Wrongful Conviction Article from 1991

New York State Wrongful Convictions -- 'Group 2'

These cases are derived from the following law review article (to be quoted from below):

"Inevitable Error: Wrongful New York State Homicide Convictions, 1965-1988, Marty Rosenbaum, 18 N.Y.U. Rev. L. & Soc. Change 807 (1991)

[807] "This Article reports the preliminary results of a continuing study by the New York State Defenders Association's Wrongful Conviction Study Project. The purpose of the study is to catalogue wrongful homicide convictions in New York State during the period from 1965 to 1988."

"The Association has defined the subject of its study as follows: a 'wrongful homicide conviction' is a convicion for any degree of homicide...which is overturned and never reinstated. This includes basically three categories of cases: those where the conviction was overturned and either (a) the defendant was subsequently acquitted on retrial (seventeen of the cases catalogued below), (b) the charges were dismissed (thirty-five cases), or (c) the charges were resolved by conviction of a non-homiciode crime (seven cases, of which three also included acquittals on the homicide charges). There is no subjective element whatsoever to the study: it merely catalogues the cases which fit the above definition.

"The study has thus far found fifty-nine such cases during the twenty-three-year period reviewed, each of which is separately noted below."

For those cases which already appear in the National Registry of Exonerations (NRE), relevant excerpts from this article do not appear here, but rather, in the NRE entries. In the following, where legal decisions (in Westlaw) could be found, entries begin with those, followed by excerpts from this article which add information not contained in the caselaw itself. Where possible, NRE descriptor fields are included.

--- [810] - Miguel Arroyo was convicted of manslaughter in [Brooklyn] on May 12, 1965, for killing a boy involved in a street fight outside Arroyo's store. The trial judge set aside the verdict when Arroyo's defense counsel produced a series of eyewitnesses who testified that they had seen another man, Jose Velasquez, kill the boy. Key witnesses who had testified against Arroyo then recanted their testimony. Velasquez was arrested and indicted for the murder, and in 1966 the indictment against Arroyo was dismissed."

--- Arthur Barber; [331:440]; Court of Appeals 3/16/72; affirmed

"[Barber] was convicted, after a jury verdict, of felony murder, attempted robbery...and conspiracy..."

"[Barber] asserted that he had been denied his constitutional right to speedy trial because of an unreasonable 22-month delay between original indictment and trial attributably solely to actions of the [DA], that there was improper foundation for reception of rifle and shell evidence and that evidence contained insufficient corroboration of accomplice's testimony to permit conviction to stand. [He] also stated that the grand jury had no power to confer immunity upon codefendant."

- [810] "Arthur Barber was convicted of first-degree murder in Bronx County on December 2, 1969, for a 1965 killing...[811] Although all state appellate courts affirmed the conviction, the federal district court reversed it in 1975 because Barber had been arrested without probable cause, beaten by the police, and subjected to other illegal police tactis in violation of his constitutional rights. The court concluded that Barber's confession had been obtained by the police through 'brutal treatment' that was 'so offensive as to constitute violations of Barber's constitutional right of due process.' All charges were dismissed and Barber was released from prison."

police officer misconduct, misconduct that is not withholding evidence, misconduct in interrogation of exoneree

--- Boone, Larry AND Cleveland, Arthur; [Boone] [370:613]; 1st Dept. 7/15/75; reversed, due to Brady violations

"It was the theory of the prosecution that [Boone] was with two confederates in an after-hours club when one of the confederates shot a patron in the chest. The three men then led the victim towards the street, and his body was later discovered outside another establishment. An autopsy revealed that the chest wound was fatal. A report in the file of the [DA] shows that two other men had given information to the police that the shooting had taken place outside of the other establishment where the victim was found. This was crucial exculpatory information that should have been made available to [Boone]."

"We note the [DA's] candor in acknowledging that a serious question exists regarding the sufficiency of the proof establishing [Boone's] partricipation in the crime."

- [811] "Larry Boone was convicted of murder in Bronx County on December 6, 1973. The conviction was reversed...On remand, the trial court dismissed all charges because the detective's notes had been lost and because witnesses favorable to the defense (whose identities were not revealed by the goverrnment at the time of trial) were no longer available, and because there was no proof of Boone's criminal intent other than his mere presence at the scene. The Court of Claims granted Boone summary judgment on his wrongful imprisonment compensation claim."

prosecutor misconduct, withheld exculpatory evidence

--- Borrero, Georgino; [504:654]; 1st Dept. 7/24/86; reversed, due to justification (self-defense)

"This case involves an incident which occurred in the Bronx on May 8, 1982 and resulted in the shooting of John Johnson, a retired police officer. [Borrero] was indicted for manslaughter in the second degree and, following a non-jury trial, was convicted of criminally negligent homicide as a lesser included offense."

"On the date in question, [Borrero], who was licensed to carry a handgun and had extensive training in its use, was working as a security guard at a drugstore located at 1500 Metropolitan Avenue. When Johnson entered the store at approximately 4:30 p.m. with a brown paper bag in his hand, he was requested to check his package. He did so but then inquired about a claim ticket. [Borrero] replied that although he did not have any tickets, Johnson's parcel was the only one being held so there would be no difficulty in retrieving it. Johnson thereupon exploded, declaring, 'Give me the fucking bag. I'm not going to shop in this store anymore.' [Borrero] then returned the bag to Johnson who, still dissatisfied, stated, 'I ought to punch you in the mouth.' [Borrero] stepped back and took out his nightstick, holding it in a defensive position with both hands at waist level.

"At that point, Johnson pulled out a gun and told [Borrero] to put the stick away, asserting, 'You're not fucking with no kid.' [Borrero] complied. Johnson threatened to kill [Borrero] if the latter made another sound. Valente Silva, one of the employees of the store, then interceded and endeavored to calm Johnson. He succeeded in getting Johnson to leave the premises. This incident was also witnesed by Ely Krellenstein, the owner of the business, and Jeanine Catania, another employess. After Johnson's departure, [Borrero] explained that it was his duty to find a policeman (he had recently seen one pass by) and notify him that there was a man with a gun walking the streets. He also apparently did not want Johnson to disappear before the police arrived. [Borrero] did not believe that his leaving the store would provoke any further confrontation or lead to the use of firearms. Krellenstein contacted the police and activated the silent alarm.

"Once outside, [Borrero], failing to see a police officer, looked in the direction in which Johnson had gone and called out loudly to him, 'Hold it, are you a police officer?' Johnson did not respond to the question, but instead turned and headed back to [Borrero], drawing his gun from his waistband. [Borrero] told him to 'Freeze.' Johnson ignored the directive and continued approaching [Borrero]. [Borrero], crouching for protection behind a car situated near the drugstore, drew his own gun and again yelled 'Freeze.' Johnson, however, kept coming toward [Borrero]. When Johnson was some four to five feet from [Borrero], he went into a combat stance and aimed his weapon at [Borrero's] head. [Borrero] fied his gun once, hitting Johnson in the head. He observed Johnson fall, then went over to the body and picked up Johnson's gun by inserting a pen through its muzzle. He placed the gun on the hood of the vehicle behind which he had taken cover.

"The street altercation was witnessed by a number of people. Michael Lydon, former legislative aide to a state assemblyman and now assistant director of Neighborhood Emergency Telephone Systems, Inc., testified that [Borrero] was empty-handed when he emerged from the store and only reached for his gun after Johnson was at the opposite side of the car from him. He heard [Borrero] ask the other man if he was a police officer and order him to stop. Johnson did not respond. Roy Grundmann also heard [Borrero] ask Johnson if he was a cop. According to Grundmann, Johnson was waiving his gun around and did not react to [Borrero's] question. Frank Rios, a corrections officer, was sitting in his automobile across the street from the drugstore when he heard someone shout. He glanced up and saw a man walking toward the store. That person held a gun in his hand which was aimed at the front of the store. After Johnson was shot, Rios ran over, identified himself and offered to secure the scene while [Borrero] summoned an ambulance. He noticed the gun lying on the hood but did not see any holster."

"A...toxicology report indicated the presence of .07% ethyl alcohol in Johnson's brain."

"[Borrero] moved to dismiss the indictment...The trial court denied the motion and the defense introduced its case. After both sides had rested and concluded their summations the court, acting as the trier of facts, found that all of the testimony, including that of [Borrero], was credible. However, the judge determined that [Borrero] had drawn his gun as soon as he left the store. Thus, while Johnson was the initial aggressor, he had effectively withdrawn from the encounter. When [Borrero] left the store to go after Johnson, he, therefore, initiated the second confrontation and could not now claim self-defense. Since [Borrero] had created a grave risk of death to Johnson, he was guilty of criminally negligent homicide..."

"It should ne noted that virtually every facet of [Borrero's] account of what transpired was corroborated by other witnesses. The proof at trial clearly reveals that Johnson entered the drugstore and began a confrontation with [Borrero] during which he displayed a weapon and behaved in a generally menacing manner. The fact that a simple dispute over a claim check was transformed into an extremely dangerous situation can only be indicative of Johnson's instability."

"The druggist and several employees observed Johnson's menacing behavior for which he was subject to prosecution for a variety of crimes...Since it is evident that Johnson had committed an offense in his presence, [Borrero] was entitled, purely as a private citizen and without consideration of his status as a security guard, to follow Johnson out of the drugstore and make a citizen's arrest."

"In all respects, [Borrero's] conduct was that of a responsibe citizen. Contrary to the trial court's determination, the proof overwhelmingly shows that [Borrero] did not draw his gun as soon as he walked out of the store but did so only after Johnson's threat to his safety and/or life had become immediate and unavoidable."

"[Borrero]...would have been remiss had he simply ignored what had occurred and gone about his business as if he never encountered Johnson."

[The judge in this case was Peggy Burnheim. ] [It would appear that, regardless of the fact that Johnson had acted (criminally) recklessly throughout this incident, whereas Borrero did absolutely nothing illegal (or even morally wrong), because Johnson was a retired cop, Judge Peggy Bernheim was just bound and determined to convict Borrero of something, even if it meant distorting an objective fact that was crucial to guilt vs. innocence.]

no crime

--- Boutin, Daniel; [536:583]; 3rd Dept. 1/12/89; affirmed

"[Boutin's] conviction stems from a collision between [Boutin's] tractor-trailer and a parked State Police car, which was propelled into a disabled tractor-trailer standing in front of it. The crash occurred at 10:45 P.M. on November 26, 1985 on the southbound side of Interstate Route 87, some 1,440 feet south of the exit 13 interchange. Route 87 has three lanes at this point, each 12 feet wide. The police car and the tractor-trailer were partially in the right driving lane. The car had its four wheels on the road pavement, blocking six feet of the driving lane. The truck also extended into the driving lane some six feet. The police car had its emergency lights on, including the bubble, rear lights and flashers, and its left spotlight was shining on the disabled truck. The night was dark, overcast, foggy and rainy. The pavement was wet with slush on it.

"[Boutin] was driving a tractor-trailer carrying a 62,000-pound load. His speed was read on the speedometer by Daniel Mallette, the passenger in his truck, as 40 to 45 miles per hour, and was estimated by the [prosecution's] reconstruction witness, William Burrill, as either 50 to 60 miles per hour or, as testified by this witness at trial, 60 to 65 miles per hour.* Close to the scene of the collision, Mallette said [Boutin's] eyes were fixed ahead and that [Boutin] carried on a conversation with him. Some 200 feet from impact, he saw [Boutin's] eyes move toward the cab's mirrors. [Boutin] then exclaimed, 'Whoa!,' stepped on the brakes but, nonetheless, struck the police car, propelling it into the disabled truck and killing the state trooper and driver of the other truck. Both men had been seated in the police car. When [Boutin] was queried by police at the scene as to what happened, he said, 'I killed him.' [Boutin] said he was just driving along. When asked whether he had seen the flashing lights on the police car [Boutin] responded, 'There were no lights,' or 'I didn't see them.'"

[* Note how this 'expert's' speed estimate went from 50-60 to 60-65. Why? That's a big difference. The initial lower estimate was very close to the passenger's account, and would also seem to be a (much more) reasonable speed for Boutin to have been driving, given the prevailing conditions. Was this witness pressured to increase his estimate of speed?]

"it is [Boutin's] contention that his failure to avoid the devastating collision does not rise to the level of criminally negligent homicide in that it was not a gross deviation from the standard of reasonable care. [Boutin] urges that he was driving at a reasonably cautious speed; that he was looking ahead; that inclement weather obscured his vision; that the exact location of the police vehicle on the highway was not perceivable by him until he was 200 feet from it; that the witnesses who, like he, passed the area, going north or south, all perceived the car and truck to be on the shoulder of the road; and that the road conditon, his position in the right-hand lane, and the 62,000-pound load he carried, made timely evasive action impossible."

"The most telling evidence against [Boutin] is that neither he nor Mallette ever observed the lights ahead. There is simply no excuse for such failure on [his] part."

[556:1]; Court of Appeals 4/5/90; reversed, indictment dismissed, due to insufficient evidence

"The unexplained failure of a driver to see the vehicle with which he subsquently collided does not, without more, support a conviction for the felony of criminally negligent homicide."

"In the present case, there is no question that [Boutin's] failure to see the vehicle stopped in the lane ahead of him resulted in the fatal accident. That failure may well constitute civil negligence. But the proof does not establish criminal negligence...[T]he evidence does not show that [Boutin] was engaged in any criminally culpable risk-creating conduct -- e.g., dangerous speeding, racing, failure to obey traffic signals, or any other misconduct that created or contributed to a 'substantial and unjustifiable' risk of death." [Emphasis original.]

[Here, we have a sad case of a current law enforcement officer, as well as another person, being killed. But this was simply a tragic accident. Like the above Borrero case, because (one of) the victim(s) was a cop, a case that should never have been brought at all was pursued, seemingly due simply to a sense that 'someone must be made to pay.']

no crime, false/misleading forensic evidence

Carrasquillo, Jose; [527:781]; 1st Dept. 4/21/88; reversed, indictment dismissed, due to insufficient evidence

"[Carrasquillo] was convicted by a jury of manslaughter...for the death of Dominick Barberi after a vicious beating in which both he and Robert Turner participated. The case, however, was submitted to the jury, which so found, on the theory that [Carrasquillo's] actions were the sole cause of death. [Carrasquillo's] argument that the [prosecution] failed to prove beyond a reasonable doubt that he, not Turner, struck the fatal blow is well taken."

- [812] "[T]he victim...was apparently shoplifting from the boutique where [Carrasquillo] worked. The victim died two days after the attack."

-- Cenzi, Thomas; [446:624]; 4th Dept. 10/30/81; reversed, due to evidentiary error

"The statement in question was made during an interview at Cenzi's home on April 24, 1978. Two police officers showed Cenzi several photographs, and they 'asked him if he knew some of the individuals. They were interested in finding...out if he knew one Robert Violante. [Cenzi] said he knew him "vaguely, not well," and Gino Cobos, and he said, no, he did not. . .I pulled Cobos' picture out and directed his attention to that, and he said he did not know him.' One of the accomplice witnesses had previously testified that he, Cenzi, Cobos, and Violante had been close friends for many years. The [ADA] emphasized [Cenzi's] patent untruth during his summation, and the trial court stated in its charge that 'false explanations come within a general broad category of conduct evincing a consciouness of guilt.'"

"The statement obtained, regardless of its noncustodial setting, should have been suppressed..." [This was because the statement was obtained without Cenzi's lawyer being present, even though the police knew Cenzi had already retained a lawyer.]

- [813] "The trial judge improperly permitted the jury to consider an uncounseled statment taken after Cenzi's retained counsel had instructed the police not to question him. Cenzi challenged the evidentiary ruling on appeal, and the Appellate Division ordered a new trial. Cenzi was acquitted of all charges on April 11, 1983."

--- Cohen, Patricia; [418:944]; 2nd Dept. 7/30/79; affirmed

"[Cohen's] estranged husband sustained a fatal cranial gunshot wound in the parties' bed in the marital home in the evening of September 24, 1976 (he died in the early morning of the day following). [Cohen] explained to the police that the deceased was concerned over financial and professional difficulties. She also said that he had arrived in the early evening, with a bottle of wine, to celebrate their reconcilation. In addition to drinking the wine, he took some sleeping pills, became morose and despondent and cried himself to sleep. She, too, took a sleeping pill and retired. She was awakened by a thunderous sound, which was evidently a shot from the gun she had borrowed the evening before out of her fear of burglary since she was alone in the house during the marital separation.

"The prosecution presented evidence that the deceased had made future vacation plans with his former wife, to whom he planned to return, and that he was preparing to divorce [Cohen]. It was to finalize that arrangement that he visited her. In addition, there were no financial or professional difficulties...Moreover, we think that the verdict was not affected by the tests that were introduced to show the characteristics of the weapon fired at varying distances through a variety of objects...We note that the tests on the white blottter paper were twice specifically accepted by defense counsel so no objection to them may be had now."

[from dissent (Titone):] "In my opinion, prejudicial error mandating a new trial was committed by the trial court in allowing certain scientific test results to be admitted in evidence in support of the prosecution's theory that the gunshot wound of the deceased was not self-inflicted but was caused by the conscious act of [Cohen].

"At the trial, the position taken by the defense was that [Cohen] did not fatally shoot her husband in the head with a .380 Llama semi-automatic pistol, but that he may have committed suicide by shooting himself with that weapon. To controvert the hypothesis of suicide, the prosecution adduced certain expert evidence, to which [the defense] objected, designed to demonstrate that in view of the absence of powder burns in the area of the fatal wound, the distance from which the shot was fired ruled out suicide and thus...suggested that [Cohen] deliberately shot her husband.

"Specifically, to show that the victim was shot at a distance of four or more inches from his head, and thus to rule out suicide, testimony was adduced from Doctor Gary Paparo, the medical examiner who participated in the homicide, and from Deputy Sheriff Joseph Reich, a ballistic test firearms examiner, about tests they conducted by firing the same weapon and similar ammunition which caused the fatal wound. Paparo testified that he anesthetized a rabbit, shaved off a portion of the animal's fur, and then attached a large swath pf 'human hair,' folded double so that it was an inch and a half thick. Then Reich fired at the rabbit with the weapon from a distance of four inches. No powder burns were found on the rabbit's skin when the human hair was unfolded. Powder burns were found on the animal after a second shot was fired from it at the same distance, without its fur being shaved and without human hair being attached.

"Reich also testified, over objection, as to tests done by firing the weapon at filter paper covered with human hair at distances ranging fron one to 12 inches, the hair being changed each time. Such tests were done to show how much powder would burn and how much smoke and gas would go through the hair to the filter paper. At four inches or less, there was considerable residue. At 5, 6 and 12 inches, there was no residue, '(n)o noticeable particles.' Again over objection, Reich testified to the weapon being fired at a 'styrofoam mannequin head in conjunction with a synthetic hair wig.'

"The afore-described tests were presented to the jury as evidence showing, inter alia, that the 'powder' range or 'near' range of the pistol and ammunition through hair was four inches or less, and that since there were no powder burns at the site of the wound, the pistol was fired more than four inches from the site, or out of 'powder' range injury. The results of other tests were also submitted to the jury to show that the victim did not fire the fatal shot since it was impossible for him to have directed the weapon's fire at the point-of-entry of the bullet, from a distance of greater than four inches.

"It seems clear from the record that although the experiments described by Doctor Papparo and Deputy Sheriff Reich complied with the rule dealing with firearm tests, no foundation was laid by either witness as to the similarity or dissimilarity of rabbit skin to human skin, that filter paper was a proper medium to simulate human skin, and the effect hair on the skin would have to powder pattern and effect. Moreover, there was no limiting instruction by the court as to what purpose such evidence was being offered."

'It cannot be assumed that the effect of pistol fire upon human flesh and upon paper would be essentially similar, in respect to powder burns or marks, when the requisite supporting proof is lacking..."

[431:446]; Court of Ap[eals 6/10/80; reversed, due to evidentiary errors (as noted above)

"The court erred in permitting the prosecutor to introduce, over objection, testimony of a study of other suicides purporting to show, statistically, how far from his body a suicide victim holds 'the gun.' The testimony was based on a study of the files of the Westchester County Medical Examiner's Office in which homicides investigated during a period of several years had been classified as suicides. The study showed that the agency had been remarkably consistent in classifying deaths as suicides when certain factors were present. There is nothing in the record, however, to indicate that the sampling was representative, that reliable criteria were employed or that the conclusions on which the statistics were based were in fact accurate."

"The court also permitted prosecution witnesses to testify to the results of test firing the weapon at various objects at prescribed distances. [The prosecution claims] that this proof was adduced 'to show the distribution at specific distances of the products of discharge of a particular gun and ammunition.' But there was extensive testimony that one of the test subjects was a living rabbit which had been shaved and human hair placed over the skin to simulate the conditions on the victim's head. This obviously was not the kind of neutral test designed only to produce the limited results the [prosecution] now contend[s]."

- [813] "Cohen steadfastly maintained her innocence...On remand, the trial court suppressed certain evidence...[814] Cohen was thereafter convicted only of criminal possession of a weapon in the third degree."

no crime, false/misleading forensic evidence

--- Cruz, Rafael; [420:721]; 2nd Dept. 10/9/79; reversed, due to evidentiary error

"[C]ruz was arrested, without a warrant, on July 4, 1975. He was told that he was arrested 'on an indictment for murder.' However, although the indictment was voted on July 2, 1975, it was not filed until July 8, 1975. At the police precinct, [Cruz] was informed of his Miranda rights, agreed to answer questions without the presence of an attorney, and subsequently confessed to the murder. [Cruz] now claims that his confession was inadmissible, because he waived his Miranda rights without the presence of counsel, after the Grand Jury had spoken. We agree."

"In these circumstances, the judicial process had effectively commenced and [Cruz] should not have been interrogated in the absence of counsel..."

[The following are cases concerning William Rosario, Cruz's co-defendant:]

[417:767]; 2nd Dept. 6/25/79; reversed, due to evidentiary error

"At the joint trial of [Rosario] and his codefendant, Rafael Cruz, the latter's confession implicating [Rosario] was admitted into evidence unredacted. Neither defendant testified at trial. Cruz, however, testified at a Huntley hearing at which he denied ever having made the confession. Accordingly, [Rosario's] attorney declined to cross-examine Cruz at the hearing."

658 F.Supp. 1408; S.D.N.Y. 4/21/87; writ granted, due to evidentiary error

"The only identifying witness against them was Victor Cartagena, himself a criminal who -- as was suggested at [Rosario's] trial -- might have been a participant in, rather than a witness to, the murder. The testimony at the two trials was substantially identical (apart from some fingerprint evidence applicable only to Cruz), except that the testimony of one Irma Coreano was admitted at Cruz's trial but excluded at [Rosario's]. Coreano's testimony tended to cast doubt on Cartagena's veracity. Cruz was acquitted [at his retrial], while [Rosario] was convicted."

"At 6:15 on the evening of October 12, 1974 two men entered the Jimenez Grocery Store on Graham Avenue in Brooklyn and announced a holdup. Louis Camacho, a boy who was working behind the counter, heard the men but did not see them well enough to identify them before he was shot and lost consciousness...When he recovered consciousness he saw the store owner, Julio Jimenez, run from the store clutching his chest...A bullet had entered his neck and exited his chest...Jimenez later died of his wounds..."

"Approximately a month later Victor Cartagena -- who had recently served time for a robbery in the course of which a man had been shot in the neck -- was arrested for another robbery unrelated to the one here involved. Seeking to make a bargain with the police in order to avoid formal criminal charges for the robbery for which he had just been arrested, Cartagena told the arresting officer that he had witnessed the October 12 robbery/murder on Graham Avenue and knew the culprits...Cartagena was indicted for the unrelated robbery anyway, but was able to exchange his cooperation in the [present] case for a 1-1/2 to 3-year sentence to run concurrently with another 1-1/2 to 3-year sentence for attempted possession of a gun.

"In May 1975 Police Officer Frederick Nelson spoke to Cartagena at Rikers Island about the Graham Avenue crime...On June 2, 1975 Cartagena was brought to the Brooklyn [DA's] Office and there reached an agreement with a member of that office."

"On May 6, 1976 [Rosario] and Cruz went on trial together. The [prosecution's] key witness -- indeed the only witness who claimed to have seen the defendants commit the crime -- was Cartagena. No one else identified either defendant."

"On June 8, 1981 [Rosario's] second trial began. Again the [prosecution] read into the record Cartagena's...testimony. The defense made extensive efforts...to locate Irma Coreano. After those efforts had failed, the defense sought the court's permission to offer Coreano's testimony from the prior trial, at which she had been cross-examined by the same [ADA] handling the case against [Rosario]. The court denied that application, ruling that the defense had failed adequately to demonstrate Coreano's 'unavailability'...[Rosario] was convicted..."

"Cartagena testified that on the evening of the robbery he was standing on Graham Avenue outside the Jimenez grocery store in the company of his girlfriend Eva Lopez, with whom he claimed to have been sharing a furnished room in the neighborhood...A car drove up with three people whom he recognized. Cruz (who was married to Cartagena's cousin); [Rosario]; and a young man named 'Jimmo,' who was driving...[Rosario] and Cruz emerged from the car. Cartagena did not speak to them.

"He saw Cruz and [Rosario] enter the grocery store. He then went over to the store's window and looked in. Lopez was 'not very far behind me.'...He saw [Rosario] and Cruz standing with guns drawn in front of the cash register. An older man and a boy stood behind the counter. [Rosario] then shot the proprietor and Cruz shot the boy. After being shot the older man held his stomach...[Rosario] then fled toward Montrose Street, while Cruz fled in the opposite direction toward Meserole Street. Subsequently Cartagena had conversations with both Cruz and [Rosario] concerning the crime..."

"At Cruz's second trial Coreano testified that she was then a student in her second year at Brooklyn Law School. She was Cruz's sister-in-law and Cartagena's cousin. In November of 1974 (about a month after the murder) she met Eva Lopez, and two weeks later they became roommates. In early 1975 (at least two and a half months after the murder, and while Coreano and Lopez were still roommates) Coreano introduced Lopez to Cartagena. The two had never met before. Subsequently Lopez and Cartagena began dating."

"Eva Lopez was not called as a witness. A detective said that she had said she could not remember whether in Cartagena's company she had witnessed a robbery and homicide in October of 1974..."

"Respondent [i.e., the prosecution] has not -- to this very day -- come up with a suggestion of what more an impecunious (or even a wealthy) defendant could have done to produce the witness. Indeed, by issuing a warrant for the witness's arrest and directing the [NYPD] to bring her before the court, the trial judge implicitly ruled that [Rosario] had done all that could reasonably be expected of him."

[The judge in this trial was Irving Rader. ]

"In brief, the trial court's exclusion of prior relevant testimony on the ground that the witness's absence had not been accounted for cannot be justified on any theory whatsoever."

false confession, perjury/false accusation

--- Dlugash, Melvin; [380:315]; 2nd Dept. 3/1/76; reversed, indictment dismissed, due to insufficient evidence

"The prosecution's theory of the case was that one Joseph Bush had shot [Michael Lawrence] Geller in the chest several times with a .38-caliber revolver ad that 'shortly thereafter,' [Dlugash] had pulled out his own .25-caliber revolver and had shot Geller in the face five times." n

"Under the facts of this case, the [prosecution was] required to prove...(1) that Geller was alive at the time [Dlugash] shot him, and died from those shots...and (2) that [Dlugash] believed Geller to have been alive at that time and that [Dlugash] had intended to kill him when he fired the shots."

"In his oral confession to the detective, [Dlugash] stated that Bush had shot Geller three times; that Geller then fell to the floor; and that after a few minutes...he went over to where Geller was lying, took his revolver and fired five times into Geller's head and face. [Dlugash] told the detective that he thought Geller was already dead when he fired the shots and that he had shot Geller notwithstanding such belief because he was afraid of Bush and feared for his life."

"[B]oth of the doctors who had performed the autopsy admitted that they could not...state whether Geller had been alive at the time the later shots were fired into his head."

--- Ellis, Vernon; [404:862]; 1st Dept. 5/16/78; reversed, due to judicial misconduct

[Judge Burton B. Roberts presided over this trial.]

"[Ellis] was convicted following a lengthy trial arising out of the shooting of George Dixon on March 25, 1973. Dixon was found on the fifth floor of an apartment at 24 Lenox Avenue after an argument and fight among [Ellis], Dixon, Tyrone Davis and Willie Love. Shortly thereafter [Ellis] was found hiding on the roof of the building and was arrested. Also found on the roof were the murder weapon and a tasseled hat allegedly belonging to [Ellis]."

"Where the trial judge...assumes the role of a prosecutor ...there is a denial of a fair trial and there must be a reversal."

"Here, we have concluded that the trial justice unduly injected himself into the proceeding to such an extent as to deny [Ellis] a fair and impartial trial. His excessive questioning and examination of witnesses, including [Ellis]...not only with respect to the merits of the case but also respecting their credibility could not help but make him appear to be an advocate rather than an impartial arbiter."

"Throughout the trial, the court assumed the function of the prosecutor to such an extent as to deprive [Ellis] of a fair tial and to impair the aura of impartiality which should surround every judicial proceeding."

- [814] "The prosecutor did not retry the case and Ellis was freed."

--- Estrada, Reinaldo; [530:148]; 1st Dept. 7/7/88; reversed, due to evidentiary error and Brady violations

"The convictions grew out of the murder of William Dowdy in his apartment...[O]n May 7, 1985 Luis Nelson, Jr., a cousin of [Estrada] and the son of [an NYPD] officer, drove [Estrada], a man named Manny Cabassa, and a girl to the apartment building. Luis Nelson, Jr. waited in the car while the three others went to the apartment of Dowdy. While the three were in the apartment, Dowdy was handcuffed and shot once in the head...The apartment was also ransacked."

"[I]n examining Ray Nelson, Jr., another cousin of [Estrada], the [prosecution] brought out the subtance of his prior statements in violation of [criminal procedure law]."

"Ray Nelson, Jr. had apparently testified in the grand jury that [Estrada] told him that he shot the deceased in the head. At the trial said witness repeatedly testified that he could not remember what [Estrada] told him or what he (Roy Nelson, Jr.) said in the grand jury.

"Secondly, the trial court refused to require the prosecution to reveal the name of a confidential informant. The Rosario [Brady] material of Police Officer Geary contained an entry that a person named Nelson, who worked as a drug runner for the deceased, owned a .38-caliber pistol, the kind used in the murder, which he had drawn during a dice game. The entry further revealed that the person named Nelson had attempted to rob the deceased by setting him up with a supposed buyer and that shots had been fired during the incident. After this, the deceased refused to deal with Nelson any longer.

"The full name of the Nelson noted in the memorandum book of the police officer was not revealed. If Luis Nelson, Jr. or Ray Nelson, Jr. was the person referred to by the confidential informant, the revelation of the name of the informant was important to the defense of the charges..."

- [815] "The prosecutor had also improperly failed to disclose...certain other exculpatory evidence...Estrada was retried and acquitted of all charges."

prosecutor misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence

--- [815] Francis Featherstone was convicted of murder in [Manhattan] in 1986. Purportedly linked by prosecutors to organized crime activities, Featherstone was convicted of murdering Michael Holly, an associate in the so-called 'Westies' gang in New York City. Prosecutors later conceded that Featherstone could not have pulled the trigger because he was not at the scene of the 1985 killing. They believed that William Bokun had committed the murder and that Bokun had disguised himself as Featherstone in an effort to frame him. Post-conviction investigation also revealed that Featherstone's trial lawyer knew that he was innocent because a second client of his had confessed to the killing. The defense attorney had not revealed this confession because the conversation was subject to the statutory privilege agaunst disclosure of attorney-client confidences. On September 5, 1986, the trial court dismissed all charges based on newly-discovered evidence."

--- [815] Terrence Ferrer was convicted of the murder of his uncle in Bronx County in 1974. At the trial he and two codefendants, his aunt and mother, were all represented by the same attorney. His co-defendants were convicted of manslaughter and sentenced to prison terms of up to seven years. Ferrer was sentenced to fifteen years to life in prison. Although the aunt confessed to her involvement in the murder of her common-law husband, Ferrer testified that he was home in bed when the killing occurred. The conviction was upheld without opinion on direct appeal. In 1984, on a subsequent post-conviction application...Ferrer's conviction was vacated and the case was remanded for a new trial because Ferrer had never been advised of the potential conflict of interest in being represented by the same lawyer as his co-defendants. Represented by his own counsel at the second trial, Ferrer was acquitted of all charges in May 1986. During his twelve years of wrongful imprisonment, Ferrer had earned a bachelor's degree and master's degree. After his acquittal, he told reporters he would enter law school, and planned a career representing those who cannot afford counsel."

--- Ferro, Alfio; [460:585]; 2nd Dept. 3/21/83; affirmed, but 2 dissenters

"Lillian Sher, an elderly woman living alone in her one-family attached house in Forest Hills [Queens], was confronted by burglars who entered her abode on December 5, 1975 to take her property. The invaders vacated the residence only after subduing their innocent victim and looting the premises. Her lifeless body, bound hand and foot, was not discovered until December 11. The piece of cloth stufed into her mouth to stifle any potential cries for help also cut off her oxygen supply and caused her asphyxiation.

"Alfio Ferro, the 58-year-old proprietor of a furniture store in Manhattan, was arrested on December 12. Arrested along with Ferro was Thomas Lewis, Ferro's employee. Lewis had a substantial criminal record, and Ferro had been arrested in both August 1975 and November 1975 for criminal possession of stolen property. Detective Hudson told Ferro to keep quiet and not make any statements.* Transported back to the 106th Precinct along with Ferro and Lewis was Wanda Feliciano, a 17-year-old employee of Ferro's. Feliciano was an admitted lesbian who conceded during her trial testimony that at one time she had swallowed one-quarter of a bottle of ammonia, and several days later had been taken to the hospital after consuming six tuinals [???]. She also acknowledged other drug usage."

[* It is, of course, highly unusual for a detective to urge a suspect to keep quiet.]

"When Ferro was brought to the precinct, Detective Arnold Hendricks identified himself to Ferro and informed Ferro that he had been arrested for the Sher homicide. Hendricks gave Ferro his Miranda rights and he stated that he understood them. When Ferro was asked if he was willing to answer questions without an attorney being present, his response was 'No.' Ferro did not ask for an attorney. He was then placed in a detention cell."

"Detectives Hudson and Kendricks returned with Thomas Lewis to Lewis' apartment in Manhattan at about 8:30 p.m., and Lewis surrendered furs that had been stolen during the burglary. Upon their return to the precinct at approximately 9:45 P.M., Hendricks put the furs down in front of Ferro's cell, 'a foot away from him,' after which he took Lewis to another area of the precinct. Hendricks candidly conceded that he did this '[f]or him to tell what happened.'

"At this point Ferro grabbed the mesh of the cell with both hands and told Hudson 'I have to talk to a D.A.'...Ferro expressed his desire to speak to a 'Pisano.'

"Detective Walter Cassi, who was not working on the Sher case, was told that Ferro wanted to speak to a 'Pisano.' Cassi identified himself to Ferro as an Italian, and when Ferro expressed a desire to speak with him, Cassi took him to a separate room. Ferro then stated 'I can't afford to do a lot of time. What can I tell you?' Cassi instructed him that he would forward Ferro's information to the [DA], but what the [DA] did was his business and no promises could be made. Ferro then stated he had been introduced to Florence Freeman, who lived next to Sher, by a woman named Trish. Freeman complained to him that Sher had been giving her trouble and had once grabbed her by the neck. Claiming that Sher was 'a nut and dirty,' she expressed a desire to have her robbed. When Ferro told Freeman that he was not interested, she asked him if he could get anybody else and he told her that he would think about it. When Cassi told Ferro that he had not told him anything relative to the investigation, Ferro told him 'I just can't do a lot of time.' At this point the interview was terminated, and Ferro was taken to central booking about 10:00 P.M.

"Following the denial of Ferro's motion to suppress the statements he made subsequent to viewing the furs, the matter proceeded to trial. The most damning testimony came from Wanda Feliciano, who testified to Ferro's presence at the scene at the time of the commission of the crime and to admissions made to her by Ferro. Following a lengthy, hotly contested trial, Ferro was convicted..."

"On appeal Ferro...argues that the placement of the furs in front of the cell constituted either a subtle form of psychological coercion or, in the alternative, the functional equivalent of questioning in disregard of his invocation of his Miranda rights...[W]e do not agree..."

"Ferro...realiz[ed] that the continued silence of a suicidal, drug-using lesbian and a small-time thug was all that stood between him and his final, immutable linkage to the Sher murder."

"Ferro teetered on the very edge of confession..."

"Ferro was not an easily awed or intimidated novice in the criminal justice system."

[About 18 months later, the Court of Appeals reversed.]

- [816] "After remand for a second trial...Ferro agreed to plead guilty in exchange for what constituted, in effect, a sentence of time served."

police officer misconduct, misconduct that is not withholding evidence

--- Freeland, Elverton; [356:912]; 4th Dept. 6/27/74; affirmed

[The trial judge was Roger T. Cook. ]

"It is apparent that the testimony of Orvetta Stewart as to identification was a critical part of the prosecution's case...Stewart...had more than thirty minutes in the presence of the defendants."

"[Stewart] denied that she had ever been a narcotics addict. Since there was no testimony that this witness was not in possession of her full faculties and full powers of obeservation on the night of the incident, and in the absence of any indication of her inability to observe the events of that evening or to recollect the same, the use of medical reports pertaining to the witness were of a collateral nature and properly excluded by the court."

"The Trial Court did not err in denying a hearing relative to Orvetta Stewart's alleged recantation."

[369:649]; Court of Appeals 5/7/75; reversed, due to evidentiary error

[This case also covers co-defendant Edward G. McKnight.]

"On May 10, 1972, at about 12:30 A.M., Orvetta Sanders Stewart and Stephonsa Washington were picked up on a Buffalo street corner by two men in a blue Buick Riviera with bucket seats. The passenger, who joined Stephonsa in the back seat, identified hismelf as 'Bob.' The surviving witness, Orvetta, who sat next to the driver 'Eddie,' turned in her seat at times so that she could see both men. She was not acquainted with either man, but would later recall having seen 'Eddie' a couple of years before selling a Black Muslim newspaper on a Buffalo Street. The four drove for about 15 minutes through the lighted city streets, until they parked on Buell Street, a dead end.

"The automobile was parked for about 10 minutes when Bob reviled the women for consorting with white men, voiced his disgust, and struck Stephonsa in the face. The witness Orvetta tried to reach for what she thought was a knife in an ashtray, and Eddie grabbed her hand. Bob was now strangling Stephonsa. Orvetta tried to open the door, but Eddie pulled her back by her coat, and struck the side of her face. Eddie started strangling Orvetta, who fainted. On regaining consciousness, Orvetta was in the street, suffering from a stab wound in the neck and other injuries. Stephonsa Washington was later found on Buell Street, dead of strangulation.

"Admitted to Meyer Memorial Hospital, Orvetta gave the police an initial description of the assailant. 'Bob' was a 'big guy,' 'very tall,' about 30 years old, wearing a green parka coat with hood and boots, his hair in a 'short bush,' and with a mustache. 'Eddie' was about 5 feet, 10 inches in height, with very large hands, wavy hair, and clean-shaven, weaing a black cashmere coat.

"On May 12, Orvetta was shown 4 photographs, from which she picked out...McKnight as the 'Eddie' who had driven the car and attacked her. Subsequently, on May 26, Orvetta was shown a special album provided by the [FBI] containing some 45 photographs of known Black Muslims.* After viewing about 13 of the pictures, she selected a photograph of...Freeland as 'Bob.' She also selected McKnight's photograph from the album."

[* The very fact that such an album was created by law enforcement is highly questionable, both in terms of constitutionality as well as practical utility. (One also wonders how many persons pictured were from the Buffalo area.)]

"In the police procedures and events that ensued, Orvetta reaffirmed and strengthened her initial photographic identifications. Shown a photograph of McKnight again on June 1, she made a positive identificaton. About this time, Orvetta also believed that she had passed a man on the street whom she later identified as Freeland, and that the man recognized her and turned to stare at her. On June 26, having seen photographs of Freeland at least three times, Orvetta viewed him alone in a station house through a one-way mirror. The next day, June 27, she identified both defendants in lineups.

"After an identification hearing, the hearing court declined to suppress Orvetta's identifications. The photographic album of Black Muslims, from which Orvetta made her identifications, was said to have been disassembled by the FBI, and could not be reconstructed or introduced* either at the identification hearing or at the trial."

[* Well, isn't that convenient. Although discontinuing use of this constitutionally dubious 'resource' was the undoubtedly the right thing to do, its apparent destruction meant there was no way for the defense to challenge -- among other things -- its suggestiveness.]

"Freeland and McKnight each testified in his own behalf. Freeland, a 43-year-old autoworker, veteran, and family man, had never been arrested or convicted of a crime. He said he was a Black Muslim, and had known Edward McKnight casually as a member of the same Muslim mosque, but that he had not attended the mosque nor seen McKnight for a few years. His alibi was that he had celebrated a daughter's birthday on the night of May 9, and had slept the rest of the night with his wife. They so testified. A coworker and a neighbor testified that they had never seen Freeland wear a mustache. He had never been called 'Bob.'"

"Neither Freeland nor McKnight was found to have owned a Riviera with bucket seats. Indeed, the car Orvetta described was never found, nor, for that matter, were the clothes she said Freeland and McKnight wore at the time of the crimes.

"The case was tried in July, 1973 and defendants were sentenced on September 4, 1973. On August 20 Orvetta had signed a recanting affidavit, presented on sentencing, to the effect that she was no longer sure that Freeland was the man in the back seat of the automobile, and that she had never been sure of his identification."

"Orvetta's initial descriptions did not match either defendant, and was particularly discrepant as to Freeland...Under the circumstances...it was imperative that the jury be apprised of any competent evidence relative to Orvetta's ability to perceive and remember the perpetrators.

"The defense sought to impeach Orvetta's credibility by showing that at the time she witnessed the crimes, and when she later made photographic identifications, she was a drug addict. The hospital records received in evidence at trial were inconclusive and indeed contradictory on this point. An emergency room report of Meyer Memorial Hospital, dated April 14, 1972, a month before the crimes, described Orvetta as a 'former' heroin addict, 'now clean.' When, however, she was admitted to the same hospital for stab wounds on May 10, 1972, these notations on the admission form described her as a heroin addict and under the heading of 'medication' bore the word 'heroin?'

"The defense offered additional hospital records for periods prior to the crimes to show that Orvetta had a long history of heroin addiction, that by her own account in 1971 she had been on heroin since May, 1969; and notably, that she was still addicted when treated for a pelvic infection at Meyer Memorial Hospital between April 5 and April 11, 1972, a month before the crimes. The court excluded the records as collateral to the issues.

"Generally, evidence of narcotic addiction is admissible to impeach a witness's credibility if tending to show that she was under the influence of drugs while testifying, or at the time of the events to which she testified, or that her powers of perception or recollection were actually impaired by the habit...In such instances the collateral evidence rule is not applicable."

"Evidence of Orvetta's heroin addiction on April 11, 1972, and its prior duraton, was...a foundation upon upon which to attack her testimonial capacity. Evidence of recent addiction established or clarified would bear on the state of a witness' testimonial capacity...Since the prosecution case rested largely, almost exclusively, on the credibility of the one eyewitness, with troublesome antecedent identification procedures, the exclusion of the earlier hospital records was reversible error."

- [816] "Citing [the] recantation, [DA] Edward C. Cosgrove moved on June 2, 1977 for the dismissal of the charges against Freeland."

police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

--- Garson, Ruben; [468:29]; 10/24/83; reversed, due to jury charge errors

[The trial judge was Cornelius T. O'Brien ]

"In light of the trial evidence that [Garson] may have been intoxicated at the time he shot his victim...it was reversible error to refuse to charge manslaughter in the second degree...as a lesser included count of murder in the second degree because the jury could have concluded that [Garson] acted recklessly rather than intentionally in causing the death of his victim..."

- [817] "The matter was remanded for a new trial, at which Garson was acquitted."

--- Giuliano, Joseph; [477:358]; 1st Dept. 7/12/84; affirmed, but one dissenter

"There are three troublesome questions. The first two deal with motive. [Giuliano] had no apparent motive. Oliveri, one of the witnesses against [Giuiliano], had a motive in that the victim had some kind of affair with Oliveri's wife."

"The remaining question relates to the admission into evidence of police testimony relating [Giuliano's] father's response to [Giuliano's] statement in the police precinct:

([Giuliano]) 'If I ever find out who ratted on me, I will kill the guy.'

(Father) 'That is why you are here, because of your fucking temper.'

"The father's statement was inadmissible. However, that is not dispositive. The error was harmless in our view..."

[from concurring opinion:] "In the early morning hours of March 7, 1982, the body of Frank Cirillo was found with a bullet in the head in the driver's seat of a vehicle parked in front of the entrance to the Park Tavern in the Bronx...At the time of the shooting, [Joseph 'Joey Dee'] Oliveri, his wife and [Giuliano] were in the bar..."

[Two witnesses heard someone say 'I shot the kid'; they thought that person may have been Giuliano, but weren't sure.]

"The deceased, who had accompanied [Edward] Cullen and [Frank] Petrucci to the Park Tavern, remained outside in the car while the other two went inside. The car was parked directly in front of the entrance to the bar, in such a manner as to be clearly visible when the door to the bar was opened. As Cullen and Petrucci entered, Oliveri's wife said, 'Why did you do that, what the fuck did you bring him here for?' Cirillo, it appears, had been dating Olivieri's wife during the period of time when Oliveri was imprisoned on one of two prior felony convictions."

[from dissent (Milonas):] ""At approximately 9:30 p.m. on March 6, 1982, [Giuliano] and one Joseph Oliveri went to the Park Tavern and Oliveri's wife, Deborah, arrived about 11:00 p.m. and joined her husband and [Giuliano] at the bar. Later that night, Frank 'Serpico' Petrucci, Edward Cullen and Frank Cirillo drove to the same place. Cirillo remained in the vehicle while his companions entered the Park Tavern and approached Deborah Oliveri. They notified her that Cirillo, a former lover, was waiting in the car and wanted to speak with her, but she refused to see him. At around 1:00 a.m., John Mazzella, the bartender...was advised by a patron that someone had been shot outside."

"Although it is clear that [Giuliano] had been in the Park Tavern at or around the time of the shooting, no one saw him leave the car (and the place was crowded that night), and there was no testimony that he was carrying a weapon..."

[492:939]; Court of Appeals 6/11/85; reversed, and indictment dismissed, due to insufficiency of evidence

"Here, the inferences that could be drawn from the evidence are consistent with innocence as well as guilt, and there are logical gaps in the [prosecution's] case that cannot be bridged by the drawing of reasonable, permissible inferences from the evidence. Accordingly, we conclude that the jury's verdict was not supported by sufficient evidence."

"To convict [Giuliano] of having killed Frank Cirillo on this record, a trier of fact would have had to engage in speculation, draw unwarranted conclusions based on probabilities of low degree, and leap logical gaps in the evidence. We conclude that no rational trier of fact could have found that elements of the crime were established beyond a reasonable doubt..."

--- Grimaldi, Robert; [355:16]; 2nd Dept. 4/29/74; reversed and indictment dismissed, due to insufficient evidence "Upon [Grimaldi's] trial for the murder Conrad Greaves, the [prosecution] proved in support of their case-in-chief that at about 5:00 A.M. on March 30, 1972, [Grimaldi], a bartender employed by Greaves, walked with Graves out of the rear door of the El Capitan Motel, in which the cloud room, a bar owned by Greaves, was located. Prior to leaving the motel [Grimaldi] asked Theresa Bell, an employee of the coffee shop located in the motel, to wait for him in the motel's lobby. Instead, Bell left the motel and saw Greaves and [Grimaldi] walk out of the motel's rear door towards Greaves' car parked at the curb. Greaves unlocked the front passenger door and, as he walked in front of his car towards the driver's side, [Grimaldi] opened the front passenger door, causing the car's alarm to sound. [Grimaldi] darted towards the rear side of the car where, within sight of Bell, he crouched but did nothing else. Greaves bent over the front of the car when he reached the driver's side and turned off the alarm. Before Greaves unlocked the front passenger door, Bell saw a man, gun in hand, about 20 feet from the car. As Greaves turned off the alarm, the gunman walked to a point about 10 feet from Greaves and shot him three times, twice in the head. At the time of the shooting, another man was standing next to the gunman while a third stood nearby. Bell identified the gunman as Daniel Jacobson and the man standing next to him as Ralph Jacobson. She testified that [Grimaldi] ducked behind the rear passenger side of the car as Daniel Jacobson, gun in hand, walked toward Greaves' car.

"After the shooting, Bell ran into the motel and saw [Grimaldi] enter the motel through its rear door. [Grimaldi] approached Bell, complained that she had not remained in the motel as he had requested and told her to forget everything she had seen. Later that day, [Grimaldi] said to Bell that Greaves 'got what he had coming to him,' and, several days later, [Grimaldi] said to her that she should state to the police that he was in the motel lobby at the time Greaves was shot. Several days thereafter, [Grimaldi] said to Bell that, for the sake of Bell's boyfriend, a motel employee, [Grimaldi] hoped that Bell had told the police what he told her to say, and he hoped that 'you are going to be my alibi.' Whe interrogated by the police, [Grimaldi] said he was in the motel lobby when Greaves was slain.

"In our opinion, the [prosecution], in [its] case-in-chief, failed to prove facts from which only inferences consistent with [Grimaldi's] guilty participation in Greaves' murder could be drawn. By their proof, [Grimaldi] was not the slayer but an accomplice, yet the [prosecution] did not prove that [Grimaldi] had persuaded or forced Greaves to leave the motel in order that he might be slain. Instead, the [prosecution's] evidence inferentially proves the voluntary leaving of the motel by Greaves with [Grimaldi] and [the latter's] reactive crouching behind Greaves' car when a man, gun in hand, and apparently accompanied by accomplices, walked toward Greaves' bent figure. No proof was given by the [prosecution] that [Grimaldi] knew the Jacobsons or any other person who allegedly paticipated in Greaves' slaying. That [Grimaldi] acted in concert with the gunman and the latter's accomplices was not proved by [Grimaldi's] statements following the slaying, none of which contain an admission of guilt...and all of which are as consistent with a fear that he would be a suspect, or would be summoned as a witness, as they are consistent with a guilty state of mind."

"The case against [Grimaldi] turned solely upon the credibility of Theresa Bell who, the evidence shows, had several times said to the police that she had not seen Greaves' slaying, and had testified before the Grand Jury that [Grimaldi] was with her in the motel lobby when Greaves was shot."

--- Hale, Roy; [59:757]; 2nd Dept. 10/5/87; reversed and indictment dismissed, due to insufficient evidence

"During the early morning hours of March 2, 1983, the victim, Robert Smith, was shot and killed in the Passion Club in Queens...[T]he evidence at trial established only that [Hale] and several others argued with the victim minutes before he was shot, and that those same people were still present inside the club immediately after the shooting. No one was able to identify who it was that shot the victim. Although the evidence arguably established that [Hale] was standing nearest to the victim's body only seconds after the shot was heard, there was no evidence that the victim was shot at close range or that [Hale] was armed."

--- Ivey, J.L.; [443:452]; 4th Dept. 7/9/81; reversed, due to prosecutorial misconduct

"[There was] an armed robbery during which a gasoline station attendant, 25-year-old Alan Sturman, was shot to death. [Ivey] claimed misidentification and called four alibi witnesses who testified that they were with him at the time the crime was committed."

"The record is replete with numerous and repated acts of improper and prejudicial conduct by the prosecution which deprived [Ivey] of a fair trial...[T]he prosecutor made repeated attempts to offer into evidence composite sketches in direct contravention of the trial court's rulings and over the objections of defense counsel...It was highly improper...for the prosecutor to comment to the jury and insinuate that the court's ruling unfairly precluded him from showing such composites to him. Furthermore, we condemn the prosecutor's inflammatory and prejudicial opening statement and summation, designed to scare the jury with warnings that any mistake on his part would mean that the 'murderer goes free.' Similarly to be condemned are the prosecutor's attempts in his summation to inject sympathy for the victim...Neither can we condone the prosecutor's disparagement of [Ivey's] alibi witness by referring to their testimony as 'lies,' 'garbage,' and advising the jury tat 'We should wash that chair [the witness chair] after she [defendant's alibi witness] leaves.'...Lastly, the prosecutor clearly implied to the jury in his summation that he knew some things about the case that he wished that they knew..."

[591:969]; Court of Appeals 12/16/92; civil suit

[Ivey was awarded $590,326.50, 'plus interest']

"The second criminal trial, at which the testimony of a key new witness supported the inference that another individual was the culprit, ended in a jury verdict of acquittal on all charges."

"The new witness, Sandra Knight, had telephoned Ivey's criminal defense attorney with information possibly helpful to Ivey on the night before summations were to be made in the first trial. The record discloses that Ivey's defense counsel informed the trial prosecutor of Knight's telephone call and sought assistance in investigating Knight's story. Nothing came of this eleventh-hour overture and defense counsel did not seek an adjournment or a reopening of the case to call Knight as a defense witness.

"At the second criminal trial, Knight recounted the activities of her former boyfriend, Donald Brailsford, on the night of the crimes for which Ivey had been tried and convicted. Specifically, she testified that Brailsford left her apartment between 9:00 and 10:00 P.M., phoned her about 45 minutes later and asked her to bring a change of clothes, a coat and a hat to his cousin's home, which faces the side of the gas station where the crimes occurred. According to Knight, Brailsford was out of breath when he called her. When she arrived at his cousin's apartment, Brailsford changed his clothes. He then gave her a pizza box and the clothes he had been wearing and asked her to get her car, which he had borrowed. The car was parked behind the gas station. He told her to put the green Army jacket that was in the car underneath the back seat. Knight complied. She added that Brailsford appeared nervous while they were driving back to her apartment. Upon entering the apartment, Brailsford shaved off his moustache, took a gun out of the pizza box and cleaned it. He asked Knight for a piece of luggage in which he placed the gun, the clothes he had been wearing earlier that evening, and the Army jacket. He then left the apartment and returned 5 to 10 minutes later without the luggage. The jury returned a verdict of acquittal and Ivey was freed."

"[There were] discrepancies between the pretrial descriptions and the trial testimony of the eyewitnesses...differences between Ivey's appearance and the description of the perpetrator given by the eyewitnesses, and the testimony of four disinterested witnesses that Ivey had been totally bald on the day of the crimes, while the perpetrator was described as having long hair."

prosecutor misconduct, misconduct that is not withholding evidence, inadeaquate legal defense

--- Jackson, Edmond D.; 465 F.Supp. 177; S.D.N.Y. 8/25/78; writ granted, due to suggestive ID procedures

[Justice Bernard Dubin presided over this trial.]

"The crimes in question occurred on June 14, 1970 in the middle of the night in a crowded but well-lit bar: Harvey's Lounge on Sulphine Boulevard in Jamaica, Queens. Four witnesses who would later identify [Jackson] as the perpetrator were inside the bar, togehter with 40 to 60 other people. Joseph Webb tended the bar. Mary Phifer, Edward Byrd, and Willie Johnson were customers sitting at the bar within 10 feet of the door. At about 1:30 in the morning a man holding a gun and standing near the door announced, 'This is a stick up.' The gunman's words threw the Lounge into an uproar as the screaming customers rushed to the back of the bar. In the midst of the commotion, the gunman strode to the bar, levelled his pistol and fired once, wounding Harold Dixon, who, along with Webb, had been tending the bar. Dixon died ten days later."

"Detectives William Cash and Harold Cannon of the [NYPD] arrived at the scene shortly after the shooting took place and began an investigation. Since the gun was never recovered and no relevant fingerprints coud be found, the detectives focused their attention on persons they identified as eyewitnesses: Phifer, Johnson, Byrd and Webb. The record does not indicate whether, apart from these four who testified, any of the 40 to 60 persons in the Lounge at the time of the incident had an opportunity to observe the gunman."

"[Jackson] was identified in two successive lineups by the four eyewitnesses on July 13, 1970 at a stationhouse in Queens. How [Jackson] got there and how the eyewitnesses happened to be at the stationhouse is not entirely clear, due in major part to contradictory testimony from the detectives, Cash and Cannon, who were together throughout the day..."

"At the...hearing which was held (on the day before [Jackson's] trial) to establish whether there were any improprieties regarding the identification process, Detective Cannon testified that he and Cash 'happened to be cruising around in the neighborhood where [Jackson] lived...They were not 'working on any information that led. . .to Edmond Jackson.'... The two bumped into Jackson, and Cannon struck by a conversation. [Jackson] said he was looking for a tenant for his house in hopes of easing the mortgage payments. Cannon suggested that they go down to the stationhouse and call an acquaintance of Cannon's who might be interested in leasing...Arriving at the station, the two detectives and [Jackson] walked up the stairs and into the detective room. According to Cannon, just inside the door of the room sat Webb, the bartender who had been at the lounge on the night of the shooting and who had been cooperating with the police in the investigation. The detectives and [Jackson] walked directly ptast Webb and into a back room...Webb then called Detective Cash back into the other room and informed him that [Jackson] was the gunman...Cannon testified that Webb said that he 'came up to see if anything had developed in the case.'...Jackson, again according to Cannon, was placed under arrest and was given the Miranda warnings..."

[So, according to these 'detectives,' they just happened to be cruising around the area when they bumped into Jackson. One detective then struck up a conversation with him, in which he said he was looking for a tenant. So naturally, they tell him someone back at the station might be interested, and they all go back there. Just 'happening' to be sitting there when they all walk in is a key witness to the murder, who then ID's Jackson as the culprit. That's preposterous.]

"At trial, Cannon told a different story. He then said that he and Cash were actively seeking Jackson in relation to the investigation...But moments later, confronted with the [pretrial hearing] testimony, Cannon acknowledged that they had no information about Jackson 'with reference to a crime.'"

"An explanation for the discrepancies in Cannon's testimony may lie in the fact that Cannon had the benefit of hearing Detective Cash's [pretrial] hearing testimony before giving his trial testimony. Cash, who did not appear at the trial, testified that he and Cannon had driven to Jackson's house 'to further conduct this homicide investigation and talk with Jackson.'...Cash had previously contacted Webb and 'other people,' and had asked them 'to stand by in case they had to be called in to view a lineup...'

"On July 13th, the day of the lineup, [Edward] Byrd had stopped by Harvey's Lounge on his way home from work. He testified [at the pre-trial hearing] that Detectives Cash and Cannon picked him up at the bar and drove him to the stationhouse...On the way, Cash told Byrd that 'he found the fellow who shot Harold Dixon'... Arriving at the stationhouse, the detectives escorted Byrd into their office...Once in the office, Byrd noticed [Jackson] sitting by himself in a back room. Spotting him through the 'two-way glass,' Byrd identified Jackson as the gunman..."

"[Joseph] Webb testified that a police officer called and asked him to come to the station 'to see if I could pick out the individual who did the shooting.'...Arriving at the station, Cash met Webb and escorted him to the detective room. While walking with Cash, Webb said that he spotted and identified [Jackson], who was sitting 15-20 feet away, as the gunman.

"Willie Johnson, the third eyewitness, had two opportunities to observe [Jackson] before the lineup ceremony. Johnson arrived at the station around 3:30 or 3:45. He came in response to a message, left at his home, to the effect that the police 'had somebody down there that they wanted me to look at in a lineup.'...Johnson got to the stationhouse and went to a waiting room near the detectives' office. From that vantage point he noticed [Jackson] in an adjoining room. A short time later, Detective Cash and [Jackson] walked directly past Johnson as he sat in the waiting room...Following that, Cash told Johnson that a lineup would be held and that Johnson would be asked if he could recognize any of the suspects..."

"[E]xcept for the identifications, not a scintilla of evidence was offered at the trial to connect [Jackson] with the crime ...On the facts of this case...the reliability of the eyewitnesses' testimony could hardly be more crucial."

"I conclude that the stationhouse procedures were suggestive, and that the identification testimony of three of the four eyewitnesses was irreparably tainted thereby."

"[Jackson] called three alibi witnesses at his trial, all of whom testified that [he] was at his home on the night of June 14th." [All three reported that he was passed out from having drunk too much wine.]

589 F.2d 108; 2nd Cir. 12/19/78; above writ grant affirmed

"In the days following the shooting the four eyewitnesses were shown a large number of mugshots, and, on June 18th, Phifer stated that photographs of a John Walker and a Veryl Walker 'strongly resembled' the gunman. The three other witnesses confirmed the resemblance. Athough John Walker was in prison at the time of the shooting, the tentative identification of Veryl Walker offered an apparently promising lead, since Detectives Cash and Walker had previously been told by an informer that Veryl Walker was the Harvey's Lounge gunman. But, despite the seeming break in the case, the detectives made only sporadic attempts to find Walker and ended their search for him altogehter on July 13th, the day Edmond Jackson was brought into the investigation."

[F1: "The informer had also supplied the detectives with Veryl Walker's alleged address. The detectives made one trip to that address but did not locate Walker. Detective Cannon testified at trial that he 'had also checked with the Post Office, 'telephone records,' and people in the street in an effort to locate Walker, but conceded that the search ended when Edmond Jackson was taken into custody.]

"The dangers of convicting on identification alone are well known to those whose duty it is to prosecute crime. Yet here the prosecutor and the police were content to consider the case solved in reliance on questionable identification procedures and despite the fact that positive information regarding other suspects had been called to their attention."

[from F6: Veryl Walker was not the only alternative suspect that the police were aware of. In early February 1971, [Jackson's] assigned counsel, Leroy Kellam, brought to the attention of the [DA] information he had received that the shooting had been committed by one Anthony Carolina, then being held for another attempted holdup of a Queens bar. Kellam pointed out that Carolina, whom he visited in jail, closely resembled Jackson and he asked that a new line-up including Carolina be conducted. He also moved in the [County] Court for an order requiring such a lineup. The court denied the motion and the [DA] refused to do as requested.]

"How the detectives' investigaton came to focus on Jackson is unclear...[N]either detective explained nor does the record reveal what information led the police to suspect Jackson of the crime."

"It is difficult to understand why the [Queens DA] would have proceeded with the trial of...Jackson on such highly dubious evidence and in light of the incomplete and negligent investigation conducted by the detectives."

police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

--- Johnson, Melvin; [497:618]; Court of Appeals 11/26/85; reversed, due to evidentiary error

"[Johnson] has been convicted by a jury of felony murder and related crimes arising from the slaying of a store owner duing a robbery. The evidence against [him] included two postarrest statements he made which he contends were improperly received in evidence because he was arrested without probable cause and the statements were products of that unlawful arrest. The arrest was unlawful, [Johnson] contends, because the police acted solely upon hearsay information given them by a suspect named Bolivar Abreu whose information did not satisfy the reliability requirement..."

"On March 3, 1982, Raymundo Alcantara was shot and killed during the attempted robbery of his grocery store in the Bronx. Shortly thereafter, Joseph DiProspro told officers questioning him on an unrelated charge that Bolivar Abreu was the shooter in the Alcantara homicide. This information was passed along to Detective Ernest Wieting who questioned Abreu. At first Abreu denied any knowledge of the Alcantara homicide but he subsequently implicated DiProspro and [Johnson] by describing a conversation he witnessed between them during which they discussed the crime. Abreu also stated that he and others traded a rifle for a .38-caliber revolver (presumably the revolver used in the crime) two months earlier and he identified other robberies committed by [Johnson] and DiProspro. After obtaining this statement, Detective Wieting arrested [Johnson] and DiProspro. At the time of the arrest, [Johnson] had not been identified through a photo array or a lineup, and no other individuals had implicated him. The arrest was based solely on Abreu's statement."

[Johnson's 'confession' stated that he participated in the robbery, but DiProspro fired the gun.]

- [819] "Remanded to the trial court, Johnson pled guilty to attempted robbery...in full satisfaction of all charges."

police officer misconduct, misconduct that is not withholding evidence --- [819] " Joseph Peter Kirchgessner was convicted of murder on November 3, 1982, in Orleans County...Kirchgessner was represented at his first trial by a public defender. After he was convicted, he retained a private attorney. The new lawyer asked [820] the trial judge to throw out the conviction on the grounds that the assigned public defender had presented an inadequate defense. The trial court granted the motion. Represented by new counsel at the April 1984 retrial, Kirchgessner was acquitted of all charges."

inadequate legal defense

--- [820] "Joseph A. Klemm was convicted of murder in Dutchess County on May 15, 1984...The conviction and sentence were overturned by the Appellate Division two and one-half years later on the grounds that the trial court had failed to properly instruct the jury on the law governing identification testimony and Klemm's alibi defense. Klemm was retried and acquitted of all charges in July 1987...Klemm was granted summary judgment in the Court of Claims on his claim for unjust conviction and imprisonment."

--- Knatz, David; [428:709]; 2nd Dept. 6/16/80; reversed, due to evidentiary error [The judge who presided over this trial was ]

"[Knatz] was charged...on the theory that he had stabbed Charles Flynn causing his death and had set Flynn's apartment afire on the morning of January 23, 1977. The [prosecution's] case...consisted almost entirely of incriminating statements made by [Knatz] to his girlfriend, Theresa Lodico, and to police detectives.

"[County Court] erred in several significant respects in its rulings on the admissibility of Lodico's testimony. Over objection, Lodico was permitted to testify that on the morning of Flynn's death, [Knatz] made certain incriminating statements in his sleep, which he did not recall after he had awakened. The utterances were ambiguous in content and did not unequivocally relate to the subject crime. Furthermore, the circumstances in which the statements were purportedly made, in [his] sleep, severely detracted from their reliability, and in view of the prejudicial nature of the statements, it was error to admit them..."

[The prosecution was also improperly allowed to impeach its own witness.]

"Moreover, the admission of Lodico's Grand Jury testimony, which was essentially duplicative of her trial testimony, improperly bolstered the [prosecution's] case, particularly since the trial court failed to instruct the jury that the testimony did not constitute evidence-in-chief..."

"A further error concerning Lodico's testimony was the court's restriction of [Knatz's] cross-examination concerning Lodico's use of heroin or other drugs on the morning of Flynn's death and her use of heroin or methadone on the day in which she testified at trial. Lodico's drug use at the specific times at which her ability to perceive and recollect were most in question was a relevant issue which defense counsel should have been allowed to fully explore..."

"[Knatz] was also prejudiced by the court having improperly advised the jury that it had denied [Knatz's] motion to dismiss and by various improprieties in the prosecutor's summation. Particularly flagrant examples include the prosecutor's reference to defense counsel's failure to prove certain things which defense counsel mentioned in his opening statement, the prosecution's gross misrepresentation of events concerning the introduction of a certain tape into evidence, and the improper denigration of [Knatz], who did not testify, as the type of person who uses methadone."

- [820] "On remand, the prosecutor agreed to accept a guilty plea to attempted assault* in the first degree in satisfaction of all charges."

[* Compared to a murder charge, that's nothing. That prosecutor appears to have realized that the murder case against Knatz was nonsense. And there's also a good chance Knatz wasn't even guilty of assault, and plead to it only to bring an end to all this.] prosecutor misconduct, misconduct that is not withholding evidence

--- Lee, Lester; 474 F.Supp. 970 8/16/79; civil suit

"In March of 1972 he was arrested and beaten by certain officers. He was taken to a local police precinct, questioned about the killing of a police officer named Stroud, and charged with unlawful possession of a firearm and remanded.

"He was released on bail, but was picked up again and questioned further about the killing of Stroud and one Cooper. Thereafter he was indicted for unlawful possession of a firearm and, along with others including William Rose, for the murder of Cooper."

"[Lee] was tried four times on the Stroud indictment. Three times the jury could not agree, and on a fourth occasion the Appellate Division reversed a judgment of conviction on the ground that the conduct of the trial judge had been unfairly prejudicial. When the case was called for a fifth trial in April 1977, the trial judge dismissed the indictment. Meanwhile [Knatz] was acquitted of the Cooper homicide."

"Here [Lee's] original pleading stated that [Brooklyn DA Eugene] Gold and [ADA Thomas] Davenport not only offered what they knew to be perjured testimony but coerced a woman named Rhodes into giving that testimony against [Lee] by arresting her without cause and threatening to release her only if she agreed to testify falsely against [Lee]." 617 F.3d 320; 2nd Cir. 3/17/80; civil suit

"Lee alleged that the prosecutors had (1) induced a defense witness, Juanita Roman, to render herself unavailable to testify in return for dropping felony charges against her, (2) compelled a witness, Marguerita Rhodes, to perjure herself by arresting and incarcerating her for fifteen days without cause and threatening to 'take away' her baby, (3) coerced false testimony from Joseph Cox by imprisoning him and depriving him of methadone, (4) sought and obtained five indictments for the same crime, and (5) supervised police officers who 'planted' a pistol in Lee's possession."

[The police named in the case are Joseph 'Scooter Joe' Williams and Kenneth Kaufman. ]

prosecutor misconduct, police officer misconduct, misconduct that is not withholding evidence, knowingly permitting perjury, witness tampering or misconduct interrogating co-defendant, misconduct in interrogation of exoneree --- Lopez, Camilo; [506:299]; Court of Appeals 7/1/86; reversed, due to failure to sever, judicial misconduct, and ID issue

"On December 4, 1980, a conflagration at the Stouffer's Inn in Westchester claimed the lives of 26 people...Marin...was subsequently...found guilty by a jurty of murder...and arson...That verdict was set aside by the Trial Judge and the indictment was dismissed."

"At the close of the prosecution's case, and again at the close of the evidence, [Marin] moved for a trial error of dismissal...In effect, he argued that, because the evidence in its entirety was so weak and lacking in probative value, the Trial Judge should dismiss the case outright rather than submit it for consideration by the jury. Although the Judge expressed full agreement with the defense's position on the deficiency of the evidence, he reserved decision on the motion and permitted the jury to consider the charges.

"[T]he Trial Judge in this case, after assessing the evidence, submitted the charges to the jurors 'fully expect[ing] that the jury would dismiss the case.' Nevertheless, after some five days of deliberations, the jury returned a guilty verdict and the Judge was then called upon to decide the motion to dismiss. He ultimately granted the motion, finding the evidence legally insufficient to sustain the verdict. In doing so, he expressed the belief that the jury had been led to its determination by the trial prosecutor's summation which, although 'brilliant,' had persuaded the jurors 'to go beyond the proven facts.' Indeed, the Judge stated that, were it not dismissing the case for evidentiary insufficiency, he would have declared a mistrial based on the prosecutor's summation.

"At trial, the prosecution called many witnesses including hotel employees, persons who were attending conferences at the hotel on the day of the fire, arson investigators, scientific investigators, and firemen who responded to the scene. Notwithstanding all the testimony, however, the [prosecution] never directly connected...Marin...with the fire itself or with the means to start it and never firmly established how the Stouffer's fire had actually begun."

"Marin...was a Stouffer's employee whose duties included preparing coffee at designated 'coffee stations' for those attending meetings in the conference center...Some three weeks before the fire, he revealed to his direct supervisor, Silverio Ferreira, that he was an illegal alien. He said that he was trying to legalize his immigration status and, to that end, he asked for a supporting letter from his employer. Ferreira declined to provide the letter. He explained that Stouffer's policy required that illegal aliens be discharged from employment. Any letter from Ferreira would be an acknowledgement that he knew of Marin's legal status.

"On December 3, 1980, the day before the fire, Marin asked Ferreira if he were going to be fired. At first, Ferreira replied that he was awaiting an answer from his own supervisor. Later that day, however, Ferreira told Martin that he would have to be fired after New Year's Day. Nevertheless, Ferreira assured him that he would try to rehire him two or three months later under his true name." [He had been working under forged papers.]

"In his capacity as coffee host, Marin worked with 'handy fuel' and cans of sterno which were stocked in the Stouffer's kitchen."

"In the aftermath of the fire...Marin gave varying accounts of his own whereabouts and conduct at the times in question. The [prosecution] placed great significance on the inconsistencies in Marin's statements. For the most part, however, these inconsistencies concerned Marin's false and later recanted claims that he had courageously tried to assist people in escaping from the inferno. None of Marin's statements either directly or indirectly constituted an acknowledgement that he had set the fire."

"The prosecution's own arson expert...testified that sterno could not have caused the Stouffer's fire, and the [prosecution] never claimed otherwise."

"There is not one shred of evidence linking Marin with any gasoline or other accelerant on the day of the crime."

prosecutor misconduct, misconduct that is not withholding evidence ---