Blog Posts

Reginald Cameron & Armond McCloud - Police Misconduct

Wed, 16 Oct 2024 03:29:36 +0000

Cameron, Reginald AND McCloud, Armond, Jr. ; murder; NRE: plea (Cameron only), police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, misconduct in interrogation of exoneree

Suggestibility issues

[633:447] [both]; Queens Cty. Ct. 10/2/95; motions granted + denied [Judge Steven W. Fisher]

"Four days [after the crime], detectives investigating the homicide were informed that an individual, arrested on an unrelated robbery, claimed to have information about the crime.

"The individual told detectives that he overheard a conversation in a local candy store indicating that a person named Junior, who drove a light-colored Oldsmobile with the words 'Head Crack' or 'Headcrackers' on the front window, was responsible for the homicide. The informant added that Junior had two good friends named Reggie and Kendo.

"Apparenty recognizing the names, the detectives secured photographs of Reginald Cameron and Kendo McDonald, who were suspected in prior robberies in the building where the homicide occurred. Both were believed to be wanted on pending robbery complaints and, in fact, a wanted poster for Cameron was on dislay in the Security office at Lefrak City [Development, where the crime took place]."

[Detectives Joseph Croce, Mary Ann Herbert, Ruben Martinez, and Carlos Gonzalez, with the latter being in charge of case. ADA Kim Marcus.]

[959:9] [McCloud]; Queens Cty. Ct. 8/10/12; motion to vacate denied [Judge Robert C. Kohm]

"Late in the evening of August 4, 1994, an exchange student from Japan, named Kei Sunada, was returning from work to his residence in the Lefrak City Housing Development. He would never safely reach the refuge of his apartment, as he would be fatally shot in the head by [McCloud] [???] during a botched robbery on the 4th floor stairwell of his building. Upon entering his building, he was followed into the elevator* by [McCloud] and an individual named Reginald Cameron, while a third individual, Kendo MacDonald, waited in the lobby. During the ensuing robbery attempt that commenced after Mr. Sunada exited from the elevator, a physical altercation developed between the victim and the perpetrators, culminating with [McCloud] discharging his weapon at Mr. Sunada."

[* That's very unlikely. As we shall see below, Sunada routinely used the stairs. ] "For his part, [McCloud] alleged that the shooting was accidental. In a written statement given to the police, [McCloud] wrote: 'Me and Reggie and Kendo when (sic) up in the building and we seen a Chinese man and we all got. . .off and he ran out the elevator and started to fight back and the gun went off by mistake. . .' During the course of the next 18 years, [McCloud] would claim that this statement, as well as a subsequent statement memorialized on videotape, were untrue, and were illegally obtained by the police because they 'tricked' him into confessing. In fact, he would later claim that he was not present at the time of the shooting, but was instead with his girlfriend driving back to the Bronx.

"[McCloud] proceeded to a jury trial before the Hon. Robert J. Hanophy and was convicted...[McCloud's] judgment of conviction was affirmed by the Appellate Division..." [Federal writ also denied.]

[Subsequent DNA testing was inconclusive. McCloud sought further testing, but court, medical examiner said was not technically possible.]

from NRE synopsis (by Maurice Possley):

"Police found [the victim's] knapsack, with a black shirt hanging out, less than a foot from where Sunada was found. A discharged shell casing was found on the landing. A deformed bullet was recovered from the fifth-floor landing. A bullet impression was noted on the wall near the stairs leading up to the fifth floor.

"At the time, Sunada was working at a Japanese restaurant, saving money to enroll in a Formula-One race car driving school in California. He was known to use the stairs instead of the elevator to reach his apartment* because it was good exercise to go along with his kick-boxing workouts."

[* Recall that, above, the (false) confession that McCloud was apparently 'tricked' into making stated that Sunada "was followed into the elevator" by McCloud and Cameron. But when the police put those words into McCloud's mouth, they didn't know that Sunada didn't use the elevator.]

"Four days after Sunada was shot, on August 8, 1994, 20-year-old Armond McCloud, Jr. and 19-year-old Reginald Cameron became suspects based on a statement from a 16-year-old boy... who was arrested for an unrelated robbery. Police said [he] signed a statement saying he was at a candy store the day after the shooting when he overheard people saying that the gunman was known as 'Headcrack.' [He] knew Headcrack, who he said drove an older model Lincoln* with the word 'Headcrack' across the top of the windshield, and was also known as Junior. The term 'headcrack' referred to a winning throw in the dice game called Cee-Lo."

[* Recall that the above (1995) county court decision stated that Junior/Headcrack drove an Oldsmobile. ]

"[The 16-year-old] said the gunman hung around with someone he knew as Reggie. Police showed him a photograph of McCloud and [he] identified him as Headcrack. [He] identified a photograph of Cameron as Reggie. He also identified a photo of Kendo McDonald as someone who associated with Cameron and McCloud. In November 1993, nearly a year earlier, McDonald and Cameron had been arrested for robbing a man at gunpoint in the development. The charge against Cameron had been dismissed; McDonald was convicted and was on probation.

"At about 7 p.m. on August 8, 1994, police found McCloud, Cameron, and McDonald and brought them in for questioning. Placed in separate rooms, none of them made any admissions during the first four hours with six to eight different detectives going in and out of the interrogation rooms.

"At about 1:45 a.m., McDonald signed a statement saying that he was in the lobby with McCloud and Cameron when they saw Sunada at the elevator. He said McCloud and Cameron 'told me to chill.' He said that Sunada got into the elevator* and 'they got on the elevator with him. I waited downstairs at the back entrance smoking a cigarette.'"

[* Again, that's highly doubtful, given that Sunada routinely used the stairs for exercise.]

"McDonald said that Cameron and McCloud ran down the stairs. He said he saw McCloud put a gun in his waistband. McDonald said he ran with them away from the building. Cameron threw away a wallet as they ran, he said. The following day, according to McDonald, Cameron said that Sunada was fighting McCloud as McCloud was trying to search him. McDonald was subsequently released."*

[* Let's remember a couple of things here: Both Cameron and McDonald had been arrested for an earlier gun-involved robbery at the LeFrak development. Charges against Cameron were later dropped, but McDonald was convicted, and was on probation. Due to the latter, McDonald had every incentive to make sure not only that he wouldn't have to go to jail for his previous conviction, but also, for the current, far more serious robbery and murder charges. But also, detectives may resent that Cameron 'skated' on the earlier charges.]

"Detective Carlos Gonzalez and Detective Marianne Herbert were the last detectives to interrogate Cameron. Herbert later testified that Cameron eventually gave a statement saying that he and McCloud had gotten into the elevator with Sunada. As the elevator rose, Sunada sensed he was about to be robbed, panicked, and pushed the button for the fourth floor. When the door opened, Sunada got out, followed by McCloud and Cameron. A struggle occurred and Sunada was shot.

"Detective Gonzalez would later testify that he then went over the statement with Cameron twice and then, at 3:33 a.m., Cameron signed a written statement. The statement said that Cameron was talking to a girlfriend when McCloud called him into the elevator. Sunada was there. When the elevator stopped on the fourth floor, 'Junior [McCloud] then approached the man for his money. The man started moving and Junior went for his pockets. That's when the man got louder and louder. Then, all of a sudden, I saw two flashes,' the statement said.

"'I heard no noise,* but the man fell down,' the statement said. 'I then tried to close the elevator door because I knew nothing about [McCloud] having a gun or his intentions of robbing the man.' The statement said McCloud got back in the elevator and they fled. 'I'm sorry that the events went the way they did, but I had no knowledge [that] any of this was going to happen.'"

[* The only way that could be true is if the gun had a silencer, which is extremely unlikely.]

"Shortly after 5 a.m., McCloud signed a statement saying that he and Cameron and McDonald all got into the elevator. The statement said that when Sunada got off, he 'started to fight back and the gun went off by mistake.'

"At 8:10 a.m., McCloud gave a videotaped statement to a prosecutor. In this interview, McCloud said that Cameron gave him a gun as McCloud got out of the elevator. He said he was pointing it toward the floor when Sunada had made a defensive karate kick, which 'nicked' McCloud's hand, causing the gun to accidentally discharge. He said at first that Sunada was not carrying anything, but then said -- incorrectly -- that Sunada was carrying a grocery bag. The interview ended at 8:41 a.m., about 13 hours after McCloud was first arrested.

"Cameron also agreed to videotape the statement with an [ADA], which took place shortly after 9 a.m. Cameron gave an uninterrupted narrative that tracked the written ststement, including seeing two muzzle flashes. However, when questioned by the prosecutor, Cameron's answers were vague, inaccurate or unverifiable. He could not, for example, say what time the crime occurred, saying 'just started to get late.' He could not provide a description of the victim, except to say -- incorrectly -- that 'I think I remember him having a plastic bag with him.'"*

[* Remember: Cameron and McCloud had been separated. And yet, both somehow stated -- incorrectly -- that Sunada was carrying a plastic bag. Guess who that idea came from.]

"Defense attorneys for McCloud and Cameron filed motions to suppress the confessions. Testimony was taken...in December 1994. Cameron testified that he asked for a lawyer when he was first brought to the station, but detectives ignored him. He said that detectives showed him a wallet in a plastic bag, and said his fingerprints were on it. Cameron also testified: 'They said to me that I should implicate Armond McCloud because a third-party, Kendo McDonald, was implicating me and if I had any smarts that I would implicate Armond. . .they told me all I had to say I was present and I witnessed Armond shoot the deceased.'

"He said that eventually he told the detectives what they wanted to hear. His first attempt was insufficient 'because I wasn't able to tell them how many shots were fired and if the deceased had a bag or not.' He said he signed his Miranda warning card just before giving the videotaped statement and not before he gave his oral and written statements.

"Several detectives, including Herbert and Gonzalez, denied that Cameron asked for a lawyer and denied that he was not given his Miranda warnings until just before the videotaped statement.

"In March 1996, the motions to suppress the confessions were denied.* The men were tried separately. On March 11, after a jury was selected, McCloud's trial opened in Queens...Witnesses included Detective Gonzalez, who testified about McCloud's confession. A medical examiner testified that Sunada was shot once in the face and the bullet exited the back of his head."

[* Almost certainly by the presiding trial judge, Robert J. Hanophy. This was over a year after the pre-trial hearings were held, which is a very long time for a court to take in making a suppression ruling.]

"The defense called Evelyn English, the mother of McCloud's girlfriend. She testified that her daughter gave birth on August 1, 1994, and came home with the baby on August 3. The boy was her first grandchild, English said. She told the jury that McCloud came over on August 4. English told the jury that McCloud and her daughter went out during the evening and that they returned about 11:15 p.m., accompanied by McCloud's friend whom she only knew as 'Reggie.' She said McCloud left about 11:20 p.m. from their home in the Bronx -- 13 miles from Lefrak City where Sunada was shot at about the same time."*

[* Recall the beginning of this synopsis, which notes that the shooting occurred 'shortly before midnight.' Because that's even less of a precise time than English's 'about 11:20 p.m.,' we cannot say exactly how much time McCloud would have had to get from this Bronx apartment to LeFrak City in Queens. But, something on the order of 20 minutes seems unlikely. The two locations were separated by 13 miles -- presumably, 'as the crow flies.' But we're talking about New York City here. Traveling by car (as noted above), it seems very unlikely he could make it to a whole different borough in so short a time. (And if Ms. English were -- let us say -- less than accurate about all this, why wouldn't she come up with a tighter alibi for McCloud?)]

"McCloud's defense attorney Reginald Towe argued during closing argument that the confession was false. He noted that Sunada's body was found in the stairwell where the spent bullet and expended shell casing was found. He also said that a lack of blood in the hallway showed the shooting was not there as McCloud's confession stated.

"'That's the problem with this case from the very beginning,' Towe declared. 'They want to make the facts they know fit the statement that they finally extracted from my client.'

"Towe urged the jury to 'send a message' to Detective Gonzalez. 'Let him know that on the next case, make sure that the statement has something to do with the facts in the case,' Towe said.

"The prosecution conceded that the shooting occurred in the stairwell, but conceded that was not evidence that the confession was false -- that McCloud's statement was his attempt to minimize what happened; claiming the gun discharged accidentally when Sunada karate-kicked his hand."*

[* That makes no sense. Why couldn't Sunada have just as easily 'karate-kicked' him in the stairwell as the hallway? How does saying this happened in the hallway 'miminize what happened'?]

"On March 19, 1996, the jury convicted McCloud of second-degree murder and criminal possession of a firearm. He was acquitted of robbery. On April 15, 1996, at sentencing, McCloud maintained he was innocent and that his confession was false. He said he confessed falsely after the detectives told him that Sunada's father was a powerful and wealthy man in Japan who would have arranged for McCloud's murder if he were to be released without being charged. McCloud was sentenced to 25 years to life in prison.

"On May 13, 1996, a jury was selected in Cameron's trial in Queens...The following day, realizing the severity of McCloud's sentence, Cameron agreed to plead guilty to first-degree robbery. The murder charge was dimissed, and he was sentenced to three years and nine months to 11 years in prison.*"

[* So, Cameron's plea sentence was some 7 times longer than McCloud's trial sentence.]

"In February 1998, the...Second Department...upheld McCloud's conviction and sentence.

"In 2001, McCloud wrote to Queens [DA] Richard Brown, saying that he had confessed falsely because of the police threats that Sunada's family would kill him. 'I sat there dumbfounded,' McCloud wrote. 'But I thought. And thought. And thought. If I say I did it, I'll go to Rikers Island but eventually the truth will surface about my innocence in a court of law. Most importantly, I will be safe from whoever this powerful person is [who] is already convinced that I killed his son.'"*

[* Much like Martin Tankleff, McCloud could not conceive of a member of 'law enforcement' lying so brazenly about something so significant.]

"Nothing came of the letter.

"On September 3, 2003, Cameron was released from prison on parole.

"McCloud made several attempts to overturn his convictions, filing post-conviction petitions in the state court as well as a federal petition for a writ of habeas corpus. All were denied.

"A request to conduct DNA testing on scrapings from Sunada's fingernails produced no evidence. The samples had been collected at autopsy after Sunada had been at the hospital where his hands undoubtedly had been washed."*

[* Why would that have happened? Any competent professional performing an autopsy on a murder victim would surely know that (among other things) fingernail scrapings should be collected before any part of the body is cleaned. Or, perhaps this was simply an issue of bad faith.]

"In 2019, at a parole hearing, McCloud, in a bid to obtain release, disavowed his claim of innocence at sentencing, apologized to the Sunada family and said, 'I accept full responsibility for the crime.' But his admissions, like his confession, did not match the crime -- McCloud told the parole hearing that he accidentally shot Sunada believing he was the 'pizza guy.' Parole was denied.

"In 2021, McCloud appeared again at a parole hearing. He was represented by Rutgers University Law School Professor Laura Cohen, as well as Laura Nirider and Steven Drizer from Northwestern University's Pritzger Law School's Center on Wrongful Convictions. The parole board was presented evidence that the confession was false and was based on erroneous police reports that Gonzalez had relied upon when he got involved in the case four days after the shooting.

"McCloud retracted his earlier admission, saying, 'I was desperate and it was out of fear of dying in prison for something that I did not do.' He noted that for 27 years, 'I screamed at the highest mountain top, fought to the highest court that I did not commit this crime and one of the most frustrating things in my life is screaming that I did not commit this crime and people are hearing me but they were not listening.'

"McCloud was finally released on parole on January 31, 2023."*

[* Thus, the above 2021 parole board -- despite three law professors coming and presenting evidence of McCloud's innocence -- denied him parole after he'd already served 27 years.]

"By that time, the Queens County [DA's] Conviction Integrity Unit (CIU) was more than two years into a re-investigation of the case at the urging of the lawyers for McCloud. Lawyers for the Legal Aid Society's Wrongful Conviction Unit came into the reinvestigation subsequently and joined in the request to vacate these convictions.

"On August 24, 2023, Bruce Benjet, CIU head, filed a report of its review of the case and concluded that McCloud's and Cameron's convictions should be vacated.

"In the motion to vacate the convictions, Benjet noted that the initial police investigation made significant errors that ultimately resulted in detectives -- specifically Gonzalez -- obtaining false confessions from Cameron and McCloud.

"The motion noted that in 1989, five years before Sunada was killed, Gonzalez had obtained false confessions from Antron McCray and Kevin Richardson, two of the six youths who were wrongly convicted of sexual assault and the savage beating of a woman in what became known as the Central Park Jogger case."

"In the motion, Benjet said the decision to agree to vacate the convictions was the result of 'the confluence of three factors seriously undermining the reliability' of the confessions.

"These factors included the discovery that Detective Gonzalez had 'elicited multiple false statements' in the cases of McCray and Richardson; the presences of the false facts in the confessions of McCloud and Cameron that were 'traceable to Gonzalez's misunderstanding of the facts of the crime as represented in erroneous police reports;' and the use of techniques to obtain the confessions that Detective Gonzalez used in other false confession cases.

"The CIU reported that a crime expert, Kevin Parmelee of the New Jersey Institute of Technology, reviewed the evidence. He created a three-dimensional representation of the scene and trajectory of the bullet. Parmelee confirmed that the decription of the crime in the confessions was 'impossible.'

"During an interview with the CIU, McCloud said that Detective Gonzalez had instructed him to just say it was an accident. He said he was thirsty, exhausted, scared and believed his innocence would be revealed in court.

"The CIU interviewed English's daughter, Daidralyn, who was not called as a witness at trial. She corroborated her mother's account of seeing McCloud and Cameron at their townhouse in the Bronx at about the same time as Sunada was killed miles away.

"The CIU also reported that in a September 2021 interview, [the 16-year-old boy who supposedly led detectives to McCloud and Cameron] said that the statement attributed to him by police was not true. He said police had told him what to say, had described the victim as 'the Chinese guy,' and that he had signed the statement without reading it. [He] said he was under pressure from police and wanted to go home. He also said the detectives appeared to know who they were looking for, and that he had been promised he could go home if he signed the statement. After he signed it, [he] said, he had been released on a bond secured by his signature. The robbery charge had been dismissed in 1995 when he pled guilty to an unrelated marijuana charge.

"The CIU noted that in addition to the false confessions of McCray and Richardson in the Central Park Jogger case, Detective Gonzalez had obtained a false confession from Johnny Hincapie in 1990 in the stabbing of a tourist in the subway."

"'Evidence that Detective Gonzalez had elicited multiple false confessions in the past 'would have dramatically tipped the balance of the evidence in McCloud's trial,' Benjet declared in the motion. 'It is probable that a jury confronted with Gonzalez's history of obtaining multiple false confessions. . .would have disbelieved McCloud's confession, credited his alibi, and voted to acquit.

"On August 24, 2023, Queens...Justice Michelle Johnson granted the motions. The charges for both men were then dismissed."

[All emphases added unless otherwise noted.]

Shirley Kinge - Perjury, misleading forensics, police misconduct

Wed, 16 Oct 2024 03:16:52 +0000

Kinge, Shirley; arson; NRE: perjury/false accusation, false/misleading forensic evidence, police officer misconduct, misconduct that is not withholding evidence

[859:323]; Court of Claims 12/13/07; civil suit

[Convictions had been reversed, due to police misconduct. ]

[December 1989 quadruple homicide. All victims shot, and then the house was burned down. A description was circulated of the person seen using credit cards stolen from the house. Several calls came in identifying Shirley Kinge as fitting that description. David Harding, a New York State Police investigator, claimed he'd matched Kinge's fingerprints to latent fingerprints on a gas can left at the scene. Later, during an employment interview with the CIA, Harding admitted that he'd fabricated fingerprint evidence and committed perjury during a homicide investigation. Other members of the New York State Police had fabricated evidence in other investigations as well. ]

from NRE synopsis (by Maurice Possley):

"On December 23, 1989, the bodies of 39-year-old Warren Harris, his 41-year-old wife, Flores, and their [11- and 15-year-old children] were found murdered in their home in the Town of Dryden, near Ithaca..."

"The victims were tied up, their heads covered with pillowcases and each was shot in the back of the head. They were doused with gasoline and set on fire in an apparent attempt to destroy evidence.

"In January 1990, police were tipped by an informant that the killer was 33-year-old Michael Kinge. On February 7, police used a battering ram to enter an apartment in Dryden where Kinge was staying. A shoot-out ensued and Kinge was killed.

"His 54-year-old mother, Shirley Kinge, who lived in an apartment next door to the Harris family, was arrested. She was charged with helping her son burn down the house after the murders and for using credit cards stolen from the Harris's.

"Kinge admitted to using the credit cards, but claimed to have nothing to do with the murder or arson.

"At Kinge's trial in Tompkins County...New York State Police Trooper David Harding testified that he had found Kinge's fingerprints on a gasoline can located in the Harris home.

"In November 1990, a jury convicted Kinge of burglary, arson, hindering prosecution, criminal possession of stolen property, and forgery, and she was sentenced to 18-to-44 years in prison.

"In 1992, the U.S. Department of Justice began investigating claims that New York State police troopers, including Harding, had falsified fingerprint evidence.

"Based on the disclosure, lawyers for Kinge filed a motion to vacate her convictions. Kinge was granted a new trial and released on bond in August 1992. The prosecution dismissed all charges except for the forgery charges. Kinge pled guilty to misdemeanor forgery in November 1992.

"In December 1992, Harding pled guilty to perjury and admitted planting evidence in Kinge's and other cases. He was sentenced to 4-1/2 years in prison.

"In December, after evidence showed that State Police Lt. Craig Harvey had taken a print from one pane of glass in one burglary and planted it on a pane of glass in another burglary, the Broome County [DA] dismissed the burglary conviction of William LaBolt Jr. involving the planted fingerprint.

"In 1995, Mark Prentice was acquitted at retrial on charges of assault and robbery in Tompkins County...after Harding admitted he had planted Prentice's fingerprints in a house and a shed of a man who was beaten and robbed in Enfield..."

"In 2009, Kinge was awarded $286,312 in compensation by the State of New York. Kinge died in 2015 at the age of 80."

[All emphases added unless otherwise noted.]

Kerry Kotler - Mistaken ID, Perjury, Police Misconduct

Wed, 16 Oct 2024 03:15:21 +0000

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.]

Milton Lantigua - False Accusation, Withheld evidence, misconduct

Wed, 16 Oct 2024 03:12:50 +0000

Lantigua, Milton; murder; NRE: perjury/false accusation, prosecutor misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury

[643:963]; 1st Dept. 6/11/96; reversed, due to weight of evidence, prosecutor misconduct, and Brady violation

[Only one witness placed Lantigua at the scene and said he shot the victim.] "[T]he evidence she gave was confusing, inarticulate, vague, frequently inaudible and extremely hesitant."

[Improper prosecutor summation. Witness's testimony inconsistent with ballistics evidence, and this same witness recanted prior to sentencing. Also Brady violation: failure to disclose that witness was with someone else at the time of the crime -- defense therefore unable to investigate what he may have seen.]

from NRE synopsis (by Maurice Possley):

"After midnight on June 27, 1990, Felix Ayala was fatally shot on a street in the Bronx...One month later, Frances Rosario, who claimed to have witnessed the shooting, identified 20-year-old Milton Lantigua as police were driving around looking for the suspects.

"At Lantigua's murder trial in Bronx County... Rosario testified that she had been alone at the time of the shooting. She said that she saw the shooting from the window of her brother's apartment. She said that Ayala was shot by two men and that Lantigua was one of them.

"Defense witnesses, including Rosario's family members, gave testimony that contradicted her account of the shooting.

"Lantigua's first trial ended in a hung jury. Prior to the second trial, prosecutors offered Lantigua a deal -- plead guilty to a weapons charge and be released with credit for time served. Lantigua rejected the offer because he said he was innocent.

"After Lantigua's second trial in August 1993, at which no additional evidence was presented, a jury convicted him of second-degree murder. Before Lantigua was sentenced, he obtained a new lawyer who interviewed Rosario and she recanted her testimony. At a hearing, Rosario again recanted. A prosecutor revealed that Rosario had told the prosecution prior to the second trial that she had in fact been with a man, identified only as Jo-Jo, on the night of the shooting. The man had returned to the Dominican Republic some time after the murder.

"The trial judge said the recantation was not credible and sentenced Lantigua to 20-years-to-life in prison.

"In June 1996, Lantigua's conviction was reversed by an appeals court that found Rosario's testimony 'confusing, inarticulate, vague, frequently inaudible and extremely hesitant.' The Appellate Division...ruled that Lantigua had been denied a fair trial because of 'especially egregious' conduct by prosecutors.

"The court said the prosecution's failure to disclose the existence of the potential new witness (Jo-Jo) had denied the defense the opportunity to investigate what that witness might have observed, or to meaningfully cross-examine Ms. Rosario on 'her whereabouts, her view of the unfolding events, any distractions caused by the presence of another person, and her general credibility.'

"The ruling was critical of the failure of the trial prosecutor, Sophia Yozawitz, to correct Rosario's testimony that she had been alone during the shooting. 'The prosecutor permitted the statement to remain on the record without informing the court that it was perjured,' the court said. The appeals court also found that Yozawitz had distorted evidence during her summation to the jury, which also warranted reversal.

"After Lantigua's conviction was vacated, prosecutors dismissed the case.

"In 2005, Lantigua settled a wrongful conviction lawsuit against the City of New York for $1 million. The New York Court of Claims awarded him an additional $300,000."

[All emphases added unless otherwise noted.]

Shawn Lawrence - Perjury / misconduct / poor representation

Tue, 15 Oct 2024 04:16:28 +0000

Lawrence, Shawn; murder; NRE: perjury/false accusation, inadequate legal defense, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

60 N.Y.S.3d 286; 2nd Dept. 12/6/17; reversed, due to defense counsel conflict of interest

"[Lawrence] was charged...in connection with a shooting in Amityville, Suffolk County. Prior to [his] trial, the [prosecutor] alerted County Court to the fact that defense counsel was a potential witness in the cause because he had interviewed the [prosecution's] main witness who had identified [Lawrence] as the shooter, and in that interview the witness had recanted the identification. That interview was not witnessed by anyone else. As a concession, defense counsel agreed to forego cross-examination of the witness regarding the interview. [Lawrence] was informed of the issue and independent counsel was appointed to advise him on the issue. When court reconvened days later, [Lawrence] indicated that he wished for his attorney to continue to represent him but refused to waive any conflict. At that point, the [prosecutor] sought to have defense counsel relieved. The Court declined.

"Here, defense counsel's actions interviewing the prosecution's main witness alone and being the only person who could testify to the witness's recantation of his identification of [Lawrence] as the actual shooter created an actual conflict of interest. Defense counsel was faced with the choice of testifying on behalf of his client, which would result in his disqualification, or not presenting evidence of an exculpatory statement...Under the circumstances...the County Court erred in denying the [prosecutor's] application to relieve defense counsel."

from Records and Briefs (ADA's):

[2] "[Lawrence's] conviction stems from him and his two accomplices [supposedly] ambushing James Terry, Ralph Council, and David Hodges as the three men sat inside a minivan in the parking lot of an apartment complex in Amityville, Suffolk County. [They] fired multiple shots from their firearms directly into the vehicle, killing Terry and causing serious physical injuries to Council and Hodges."

"About one month before the jury trial commenced, the [prosecution]...became aware that Mr. Hanshe [the defense counsel] had signed an affirmation in support of a writ of habeas corpus he filed on behalf of [Lawrence] in the federal district court in which Hanshe claimed, inter alia, that he had personally interviewed one of the shooting victims -- Ralph Council, the only one of the three shooting victims who could testify at trial and the main eyewitness to the shootings. According to Mr. Hanshe's affirmation, Mr. Council told him that [Lawrence] neither perpetrated, nor was at the scene, of the present crimes. Defense counsel's affirmation further stated that Mr. Council also told Mr. Hanshe that the police and prosecutor had tried to coerce him to testify that [Lawrence] was a participant in the murder by offering him a lesser sentence on a case he had pending before the court."

"Suffolk DA Releases Audit on Cases Tried by Prosecutor Who Was Suspended for Withholding Evidence," (no author), New York Law Journal, 11/23/21

"In what is believed to be the first publicly-released audit of a prosecution's compliance with disclosure requirements,* the Suffolk County [DA's] Office detailed 11 homicide cases in which [ex-ADA] Glenn Kurtzrock improperly withheld key evidence from defense counsel."

[* Subsequent to the 2019 enactment of discovery reform in New York State.]

"The...Second Department suspended Kurtzrock from practice last year [2020] for breaking disclosure rules during the 2017 trial of Messiah Booker, who was charged with a home invasion murder."

"In its 36-page review of Kurtzrock cases, the Office's Conviction Integrity Bureau (CIB) detailed disclosure violations in 11 more of Kurtzrock's murder prosecutions -- oftentimes failing to turn over or improperly redacting notes and testimony from police officers."

"Kurtzrock joined the Suffolk DA in 2014 and resigned in 2017, following the revelations that he withheld evidence during the Booker case identifying an alternative suspect. Ultimately, murder charges against Booker and three co-defendants were dropped and each pleaded guilty to lesser charges.

"Following Kurtzrock's resignation, the Suffolk DA reviewed Kurtzrock's work on the 2015 murder conviction of Shawn Lawrence, who was sentenced to 75 years to life in prison, and found similarities to the disclosure issues in the Booker case.

"Lawrence was charged with taking part in an ambush shooting that left one man dead and two others injured.

"Among Kurtzrock's 'serious disclosure violations in the case' were his redaction of statements pointing to an alternative suspect in the shooting, as well as notes from a detective's notebook indicating that the shell casings found at the scene were linked to other cases, the CIB wrote in its report.

"'These practices had a devastating effect on the fairness of the proceedings in the Lawrence matter,' the report states."

from NRE synopsis:

"On the night of January 12, 2010, during a party in the Andpress Plaza housing complex in Amityville...22-year-old Allen McGhee had an allergic reaction while eating shrimp. When 40-year-old David Hodges tried to take the shrimp out of McGhee's mouth, they got into a fight. Hodges's sister, Ronda Boyd, who was hosting the party, ordered everyone to leave.

"Not long after, Hodges was in his van in a parking lot of the housing complex with 44-year-old Ralph Council, neither of whom had been at the party. Hodges was talking about the 'young dudes' who were at the party and how they did not know that he was still capable of fighting. At that point, four males walked in front of the van with their heads down.

"Council, who was sitting in the front pasenger seat, asked if those were the people at the party. Hodges, who was sitting in the rear seat, swore and said he didn't care about those 'young dudes.'

"A few minutes later, one of the males, who was brandishing a pistol, tried to open the driver's side door, where Terry was sitting behind the wheel. Terry yelled that he had nothing to do with the incident at the party and that Hodges was in the back seat. The van began to roll forward and the gun was fired multiple times.

"Terry was fatally shot in the chest. Council was shot in the buttocks as he fled the van. Hodges was shot in the head. He survived, but the wound caused such serious damage that he would never be able to testify in court.

"More than two years later, on April 4, 2012, police arrested 40-year-old Shawn Lawrence and charged him with second-degree murder for the shooting of Terry, two counts of attempted murder for shooting Hodges and Council, and illegal possession of a firearm.

"Police also arrested McGhee. On June 12, 2014, McGhee pled guilty to first-degree manslaughter and two counts of first-degree assault as part of a plea agreement with the prosecution. He admitted that he committed the crime with Lawrence, [???] and was sentenced to 12 years in prison.

"The prosecution's key witness was Ralph Council, who had been interviewed at least three times by police in the two years that elapsed after the shooting. He had consistently said that four young men were standing by a dumpster in the parking lot, and that one came to the driver's side door and told Terry to turn off the van. Council, who had a lengthy criminal record, said he heard Terry say, 'It wasn't me, he's in the back.' Terry then ducked down toward Council. That's when the gunfire began, Council said.

"However, after Council was arrested on unrelated charges in December 2011, he changed his statement and said two men came to the van -- McGhee and Lawrence. He said Lawrence spoke with Terry and then began firing a silver pistol.

"Prior to trial, Lawrence's defense attorney interviewed Council. In that interview, Council said that Lawrence had nothing to do with the shooting -- that Lawrence was 'not there.' Council claimed that the prosecutor on the case, Glenn Kurtzrock, and a detective had coerced him to implicate Lawrence.

"When Lawrence went to trial in Suffolk County...in April 2015, the prosecution informed the trial judge of Council's statement to the defense attorney. The prosecution argued that if the defense attorney wanted to elicit Council's recantation, the attorney would have to step out of the case because he could not both defend the case and be a witness.

"The defense lawyer responded that he would forego any questions about the recantation. Lawrence then said he would not waive any conflict of interest. At that point, the prosecution asked the judge to replace the defense lawyer, but that motion was denied.

"Council testified and changed his statement [yet again]. He now said that McGhee was the man with the gun, and that it was black, not silver. But he also said that Lawrence was behind McGhee with a silver gun.

"James Jones also testified for the prosecution and told the jury that he saw Lawrence in the parking lot on the night of the crime shooting into the van. Jones first implicated Lawrence in April 2012 -- after Lawrence was arrested. Jones admitted during cross-examinaton that while he was in jail he recanted and claimed he knew nothing about the crime and only implicated Lawrence because of police pressure. He further admitted that after he was released from jail, he recanted his recantation and said that in fact he did see Lawrence in the parking lot. Jones also testified that he was high on crack cocaine at the time of the shooting. He said that he had been high for several days prior and that the detective gave him $50 in cash on the day he agreed to identify Lawrence.

"Larry Williams, superintendent of the housing complex, testified that he saw four men in the parking lot prior to the shooting, but could not identify them. He said they were walking 'shoulder-to-shoulder, four-wide.' He said he did not notice anything remarkable about their heights -- although McGhee was 5 feet 5 inches tall and Lawrence was 6 feet 4 inches tall.

"A detective testified that Hodges had viewed a photographic lineup and identified Lawrence as the gunman.

"The defense called McGhee to testify and he admitted the motivation for the shooting was the fight over the shrimp. However, although he had implicated Lawrence in his plea, McGhee now told the jury that Lawrence was not involved in the shooting at all.

"Tyreek Burwell also testified for the defense. He admitted that he had given a statement to police implicating Lawrence in the shooting. He told the jury, however, that he was not at the housing complex or the parking lot at all.

"On May 21, 2015, the jury convicted Lawrence of second-degree murder, two counts of first-degree attempted murder, and illegal possession of a weapon. He was sentenced to 75 years to life in prison.

"Burwell and McGhee were subsequently charged with perjury for their testimony on behalf of Lawrence."

Lawrence appealed. In May 2017, while the appeal was pending, Kurtzrock, the prosecutor at Lawrence's trial, was forced to resign for failing to disclose favorable defense evidence to lawyers in other cases.

"Lawrence's appellate lawyer, Laura Solinger, informed the [DA's] office of Kurtzrock's involvement in Lawrence's case. The prosecution agreed to conduct a review of the case.

"Eventually, the review turned up 45 separate items of evidence, comprising hundreds of pages, that had not been disclosed to his defense lawyer before trial. The concealed evidence included the following:

- The prosecution paid witness James Jones $4,000 in relocation expenses.

- A police report stating that Hodges spontaneously identified two other men as being involved in the shooting.

- A report that a black gun had been found in the possession of a 15-year-old boy whose description was closer to the gunman than Lawrence.

- Information about the boy and several other youths surfaced during the investigation.

- The housing complex superintendent stated to police that the youths he saw in the parking lot 'looked young.'"*

[* Shawn Lawrence, on the other hand, would have been around 38 years old.] "In December 2017, the...Appellate Division reversed Lawrence's conviction and ordered a new trial. The court ruled that the trial judge erred when he failed to grant the prosecution's motion to replace Lawrence's trial lawyer. Lawrence was then released on bond.

"In January 2018, the prosecution moved to dismiss the charges against Lawrence 'in the interest of justice.'

"At the request of Suffolk County...Justice William Condon, Solinger filed a response asking that the case be dismissed due to prosecutorial misconduct.

"Lawrence was the fifth defendant prosecuted by Kurtzrock whose murder charges were dismissed, and the only one whose case was dismissed after the conviction was vacated. Four defendants in another murder case were allowed to plead guilty to assault charges and murder charges were dismissed.

"In May 2019, Lawrence filed a $20 million federal lawsuit against police and Suffolk County seeking damages for his wrongful conviction. He subsequently also filed a claim for compensation in the New York Court of Claims.

"In December 2020, the...Appellate Division ordered Kurtzrock's law license suspended for two years in February 2021. Kurtzrock was in private practice."

[All emphases added unless otherwise noted.]

Sami Leka - misconduct / withheld evidence

Tue, 15 Oct 2024 04:14:28 +0000

Leka, Sami; murder; NRE: mistaken witness identification, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

[619:144]; 2nd Dept. 11/28/94; affirmed

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

76 F.Supp.2d 258; E.D.N.Y. 11/30/99; writ denied

"Despite Sami Leka's claims of actual innocence, there is little evidence to support the claim and much to negate it, including an implausible alibi. The fact that the proof adduced at trial was not overwhelming does not establish that the jury's verdict resulted in the conviction of an innocent man. In any case, absent a constitutional violation, [Leka's] claim of actual innocence is not a ground for habeas relief."

257 F.3d 89; 2nd Cir. 7/12/01; above decision reversed, and writ granted

from Records and Briefs:

[5] "The charges against Leka arise from a shooting that occurred on February 12, 1988, on Ocean Avenue in Brooklyn. In the course of that shooting, Rahman Ferati...a participant in the shooting, was fatally wounded."

[6] "On February 12, 1988, shortly before 6:00 p.m., Rahman exchanged gunshots with an occupant of a car in front of 1954 Ocean Avenue, in Brooklyn...The State contended that Leka...had murdered Rahman because of a bitter custody dispute..."

"The State's evidence implicating Leka in Rahman's murder consisted solely of the testimony of Carolyn Modica and Elfren Renaldo Torres, who were walking together on Ocean Avenue at the time of the shooting...[7] At the time, it was raining...and 'it was starting to get dark,'...'[i]t was dusky out.'"

[9] "Torres testified, that the person he saw shooting the gun wore 'like a thick brown leather jacket'...was 'about five nine' ...and had a 'medium build.' [FN5:] In sharp contrast to Torres' physical description of the shooter, Leka was five feet, three inches tall and weighed approximately one hundred and sixty-five pounds...Thus, it appears that Torres described Rahman, not Leka.

"Torres testified that...he could not tell 'at that time if the [shooter] had any facial hair.' [FN6:] When interviewed on the night of the shooting, Torres said the man he had seen had a mustache. [from FN7:] Torres swore under oath that the police pressured him into selecting Leka from a photo-spread, and that his identification of Leka at trial was based on the photo-spread rather than his recollection of Leka as the man he saw shooting..."

[10] "Sali Ferati...Rahman's brother, lives across the street from the site of the shooting, heard the gunshots, and saw Rahman fall to the ground...Sali did not see the person who shot Rahman, but immediately ran to Rahman's side. Sali testfied that, as Rahman lay dying in his arms, Sali repeatedly asked Rahman who shot him. According to Sali, Rahman responded each time that it was 'Zeni,' obviously referring to Zeni Cira, Leka's co-defendant at trial...Sali further testified that he asked Rahman if Rahman recognized anyone else in the car, and Rahman said he [11] did not recognize 'the others.'...Thus, although the Ferati family has known Leka since he was a young boy...Rahman did not implicate Leka in the shooting.

"The State knew of, but did not call [to testify at trial], three other witnesses -- Wilfredo Garcia, an off-duty [NYPD] officer; Joseph Gonzalez, a United States postal worker; and Anthony Chiusano, a bus driver -- whose recollection of the events surrounding Rahman's murder differed significantly from the recollections of Modica and Jones. Moreover, notwithstanding its obligations...to disclose exculpatory and impeachment material to Leka sufficiently in advance of trial to allow his counsel to make effective use of this evidence, the State provided him with evidence concerning Gonzalez's and Chiusano's expected testimony only on the eve of trial, notwithstanding the defense's request for such evidence nearly two years earlier. As for Officer Garcia, the State withheld that evidence altogether, and never disclosed that Garcia's testimony undermined the reliability of the two eyewitnesses called by the State." [First emphasis added; second, original.]

"Garcia witnessed part of the shooting from the kitchen of his apartment, which was across the street from where the shooting occurred..."

"As Garcia stood near his kitchen window...he heard gunfire. He looked out his kitchen window and saw a white car come to a stop in a diagonal position in front of a man...Officr Garcia also saw two muzzle flashes from a gun coming from the passenger side of the car, and witnessed a Command Bus driving around the white car...As the bus maneuvered around the car, Garcia noticed additional shots being fired from the passenger side of the white car...Officer Garcia did not, however, ever see anyone get out of the white car and shoot at anyone.

"Garcia's observations of the shooting, if presented to the jury, would have undermined Torres' testimony that Leka, or anyone else for that matter, got out of the white car to participate in the shooting."

[14] "Notwithstanding the obvious import of Officer Gonzalez's observations on the day of the shooting, the [DA's] Office neither disclosed the substance of his observations to Leka, nor advised Leka that...Leka should interview Officer Garcia. As a result, Leka's trial counsel remained unaware that [an NYPD] Officer, with no motive whatsoever to shade the truth in favor of Leka, could substantially undermine the testimony of Modica and Torres, which was the only testimony offered by the state to link Leka to Rahman's murder.

"Nor did the [DA's] Office limit its misconduct concerning Officer Garcia's account of the shooting to a failure to disclose this exculpatory and impeachment evidence. Instead, the [ADA] responsible for the prosecution, in a calculated attempt to conceal the truth, deliberately misrepresented what Officer Garcia had seen on the day of the shooting. Indeed, well in advance of trial, in an obvioius effort to induce a guilty plea from Leka, the [ADA] told Leka's counsel that the State would call as a witness a police officer who would identify Leka as the man who shot Rahman...The [ADA] did not, however, provide any police reports, interview notes, or prior testimony of that police officer...Several days before trial...Leka's counsel learned for the first time that the [ADA's] prior representations about the police officer were false."

[15] "Once the trial began, Leka retained a private investigator, contacted Officer Garcia and asked Officer Garcia if he would permit Leka's counsel to interview him...Officer Garcia agreed to be interviewed as long as the [DA's] Office had no objection...When the [ADA] learned of the proposed interview, he not only objected, but moved for an order barring Leka from interviewing Officer Garcia...The [ADA] claimed that he would call Officer Garcia as a witness at trial, and that Officer Garcia would not consent to an interview by Leka's representatives in advance of his testimony."

[16] "Notwithstanding the [ADA's] repeated representations to the Court, the State never called Officer Garcia as a witness at trial. Indeed, in light of Officer Garcia's observations, any claim that the [ADA] ever intended to call Officer Garcia is highly suspect...[I]n stark contrast to his representations to the Court and Leka's counsel, the [ADA] told Officer Garcia that he would not be needed as a witness at trial."

[17] "[Joseph] Gonzalez, like Officer Garcia, never saw anyone get out of the [white] car."

[19] "[Anthony] Chiusano [also] made clear that he observed no one get out of the car during the shooting."

[20] "Leka and Cira were separately indicted for Rahman's murder...Joseph R. Benfante, Esq., represented Leka and Cira throughout their respective pretrial proceedings, and Cira paid Benfante's fees for his representation of both defendants...Benfante decided that he would continue to represent Leka, and another attorney was retained to represent Cira. Nevertheless, Cira continued to pay Benfante's legal fees for his representation of Leka...Ultimately, when Benfante was presented with compelling evidence that excluded Leka, but inculpated Cira, he was forced to choose between the undivided loyalty he owed to Leka, as a client, and the economic bias he had in favor of Cira, the man paying his legal fees...Benfante chose the latter."

from Reply Brief: [B02] "The State's opposition to this appeal is disturbing. It presents a misleading statement of the 'facts' and an erroneous depiction of the law, all in an effort to avoid accountability for its numerous Brady violations and its corrupt efforts to conceal exculpatory and impeachment evidence."

[The same could very well have been said about the state's opposition to Nickel's appeal.]

from NRE synopsis (by Stephanie Denzel):

"In 2008, Leka settled a wrongful conviction lawsuit against the City of New York for $3.1 million. He filed a claim for compensation in the New York Court of Claims, but the claim was dismissed."

[All emphases added unless otherwise noted.]

George Linstadt - Suggestibility / No Crime / Misleading Forensics

Tue, 15 Oct 2024 04:07:12 +0000

Lindstadt, George; child sex abuse; NRE: no crime, false/misleading forensic evidence, perjury/false accusation, inadequate legal defense

Suggestibility issues

239 F.3d 191; 2nd Cir. 1/4/01; writ granted, due to ineffective assistance of counsel

"Lindstadt...was convicted on the basis of testimony from his daughter and estranged wife, and on testimony from two experts. Lindstadt testified in his own defense that he committed no abuse, and asserted that the allegations were fabricated by his embittered wife.

"Lindstadt claims that his lawyer at trial committed numerous errors serious enough to render the defense services constitutionally ineffective. We base our decision on the cumulative effect of four errors:

i) Defense counsel (along with the judge and prosecution) failed to notice a one-year error in the date of the alleged abuse. Lindstadt's wife and daughter testified that the first incident of abuse (Lindstadt was convicted on the basis of two incidents) took place in December 1986. It is now conceded that the first incident must have happened, if at all, in December 1985. Since the daughter's account of the events reflects that Lindstadt was at the time of the incident a member of the household (doing cooking, bathing the child, present at night, etc.), and since Lindstadt lived with his wife and daughter in December 1986 but not in December 1985 (and can prove it), a lawyer who conducted an adequate investigation could have elicited testimony by Lindstadt that he did not live with his daughter at the time of the alleged abuse, and in that way (and others) shaken the credibility of both key prosecution witnesses.

ii) Defense counsel made no effective challenge to the only physical evidence of sexual abuse. Dr. Milton Gordon testified that his observations of the child's private parts confirmed that she was abused. This testimony was based on unnamed studies that were (a) not requested by defense counsel, (b) not produced by the prosecution, (c) never produced or usefully identified since, (d) essentially unchallenged at trial, and (e) controverted by other easily available, published studies.

iii) Defense counsel announced in his opening [statement] that, after the close of the state's case, Lindstadt and counsel would decide 'whether [the prosecutors] have proven their case,' and only 'if they have made their case' would Lindstadt testify. Lindstadt's testimony in his own defense therefore became an implicit confession that the prosecution had 'made [its] case.'

iv) Defense counsel proffered testimony from two law enforcement witnesses that, before the daughter made allegations of abuse, Mrs. Lindstadt had attempted several times to put her husband in jail for a variety of alleged crimes. This testimony was essential to bolster Lindstadt's only defense: that his wife had fabricated the allegations of abuse and coached the child to remember them. The testimony was excluded, however, after counsel failed to make the obvious relevance argument to the court.

"Lindstadt's daughter testified that the residence in which she was abused had a second floor. But the residence...where mother and child lived in 1985... had no second floor. More important, the child's testimony described the household at the time of the abuse as a conventional domestic household, with father, mother, and daughter living together. So, too, does her statement to the police. Lindstadt's wife testified similarly. In December 1985, however, the defendant was living apart from his wife and daughter, lodging with his mother and sister, as they have both attested. The prosecution has not tried to explain these incongruities." [Latter emphasis original.]

from NRE synopsis (by Maurice Possley):

"In April 1988 the mother of a 9-year-old girl reported to authorities in Suffolk County...that her daughter said she had been raped by her father -- once in 1986 and again just a few days later.

"The girl was sent to a physician who said that although her hymen was intact, he found some scarring that indicated to him that the girl had been sexually assaulted."

"The child testified from another room via closed circuit television that in December 1986, Lindstadt performed various sexual acts with her, including intercourse. The girl said she obeyed her father's order not to tell anyone. The girl also testified that in March 1988, her father peformed a sex act on her until she stopped him.

"Lindstadt's lawyer conducted a lengthy cross-examination of the girl and managed to elicit testimony that the girl road horses and was active in gymnastics -- activities the defense contended could have caused the physical scarring later described by the prosecution's medical expert."

"The prosecution called a child psychologist to explain why a child might conceal sexual abuse for years, and the pediatrician who examined the child after her mother brought her to Child Protective Services. The doctor said he found no obvious signs of trauma -- such as bruising or swelling -- and her hymen was intact. The doctor did find 'bumps and clefts' on the hymen that he testified were consistent with sexual abuse. On cross-examination, the doctor said he reached this critical conclusion based on what he called a 'Boston study.'

"The doctor also discussed 'toluidine blue dye' testing, which he claimed could disclose sub-dermal scarring of genitalia. The physician said his application of the dye showed some scarring that he said was consistent with intrusion into or rubbing of the vaginal area due to sexual abuse. He said his conclusion was based on a 'review' conducted by a John Hopkins University physician.

"Lindstadt's attorney attempted to suggest that the damage was caused by horseback riding, gymnastics, masturbation or infection, but the pediatrician rejected those causes based on the 'Boston study' and the Johns Hopkins physician's 'review.'

"The defense called Lindstadt, who testified that he never engaged in sexual conduct with his daughter and said that the allegations had been fabricated by his wife because she wanted out of the marriage. Lindstadt said the marriage was tumultuous and the family was struggling for money. He said they were evicted more than once and moved from apartment to apartment constantly. He said he had a good relationship with his daughter, and they played games, hiked, and rode horses together. He testified that he regularly helped her with her bath, and that on one occasion helped to clean the girl's genitals after he noticed her scratching a mild infection.

"Lindstadt's mother testified to the good relationship between Lindstadt and his daughter, and also told the jury that Lindstadt's wife had attempted to persuade her to disclose any admissions Lindstadt may have made to his mother.

"Lindstadt had a prior conviction for drunken driving and his lawyer attempted to call Lindstadt's probation officers to testify to their visits to the Lindstadt household. After the prosecutor objected to the testimony as irrelevant, the trial judge heard the testimony outside the presence of the jury.

"The two officers testified that, as part of their supervision of Lindstadt, they observed the Lindstadt household from February 1987 through the summer of 1988. They testified to acrimony in the household, Lindstadt's wife's animosity and vindictiveness toward her husband, and her refusal to help him with the basic tasks of supporting the household (such as driving him to work when the terms of his probation prohibited him from doing so). Significantly, they testified that, prior to the reporting of the sexual abuse, Lindstadt's wife repeatedly tried to convince the officers that Lindstadt had violated his probation and should be put in jail.

"Lindstadt's lawyer made several arguments in support of admissibility, but failed to make what an appeals court would later describe as 'the obvious, pivotal argument: the testimony would have corroborated Lindstadt's defense that his wife fabricated the sexual abuse.' As a result, the trial judge excluded the testimony and the jury never heard it.

"In April 1989, the jury convicted Lindstadt of one count of rape and two counts of sodomy for the December 1986 incident and acquitted him of one count of sodomy for the 1988 incident. He was sentenced to 12-1/2 to 25 years in prison.

"After he lost his direct appeals, Lindstadt filed a federal petition for a writ of habeas corpus in 1997, claiming that his trial lawyer presented an inadequate legal defense. After a U.S. District Judge rejected the petition in 1999, Lindstadt appealed to the Second Circuit Court of Appeals.

"On January 8, 2001, after Lindstadt had served about 11 years of his 12-1/2 to 25-year sentence, the Second Circuit...reversed the lower court, vacated his convictions and ordered a new trial. The court held that Lindstadt's defense attorney had failed to notice that in December 1986, the family was not even living in the home where the girl said she was raped. The court added that the prosecution's later claim that the attack took place a year earlier, in December 1985, was no more plausible because Lindstadt was estranged from his wife at that time and was not living with his family.

"The court held that the defense lawyer had failed to investigate and obtain medical expertise to counter the claims of the prosecution's medical expert. The court found that the pediatrician's testimony about his physical findings was based on 'unnamed studies' that were 'essentially unchallenged at trial and were controverted by other easily available published studies.'

"The court was also critical of Lindstadt's lawyer for telling the jury in his opening statement that after the prosecution rested, he and Lindstadt would decide whether the prosecution had proved its case, and only 'if they have made their case' would Lindstadt testify. As a result, the court noted, Lindstadt's testimony was 'an implicit concession' that the defense believed the prosecution had proved its case.

"Shortly after the ruling by the Court of Appeals, in February 2001, Lindstadt was released on bond; two months later prosecutors dismissed the charges. Lindstadt died the following year, in August 2002."

[All emphases added unless otherwise noted.]

Hidalgo & Lemus - Police Misconduct - Withheld Evidencd

Tue, 15 Oct 2024 04:01:41 +0000

Hildalgo, Olmedo AND Lemus, David; murder; NRE: mistaken witness identification, police officer misconduct, withheld exculpatory evidence

1996 WL 639857; N.Y. Cty. Ct. 10/29/96; new trial motion denied

"The trial evidence showed that on Thanksgiving Day, 1990, [Hidalgo and Lemus] visited the Palladium Discotheque on East 14th Street in Manhattan, became involved in a dispute with a bouncer, went to their cars, secured guns, and shot the bouncer to death.

"[Hidalgo and Lemus] claim that one Joey Pillot...and a cohort James Rodriguez...committed the murder. In my view, the testimony given at the hearing...is not 'of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant[s]...'" [This Court (Jay Gold) found Pillot's inculpatory testimony to be unreliable.*]

[* As we shall see below, he was dead wrong. ]

[both] [658:864]; 1st Dept. 6/3/97; affirmed

"The verdict as to [both Hidalgo and Lemus] was legally sufficient, and was not against the weight of the evidence."

[Hidalgo] [824:864]; N.Y. Cty. Ct. 9/5/06; convictions vacated and charges dismissed

"On July 22, 2005, the [DA] consented to vacate the judgment of conviction on the murder and attempted murder counts against [Hidalgo] on the ground of newly discovered evidence. On August 19, 2005, the [DA] consented to dismissing the murder and attempted murder charges against him."

from NRE synopsis (by Maurice Possley):

"On Thankgiving night, November 22, 1990, more than 1,000 people jammed 'Latin Night' at the Palladium nightclub on East 14th Street in Manhattan..."

"Shortly after 1 a.m., a fight broke out after a member of a group of people wanted to leave and re-enter without paying. As he quarreled with the bouncer, Fritz Vincent, another man tried to act as a mediator, but withdrew when Vincent punched the first man and knocked him to the ground. The customer left and returned with several other men, some of whom were armed.

"During the fracas, one man pointed a gun at the head of bouncer Jeffrey Craig and pulled the trigger, but the gun jammed. Another man fatally shot bouncer Marcus Peterson as he tried to run inside the nightclub during the brawl. Craig was then wounded in the leg.

"Within hours, an anonymous caller said that two Bronx street gang members named Spanky and Joey were responsible. The address given for them was the same address of the C & C gang. One of the bouncers identified Spanky, whose real name was James Rodriguez, as one of the gunmen.

"But that tip was forgotten a few days later when police arrested a woman on prostitution charges and she said she had a friend, Dolores Spencer, who knew someone involved in the shooting.

"Someone told police that shortly after the incident, David Lemus, 22, a man she was having an affair with, had told her he was one of the gunmen.

"Police put together a photo array and showed it to four of the bouncers and two picked out Lemus. Two months later, in January 1991, Lemus was picked up and put in a lineup. Three bouncers, including Craig, identified him. Three other bouncers were unable to identify him.

"Lemus, a high school dropout from the Bronx and part-time construction worker who was going to night school, was charged with murder.

"In June, 1991, police put together another photo array that included the photograph of Olmedo Hidalgo,* 24, an immigrant from the Dominican Republic who worked at his brother's grocery store and spoke very little English. Three bouncers picked Hidalgo out; a fourth bouncer picked another man. Hidalgo was charged with murder."

[* It's not at all clear why Hidalgo's photo was placed in this array.]

"Both went on trial in December 1992. In addition to the eyewitness testimony, Spencer testified that Lemus left a message on her answering machine after the shooting, saying, 'Call me, I'm in trouble.' (The tape was not saved.) She said she called him and he said he had shot a bouncer at the Palladium, but said the fight broke out after someone had punched the buttocks of a girl he was with; he got into a fight and was thrown out.

"The prosecution also played tape recordings of calls Lemus made to Spencer after he was arrested. The tapes included an exchange where she said, 'Why should I be afraid of you?' He responded, 'Because you know that I know what I know,' and then made three popping sounds she believed were a reference to the shooting.

"The trial judge [Jay Gold] rejected a defense request to play another portion of a tape in which Lemus said he stood to win a large legal settlement because he was innocent.*

[* So, this clearly pro-prosecution judge, Jay Gold, allowed in Lemus's taped conversation where he (arguably) (vaguely) implied his guilt, but not his taped conversation in which he forthrightly proclaimed his innocence. ]

"The jury deliberated for about a day before convicting both men. They were sentenced to 25 years to life in prison.

"Two years later, in 1994, Steven Cohen, a federal prosecutor, and Robert Addolorato, a New York City police detective, were interviewing Joey Pillot, a member of a Bronx street gang, in an attempt to determine whether to offer him a plea bargain in exchange for his testimony.

"Pillot admitted to participating in murders and other crimes, including the Palladium shooting. Pillot ultimately told Cohen and Addolorato that he was involved and that his best friend, Thomas Morales, who also went by the name James 'Spanky' Rodriguez, was the gunman. His own gun, Pillot said, jammed.

"Cohen contacted Stephen Saracco, the [ADA] who prosecuted Lemus and Hidalgo, and Saracco informed their defense lawyers, who conducted an investigation and, in 1996, filed a motion for a new trial based on newly discovered evidence.

"The trial judge, Jay Gold, granted a hearing where Pillot testified that Morales had left the club after drinking too much and was denied entry when he tried to get back in. That's when Morales was punched by the bouncer. Their party -- four men and four women -- left, but Pillot said he and Morales returned and that's when the shooting occurred. He said his gun jammed and that Morales fired the shots that killed Peterson and wounded Craig.

"Two other members of the gang testified that Pillot had admitted his involvement shortly after the shooting.

"The prosecution argued Pillot had concocted the story.

" Judge Gold agreed and dismissed the motion.

"The denial was appealed and affirmed.

"By 2000, Morales, who was convicted of extortion in 1996, was released from prison. Pillot, who pleaded guilty to murder, was serving a sentence of 15 years to life.

"In 2004, lawyers for Lemus and Hidalgo requested another hearing ...citing more new evidence.

"The lawyers said that three prosecution witnesses at trial had identified the man who attempted to intervene in the initial fight as a man named Jose Figueroa. But prison records showed that it couldn't have been Figueroa because he was in jail at the time of the shooting. The evidence raised doubts about the testimony of the eyewitnesses, the lawyers said.

"Further, they obtained evidence that another member of the Bronx gang, Richard Feliciano, said he was the mediator and that Lemus and Hidalgo were not involved. Feliciano said Morales was the gunman.

"The lawyers also found witnesses who said that Morales had admitted he was the shooter.

"Further, the lawyers had unearthed evidence that in December 1992 -- about the same time that Hidalgo and Lemus were convicted -- a police informant and member of the Bronx gang told detectives he had seen the shooting and that the gunmen were Pillot and Morales.

"Based on the evidence of Pillot's confession and the failure to disclose evidence to the defense, the conviction of Hidalgo was vacated on July 29, 2005.

"The charges against Hidalgo were dismissed on August 19, 2005. He was deported to the Dominican Republic.

"Lemus's conviction was vacated on October 19, 2005 and Lemus was released on bail. He was retried and acquitted on December 6, 2007.

"Charges were brought against Morales for the shootings, but the charges were dismissed by a judge who said the 15-year delay in prosecuting him was unfair

"Pillot was not prosecuted for the shootings.

"Hidalgo filed a wrongful conviction lawsuit which was settled by the city of New York in 2009 for $2 million. He received another $625,000 from the New York Court of Claims.

"Lemus filed a similar lawsuit that was settled in 2009 for $1.25 million."

[All emphases added unless otherwise noted.]

Christopher Livingston - Misleading Forensic Evidence

Tue, 15 Oct 2024 03:59:28 +0000

Livingston, Christopher; murder; NRE: false/misleading forensic evidence, inadequate legal defense

[550:739]; 2nd Dept. 1/29/90; reversed, due to improper jury instruction "The circumstantial evidence charge given by the trial court failed to include language which clearly conveyed the concept that the evidence must exclude beyond a reasonable doubt every reasonable hypothesis of innocence...Although we find that the proof of [Livingston's] guilt was legally sufficient to sustain the verdict, it was not overwhelming. Consequently, the failure to instruct the jury on the reasoning process to be followed cannot be considered harmless error, and reversal and a new trial are required."

from Records and Briefs:

[4] "Sometime after 10 p.m. on April 4, 1986, Nelson Vouse was shot and killed on Hinsdale Street in Brooklyn...[At trial, Livingston] asserted his innocence, suggesting that someone else had fired the fatal shot while he and Vouse were standing near each other on the street. One witness, who was looking directly at both men when the shooting occurred, observed that [Livingston] was not carrying a gun. A second witness who saw [Livingston] run from where Vouse had been shot, also testified that [Livingston] had not been holding a gun. No gun was recovered at the scene."

[23] "Medical examiner Gutierrez found...that the bullet must have been fired from at least 18 inches away ...According to Gutierrez, the bullet trajectory was front to back, at an angle going straight down from a height of 53 inches. Given that [Livingston] is 5'4" (or 64 inches), it would seem impossible for him to fire a bullet at Vouse, going straight down at an angle as Gutierrez testified, without engaging in unlikely physical contortions that could not have gone unnoticed by [Sonia (the main witness)." [Emphases original.]

"As both Sonia and [Livingston] in his statement described, only minutes before this incident a Hispanic man had shot into a group of people in which [Livingston] stood. That crowd did not contain Nelson Vouse. Moments later, at the same time she again saw [Livingston], Sonia saw a Hispanic man on the porch of the dope house. It makes sense that the dispute here in fact was between [Livingston] and the Hispanic man, not between [Livingston] and Nelson Vouse."

[Recall that Livingston was standing next to Vouse when the latter was shot. Thus, it seems that Livingston was the intended target.]

[25] "[W]hile Sonia directly observed [Livingston] and Vouse from the time they started talking and walking until the shot rang out, she never saw a gun, although she was able to see both men's bodies and arms clearly. Nor did she see either man raise his hands or fists in a gesture of argument while she watched them talk. If [Livingston] had been the killer, certainly she would have seen him raise his hands, seen the gun, seen the flash of the shot against the evening sky. However, she saw none of those things; she only heard the shot, saw Vouse fall and [Livingston] run." [Emphases original.]

"Hinkson [the other eyewitness], who was able to see [Livingston's] hands as he was running immediately after the shot was fired, also testified that Livingston had no gun as he ran past him. Thus, if [Livingston] had been the killer, he would have to have dropped the gun at the scene. However, as [26] Officer Williams -- who arrived moments later -- testified, no gun was found despite a search of the area." [Emphasis original.]

[32] "It is fundamental that an indictment is not probative of guilt...In instructing the jury as to the basic legal principles applicable to all criminal cases, a trial court must include a charge [i.e., instruction] that the indictment is of no evidentiary value."

[33] "The Court's [Thaddeus E. Owens] instruction that 'each indictment is the best evidence of the charges against the defendant' flew in the face of this fundamental principle of law."

[35] "Here, it is likely that the jury viewed the instructions as a directed finding of fact, and the fact of the indictment as evidence of guilt."

"In addition to the errors above, the Court's circumstantial evidence charge omitted critical facts essential to an appropriate charge [instruction], thereby skewing this close case irrevocably in the prosection's favor.

"In order for a conviction to rest upon purely circumstantial evidence, the charge [instruction] must include three elements: that the inference of guilt must flow naturally from those facts proven; that all of the facts must be inconsistent with innocence; and, finally, that those facts proven must exclude each and every reasonable hypothesis of innocence."

"[T]he entire charge [instruction] regarding circumstantial evidence failed to inform the jury that as between two permissible inferences, one of guilt and one of innocence, [Livingston] was entitled as a matter of law to the latter."

from NRE synopsis (by Maurice Possley):

"At about 10 p.m. on April 4, 1986, Nelson Vouse left the house of a friend...in Brooklyn on foot. At about the same time, 19-year-old Christopher Livingston left the front porch of a house...on the opposite side of the street where he had been talking to two girls.

"Livingston and Vouse, who knew each other, but not well, were both walking in the same direction. As they passed a [certain] house, they were walking side by side. At that moment, a single gunshot rang out and Vouse was fatally struck in the chest. Livingston fled.

"Livingston was identified as walking alongside Vouse at the time of the shooting. When police interviewed him, he said that earlier that day, he had been confronted by a Hispanic man who fired a shot at him. He denied shooting Vouse or even having a gun at the time of the shooting.

"On April 9, 1986, a New York police crime lab technician found gunshot residue on Vouse's clothing and concluded that the shot had been fired at close range. Because Livingston was the only person close enough to Vouse to have fired the fatal shot, he was charged with second-degree murder.

"Livingston went on trial in Kings County...in the summer of 1987. The crime lab technician testified that based on the amount of gunshot residue found on the clothing, she believed the shot that killed Vouse was fired from less than five feet away.

"Witnesses testified that the only person that close to Vouse was Livingston, although none of the witnesses said they saw a gun or saw Livingston fire a gun. In fact, two witnesses said that Livingston and Vouse both had their hands in their pockets when the shot was fired.

"A jury convicted Livingston of second-degree murder and criminal possession of a firearm, although no gun was ever found. Livingston was sentenced to 20 years to life in prison.

"In 1990, the Appellate Division...reversed the convictions and ordered a new trial. The court held that the judge had given faulty jury instructions.

"In January 1991, Livingston went on trial for a second time. Livingston's attorney presented the testimony of a woman who lived [on the street in question] and said that she had seen a man come out of a house where drugs were sold daily and fire a shot toward Livingston. She said that Livingston never had a gun and ran after Vouse was shot.

"Peter DeForest, a criminalistics professor at John Jay College of Criminal Justice, testified for the defense that based on his analysis of the gunshot residue, there was no way to say definitively how close the gun was to Vouse when it fired the shot that killed him.

"'The bottom line is I don't know whether this [gunshot] is within five feet or outside of five feet,' DeForest said. 'It's simply not determinative.'

"On January 25, 1991, a jury acquitted Livingston and he was released. Livingston sought compensation in the New York Court of Claims. In July 1992, Livingston was sitting in his car in the Bronx when a man on a motorcycle pulled up next to him and fatally shot him."

[All emphases added unless otherwise noted.]

Roger Logan - Perjury / False Accusation

Tue, 15 Oct 2024 03:57:17 +0000

Logan, Roger; murder; NRE: mistaken witness identification, perjury/false accusation, police officer misconduct, withheld exculpatory evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

S38 "A man who served 17 years for a Brooklyn murder that was vacated in 2014 at the request of the prosecutors will receive nearly $6.75 million under settlements with New York City and the State.

"[City Comptroller Scott] Stringer acknowledged Logan was 'wrongfully incarcerated' for the 1997 shooting of Sherwin Gibbons..."

"Brooklyn prosecutors concluded Logan's conviction was based largely on a questionable eyewitness account. The case was among those investigated by retired detective Louis Scarcella, who had been accused of generating faulty evidence or confessions."

from NRE synopsis (by Maurice Possley):

"On the evening of July 24, 1997, 18-year-old Sherwin Gibbons was fatally shot in the vestibule of the apartment building where he lived on Chauncey Street in Bedford-Stuyvesant, Brooklyn..."

"Witnesses told police that Gibbons was drinking a beer with some friends when a man came in and shot him. Ten shots were fired in all.

"Nearly five months later, in December, police said that Aisha Jones, who lived in an apartment building near the shooting, identified 35-year-old Roger Logan as the gunman and picked him out of a lineup as the shooter. On December 12, 1997, Logan was charged with murder.

'"Logan went on trial in Kings County...in April 1998. Prosecutors argued that Logan had been at a dice game where someone stole his gold chain. According to the prosecution, Gibbons was shot in retaliation in a case of mistaken identity. Logan denied involvement in the crime.

"Logan's defense lawyers challenged Jones's identification of Logan, contending that Logan was viewed in a lineup with people of different races and different heights. The trial judge agreed, saying this lineup put a 'spotlight' on Logan, and barred testimony about the lineup.

"However, the judge allowed Jones to identify Logan in court after she testified that she had seen him throughout the day of the shooting, as early as noon. She said that she was on the street and saw Logan begin firing. She then said she ran to her nearby apartment building and upstairs to her apartment. She said she looked out the window and saw Logan fire the last of the 10 shots.

"On May 3, 1999, a jury convicted Logan of second-degree murder and he was sentenced to 25 years to life in prison.

"In 2011, Kings County [DA] Charles Hynes created a Conviction Integrity Unit and invited defense attorneys to present cases in which innocent defendants may have been convicted."

"[In mid-2013], The New York Times published an article accusing [Detective Louis] Scarcella of misconduct in many investigations: fabricating evidence, coercing witnesses and concealing evidence of defendants' innocence. The report, along with a growing chorus of other news media, imprisoned defendants and defense lawyers, prompted the Kings County Conviction Integrity unit to begin to re-investigate 57 cases in which Scarcella was involved and more than 30 other murder cases in Brooklyn.

"Logan -- whose case was investigated by Scarcella -- learned about the inquiry in prison and wrote to the [DA's] Office and asked that his case be reviewed.

"Working under Kings County [DA] Ken Thompson, who defeated Hynes in his bid for re-election in the fall of 2013, the Conviction Integrity Unit reviewed Logan's case file and discovered a rap sheet for Jones showing that she was arrested at 4:30 p.m. on July 23 -- the day before Gibbons was killed. A review of all of Jones's records showed that the earliest she could have been freed from custody was 7 p.m.* on the day of the shooting -- casting grave suspicion on her claim that she had seen Logan several times prior to the shooting."

[* So, Jones had claimed that she saw Logan several times throughout the day of the shooting, beginning as early as noon. But since she wouldn't have been released from jail until at least 7 p.m. that day, she had to have been lying.]

"Had the information about Jones being in custody been disclosed to the defense and to the judge prior to trial, Jones's in-court identification likely would have been barred; at the very least, her credibility would have been undermined.

"The Conviction Integrity Unit then tracked down four people who were in the vestibule of the building where Gibbons was killed. Only one of them said he saw Logan at the scene, but that witness said Logan was not the shooter. The witness confirmed that a dice game had occurred a few days earlier and that Logan's chain had been stolen. But, the witness said that Logan had gotten it back and so there was no motive for retaliation. Two of these witnesses told investigators they were the ones who stole the chain and gave it back to Logan prior to the shooting.

"A Conviction Integrity Unit lawyer and investigator went to...the scene of the shooting, and re-enacted Jones's description of what she claimed she did that day. The investigator stood in the lobby and mimed gunshots and the lawyer tried to run to Jones's apartment. They determined that Jones's account was very unlikely because of the distance and the climb involved.

"Jones was interviewed in Pennsylvania, where she had moved, and she said she could have done it because she was a high school track athlete. When investigators noted that she was 5 feet 6 inches and weighed 170 pounds at the time,* she changed her story and said she saw the entire shooting while on the street."

[* If Aisha Jones ever really was an athlete, with that sort of body-mass-index, she wasn't doing any quick sprints up stairs at the time of the shooting.] "Based on the findings of the re-investigation, Logan was brought to Kings County...Court on June 3, 2014, where the prosecution asked that his conviction be vacated. The motion was granted, the prosecution dismissed the charge and Logan was released. He settled a claim for wrongful conviction against New York for $3.75 million and also received $2.98 million in compensation from the New York Court of Claims."

[All emphases added unless otherwise noted.]

Mayer Herskovic - Perjury / False Accusation

Thu, 06 Jun 2024 02:14:35 +0000

Herskovic, Mayer; assault; NRE: perjury/false accusation, false/misleading forensic evidence

Bench Trial

85 N.Y.S.3d 571; 2nd Dept. 10/10/18; reversed, due to weight of evidence

"The complainant testified that, on December 1, 2013, he was assaulted by approximately 20 Hasidic Jewish men in Williamsburg, Brooklyn. [Herskovic] and others were charged, inter alia, with gang assault in the second degree, unlawful imprisonment in the first degree, and menacing in the third degree. Following a jury trial, [Herskovic] was convicted of the aforementioned three charges.

"[W]e conclude that the verdict was against the weight of the evidence.

"At the trial, the complainant was not able to identify any of the persons who assaulted him. The complainant testified that one of the attackers shoved a thumb in his eye. Moreover, he testified that, during the assault, his sneaker was removed and thrown onto a nearby roof by one of the individuals who attacked him. Notably, the complainant and others who testified at the trial gave conflicting accounts of the assault. Among other things, the complainant testified that the person who pulled off his sneaker was the same person who shoved a thumb into his eye. He referred to this person as the 'ringleader' and one of the three men who initially chased him. However, he also testified that the person he identified as the ringleader was not [Herskovic]."

from NRE synopsis (by Ken Otterbourg):

"Taj Patterson was walking home through Brooklyn...at about 4 a.m. on December 1, 2013, when he was chased and then attacked by a group of young men.

"Many of the men were members of the Williamsburg Shomrim, a neighborhood watch group for the area's Hasidic community. They would tell police that they had believed Patterson was vandalizing cars, but that suspicion turned out to be false.

"As Patterson fought back, one of the attackers gouged him in the eye and then kicked him in the eye and then kicked him in the head. During the attack, he told police, that man also pulled off his sneaker and threw it on a nearby roof.

"The attack left Patterson, then 22, blind in his right eye. He was intoxicated at the time of his attack, and he would tell investigators that he could not identify his assailants because they were all young Hasidic men, wearing the same basic clothes with similar clothing and facial hair. He said there was an initial group of three men who chased him, and one of these had been the man who blinded him and took his shoe. Video cameras seemed to identify some of these possible assailants, but police initially closed the case without making an arrest.

"Patterson's mother complained to the media about the police department's indifference. She said public officials were too deferential to the Hasidic community because of its political clout. The case was reopened, and on April 23, 2014, Mayer Herskovic, a 21-year-old...was one of the five men arrested after other members of the Hasidic community named him as one of Patterson's assailants.* He was charged with gang assault in the first and second degree, unlawful imprisonment in the first and second degree, third-degree assault, and third-degree menacing. Charges were eventually dropped against two of the men. The other two pled to minor offenses and were given probation."

[* Based on what? Were the Hasidim who named him actually present at the assault? Herskovic would seem to have been offered up as a sacrificial lamb.]

"Herskovic was not a member of the Shomrim. The video footage excluded him from the initial chase, and there were no witnesses who said he was there. Patterson could not pick Herskovic out of a lineup.

"When the bench trial began in September 2016, the state's evidence hinged on DNA testing done on the sneaker recovered from the rooftop. It appeared to show a high probability that Herskovic's DNA was on the part of the sneaker that Patterson's assailant had grabbed. Patterson testified, and now said he was not sure that his principal assailant was in the group that initially chased him.

"On September 23, 2016, Judge Danny K.Chun of...Kings County convicted Herskovic of second-degree gang assault, first-degree unlawful imprisonment, and third-degree menacing. He was acquitted of first-degree gang assault. The other two charges had been dropped prior to trial. Herskovic was sentenced on March 16, 2017 to four years in prison, pending his appeal.

"Herskovic's attorney on appeal, Donna Aldea, asserted that the DNA testing was flawed. Moreover, the state had waited until the eve of trial to provide underlying notes and methodology, depriving Herskovic of effective counsel because of limited opportunity to adequately analyze the results.

"The sample taken from the shoe was under 100 picograms, the standard lower limit for comparisons.

"However, the Office of the Chief Medical Examiner in New York had developed software that allowed it to amplify these small samples to run comparison tests on genetic markers called alleles. The office's analysts said the probability of the sample having Patterson's and Herskovic's DNA was 133 times greater than it being Patterson's and an unknown person's.

[We have never seen a DNA probability match expressed in such terms in any other case.]

"Aldea argued that probability was misleading because it combined two different testing methods. The first was a so-called composite test that dropped out potentially fluke alleles, ones that weren't consistently present. With that test, some of his 15 pairs of tested alleles were present; others weren't. So the analyst restored the fluke alleles, which he testified was permissible under OCME protocol. While it created a stronger connection between Herskovic's DNA and the shoe sample, it also indicated the DNA of a third person.

"In addition, Aldea argued that the gene pool in the Williamsburg Hasidic community was fairly homogeneous, and it was therefore possible that the comparative results detected by the DNA analysis could fit more than one person.

"The OCME had discontinued using sample amplification shortly after Herskovic's trial.

"On October 10, 2018, the Appellate Division...vacated Herskovic's conviction and dismissed the charges.

"'Under the circumstances of this case, including the complainant's inability to positively identify any of his attackers, the varying accounts regarding the incident, and the DNA evidence which was less than convincing, we find that the evidence, when properly weighed, did not establish [Herskovic's] guilt beyond a reasonable doubt.'"

[All emphases added unless otherwise noted.]

William Gilman & Edward McNenney - Perjury / False Accusation

Thu, 06 Jun 2024 02:11:09 +0000

Gilman, William AND McNenney, Edward; fraud; NRE: no crime, perjury/false accusation, prosecutor misconduct, withheld exculpatory evidence

Bench trial

[Gilman] [957:638]; New York Cty. Ct. 7/2/10; reversed, due to Brady violations

[This case involved alleged price-fixing in the insurance industry.]

from NRE synopsis (by Maurice Possley):

"In 2004, New York Attorney General Eliot Spitzer launched an investigation of bid-rigging in the insurance industry in response to claims that executives had steered clients to favored insurers in return for kickbacks.

"In January 2005, Marsh & McClennan Companies entered into an $850 million settlement of a civil complaint brought by Spitzer and ultimately, 21 executives and insurance carriers pled guilty to fraud and other charges.

"In September 2005, William Gilman, Edward McNenney, and six other Marsh executives were indicted by a state grand jury on charges of fraud and grand larceny. Gilman and McNenney went on trial...before Justice James A. Yates, who heard the case without a jury.

"The prosecution contended that Gilman, an executive marketing director, and McNenney, a global placement director, fraudulently obtained millions of dollars for Marsh and other insurance companies by rigging the market for excess casualty insurance.

"Prior to trial, more than 20 million pages of files, records and emails were turned over to the defense. The prosecution's evidence came from the testimony of 12 Marsh brokers and underwriters from several other insurance companies who had pled guilty to participating in the scheme.

"The trial began on April 10, 2007 and ended on February 21, 2008 when Gilman and McNenney were acquitted of 20 counts and convicted of one count of fraud. They both were sentenced to 90 days in jail, to be served on weekends.

"In July 2010, Justice Yates set aside the convictions after defense lawyers showed that the prosecution had failed to turn over 700,000 pages of documents. The documents included evidence that Gilman and McNenney had not engaged in a bid-rigging scheme as well as evidence that several of the prosecution's witnesses had given contradictory testimony in other legal proceedings and received hidden promises of leniency for cooperation beyond what was contained in thir plea agreements.

"The defense discovered the existence of the documents in a separate 2009 trial of other Marsh defendants. Justice Yates said the documents would have been 'invaluable' to the defense. The defendants in the 2009 trial were acquitted.

"In January 2011, New York Attorney General Eric Schneiderman dismissed the charges against Gilman and McNenney. Yates also granted prosecution requests to dismiss the misdemeanor convictions of four other Marsh employees who had pled guilty and to reduce (and ultimately dismiss) the felony convictions of eight other Marsh employees who had pled guilty to misdemeanor convictions.

"Gilman and McNenney later sued Spitzer for libel, but their suits were unsuccessful."

[All emphases added unless otherwise noted.]

Andre Hatchett - Perjury / False Accusation

Thu, 06 Jun 2024 02:07:11 +0000

Hatchett, Andre; murder; NRE: perjury/false accusation, inadequate legal defense, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence

K14 "A man who spent almost 25 years in prison for a murder he said he did not commit walked out of a courtroom a free man...after Brooklyn prosecutors told a judge they could no longer stand by a conviction made from a 'systemic failure.'

"Members of the Conviction Integrity Unit in the Brooklyn [DA's] Office moved to vacate Andre Hatchett's 1992 second-degree murder verdict, pointing to an unreliable witness and Brady violations.

"'Mr. Hatchett was failed by almost every institution that he came in contact with during the course of this prosecution,' [ADA] Mark Hale said in court. He said the case was marred by Brady violations, as well as a substandard trial defense and an 'incredibly sloppy investigation' by police."

[Brady violations and an 'incredibly sloppy investigation by police' also characterized the prosecution of Nickel .]

"Hatchett's conviction is rooted in the 1991 murder of a woman in a park.

"Police responded to a 911 call about an unconscious woman around 11 p.m. on Feb. 19, 1991 and found Neda Mae Carter, 38, lying face up, naked, badly beaten in the face, head and neck.

"Detectives visited the victim's mother and learned that Carter had left home around 9:30 that evening and had been with Hatchett.

"Carter and her mother lived in the same rooming house as Hatchett's aunt and Hatchett visited the house frequently.

"Hatchett cooperated with the police and offered an alibi, according to the Innocence Project.

"At the time of the incident, Hatchett was recuperating from gunshot wounds to his throat and legs. His right leg was in a cast and he was using crutches."

[How in the world could a man on crutches, who was recuperating from gunshot wounds to his throat and legs, ever manage to pin a woman down, strip her naked, and then severely beat her?]

"The only witness to testify against Hatchett was Jerry Williams, who was a 'career criminal' according to a Brooklyn [DA] press release announcing the vacatur.

"A week later, Williams was arrested for an unrelated burglary and told officers at the precinct that he recognized a suspect in another robbery as perpetrator of the murder the week earlier.

"The man was investigated and determined to have an alibi.

"Prosecutors at the time never told Hatchett's defense that Williams, the only eyewitness to testify, had implicated someone else and had told police he had smoked crack the day Carter was killed -- information that cast his reliability into question and should have been disclosed, Thompson's office said.

"According to the Innocence Project, Hatchett's defense never offered medical records that would have shown the virtual impossibility of him carrying out the crime in his physical state..."

[639:114]; 2nd Dept. 3/11/96; affirmed "[W]e are satisfied that the verdict of guilt was not against the weight of the evidence..."

from NRE synopsis (by Maurice Possley):

"Shortly before midnight on February 18, 1991, the body of 38-year-old Neda Mae Carter was found naked and beaten in Monroe Street Park in the Bedford-Stuyvesant neighborhood of Brooklyn...She had been arranged in a cruciform -- her arms were straight out to her sides and her legs were crossed at the ankles. Scrapes on her body indicated she had been dragged to the location where she was discovered."

"In October 1991, Hatchett went to trial in Kings County..."

At the end of the trial, the judge declared a mistrial because of inadequate legal defense provided by Hatchett's defense lawyer. The judge cited the attorney for numerous failures, including failing to serve notice to the prosecutor of an alibi defense, for non-existent or minimal cross-examination of witnesses, and for repeatedly conducting conferences with Hatchett or the prosecutor in a voice loud enough for the jury to hear. The judge noted that the lawyer was hearing-impaired and could not hear all of the testimony.

"Hatchett went to trial for a second time in February 1992... Williams testified and...denied that he had received any favorable treatment from the prosecution relating to his burglary charge in exchange for his testimony. At the time, Williams had nearly two dozen prior convictions.

"On February 19, 1992, the jury convicted Hatchett of second-degree murder."

"On March 10, 2016 [ADA] Mark Hale, head of the Conviction Review Unit, moved to vacate the conviction and dismiss the case. 'Mr. Hatchett should never have been charged with this homicide,' Hale said, adding that the prosecution of Hatchett was a 'systemic failure' of the criminal justice system."

"In March 2017, Hatchett filed a wrongful conviction lawsuit. In October 2017, the city of New York settled the lawsuit for $12 million. Hatchett also filed a claim for compensation in the New York Court of Claims and received $2.5 million in 2021."

[All emphases added unless otherwise noted.]

Nathaniel Johnson - Mistaken Witness Identification

Thu, 06 Jun 2024 01:50:43 +0000

Johnson, Nathaniel; robbery; NRE: mistaken witness identification, prosecutor misconduct, withheld exculpatory evidence

Suggestibility issues

[930:362]; 4th Dept. 10/7/11; affirmed

"[W]e reject [Johnson's] contention that the verdict was against the weight of the evidence. The manager of the covenience store that was robbed...identified [Johnson] at trial as the person who committed the robbery. The manager also testified that he was able to observe [Johnson's] face when [Johnson] [ supposedly ] approached the manager before [Johnson] entered the store wearing a 'translucent' scarf over his mouth and nose.

"We further conclude that [County] Court properly refused to suppress the testimony of the manager with respect to the photo array in which he identified [Johnson]...There is no evidence in the record that the photo array drew the manager's attention to the photograph of [Johnson] or that the identification procedures employed by the police were unduly suggestive..."*

[* That's extremely misleading: As we shall see below, the events just prior to the photo lineup rendered the latter immensely suggestive.]

from NRE synopsis (By Maurice Possley):

"At 4:30 a.m. on April 23, 2009, a man with a pistol and a translucent scarf over his face held up a Wilson Farms store in Buffalo...and escaped with $3,000 in cash.

"A police officer who was pulling into the store parking lot saw a car leaving and took down the license plate number. When police ran a computer check on the license plate number, it came up registered to a car that did not match the car seen leaving the lot. Police believed they had the wrong license plate number and did not investigate further.

"The investigation soon focused on 40-year-old Nathaniel Johnson, who had a previous conviction for robbery. Police discovered that Johnson had been seen on a security video at another Wilson Farms store where his girlfriend previously worked. His girlfriend was concerned about locking up the store alone in the early morning hours, so Johnson regularly came by to be with her. The security video showed him in areas of the store where customers are prohibited, and as a result, Johnson's girlfriend had been fired.

"The manager of the store that had been robbed viewed this security video shortly before police came to him with a photographic lineup that included Johnson's photograph. The manager identified Johnson as the man who robbed him. Johnson was arrested May 12, 2009 and charged with armed robbery.

"Johnson went to trial in Erie County...in January 2010. The manager identified Johnson and testified that he saw Johnson's face just before he covered it with the scarf.

"Johnson's girlfriend also testified for the prosecution, saying that Johnson had once told her that Wilson Farms stores would be easy to rob. The prosecution failed to disclose to the defense that the girlfriend had a drug charge pending against her that was dismissed."

[This 'girlfriend' of Johnson's is a real piece of work. Because she had felt unsafe locking up the store alone in the wee hours of the morning, she'd asked Johnson to accompany her, which -- with grace as well as chivalry -- he did. That's the only reason why Johnson was on that earlier security video of another store in that chain, which the manager of the robbed store was shown just before the police came to him with a photographic lineup that included Johnson's picture, thereby 'priming' the manager to identify Johnson in the array. And then, probably due to a combination of her resentment at being fired due to Johnson being (at her request) where he shouldn't have been and wanting to wriggle out of a drug conviction, she sells out her boyfriend with a story about him supposedly saying these stores were easy to rob -- testimony which shouldn't even have been allowed in, given that it was far more prejudicial than probative.]

"During Johnson's trial, a police officer testified about the license plate, saying that the officer apparently got the wrong plate number because the plate turned out to be on a car that did not match the description of the getaway vehicle.

" A friend of Johnson's who was attending the trial, Kathleen Kuwik, had just become a licensed private investigator, and she went to the address linked to the license plate and saw two cars in the driveway. One of the cars had no license plates and matched the description of the robber's car. She believed the robber had taken the plates off the other car and put them on the getaway car for the robbery and then put them back on the other car after the robbery to avoid detection. When she returned to the courthouse to try to alert Johnson's defense attorney, she was too late -- closing arguments were completed.

"Johnson was convicted by a jury on January 14, 2010 and was sentenced to five years in prison.

"His conviction was upheld on appeal, but Kuwik and Johnson's appellate lawyers continued to investigate. They discovered that the car with no license plates was being used by a woman whose boyfriend, Jabari Spencer, had been arrested just a few months after Johnson was arrested. Spencer, who also had access to the car, was charged with two other armed robberies, on June 10 and July 3, 2009.

"He had been convicted of one of the robberies and sentenced to 10 years in prison.

"In 2012, Johnson filed a motion for a new trial and the Erie County [DA's] Office assigned the case to an investigator for review. In April 2013, after concluding that Johnson was innocent, the prosecution joined with the defense motion for a new trial. Johnson's conviction was vacated, the case was dismissed and he was released from prison."

[All emphases added unless otherwise noted.]

Kian Khatibi - Perjury / False Accusation

Thu, 06 Jun 2024 01:48:20 +0000

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.]

Gerald Harris - Mistaken Witness Identification

Thu, 06 Jun 2024 01:46:38 +0000

Harris, Gerald; robbery; NRE: mistaken witness identification

[828:463]; 2nd Dept. 1/16/07; civil suit

[A witness selected Gerald Harris from a lineup. But he was actually at home the time of the robbery, and had alibi witnesses. During the trial, the Court received a letter from Harold Harris (Gerald's brother), saying he (not Gerald) had participated in the robbery, and that he'd turn himself in once he got a lawyer. However, the trial then continued with no further contact from Harold. By the time of sentencing, Harold had submitted an affidavit saying he had committed the robbery, and named the others involved. Harold was in the courtroom for a hearing on this, but subsequently got cold feet and returned to South Carolina where he was subsequently arrested for an unrelated crime.]

from Records and Briefs:

[6] "During the hearings on the [post-conviction] motion, three of the four participants in the subject armed robbery acknowledged their complicity in the crimes and stated [Gerald] was not involved in the commission of the aforesaid crimes.

[62] "[Gerald] relied upon an alibi defense where he claimed on the night of the robbery he, along with several family members and a friend, were in fact at the time of the occurrence at his home watching tapes of boxing matches in which he had participated."

[63] "Harold and Gerald Harris...were of the same height and build."

"At the trial in 1992 one of [Gerald's] sisters, one Evelyn Davis, and a friend named Sharon Lee testified in support of the alibi defense...'"

from NRE synopsis (by Maurice Possley):

"On December 18, 1991, a couple were approached by three men with guns who robbed them in the driveway of their home in Corona Queens...A fourth man was waiting in a getaway car.

"A month later, police arrestd 23-year-old Gerald Harris, a Golden Gloves boxer, after he was seen in a car that resembled the getaway car. Both victims identified Harris in a lineup.

"In November 1992, a jury convicted Harris of armed robbery based on the testimony of the victims.

"Before sentencing, Harris's brother, Harold, who resembled him, came to court to confess that he was the actual robber, but he did not testify at that time because the [DA] wasn't present.

"As a result, Harold Harris left for South Carolina without making a public confession and subsequently, [Gerald] was sentenced to 9 to 18 years in prison. Meanwhile, Harold Harris was later convicted of drug charges in South Carolina and sentenced to 25 years to life.

"[Gerald's] former boxing trainer was convinced of his innocence and his advocacy led to the reopening of Harris's case.

"Harold Harris eventually did confess to the authorities and one of the other robbers also said that [Gerald] had nothing to do with the crime. Neither Harold Harris nor the other robber were charged in the crime because by then, the statute of limitations had expired.

"On December 15, 2000, the [DA] supported Harris's motion to vacate his conviction and then dismissed the charges.

"Harris was later awarded $3,010,000 in compensation by the New York Court of Claims."

[All emphases added unless otherwise noted.]

Patrick Johnson - Perjury / False Accusation

Thu, 06 Jun 2024 01:43:19 +0000

Johnson, Patrick; murder; NRE: perjury/false accusation, inadequate legal defense, police misconduct, prosecutor misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

[575:143]; 2nd Dept. 10/15/91; affirmed, but one dissenter

"[Johnson] was arrested after being identified in a lineup by the complainant Lee Anderson as being one of the two gunmen who entered a Brooklyn carpet store and fired shots at Anderson and a second man, killing the second man...Anderson testified at trial that he knew [Johnson] from the neighborhood and recognized him when he entered the carpet store.

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

[from dissent (Justice Lawrence):] "The only evidence connecting [Johnson] to the crimes in question was Anderson's testimony that he recognized [Johnson] as one of the perpetrators involved in the shooting inside the carpet store. This testimony was seriously put into question by his admission that he had only viewed the perpetrators' faces for 'about half a second' before he covered his face and ran out of the store through the rear door. Anderson further admitted that in his prior sworn testimony given at the suppression hearing he had stated that he had 'not really recognized' any...of the perpetrators, despite testifying at that time that he had seen them for two or three seconds. In addition, Anderson's direct testimony that prior to the incident, he had known [Johnson] for 'months' from 'around the neighborhood' was also seriously put into doubt by his testimony on cross-examination that his knowledge of [Johnson] was based solely on the viewings of [him], one 'perhaps for a second,' and the other equally as fleeting. On both occasions, Anderson was driving his motor vehicle, and [Johnson], who was not doing anything to draw attention to himself, was either standing or talking to another man on the street. In addition, Anderson admitted that in his prior sworn testimony at the suppression hearing, he had stated that at the time of the incident he had not seen the face of anyone that he had previously known."

[587:278]; Court of Appeals 6/9/92; reversed, due to weight of evidence and evidentiary errors

"The eyewitness, the sole witness who inculpated [Johnson] in the commission of these crimes, gave testimony which was internally contradictory and inconsistent in nature. Significantly, the trial prosecutor pointedly relied on the erroneously admitted lineup evidence in the [prosecutor's] opening statement and summation, thus exacerbating the prejudicial impact."

[If it were not for Justice Lawrence's dissent in the 2nd Dept. (see above), it is extremely unlikely that the Court of Appeals would have even agreed to hear Johnson's appeal, much less grant him a reversal.]

from Records and Briefs:

[6] "[Johnson's] first trial ended with a hung jury. At his second trial, the eyewitness gave testimony that was inconsistent with much of his testimony at the [pre-trial] hearing and the first trial, asserted that he had been lying at those proceedings but was telling the truth now, and claimed, for the first time, that he had recognized [Johnson] on the basis of two prior, fleeting viewings while driving down crowded city streets. Nonetheless, the jury found [Johnson] guilty on all counts. Anderson subsequently recanted his identification of Johnson."

[Detective Anthony Cordero of the 71st Precinct assigned to case, as well as Detective Richard Gordon. Prior to the trial at least, ADAs involved were Robert Lesser and Johh Tasolides. ]

[Romeo Stultz was Johnson's co-defendant, but he died prior to second trial.]

[12] "According to Anderson, Cordero ...gave him [a mughot book], and asked him to look for the other two perpetrators [besides Stultz]...Half an hour later, Anderson remarked that a photo of [Johnson] 'looked like' one of them...Cordero denied that Anderson ever viewed a photograph of [Johnson]..."

"Shortly afterward, an officer escorted [Johnson] in handcuffs past Anderson,* about 17 feet away...Anderson saw Johnson for approximately 30 seconds, and recognized him as the man in the photograph he had just viewed."

[* This is called a 'show-up,' which is extremely suggestive.]

[This source gives Anderson's first name as Leo (as opposed to Lee, cited in first case above).]

[26] [Jackson is then convicted and sentenced.]

"[Johnson] moved for a new trial...on the basis of newly discivered evidence. On November 5, 1984, at a hearing held pursuant to the motion, Anderson recanted his identification of [Johnson] as one of the perpetrators, admitting that he had [27] identified [him] as one of the gunmen out of 'respect' for Danny, his boss, who had 'put him in the position of testifying against an innocent man,' and that the [DA] had threatened to charge him with perjury if he did not testify against [Johnson] at the second trial..." [Motion denied.]

[34] "[I]t is ludicrous to imagine that Anderson, while driving a car, could possibly have singled out and remembered a stranger on the street, among countless anonymous pedestrians, when he had never had anything to do with him and had no reason to recall him."

from NRE synopsis (by Maurice Possley):

"On March 24, 1982, two gunmen entered a carpet store in Brooklyn...and fatally shot Philip Taylor, a reputed drug dealer. Police believed the store was a front for a drug sales operation because there was only one roll of carpet in stock.

"Shortly after the shooting, an informant told police that the store's owner, Lee Anderson, who had previous arrests and convictions for drug crimes, was present at the time of the shooting. Police located Anderson and took him to the 71st Precinct...Before Anderson was questioned, however, he asked to use the bathroom and then slipped out of the station. Detectives found him again and brought him back, but again he managed to escape from the station."*

[* It's funny how the above court decision affirming Johnson's conviction neglected to mention this.]

"Detectives found Anderson a third time on March 26 -- two days after the murder -- and this time, they handcuffed him to a chair in the precinct. When Anderson was finally questioned, he gave the first of what would be five different versions of what happened. Because police believed he was running a drug operation and not a carpet business, they suspected Anderson knew who the gunmen were. Anderson said that he didn't look at the gunmen. He said that he was afraid and he hid.

"A detective later testified that he heard from an informant that one of the gunmen was named Patrick and learned that 22-year-old Patrick Johnson was being questioned about an unrelated crime in the 77th Precinct, several blocks away.

"At 4 a.m. on March 27, 1982, Anderson was shown a lineup containing Johnson. Just before the lineup, detectives escorted Johnson in handcuffs past Anderson. Although Johnson was 22, the other four men in the lineup ranged in age from 37 to 46. Anderson said Johnson 'looked like' one of the gunmen. Johnson was charged with the second-degree murder of Anderson, and criminal possession of a firearm.

"Another man, Romeo Stultz, also was charged with the murder based on an identification by Anderson.

"Johnson and Stultz went on trial in Kings County...in January 1983. The state's case relied almost entirely on the identifications made by Anderson. Johnsons lawyer called several alibi witnesses as well as documentary records showing that Johnson had been paying a utility bill at the time of the crime and making purchases for his wife, who was home ill. Johnson, who managed a grocery store, testified that he was off on the day of the crime and spent the entire day running errands for his family, and spent the night in his home, more than 10 miles from the scene of the murder.

"No physical or forensic evidence linked either defendant to the crime. A mistrial was declared when the jury was unable to reach a unanimous verdict.

"Johnson went on trial a second time in December 1983 by himself, because Stultz attempted to rob a store in Brooklyn and was killed by the store owner. Johnson's attorney at the trial did not call any alibi witnesses, telling Johnson that he was convinced that Anderson was so incredible as an eyewitness that the jury would acquit him.* During cross-examination, Anderson admitted he had lied to detectives on numerous occasions, saying he didn't want to get involved in the case."

[* Well, the first jury didn't acquit him. Moreover, it is extremely reckless to just blithely dispense with alibi witnesses like that.]

"Nonetheless, on December 20, 1983, the jury convicted Johnson of second-degree murder, attempted murder and criminal possession of a firearm. He was sentenced to 15 years to life in prison.

"In November 1984, Anderson, who was in prison, contacted Johnson, saying he had converted to Islam. Anderson signed a sworn affidavit saying that Johnson was not involved in the shooting and that he had only identified him because he saw him being led into the lineup in handcuffs.

"Anderson said he lied 'because (the police) came and picked me up and brought me down there and I guess if I didn't do it, they just keep coming to pick me up again sometime. . .I wanted to get them off my back, get them to leave me alone.'

"A motion to vacate Johnson's convictions was filed, but the motion was denied in 1985 by the trial judge, Sybil Kooper, even though at sentencing in January 1984, Kooper had said there were 'hundreds' of inconsistencies in Anderson's testimony and she thought he was 'a terrible witness.'

"Johnson's convictions were upheld on appeal. In June 1988, Johnson filed a motion to vacate his convictions on the ground that his trial attorney had provided a constitutionally defective defense by failing to call the alibi witnesses. That motion was denied, but in June 1992, the New York Court of Appeals reversed the convictions and ordered a new trial, finding that the lineup identifications should have been suppressed because of Anderson's 'internally contradictory and inconsistent' testimony.

"On April 5, 1993, the Kings County [DA's] Office dismissed the charges and Johnson was released.

"In 1995, Johnson filed a claim for restitution with the New York Court of Claims, but the claim was dismissed."

[All emphases added unless otherwise noted.]

Johnny Hincapie - "Overwhelming" False Confession

Thu, 06 Jun 2024 01:37:27 +0000

Hincapie, Johnny; murder; NRE: false confession, perjury/false accusation, inadequate legal defense, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, misconduct in interrogation of exoneree; "OVERWHELMING"

Suggestibility issues

[629:416]; 1st Dept. 7/6/95; affirmed

"[Hincapie's] own statements regarding his participation in the crimes charged were supported by an abundance of corroborating evidence, including the testimony of eyewitnesses regarding the details of the robbery and one victim's identification of [Hincapie] in a lineup as someone who looked familiar from the robbery*..."

[* What in the world does that mean?]

155 F.Supp.2d 66; S.D.N.Y. 8/15/01; writ denied

"On the evening of September 2, 1990, [Hincapie] and a group of his friends, on their way to a dance club, arrived at a subway station in Manhattan...[Hincapie] and several others in the group did not have enough money for admission into the club, so they separated from the larger group and sought to commit a robbery on the subway to obtain money. [Several members of the Watkins family] were visiting from Utah and were targeted by [Hincapie] [???] and his friends as they stood on the subway platform...and a struggle ensued. Brian [Watkins] was fatally stabbed in the chest and approximately $150 was taken from his father.

"At [Hincapie's] trial, he sought to introduce the videotaped confession of his co-defendant Ricardo Lopez. In that tape, Lopez stated, 'Johnny and Kevin left [the group that was planning to commit the robbery].' Lopez later repeated that 'the two of them left.' Lopez was unable to testify at [Hincapie's] trial, and Justice [Edwin] Jones excluded the evidence as hearsay.

"The evidence against Hincapie was overwhelming..."

[This decision was penned by Judge Miriam G. Cederbaum. ]

2020 WL 362705; S.D.N.Y. 1/22/20; civil suit

"Plaintiff Johnny Hincapie claims that he was not involved in the crime...[He] was upstairs on the subway platform's turnstyle level with two girls and Luis Montero when the crime occurred, unaware of what was happening on the subway platform below.

"The first two suspects, Anthony Anderson and Luis Montero, were arrested based on eyewitness statements...At the precinct, Anderson admitted to involvement in the crime and provided a statement naming accomplices, but did not mention [Hincapie]...Over the course of several hours and four separate interrogation sessions -- one of which took place in the precinct's locker room -- suspect Luis Montero was beaten and interrogated by [Detective Carlos] Gonzalez and [Detective Donald] Casey but refused to falsely confess.

"Within hours of the crime, the next two suspects, Ricardo Nova and Pascual Carpenter, were taken into custody -- neither were given any Miranda warnings,* but each was interrogated, leading to statements that for the first time included 'Johnny' as a member of the group heading to the [dance club]...The statement attributed to Nova -- written by... Detective [Jose Ramon] Rosario -- listed eleven participants in the robbery, six more than had been reported by the victims ...Carpenter's confession did not mention [Hincapie]...Indeed, Carpenter repeatedly indicated to the [DA] that the information in his statement had been supplied by Gonzalez and Casey ...Since Carpenter's release from prison, he has described Gonzalez and Casey as coercing him into adopting the detective's narrative in his written statment and instructing him to list Hincapie as present, even though Carpenter had no such knowledge."

[* Nickel was never given any Miranda warnings either.]

"By midday on September 3, 1990, three additional suspects were detained: Gary Morales, Emiliano Fernandez, and Ricardo Lopez...Morales made no mention of...Johnny Hincapie... Detectives [Daniel] Rizzo, [Matthew] Santoro, and [James] Christie made Fernandez go back after his statement had been drafted and insert the name 'Johnny.' ...Lopez's statement...also makes no mention of Johnny Hincapie. Nevertheless, the police report prepared by [Detective Arthur] Swanson and approved by [Sergeant Timothy] Connolly states that Lopez told investigators that seven others 'including Johnny' stayed behind to participate in the crime...Lopez's videotaped statement to the DA's office makes clear that the evidence was fabricated, as he stated several times that 'Johnny left' before the crime and that there were six people present.

"Johnny Hincapie, barely 18 years old with no prior police encounters, was the last suspect arrested. Casey, Gonzalez, Christie, and [Sergeant Sharif] Ali interrogated [Hincapie] for several hours, without Miranda warnings, threatened and inflicted bodily harm and forced him to falsely confess to participating in the crime...Like the other interrogations, this one was not recorded either.*...[Authorities] forced [Hincapie] to adopt a role in the crime of pushing Karen Watkins, the same act attributed to an African-American perpetrator, purportedly claimed hours earlier by Carpenter...Detective Christie wrote out [Hincapie's] purported statement.**...In the videotaped statement to the DA's office, [Hincapie] appears to be in a trance-like state, missing patches of hair from the violent interrogation, providing inconsistent and confused answers to questions drawn from the false statement."

[* The interrogation of Nickel was not (electronically) recorded either.]

[** Likewise, Detective Mark DeFrancesco wrote out Nickel's purported statement.]

"No one ever positively identified [Hincapie] as taking part in either the Watkins robbery or murder, either before or at trial...In addition to failing to identify [Hincapie] as a participant in the crime, the six eyewitnesses offered by the state at trial cumulatively misidentified 27 fillers during the line-up procedures...No physical evidence tying [Hincapie] to the crime ever existed... The only evidence presented at trial against [Hincapie] was his false confession and a single witness's equivocal pre-trial statement that [Hincapie] looked 'vaguely familiar.'...Hincapie was convicted and sentenced to twenty-five years to life.

"In November 2013, [Hincapie] filed a...motion asserting actual innocence and newly-discovered evidence...Multiple witnesses with direct knowledge testified under oath to [Hincapie's] innocence at the...hearing, none of whom had testified at his trial...One particular witness, Mariluz Santana, who knew [Hincapie] from her neighborhood, testified that she observed the entire Watkins robbery...She testified as to [Hincapie's] innocence and swore he was not present...Santana had not come forward earlier on her mother's advice, but was unaware that [Hincapie] spent the ensuing decades in jail...On October 6, 2015, a New York State court...vacated his conviction...The DA's office elected not to retry the case and dismissed the indictment against [Hincapie] on January 25, 2017."

from Records and Briefs (post-conviction motion):

"[At the hearing on a motion for a new trial,] Detective [James] Christie ...arrogantly and smugly insisted that not only was Johnny Hincapie not mistreated in any fashion, but in thirty years on the force, from 1968 to 1998, Christie never witnessed any suspect mistreated by any police officer to obtain a statement, and by the way, the Central Park Five got off but were guilty."

"Detective [Carlos] Gonzalez, who played a major role getting confessions in the Central Park Jogger case just a little over a year before, would go on to become a key player in the investigation of this case as well."

"One of Hincapie's co-defendants, Pascual Carpenter, confessed to -- and was convicted of -- playing the precise role in the robbery to which Hincapie 'confessed.' Carpenter confessed much earlier in the day than Hincapie and admitted that he was the person who held the woman back during the incident." [Emphasis original.]

from NRE synopsis (by Maurice Possley):

"In September 1990, 22-year-old Brian Watkins and his family traveled from their Utah home to New York City to attend the U.S. Open tennis tournament. On the night of September 2, they decided to take the subway from their hotel on West 53rd Street to have dinner in Greenwich Village.

"While they were on the platform, they were attacked by a group of youths who knocked down Brian's father, Sherwin. They slashed open two of his pants pockets with a box cutter, severely injuring him, and took about $200 in cash. When one of the attackers grabbed Brian's mother, Karen, by the hair and kicked her in the face and chest, Brian intervened and was stabbed in the chest. Brian's brother and sister-in-law were not touched.

"The attackers fled up the escalator and Brian chased them. However, he collapsed on the way up, near the token booth. He died in an ambulance, his pulmonary artery [having been] severed in the stabbing.

"The attack sent shock waves through New York City in a year when more than 2,200 murders eventually would be recorded. Just days later, the New York Post emblazoned its front page with the words 'DAVE, DO SOMETHING!' in a plea to then-Mayor David Dinkins. Ultimately, seven young men, ages 17-20, were convicted and all were sentenced to 25 years to life in prison.

"The police rounded up numerous suspects for questioning after a witness said a large group of young men and women had poured out of the subway station at about the time of the crime. The were headed for the Roseland Ballroom, a nightclub on West 52nd Street, to go dancing.

"Police learned that about an hour before the attack, a group of several dozen teenagers boarded the train in Queens, headed for the Ballroom. They got off the train at the station where the Watkins family was waiting and most of them went upstairs. However, several of the teenagers came back down because they didn't have the $15 cover charge to get into the Ballroom and decided to get the money by committing a robbery.

"Immediately after the crime, the attackers and a crowd of people who were on the platform and witnessed the attack rushed upstairs to the street. Antonio Gonzalez, a locksmith, was standing outside the subway entrance. He later told police that he had seen a large group of teenagers come up and head to the ballroom, but that several returned and went back into the subway. Minutes later, after a horde of panicked people came out of the subway, he went down and found Karen Watkins, bleeding and hysterical.

"Gonzalez and police later went to the Ballroom where Gonzalez pointed out Anthony Gonzalez as one of the youths he had seen emerging from the subway. He also pointed out Luis Montero as a youth he had seen standing outside the subway entrance. Members of the Watkins family were driven to the ballroom. From the police car, they viewed Montero and Anderson and identified them being among the attackers.

"Montero and Anderson were taken to the police station and interrogated by two detectives. One was Carlos Gonzalez, who had played a major role a year earlier in obtaining (what would ultimately be determined to be false) confessions from Antron McCray et al. and Steven Lopez in the attack known as the Central Park jogger case.

"Montero refused to confess, but Anderson did. Based on his statement, along with descriptions given by the Watkins family, detectives arrested several more suspects outside the Ballroom when it closed in the early morning hours of September 3, 1990.

"Two of those suspects, Pacual Carpenter and Ricardo Nova, also confessed to taking part in the attack. Based on information they gave, detectives arrested Gary Morales, Emiliano Fernandez and Ricardo Lopez. All three of them confessed as well.

"At that point police had seven youths in custody and six had confessed to the same story: that the Watkins family was attacked and robbed for money to get into the Ballroom. The eighth youth charged was 18-year-old Johnny Hincapie, an aspiring dancer, who was implicated by Ricardo Mora and Gary Morales.

"A day later, police said Hincapie had confessed as well and his statement was recorded on video.

"A year later, the [Manhattan DA's] Office dismissed charges against one of the eight, Luis Montero (the only defendant who had not confessed), and proceeded to trial against the remaining seven. Hincapie was tried in [Manhattan] along with Anthony Anderson, Pascual Carpenter, Gary Morales, Emiliano Fernandez, Ricardo Nova, and...the youth who had implicated Hincapie during interrogation.

"The three other defendants -- Ricardo Lopez [and two others] -- were tried separately. Separating the defendants into two groups allowed the prosecution to prevent Hincapie's lawyer from presenting a statement Lopez made to police during Lopez's interrogation. In that statement, Lopez said that Hincapie was not present at the crime. The defense lawyer tried to introduce the statement, but the trial judge ruled the statement was inadmissible hearsay.

"No physical evidence linked Hincapie to the crime. None of the family members could identify him. Karen Watkins, Brian's mother, testified that she had viewed a lineup after Hincapie was arrested and that while he looked 'vaguely familiar,' she could not say he was involved.

"The prosecution presented a videotaped confession given by Hincapie following an interrogation by several detectives. Hincapie testified that the confession was false and was coerced by a detective who slapped him in the head, shoved him to the floor with his foot, repeatedly screamed at him and blew cigarette smoke in his face.

"The detective denied mistreating Hincapie and denied Hincapie's assertion that he had been given a scenario to memorize so that Hincapie could repeat it when he gave his recorded statement.

"Hincapie never denied he was among the group of teenagers who were heading to the Roseland Ballroom. He claimed that he had given his cash to a friend to hold for him because the designer pants he was wearing were too tight to fit a wallet. Hincapie said that when he got off the train and came up to street level, he couldn't find his friend and went back down into the subway to try to find him.

"As he was heading down an escalator, Hincapie said a large group of teenagers came rushing up, so he turned around and went back to the street where he saw his friend, got his money and went to the dance. He said he did not learn of the attack until he saw it on the news the following day -- the same day he was arrested.

"On November 10, 1991, a jury convicted Hincapie and his co-defendants of second-degree murder and robbery. They were sentenced to 25 years to life in prison. The other three defendants -- including [the person] who admitted he was the one who stabbed Brian Watkins -- were convicted in their separate trials and also sentenced to 25 years to life in prison.

"Over the next 15 years, Hincapie lost all of his appeals. Attorney Vivian Shevitz, who was appointed to represent him on appeal from the denial of a federal petition for a writ of habeas corpus, continued to represent him after the appeal failed -- without charge. In May 2007, Shevitz wrote to the [Manhattan DA's] office requesting that the case be re-investigated.

"The office did re-open the case and interviewed Hincapie, but ultimately closed the case saying thay were satisfied that Hincapie was guilty. Hincapie and his lawyers were skeptical that the re-investigation had been taken seriously -- the prosecutor who directed the re-investigation was the same prosecutor who had presented the evidence against Hincapie at trial in 1991.

"In 2006, William Hughes, a journalist and professor at City University of New York, met Hincapie while researching an article on false confessions. At the time, Hughes was working for The Journal News in Westchester County...In 2010, after the prosecution closed its re-investigation, Hughes published a lengthy article about Hincapie's case. Hughes was convinced that Hincapie was innocent and decided to write a book about the case.

"During his research, he discovered that [one witness] had never been questioned by defense lawyers about whether Hincapie was involved in the crime. [This person] told Hughes that he knew Hincapie was not involved because he actually was with him briefly when Hincapie had gone down into the subway looking for his friend who had Hincapie's money.

"Hughes wrote to the six men who were convicted of the crime. Two of them agreed to meet with Hughes, but said they couldn't remember if Hincapie was involved or even present. Two others refused to speak to Hughes, citing the advice of their attorneys, and two others did not respond at all.

"In 2013, attorneys Ronald Kuby and Leah Busby filed a post-conviction petition on behalf of Hincapie seeking a new trial. The petition included a sworn statement from Montero that Hincapie was within his sight at the time of the crime and was nowhere near the attack. Montero also described being physically abused by detectives during his interrogation -- abuse similar to that described by Hincapie.

"Montero's statement was supported by a sworn affidavit from...one of the six others who had confessed and been convicted. [This person], who had refused to speak to Hughes on the advice of his attorney, said in the affidavit that Hincapie was not involved in the crime.

"The petition also cited the statement by Ricardo Lopez to police at the time of his interrogation. In that statement -- which had been barred from Hincapie's trial -- Lopez said that he and five others, but not Hincapie or Montero, were involved.

"Beginning in February 2015, [Manhattan] Judge Eduardo Padro conducted a series of evidentiary hearings on the petition. Hincapie testified and denied involvement and described his interrogation. Lopez and Montero also testified. Montero recounted that Hincapie was upstairs and not on the platform when the crime occurred, and Lopez testified that he was involved in the attack but Hincapie was not.

"In addition, the defense presented Mariluz Santana, a 45-year-old hospital worker. Santana, who had not previously come forward, testified that she was on the platform and witnessed the attack. Hincapie, she said, was not there.

"In October 2015, Judge Padro granted the petition, vacated Hincapie's conviction and ordered a new trial. The judge said that the testimony of Mariluz Santana and Lopez would have likely changed the outcome at Hincapie's trial. 'All three witnesses indicate that Hincapie was not on the subway platform at the actual moment of the robbery of the Watkins family. Each statement exculpates Mr. Hincapie.'

"On October 6, 2015, Hincapie was released on bond pending a retrial. The prosecution appealed Judge Padro's decision. In September 2016, the Appellate Division...upheld Judge Padro's ruling.

"On January 24, 2017, the prosecution dismissed the charges.

"In April 2018, Hincapie's attorney, Gabriel Harvis, filed a federal civil rights lawsuit against the city of New York, alleging malicious prosecution, fabrication of evidence and false imprisonment. On November 2018, Harvis and his firm, Elefterakis, Elefterakis & Panek, filed a claim for unjust conviction on Hincapie's behalf in the New York Court of Claims. The state claim was settled in November 2022 for $12.9 million.

"In 2023, the Queens [DA's] Conviction Integrity Unit agreed to the dismisal of the convictions of Armond McCloud Jr. and Reginald Cameron after concluding that both men falsely confessed during interrogations by Detective [Carlos] Gonzalez."

[All emphases added unless otherwise noted.]

Lonnie Jones - Perjury / False Accusation

Tue, 04 Jun 2024 02:33:04 +0000

Jones, Lonnie; murder; NRE: perjury/false accusation, prosecutor misconduct, misconduct that is not withholding evidence, knowingly permitting perjury

[818:285]; 2nd Dept. 7/8/06; reversed, due to prosecutor misconduct

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

"However, a new trial is required becuse the prosecutor failed to correct false trial testimony by one the [prosecution's] witnesses...Here, a prosecution witness falsely testified that she had identified [Jones's] nephew in a lineup as one of the two people who shot at a group which included the victim..."

from Records and Briefs:

[3] "On July 2, 2001, three weeks after he was released from prison, Willie Haywood was with four of his friends in the courtyard of the Seapark housing complex on Coney Island, Brooklyn, when a man standing behind a wall at the edge of the courtyard opened fire at the group with a TEC-9 semi-automatic weapon. Haywood, a drug dealer and member of the bloods street gang, was shot five times and died later that evening. His friend Terron Savoy, also a drug dealer, was shot twice in the arm and survived. The other three men who were with them at the time -- Emil Smith, Jamar Miller and Sharod Jones, also known as 'Pooh bear' -- were unharmed."

[4] "In the initial investigation, the surviving complainant, Savoy, told the police that he did not see anything. Over the next two months, the police focused on a number of individuals believed to be rival drug dealers seeking to defend their turf from Haywood after his release from prison. Nearly two months after the shooting, Savoy's girlfriend, Robin Fludd, told the police that she had seen the shooting from her ninth-floor terrace* and claimed that...Lonnie Jones and his nephew Markquice were the shooters."

[* Well, here we go again: Yet another 'witness' is claiming to have been able to identify persons on the street from several floors above -- this time, eight. That's absurd. Those being identified would have to have been (helpfully) looking straight up at the viewer, holding their faces still long enough to be identified. But even then, without binoculars or a telescope, from that high up, this would still have been impossible.]

"Lonnie Jones, age 34, had no association with any drug or gang activity. At the time of the accusation, he was living in the Bronx with his common-law wife and children, working regular hours as a boiler repairman. Despite the lack of any evidence of motive or connection between [himself] and the crime, he was indicted for second-degree murder and first-degree assault in the Haywood-Savoy shooting.

"The [prosecution's] case at trial relied entirely on the testimony of Fludd. Savoy did not testify. Nor did Emil Smith, Jamar Miller...or Sharod Jones."

[It's very interesting that none of these direct (i.e., street-level) witnesses testified. This could be because they truly did not see anything, what they saw was not what the police/prosecution wanted to hear, or, they were simply unwilling to 'snitch.']

"The defense argued that Fludd did not witness the shooting and that, if she indeed was present, she would not have been able to see the shooter's face and make an accurate identification. In addition, the defense presented three family members who testified that [Jones] worked a full day on the day of the shooting, spent a normal evening at home and went to work early the next morning. The [5] defense also called several eyewitnesses from the Seapark complex who testified that Fludd arrived at the Seapark complex after the shooting, and several eyewitnesses described a single shooter who was tall and thin, in contrast to [Jones], who is short and heavily built. Finally, Markquice Jones, whom Fludd also accused of the shooting, testified for the defense that when the crime occurred he was on the 23rd floor of the Seapark complex, in a room full of people." [Latter emphasis original.]

[16] "Fludd testified that on the night of July 2, 2001, she and her neighbor Bernice McNeer, were sitting on the balcony in front of Fludd's apartment. At approximately 10:30 p.m....Fludd testified that she saw Lonnie Jones and his nephew, Markquice Jones, both of whom she knew, approach from behind a wall at the north end of the courtyard and open fire..."

[17] "Even though Fludd claimed that she had just seen her boyfriend and the father of her child gunned down, she testified that she did not rush down to the courtyard to see if he survived or to call for help. Indeed, she returned to her apartment and spent some 'twenty or twenty-five minutes' changing out of her lounging clothes... When she did go downstairs, the area was filled with police officers, but she did not speak to them to tell them what she later claimed she had seen. Nor did she speak to police at Coney Island Hospital when she visited Savoy later that night."

[One plausible explanation for this curious behavior on Fludd's part is that detectives 'encouraged' her to identify Jones as the shooter.]

from NRE synopsis (by Stephanie Denzel):

"On July 2, 2001, Willie Hayward and Terron Savoy were shot in the courtyard of an apartment complex in Brooklyn...Hayward, a member of the Bloods street gang and a drug dealer, was killed. Savoy survived and three other men who were him him including Sherrod* Jones, were uninjured. All four men told police that a tall, thin man in a black hooded sweatshirt shot at them."

[* This first name is spelled differently here than in the above legal decisions.]

"On July 5, police received an anonymous phone tip naming Lenny Parker, aka 'Supreme' (a rival drug dealer of Hayward's) and 'AK' as the assailants. The call was later found to have come from Terron Savoy's girlfriend, Robin Fludd.

"On August 25, 2001, Savoy encountered Markquice Jones in the stairwell of the apartment complex where the original shooting took place. Savoy demanded that Markquice Jones tell him who had shot Savoy and killed Hayward; when Markquice denied knowing who the shooter was, Savoy fired shots at him. Uninjured, but fearing for his life, Jones called his uncle, Lonnie Jones, and asked to be picked up and taken to Lonnie's apartment in the Bronx. When Lonnie Jones arrived, he ran into Robin Fludd, and asked why Savoy was shooting at his nephew. Fludd responded that if his nephew didn't name the shooter, Jones and his family would be sorry. Following the argument, and almost two months after the shooting, Fludd told police that she saw Lonnie and Markquice Jones kill Hayward, in contradiction to her July 5th anonymous phone tip."

[So, the only reason why Lonnie Jones is even in the picture here is because he's trying to help and protect his nephew. When Jones has the temerity to ask Fludd why Savoy was shooting at Markquice, Fludd threatens him to either 'tell, or else.' Then, Fludd changes her story to say that Lonnie Jones was the shooter. She made him 'sorry,' alright.]

"On September 7, police arrested Lonnie Jones, a short, stocky boiler repairman, in his apartment in the Bronx. Later that day Fludd identified Lonnie Jones in a lineup, and told police that he had threatened her with a gun.

"At trial, Fludd's testimony was the primary evidence against Jones. She claimed to have seen Lonnie Jones and his nephew, Markquice Jones, shoot at the group while she was standing on her ninth-floor balcony, and said that she picked both men out of a police lineup. Jones's wife, daughter and two of his daughter's friends all testified that Jones was home the night of the shooting.

"During deliberations, the jury sent several notes to the court asking why Markquice Jones was not on trial. The prosecutor admitted to the judge that only Lonnie Jones was in the lineup; but despite the fact that the prosecutor had not corrected Fludd when she falsely testified that she had identified both men, the judge did not inform the jury of this falsehood by Fludd. On November 9, 2002, the jury convicted Lonnie Jones of second-degree murder, first-degree assault and third-degree intimidating a witness. He was sentenced to 37 years to live in prison.

"With assistance from a Legal Aid attorney, Jones secured pro bono representation from the prestigious law firm Davis Polk & Wardell. Jones's new attorneys interviewed Sherrod Jones (no relation), who stated that the person he saw kill Hayward was not Lonnie Jones, whom he knew because they grew up in the same neighborhood. Defense investigators also located three women who said Fludd could not have witnessed the shootings from her balcony [because] she was out having dinner with them at a restaurant when the crime occurred.

"On July 18, 2006, [a Manhattan court] remanded Jones's case for a new trial. On January 30, 2007, after Fludd's credibility was demolished by the defense witnesses, a jury acquitted Jones of all charges and he was released. He had spent 5-1/2 years in prison, most of it in protective custody because of a $20,000 contract that Hayward's gang had put on his life. After his release, Jones immediately left the state for his own safety. In 2009, the New York Court of Claims ordered the state to pay Jones $1.8 million in compensation."

[All emphases added unless otherwise noted.]

Jaythan Kendrick - Perjury - False accusation

Tue, 04 Jun 2024 02:29:26 +0000

Kendrick, Jaythan; murder; NRE: perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, witness tampering or misconduct interrogating co-defendant, perjury by official

Suggestibility issues

296 F.Supp.2d 348; E.D.N.Y. 11/25/03; writ denied, but Certificate of Appealability issued; however, 2nd Cir. later also denied writ

"[Kendrick] was convicted primarily of second-degree murder for the stabbing death of an elderly woman on a sidewalk in Queens. His conviction was achieved largely on the basis of the identification testimony of a single eyewitness, a ten-year-old boy who observed much of the assault from an apartment window three floors above the street.* The boy was initially unable to identify [Kendrick] from a lineup as the assailant, instead identifying a 'filler' as the killer. He changed his mind and identified [Kendrick] only after asking a detective whether his choice had been 'right' and being told that it was not. The boy was allowed by the state court judge to identify [Kendrick] at trial, nearly assuring a conviction."

[* Even as low as from the third floor, it is unlikely that anyone could positively identify someone on the street below.]

"A reasonable jurist could conclude that the pretrial lineup was unduly suggestive and that the witness's pre-trial and in-court identifications of [Kendrick] were unreliable...Were this court sitting in a direct appellate review of [his] conviction, vacatur of the judgment and a new trial would be seriously considered. A federal habeas court, however, owes great deference to the rulings of state courts..."

"Proof of [Kendrick's] guilt was not particularly strong. The boy...described the assailant to police as a male African-American, wearing a white or whitish-yellow jacket, white shoes without socks, dark blue sweatpants and an army-type camouflage hat. [Kendrick] caught the attention of police officers after they saw him -- an African-American man wearing a white jacket, dark pants, shoes with no socks, and an ordinary baseball cap* -- during their canvass of the neighborhood...When officers noticed a red stain on his jacket they asked him to accompany them to the precinct house. (Testing later showed the stain to be what [Kendrick] claimed it was -- lipstick.)"

[* Yes, what Kendrick was wearing largely matched the boy's descripton of the killer. But, the hats were clearly different: an army-type camouflage hat vs. an ordinary baseball cap. What is Kendrick supposed to have done -- changed his hat but nothing else he was wearing -- particularly the jacket that supposedly had blood on it?]

"[The boy] viewed the lineup after being told that the killer was in it (a serious error in suggestion to begin with)."

"The hearing court denied a motion from defense counsel to suppress the boy's identification of [Kendrick]:

'[T]he conduct of Detective [Thomas] Deutsch with respect to his directions and comments to [the boy] at the time of the lineup was...proper in all respects.'

[ Baloney. ]

"There was no physical evidence linking [Kendrick] to the stabbing. Although officers seized clothing from [his] home, no traces of the victim's blood were found. No forensic evidence at the crime scene linked [Kendrick] to the killing. No fingerprint evidence was introduced."

"[One] prosecution witness -- who was testifying for the prosecution in the hope of receiving sentencing consideration for his conviction for an unrelated crime -- testified that he saw [Kendrick], whom he knew, running away from the scene of the stabbing with a pocketbook clutched under his arm like a football. He described [the assailant] as wearing a white jacket, camouflage hat, brown pants, and shoes without socks."

Q. [by defense counsel]: What did they [the police officers at the precinct house] keep saying to you?

A. They kept getting closer. Then they started pushing me, slapping cups of coffee at me. Calling me nigger. I mean they just -- it turned horrible.

Q. Wait a minute. Hold that. Who called you nigger?

A. The police did.

Q. Which one?

A. I believe it was Deutsch started first...They kept saying every M.F. nigger is guilty until he proves his innocence...'"

from NRE synopsis (by Maurice Possley):

"At about 3:30 p.m. on November 30, 1994, 70-year-old Josephine Sanchez was attacked and robbed as she walked through the grounds of [an apartment complex] in the Long Island City neighborhood of Queens...She was stabbed twice and died on the spot.

"[A 10-year-old boy] told police he heard shouting and looked out of the third-floor window. He said he saw a black man punch Sanchez, struggle over the woman's black purse, and then flee with the purse. [He] said the man was in his 30s and was wearing a white jacket, dark blue sweatpants, white sneakers, no socks, and an army camouflage hat.

"He said the attacker fled toward the middle of the housing development where there was a park that led to exits in all directions. Police found a single blade of a pair of scissors about 150 feet from the attack.

"During a canvass of the area, police interviewed 18-year-old Mario Aguilo, who lived in the development. He said he saw 'an old lady lying on the ground,' but did not see the person who attacked her.

"Donna Williams, a resident of the complex, told police she attempted CPR on the victim.

"Maria Valle Rivera was visiting family members in the apartment directly below [the 10-year-old-boy witness]. Rivera said she saw the attack but could not identify the man who ran away.

"More than 6 hours later, around 10 p.m., a New York City police detective saw 36-year-old Jaythan Kendrick standing on a corner of the housing development. He was wearing an off-white jacket, black pants, brown shoes, and a black cap. When the detective waved Kendrick over, he noticed a red spot on the shoulder of the jacket, which he suspected could be blood. Kendrick said it was lipstick and subsequent testing would should it was not blood. Kendrick agreed to go to the police station for questioning.

"He told the police that he spent the day watching television, hanging out near the park, and talking to an acquaintance before returning home. He said that he came out of his building after the attack and asked an officer what happened. He said the officer told him that a woman had been stabbed to death with scissors.

"Kendrick gave the lead detective, Thomas Deutsch, permission to search his apartment. At 12:30 a.m. on December 1, police conducted the search. Kendrick turned over two pairs of white sneakers from his closet, as well as a camouflage army-style hat that was next to the couch in the living room that Kendrick shared with a roommate. Police found a blue purse, but Kendrick did not consent to turn it over because it belonged to his estranged wife. (Kendrick's wife subsequently confirmed that the purse was hers).

"Kendrick went back to the police station where his interrogation continued. During questioning, police said Kendrick made two statements that indicated he was involved. As he was insisting he was innocent, Kendrick said, 'If I was going to kill somebody, I wouldn't stab them with a scissor.' When Detective Deutsch expressed suspicion that Kendrick knew what the murder weapon was, Kendrick explained that he heard it from a police officer at the scene and that Deutsch had mentioned it during the interrogation.

"Deutsch denied ever mentioning it. The interrogation was not recorded."*

[* Neither was Nickel's .]

"Around 2 a.m., Deutsch asked Kendrick how he would explain it if his fingerprints were found on items recovered from the scene. Deutsch said that Kendrick said certain items were missing from his apartment, including kitchen knives, a wallet, a hat, and a pair of scissors.

"Deutsch said that Kendrick, a military veteran and former U.S. postal worker who was on disability, said he supported himself with pensions. He said Kendrick also said he had a $70 to $80-a-day cocaine habit.

"Police determined that Kendrick had an outstanding warrant for seventh-degree drug possession and used it to hold him. Police brought [the boy-witness] to the station to view a lineup. On the way over, an officer told [him] that the killer would be in the lineup.

"At the lineup Kendrick was in position number three. [The boy] had said the attacker was about the same height as his father, who was 6 feet 2 inches tall. Kendrick was 5 feet 7 inches tall. After viewing the lineup, [the boy] asked for each man to walk toward the one-way window. He then indicated that the man in position number six 'looks like the guy who stabbed the lady.'

"[The boy] would later testify at Kendrick's trial that he asked Detective Deutsch whether he had identified the correct person and Deutsch said he did not. So, [he] said, 'It was number three, wasn't it?'

"Deutsch testified that he only said to [the boy] that it did not matter who he chose as long as [he] picked the person he thought committed the crime. At that, [he] volunteered, 'It's number three.'

"On December 4, police interviewed Aguilo a second time at the police station. At the time, Aguilo was 18 years old and on probation for robbery. Initially, police questioned him and then an [ADA] arrived to record an interview with Aguilo. During this interview, Aguilo said he was leaving his girlfriend's apartment when he saw a black man in his 30s wearing a green camouflage hat, a dirty waist-length jacket, brown pants, no socks, and black or brown shoes. He said the man, who he knew as 'Jay,' was carrying a black or brown purse under his arm.

"That same day, Detective Deutsch obtained a search warrant for Kendrick's apaetment. During the search, police recovered crack paraphernalia and three purses. One was black.

"On December 6, 1994, Kendrick was charged with second-degree murder, first-degree robbery, and criminal possession of a weapon.

"Kendrick went on trial in September 1995 in Queens...[The boy-witness] testified and identified Kendrick as the killer. On the morning before [the boy] testified, detectives went to his apartment and held Kendrick's jacket up to the approximate spot of the attack. [The boy] looked out his window and saw it. In court, he testified that it looked like the jacket worn by the killer. [He] also testified that he initially identified someone else and then identified Kendrick.

"[The boy] also testified that the black purse looked like the one taken from the victim. He said that the prosecutor had shown him the purse before he testified. [He] also said the camouflage hat taken from Kendrick's apartment looked like the one worn by the attacker.

"Aguilo testified that he was leaving his girlfriend's apartment in the [apartment] complex about 3:30 p.m. when he saw Kendrick run past holding a purse. He said that Kendrick was wearing a white jacket and a camouflage hat. But he also said that Kendrick was wearing brown pants -- not dark-blue sweatpants -- and brown or black shoes, not white sneakers. Aguilo claimed he saw Kendrick run in the opposite direction of where [the boy] said the attacker ran and where the scissor blade was found.

"Aguilo said that as he continued walking, he came across Sanchez. He said she was 'bleeding, with blood around her head.' He said he asked her if she was all right and when she did not respond, 'I went home.'

"Aguilo admitted he was on probation for an attempted robbery and that two weeks before the trial, he had been charged with committing a different robbery with a man named Frank Longo. The prosecution said that no promises had been made other than if Aguilo were convicted of a robbery, the prosecution would make known his testimony against Kendrick and would explore the possibility of Aguilo entering an in-patient long-term drug treatment facility as a condition of any sentence.

"Detective Deutsch testified about the second search of Kendrick's apartment, which Kendrick shared with a female roommate. Deutsch said that the black purse had been found 'between the TV and the wall' in Kendrick's bedroom, although the voucher for the inventory search said the purse was found on top of the television.

"A serologist testified that blood found on the scissor blade at the crime scene was the same blood type as Sanchez's blood and that this blood type would be found in 12.138% of humans.

"The trial recessed for four days. When it resumed, the prosecution called Jaime Diaz to testify. He was a previously undisclosed witness -- there weren't any police reports or any interviews with him, he had not testified before the grand jury, and he was not on the prosecution's witness list.* He said he was on parole for an attempted drug sale and had been released from prison in April 1994. He said that he had been in Kendrick's apartment four to six weeks prior to the murder and although it was dark, he saw scissors on top of a dining room table."

[* We have seen several wrongful convictions where a defense witness was precluded from testifying because his or name was not on the defense's witness list. And yet, here we have such a prosecution witness brought in and testify, with apparently no problem whatsoever.]

"When the prosecutor showed Diaz the scissor blade found at the scene (the prosecutor acknowledged that he had already shown it to Diaz) and asked if it looked like the one he saw at Kendrick's apartment, Diaz said, 'It can be similar because from where I'm sitting I can't get a real visual, you know what I'm saying, I mean I'm sorry.' When the judge asked that it be moved closer, Diaz said, 'It looks like the scissor.'

"During cross-examination, asked if what he saw in Kendrick's apartment was a single scissor blade, Diaz said, 'It's hard to see. You don't want me to lie, do you?'

"Kendrick testified and denied committing the crime. He said that he was unable to run -- as witnesses said the killer did -- because of a combination of muscular myopathy, asthma, a pinched nerve in his neck and a disk and nerve injury to his back."

"The jury deliberated for two days and sent out 10 notes, at one point indicating they were unable to reach a verdict. The judge then instructed them to keep deliberating and encouraged jurors to reconsider their positions. On September 29, 1995, the jury convicted Kendrick of second-degree murder and first-degree robbery. He was sentenced to 25 years to life in prison.

"His convictions were upheld on appeal. In 2003, a federal petition for a writ of habeas corpus was denied, although U.S. District Judge Jack Weinstein said that if he had been sitting 'in direct appellate review' of the convictions, he would seriously consider granting a new trial because of an unduly suggestive lineup. The lineup, he said, was 'troubling;' the identification was 'fraught with problems.'

"Kendrick had written dozens of letters to innocence projects and lawyers seeking help on his case. He said that the detectives repeatedly used racial slurs during the interrogation.

"In 2016, attorney Thomas Hoffman agreed to take the case without charge along with attorney Jonathan Hiles. In 2017, during his re-investigation, [the above boy-witness] recanted his identification of Kendrick, saying he never could identify the attacker's face. He said he saw 'mostly colors, such as the perpetrator's black complexion, white sneakers and white jacket.' He said that he did not recognize anyone in the lineup, but because he had been told the killer was in the lineup, he wanted to be helpful. He said he made his first pick based on skin tone and when he was told he was wrong, he guessed again. At trial, [he] pointed to the ony black man in the courtroom.

"Evidence showed that in addition to being arrested with Frank Longo on robbery charges three weeks before he testified against Kendrick, Aguilo and Longo were suspects in an additional robbery that occurred the same night. In that case, the victim had been shot in the chest and survived. And a week later -- two weeks before Kendrick's trial -- the victim had identified Aguilo and Longo as his attackers The prosecution, however, did not disclose any information about the second case to Kendrick's defense lawyer, in violation of its obligation to reveal impeachment evidence relating to the prosecution witnesses.

"Hoffman moved for DNA testing of evidence in the case, at which time Susan Friedman, an attorney with the Innocence Project, began consulting on the case. DNA recovered from the victim's fingernails identified two males and Kendrick was excluded. The DNA profiles, however, were not suitable for uploading to the FBI DNA database of convicted defendants and unsolved crimes.

"In addition, testing of the black purse excluded Sanchez as the source of DNA on the strap and the interior of the purse. This suggested, according to the DNA test report, that Sanchez was not 'a habitual user or the owner of the black purse.'

"In October 2017, the Innocence Project and the law firm Wilmer Cutler Pickering Hale and Dore LLP joined Kendrick's legal team. To support [the boy-witness's] recantation, they asked a crime scene reconstruction expert to go to the apartment where [he] lived at the time of the crime and photograph what [the boy] would have witnessed from a distance of more than 100 feet away. The photographs demonstrated that it was difficult, if not impossible, to identify the face of the assailant, especially since the assailant was wearing a hat and the attack lasted less than two minutes.

"In January 2020, Queens [DA] Melinda Katz established a Conviction Integrity Unit (CIU). Innocence Project lawyers Friedman and Vanessa Potkin as well as lawyers Ross Firsenbaum, Charles Bridge and Brett Atanasio from the law firm of Wilmer Cutler Pickering Hale and Dorr LLP and attorney Janet Carter asked that Kendrick's case be re-investigated based on the new evidence.

"This new evidence also included statements from four witnesses. Donna Williams, the woman who had performed CPR on the victim, said there was no blood visible when she approached Sanchez. Only after performing CPR did blood become visible, she said -- contradicting Aguilo's testimony that he saw blood around Sanchez's head.

"Maria Valle Rivera, who had been visiting her family after arriving from Puerto Rico and was in the apartment below [the boy-witness], said she heard shouting and looked out to see a man wearing a light-colored jacket fighting with a woman. She could not tell what race the man was because of the distance. She said the man fled in the same direction that [the boy] gave, which also contradicted Aguilo.

"During the CIU re-investigation, two additional witnesses were interviewed. Jose Torres, another resident of the complex, said he also responded to the scene and heard a boy...shouting from a window. Torres said he saw no one besides Williams approach Sanchez, further contradicting Aguilo's testimony.

"And Jennifer Park, who was Aguilo's girlfriend at the time of the crime, told the CIU that she was in class at Middle College High School that day, contradicting Aguilo's testimony that they spent the day together. The CIU confirmed her account through school records.

"In November 2020, Kendrick's legal team and the Queens [DA] filed a joint motion seeking to vacate Kendrick's convictions. Kendrick's legal team filed an affirmation in support of the motion stating that after an eight-month investigation, 'the CIU concluded that Mr. Kendrick is entitled to relief, that his conviction should be vacated. . .and the indictment should be dismissed.'

"The testing of the purse was significant because, the motion noted, Detective Deutsch's false testimony about the purse being 'wedged behind the TV' was highly prejudicial and suggested a consciousness of guilt -- that Kendrick purposefully hid it. "Indeed, the motion said that during closing argument, the prosecutor seized on that testimony to say that the purse had been 'stashed behind the TV set between the TV set and the wall in [Kendrick's] apartment.'

"On November 19, 2020, during a hearing before Queens...Judge Joseph Zayas, [DA] Katz said, 'We believe that the new evidence makes it much more probable than not that the outcome of the trial would have been extremely different.'

"Innocence Project Attorney Susan Friedman said, 'Today the system that had wronged him takes a first step at correcting the injustice.' "Judge Zayas granted the motion and vacated the convictions. The prosecution then dismissed the case. Kendrick was released -- more than 25 years after his conviction in 1995. Kendrick was met by his cousin, Clarence Hughes, a resident of Georgia, who had helped Kendrick write letters seeking help and was the one who convinced attorney Thomas Hoffman to take the case in 2016.

"In December 2020, Kendrick filed a claim for compensation in the New York Court of Claims.

"Kendrick died in January 2022. In January 2024, his family filed a federal lawsuit seeking $100 million in damages from the city of New York."

[All emphases added unless otherwise noted.]

William Maynard - Prosecutor Misconduct

Tue, 04 Jun 2024 02:24:18 +0000

Maynard, William; manslaughter; [not on NRE list:] prosecutor misconduct, withheld exculpatory evidence

[337:664]; 1st Dept. 11/9/72; affirmed

"The record shows that Maynard's guilt was established beyond a reasonable doubt."

[363:384]; N.Y.Cty. Ct. 3/29/74; reversed, due to Brady violations

[Neither the prosecutor nor the witness at trial mentioned the latter's ongoing mental condition;* it was this witness's testimony that was most damning. Also, the prosecution repeatedly ignored defense counsel's requests for witness's criminal records.]

[* This was also true of 'Arthur' in the Nickel case. Though the boy did list the numerous psychiatric medications he was on, neither he nor anyone else ever disclosed precisely what conditions they were meant to be treating.]

R31 [822] "William A. Maynard was convicted of first-degree manslaughter in [Manhattan] on February 4, 1971, following two previous trials which had resulted in a hung jury and a mistrial...In 1974, [County] Court, acting at the request of the [DA], dismissed all charges against Maynard and ordered him released because the prosecution had suppressed evidence pertaining to the unreliability of its chief witness. Specifically, this witness had a long history of psychiatric hospitalizations and a criminal record which the prosecutors unlawfully failed to reveal..."

Tyrone Groce - Mistaken Witness Identifcation

Tue, 04 Jun 2024 02:22:01 +0000

Groce, Tyrone; robbery; NRE: mistaken witness identification

[624:863]; 2nd Dept. 3/1/95; reversed, due to weight of evidence

"[T]he judgment is reversed, on the facts, [and] the indictment is dismissed..."

"[W]e find that the verdict of guilt is against the weight of the evidence..."

from NRE synopsis (by Maurice Possley):

"At 5:45 a.m. on December 10, 1991, Sean Bristol went to a police station in Brooklyn...and said two men had just robbed him at gunpoint.

"Bristol said his car broke down and the robbers approached and asked if they could help him fix the vehicle. After tinkering under the hood, however, the two men robbed him. Bristol said one robber, who was unarmed, was 5 feet 8 inches tall, 145 pounds, and had a beard and a mustache. He said the other robber, who had a pistol, was about 22 years old, 5 feet 7 inches tall, 140 pounds and had no facial hair.

"The following day, Bristol saw a man he believed was the unarmed robber in a gas station near the scene of the robbery. He called police and they arrested Charles Wigfall, who was 5 feet 8 inches tall, weighed 145 pounds and had a beard and mustache.

"During the next several weeks, Bristol drove through the neighborhood at various times looking for the other robber. On January 6, 1992, at about 5 p.m. -- when it was dark -- Bristol stopped his car in a crosswalk.

"A man crossing the street cursed at Bristol for blocking his path and kept walking. Bristol called police because he believed the man was the gunman.* Minutes later, police arrested 28-year-old Tyrone Groce. Bristol identified him as the gunman even though Groce was 5 feet 11 inches tall, weighed 163 pounds, had a beard and mustache and had a prominent gold tooth -- none of which matched Bristol's original description."

[* Based on what? For one thing, it's dark out. Then we have the fact that Groce is 6 years older, 4 inches taller, and 18 pounds heavier, and had 100% less facial hair than the initial description he gave of the armed robber. Oh, and then there's the gold tooth Bristol said nothing about, despite the fact that he had a far better look at the robbers than he did this poor sap in the crosswalk. The very next day following the robbery, Bristol happens to run into one of the (real) robbers at a gas station. Following this stroke of luck, over the next several weeks, just bound and determined to find the second robber, Bristol cruises the streets. Stopped at a cross-walk, his attention is drawn by a guy cursing at him for blocking his way. For no rational reason whatsoever, something 'clicks' in his brain: 'That's the second robber!'

The probability that Bristol would subsequently run into just one of the robbers was small; and yet, it did happen. But the chances of him later encountering the other one as well were extremely slim. (And that did not happen.)]

"Groce and Wigfall were charged with armed robbery. Wigfall pled guilty and was sent to prison. Groce went on trial in Kings County...in February 1992. Bristol testified that his car stalled and Wigfall appoached him and offered to help get the car started. Bristol said he got out and raised the hood and that Wigfall tinkered briefly and determined there was a problem with the carburetor.

"Bristol said he got back in the car and in minutes, Wigfall had fixed the car and Bristol was able to start the engine. As Wigfall approached the driver's side window, the gunman -- whom Bristol said was Groce -- suddenly appeared and demanded his valuables.

"The prosecution had brought Wigfall in from prison to testify, but they did not call him as a witness after he told them that Groce was not his partner in the robbery.

"The defense, however, called Wigfall as a witness because Groce told his lawyer that he was talking to another prisoner about his case when he serendipitously bumped into Wigfall in the courthouse lockup* prior to trial. Wigfall approached and asked him if he was charged with robbing Bristol. When Groce said that he was, Wigfall told him that he committed the crime with another man."

[* Thus, it seems clear that, but for the 'happy accident' of Wigfall and Groce striking up a conversation in the holding cell, the latter's defense attorney would never have known that the prosecution had Wigfall brought in, but declined to actually have him testify because he would have said Groce was innocent. This sounds a lot like withholding exculpatory evidence. (However, because the NRE had not actually made this designation, we have not so labeled it here.)] "Wigfall testified for the defense that he saw Bristol's car stall and he approached Bristol with the hope of hustling Bristol out of some money for getting his car started.

"Wigfall said the gunman was a man he only knew as 'Blue' with whom he smoked crack and that he was shorter and not as heavy as Groce. Wigfall also testified that 'Blue' was clean-shaven.

"The prosecution cross-examined Wigfall extensively about his drug use and prior criminal convictions and suggested that Wigfall and Groce had concocted a false story of meeting unexpectedly in the lockup in an attempt to win Groce's acquittal.

"Groce testified in his own defense and denied any involvement in the crime. His attorney offered a photograph of Groce taken at a family gathering several years prior to the crime showing his gold tooth, as proof that he had the gold tooth on the date of the incident. The judge refused to allow the photograph into evidence.

"Groce's lawyer argued to the jury that since Bristol was about 5 feet 4 inches tall and both the robbers were taller, he was likely accurate in his initial descriptions of the height of the robbers, particularly when he said the unarmed robber was taller than the gunman. The lawyer argued that Groce could not be the gunman because he was taller than Wigfall.

"On February 9, 1993, the jury convicted Groce of armed robbery. Prior to sentencing, the defense filed a motion for a new trial. The defense presented a sworn affidavit from a jail guard who said that he saw and heard the conversation between Wigfall and Groce. The defense said that it attempted to bring the guard to the trial to testify, but that the guard was on vacation and efforts to reach him were unsuccessful.

"The guard said that if had been called to testify at the trial he would have told the jury that based on his observations and the nature of the conversation, Wigfall and Groce had never before met and that Groce was astonished to learn that Wigfall was one of the two real robbers. The guard said that he heard Wigfall tell Groce that another man was involved in the crime.

"The motion for a new trial was denied,* however, and Groce was sentenced to 12 years in prison."

[* Likely by the same pro-prosecution judge who would not allow into evidence that 'gold-tooth' photo.] "Groce appealed his conviction as well as the denial of the motion for new trial. In March 1995, the...Appellate Division reversed Groce's conviction on thr ground that it was against the weight of the evidence and ordered the [indictment] dismissed. Groce was released from prison.

"Groce later filed a compensation claim with the New York Court of Claims, but his claim was denied."

[All emphases added unless otherwise noted.]

Jose Garcia & Carlos Morillo - Perjury, Police Misconduct

Tue, 04 Jun 2024 02:16:39 +0000

Garcia, Jose AND Morillo, Carlos; murder; NRE: perjury/false accusation, inadequate legal defense, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

[both] [632:62]; 1st Dept. 9/26/95; affirmed

"[W]e find no police impropriety in connection with the photo and lineup procedures conducted.

"We note that...Morillo's specific claims on appeal of an unduly suggestive lineup were made before the trial court and were rejected; we also reject them.

"Contrary to the claims of [Garcia and Morillo], the record supports the jury's determination that the testimony of the identifying witness [Penny Denor] was reliable...The witness's concern for her son's safety prompted her to focus on [Garcia and Morillo] and their activities below her fourth-floor apartment window for approximately one minute, aided by excellent lighting conditions."

[Garcia] 2006 WL 3040903; S.D.N.Y. 10/26/06; writ denied

[Garcia had a boarding pass issued in the Dominican Republic on the day of the murder. He also spoke with someone in the U.S. on the phone from the Dominican Republic that same day.]

[Morillo] [957:88]; Bronx Cty. Ct. 10/6/11; motion for new trial granted, due to recantation, newly-discovered evidence, and police credibility issues "[Morillo] and his co-defendant, Jose Garcia...were convicted after a jury trial based on identifications made by a single eyewitness, Penny Denor...a woman with a lengthy psychiatric history, the details of which were largely unknown to [Morillo] at trial. * She testified that she looked out her fourth-floor window at midnight and saw [Morillo]** and two other men with guns approach her building. As she ran downstairs she heard five gunshots and saw the back of the men as they left the scene. Although her fourteen-year-old son, John Garey...was out on the street and witnessed the shooting, he was never called as a witness at trial.*** The [prosecution] did not present any physical evidence, motive evidence or any other evidence to corroborate Denor's identification of [Morillo] as one of the shooters."

[* This was also true of 'Arthur' in the Nickel case. The defense never did find out definitively what conditions his numerous psychiatric medications had been prescribed for. ]

[** We have now seen several wrongful-conviction cases in which an alleged eyewitness claimed to have been able to 'identify' someone on the street several floors below; this time, at midnight. This is simply not credible -- at any time of the day. Virtually no one at street level will be looking directly up at the person viewing from above -- much less, (helpfully) remain motionless long enough for someone up there to see and identify their face. (At best, this might be possible from a second-, or

perhaps third-floor window, under near-perfect conditions.)]

[*** This is very fishy, given that he witnessed the crime from street-level. It is quite likely that the reason this young man was not called to testify was because he simply was not able to identify Garcia and/or Morillo as the killer.]

"Denor, a complete stranger to both defendants, has now recanted her trial testimony, claiming she lied when she testified that she saw the faces of the shooters and identified them. She now claims that she did not actually see -- and could not have seen -- the faces of the shooters and that she identified [Morillo] based only on her observation of a photograph of him that she saw in the investigating detective's car. Denor states that she falsely identified [Morillo] out of a strong desire to protect her son, whom she believed was being threatened by the detective and whom she did not want to testify.

"[Morillo]...claims that Garey, now thirty-three years old, viewed photographs of [Morillo] and is certain that [he] was not one of the men he observed shoot Cesar Vasquez.

"Cesar Vasquez was shot and killed in the courtyard of his apartment building...at close to midnight on the evening of July 16, 1991...While [Denor's] testimony at the [pre-trial] hearing and trial was largely consistent, she contradicted herself in the details of her descriptions of the shooters.

"Garey told [Detective Anthony Pezzullo] that he could identify the shooters, and he looked through a book of mug shots. Pezzullo also showed him two single photos and asked if it was 'these two guys' to which Garey said no. When Pezzullo kept asking him about the two men, despite Garey's insistence that they were not the shooters, Pezzullo threatened that he could revive a prior assault and robbery charge if Garey did not cooperate.

[At the hearing on the motion for a new trial:] "Pezzullo was a grudging witness who was frequently abrupt, argumentative, and evasive. He often contradicted himself while testifying, as well as contradicting his prior hearing and trial testmony. Significantly, Pezzullo testified that it was standard procedure to document all identification procedures or important steps in an investigation with a DD5 [form], and that it would be inappropriate to show a witness a single photo of a potential suspect. Yet he testified throughout the...hearing that he failed to document numerous identification procedures, failed to document an interview he had with Garey, an eyewitness to the shooting who told him he could identify the shooters, and also showed Denor single photos of potential suspects."

from NRE synopsis (by Maurice Possley): "During the summer of 1991, Jose Garcia visited his wife's family in Matanzas, Dominican Republic and on July 15 he went to La Union International Airport in Puerto Plata, Dominican Republic, to board a flight to return to his home in the Bronx.

"But Garcia didn't get off the ground. He was arrested for attempting to board a flight on false travel papers. Garcia, who did not have legal status in the United States, was jailed overnight and was bailed out the following afternoon by his wife, Ana Ortega. That night the couple attended a prayer service in Matanzas for the family member of a friend.

"Sometime after midnight, however, Garcia received a telephone call informing him that Cesar Vasquez, an underling in Garcia's drug-selling business, had been murdered earlier that night in the Bronx.

"He would later learn that a witness, Penny Denor Cameron, told police that a car pulled up in front of an apartment building...in the Bronx and three men got out. She heard five shots and came downstairs to find the body of Vasquez in the courtyard.

"Garcia remained in the Dominican Republic until August 2, 1991, when he managed to get to the U.S., but was then arrested for entering the country illegally in California.

"The investigation of Vasquez's death stalled until police received a tip from Garcia's girlfriend in the Bronx pointing to a rival drug dealer seeking revenge for an earlier killing. A detective went back to Cameron, who went through mugshots and picked out a photo of Morillo as the driver and a photo of Garcia as a passenger in the car.

"Shortly thereafter Garcia was arrested in California. He was put in a lineup in New York and Denor identified him as one of the three men in the car.

"Despite his alibi and although Cameron's identification was somewhat shaky -- at one point she said the three men were black and wearing hoods and another time she said Garcia was wearing a flowered shirt -- Garcia and Morillo were convicted on January 8, 1993 by a Bronx jury. Both were sentenced to serve 25 years to life in prison.

"The jury heard virtually nothing about his alibi. His defense attorney put on one witness, Vasquez's sister, who said she had spoken by telephone from New York to Garcia in Matanzas the night of the murder. But the prosecution, in cross-examination, established that she had no personal knowledge that Garcia was in the Dominican Republic because she had not dialed the phone herself -- someone else had dialed and handed her the telephone.

"And even though the prosecution had been advised of Garcia's contention that he was in jail in the Dominican Republic at the time of the murder, the prosecution failed to fully explore whether that was true.

"For the next 14 years, Garcia fought to clear himself." "In 2000, Garcia filed a pro se motion to vacate his conviction, arguing ineffective assistance of counsel for failing to interview alibi witnesses and to obtain documentary support of his alibi. He attached papers documenting his stay in jail and statements of witnesses ready to testify to his presence in the Dominican Republic at the time of the murder and for some time after...Bronx [County] Court summarily denied the motion on December 7, 2000 in a hand-written order. Leave to appeal was denied.

"Garcia, still acting as his own lawyer, filed a writ of habeas corpus in federal court in April 2002." "[U.S. District Judge Lewis Kaplan] was familiar with Garcia's trial counsel, because he was appearing before Kaplan in an unrelated immigration matter. In that case, Kaplan found that the lawyer's performance was 'grossly ineffective.' Judge Kaplan's familiarity with Garcia's lawyer was probably the turning point in Garcia's favor.

"Kaplan sent the matter...to Magistrate [Kevin] Fox, ordered the Bronx [DA] to respond on the merits and appointed habeas counsel for Garcia. On February 16, 2005, Fox granted the request for an evidentiary hearing.

"At the hearing, Garcia's lawyer produced numerous documents proving that Garcia was in the Dominican Republic at the time of the murder. Seven witnesses testified that he was there and four witnesses provided sworn affidavits testifying to the same."

"Garcia's new habeas lawyer showed that the Bronx [DA] knew of Garcia's alibi claim for almost a year before his trial began, but only contacted the U.S. Department of State to request the passport and tourist card that Garcia was carrying when he was arrested. Informed that those documents could not be found, the prosecution ended its inquiry, never seeking the jail documents -- all of which were found by Garcia's habeas counsel years later.

"On December 21, 2006, Judge Kaplan concurred with the magistrate's finding that Garcia's trial lawyer had been ineffective and vacated Garcia's conviction. On February 21, 2007, the charges against Garcia were dismissed and he was released from prison.

"In 2010, the City of New York agreed to settle a wrongful conviction lawsuit brought by Garcia for $7.5 million. Garcia was then back in the Dominican Republic, where he had been deported under a 1999 deportation order stemming from an earlier drug arrest. He also received $450,000 from the New York Court of Claims.

"After Garcia was exonerated, lawyers from the New York law firm of Shearman & Sterling agreed to work pro bono on Morillo's case with the Legal Aid Society.

"The legal team created a video re-enactment of the crime which showed that it would have been difficult for Cameron to see details from four stories above the crime scene. They tracked down Cameron in New Jersey where she was dying of cancer. Cameron admitted she had lied about her identifications.

"Cameron said that a detective pressured her into testifying, knowing that she had not witnessed the crime, because he thought her son had seen it and knew who did it. She said he showed her pictures of the suspects before she identified them.

"In October 2011, Morillo's conviction was set aside and the charges were dismissed. He was released on November 2, 2011."

[All emphases added unless otherwise noted.]

Edward Garry - Perjury, Mistaken Identification

Tue, 04 Jun 2024 02:04:21 +0000

Garry, Edward; murder; NRE: mistaken witness identification, perjury/false accusation, withheld exculpatory evidence

[703:437]; 1st Dept. 2/3/00; affirmed

"The verdict was not against the weight of the evidence."

2003 WL 21436217; S.D.N.Y. 6/19/03; writ denied

"On August 18, 1995, Oswald Potter was shot and killed during a store robbery. Two witnesses came forward and identified [Garry] as one of the two men involved in the robbery.

"Gladys Garcia, a store employee...viewed three photograph books containing photographs of almost three hundred male Hispanics. Ms. Garcia selected [Garry's] photograph and told the investigating detective 'Yeah, that looks like the guy.'...[Several days later,] both Ms. Garcia and [Antonio] Vargas[, who was seated outside the store at the time of the robbery]...viewed lineps...and both positively identified [Garry] was one of the robbers."

from NRE synopsis (by Maurice Possley):

"Shortly after 6 p.m. on August 18, 1995, two armed men -- one black and one Hispanic -- entered the back room of an illegal gambling operation in Irene's New Hope grocery store in the 3500 block of Laconia Avenue in the Bronx...The Hispanic man fired two shots into the ceiling and yelled, 'This is a stickup!' He ordered the men, who were playing dominos, to get onto the floor.

"The Hispanic man then gave a plastic bag to an employee, Gladys Garcia, and ordered her to collect wallets and cash from the men playing dominos. As Garcia was filling the bag, one of the men on the floor, 62-year-old Oswald Potter, a retired New York City police officer, grabbed for the black robber's gun.

"As the two struggled, Potter pushed the robber down and his gun fell to the floor. Potter made a dash to the front of the store and the Hispanic man followed. Another shot was fired and Potter fell, gravely wounded. The black man grabbed the bag containing about $600 and fled.

"In the front of the store, the owner, Irene Taylor, and another employee were discussing an order with Felix Vargas, a beverage distributor. They ran outside when they heard the first two gunshots fired into the ceiling. There, Felix Vargas's 18-year-old son, Antonio, was waiting in his father's truck. When he heard the shots, he got out, concerned for his father.

"At that moment, Felix came running out and ordered Antonio to get back into the truck. Felix was trying to start his truck when they heard two more gunshots. Antonio, who was standing outside the truck, later told police that he saw two men run out of the store past the front of the truck and jump into a car that had pulled up minutes earlier. Antonio said he heard one of the men say, 'I can't believe he made me shoot him.'

"Potter then emerged from the store, bleeding from a gunshot wound to the chest. He died not long after. Police recovered three shell casings from the store -- all .38-caliber, as was the bullet recovered from Potter's body.

"The following day, August 19, 1995, Garcia viewed three police books containing hundreds of photographs of Hispanic males. She selected the photograph of 20-year-old Edward Garry Jr., a member of the Latin Kings street gang, and said he 'looks like' the gunman.

"Antonio Vargas viewed the same three books the next day. According to a police report, he did not make an identification that day, although he pointed to two or three photographs of Hispanic males. When he came to Garry's photo, he said, 'I think this could possibly resemble the person I took a glance at, but I'm not positive.'

"On August 22, 1995, Garcia and Antonio again separately went through between 500 and 800 photographs of Hispanic males. Garcia's certainty in her identification of Garry increased, while Vargas would only say Garry 'resembled' the gunman.

"Police arrested Garry that day and on August 23, 1995, put him in a lineup, which Garcia and Antonio viewed separately. Both again selected Garry as the gunman, although Antonio still would only say that Garry 'resembled' the man he saw running from the store.

"Garry was charged with second-degree murder and two counts of robbery.

"He went to trial in Bronx County...in October 1997. Garcia and Antonio both testified. Garcia identified Garry as the gunman, but Antonio was not asked to identify him. The prosecution also called Richard Huffman, who testified that he had been incarcerated with Garry prior to the trial. He said that Garry admitted to him that he had been involved in a robbery at a grocery store and had killed a man.

"Garry's parents testified that Garry was at home with them on the day of the crime at 5:30 p.m., and remained there until about 6:30 or 6:45 p.m. -- past the time of the robbery.

"On November 19, 1997, the jury convicted Garry of second-degree murder and both counts of robbery. He was sentenced to 25 years to life in prison. Garry appealed, and the Appellate Division upheld his conviction in 2000.

"In 2002, Garry filed a post-conviction petition seeking a new trial after Huffman, the jailhouse informant, signed a sworn statement recanting his testimony. By the time a hearing was held, however, Huffman had told prosecutors his recantation was a lie. After Huffman invoked his Fifth Amendment protection from self-incrimination and refused to testify at the hearing, Garry's petition was denied.

"In 2003, Lawrence Broussard was arrested by federal agents in New York City and charged with illegal possession of a weapon by a convicted felon -- a charge that carried a mandatory minimum sentence of 5 years in prison. Broussard offered to plead guilty for a reduced sentence. In return, he would provide information on all criminal activities he knew about or in which he participated. During that debriefing, Broussard admitted that he was the black man who went into the grocery store and had lost his gun during the struggle with Potter.

"Broussard said he committed the crime with a friend, Brent Mason, and two other men. He said he met the two men shortly before the robbery when all four were buying drugs from the same seller. Broussard said he knew the two men, both Hispanic, only as 'Pito' and 'Flip.' Broussard said Mason and Pito remained in the car during the robbery while he and Flip went inside. He said Flip shot Potter.

"Broussard ultimately identified Mason in a photographic lineup, and identified Marrero as the man he knew as Pito. Mason and Marrero were arrested. Subsequently, Broussard, Mason, and Marrero pled guilty and were sentenced to prison for federal weapons charges related to the Potter murder.

"As part of their cooperation agreements, Broussard and Mason viewed photographic lineups containing Garry's picture. Neither identified him as Flip.

"In 2008, the Bronx [DA's] Office disclosed this information to a lawyer who had been appointed to represent Garry.

"In 2009, that lawyer filed a post-conviction petition seeking a new trial. The motion was denied, however, when the judge ruled that the failure of Broussard and Mason to identify Garry as the gunman 12 years after the crime was 'entirely insufficient to create. . .a probability' that the verdict would be different if there was a retrial.

"In 2010, Glenn Farber and Rebecca Freedman at Exoneration Initiative, a non-profit organization that provides free legal assistance to the wrongfully convicted, began re-investigating Garry's case. In 2012, they submitted a Freedom of Information request to the [NYPD] for all reports relating to the case. For the first time, a report was disclosed showing that in June 1996 -- 10 months after the murder -- the police latent print unit was asked to compare fingerprints found at the scene of the crime to those of Steven Martinez.

"At the defense's request, a photographic lineup containing the photograph of Steven Martinez was shown to Broussard. Broussard identified Martinez as the man he knew as Flip -- the gunman who shot Potter.

"In August 2014, Garber and Freedman filed another petition to vacate Garry's conviction, and a hearing was held over several days in November 2015. Among the witnesses was Peter Forcelli, a special agent for the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives.

"Forcelli had been a detective in the [NYPD's] 47th Precinct when he was assigned to a task force assembled to solve Potter's murder. He had assisted the lead detective in preparing the photographic lineups and other tasks that led to Garry's arrest for Potter's murder. Years later, he left the department and became a federal agent. Along the way, his work was focused, in part, on investigating wrongful convictions. By the time he testified at the hearing he was in charge of the ATF Miami field office.

"Forcelli testified that in 1996, he was transferred to the 45th Precinct. That summer, he was investigating the murder of Keith Ralph, who had been stabbed and beaten to death on August 9, 1995 -- nine days before Potter's murder. By the time Forcelli was assigned to the Ralph murder, the lead suspect had already been identified -- Steven Martinez.

"Forcelli said that in June 1996, an informant reported overhearing Martinez say that he had been involved in a robbery in the 'Valley,' during which someone was killed. Forcelli knew that the Valley was a description of a geographic area in which Irene's New Hope grocery was located. Forcelli said that he used the police department computers to try to identify any robbery that fit that description. The only one that came close was the robbery at Irene's New Hope. Forcelli said he therefore ordered a comparison of Martinez's fingerprints with fingerprints recovered from the scene of Potter's murder. However, the results were negative. Nevertheless, believing that Martinez was involved in the Potter murder, Forcelli notified commanding officers in the 47th and 45th precincts as well as the Bronx [DA's] office. Forcelli said he had two conversations with the prosecutor Angelo MacDonald, who was handling the Garry case, about his belief that Martinez was involved.

"However, MacDonald told Forcelli there wasn't sufficient evidence to arrest Martinez. While Forcelli was testifying, Garber showed him photographs of Martinez and Garry from the time of the crime. Forcelli would later say that in looking at the photographs, he saw how strikingly similar the two men appeared. He immediately was struck by the possibility that Garry was a victim of mistaken witness identification.

"In 2016 -- a year after the post-conviction hearing -- prosecutors and Garry's defense lawyers got copies of Forcelli's reports from the Keith Ralph murder file. As a result, the hearing on the motion for a new trial was re-opened and Forcelli was again called to testify.

"He said that one of the reports documented a second interview with his informant. The informant said that in the summer of 1995, he remembered Martinez coming into an apartment where the informant was along with a woman named Marilyn Walton. Martinez was 'sweaty' and 'flustered' and said, 'I just shot some guy on Laconia Avenue.' The informant said Martinez was waving a handgun 'as if to show off the weapon he used.' The reports said that Forcelli interviewed Walton and she corroborated the informant's account.

"Although the Bronx [DA's] Conviction Integrity Unit had re-investigated the Potter murder, the unit did not publicly state whether it had reached a conclusion. Darcel Clark, who was elected [DA] in 2016, opposed granting Garry a new trial.

"In March 2017, Bronx County...Justice Michael Gross granted the petition and vacated Garry's conviction. Judge Gross ruled that the information about Martinez was exculpatory for Garry and the prosecution's failure to disclose it to Garry's trial defense lawyer resulted in an unfair trial. On March 31, 2017, Garry was released on bond pending a retrial.

"In January 2018, Garry went to trial for a second time. Garcia again testified and identified Garry as the gunman, though she now said she was no longer sure. Antonio testified and did not identify Garry as the gunman.

"Jose Marrero testified for the defense that he drove the getaway car, and that Garry was not involved in the crime.

"Forcelli also testified for the defense about the information he received from the informant regarding Martinez's admission to the shooting. Forcelli said that based on that information, he conducted further investigation that included requesting Martinez's fingerprints for comparison to fingerprints found in Irene's New Hope grocery store.

"Forcelli also tesified that he spoke to detectives and supervisors in the 47th precinct -- where Potter was murdered -- and brought them a photographic lineup containing Martinez to show to Garcia and Antonio and others in the store at the time of the crime.

"During cross-examination by the prosecution, Forcelli said that he believed in 1996 that there was enough evidence to arrest Martinez for Potter's murder and that he still believes Martinez should be charged with the crime.

"On February 5, 2018, the jury deliberated for less than a half-hour before acquitting Garry of all charges.

"On May 5, 2019, Garry filed a civil rights lawsuit in U.S. District Court for the Southern District of New York seeking damages for his wrongful conviction. In March 2020 Garry settled a claim in the New York Court of Claims for $3,850,000. In April 2020, Garry died. In 2021, the city of New York agreed to pay his estate $7.7 million."

[All emphases added unless otherwise noted.]

Hector Gonzalez & Christian Pacheco - "Overwhelming Evidence"

Tue, 04 Jun 2024 01:58:05 +0000

Gonzalez, Hector AND Pacheco, Christian; murder; NRE: mistaken witness identification; "OVERWHELMING"

[Gonzalez] N4 "In 1996, [Gonzalez] was convicted for murder in the second degree based, in part, upon eyewitness information and forensic evidence (blood samples). Failure of police, prosecutors, and defense counsel to request DNA testing, which was available in 1996, rather than relying exclusively on serological testing which was inconclusive."

[Gonzalez] [696:696]; 2nd Dept. 10/4/99; affirmed

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

"[I]n light of the overwhelming evidence of guilt..."

[The 2nd Dept. 'justices' who signed off on this were Lawrence J. Bracken, Gloria Goldstein, Cornelius J. O'Brien, and Fred T. Santucci. ]

[Pacheco] [696:680]; 2nd Dept. 10/4/99; affirmed

"[I]n light of the overwhelming evidence of guilt..."

[The 2nd Dept. 'justices' who signed off on this were Lawrence J. Bracken, Gloria Goldstein, Cornelius J. O'Brien, and Fred T. Santucci. ]

[Gonzalez] [850:868]; Kings Cty. Ct. 1/28/08; civil suit

"The indictment stemmed from a murder that took place on December 2, 1995, where the victim, Lemuel Cruz, was stabbed and killed outside of a bar in Brooklyn where Mr. Gonzalez was celebrating a birthday with his cousin. Evidence of small blood stains on Mr. Gonzalez's pants were introduced at the trial held against Mr. Gonzalez and several other defendants. Gonzalez maintained that he had acquired the stains on his pants while assisting his cousin and a friend who had been injured in the melee.

"On October 21, 1996, Gonzalez was convicted. He was in prison from December 2, 1995 until April 24, 2002. In 2001 in connection with a federal investigation of an unrelated matter, Assistant [U.S.] Attorneys and FBI agents obtained information from the actual perpetrators of the Cruz murder that Gonzalez played no role in the victim's death. Federal investigators then caused DNA testing on the blood stains, introduced against Gonzalez at his initial trial, to be conducted by the New York City Office of the Chief Medical Examiner. The tests conclusively determined that the blood on Gonzalez's pants was that of his cousin and friend and not that of the murder victim."

from NRE synopsis (by Maurice Possley):

"In the early morning hours of December 2, 1995, a brawl erupted in Con Sabor Latino Lounge on Third Avenue at 7th Street in Brooklyn...and culminated in the murder of 27-year-old Lemuel 'Lenny' Cruz.

"Cruz was stabbed 25 times and his throat was slit. He also suffered numerous bruises from being kicked in the body and the head.

"Witnesses said a fight broke out on the dance floor and that 10 to15 members of the Latin Kings street gang attacked Cruz. Cruz managed to get outside and was told to run, but he stayed because some of his friends were still inside. That's when a swarm of gang members emerged from a side door and attacked him again. One witness said that someone used a razor knife to slit Cruz's throat.

"Police were pointed toward about 10 people who were walking away from the nightclub, including 18-year-old Christian Pacheco, who was bleeding from a stab wound in the back. Police ordered everyone to stand against a wall. Pacheco knelt near the wall. A witness from the nightclub identified Pacheco, as well as Robert Correa, Hector Perez, and Hector Gonzalez as participants in the stabbing.

"That witness, identified in court documents as Witness 3, said that Pacheco was one of the gang members who attacked Cruz. Pacheco, who had been taken to a hospital for treatment of a collapsed lung, was arrested there not long after. He remained hospitalized until December 20, when he was released and taken to jail.

"On December 28, Pacheco, Perez, Gonzalez, Correa (who was charged under the name Suriel Esteban), and Billy Genera were indicted for second-degree murder and weapons charges.

"In September 1996, the five went to trial in Kings County...A serologist testified that ABO blood testing identified Cruz's blood type on Correa's shoe, and on the clothing of Pacheco, Gonzalez, and Perez. The analyst said that the blood had a marker that was present in Cruz's blood, but also was present in 54 percent of the population.

"A witness who was identified as Witness 1 testified that he lived in the apartment above the club with his girlfriend, whose father owned the club. He said that when the fight started, he came downstairs. He said that he saw Pacheco pull Cruz's head back and slit his throat with a razor knife. Other witnesses testified that they saw Correa, Gonzalez, Perez, and Genera involved in the fight. One of those witnesses, Marc Mendez, testified that he came to the club with Cruz. Although he admitted he was intoxicated that night, he said Gonzalez was one of the men who attacked Cruz.

"On October 3, 1996, the jury convicted Pacheco, Perez, Correa, and Gonzalez of second-degree murder and weapons charges. The jury acquitted Genera, the only person who did not have blood on his clothing consistent with Cruz's blood. Pacheco was sentenced to 25 years to life in prison. Perez and Correa were each sentenced to 20 years to life in prison. Gonzalez was sentenced to 15 years to life in prison.

"In 1994, the U.S. Attorney's Office, along with the FBI and [NYPD], had begun an investigation of the Latin Kings focused on narcotics trafficking. In June 1998, a cooperating witness who pled guilty to conspiracy to distribute narcotics told federal authorities that Latin Kings gang member Melvin Garcia was the person who slit Cruz's throat. The witness said that someone had bumped into Pacheco on the dance floor and that he reacted by attempting to punch the person he thought responsible, but he punched Correa by mistake. The cooperating witness said that when they decided to get the person they thought was responsible -- Cruz -- Cruz pulled out a knife. Cruz then got bumped and accidentally stabbed Pacheco. At that time, he said that Cruz was on the ground being attacked while Pacheco was on the ground and two girls were trying to help him get up.

"Eventually, three other witnesses who were cooperating in the federal investigation said that Melvin Garcia slit Cruz's throat. At least one of the witnesses said he believed Pacheco had attacked Cruz and stabbed him with a folding knife.

"The witnesses also said that two other men, Gregory Pirrone and Eduardo Velez, stabbed Cruz. Ultimately, Pirrone, Velez, and Garcia pled guilty in federal court to narcotics trafficking and to the murder of Cruz in the aid of racketeering. Garcia, in his plea agrement, admitted he caused Cruz's death by 'cutting him up, slicing him up.'

"Two of the other cooperating witnesses also said that Hector Gonzalez was not involved in the brawl. Federal authorities interviewed Gonzalez, who said he was innocent and that the blood on his clothes came from two injured men whom he had helped. Correa had a bloody nose and another fellow gang member had a cut on his hand.

"By that time, the Innocence Project and attorney Glenn Garber were seeking DNA testing of Gonzalez's clothing. In November 2001, DNA tests on Gonzalez's clothing confirmed his account. The blood did not come from Cruz, but from the two men that Gonzalez said he helped. On April 24, 2002, the Brooklyn [DA's] office requested that Gonzalez's convictions be vacated. The motion was granted, the charges were dismissed, and Gonzalez was released.

"The DNA testing also revealed that Cruz's blood was not on Correa's clothing. In 2005, Correa filed a post-conviction motion to vacate his conviction based on the testing, as well as a 2004 letter from Melvin Garcia to his attorney and a January 2005 affidavit. In both, Garcia said he killed Cruz and that Correa was innocent. In December 2005, Correa's convictions were vacated and he pled guilty to first-degree assault of Cruz. He was sentenced to time served and was released.

"In November 2006, DNA testing was performed on Pacheco's clothing. The tests confirmed the presence of Cruz's blood in three places -- on the front of Pacheco's shirt, on the left leg of his jeans, and on the right sleeve of his jacket.

"In 2013, the Brooklyn [DA's] Office Conviction Review Unit received a letter from Garcia saying that Pacheco was innocent. In 2017, DNA testing was performed again on Pacheco's clothing and confirmed the earlier results.

"On February 11, 2020, the CRU issued a report on its investigation and concluded that although there was 'strong direct and circumstantial evidence' that Pacheco took part in the attack on Cruz, nonetheless, Pacheco 'did not receive a fair trial.'

"The only direct evidence at Pacheco's trial was the testimony of Witness 1, who said that he saw Pacheco slit Cruz's throat. The report said that the CRU 'determined that Witness 1's testimony that [Pacheco] slashed the deceased's throat, and did so with a razor box cutter, was most probably false.'

"The report noted that of the three witnesses (none of whom testified at trial) who identified Pacheco, none of them said that Pacheco possessed a razor or box cutter. 'Two witnesses stated that [Pacheco] stabbed the deceased; one witness stated that [Pacheco] stomped on the deceased.'

"The CRU report also noted that Witness 1 told police initially that the person who slashed Cruz's throat was wearing a Shearling coat and had gold teeth. It was undisputed that Pacheco was wearing a brown coat that night and he did not have gold teeth. Although Cruz's blood was on Pacheco's shirt, the investigation showed that when Cruz's throat was slit, Pacheco was on the ground after being stabbed and was not near Cruz.

"Because of the testimony of witnesses that Pacheco was otherwise involved in the beating, the CRU report said that he was 'not factually innocent.' At the same time, the report said the CRU concluded that Pacheco 'did not receive a fair trial because the evidence upon which the prosecution relied was inaccurate and incorrect.'

"On February 11, 2020, [ADA] Mark Hale requested that Pacheco's convictions be vacated....Justice Matthew D'Emic granted the motion. The charges were dismissed and Pacheco was released.

"After Gonzalez was released, he filed a federal civil rights lawsuit that was settled in 2008 by the city of New York for $3.4 million. He also received $1.8 million in compensation from the New York Court of Claims."

[All emphases added unless otherwise noted.]