Scott Fappiano - False Accusation

Fappiano, Scott ; sexual assault, burglary; NRE: mistaken witness identification, false/misleading forensic evidence, perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, perjury by official

 

K16 "[Fappiano] spent more than 20 years in prison for the rape of a police officer's wife that he did not commit..."

"[F]orensic testing showed Fappiano was not the semen or saliva donor on certain items..."

"In December 1983, an armed man broke into the Brooklyn home of a woman; her husband, a police officer; and their six-month-old son. The unmasked, ungloved attacker tied the officer's hands, forced him against a wall and then raped his wife multiple times."

[Whereas one police report indicated the victim was shown some mug shots, others did not.]

"The defense never learned of the alleged viewing of photos.

"The parties dispute the level of certainty with which she identified Fappiano as the perpetrator.

"When the woman identified Fappiano in a lineup, he was arrested and indicted.

"The forensic results, which arrived post-indictment, excluded Fappiano as the semen donor on a white towel.

"The first trial ended in a hung jury, with 11 of 12 jurors voting for acquittal. In the second trial, jurors needed an Allen charge* before reaching a guilty verdict."

[* An Allen charge is an instruction given by the judge to a deadlocked jury, after prolonged deliberations, to try to reach a verdict.]

[One wonders if the sole juror who voted to convict in the first trial ever found out about the many years of grief he or she had caused this innocent man. (Of course, had the first jury voted unanimously to acquit, that would have been the end of Fappiano's ordeal. But with that sole holdout, a second trial was held, which did -- eventually -- result in a(n erroneous) guilty verdict.)]

"Fappiano engaged in rounds of unsuccessful conviction challenges and bids for further scientific testing. In 2005, DNA results showed jogging pants had the victim's DNA as well as DNA of a man who was neither Fappiano nor the husband.

"In 2006, the Brooklyn District Attorney's Office agreed to have the conviction and indictment vacated."

N4 [40] "[T]he accused spent 21 years in prison for a 1983 rape he did not commit. The rapist had smoked a cigarette. Cigarette butts were recovered at the crime scene; serology tests showed Fappiano was not the man who smoked them. However, because the crime scene unit had not immediately seized the cigarettes, and the scene was not properly safeguarded until they finally were, the prosecutor was able to argue that someone other than the rapist might have smoked the cigarettes after the crime. In addition, a bra that may have borne the criminal's saliva was not subjected to a test for saliva, although it was tested for sperm. Beginning in 1989, Fappiano asked that new DNA techniques be used to examine a small semen sample left by the rapist, but that sample could not be located until 2005. When it was then analyzed, it proved that Fappiano was innocent.

[92] "In 1983, [Fappiano] was convicted of rape and sodomy based, in part, upon eyewitness identification. Failure to perform additional blood type testing during initial investigation may have deprived [Fappiano] of key exculpatory evidence. People's consumption of specimen may have lessened the availability of blood samples for further post-conviction testing by the defense. Improper cataloging and retention of DNA and other forensic evidence lengthened period of wrongful incarceration. More sophisticated DNA testing which would have eliminated [Fappiano] as a suspect was unavailable at the time of trial." ,p> [526:620]; 2nd Dept. 4/4/88; affirmed

"Viewing the evidence in the light most favorable to the People, we find that it was legally sufficient to sustain the verdict...Moreover, we are satisfied that the verdict was not against the weight of the evidence...The complaining witness saw [Fappiano's (???) ] face at close range for an extended period of at least 40 minutes during the repeated attacks." [Also found lineup not unduly suggestive.]

NRE synopsis (by Ken Ottenbourg):

"At about 1 a.m. on December 1, 1983, an armed man broke into the Brooklyn, New York apartment of F.S., his wife, and their six-month-old son. The assailant used a telephone cord to tie up F.S., a New York City police officer, and then repeatedly raped and sexually assaulted T.S., who was 25 years old.

"The attack lasted about 40 minutes. The assailant did not wear a mask or gloves. He stopped the attack at times to smoke a cigarette and grab a beer from the refrigerator. He stubbed the cigarettes in an ashtray.

"After [the] sexual assault ended, the woman asked to use the bathroom. She got up, quickly put on a towel and ran out of the apartment to call for help, The assailant grabbed his jacket and the beer and ran off. T.S. returned to the apartment and untied her husband. They called 911 and also indicated that an officer needed assistance.

"T.S. would later testify that approximately 50 officers arrived at the apartment. 'It was just a zoo,' she would say. T.S. was taken to Lutheran Medical Center, where a doctor examined her and collected samples for a rape kit. She left the hospital a few hours later and was interviewed by Detective Clyde Dunbar . T.S. had gotten a good look at her assailant, and she described him to Dunbar as 5'10", 160 pounds, with dark hair and an olive complexion. She said he was oft-spoken, with jeans, a black leather jacket, and keys that kept jangling from his belt. Her husband was unable to give a description.

"It isn't clear whether T.S. looked at photos of possible assailants with Dunbar. His initial report said she didn't. Years later, Dunbar told investigators with the police department's Internal Affairs Bureau (IAB) that she did, but he would also later say that the IAB report was wrong.

"After meeting with Dunbar, T.S. met with Detective Frank Sciallo . He showed her mugshots from a file cabinet at the 68th precinct. T.S. did not identify anyone, and Sciallo would later say he told Dunbar about the viewing, although the results were not included in Dunbar's report.

"Around 8 a.m. on December 1, T.S. described the attack to Detective Helene Gottlieb , who was a specialist in sex crimes and became the lead investigator. Gottlieb would later say that T.S. was very precise and detailed in her description of the assailant. In her report, Gottlieb wrote that T.S. said that the assailant 'pulled his pants down' and that '[e]very time after every sex act, [the assailant] would zipper his pants up and then unzip them. There were a lot of keys jingling on the left side of his pants.'

"Gottlieb and T.S. then looked at photos, which were organized by height, age and race. T.S. selected one photo, put it aside, and then selected another photo. They were both of 21-year-old Scott Fappiano. Sciallo would later give conflicting accounts of whether T.S. looked at a photo when she was with him. In one account, she said she did. In the other, she said she didn't.

"Fappiano was already known to Gottlieb and her colleagues in the sex-crimes unit. He had been previously arrested on a charge of rape and acquitted at trial, in part because the victim in that case had not mentioned Fappiano's extensive tattoos on both legs. Gottlieb's report detailing her interview with T.S. did not include any reference to tattoos. In addition, Fappiano was only 5'5", much shorter than T.S.'s description of the assailant.

"On December 5, 1983, T.S. and F.S. looked at photo arrays, after an assistant district attorney mentioned another man with a criminal record who looked similar to Fappiano. T.S. looked at an array that excluded Fappiano and included the other man. She did not select anyone. F.S. looked at an array that included both men. He selected Fappiano.

"The police conducted a live lineup the next day. Fappiano came in voluntarily, and T.S. selected him as the assailant, noting his position as number 4 in the six-person lineup. Prior to F.S. viewing the lineup, Fappiano switched seats. F.S. first selected number 4, but his selection was crossed out and switched to another number. T.S.'s viewing was recorded. F.S.'s was not."

[Note that F.S., the husband, first selected No. 4, which is the position Fappiano was seated in when the wife-victim selected him -- but was not Fappiano's seating position when F.S. (initially) selected No. 4 in the lineup he viewed. That strongly suggests that the wife -- or perhaps someone else present -- told him to 'select No. 4.' And then , his first selection is inexplicably crossed out and switched to another -- at a lineup that was not recorded . This whole thing reeks of bad faith.]

"[T]he police collected evidence from the crime scene on two separate visits. The first occurred at 3:25 a.m. on December 1. Two officers took photographs and dusted for fingerprints, collecting 12 usable prints. They identified T.S. as the source of two of the prints. Fappiano was excluded as the source of the others.

"Later that day, T.S. and F.S. returned to the apartment with Gottlieb. They collected a bottle opener and beer cap, the jogging pants worn by T.S. prior to the rape, a bra the assailant had sucked, a brown towel and a white towel, and the bed sheets. They also collected five cigarette butts. Four were Newports, the brand smoked by T.S. and F.S. The fifth was a Salem. Gottlieb would note in her report: 'Cigarette butts allegedly smoked by the perpetator were recovered.'

"The police department's crime lab conducted forensic testing on this evidence. At the time, DNA testing was unavailable, but forensic analysts could test for the presence of semen and also for blood types.

"The New York Police Department tested for the presence of semen in rape kits by conducting an acid phosphatase test. While it was possible to just test part of the sample, the department's general practice was to submerge the entire sample into the acid phosphatase. While detecting the presence of semen, this method corrupted the sample and prevented blood typing. Dr. Robert Shaler, the director of seology in the city's Office of the Chief Medical Examiner, had warned the police department about the flaws in this approach, but the practice persisted.

"A forensic analyst tested the rape kit, the jogging pants, bed sheets and bra by submerging samples in acid phosphatase. He reported that the testing showed the presence of sperm in the rape kit and the jogging pants. The white towel also showed the presnce of sperm, although its testing didn't consume the entire sample."

"After Fappiano's indictment, Shaler conducted the blood testing. He reported that the saliva on the cigarettes and the semen on the towel were blood type A, which included F.S. and excluded Fappiano, who was blood type O. The jogging pants did not have sufficient material to test based on the technology available at that time."

"There was no forensic or physical evidence connecting Fappiano to the attack. T.S. testified...that the white towel, which excluded Fappiano as a contributor to the blood sample, had never been touched by the assailant...There was nothing in Gottlieb's notes indicating the irrelvance of the white towel, but T.S. testified that she and Gottlieb had argued briefly when the detective was collecting evidence, and that she had told Gottlieb that that white towel had nothing to do with the crime." ,P> "Two detectives testified that the lack of evidence connecting Fappiano to the crime scene was due to contamination during the investgation. There had been too many officers in and out of the apartment, and some of them had been smoking. It could have been their cigarettes in the ashtray. They said the cigarettes, which had been collected after the apartment had been dusted for fingerprints, contained no dust. That indicated contamination. In addition, T.S. and F.S. both testified that the assailant didn't actually smoke a whole cigarette, but only took a few puffs from a Newport, which also meant none of the butts were his."

[Wait a minute: The husband is tied up, and the wife is being repeatedly sexually assaulted. And yet, they're both sure that the assailant 'only took a few puffs from a Newport? ]

[Now, let's step back for a minute, and remember why there were so many police swarming the apartment, and thus contaminating the crime scene -- to the decided disadvantage of Scott Fappiano. When the husband/wife called 911, they indicated that 'an officer needed assistance.' That was what brought the swarm of contaminating policemen. It was grossly inappropriate for them to tell that to 911; not only because it virtually guaranteed the crime scene would be compromised, but also, because an 'officer in need of assistance' call should be made only in cases where an officer is in immediate danger. Given that the intruder had fled and the wife had untied the husband, there no longer was any immediate danger to anyone.]

"The jury deliberated for two days, then said it was deadlocked, 11-1 for acquittal. [The judge] declared a mistrial."

"Fappiano's second trial began in August 1985. While most of the testimony was consistent with the first trial, there were some important differences.

"First, T.S. denied ever having a conversation with Gottlieb about the white towel. Now, she said she didn't realize the police had this item until a prosecutor told her.

"At the first trial, Fappiano's attorney had cross-examined Gottlieb about the lineup card with the crossed-out numbers. At the second trial, Gottlieb also testified that she had not tampered with the card, but Fappiano's attorney was unable to cross-examine Gottlieb as effectively, because the lineup card had gone missing."

[ More bad faith.]

"The jury deliberated for nearly three days and initially deadlocked...The jury convicted Fappiano on August 15, 1985...Fappiano later received a sentence of between 20 years and 10 months and 50 years in prison."

"The first exoneration in the United States based on DNA evidence occurred in 1989. That year, Fappiano received a court order to conduct DNA testing on the physical evidence in his case. The police department could not produce the following pieces of evidence: the white towel and the brown towel, the bed sheets, the bra, and the cigarette butts. There was no paperwork indicating the material's destruction. The district attorney's office still had the rape kit and the jogging pants."

[Yet more bad faith.]

"As DNA testing technology improved, Fappiano continued to seek testing, but he was told the evidence in his case was no longer available, even though there were no records that the items had been destroyed.

"In 2003, the Innocence Project began representing Fappiano. In 2005, attorneys with the organization located the DNA extract from Fappiano's case...Analysts with the Office of the Chief Medical Examiner tested the sample obtained from the jogging pants. It contained a male and female contributor of genetic material. T.S. was the female. F.S. and Fappiano were excluded as contributors of the male sample.

"On October 6, 2006, the Kings County District Attorney consented to a motion to vacate Fappiano's conviction. His charges were also dismissed that day, and he was released from prison.

"'It is no small miracle that Scott is here today,' said Nina Morrison, Fappiano's attorney with the Innocence Project. 'Had Scott's case depended on the evidence storage and collection inventory procedures of the New York City Police Department, he would still be in prison today.'

"In 2007, Fappiano filed a civil-rights lawsuit...against the City of New York and several of the officers involved in his case.

"The lawsuit said that the police had created its claim of crime-scene contamination after the forensic evidence had excluded Fappiano and that Gottlieb had suborned perjury by getting T.S. to change her testimony. The lawsuit also said that Sciallo had told prosecutors that T.S. hadn't picked Fappiano when she looked at photos that second time, and that prosecutors failed to disclose that information to Fappiano's defense. Judge Sandra Townes would later choose not to rule on whether this was misconduct, because the prosecutor was not a defendant in the lawsuit.

"Townes dismissed Fappiano's lawsuit against the city on January 7, 2015. Separately, Fappiano received $2.5 million in state compensation in 2009 for his wrongful conviction."

"Fappiano died in December 2016 after battling lung cancer."

[Thus, it appears that the actual perpetrator of these crimes was never caught.]

[All emphases added.]