Judge Hamstrings the Defense Cases

The following are excerpts from New York State wrongful conviction cases in which an apparently pro-prosecution judge has seemingly -- and unfairly -- 'ham-strung' the defense:

Bradley, Adam; assault; NRE: perjury/false accusation, no crime

Bench trial

"[Bradley] was alleged to have, among other things, thrown a hot cup of tea on his wife and slammed a bedroom door on her hand on two separate incidents inside their home...At the trial, his [wife's] description of these incidents demonstrated that [Bradley] had committed the alleged acts intentionally. On cross-examination, the...wife specifically denied ever telling anyone that she thought the bedroom door had shut on her hand accidentally. [County] Court precluded defense counsel from asking one of the detectives...whether the...wife ever told him that the bedroom door was shut on her hand accidentally."

"[County] Court [Susan Capeci] precluded testimony of two witnesses, which was offered to show that the...wife had, on a number of occasions shortly after the bedroom incident, stated that she thought that the door had been shut on her hand accidentally."

[Reversed for improper exclusion of that evidence.]

Batista, Daniel; weapon possession/sale; NRE: no crime, perjury/false allegation, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, perjury by official

"At about 7:25 p.m. on June 30, 1991, 24-year-old Daniel Batista...was walking...with a friend, Ana Caraballo."

"As they walked, a dark blue van stopped...and four New York City police officers, including David Benitez and James Velez, got out.

"One of the officers asked Batista, 'Why are you coming out of that building?' 'What building?' replied Batista. 'I am not coming out of any building.'

"Officer Benitez then took Batista into the building."

"Benitez and the others handcuffed Batista, took his keys, and began trying to open doors with them on the first floor. They also took his wallet containing $400.

"Witnesses later said that officers took Batista into the building next door...They saw Benitez walking into the building holding a gun. Batista later said that Benitez walked up to him holding a handgun. 'You're screwed,' Benitez said. 'This weapon is yours.'

"On December 12, 1992, the jury convicted Batista of criminal possession of a weapon...At the sentencing hearing...Justice Bernard Fried told Batista, 'You are convicted by a jury, which took a very short time to reject your preposterous, and, in my view, completely untruthful story or version of what occurred. . .I am satisfied that you committed perjury in this courtroom.'

"'In addtion to that, in my view, you produced witnesses on our own behalf, who equally told untruthfful stories, compounding the aggravating situation here,' the justice said. 'You made serious allegations involving police conduct, allegations which were clearly rejected by a jury verdict which came in [after] several hours.'

"Meanwhile, attorney Joseph Holmes at the Legal Aid Society was working on an appeal of the conviction, citing the arrest of Velez and Benitez, as well as numerous other officers in the 30th Precinct.

"The motion noted that Benitez had pled guilty in U.S. Disrict Court to extortion in connection with taking payoffs from drug dealers during the time that Batista was arrested. He was sentenced to 12 months in prison. Velez was arrested and convicted of perjury for lying about his involvement in corrupt activities. He was sentenced to one to three years in prison.

"The arrests of Benitez and Velez and 31 other officers led to the precinct being christened the 'Dirty Thirty.'...The officers were accused of forcing their way into apartments without search warrants, then falsifying arrest reports and lying to grand juries and at trials.

"The motion said, 'The officers, operating in small cliques, stole drugs, guns and cash, sometimes breaking down doors to get at them, or patting down drug dealers for keys to the houses where they had stored drugs, according to authorities. Some of the officers admitted protecting narcotics runs or beating up drug dealers for drugs and money..."

"The motion said that offcers routinely covered up their corruption by making false reports and 'flaking' -- the term used for planting weapons on a suspect.

"In 1996, Justice Fried granted the motion and vacated Batista's conviction. The prosecution then dismissed the charges."

[One wonders if Judge Fried apologized to Batista, whom -- along with other defense witnesses -- he wrongly branded a liar, whilst (seemingly) reflexively, believing the (truly) perjurious policemen.]

"In 1997, the New York Times published an extensive report chronicling The Dirty Thirty and investigated Batista. 'No one believed me when I told them what happened,' Batista said. 'I lost my marriage and my business and almost three years of my life. And now that I'm out, nobody really cares.'"

"Batista was subsequently awarded $650,000 to settle a lawsuit against the City of New York. And in 1998, Batista settled a lawsuit against Benitez and Velez. The settlement required each of them to pay Batista $100 a month for 25 months -- a total of $5,000."

Brinson, Jeremiah; robbery; NRE: perjury/false accusation, no crime, misconduct that is not withholding evidence

Writ granted, due to barring defense from cross-examining victim re: alleged racial bias, wrongful striking of victim's testimony, and prosecutorial misconduct

"Brinson's conviction stems from the alleged robbery of Jeremy M. Gavin ...Gavin, the complainant and sole witness to the crime, testified that at about 1:30 a.m. on May 28, 1997, he was walking down Main Street in the City of Geneva after leaving a loal bar, the Rum Runner...According to Gavin, a black man who he did not know approached him and asked him if he could spare a few dollars...Gavin stated that as he was attempting to extract a few bills from his wallet, the man grabbed at the wallet...Gavin testified that he 'tried to defensively push him away' but 'ended up sprawled on the ground.'...Gavin related that the man then pulled out a razor knife, raised it up to about shoulder- height, bent down, picked up the money that had fallen out of the wallet (about $60) and started to walk away...Gavin stated that as the man drew the knife from his pocket, a piece of paper fell out: this turned out to be Brinson's Social Security card, which Gavin brought to the police station when he reported the crime...Gavin described the person who robbed him as a black man wearing jeans, a white sweatshirt and a black baseball cap."

"Brinson testified that Gavin, who was still following him, 'made some kind of motion' to the police. Brinson said to Gavin, '[Y]ou are a narc, aren't you?' and kept walking hurriedly away... Gavin then yelled at him, [Y]ou Nigger, come here, Nigger[.]'"

"Brinson asserts that he was denied his Sixth Amendment right of confrontation due to the trial court's [James M. Harvey] erroneous limitation of defense counsel's cross-examination of the complainant, Gavin, regarding racist remarks made by Gavin during the summer of 1997...Shortly after the incident...[d]efense counsel attempted to cross-examine the complainant about his allegedly having been fired from his food service job at Perkins restaurant for refusing to serve African-American patrons ...The prosecutor objected on the ground that this line of questioning was 'not relevant.' The trial court agreed and did not allow defense counsel to ask Gavin whether he had been fired from Perkins."

[Defense counsel then stated to the judge, outside the presence of the jury:]

"'[H]e told his supervisor he's not serving any fucking Niggers.'" [The judge then 'ham-strung' the defense on this issue, focusing on the absolutely irrelevant issue of precisely when Gavin worked at the restaurant.]

[This is highly reminiscent of when, in the Nickel case, Paul Czajka ham-strung the defense re: what expertise is required --and methods utilized -- by McEvoy and similar photo analysis experts, focusing instead on the absolutely irrelevant issue of how Nickel would have 'looked' at the time the sex photo was taken. (See Day Two of annotated trial transcript.)]

"Defense counsel then sought to call June Orbaker...a woman who alleged that she lived with Gavin 'berween late May and early June.'...According to defense counsel, Orbaker would have testified that about a month prior to trial, Gavin told her that 'all Niggers who come into Rite Aid knew that he's the one that accused Jeremy [sic] Brinson.'

The prosecutor objected... The cout [sustained the objection]."

"Brinson faults counsel for calling as a witness Joel Richardson...whose testimony was stricken...Notwithstanding defense counsel's failure to object [to the striking of Richardson's testimony], the trial court should not have excluded the evidence even in the weak form introduced by counsel...It does not matter that Richardson did not identify the victim or whether he could or could not identify the victim. Rather, the mere fact that the presence of a white male in the automobile at or about the time of the incident reasonably tended to corroborate Brinson's account of the incident. By excluding such evidence, the trial court eviscerated a substantial portion of Binson's factual defense by preventing corroboration of Brinson's testimony on this point. Such exclusion made it extremely difficult for Brinson to argue an alternative scenario and prevented his counsel from arguing the complainant's possible motive for testifying falsely. When coupled with the critical evidentiary errors committed by the trial court, the cumulative effect of these errors create a disturbing picture and a substantial doubt that [Brinson] received a fair trial..."

[The writ was granted in this case because defense counsel was barred from cross-examining supposed victim re: alleged racial bias, wrongful striking of victim's testimony, and prosecutorial misconduct.]

Turner, Clinton; robbery; NRE: perjury/false accusation, no crime, prosecutor misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury

"In Turner v. Schriver, the trial court [Ralph Sherman] rejected a newly discovered evidence claim brought in 1993, five years after Turner was convicted for the...robbery of William Clarke. Turner produced two affidavits, one from William Clarke -- the alleged victim and only eyewitness to the crime -- in which Clarke admitted to lying about the alleged robbery. The other was from an inmate who stated that Clarke had falsely accused him of a separate robbery. Clarke's affidavit stated that at the time of the robbery he had 'a serious cocaine and crack addiction as well as serious alcohol dependency,' which caused him to 'behave irrationally.' He also stated that he and Turner had an altercation over drugs, but that Turner did not have a knife and had never robbed him, and that he had lied to the police when he said he did not have a criminal record. Finally, he explained that he was only now revealing this information because he had since sobered up, married, fathered a child, and was 'very sorry' for his acts.

"In a three-sentence opinion, the appellate court affirmed the trial court's denial of the appeal, without a hearing, on the grounds that 'there is no form of proof so unreliable as recanting testimony,' and it merely impeached Clarke's prior testimony and 'probably would not change the result if a new trial were granted.' The court made no mention of the fact that Clarke, the alleged victim, was the prosecution's only eyewitness, and that the alleged victim was not only recanting his testimony, but admitting to committing perjury on the stand by lying about his criminal past."

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

"In 1993, Derrick Hamilton was put on trial for murder. His defense rested on alibi witnesses, who ultimately did not appear at trial -- one due to illness, the other out of fear.

"Before sentencing, a motion was made to set aside the verdict based on the recantation of the prosecution's chief witness, the victim's girlfriend. The witness now asserted that she was not present at the crime scene and testified under duress. A defense witness materialized who confirmed it."

"In 1994, he sought to vacate the conviction on the basis of an affidavit from a witness who said that two other men -- Amir Johnson and 'Money Will' -- shot Cash. In 1995, while that motion was pending, two more witnesses came forward and said Hamilton was at a going-away party at a hotel in New Haven for a man who was going to prison.

"One of the witnesses, Kelly Turner, was working as a talent agent at the time of the crime but had since become a decorated police officer in New Haven. She provided a sworn statement that she was with Hamilton at the party until 1 or 2 a.m. -- well after the shooting in Brooklyn. The other witness, Davette Mahan, said she was Turner's assistant and that she also saw Hamilton and Turner together, discussing business, at the party.

"Hamilton sought to expand his motion to vacate the conviction to include Turner and Mahan, but the judge refused because Turner and Mahan were not on Hamilton's alibi witness list prior to trial.

"An evidentiary hearing was held on the claim that Amir Johnson and 'Money Will' shot Cash, but the judge [Edward M. Rappaport] said the witness was not credible and denied the motion.

"In 1998, another hearing was held with testimony from an additional witness who said 'Money Will' shot Cash. That witness also was not believed.

"In 2009, Hamilton filed a motion seeking a new hearing to allow Turner and Mahan to testify in the wake of a U.S. Supreme Court ruling allowing witnesses to testify to actual innocence if they had not been previously allowed to testify. The prosecution opposed that motion as procedurally barred. While the motion was still pending, two more witnesses came forward to corroborate Turner and Mahan's statements.

"One of those witnesses was Mattie Dixon, the wife of Alphonso White (who had since died). Dixon provided hotel records showing that she and her husband had rented a room for Hamilton at the hotel on the night of the party and that a banquet room was reserved for that night. In a sworn affidavit, Dixon said that the detective for whom her husband worked as an informant became angry for [him] 'being Derrick's alibi' and that the detective told them to 'forget about Derrick Hamilton' or go to jail.

"In August 2011, the motion for a hearing to allow the witnesses to testify was denied."

Abney, Quentin; robbery; NRE: mistaken witness identification

[867:1]; 1st Dept. 10/14/18; affirmed, but two dissenters

"[Abney] was convicted of robbing a 13-year-old girl at knifepoint based on the victim's eyewitness testimony. [Abney] argues that the conviction should be reversed, and the case remanded for a new trial, based on the trial court's refusal to permit the defense to present expert testimony on the reliability of eyewitness identifications."

"Defendants in both of these cases unsuccessfully sought to introduce exert testimony on the reliability of eyewitness identification. The question for us is to decide whether...the trial courts abused their discretion when disallowing this testimony. We conclude that the trial judge in Abney [William A. Wetzel] abused his discretion..."

[The Court of Appeals reversed Abney's conviction because of the trial judge's abuse of discretion.]

"The trial court also erred in precluding the Defense from presenting two witnesses, neither of whom was related to Ms. Abney or Ms. Nimmons or had a criminal record. One would have testyified that he saw Mr. Abney walking with [the daughter] in Brooklyn shortly after 3:00 p.m. on the date of the robbery, and the other would have testified that she saw Mr. Abney at home in Bedford-Stuyvesant at the time of the commission of the crime."

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

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

"Following the verdict but prior to sentencing, Perry and his attorney, William Mogulescu, met with Fennell's lawyer, Howard Jaffe. During this meeting, Perry admitted that he had acted alone in murdering Williams, and even expressed a willingness to execute an affidavit to that effect... In March 1985, Perry executed the affidavit, which, in turn, became the crux of a post-conviciton motion to set aside the verdict against Fennell."

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

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

Groce, Tyrone; robbery; NRE: mistaken witness identification

"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.

"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.

[The name of this judge is Michael G. Gerson.]

"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 [one od the actual robbers] 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..."

[* Likely by the same pro-prosecution judge who would not allow into evidence that 'gold-tooth' photo.]

Jones, Clifford; murder, sexual assault; NRE:

[from dissent:] "I believe the motion court should have granted [Jones] further DNA testing and held an evidentiary hearing before determining his motion."

"[Jones] was convicted of raping a woman, R., and stabbing to death a man in an apartment building on the afternoon of June 2, 1980. R., a heroin addict who had taken the drug earlier that day and was supporting herself as a prosititute, had entered the building with the assailant to find a place to engage in sexual activity."

"[W]e hold that the Appellate Division abused its discretion in summarily denying [Jones'] motion for an evidentiary hearing..."

Mercer, Michael ; sexual assault, robbery; NRE: mistaken witness identification

"The victim was accosted in an elevator, forced to the roof, robbed, and raped. Two months later, she spotted Mercer in the building as he was going to visit a friend and she screamed for his capture. He was arrested and charged based exclusively on the victim's identification. In his first trial, the jury could not reach a verdict. In the retrial, where the victim was resolute about her identification, Mercer was convicted."

"In 1996, his request for DNA testing was denied [by Judge Leslie Crocker Snyder] based on lack of merit.

"Finally, in January 2003, DNA testing of biological material from the victim not only excluded Mercer from the rape, but matched Arthur Brown, a man serving a life sentence for gunpoint robberies and rapes."

Broadwater, Anthony; rape; [not on NRE list:] mistaken witness identification, false/misleading forensic evidence, inadequate legal defense, prosecutor misconduct, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

Bench trial

"Sebold was raped in a pedestrian tunnel in a park around midnight on May 8, 1981, the last day of her freshman year at Syracuse University. 'I heard someone walking behind me,' she wrote in an affidavit. 'I started to walk faster and was suddently overtaken from behind and grabbed around the mouth.' When she tried to run away, the man yanked her by the hair, dragged her along a brick path, pounded her skull into the ground, and said he'd kill her if she screamed. Eventually, she stopped resisting..."

"During a brief recess, the judge, who had four daughters, chatted with Sebold and asked about her family and what her father did for a living. Immediately after the closing statements, the judge pronounced Broadwater guilty."

[The name of this 'judge' is Walter T. Gorman. ]

Blake, Jeffrey ; murder; NRE: perjury/false accusation, police officer misconduct, prosecutor misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, perjury by official, prosecutor lied in court

Suggestibility issues

"Jeffrey Blake was a young Brooklyn man convicted of murder...in the early 1990s based solely on the testimony of a single eyewitness, Dana Garner. At the outset of the Blake case, prosecutors failed to disclose information casting doubt on the witness' credibility. Years later, due to a painstaking re-investigation of the case by Michelle Fox, the Legal Aid Society lawyer assigned to handle Blake's direct appeal, Garner recanted entirely and the person with whom he had previously claimed to be standing at the time of the incident denied seeing the shooting. The local [DA's] office was initially hesitant to set aside the conviction until a New York Times columnist joined in Fox's efforts by writing a series of articles, scathing in their depiction of the county prosecutor's office. It was only in response to this media coverage that the prosecution eventually agreed that the conviction should be set aside, and Blake was finally released upon the motion of the [DA] after eight years' imprisonment."

"At trial, Garner's cousin, Otis Gary, with whom Garner lived in New York, said that Garner had been in North Carolina the day of the shootings (which were on their block). However, the Court [Robert S. Kreindler] precluded the defense from attacking Garner's reliability by showing that Garner learned of the shooting from Gary. Thus, the defense was prevented from rebutting the D.A.'s argument that Garner's knowledge could only have come from being an eyewitness. "After [Blake's] conviction, in a pre-sentence report...a probation officer reported that the trial prosecutor had told her two things about Garner that were not in the trial record. First, he told her that Garner had informed against [Blake] only after he was arrested on another case. Second, he told her that Garner had formerly been a drug-selling associate of [Blake], and could have been biased against [Blake] because [Blake] had refused to pay ransom when Garner was kidnapped by a rival drug gang.

"The defense, upon learning of the probation officer's report, immediately moved for a mistrial, or, alternatively, for a fact-finding hearing on this potential exculpatory evidence. At the hearing, the Probation Officer testified under oath that the trial prosecutor had told her about Garner's prior arrest, and his kidnapping. The trial prosecutor, who also testified, denied telling her these things.

"Other exculpatory evidence was also revealed at the hearing. A detective divulged at the hearing that Garner also claimed to be a witness to a number of other homicides in the area including a street shooting a week after this one, and that Garner was a frequent police informant. In order to resolve the conflict between the Probation Officer and the A.D.A., and to explore whether Garner was an interested witness with a motive to falsify his testimony, and/or a professional informant, the defense demanded to call Garner himself as a witness. The court refused to allow Garner to testify, and promptly entered findings of fact declaring the probation officer incredible and the prosecutor credible. The court then denied the defense motion to set aside the verdict."

[There seems to be little reason why this judge would (reflexively?) credit the prosecutor over the probation officer, other than that he was simply a pro-prosecution judge who did not want to upset the verdict of conviction. Clearly, the prosecutor had a motive to lie here, in order to protect the conviction. On then other hand, the probation officer had absolutely no apparent motive to lie; indeed, such persons are generally known as being very pro-prosecuton themselves. Having ordered this hearing, this 'judge' simply did not like the evidence it produced.]

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

"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 [Edwin Torres] ruled the statement was inadmissible hearsay."

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

"At trial, Fludd... said that she picked both men out of a police lineup."

"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 [Albert Tomei] did not inform the jury of this falsehood by Fludd."

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

76 F.Supp.2d 258; E.D.N.Y. 11/30/99; writ denied (by Judge David Trager)

"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

"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."

"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."

"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."

"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."

"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."

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

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

"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: "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."

"In 2001, the Second Circuit Court of Appeals overturned Leka's conviction based on the prosecution's failure to disclose exculpatory evidence to the defense. In January 2002, the prosecutor's office announced that it would not retry Leka.

Pavel, Kenneth; child sex abuse , assault; NRE: perjury/false accusation, no crime, inadequate legal defense

Bench trial

Suggestibility issues

261 F.3d 210; 2nd Cir. 7/25/01; denial of writ reversed; writ granted, due to ineffective assistance of counsel

[Federal Judge Thomas J. McAvoy of the Northern District of New York, the same judge who denied Nickel's writ, denied Pavel's -- twice , and also refused to issue a of Certificate of Appealablity (also twice), which would have made getting heard by the Second Circuit much easier. But the present decision reversed McAvoy, granting Pavel the writ.]

"Upon his arrest, Pavel contacted Sanford Meltzer...the attorney who had represented him in connection with the marital disputes. Meltzer noted that there was little if any physical evidence that Pavel had abused the boys in the manner that they alleged. Accordingly, Meltzer did not prepare a defense; instead, he planned to move to dismiss the charges against Pavel at the close of the prosecution's presentation of its evidence, and was confident that the trial judge would grant the motion."

"There are many ways properly to assist a client...But making important decisions with no regard for a client's interests is not one of them."

"District Judge Thomas J. McAvoy adopted the Magistrate Judge's [Scanlon's] Report-Recommendation [to deny the habeas petition] in a one-page Decision and Order..."

"Magistrate Judge [Daniel] Scanlon -- without ever holding a hearing to consider the evidence supporting [Pavel's] Petition -- issued a second Report-Recommendation recommending that the Petition be denied on the merits. [Pavel] filed timely Objections to Magistrate Judge Scanlon's Report-Recommendation... Over a year later...and again without holding a hearing... Judge McAvoy issued a three-paragraph Decision and Order containing no legal analysis."

"Magistrate Judge Scanlon's May 12, 1998 Report-Recommendation, which District Judge McAvoy adopted... completely overlooked the powerful evidence that [Pavel] submitted in support of his Petition, evidence that would have cast more than reasonable doubt on [Pavel's] guilt had it been offered at trial."

"The District Court concluded that [Pavel] was not denied effective assistance of counsel. First, it stated -- incorrectly -- that [Pavel's] 'only viable defense strategy' was to prove that [the boys' mother as well as their therapist] 'convinced his two sons that [Pavel] had sexually abused them' ...Even a cursory review of [Pavel's] Petition reveals that this theory was not [Pavel's] 'only defense.' Indeed, the Petition never states that [the boys] were 'convinced' of anything..."

"The District Court also held that it was reasonable for [defense] counsel not to call a medical expert to testfy that the state's medical evidence was 'inconsistent with repeated sexual abuse' because Dr. Madden admitted this point...In fact, Dr. Madden admitted no such thing. Dr. Madden did testify 'that a sexually abused child does not always display medical signs indicating such abuse has occurred.'...That, however, is far different from saying that a child who is repeatedly, violently sodomized will invariably show evidence of the abuse, and that the absence of such evidence strongly indicates that no such abuse occurred..."

"The District Court erred in concluding that 'virtually all of the evidence that [Pavel] claims should have been presented [at trial] was presented.' In fact, no such evidence was presented, and the District Court failed even to discuss most of the evidence submitted in support of this Petition."

"Pavel's attorney failed to develop a case because he assumed that the case would be dismissed, failed to call fact witnesses who would have established Pavel's alibi and his ex-wife's mental instability, and failed to call any medical experts to contradict the prosecution's expert testimony. Pavel was the only defense witness..."

Thomas, Adrian; murder; NRE: false confession, no crime, false/misleading forensic evidence, police officer misconduct, misconduct that it is not withholding evidence, misconduct in interrogation of exoneree

Suggestibility issues

[3rd Dept. decision affirming conviction Edward Spain, Bernard J. Malone, John C. Egan Jr., John A. Latinen, and Leslie E. Stein ):]

"Interviewed by detectives...at length, [Thomas] ultimately confessed that he had thrown Matthew onto a box spring located -- without a bed frame -- directly on the floor in [Thomas's] bedroom, three times in the four days preceding the 911 call. [Thomas] also admitted that he had unintentionally hit the infant's head against the side of his crib several times, including after the 911 call."

"A plethora of highly credentialed medical specialists were called by both sides, offering two sharply conflicting opinions regarding the primary cause of death...[Thomas], in his trial testimony, disavowed his confession as false, and denied throwing Matthew or hitting his head against the crib.

>b> "[W]e find that [Thomas]...voluntarily confessed during noncustodial interviews in which police employed permissible strategies aimed at eliciting the truth of what had occurred leading up to Matthew's death.

"[T]he strategies and tactics employed by the officers during these interviews were not of a character as to induce a false confession..."

[And yet, the NRE lists false confession, police officer misconduct, and misconduct in interrogation of exoneree as contributing to this wrongful conviction, where, in fact, no crime had even occurred.]

[Court of Appeals decision reversing conviction:]

"Inasmuch as we conclude that [Thomas's] inculpatory statements were not demonstrably voluntary, we reverse...grant [Thomas's] previously denied motion to suppress those statements, and direct a new trial.

"The premise of the interrogation was that an adult within the Thomas-Hicks household must have inflicted traumatic head injuries on the infant. Indeed, one of the interrogating officers told [Thomas] that he had been informed by Matthew's doctor that Matthew had been 'slammed into something very hard. It's like a high-speed impact in [a] vehicle. This baby was murdered...[T]his baby is going to die and he was murdered.' These interrogators, however, repeatedly assured [Thomas] that they understood Matthew's injuries to have been accidental. They said they were not investigating what they thought to be a crime and that once [Thomas] had told them what happened he could go home. He would not, they reassured over and over again, be arrested. When, however, [Thomas] continued to deny having hurt Matthew, even accidentally, the officers falsely represented that his wife had blamed him for Matthew's injuries and then threatened that, if he did not take responsibility, they woud 'scoop' Ms. Hicks out from the hospital and bring her in, since one of them must have injured the child.

"What transpired during [Thomas's] interrogation was not consonant with, and, indeed, completely undermined, [his] right to incriminate himself -- to remain silent."

"Most prominent among the totality of circumstances in this case is the set of highly coercive deceptions. They were of a kind sufficiently potent to nullify individual judgment in the ordinarily resolute person and were manifestly lethal to self-determination when deployed against [Thomas], an unsophisticated individual without experience in the criminal justice system."

[And yet, all the Third Department 'justices' on Thomas's panel thought all of these practices were absolutely fine. Not even one of the five dissented. By contrast, all seven members of the state Court of Appeals voted to reverse Thomas's conviction.]

[from NRE synopsis:] "By the time the second portion of the interrogation began, Matthew had died. The detectives, however, told Thomas that Matthew was alive and that the only way to save Matthew's life was for him to tell them what he had done to Matthew. When Thomas said he had accidentally dropped Matthew five or six inches into his crib about 10 to 15 days earlier, a detective entered the interrigation room and said that based on his experience with head injuries in the military in Operation Desert Storm, he knew that Thomas was lying. The detective said that the child's head injuries were consistent with the type of injuries suffered in a high-speed auto collision.

"After that detective left, other detectives suggested to Thomas that perhaps he had been depressed, emotionally overwhelmed, upset after his wife berated him for chronic unemployment and acted out of frustration and hurled the child to the mattress. Eventually, Thomas was persuaded to re-enact what the police believed he did, using a clipboard to stand in for the baby.

"[The Court of Appeals noted that] Thomas was told 67 times that what had been done to the baby was an accident, 14 times that he would not be arrested and eight times that he would be going home."

Eze, Louis AND Okongwu, Dominic AND Wosu, Joy; child sex abuse; NRE: perjury/false accusation, no crime, prosecutor misconduct, misconduct that is not withholding evidence, false/misleading forensic evidence, inadequate legal defense

Suggestibility issues

[Eze, 2nd Cir.; denial of writ (by William M. Skretny ) vacated; evidentiary hearing ordered re: ineffective assistance of counsel:]

"Once again, before us now is someone convicted of child sexual abuse-related crimes whose quality of trial representation causes us serious concern...Several obvious pieces of evidence that would have cast doubt upon Eze's guilt were inexplicably negected at trial, even though defense counsel was aware of them..."

"We are especially concerned...with defense counsel's failure to impeach the underlying medical grounds on which Dr. [Stephen] Lazoritz based his conclusion that the girls had been abused."

[Eze] 2011 WL 4383140; W.D.N.Y. 9/4/11; civil suit

"The conviction was ultimately dismissed on October 10, 2003, following the grant of a petition for a writ of habeas corpus by this court on the basis of ineffective assistance of trial counsel."

[Okongwu, 4th Dept. reversal, due to ineffective assistance of counsel :]

"Both [Okongwu] and Eze contended that their attorneys failed to introduce evidence of a 1988 medical examination of one of the victims establishing that the physical findings then were the same as those found during a 1992 examination. That evidence could have nullified any contention that the physical injuries of that victim resulted from the abuse alleged in the indictment.

"Both [Okongwu] and Eze complained that their attorneys failed to obtain experts to refute the [prosecution's] experts and failed to introduce evidence to discredit those experts...Based on the many charges and the evidence that there were other possible causes for the physical evidence of abuse, there is no excuse for such feeble attempts to contact experts."

"[Eze's trial counsel did not] attempt to demonstrate that any of the changes in [T1's] grand jury testimony occurred as a result of leading questions."

"The courts [reversing the convictions] held that the defense attorneys failed to bring in evidence showing that medical studies at the time raised questions about the reliability of hymenal examinations as a basis for determining the occurrence of sexual abuse.

"The courts also were critical of the defense for failing to challenge the prosecution's child sex abuse expert's claim that she had seen only one fabricated case out of 50 to 100 cases she had encountered."

Colon, Danny AND Ortiz, Anthony; murder; NRE: perjury/fase accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury, witness tampering or misconduct interrogating co-defendant, misconduct in interrogation of exoneree, prosecutor lied in court

[1st Dept. affirms conviction:]

"[Colon and Ortiz's] guilt was established beyond a reasonable doubt and was not against the weight of the evidence..."

[Court of Appeals reverses, due to prosecutor misconduct

"During summation, the prosecutor repeated Vara's assertion that he had not received 'any benefit' other than the favorable plea agreement resolving his 1990 misdemeanor drug case. The prosecutor also stressed that she had 'nothing to do with the plea [Vara] ultimately took with a two and a half to five year sentence' in connection with his 1992 felony narcotics arrest.

"In 2003, Colon moved...to vacate the judgment, arguing that Vara had received additional benefits in exchange for his testimony and that the prosecutor had failed to correct Vara's false testimony. Ortiz later joined in the motion and [County] Court conducted a hearing at which the prosecutor testified but Vara did not appear.

"At the hearing, [Colon and Ortiz] established that the [DA's] Office had engaged in further activity on Vara's behalf that neither Vara nor the prosecutor revealed during the trial. Specifically, the prosecutor had assisted in the relocation of Vara's grandparents by contacting the New York City Housing Authority. [Colon and Ortiz] also demonstrated that the prosecutor was involved in Vara's 1992 felony drug case on two occasions. First, the prosecutor appeared at a calendar call to tell Vara about a plea offer of 2-1/2 to 5 years that had been authorized by the Office of the Special Narcotics Prosecutor. Second, approximately one month later, the prosecutor left a message with the narcotics prosecutor regarding Vara's status as a witness in [Colon and Ortiz's] murder trial. [Colon and Ortiz] also revealed that the prosecutor was aware that a gun had been recovered from Vara's hotel room prior to the murder trial and that Vara was never arrested or prosecuted for its possession.

"Furthermore, the [DA's] Office produced two handwritten notes by the trial prosecutor...that pertained to her interviews of two women who claimed to have information about the shootings. These notes had not been disclosed to defense counsel prior to trial... [O]ne woman had identified four persons as participants in the shooting: Litte Danny, Willie Perez, Moose and Wilbert. The second note contained a slightly different list of four names obtained from the second woman -- Danny, Willie, Moose, and Wilbur.

"Following the hearing, [New York County] Court [Michael A. Corriero] denied [Colon and Ortiz's]...motions to vacate the judgments. The Appellate Division affirmed, finding that any error was harmless... A Judge of this Court granted leave to appeal... and we now reverse.

"[T]he prosecutor failed to correct Vara's misleading testimony and, in addition, compounded these errors by repeating and emphasizing the misinformation during summation."

[from NRE synopsis:]

"On August 12, Ortiz was arrested on federal narcotics charges and threatened with a charge of murder unless he cooperated with the investigation. Ortiz refused, and remained in federal custody until October 12, 1990, when he was charged with the murders of Martin and Morales and taken into custody by New York police. That same day, Colon was arrested and charged as well."

"At trial...the statement from the relative of [Necio] Fonseca [named by Mejia and Garcia as one of the shooters] -- in which [Johnny] Vargas admitted he had committed the murders with [three others], was never disclosed to the defense attorneys.

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

[2nd Dept. affirms, but one dissenter

[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."

[Court of Appeals then reverses, 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."

[from Records and Briefs:]

"[Johnson] moved for a new trial...on the basis of newly discivered evidence...[A]t a hearing held pursuant to the motion, Anderson recanted his identification of [Johnson] as one of the perpetrators, admitting that he had 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.]

"[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."

"[D]ocumentary records show[ed] that Johnson had been paying a utility bill at the time of the crime and making purchases..."

"No physical or forensic evidence linked either defendant to the crime.

" Anderson admitted he had lied to detectives on numerous occasions, saying he didn't want to get involved in the case."

"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.'"

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

[2nd Dept. reverses, 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:]

"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."

"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."

"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."

Maldonado, Robert AND Poventud, Marcos; attempted murder; NRE: mistaken witness identification, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

"Duopo met with a police sketch artist and they collaborated to create a sketch of Poventud's partner in the crime."

"Duopo identified Poventud as the gunman and Maldonado as his accomplice. On cross-examination, however, Duopo was shown a photograph of Maldonado's brother and twice identified the brother as Poventud's accomplice. In an attempt to rehabilitate Duopo's testimony, the prosecution was allowed (by Judge Alexander Hunter ) to introduce the composite sketch into evidence."

"In 2002, the New York Court of Appeals reversed Maldonado's conviction and ordered a new trial. The court held that the sketch was unreliable and should not have been admitted in evidence. The court said that 'courts and juries have no way to determine reliably whether a witness helped generate a description that mirrors the offender or one that in reality looks nothing like the offender.'"

Martinez, Angelo; murder; NRE: mistaken witness identification, perjury/false accusation, police officer misconduct, misconduct that is not withhlding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

"On cross-examination the witness stated that prior to viewing the lineup the police had informed him that the person whose picture he selected was in the lineup and that he should come down and pick him out..."

"The Court [Robert T. Grohan] suppressed the lineup identification but, on October 24, 1985 the Court entertained the [DA's] motion to reargue and reversed its decision, denying suppression..."

"In support of the motion, [Negron] submitted an affidavit from his trial counsel who stated that, at the time of trial, he had known that Caban had been arrested and charged with possession of weapons and ammunition that had been found on the roof of a nearby building. Trial counsel represented, however, that he had not known that Caban had attempted to get rid of the contraband in response to the police arriving to execute the search warrant or that Caban had been in possession of .45-caliber ammunition. Counsel further affirmed that he did not object to the court's use of the 'clear link' standard in rejecting the third-party culpability defense because he was unaware that the standard had been overruled several years earlier -- stating, 'I did not research this issue at all. I have no explanation or excuse for this failure.' Trial counsel further represented that he had no strategic reason for failing to make use of photographs and potential witnesses that would have established that [Negron] had no facial hair at the time of the crime.

"The court denied the motion without a hearing."* [* Again, this was judge Gregory L. Lasak. ]

"Prior to being overruled by this court in People v. Primo [6/12/01],* the 'clear link' standard had required the defendant to 'do more than raise a mere suspicion that another person committed the crime,' that is, to show 'a clear link between the third party and the crime in question.'...Instead, we determined that third-party culpability should be evaluated in accordance with ordinary evidentiary principles -- by balancing probative value against the potential for unfair prejudice, delay and confusion'..."

[* Note that Negron's trial took place in March of 2006, nearly 5 years after New York's highest court had overruled the 'clear link' standard. That should have been (far) more than sufficient time for this Queens County judge, Gregory L. Lasak, to fully acquaint himself with this precedent, and apply it to cases over which he presided. (Moreover, a strong argument could be made that the defense's motion to introduce evidence of Caban's culpability should have been granted even under the old 'clear link' standard, based on what the judge knew at the time: Negron resembled Caban, they lived in the same building, and Caban was arrested for a cache of weapons. In any event, with Negron's December 2008 motion to vacate, Judge Lasak was made aware that Caban's attempt to discard the weapons on the roof of a neighboring building coincided with the police coming to search Negron's apartment, which constituted strong evidence of Caban's consciousness of his own guilt. And yet, Lasak denies the motion anyway -- without even conducting a hearing. That is the hallmark of a pro-prosecution judge.)]

"Here...Caban did bear a general resemblance to the description of the perpetrator, lived in the same building and was arrested in close proximity to the time of the offense for possessing weapons and ammunition (including the type of ammunition used in the shooting) under cirumstances evincing a consciousness of guilt."

"In July 2005, a hearing was held in Queens...on a motion to suppress Fevrier's identification. Ultimately, the judge barred the evidence of the lineup based on the impropriety of Fevrier's meeting with the detectives and the prosecutor after he initially was unable to make a positive identification. The judge also ruled that the fillers in the lineup looked nothing like Negron. However, a different judge ruled that Fevrier could nevertheless testify based on his opportunity to see the gunman at the time of the shooting.

"Negron went to trial in March 2006. The defense objected when the prosecutor, O'Connor, brought Fevrier into the courtroom during a recess so that he could view Negron sitting at the defense table. However, the judge did nothing, saying that he believed it was unintentional."*

[* This was Judge Lasak. This action by the prosecutor looks like a calculated attempt to 'familiarize' Fevrier with Negron before actually testifying.]

Negron, Julio; attempted murder; NRE: mistaken witness identification, inadequate legal defense, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, prosecutor lied in court

Suggestibility issues

"Before trial, the [prosecutor] disclosed that another man, Fernando Caban, who lived in the same building as [Negron], had been arrested for possession of a cache of weapons and other contraband. Defense counsel moved to introduce evidence that Caban was the shooter on the basis that Caban looked like [Negron], lived in the same apartment building as [him], and had been arrested after the shooting for possession of a cache of weapons and other contraband. The trial court denied [Negron's] motion."*

[* This judge's name was Gregory L. Lasak. ]

22 N.Y.S.3d 262; Court of Appeals 11/23/15; reversed, due to ineffective assistance of counsel, Brady violations and evidentiary error

"[T]he identification evidence was hardly overwhelming. The episode occurred at about 4:00 A.M.on February 6, 2005 after an apparent 'road rage' incident.

"No evidence was found that linked [Negron] to the shooting."

"[When the defense moved to introduce evidence that Caban was the shooter], the [prosecutor -- Patrick O'Connor ] objected, disputing that there was any close resemblance between the two other than a shared ethnicity, and maintaining that it was irrelevant that Caban had been arrested the next day for possession of weapons which had not been used to commit this offense and which had been found on the roof of an adjacent building. The court rejected [Negron's] application, stating '[t]he case law is clear. You have to show a clear link between this person and the crime in question. You haven't shown that.' No party objected to the court's use of the 'clear link' standard."

"[Negron] received a response to a...Freedom of Information Act request which included an affirmation in opposition to Caban's motion to dismiss his indictment, from the same [ADA] who had prosecuted [Negron's] case. The document provided additional information about the circumstances of Caban's arrest, including that Caban's attempt to discard the weapons on the roof of a neighboring building had coincided with the arrival of the police to execute the search warrant on [Negron's] apartment and tht Caban had been in possession of .45-caliber ammunition. [FN2: This information was also submitted to [County] Court in one of [Negron's] renewal motions that the court failed to decide.]"

"[Negron], now represented by counsel, made the motion...to vacate his conviction in April 2012. He argued that the [prosecution] had violated their Brady obligations by failing to disclose the information about the circumstances of Caban's arrest and his possession of the .45-caliber ammunition, while actively misleading the court as to the potential merit of [Negron's] third-party culpability defense. [Negron] also argued that his trial counsel had been ineffective for failing to investigate and introduce evidence that [Negron] did not match the description of the shooter. In particular, [Negron] asserted that counsel was ineffective in failing to object to the court's use of the previously overruled 'clear link' standard in rejecting his third-party culpability defense.

Quezada, Ruddy; murder; NRE: perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, prosecutor lied in court

[Kings Cty. 2007; motion to vacate denied:]

"Eight years after [Quezada's] conviction the Kings county [DA's] Office received a short, unsworn affidavit from Salcedo, who had since been deported to the Dominican Republic, in which he stated that [Quezada] had not been present at the scene of the shooting, and that Salcedo had been pressured into accusing [Quezada]. A second unsworn, but more detailed, affidavit followed a few months later in which Salcedo explained the motive behind framing [Quezada] to be a personal conflict between Reyes and [Quezada] over Reyes' treatment of [Quezada's] female cousin...and...an effort to relieve pressure from [Quezada] who was accusing both Salcedo and Reyes of being 'snitches' in the drug world they inhabited.

"In the second affidavit Salcedo described how after Reyes' murder he had fled to Florida, and upon his return nineteen months later was confronted by the detective who had initially taken his statement. Salcedo stated that Detective Boda 'arrested' him and his wife and held them 'incommunicado' for two days in an airport hotel, threatening him with imprisonment if he did not confirm [Quezada's] participation as the shooter in the drive-by killing.

"[A] convicted drug gang killer, Freddy Caraballo...told federal authorities...that he had committed the murder of Jose Rosado..."

"Salcedo's recantation...was neither credible nor reliable. Pressure was exerted upon Salcedo by [Quezada's] family throughout the course of [Quezada's] prosecution and incarceration."*

[* Says who? The prosecutor? There's no evidence of this anywhere in the record.]

"Caraballo was untrustworthy, with a motive to lie."*

[* Yeah? And what was that? Again, no evidence of this in the record.]

[The author of this decision denying vacatur was Judge Abraham G. Gerges. ]

[2nd Cir. 2010; motion to allow second federal writ granted:*]

[* This is permitted extremely rarely, and is thus a clear indication of this judge's opinion of the strength of Quezada's case.]

]

"Quezada...insisted that he had been inside a nearby building, in the presence of others, when Rosado was shot outside the building. The defense presented three witnesses who confirmed Quezada's version."

Deskovic, Jeffrey; murder, sexual assault; NRE: false confession, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, misconduct in interrogation of exoneree; "OVERWHELMING"

"On January 25, 1990...Detective McIntyre drove [Deskovic]...to be tested by Putnam County Sheriff's Office Senior Investigator Daniel Stephens (not a State Police polygrapher)...Moreover, the extent of his expertise, if indeed he was qualified, was never established since the trial court barred cross-examination of Stephens as to his qualifications, his procedures and his experience. The locale for the testing was a tiny room in a real estate/law office. Stephens, in deceptive civilian dress, gave [Deskovic] a 'polygraph examination' by interrogation... Stephens hid his police status from [Deskovic], [and] gave no Miranda warnings..."

"The prosecution used the polygraph test to establish [Deskovic's] guilt. Testimony concerning [his] responses was admitted into evidence over his objection. The trial court [Nicholas Colabella] denied [Deskovic's] motion to preclude the polygraph testimony. The testimony was admitted on the grounds that it proved the 'voluntariness' of a subsequent confession...Testimony concerning the test results, however, and all cross-examination concerning the qualifications of the tester, the procedures employed, and the manner in which he conducted the interview were denied by the court...This permitted the jury to hear and believe that a 'legitimate' lie detector test had been administered to [Deskovic] and that he had failed it."

[This is one of the most extreme examples of a pro-prosecution judge we have ever come across (like the Nickel case's Judge Paul Czajka. ). First, polygraph results are not admissible as evidence, because they are notoriously unreliable. Second, this wasn't even a 'real' polygraph -- it was an unconstitutionally coercive interrogation masquerading as a polygraph exam. And last but not least, this crooked judge -- who seemed bound and determined to ensure a conviction here no matter what -- could not have possibly actually believed that any of this garbage 'proved the "voluntariness"' of the subsequent confession.]

Oxley, Wayne, Jr.; murder; NRE: perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury, witness tampering or misconduct interrogating co-defendant, misconduct in interrogation of exoneree, perjury by official, prosecutor lied in court

Suggestibility issues

[3rd Dept. 2009; reversed, due to evidentiary error

"One witness would [have testified] that she saw a man called Chase at the scene of the crime and threatening the victim only a few hours before the murder. Less than 48 hours prior to the murder, Chase had threatened that he would kill the victim. Six months after the murder, she heard Chase admit that he committed the murder, stating that he made good on his previous threat to beat the victim's brains in with a bat. An inmate incarcerated with Chase was prepared to testify that Chase told him that he, and not [Oxley], committed the murder. Another inmate who overheard the conversation was also willing to testify. A woman who was apparently living with Chase would testify that a few nights prior to the murder she went to the victim's house to get away from Chase. When Chase appeared at the victim's house, the victim refused to let Chase in and threatened Chase with a baseball bat, prompting Chase's response that the victim would be sorry he got involved and that he was going to get hurt. This occurrence was corroborated by an independent witness, a local cab driver, who testified that he picked up a man fitting Chase's description at the home where Chase was apparently living, drove him to the victim's house and waited outside, where the cab driver heard yelling between his fare and an occupant of the house. The fare yelled that the victim needed to pay the money he owed or he was going to 'get beat.'"

[That 'Judge' Jerome J. Richards actually excluded all of this powerfully exculpatory evidence is astonishing. One can only guess that he was a lot like Judge Paul Czajka, a former prosecutor who simply was not going to let the facts get in the way of a conviction. It is also highly suspicious that the police apparently failed to follow the many leads pointing to Chase's guilt.]

from Records and Briefs:

[ Judge Richards closed the courtroom -- had it cleared of spectators and media -- for an entire morning. Also, 8 days after it rested, prosecution was permitted to re-open its case -- in the middle of the defense case, apparently so that it could present more inculpatory evidence.]

[At a post-trial hearing, Oxley's defense counsel testified:] "'Every time I looked at [Judge Jerome J. Richards] while I was [questioning] Mr. Oxley, [Richards] had a look on his face, like [he] was not believing anything the man was saying. . .[S]everal other people in the courtroom commented on that.'"

"[T]he bias of the Court [Richards] in favor of the prosecution was clearly evident early on. This display of such bias was not the first time the Court clearly evidenced bias against [Oxley]. During discovery proceedings counsel's complaint that the [prosecution] had not fulfilled one of its discovery requirements was met sua sponte with the Court unfoundedly accusing counsel of trying to set up a false contradiction of the [prosecution's] expert for cross-examination purposes."

"Alas, there was more of this type of behavior on the Court's part. Counsel was trying to elicit testimony concerning the bat and Shannon's connection with it on the eve of the murder. There was a break in the proceedings. The Court excused the jury. There was legal argument. Counsel motioned for a recess. The following ensued outside the presence of the jury as Oxley was walked to a holding cell on his way to the bathroom:

'The witness: I don't know what the sense of me testifying is.

The Court: Mr. Manning, hold it up. Mr. Oxley.

Mr. Manning: Yes, your honor.

The Court: Just a second. Bring him back in here, Deputy Duquette. . . .

The Court: There are rules. You don't --

The witness: The rules -- I'm trying to defend myself. You will not let [115] me defend myself.

The Court: You want to testify, you are going to have to behave the way you are expected to behave. I'm not going to put up with you making a scene in this courtroom.

Mr. Manning: Be quiet, Wayne, please.

The Court: There is nothing for you to say. If you don't do what you are supposed to do, I have the right to prevent you from taking the stand. And you want that to happen you keep on going on the path that you are on. Mr. Manning is here. He is doing the job he is supposed to do. You don't understand the rules. You are not expected to understand the rules. He doesn't have to like the rules. But he respects the Court. So you take your lead after him. When I make a ruling, you don't like it, you don't say anything. Understood? Understood? [Emphasis original.]

The defendant: Not really, no. I don't understand. You just told me I don't understand.

Mr. Manning: Judge, could I talk to him for a couple of minutes?

The Court: He is warned, Mr. Manning.

Mr. Manning: Could I talk to him?

The Court: You can, but he is warned.'"

"Criminal contempt in the immediate view and presence of the Court only attends an actual disruption of the Court's proceedings, a clear and present danger of disruption, or an undermining of the Court's authority and ability to conduct its proceeding...No such conduct occurred here. Oxley passed an opinion as he was being led to a holding cell with no one but the lawyers and a court officer or two present in the courtroom. However unwelcome to Judge Richards' ears, Oxley was privileged to express an opinion. It is called free speech. He obstructed nothing, threatened to obstruct nothing and undermine[d] nothing. He was not on the witness stand...No jury was present...[T]his was witness tampering and intimidation. Exactly what or whose 'rule' did Oxley break? In custody, almost in a cell, Oxley disrupted nothing. Instead of calming him down and pointing out his best interest, Judge Richards called him back into the courtroom to beat him around the ears...[A] trial judge is not supposed to vent his personal spleen by confusing disagreeable comment with offense to law and further conflate both with obtruction to the trial process. Men who make their way to the bench are afflicted with all the weaknesses to which human flesh is heir. But they are supposed to be temperate and not act like an activist seeking combat...Testifying for one's life is an experience that only the wretch in the dock can appreciate. If Oxley had one transcendent right, it was...the right to take the stand with a reasonably clear head...[O]ur system of justice needs judges capable of controlling the litigants and then capable of controlling themselves.

"At the end of his testimony, counsel asked Oxley a question about Jennifer Ritchie's information regarding Shannon. The record shows an objection followed by Oxley's 'Yes.' Instead of merely striking the question and answer as he did throughout the trial with other witnesses, Judge Richards sent the jury out. Evidently not forgetting Oxley's first 'transgression,' the Court said, 'you are going to tell me now he didn't hear that objection.' Retorted counsel, 'No, I am not going to say anything. He is not the only one who answers questions after objections' . . .Judge Richards said, 'You tell him this is his last warning.'...The fixation on Oxley was misplaced. Occasionally counsel himself did not hear an objection...But [he] suffered no indignity. Judge Richards made miscues, as did the [DA]...The Record clearly shows that [Oxley] behaved himself not only during his testimony, but also throughout the entire trial."

"Judge Richards told counsel that 'I caught him staring down Mr. Webb when we were on the break the other day when Mr. Webb was sitting on the stand.'...Counsel calmly replied that 'he is blind in his left eye and he's got a lazy eye. He's had two operations on one eye. . .' 'I think it's very unfair that he is being -- he has a disability with his eyes.'...Judge Richards' justification was that he wanted to make sure the courtroom was safe. 'I believe I'm entitled to that.'...Staring is in the eyes of the beholder. Where is a defendant supposed to look at his own trial?'

"Earlier, Judge Richards said that he had 'received a couple of reports concerned about [Oxley's] behavior.' Counsel asked, 'reports about -- from whom?, about what?' The judge said, 'just the way he is reacting to the testimony. And he did stare down on Miss [DA Nichole M.] Duve. So, all I'm asking is that he have access to one pen and that's it. I don't want any other pens on the table.'* ...Later, defense counsel expressed concern that Haggart ([prosecution] witness) was looking at the prosecutor for answers while being cross-examined. The Court dismissed him with 'he can look wherever he wants.'...The Court also vouched for the prosecutor that she was not signaling O'Marah on cross-examination...after which it insulted counsel saying, 'you are performing for the jury. It's not going to happen.'...These curious outbursts were not isolated. During its secret session, Judge Richards unfoundedly threatened counsel."

[* What in the world do pens have to do with alleged staring? This has crossed over from biased to bizarre.]

["The Court abused its discretion in permitting the People to reopen their case."

"On November 2nd Oxley was about to testify when Chief [ADA] Lesyk ...interrupted. He had information [that] 'just literally, happened this moment.'...Lesyk never explained why he was seeking a letter whose contents he had never seen, but the existence of which had been disclosed to him by Meacham 10 days before he made the application to the Court. Indeed, Lesyk did not know what was in any of the letters that Amy Jo Meacham had given to her lawyer, but he and Atty. Collins 'spoke in tandem to Amy Jo and requested that. . .if you can give us anything that is in writing, that would reduce the need to call you as a witness in rebuttal...'...The [prosecution] originally declined to call Meacham. Realizing that their case was [120] reduced to a twig, they decided to grasp at a straw. Lesyk wanted to reopen the [prosecution's] case to have 'someone saying that they heard Mr. Oxley confess to this crime.'...The [prosecution], alas, combined with Judge Richards to get more evidence to throw at Oxley...[T]he record contains no credible justification for the [DA] not to have brought Haggart and Meacham forth on her first direct case, nor does it evince any excuse for Judge Richards, who was supposed to preside impartially...This was not a request to reopen based on existing newly-discovered evidence. It was the enlistment of a judge to act as a co-prosecutor and grand jury and judge in quest for additional evidence against Oxley."

"Judge Richards directed everything. He ordered Lesyk to telephone Ducharme [Meacham's lawyer] and 'go prepare a subpoena. . .duces tecum.' He then ejected the press and the public from the courtroom...The subpoena whose issuance Judge Richards directed was tantamount to an illegal grand jury subpoena issued for the sole purpose of bolstering the proof supporting an indictment filed a year earlier. It was also tantamount [123] to an illegal trial subpoena because it was not seeking existing evidence...It sought to ascertain if a witness with evidence existed and whether he would reveal it, and, 'whether or not it's something that they believe is useful.'...[This was a] 'fishing expedition.'...The [prosecution's] license to fish ended with the grand jury's indictment."

"Judge Richards acted as a 'one-man grand jury.' He used his power to ferret out 'additional evidence' against Oxley. He violated a prisoner's attorney-client privilege. He summoned attorneys to the courtroom. After he read the letter aloud, he ordered Attorney Ducharme to obtain a waiver of the privilege. He launched a bizarre attack on counsel, saying he had to 'lower his attitude.'...He put a sentenced inmate on the stand without a lawyer and told her she had no Fifth Amendment privilege...A transcript cannot adequately capture something on the order of a secret 'show-trial' where defense lawyers are treated like obstructionist nuisances."

"The [prosecution]...permitted Robert Webb a/k/a Chase to testify falsely."

"Chase testified that he was not selling drugs...[T]hat testimony was false and the [prosecution] knew it... Chase had [already] been arrested [and] charged...for selling cocaine [and subsequently] pled guilty to selling cocaine...[T]he [DA] said nothing when Chase lied about selling/trafficking drugs, and even made sustained objections* to defense counsel's questions about what Chase was charged with."

[* Thus, Judge Richards would not allow Oxley's defense counsel to ask what the prosecution's last-minute, star witness had been charged with -- likely because it would have revealed him to be a pathological liar.] "Wrongful judicial interference with defense counsel cross-examination of Investigator Finley."

"Investigator [Mark] Finley, on cross-examination, said that Oxley yelled out a number of times, but he did not remember what [it] was he yelled... Sua sponte, as in many such instances throughout the trial...the Hon. Jerome J. Richards interrupted. Since Oxley 'was not in custody, you don't get to have the jury decide whether his statements were voluntary,' ruled Judge Richards...Nor, 'was he in custody when he went to the police station.'...The Judge had not yet read People v. Cefaro, 23 N.Y.2d 284 (1968)... Provided with a copy overnight he reversed himself...The Court gave no curative instruction...Recalled after the passing of a full week's time, Finley admitted discussing 'Oxley yelling out of the window' with fellow police investigators who had been involved in the investigation and who had already testified or were on the witness list...He testified that someone pulled up outside and Oxley yelled a few times...but not to anyone directly...When he was looking at Oxley...he heard Oxley's words, but did not know what he said. He couldn't recall Oxley saying 'I need a lawyer in here.'...He was there 'to observe and take notes,' but he wrote down nothing Oxley said 'because I didn't hear what he said'...although he was 'definitely' yelling it. Finley was not interested in what this murder suspect was yelling...Oxley was 'saying a lot of things.' Some Finley determined to be 'pertinent,' a lot was 'not pertinent.'...Finley did not know the words Oxley yelled because he never heard them, at least not that he recalled."

"Finley's testimony was patently absurd, conspicuously unbelievable, and...patently tailored to avoid constitutional objection...Whatever the spontaneity of cross-examination might have revealed was forever lost due to court interference. A reading of Finley's testimony shows him prepared, and perhaps, confident, that he could testify as he did and get away with it."

"[T]he cross-examination of Jamin Haggart -- the [DA's] star, 13th-hour witness who provided 'additional evidence' -- was unreasonably curtailed."

"Cross-examination of Haggart was interrupted by empty 'objections' sustained, or, objections sustained with a summons to the bench for counsel to justify his questions only to have the judge fill in the blanks for the [DA]."

"Using Haggart's words...counsel sought to show a prurient nexus between him and Meacham rivaling Oxley's intentions, as in, 'a motive to lie.' Questioning was stopped as 'irrelevant.'...The inquiry pertained to bias. Its wrongful preclusion is a ground for reversal long recognized by this Court [the 3rd Dept.]...Siring one woman's child but writing a love letter to another reflects on credibility. Questions as to whether he wrote that 'the niggers killed the one in the fire after Wayne was already in jail' and was 'the same nigger Michelle Disotell was sucking dick for crack' were precluded...[A] potty mouth reflects a toilet brain which, in turn, informs credibility."

"Counsel's offer to respectfully explain his differences with the Court were met with the Court saying, 'Mr. Gray, I don't want to hear anything. . .Mr. Gray, I don't want to hear it.'"

"Preemptively invading the province of the jury, the judge was breathtakingly in error. Morality informs credibility... Haggart's depravity and viciousness, if spread before the jury, would have painted him as he is, thus allowing the jury to take what he swore to from whence it came."

"Having listened to Oxley's alleged admissions two or three weeks prior to his June 6 sentencing, Haggart at that sentencing had a prosecutor and a defense counsel within earshot. They were in a position to evaluate what he might say about Oxley at a time when his saying it could have reduced or negated his 5-year prison sentence...Inquiry was precluded...A thief with violent propensities and a sexually manipulative interest in women is not adverse to buying off prison time by falsely selling another person into prison... Judge Richards was the sentencing judge...These were facts from which a jury could infer that Haggart's 'story' was a recent fabrication. A scoundrel does not stand mute at a time when the advantage is to open his mouth. Identifying the judge and the prosecutor was not 'nonsense' any more than Judge Richards' rulings that, 'no, this is cross-examination, you don't need to lay a foundation'...and his advice that jurors were 'starting to get pissed off'...were appropriate."

"The record is replete with Judge Richards initiating acrimonious exchanges with both defense lawyers and interrupting cross-examination for his own legally-incorrect reasons, with no acknowledgement of error or remediation in front of a jury that must have become perplexed."

"When later called by the defense, Judge Richards denied their application to examine [Acting DA] [Gary] Miles as a hostile witness. The defense had argued that he was hostile per se because of his actions on the day of Oxley's arrest, his selective selection of evidence to be tested and [192] the rush to indict Oxley with a view towards electing himself as a [DA] several days after the grand jury presentment."

"On Monday, November 6, 2006, ten days before the verdict, Judge Richards received a 4-page letter from a prisoner named Jon Sawyer. On Wednesday, November 8, 2006, without showing the letter to either Attorney Manning or Attorney Gray,* he sent it back to Sawyer... The letter essentially told Judge Richards that there was a witness to the Trickey murder, inferring that Oxley was not there, and that two witnesses at Oxley's trial had lied under oath."

[* However, a copy was sent to the DA's office.]

[from NRE synopsis:]:

"In October 2010, Oxley went on trial a second time."

"Disotell was barred from testifying that she heard Webb say that Trickey was ripping him off and that he was going to kill him, because she could not provide a date for the conversation."

Ranta, David; murder; NRE: mistaken witness identification, false confession, perjury/false accusation, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant; "OVERWHELMING"

Suggestibility issues

"Shortly after the crime, police got an anonymous call that a man named Joseph Astin was the killer. Astin died in a car crash two months after the shooting. Astin was fleeing officers pursuing him in connection with the shooting."

"His initial appeal was denied, but in 1996, Astin's wife signed a sworn affidavit saying that her husband, before he was killed in a car crash, had admitted that he killed Werzberger. She said that Astin left their home at 4 a.m. on the day of the crime and returned later in tears, saying he had robbed someone carrying jewelry and that someone had been hurt.

"Despite this affidavit, Ranta's motion for a new trial was denied. The judge [Francis X. Egitto] said that Astin's wife's credibility was damaged because she was facing a drug charge* at the time she made the claim."

[* Recall that " Allan Bloom, a convicted robber and drug addict, who was in jail facing charges that could send him to prison for life," was nevertheless deemed sufficiently 'credible' to base this entire investigation on. Moreover, whereas Bloom stood to benefit immensely from testifying as he did, Astin's wife had absolutely nothing to gain by coming forward.]

Rodriguez, Felipe; murder; NRE: mistaken witness identification, perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury, witness tampering or misconduct interrogating co-defendant, perjury by official

"On the tape, Pereira was heard confronting Ramos about why he falsely told police that Pereira had borrowed Ramos's car the night before Thanksgiving. At Rodriguez's trial, he testified that he had named Pereira because he was covering for Rodriguez, and Pereira's was the first name that came to mind since he was 'the only other person' to whom he had loaned his car. On the tape, however, Ramos told Pereira something different. Ramos said his false accusation was in direct response to the police's claim that Pereira had falsely accused Ramos of the crime first. Ramos was heard saying, 'I'm under the impression you pointed the finger at me.' Ramos said he sought to protect himself by pointing the finger back at Pereira, whom he thought was his accuser. Additionally, Ramos assured Pereira that not only did he know nothing about the crime, but that he had not loaned his car to anyone that night and lied to the police when he said he had. In fact, Ramos said, he did not even use the car to drive himself to his relatives in New Jersey on Thanksgiving Day because it was on the street with a dead battery. On the tape, Ramos was heard telling Pereira he told police 'all of this. And yet they didn't want to hear that.'"

"Safran, the trial prosecutor, contended he had turned the tape over to Maiolo at the beginning of the trial. He also maintained that the recording was 'completely uninteresting,' 'gibberish,' and 'nonbelievable.'* He said he already knew that Ramos was a liar** after Ramos falsely implicated Pereira. Safran admitted that he had not asked for the recording to be translated or transcribed. He said that since he knew a little Spanish, he had listened to it with the aid of a paralegal. He admitted he had never played the tape for Ramos or asked Ramos about its contents before Ramos testified at the trial."

[* Recall that Safran had also claimed the tape was 'largely unintelligible.' But, how can 'gibberish' be 'nonbelievable'? If it were indeed the case that what was said was 'unintelligible,' then it could be neither believable nor nonbelievable, because, one would not be able to discern what was actually said. But as we now know, that tape was crystal clear -- and immensely exculpatory.] [** If that is so, why did Safran call him as a prosecution witness?]

"On July 30, 1993, the trial judge [Burton S. Sherman] denied the motion to vacate the convictions. Although the judge indicated that the tape directly impeached Ramos and was favorable to the defense, he held that the defense had failed to show that the tape was not turned over."*

[* As a matter of logic, it's essentially impossible to 'prove a negative.' Thus, this judge was holding the defense to a standard no one could have met.]

"[A subsequent clemency] petition noted that it was 'difficult to imagine' that if Safran had given the tape to the defense, 'he would not have made sure to prepare his own chief witness for the all-but-inevitable cross-examination that any defense attorney who listened to the tape would likely raise, by sitting down with Ramos to review the tape in detail and asking him to explain the contradictions, and obtaining a full transcription and translation of the tape, so he himself could at least be prepared to anticipate any questions the tape might raise in the jurors' minds.'"

Rojas, Kevin Luis; murder; NRE: mistaken witness identification, inadequate legal defense, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, perjury by official

Suggestibility issues

"Officers Visconti and Bishop...proceeded to that location with Mr. Fontanez in order to see if he could identify anyone...As Mr. Fontanez walked back toward the beginning of the platform, he identified [Rojas], who at the time was being frisked by Port Authority Police officers. Although Officr Visconti testified that none of the detained persons had been handcuffed when Mr. Fontanez identified [Rojas], Mr. Fontanez later testified at trial that [Rojas] had already been handcuffed when he first saw him, which testimony is consistent with his Grand Jury testimony.

"Shortly after his arrest, Officers Pecorale and Martin placed [Rojas] in their patrol car and drove him back to the scene of the shootings, allegedly because they needed instructions from their supervisor, although it was never made clear why the instructions could not have been obtained over the radio. The officers further maintained, incorrectly, that they did not anticipate coming across any witnesses at the crime scene.* A short while later, Officers Bishop and Visconti also transported Mr. Fontanez back to the crime scene."

[* That's ridiculous. Two people have just been shot. Of course witnesses are going to stick around and talk about what just happened.]

"All but three of the youths who were shot at (two of whom were in the hospital), including the two passing in a car, testified at trial that they were at the crime scene when [Rojas] arrived, handcuffed, in the back of the patrol car. [Rojas] testified at the [motion to vacate] hearing that Mr. Fontanez, in front of other witnesses, pointed at him through the cruiser's window, saying that he was the one because '[h]e has the colors on.' At some point, Mr. Oquendo began punching the car and was restrained by the officers present at the scene."

[At a subsequent line-up procedure:] "The police cadet fillers all had short hair, befitting their attendance in the police academy, whereas [Rojas] and Cajas had 'medium' or 'normal' length hair which came over the top of their ears. [Rojas] also correctly points out that while the cadets were neat, fresh and clean-shaven with crew cuts, as they were on the way to the Academy, the suspects had been up all night before the 10:20 AM lineup, so the cadets were easily identified.

"[Rojas] notes, rather strikingly, that every witness that identified [Rojas] at the line-up had seen him in police custody before the line-up, and the two witnesses who identified Cajas had seen him in police custody before the line-up, whereas Mr. Carrasquillo, the only witness who had not seen a suspect before the line-up, did not identify anyone."

"On August 26, 1991, Justice Paul Bookson denied defendants' motion to suppress, fully crediting the [prosecution's] witnesses. Justice Bookson found that: Mr. Fontanez' PATH station identification was spontaneous and not police-arranged;* that [Rojas] was free from restraint at the time of the show-ups;** that once Mr. Fontanez identified [Rojas], probable cause to arrest existed; that the crime-scene viewings were inadvertent and not orchestrated; and that [Rojas'] suggestiveness challenge to the carousel line-up procedure should be rejected."

[* That's (conveniently) credulous: There was no legitimate reason for the police to publicly parade Rojas by all of these witnesses.]

[** That's preposterous: Most of the witnesses saw Rojas handcuffed, and or in a police car at the time of the show-ups.]

[from 1st Dept. decision reversing Rojas' conviction:] "Under the foregoing circumstances, the on-scene show-up and line-up identifications should have been suppressed..."

Rosario, Richard; murder; NRE: mistaken witness identification, inadequate legal defense, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant; "OVERWHELMING"

Suggestibility issues

"Rosario appealed repeatedly in both state and federal court. None of the appeals succeeded, even though Rosario presented seven more alibi witnesses who testified that he was in Florida at the time Collazzo was murdered. Three of the new witnesses passed polygraph examinations (as did Rosario himself).

"[T]he police and prosecution had withheld evidence helpful to the defense.

"The concealed evidence showed that in his initial recorded statement, Sanchez said that he did not see the gunman -- a statement that cast doubt on his identification of Rosario at trial.

"The police also failed to document and disclose statements from two other witnesses that the gunman addressed Collazzo by name and that the getaway car had no license plates -- suggesting that the gunman knew and specifically targeted Collazzo. There was no evidence that Rosario and Collazzo had ever met before the shooting.

"The withheld evidence also showed that before Rosario's trial, the prosecution bolstered Sanchez's confidence in his identification of Rosario by falsely telling him that Diaz had initially identified Rosario in his first statement. In fact, Diaz failed to identify Rosario in a lineup held after Rosario turned himself in to police -- another fact the prosecution did not disclose.

"Rosario's trial attorney admitted that he failed to contact more than a dozen people in Florida whom Rosario said would testify that they saw him in Florida on the day of the crime. The lawyer, who took over from another defense lawyer before trial, said he mistakenly believed that the trial judge had previously denied a request for funds to send an investigator to Florida to interview the witnesses.

"In March 2015, despite the new evidence, Bronx...Judge Robert Sackett refused to grant Rosario a new trial."

Angeles-Acosta, Roberto; attempted murder; NRE: mistaken witness identification

"The only physical evidence connecting [Angeles] to the crimes consisted of a pawnshop ticket found in [his] pocket at the time of his arrest on an unrelated matter and chains -- allegedly from the robbery and belonging to Mr. Vargas -- found at the pawnshop among other jewelry in [Angeles'] name. No one identified [him] as the person who made the subsequent telephone threat or as one of the shooters...None of the ballistics evidence...linked [him] to the shooting The court [Arthur J. Cooperman], nonetheless, denied defense counsel's motion to dismiss the attempted murder, weapon possession, and witness tampering charges against [him] on the ground of legal insufficiency."

"At trial, Mr. Vargas and two detectives testified that the detectives twice took Mr. Vargas to the pawnshop, when he identified the chains as his. Mr. Vargas conceded, however, that the chains were generic in appearance, and had no distinguising characteristics that enabled him to identify them. Nonetheless, the court precluded defense counsel from cross-examining Mr. Vargas and the two detectives concerning the circumstances under which he identified the generic-looking chains."

Ayers, Devon AND Cosme, Michael AND Glisson, Eric AND Perez, Carlos AND Vasquez, Israel (not on NRE list) AND Watkins, Cathy; murder; 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

"During his summation, the prosecutor [Daniel T. McCarthy] characterized the defense as 'consist[ing] of a set of papes that I suggest would fit in a first-class envelope if they mailed it.'...In response to objections, the Court [William H. Donnino] admonished the jury that the prosecution has the burden of proof and that the defendant is not obligated to produce any evidence...However, the Court did not prohibit or deter the prosecution from repeatedly making this improper burden-shifting argument in other ways."

[Prosecutor]: What does it take to confront your neighbors to come into this courtroom when you know they killed not once, but twice.

[Defense counsel]: Objection.This is unfair argument. I ask you to reprimand him for saying this in front of the jury."

[The Court]: Overruled. "The prosecutor went on:

'Oh, the whole neighborhood knew about this. These murders were a common topic of conversation there in the park, everybody knew it. Everybody knew what was going on. Sure, we had people lining up, begging to get in the witness stand and testify. I thought I was going to have to go down the block and borrow a machine from the bakery to give everybody a ticket because so many people were so eager to come into the courtroom and testify.'

"The defense objection to this speech, for which there was no support in the record, was overruled..."

[Prosecutor:] You decide. Her lack of memory seems to have come after a phone call from Carlos Perez saying snitches die.

[2nd Defense counsel:] Objection.

[Defense counsel:] Objection, Your Honor. I move for a withdrawal of the jury and a mistrial.

[The Court:] Overruled.

[This is reminiscent of, in the Nickel case, of when Judge Paul Czajka initially sustained defense counsel's objections to prosecutor Peter Torncello's use of the terms 'boy-lover' and 'NAMBLA,' only to, later on, repeatedly overrule (or simply ignore) them.]

"The trial court abused its discretion and deprived [Ayers] of a fair trial when, over repeated objections, it failed to stop pervasive and persistent prosecutorial misconduct during summation."

Sterling, Frank; murder; NRE: false confession, police misconduct, misconduct that is not withholding evidence

Suggestibility issues

"Sterling repudiated his confession shortly after making it, but his recantation was not believed. With his incriminating admission serving as the primary evidence of his guilt, Sterling was convicted of murder following trial in September 1992. Just days later, several townspeople alerted the police that nineteen-year-old Mark Christie was bragging that he had 'just gotten away with murder.' Christie was among the individuals questioned by the police during the 1988 investigation of the killing. Then sixteen, Christie maintained that he had gone to school at mid-morning on the day of the murder. Although school records indicated that he did not attend class until 1:20 that afternoon, investigators did not pursue him as a suspect. Police interrogated Christie again in December 1992, following his reported boastings about the murder. He claimed that he had only been 'kidding around' when he made those statements. The results of an initial polygraph exam, in which he denied the killing, were deemed 'incomplete' owing to Christie's erratic breating and excessive movement. He passed a second exam, administered the next day. The judge in Frank Sterling's murder trial [Donald J. Wisner] concluded that Christie's purported admissions were not believable, and imposed a sentence of twenty-five years to life on Sterling on December 23, 1992.

"His appeals were unsuccessful, despite presenting evidence that Christie had bragged about committing the murder, providing tips to investigators about how Christie frequented the same path where the murder occurred and loved to shoot a BB gun -- the murder weapon -- and highlighting the fact that Christie was convicted of a different murder several years later. Finally, in 2004, the trial court [Frank P. Geraci] permitted testing on a hair that was found in the victim's hand, but denied testing on the 'victim's clothing, vaginal swabs, fingernail scrapings, and/or pieces of the bloodstained BB gun,' on the ground that Sterling had not established a 'reasonable nexus between the testable items, the particular facts and circumstances surrounding his conviction and how DNA testing of such items would have produced a more favorable result at trial.'"

Su, Shih Wei; attempted murder; NRE: perjury/false accusation, prosecutor misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury, prosecutor lied in court

Suggestibility issues

"[Jeffrey] Tom was the most damaging witness, claiming that he knew Su and heard him give an order to shoot. Although Tom had his own robbery-by-extortion case, he denied, under questioning by the prosecutor, that the lenient plea bargain he had received (a youthful offender adjudication and sentence of probation) had resulted from any deal with the [DA's] Office. The prosecut[or] in her summation argued that Tom's testimony was truthful. "In 1999, over the [DA's] objection, a judge finally ordered Tom's plea and sentencing minutes unsealed, reasoning that the [DA] 'has no legitimate interest in shielding possible perjury.' The minutes proved that a prosecutor had made an explicit, on-the-record deal with Tom to grant him leniency in exchange for his trial testimony against Su. Tom's flat denials, elicited by a different prosecutor at Su's trial, [560] had been false. But the New York courts still would not grant Su any relief, accepting the [DA's] additional procedural argument that Su's Brady violation should not be considered on the merits."

"In June, 2001, Su filed a petition for a writ of habeas corpus. The U.S. District Court [Allyne Ross] denied the petition, finding that the evidence of the deal had been hidden, but that Su was not prejudiced by its suppression.

"In July 2003, the...Second Circuit granted Su's petition...because evidence of the deal had been withheld from Su's defense lawyer and because prosecutors knowingly allowed Tom to lie about the deal."

Warney, Douglas; murder; NRE: false confession, false/misleading forensic evidence, police officer misconduct, misconduct that is not withholding evidence, misconduct in interrogation of exoneree

Suggestibility issues

"Once more sophisticated DNA testing became available, Warney, in 2004, petitioned the court for access to post-conviction DNA testing. The [DA's] Office opposed the testing, stating 'DNA results now would add nothing to what we already know or what the jury knew at the time of the trial,'* and the court [Harold L. Galloway] denied Warney's motion and rejected claims that someone else could have committed the crimes as 'too speculative.'"**

[* The first part of this statement is false, and the second is meaningless. This was all just bluster to try to protect a (wrongful) conviction.]

[** This, too, is some combination of false and meaningless: How is it ever 'too speculative' to demand that all possible forensic tests be performed in order to establish the true perpetrator of a given crime? The court above was apparently just as anxious to protect this wrongful conviction as the prosecutor.]

Andre, Edgard (Eddie); murder; NRE: perjury/false accusation, prosecutor misconduct, misconduct that is not withholding evidence

Suggestibility issues

[The judge who presided over this case was Eugene J. Berkowitz. ]

"The evidence against [Andre] at this trial consisted essentially of one witness who claimed she saw [Andre] shoot the victim after an argument. A second witness who had identified [Andre] at the first trial, which ended in a mistrial because of a hung jury, insisted at the retrial that he did not hear the argument or witness the shooting.The court then, over objection, permitted the [prosecution] to impeach the credibility of the second witness by asking him in detail about his trial testimony, in which he implicated [Andre] as the shooter. During this questioning, the defense counsel repeatedly objected unsuccessfully to the prosecutor reading whole sections of the witness's prior testimony into the record without first establishing that the witness was contradicting particular answers he had previously given."

"In the [present] case, the witness's testimony did not 'affirmatively damage' the [prosecution's] case; he never specifically denied that [Andre] was involved in the shooting or claimed that [Andre] was not present during the incident. Rather, he merely testified that he did not witness the shooting or argument. Accordingly, the court should not have permitted the [prosecutor] to impeach this witness by his prior trial testimony..."

"This error was exacerbated by other trial errors. For example, the court erroneously permitted the [prosecution], over objection, to introduce evidence that the eyewitness who identified [Andre] at this retrial had previously identified [him] from a photographic array..."

"In addition, another witness testified, over objection, that on several occasions between 1970 and 1973 he accompanied the victim to [Andre's] home. Because this evidence was so remote, it was irrelevant to the issues in the [present] case and should not have been admitted...Subsequently, just prior to the close of the [prosecution's] case, the court struck the testimony of that witness after the defense counsel demonstrated through Department of Corrections records that he could not have seen [Andre] at the time he claimed. However, the court later confused matters by noting during the jury charge that that witness was one of the witnesses called by the [prosecution], and then refusing to remind jurors that his testimony had been stricken and that they were to disregard it."

"[Andre] was charged...in connection with the shooting death of Steven Shields. A first trial, at which two witnesses identified [him] as the shooter but no other evidence linked [him] to the crime, ended in a hung jury.

"[His] second trial...resulted in conviction. There, only one eyewitness identified [him] as the perpetrator. The second eyewitness testified that while he was in the general vicinity, he did not see the shooting. Nonetheless, the prosecutor impeached him with his prior testimony, making clear to the jury his prior identification. In addition, another witness testified that [Andre] and the deceased had known each other. When counsel showed that this witness's testimony was impossible, the court struck the testimony but denied counsel's motion for a mistrial. It also denied counsel's motion for a [4] mistrial after it allowed, then subsequently struck, the single eyewitness's photographic identification of [Andre]."