, would have likely and ironically served to prolong his imprisonment."