Wayne Oxley, Jr. - Perjury / Prosecutor Misconduct

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

[883:385]; 3rd Dept. 7/30/09; reversed, due to evidentiary error

"Following a lengthy trial, [Oxley] was convicted of intentional murder in the second degree for beating the victim to death with a baseball bat.

"The evidence was legally sufficient to support the conclusion and the verdict was not against the weight of the evidence...Hours after the victim's death, the police found a baseball bat in [Oxley's] basement. The bat had the victim's hair and blood on it, as well as forensic evidence that was consistent with [Oxley's] DNA. A neighbor testified that she saw [Oxley] walking toward the victim's house on the night the victim died. Other witnesses testified that [Oxley] was suffering from personal problems and a crack cocaine addiction, and he was upset with the victim for cheating him on recent drug transactions. An inmate testified that [Oxley] made a jailhouse admission to the crime.

"County Court [Jerome J. Richards] erred in excluding evidence of third-party culpability.

"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.]

[114] [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 [116] 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 [117] 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?'

[118] "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.]

[119] "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."

[122] "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." [Emphasis original.]

[127] "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."

[131] "Trickey's [the murder victim's] head was virtually knocked off. The murder scene was helter-skelter. However, Oxley's socks, sneakers and shorts bore no trace of Trickey...Shannon, not Oxley, told Jennifer Ritchie that he was going to kill Trickey...[132] Contrary to Haggart's say-so, and the [prosecutor's] opening, there was no evidence of any attempt to clean up anything. Indeed, Haggart's testimony about Shannon running away, too scared to help Oxley clean up after he viewed the murdered Trickey, is not only directly contradictory to Shannon's testimony, but also in disagreement with the [prosecution's] theory of the case..."

[134] "A 'drunk-as-a-skunk' Oxley...would have to have been something of a drunken Houdini to stagger up the street, kill Trickey, stagger back to his house, plant the bat and the towel in his cellar, rid himself and his clothing of blood, jump into bed, feign annoyance at Howe and his girlfriend, and hours later welcome the police to search his house...No murderer invites police and prosecutor into his house when he has put the murder weapon in his basement with a blood-stained paper towel marking its partially-exposed hiding place three feet away. There was never any sign of guilt on Oxley's part. The prosecution even emphasized his cooperativeness.

[135] "The night of the murder Shannon told Oxley and Howe that he was a police informant...Oxley would have to have been a [136] raving lunatic to walk up to a man who had told him he was a police informant and tell him to get anything out of his basement, much less a murder weapon, with police up and down the block swarming in and out of his house like flies -- as he is about to take a ride downtown."

[137] "Covertly testing an object seized from the accused for the presence of inculpatory DNA evidence, while ignoring or resisting his attorney's written request to test the same object for DNA evidence which he and his attorney state would exculpate him is at war with...due process of law...Police and prosecutors will have an 'impact on the test results' when they seize the DNA's host object from a suspect-defendant who tells them the object was borrowed by another person on the night of the murder, ignore a prompt written request from counsel to test its DNA for that other person, promptly test it for the suspect's DNA, and then, only pursuant to Court order, test it for the other person's DNA seven months later -- with the results being that the defendant's DNA is well presented, but the other person's is but an inconclusive shadow of its former self."

[Outgoing DA Gary Miles; incoming DA Nichole M. Duve. Dets. Harry McCarthy, Steven Fisher, Andrew Kennedy, Mark Finley and BCI Investigator Kurt Taylor. ]

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

"'No, I don't sell drugs,' swore Chase ...Chase also testified that he was not selling drugs, was not involved in drug trafficking in Ogdensburg, that he never brought any cocaine at all to Ogdensburg, never helped anybody else bring cocaine to the [168] City of Ogdensburg, did not give drugs to anybody else to sell, didn't front drugs to anybody, was not supplying people with drugs on consignment...All that testimony was false and the [prosecution] knew it...As of the day of his testimony outside the presence of the jury (October 31, 2006) Chase had been arrested, charged (soon indicted) for selling cocaine in Ogdensburg...On February 13, 2007 Chase pled guilty to selling cocaine in Ogdensburg on March 1, 2006 and August 28, 2006...Notwithstanding Chase's arrest and incarceration on the two charges prior to his testimony in County Court, the [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.] [169] "Wrongful judicial interference with defense counsel cross-examination of Investigator Finley." [Emphasis original.]

"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 [170] 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...[171] 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."

[173] "[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]."

[175] "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."

[176] "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."

[178] "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."

[185] "[Defense witness] Jennifer Ritchie met Hector Tobarras (ph) [denotes phonetic spelling by stenographer] in Watertown and married him. Without good faith, the [DA] asked Ritchie, 'He pay you to marry him?'...This bigoted, xenophobic ethnic slur suggesting that the two gamed the immigration laws was deliberate. But it got [DA Nichole M.] Duve's message across."

[188] "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."

[191] "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."

[199] "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." [Emphasis original.]

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

from NRE synopsis (by Maurice Possley):

"On August 30, 2005, 38-year-old Bernard A. Trickey, Jr., a reputed drug dealer, was beaten to death in his home in Ogdensburg..."

"The following day, acting on a tip from John Shannon, an acquaintance of Trickey's, police went to the home of a neighbor, 39-year-old Wayne Oxley, Jr., and after a consensual search, found a baseball bat in Oxley's basement. Police claimed it was the murder weapon and Oxley was charged with murder.

"In 2006, Oxley went on trial in St. Lawrence County..."

"At a preliminary hearing before the trial, Shannon testified that on the night Trickey was killed, he saw Oxley 'with that big long stick in his hand walking toward Bernie's.'

"Shannon, who was later unmasked as a police informant, was killed in a house fire two weeks later, so his preliminary hearing testimony was read to the jury at Oxley's trial."

"Oxley testified that on the night Trickey was murdered, he was taking drugs and drinking alcohol with Shannon and another man. Oxley said Shannon kept asking for the bat and left the house and returned during the night."

[The jury found Oxley guilty on December 18, 2006. But on July 30, 2009, the Third Dept. reversed.]

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

"At this trial, a new witness, Michelle Disotell, testified that she met Robert 'Chase' Webb, Shannon and another man, Dana Chubb, in the months before Trickey was killed. She said she drove Webb to various cities...to buy crack cocaine.

"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.

"Two months later, on December 15, 2010, after seven days of deliberation, the jury reported it was deadocked, with eight jurors voting to convict and four voting to acquit.

"The judge declared a mistrial.

"In January 2012, Oxley went on trial for the third time and for the third time took the witness stand to deny he was the killer. He said he was home taking pills and drinking wine and passed out. He said he knew nothing about what happened until he saw police cars at Trickey's home the following morning.

"He said Shannon was the killer.

"The defense also presented the evidence pointing to Robert 'Chase' Webb, who was then called by the prosecution. Webb denied involvement in the murder, saying he was in New York City with his grandmother on the night of the crime.

"On February 23, 2012, after two hours of deliberation, the jury acquitted Oxley.

"In May 2012, Oxley filed a notice of claim with the city of Ogdensburg and the police department seeking $23 million in damages and a separate claim with the State of New York seeking $13 million in damages. The lawsuit against the city and police department was dismissed in November 2013."

[All emphases added unless otherwise noted.]