Blog Posts

The Marshall Project - Summary

Wed, 11 Jun 2025 02:43:31 +0000

In 2023 (precise date unknown), The Marshall Project released a series of reports on misconduct by New York State correctional officers. Here are some of the highlights:

'How We Investigated Abuse by Prison Guards in New York'

"The Marshall Project examined 12 years of employee discipline data and hundreds of prisoner lawsuits. To report on how New York State prison officials discipline officers they accuse of abuse, The Marshall Project examined two primary data sets. We received one through public records requests to the state corrections agency. The other we compiled based on thousands of pages of court records released by the state attorney general's office."

"For the first set of data, we asked New York's Department of Corrections and Community Supervision for its database of discipline cases it brought against employees. These records had been hidden from public view under a decades-old secrecy law which the Legislature repealed in 2020. The department gave us...files itemizing cases it filed from Jan. 1, 2010, through mid-April of 2022."

"For our second set of data, we asked the New York attorney general's office for every lawsuit it settled -- or lost -- on behalf of the corrections department since 2010."

'We Spent Two years Investigating Abuse by Prison Guards in New York. Here Are Five Takeaways'

"The state fails to fire most corrections officers it accuses of violence against prisoners or covering up abuse.

"New York's prison system has failed to fire nearly all corrections officers it accused of attacking people in their custody. And guards often work in groups to cover up assaults by lying to investigators and in official reports..."

1) New York's discipline system favors prison guards

"Over 12 years, the New York corrections department tried to fire officers or supervisors the agency accused of physically abusing prisoners or covering up midconduct in more than 290 cases. But in only 10% of those cases did the officers get fired. That's despite the agency classifying the employees as threats to the safety and security of prisons. Some of the officers retired or resigned, but the vast majority managed to keep their jobs.

"Examples include a guard whom the state tried to fire three times in three years for using excessive force; an officer who broke his baton hitting a prisoner 35 times; and guards who beat up a prisoner so badly he needed 13 staples to close gashes in his scalp.

"The guards' union contract requires any effort to fire an officer to be subject to outside arbitrators, who have final say on whether guards lose their jobs. In abuse cases, arbitrators ruled in favor of officers three-quarters of the time. Arbitrators often said the state's evidence was insufficient or found prisoners' testimony unconvincing."

2) In many cases of serious abuse, officials didn't try to discipline the officers accused

"The Marshall Project identified more than 160 lawsuits where, under a court order or settlement, the state paid damages to people who said guards abused them. Records show that the department did not try to discipline officers in 88% of those cases, including some in which prisoners were permanently injured or even killed.

"Examples include a prisoner whose account of a beating at the hands of officers was so strong, a jury awarded him $1 million; a judge called it 'the strongest excessive force case' she'd seen in her career. In another case, where a man was killed by officers after allegedly refusing to clean his cell, the state agreed to pay his family $5 million. The agency did not try to discipline the officers in either incident.

3) A culture of cover-ups among guards makes it hard to hold them accountable

"Guards often work in groups to conceal violent assaults by lying to investigators and on official reports, records show. Then the officers file charges accusing prisoners of assaulting them.

"In three-quarters of the abuse cases where managers tried to fire officers, the department also accused them of a cover-up, often by acting in concert. The department tried to discipline guards for incidents in which one or more were accused of committing abuse while others lied to hide it, bringing a case, on average, every two months over 12 years.

"In about half of roughly 160 lawsuits that we examined, prisoners complained that after violent incidents, guards retaliated against them by filing false charges of assault and sending them to solitary confinement."

4) The corrections officers' powerful union has protected this disciplinary process

"A key reason prison officials find it so hard to get rid of guards is the contract the state signed with the officers' union in 1972.* This agreement gives the final say on firing an officer to arbitrators hired by the union and the state -- a system the union successfully kept in later contracts. Only a court can overturn arbitration decisions."

[* Perhaps it is no coincidence that the Attica uprising, in which numerous prisoners as well as guards were eventually killed (almost all by the state police), happened the year before -- 1971.]

"The union has significant political influence, especially in rural communities that are home to prisons and their workers. It has protected members' jobs even as the number of people incarcerated in New York has plunged by nearly half since 2010 and the state closed two dozen prisons."

5) Our investigation captures only a fraction of prisoner abuse

"Experts say the records reviewed for this investigation probably reflect just a portion of the violence guards inflict in New York's corrections system. Many prisoners do not file complaints because they fear retaliation or not being believed. And in most of the state's 44 prisons, officers do not wear body cameras,* which sometimes help prove abuse." [* Beginning around 2018, at Clinton Correctional Facility, c.o.s as well as sergeants were regularly seen sporting body-worn cameras. But within about a year, such use dropped off precipitously. As of early 2024, they've virtually disappeared.]

'How a "Blue Wall" Inside New York State Prisons Protects Abusive Guards' (by Joseph Neff, Alysia Santo, and Tom Meagher)

"BEACON, N.Y. -- The way the prison guards described it in their paperwork, there was a minor disturbance the day they took Chad Stanbro to a dental clinic at a regional hospital.

"Stanbro, a prisoner, had been sedated but became agitated during surgery, took a swing at a dentist and kicked a correctional officer in the stomach, they wrote. The guard and a colleague had quickly restrained him and had driven him back to Fishkill Correctional Facility, where, according to the senior officer's account, Stanbro had 'reported no injuries.'

"But critical details were missing -- including that Stanbro had been paralyzed during the incident. A third officer [Kristofer Leonardo] had rushed into the clinic's operating room and had knelt on Stanbro's neck until he couldn't move, according to later court testimony. That guard had asked his colleagues to leave him out of their reports, they acknoledged at trial, and they had done so.

"Even though Stanbro's injuries were obvious -- he could not walk or move his body from the neck down -- the officer who injured him avoided discipline. Stanbro, hwoever, was accused of assault, and after he left the hospital was put in solitary confinement. In July, a federal jury awarded him $2.1 million in damages.

"Such cover-ups are commonplace across New York State's prison system, according to a Marshall Project review of thousands of pages of court documents, arbitration records and officer disciplinary data.

"At Auburn Correctional Facility, west of Syracuse, guards kicked a man, called him a racial slur and broke three of his ribs in what a judge called a 'barbaric assault.' At Elmira Correctional Facility, near the Pennsylvania border, officers beat a handcuffed man and threw him down a flight of stairs, fracturing his skull. At Clinton Correctional Facility, near the Canadian border, guards kicked and punched a handcuffed man, breaking his rib. In all three cases, the staff members filed false reports to cover up the assaults, court records showed, and faced no discipline.

"The records illustrate how cover-ups can make it difficult to hold officers accountable for using excessive force. They also reveal a typical playbook: Guards often work in groups to conceal violent assaults by lying to investigators and on official reports, and then they file charges against their victims and have them sent to solitary."

"The Marshall Project found and analyzed lawsuits involving excessive-force incidents that the state lost or settled in the decade ending in 2020...Half of the roughly 160 lawsuits complain of guards retaliating against the incarcerated people they injured. A man at Sullivan Correctional Facility said guards beat his head against the floor and smashed his face with handcuffs. At Sing Sing Correctional facility, officers fractured a man's eye socket. In both cases, corrections employees charged the men with assault and sent them to solitary. The state paid a total of $56,500 to settle the two lawsuits, but it did not discipline any of the officers involved, saying investigators could not verify the allegations."

"In March 2020, Officer Aaron Finn handcuffed a prisoner at Green Haven Correctional facility and repeatedly smashed his head into a wall and steel bars.

"A body camera worn by Finn captured the attack, which left the prisoner, Melvin Virgil, limp and unconscious. Footage from another body camera shows a sergeant repeatedly demanding, 'Who applied handcuffs?' and then 'Nobody knows nothing now?' as a group of officers stand silently.

"Finn filed six misconduct charges that day against Virgil, who went straight to solitary confinement. The guard claimed in his paperwork that he had hit Virgil once after the prisoner had smashed one of his fingers with the handcuffs. Another guard wrote that Virgil had tried to kick the officers even after he was on the ground. Two other officers involved, including the sergeant who had earlier demanded answers, filed similar reports.

"But the videos show Finn smashing Virgil's head into the wall twice before taking him to the ground and ramming his head into the steel bars four times. At the moment when the officers claimed Virgil kicked at them, the video shows him losing consciousness.

"Weeks after the assault, investigators showed the video to two officers and gave them a chance to amend their reports. They declined. Corrections officials moved to fire Finn, but did not file disciplinary charges against the other officers.

"Finn resigned a year after the attack. In an unusual turn of events, he was later arrested in connection with the assault. He pleaded guilty, and in November was sentenced to three months in federal prison. He did not respond to requests for comment.

"Virgil, who was serving a sentence for sexual abuse, robbery and assault, sued Finn and his colleagues last year. The guards have denied the allegations and asked a judge to dismiss the case.

"Another prisoner had accused Finn of a similar attack in 2015, when he said the guard handcuffed him and smashed his head into a wall. Last year, the state paid $9,500 to settle that case.

"A comprehensive look at cases like Virgil's, in which guards appear to conspire to cover up violent incidents, was not possible until recently. New York required all discipline records for prison guards and police officers to be kept secret. But the Legislature changed the law in 2020, allowing The Marshall Project to obtain thousands of discipline records detailing allegations of miscnduct inside prisons.

"The records show that even when the corrections department attempted to fire officers for excessive force or for lying about it, the agency succeeded just 10 percent of the time.

"The officers' efforts to conceal the violent episode that paralyzed Stanbro were complicated by a major factor: The incident happened in a public hospital rather than an isolated prison.

"Guards from Fishkill, where Stanbro was serving a 10-year sentence for stealing a television and violating parole, drove him to a dental clinic for prisoners in August 2018. During a procedure to treat a dislocated jaw, he became agitated, tried to pull away and knocked over a monitor, according to court records. When he regained full consciousness, he later testified, a third officer, Kristofer Leonardo, was pressing a knee to his neck as the other guards held him down. The force on Stanbro's spine paralyzed him, medical and court records show.

"Afterward, the other guards would testify, Leonardo asked them for a favor: Keep his name out of their official reports.

"'He was an officer that I respected,' Officer Nadya Palou told the jury, explaining why she went along with the request.

"After Leonardo left the hospital, a security camera in the parking lot captured Palou and a colleague lifting Stanbro's limp body into a van to drive back to Fishkill. They stopped along the way to prop him up, Palou later testified.

"Before the officers returned to Fishkill, hospital staff had already called the prison to complain about the use of force, a corrections supervisor testified.

"The guards who drove Stanbro wrote in their official reports that he had climbed into the van himself -- they did not realize there was video showing otherwise. As requested, neither mentioned Leonardo in their reports.

"In the prison infirmary, a nurse and a captain accused him of faking his injuries, he testified. It was only after the nurse repeatedly poked his feet with a needle and got no response that the staff members called for an ambulance.

"A helicopter took Stanbro to Westchester Medical Center, the same hospital where Leonardo had knelt on his spine. He spent 12 days there.

"Leonardo, who had been escorting men from a different prison to the dental clinic, did not report that he had used force on Stanbro. His supervisor at Greene Correctional facility later learned of an internal investigation and ordered the guard to fill out the required paperwork. Leonardo wrote that he wrapped Stanbro in a bear hug and helped handcuff him after Stanbro had punched a guard. In court, Leonardo denied both the assault and the request that his name be left out of the reports.

"The guards' stories fell apart at trial. In a rare concession, two officers admitted to jurors they had lied, first by omitting Leonardo from their reports and then by saying Stanbro had walked himself to the van. The dentist testified that Stanbro had bever tried to punch him or the guards.

"State officials did not try to punish Leonardo. The agency said Palou resigned while disciplinary charges were pending, and the third officer was fined $3,000. None of the officers responded to several requests for comment.

"While guards regularly suffer no consequences for using excessive force on incarcerated people, the prisoners often leave the encounters not only injured, but also facing administrative hearings that can lead to harsh penalties. "After Stanbro was discharged from the hospital, the guards accused him of assault. He was given 40 days in solitary confinement. Still paralyzed, he was allowed to leave his cell once a day for physical therapy, he later testified.

"Several lawyers, advocates and former correctional managers said it is common practice for corrections employees to beat prisoners and then charge them with assault, even when the prisoners have suffered grievous injuries as Stanbro did.

"Guards at Adirondack Correctional Facility, west of Lake Placid, beat a man and fractured his rib. And a beating by officers at Southport Correctional Facility, which closed last year, left a man with permanent damage to his shoulder and eye. In both cases employees accused the men of assaulting them -- and supervisors put the men in solitary confinement. Both prisoners got the rulings reversed on appeal. They later sued and received six-figure settlements. Two Southport officers were suspended for a year for their actions. None of the guards were fired.

"Attacks by guards are almost certainly more common than the discipline records indicate, experts said. Officers exert an enormous amount of control over prisoners' lives, which deters incarcerated people from reporting abuse, said Jennifer Scaife, executive director of the Correctional Association of New York, a nonprofit prison monitoring group. Scaife said she often hears from people who say they are being mistreated but are afraid that reporting it will cause guards to turn on them.

"'It's like, "Oh, you want to do that to us? Watch all the ways we can make your life a living hell,"' she said.

"Kevin Ryan, a former prison investigator in New York, found the cover-up culture among guards and indifference from top managers so effective at thwarting his investigations that he eventually quit.

"'At some point, it just becomes a waste of time because nobody is going to tell you the truth,' said Ryan, who was a federal customs agent for 25 years before joining the corrections system in 2015.

"Ryan pointed to the case of Roy Harriger, who was convicted in 2015 of sexual abuse of a child. Harriger said a guard at Attica Correctional Facility beat him in the back of the head with a baton, leaving him paralyzed. The assault occurred sometime after a guard had picked him up at the sergeant's office on his cell block, and before he arrived unconscious at the infirmary.

"Ryan assigned three investigators to dig through records and interview staff members.

"The officers put up a united front, saying they knew nothing or that Harriger had fallen in the shower. Crucial records were missing. About a dozen staff members refused to be interviewed by state police. Ryan said he never determined which guard attacked Harriger. No one was ever disciplined for the assault, and no criminal charges were filed.

"Harriger sued. At trial, his lawyer asked the sergeant working in his cell block and the sergeant at the infirmary which officers escorted Harriger that day. Both sergeants testified dozens of times that they didn't recall and never tried to find out.

"The judge said she was appalled: the corrections department, which 'requires the completion of paperwork on just about everything that occurs in the prison system, somehow neglected to file any paperwork related to this incident,' she wrote.

"Citing the medical records, the judge ruled in November 2020 that the Attica staff's story that Harriger had fallen in the shower was a 'fabrication.' She awarded him nearly $2.4 million. He has remained in a wheelchair since the attack and can't straighten the fingers on his right hand, which contract like claws and dig into the flesh of his palm, according to court records.

"Such assaults and cover-ups are crimes, Ryan said, and his office referred more than a dozen cases to the State Police and [FBI]. Those investigations almost never resulted in criminal charges against correctional officers.

"The best way to get officers to break their code of silence, Ryan said, would be to pressure them under oath in a federal grand jury, where deceit results in criminal charges like perjury or lying to an FBI agent.

"'Then you separate the heard,' Ryan said.

"Four years after the neck injury, Stanbro was paroled, but he has struggled since he moved back to live with his family in Elmira. After surgery and months of physical therapy, he can now use his arms and hands. He can walk with a limp and is able to lift only light objects. Nerve pain regularly shoots down his back through his triceps to his fingertips, according to testimony and court records.

"'I used to be a big, strong kid,' he said in an interview.

"Stanbro had dealt with mental health problems and substance abuse before he was imprisoned; since the assault, anger and depression have consumed him, he said. He landed in jail in February after suffering a psychotic episode.

"He has said he is troubled that none of the guards were prosecuted for the assault and cover-up. He was interviewed by the State Police and the Westchester [DA's] office, which closed the investigation without filing charges.

"Stanbro said he is reluctant to wish incarceration on anyone, but he believes that the three officers should go to prison.

"'It's the only thing that anybody seems to be scared of,' he said. 'This is not revenge I seek; this is change.'"

'In New York Prisons, Guards Who Brutalize Prisoners Rarely Get Fired'

"Shattered teeth. Punctured lungs. Broken bones. Over a dozen years, New York State officials have documented the results of attacks by hundreds of prison guards on the people in their custody.

"But when the state corrections department has tried to use this evidence to fire guards, it has failed 90% of the time, an investigation by The Marshall Project has found.

"The review of prison disciplinary records dating to 2010 found more than 290 cases in which the New York State Department of Corrections and Community Supervision tried to fire officers or supervisors it said physically abused prisoners or covered up mistreatment that ranged from group beatings to withholding food. The agency considered these employees a threat to the safety and security of prisons.

"Yet officers were ousted in just 28 cases.* The state tried to fire one guard for using excessive force in three separate incidents within three years -- and failed each time. He remains on the state prisons' payroll."

[* That's 28 firings over 12 years; or -- on average -- a bit more than 2 per year. Out of a total 16,000 officers, just .175% -- or 1 out of every 571 -- were fired for misconduct.]

"An officer who broke his baton hitting a prisoner 35 times, even after the man was handcuffed, was not fired. Neither were the guards who beat a prisoner at Attica Correctional Facility so badly that he needed 13 staples to close gashes in his scalp. Nor were the officers who battered a man with mental illness, injuring him from face to groin. The man hanged himself the next day.

"In dozens of documented cases involving severe injuries of prisoners, including three deaths, the agency did not even try to discipline officers, state records show."

"The abuse by guards has not just left prisoners with lasting injuries. It has also exposed the corrections department to liability in legal cases. The state paid more than $18 million as a result of lawsuits alleging excessive force..."

"The case of Harold Scott shows how corrections department officials can struggle to fire guards they believe have brutalized prisoners.

"In June 2019, Scott had just begun a 90-day sentence at the Willard Drug Treatment Campus, in the Finger Lakes region, for violating parole after serving time for burglary and assault.

"He got into a dispute with a guard over the number of rubber bands in his dreadlocks. When the officer, Timothy Downs, slapped him in the face, Scott said, he hit the guard back. What followed was a 'criminal street gang-style beating,' investigators would later write, with guards punching and kicking Scott even after his hands had been cuffed behind his back.

"Doctors at a nearby hospital determined that Scott had life-threatening injuries, including a punctured lung, and put him into intensive care..."

"Guards' written reports said they stopped using force as soon as they handcuffed Scott. Investigators concluded that the reports were falsified and that the officers 'conspired and created a false narrative to cover up the beating,' noting that the documents were 'identical in important sections.'

"Officials decided to fire the officers..."

"The union challenged the firings in front of separate arbitrators..."

"In all the cases, arbitrators agreed that Scott had been attacked but said the evidence did not prove who did it. They did not find any guards responsible for the assault but ruled that three covered it up; those officers were suspended for at least six months. A fourth officer had previously agreed to a suspension.

"After his beating, Scott was accused of assault and violent conduct, and kept for months in solitary confinement. The incident left him with lasting injuries, he said in an interview. Scott, 44, has difficulty breathing and speaks softly, he said, because it hurts to talk.

"In December 2021, Scott filed a lawsuit against the officers he said beat him. In a voice as quiet as a whisper, he said, 'I want to be heard.'"

"The union has suceeded in protecting members' jobs even as the number of people incarcerated has plunged by nearly half since 2010 and the state shut two dozen prisons. The number of officers has fallen about 22%, leaving the state with about one guard for every two prisoners, among the highest staffing ratios in the country."

"When Karl Taylor, a prisoner at Sullivan Correctional Facility, died in 2015, his family sued, alleging guards had beaten him for refusing to leave his cell. The state settled during the trial for $5 million and agreed to install cameras at the prison, which is near Monticello...But the department did not file disciplinary charges against any of the officers involved. The agency noted that a grand jury did not indict the guards."

"The attack that prompted Nick Magalios to file his lawsuit began when officers at Fishkill Correctional Facility...yelled at him for hugging and kissing his wife hello during a visit, which prison rules allowed.

"Afterward, Officer Matthew Peralta, who had reprimanded Magalios, knocked him on the floor and kicked and punched him as another guard [Timothy Bailey] held him down and a third officer watched, according to testimony in the civil trial.

"Photos of Magalios taken that day, in September 2017, showed bruises on his back and knees. He said he needed surgery to fix a shoulder injured in the attack. The corrections department opened an investigation but, citing insufficient evidence, never filed disciplinary charges against the officers. They still work at Fishkill."

"State lawyers called Magalios's allegations 'a fiction.' Peralta and another guard [Bailey] testified that they had never interacted with Magalios, who was imprisoned in 2014 for burglary, and denied using any force.

"A federal jury awarded Magalios $1 million in 2021. Judge Cathy Seibel reduced it to $500,000 -- closer to previous jury verdicts for prison abuse in that court district. Both sides have appealed.

"Seibel wrote in an order that the officers lied repeatedly, and she called Peralta's testimony 'laughable.' She described the lawsuit as 'one of the strongest cases of excessive force I have seen in my years on the bench.'

"She urged corrections officials to deem the assault on Magalios 'intentional wrongdoing' to force the officers to pay damages themselves.

"'I cannot think of a more effective tool for deterring future misconduct,' the judge wrote. It did not happen. The Marshall Project found only two excessive force lawsuits in which officers had to contribute some of their own money; taypayers were on the hook for the rest.

"Magalios, who is now out of prison and runs a property management company, said in an intervew that he appreciated the jury's ruling in his favor but was frustrated that no guards were punished.

"'You can commit gang assault on an inmate,' he said, 'and there's no repercussions.'"

[Except, perhaps, public shaming.]

Mark Prentice - Mistaken ID / Perjury / Witness Tampering

Wed, 11 Jun 2025 02:38:17 +0000

Prentice, Mark; robbery; NRE: plea, mistaken witness identification, perjury/false accusation, false/misleading forensic evidence, police officer misconduct, forensic analyst misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, perjury by official

Suggestibility issues

[572:406]; 3rd Dept. 7/11/91; affirmed

"After the victim of the robbery had testified, [Prentice] attempted to plead guilty...County Court and the [DA] were willing to accept the plea provided [Prentice] admitted the facts constituting that offense. When [he] refused to admit the particulars of the crime, County Court refused to accept the plea. The trial continued and after nine more witnesses had testified, but before the prosecution had rested, [Prentice] entered a plea of guilty to the entire indictment.

"We have examined [Prentice's] claim that the lineup procedure was improperly suggestive and find no merit in such contention. The victim's identification was positive and based on the view that the victim had of [Prentice] [???] in broad daylight when the crimes were committed."

"[C]onsidering [Prentice's] vicious, unprovoked attack of an 81-year-old man who was attempting to get [him] a glass of water that he had requested, the sentences imposed were fully justified..."

[617:570]; 3rd Dept. 10/20/94; granted motion to vacate second conviction (following reversal of first conviction -- which could not be found on Westlaw) due to county court's denial of subpoena for state police investigator who'd fabricated fingerprint evidence against Prentice.

"[Prentice] brought a...motion to vacate the judgment on the ground that State Police Investigator David Harding manufactured fingerprint evidence against [him]. County Court granted the motion...[Prentice was subsequently re-tried, and re-convicted.]

"[Prentice] contends that he was denied his constitutional right to present a defense. We agree. The gravamen of [his] defense was that the State Police fabricated evidence and manipulated witnesses in order to wrongfully obtain a conviction. In support of that defense, [Prentice] moved for an order compelling the production of Harding as a witness...[Prentice] submitted the affidavit of Harding which [said]...that '[o]ther members of the New York State Police participating in the investigation...knew of, and participated in, the fabrication of evidence and the presentation of false evidence against [Prentice].' ...Counsel for [Prentice] submitted a letter from the Special Prosecutor who prosecuted Harding, indicating that Harding had accused the State Police Investigator in charge of [Prentice's] investigation, Gary Allen, of complicity in the fabrication of evidence against [Prentice] in an affidavit of an accomplice who alleged that the same investigator coerced him into implicating [Prentice]."

[At a third trial in 1995, Prentice was acquitted.]

from NRE synopsis (by Maurice Possley):

"On August 30, 1988, 81-year-old Lawrence Meeker, Sr. was found beaten and robbed in his home in Enfield..."

"Two days later, New York State Police arrested 27-year-old Mark Prentice, who lived nearby. Police said that two of Prentice's friends, one of whom was the victim's grandson, reported that on the night before the victim was attacked, they were drinking beer with Prentice in the victim's shed, and that Prentice told them he planned to rob Meeker.

"Trooper David Harding reported that he searched the shed and found an empty beer bottle.

"Prentice denied any involvement in the crime. On September 10, 1988, Meeker, although still hospitalized, had recovered from a serious head wound sufficiently to be interviewed by police. He provided a description of his attacker that resembled Prentice. He subsequently identified Prentice in a photographic lineup.

"Ten days later, Trooper Harding reported that he had found a fingerprint matching Prentice on the sink in Meeker's kitchen. In addition, Harding said Prentice's fingerprint was on the beer bottle found in Meeker's shed.

"Prentice went on trial in Tompkins County...in February 1989. Meeker identified Prentice as his attacker. Harding testified that his fingerprint analysis placed Prentice in Meeker's shed and home. After this testimony, Prentice decided to plead guilty to two counts each of first-degree assault, first-degree robbery and first-degree burglary. He was sentenced to 12-1/2 to 25 years in prison.

"In 1992, the U.S. Department of Justice began investigating claims that New York State Police troopers, including Harding, had falsified fingerprint evidence. In December 1992, Harding pled guilty to perjury and admitted planting evidence in Prentice's and other cases. He was sentenced to 4-1/2 years in prison.

"Harding admitted that he retrieved a bag of empty beer bottles from Prentice's garage during a search for items taken from Meeker's home. Harding said he took photographs of fingerprints on those bottles. He said that he falsely claimed that one of the prints came from a beer bottle that he found in Meeker's shed. Harding also admitted that he falsely claimed that another photograph of one of the prints was on the kitchen sink in Meeker's home.

"The bag of beer bottles -- which had never been used during the prosecution of Prentice's case -- was discovered in an evidence vault. An FBI analysis of the photograph that Harding said he took of the fingerprint found on the sink showed the partial image of a Labatt's beer label -- the brand of beer in the bottles taken from Prentice's garage.

"Based on the disclosure, Prentice filed a motion to vacate his conviction. In February 1993, a judge granted the motion and dismissed the indictment, but allowed the prosecution to seek another indictment. In April 1993, a grand jury indicted Prentice on charges of burglary and assault -- without the fingerprint evidence.

"In July, 1993, Prentice went on trial a second time. At this trial, Prentice's lawyer asked the judge to issue a subpoena for Harding to testify for the defense. Prentice's lawyer said Harding would testify only if subpoenaed. In support of his motion, the lawyer submitted an affidavit from Harding in which he said that other members of the state police involved in the investigation of the assault and robbery of Meeker knew about the fabrication of the fingerprint evidence.

"The affidavit said that Harding would testify that his supervisor knew of the fingerprint fraud. Prentice's lawyer submitted an affidavit of the prosecutor who prosecuted Harding's case, confirming that Harding had accused his supervisor of complicity in the fingerprint fraud. Also, Prentice's lawyer presented an affidavit from one of Prentice's friends, who claimed that Harding had coerced him to implicate Prentice in the crime.

"The trial judge declined to issue the subpoena, and Prentice was convicted of first-degree burglary and first-degree assault. He was again sentenced to 12-1/2 to 25 years in prison.

"In October 1994, the Appellate Division...reversed Prentice's conviction and ordered a new trial. The appeals court held that Prentice had been denied his constitutional right to a defense -- specifically, evidence that the State Police fabricated evidence and manipulated witnesses.

"Prentice later sought compensation from the New York Court of Claims, but his claim was denied.

"Harding and four other State Police troopers were convicted of fabricating and planting evidence and all were sent to prison.

"Nelson Roth, who was appointed special prosecutor to investigate the scandal, ultimately issued a report to Gov. George Pataki based on an examination of thousands of cases handled by Harding and the others. Evidence was tampered with in at least 30 cases, the report said.

"Some of the defendants, after obtaining new trials, pled guilty and were released. Charges were dismissed for another defendant, Shirley Kinge, who had been wrongly convicted of helping her son to burn down a house to cover up her son's murder of a man, his wife, and their two children. In that case, Harding admitted that he planted one of Shirley Kinge's fingerprints on a gasoline can found at the scene of the fire.

"In December 1994, after evidence showed that State Police Lt. Craig Harvey had taken a print from one pane of glass in one burglary and planted it on a pane of glass in another burglary, the Broome County [DA's] Office dismissed the burglary conviction of William Labolt Jr. involving the planted fingerprint."

[All emphases added unless otherwise noted.]

Racky Ramchair - Mistaken Identity / Prosecutor Misconduct.

Wed, 11 Jun 2025 02:15:55 +0000

Ramchair, Racky; robbery; NRE: mistaken witness identification, prosecutor misconduct, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

671 F.Supp.2d 365; E.D.N.Y. 4/4/08; writ granted, due to ineffective assistance of counsel

"Ramchair's robbery conviction rested on a vigorously disputed one-witness identification of him as one of two robbers.

"The victim, Olek, had only a limited opportunity to observe the two robbers. They spent almost all of the approximately 15 minutes at issue in the back of Olek's cab, at night, while he was driving. Though the second perpetrator -- the one Olek described as a Guyanese Indian -- climbed into the seat after the first perpetrator wrapped his arm around Olek's head from behind and held a gun to his head, Olek promptly struggled free and exited the cab.

"The lineup was seven weeks later. Despite the time available to prepare a fair line-up, Ramchair was placed in one that day that was suggestive in the most aggravated way; i.e., Olek (himself Guyanese) had said the Guyanese Indian ethnicity of the second perpetrator was an 'important characteristic,' yet Ramchair was the only Guyanese Indian in the lineup.

"The unnecessary suggestiveness was aggravated by a bizarre 'carbon rub'; carbon paper was used to smudge a least two of the fillers' faces so they'd look like they had facial hair. That technique, which would be laughable but for the risk it creates of incorrect identifications, is especially indefensible where there was so much time to round up some fillers with real facial hair.

"It was crystal clear at each of the first two trials that the suggestive line-up, and the unreliable identification it produced, lay at the heart of the defense.

"The prosecutor pulled a dirty trick at the third trial. For the first time, she presented as evidence against Ramchair, Latimer's [Ramchair's lawyer] presence at the line-up and his failure to object to it at the time. That surprise tactic made Latimer an essential witness to the central factual dispute in the case: whether or not Olek's identification of Ramchair as the Guyanese Indian perpetrator [was] the result of a suggestive line-up."

"Not content with using Latimer's conduct as key evidence against Ramchair, the prosecutor capped off her case with outrageous and prejudicial accusations that Latimer was a racist. Though it was entirely appropriate for Latimer to contend that Ramchair was identified in the line-up only because he was the only Guyanese Indian in it, the prosecutor twisted that argument into accusations that Latimer believed 'all black people look alike...That's what he is saying.' She persisted in these egregious remarks, and in her claim that Latimer was racially 'insulting' the jury, even though the trial court sustained objections to them."

[Likewise, in Nickel's case, when his attorney objected to the prosecutor's use of certain terms, and the judge instructed the latter to 'refrain' from doing so, he kept at it anyway, with impunity. (See Propensity/Who Cares? section of this site.)]

[Though the present case does not name this miscreant prosecutor, an earlier one does -- albeit rather inadvertently, and only partially: Ms. Leopold. ]

"After an unexplained five-year delay, Ramchair's appellate counsel filed a brief that raised the wrong argument in response to the prosecutor's dirty trick. Counsel argued that it was error to preclude Latimer from testifying on behalf of his client at trial. But since the advocate-witness rule prohibits a lawyer from being both an advocate and a witness on a significant issue in the same jury trial...it was not error to keep Latimer off the witness stand. The error was the denial of his alternative motion for a mistrial... The failure to raise that claim on appeal constituted ineffective assistance of appellate counsel." [Last emphasis original.]

[In 2010, this same court ruled that the state's failure to comply with issue of conditional writ precluded retrial.]

from NRE synopsis (by Maurice Possley):

"At 11:30 p.m. on April 30, 1995, 35-year-old taxi driver Austin Olek picked up two men who hailed him in the rain and agreed to take them to 130th Street and Rockaway Boulevard in Queens..."

"On the way, the man sitting behind the front passenger seat asked Olek where he was from. Olek said he was from Africa and the passenger volunteered that he had been born in Guyana.

"When the taxi arrived at the destination, the man seated behind Olek put his left arm around Olek's neck in a chokehold and held a gun in his right hand to Olek's head. The man on the passenger side vaulted over the seat, grabbed $40 that was on the seat and $100 that was in the glove compartment. Meanwhile, Olek managed to break free of the other man's grip, and in the process exited the car. The two robbers fled in Olek's cab.

"Olek called police and described the man who had the gun as a black man and the passenger as a Guyanese man. Olek found the car parked in the neighborhood a few days later, but he did not call police, so no fingerprints were ever lifted from the vehicle.

"In May 1995, two men robbed a store in the Bronx and the victim said the robbers were a black man and an Indian man. Detectives showed photographs to the storeowner and he selected the photograph of 22-year-old Racky Ramchair, a native of Guyana of South Asian ancestry who had prior convictions for car theft and robbery, as one of the two robbers.

"Detective Robert Winnick then created a photographic lineup that included Ramchair and five other men, using photographs that Winnick said came from a box at the police station that was labeled 'Male Guyanese.' The five other men appeared to be African with dark skin, while Ramchair had lighter skin. Because some of the men had different hair, Winnick whited out the tops of their heads. Olek viewed the photographic lineup and identified Ramchair as the robber who said he was Guyanese.

"In June 1995, Winnick held a live lineup that included Ramchair and five other men -- three of whom were Hispanic and one of who was black.* All five were forced to wear backwards baseball caps to cover their hair and two of them were forced to run black carbon paper over their faces to give them the appearance of facial hair because Ramchair had a beard. Olek again identified Ramchair. The man Olek said had a gun was never found."

[* Thus, none of the lineup fillers were the same race as Ramchair. That's following a photo arrray in which Ramchair was the only person with lighter skin.]

"Ramchair went on trial in Queens County...in May 1996 on charges of first and second-degree robbery. Winnick testified about the photographic and live lineups, and told the jury that Ramchair's attorney, Jonathan Latimer, was present for the live lineup. Latimer contended that the live lineup was unduly suggestive because Ramchair was the only Guyanese man in it.

"The trial ended in a mistrial shortly thereafter because Ramchair was attacked in jail on Rikers Island and could not come to court.

"Ramchair went on trial a second time in June 1996. Winnick again testified about the lineup and at this trial, he said he could not recall if defense attorney Latimer was present. At the conclusion of the trial, the jury deliberated for a day and was sequestered in a hotel for the night when no verdict was reached. On the following day, one of the jurors suffered a heart attack and was hospitalized. Because the alternate jurors had been dismissed a day earlier, the trial judge declared a second mistrial.

"Ramchair went on trial for a third time in February 1997. This trial was virtually a replay of the prior trials until the moment when the prosecutor asked Detective Winnick if defense attorney Latimer had been present at the live lineup. After Winnick said that Latimer was present,* the prosecutor asked if Latimer had objected to the manner in which the lineup was performed. Winnick said Latimer had not objected."

[* So, at the first trial, in May of 1996, Winnick says Latimer was present. At the second trial, just a month later, Winnick says he can't recall. But at the third trial, held some eight months after that, Winnick does remember that Latimer was at the lineup? It seems likely the prosecutor -- Ms. Leopold -- had something to do with this.]

"Latimer objected to the question and argued (outside the presence of the jury) that the prosecutor's question was improper and the answer was prejudicial because it suggested that Latimer believed the lineup was proper since he did not object. In fact, Latimer told the judge, he believed it would be futile to object and that the best defense was to attack the lineup at trial.

"Latimer asked for a mistrial, saying the prosecutor and detective had sandbagged him. He argued that the only way he could counter Winnick's testimony was if he took the witness stand himself, but that would mean he could no longer be Ramchair's trial lawyer under attorney ethics rules. The motion for mistrial was denied. During closing argument, the prosecutor specifically told the jury that Latimer must have believed the lineup was proper because he had been present during the lineup and had not objected.

"On April 2, 1997, Ramchair was convicted of both counts of robbery. By that time, Ramchair had pled guilty to the other robbery in the Bronx and was sentenced to six to 12 years in prison. He was sentenced to 10 to 20 years for the Olek robbery and the sentence was to be served after he completed his sentence in the Bronx case.

"Ramchair's state appeals were not heard for five years and ultimately were denied. In September 2004, Ramchair filed a four-page hand-written federal petition for a writ of habeas corpus, arguing that his state appellate lawyer had provided inadequate legal assistance by failing to argue on appeal that the trial judge had erred in not declaring a mistrial at the third trial. U.S. District Court Judge John Gleeson appointed a lawyer to represent Ramchair.

"In October 2005, Judge Gleeson concluded that Ramchair's appellate lawyer should have raised the mistrial claim on appeal. The judge ruled, 'In my view, the prosecutor's conduct was both unfair and prejudicial to Ramchair. Once the prosecutor implied to the jury that Latimer had a different view of the line-up's fairness at the time it occurred than the one he expressed at trial, Ramchair needed Latimer as a witness to dispel that false implication. Because, in the circumstances, it would have been untenable to permit Latimer to act as both a key defense witness and the defense attorney, his motion for a mistrial should have been granted.' The judge listed eight separate reasons that compelled the granting of a mistrial.

"However, Gleeson also ruled that because that claim had not been raised in Ramchair's state appeal, Ramchair was required to go back to state court and raise the issue there.

"Despite the detailed ruling by Gleeson, the Appellate Division...denied Ramchair's state appeal on the mistrial issue in March 2006. The New York Court of Appeals agreed to review the Appellate Division's decision and in March 2007, concurred, again denying Ramchair's appeal.

"Ramchair then returned to federal court and renewed the argument before Judge Gleeson. In April 2008, Gleeson issued the writ on the ground that Ramchair's appellate lawyer failed to argue that a mistrial should have been granted in the third trial.

"The state appealed Judge Gleeson's decision and in July 2009, the Second Circuit...vacated the ruling and sent the case back to Gleeson for a hearing because during all the proceedings to that date, Ramchair's appellate lawyer had never been called to testify.

"Gleeson held the hearing, heard the testimony and again issued the writ. In the decision, Gleeson noted, 'Ramchair was present in my courtroom at the hearing. Observing him personally for the first time placed in even clearer relief the unfairness of the line-up, and the fallacy of the prosecutor's claim. . .that only skin tone, and not ethnicity, matters in determining whether a line-up is suggestive.'

"Judge Gleeson noted that Ramchair, a Guyanese Indian, appeared South Asian.

"'The fact that the perpetrator had such physical characteristics was important to the victim,' the judge wrote. 'Thus, it was hardly surprising (and not very probative) when the victim selected Ramchair from a line-up in which he was the only person who appeared South Asian. The prosecutor's argument that it did not matter that the fillers in the line-up were three Hispanics and an African-American, so long as their complexion was comparable to Ramchair's, was frivolous.'

"Gleeson added, 'Observing Ramchair in my courtroom helped me appreciate more fully why the prosecutor needed defense counsel's imprimatur on the line-up at trial. The prosecution's case hinged entirely on a vigorously-disputed one-witness identification. . .Even putting aside the ridiculous fact that at least two of the fillers' faces were smudged with carbon paper, it was obvious that none of them was South Asian. What could be a more effective answer to that glaring weakness in the prosecution's case than to lead the jury to believe that defense counsel himself had approved the line-up as fair by not objecting to it at the time?'

"The state appealed again and in 2010, the Second Circuit...upheld the writ, conditional upon the state deciding within 45 days whether to retry or release Ramchair.

"On July 10, 2010, after the state had not elected to retry the case or seek further appeals, Judge Gleeson issued the writ unconditionally, Ramchair's convictions were vacated, the charges were dismissed, and Ramchair was released."

[All emphases added unless otherwise noted.]

Ruddy Quezada - Perjury / False Accusation / Police Misconduct

Wed, 11 Jun 2025 02:06:44 +0000

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

[631:59]; 2nd Dept. 8/28/95; affirmed

"On the evening of October 19, 1991, [Quezada] [???] pointed a gun out of the passenger-side window of an automobile, and opened fire on a group of people which included two government informants. Although the informants were not injured, one of the shots fired...struck and killed the victim, Jose Rosado.

"[At trial, there was] testimony regarding [Quezada's] involvement in the sale of narcotics and his confrontation with the two government informants a few hours before the murder."

[847:898]; Kings Cty. Ct. 7/10/07; motion to vacate denied

"[Quezada's] conviction rests primarily on the testimony of a single eyewitness...During the evening of October 19, 1991, the eyewitness, Sixto Salcedo, was in the company of a friend, John Reyes...when Reyes became engaged in an argument with [Quezada], who accused them of being informants for the Federal Drug Enforcement Agency. During the course of the argument [Quezada] punched Reyes, who in turn drew his handgun and fired a passing shot at [Quezada]. Salcedo and Reyes fled.

"About thirty minutes later, Salcedo and Reyes were standing in front of a video store...when they saw pass a brown livery cab driven by [Quezada]. Within about ten minutes, at approximately 9 p.m., a black car with darkened headlamps approached the same intersection, turning left...A man leaned out of the passenger window and fired a hail of bullets from what sounded like an automatic weapon. Having crossed the street to go to a bodega, Salcedo and Reyes watched as the man in the black car fired into a group of people, where they had been standing. They fled and found out later that a bystander, Jose Rosado, had been killed.

"The following day, after another incident, where according to Salcedo [Quezada] had fired shots from his apartment when Reyes had gone to visit [Quezada], both Salcedo and Reyes went to the police and made statements. Both men identified [Quezada] as the drive-by shooter. In his statement Reyes recounted that upon hearing gun shots from the passing car he heard Salcedo yell, 'That's Ruddy shooting, Run!' Salcedo stated that he saw [Quezada] lean out of the passenger side window and fire what he believed to be an Uzi, and that he believed that he had been the target of the shooting because Rosado was dressed in a similar fashion to the way he had been dressed.

"Salcedo was the only eyewitness who testified at trial because Reyes had been murdered a few months earlier.

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

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

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

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

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

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

624 F.3d 514; 2nd Cir. 10/21/10; motion to allow second federal writ granted

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

from NRE synopsis (by Maurice Possley):

"On October 19, 1991, 29-year-old Jose Rosado was killed in a drive-by shooting as he stood on the street in Brooklyn...The police believed that Rosado was an innocent bystander and that the shots were intended for a reputed drug dealer named John Reyes.

"Two days later, police arrested 29-year-old Ruddy Quezada and charged him with Rosado's murder. Police said that the shooting was in retaliation for a shooting earlier in the day when Reyes shot at and missed Quezada in a dispute over drugs. Sixto Salcedo, an associate of Reyes, witnessed the shooting. Reyes and Salcedo identified Quezada as a passenger in the car who fired the shots aimed at them that struck Rosado instead.

"By the time Quezada went to trial in Kings County...in March 1993, Reyes had been murdered and Salcedo did not want to testify. The Brooklyn [DA's] Office, pursuant to a long-standing and secret policy, arrested Salcedo on a material witness warrant and kept him locked in a hotel room until the trial. He testified and identified Quezada as the gunman.

"At trial the prosecution repeatedly stressed that Salcedo had 'come forward' voluntarily to identify Quezada and did not disclose that Salcedo had testified only after he was arrested and imprisoned in a hotel room.

"On March 15, 1993, Quezada was convicted of second-degree murder. He was sentenced to 25 years to life in prison.

"Quezada's appeals were unsuccessful. Meanwhile, Salcedo was deported to his native Dominican Republic after he was convicted of unrelated crimes. While there, he confided to a missionary that he had initially falsely identified Quezada because Quezada had been telling people in the neighborhood that Salcedo and Reyes were police informants. As the trial approached, he did not want to testify, but after he was arrested by police and kept isolated in the hotel, he felt he had no choice. Salcedo recanted -- in a sworn affidavit and in a videotaped statement -- and said he had been locked in a hotel room until he testified.

"In 2001, Quezada filed a motion for a new trial based on Salcedo's recantation. In 2002, federal prosecutors disclosed that during an unrelated investigation, Wilfredo Caraballo, a prisoner serving multiple life sentences for contract killings, said that he -- not Quezada -- shot Rosado. However, Caraballo also said that Quezada had hired him to shoot Reyes and Salcedo.

"Ultimately, Caraballo gave several statements to state and federal prosecutors admitting that he shot Rosado. However, when a hearing was held on Quezada's motion for a new trial, Caraballo refused to testify and asserted his Fifth Amendment protection against self-incrimination. The prosecution said Salcedo's recantation was unreliable because there was no evidence that he had been locked in a hotel room before his testimony.

"In 2015, the Brooklyn [DA's] Conviction Review Unit, which had been re-examining the case for more than a year, discovered that Marie-Claude Wrenn, the prosecutor who handled the post-conviction proceedings, knew in 2004 that Salcedo was telling the truth about being locked up in a hotel room.

"In May 2015, Wrenn testified that she had discovered a material witness warrant for Salcedo -- confirming Salcedo's account -- in 2011. She had testified years earlier during Quezada's post-conviction proceedings that there was no such warrant.

"The Conviction Review Unit conducted an extensive review of Wrenn's e-mails, going back to 2003. They found a December 2004 e-mail from Wrenn to a supervisor saying; 'I found a material-witness order for Salcedo, who was too afraid to testify, in the files. I put it on your desk.'

"On August 31, 2015, Brooklyn [DA] Ken Thompson asked that Quezada's conviction be vacated and then dismissed the charge.

"'Due to what we have uncovered, we will not continue with the hearing because to do so would be unfair to Mr. Quezada,' Thompson said in a statement. 'Since we can't try this case, we will no longer object to his release.'

"Quezada, who had been incarcerated for nearly 24 years, was released immediately. A spokesman for Thompson said that Wrenn was leaving her job as a prosecutor. In 2016, Quezada filed a claim for compensation in the New York Court of Claims, which he settled for $4.5 million in 2017. He also filed a federal civil rights lawsuit against the city of New York which was settled in December 2017 for $9.5 million."

[All emphases added unless otherwise noted.]

Todd Lumpkins - Police Misconduct / Withheld Evidence

Wed, 11 Jun 2025 01:54:36 +0000

Lumpkins, Todd; murder; NRE: police officer misconduct, withheld exculpatory evidence

[533:792]; Kings Cty. Ct. 10/19/88; motion to vacate granted , due to Brady violation

"On April 11, 1986, Anthony Joseph, a dealer in cocaine, was killed by three gunshot wounds to the head, in the living room of his apartment in Brooklyn, as his wife hid in a closet in the adjoining bedroom. While the police were knocking on the apartment door she jumped out of the window, breaking both legs. [Lumpkins] was arrested for the crime on April 23.

"At the trial Mrs. Joseph testified that when the deceased answered the intercom on April 11, a voice responded that it was 'Todd,' and she recognized the voice to be that of 'Todd' [Lumpkins]. She also recognized [Lumpkins'] voice inside the apartment, although she did not see him. Mrs. Joseph testified about his previous visits to the apartment and her familiarity with his voice. On cross-examination, Mrs. Joseph insisted that the voice on the intercom identified by the visitor was Todd, not Ty or Tide, but she admitted having told the police on April 11 and April 13 that the voice had said Tide.

"The Crime Scene Unit dusted the scene for fingerprints; one print recovered from the chair [in the living room, against which the deceased was lying] matched [Lumpkins'] fingerprint.

"[Emanuel] Bowser[, a neighbor in the building,] testified as a defense witness that at the time of the incident he had seen two men entering the building. He described them as black males, one 5'11" tall, the other 6'1" tall, each wearing a mustache and a goatee, one wearing an earring, and at least one with a 'Jersey' haircut. [Neither description fit Lumpkins.] No one showed Bowser photographs. The defense also called several alibi witnesses.

"On the eve of sentencing, a man named Quan Jackson telephoned [Lumpkins'] lawyer and claimed that [Lumpkins] was innocent and that in July, 1986, he had called the police Crime Stoppers Unit to tell them that two other men had killed Joseph.

"[U]nknown to the [DA], [Lumpkins'] lawyer, and the court, on July 9, 1986, Detective Andrew Ware of the Crime Stoppers Unit had received an anonymous telephone call relating to this case...This information was then relayed to Detective [Rudolph] Stubbs, and on July 11 he...filled out a police report regarding this information, 'DD5 #17.'

"The DD5 #17 said that the caller had reported that Lumpkins did not murder Joseph and that Lincoln Davis and Ronnie McNeil were the murderers. He described Davis as a male black about 24-25 years old, 6'0"-6'1", 160 pounds, dark skin, with a moustache and goatee, with Jersey haircut, and McNeil, also known as 'Clyde,' as a male black, 25-26, 6'0", dark skin, with a moustache and goatee."

[Bowser's above description of the two visitors he had seen was virtually identical: two black males, between 5'11" and 6'1" tall, both with moustaches and goatees, one of them with a 'Jersey' haircut.]

"He gave their addresses and indicated that they may have been arrested together [for an unrelated crime] and imprisoned together at Eastern Correctional Facility. The caller [Quan Jackson] alleged that the murderers had had an argument with Anthony Joseph over the weight of drugs they had bought from him; they were overheard making threatening remarks about Joseph, and later that day Joseph was killed. He said that McNeil had a 'silver .38 pistol.' [One of the two deformed bullets found at the scene was a .38.] The informant claimed that Davis and McNeil were bragging that 'everything was cool because China [Lumpkins] got caught.'

"Stubbs's file containing DD5 #17 was in his possession in the trial prosecutor's office a week before the trial, during the trial hearing; twice more before the trial; and twice during the trial.

"Stubbs knew that the descriptions of the two suspects provided by the informant matched the descriptions of the two men provided by Emanuel Bowser. And any reasonable police officer would have concluded that if the informant was sincere, the suspects were the two men seen by Bowser.

"I find that the detective did not act in good faith. His testimony at the hearing that he reported and checked out Jackson's story was disproved by the [ADA], Stubbs's police colleagues, and his own paperwork, and I find that his testimony was false* and was designed to justify his failure to follow up the Crime Stopper's information. Contrary to what he told Crime Stoppers, he did not investigate the report or try to find the two suspects named in it. He did not show the photographs to the two witnesses, Mrs. Joseph and Mr. Bowser...Despite his frequent contact with the [ADA] he did not tell him about the Crime Stoppers or show him the DD5."

[* And was Stubbs ever prosecuted for perjuring himself here? Not very likely. This situation is quite similar to what a federal judge said about Detective Mark DeFrancesco's testimony in the Rarick case. (DeFrancesco was integral to Nickel's wrongful conviction.) Although we have several examples in this section of truthful defense witnesses being prosecuted for perjury, we have zero examples of perjurious policemen being prosecuted.] from NRE synopsis (by Maurice Possley):

"The [Crime Stoppers] caller described [Lincoln] Davis [one of the two actual perpetrators of this crime] as black...6 feet to 6 feet 1 inch tall, dark skinned, with a moustache and goateee, and his head shaved on the sides, and McNeil, also known as 'Clyde,' as black...6 feet tall, dark skinned with a moustache and goatee."

"Neither description matched Lumpkins, who was about 5 feet 11 inches tall, weighed 220 to 230 pounds, had no facial hair, and whose head was not shaved on the sides.

"Lumpkins went on trial a second time in June 1989. The jury, after hearing the evidence of the Crime Stoppers tip, acquitted Lumpkins. Quan Jackson, the caller who provided the tip, was never located. Lumpkins was later awarded $15,000 in state compensation."

[All emphases added unless otherwise noted.]

Robert Majors - Mistaken Identity / Misleading Forensics / Perjury

Wed, 11 Jun 2025 01:51:33 +0000

Majors, Robert; murder; NRE: mistaken witness identification, false/misleading forensic evidence, perjury/false accusation, inadequate legal defense, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence

Bench trial (2nd of 2 trials)

[795:466]; 2nd Dept. 5/3/05; affirmed

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

[875:111]; 2nd Dept. 2/24/09; affirmed

"[Majors] originally was convicted of the charges at issue, after a jury trial. [He] successfully moved, on the ground of juror misconduct, to vacate the judgment. [This is apparently not in Westlaw.] [He] was retried and convicted after a nonjury trial. [He] again moved to vacate the judgment of conviction against him, claiming that he was denied the effective assistance of counsel at his second trial by virtue of his attorney's failure to call an alibi witness...[I]t appears...that [he] received meaningful representation at his second trial..."

[And yet, the NRE lists inadequate legal defense. ]

from NRE synopsis (by Maurice Possley):

"On the morning of May 9, 1997, gunmen wearing masks ambushed a payroll delivery truck ouside Positive Promotions, a company at 40-01 168th Street in Queens...Two guards, 38-year-old Arthur Pettus, an off-duty New York police detective, and 45-year-old Joseph Bellone, a retired New York police officer, were shot and critically wounded during a fusillade of gunfire.

"Nearly 50 shots were fired. Bellone, a 22-year police veteran, was shot 12 times, suffering wounds in the abdomen, spleen, small intestine, arms and legs. Pettus, a 15-year veteran, was shot six times in the abdomen and legs. Both miraculously survived.

"After grabbing $80,000 in cash, the robbers fled the scene in a green van. Bellone managed to return fire and one of his shots apparently hit a tire of the van. Near 162nd Street and 45th Avenue, the van got a flat tire. New York city bus driver Kerwin Charles was driving his bus east on 45th Avenue and was about to turn right onto 162nd Street when a man about five feet away flagged him down. He stopped to allow the man to board. He was quickly followed by two other men.

"Charles said the first man was 20 to 25 years old, about 160 to 170 pounds, 5 feet 9 to 5 feet 11 inches tall, and was wearing a bright yellow jacket. After this man boarded, he turned to the third man and said, 'Pay up.' Charles said the second man was 25 to 27 years old, 5 feet 8 inches tall, and 'husky.' He said the third man was 20 to 25 years old, 5 feet 8 inches tall, with a scar on the right side of his face and a short Afro hairdo.

"Reuben Cherena was driving and stopped at a light at the southeast corner of 162nd Street and 45th Avenue. He saw a green van pull up next to him. He said two men got out of the passenger side of the van and ran to the bus. The driver's van door opened, striking Cherena's vehicle, and the driver ran to the bus. Cherena said two passengers also got out of the van. He said one was 22 to 25 years old, 5 feet 8 inches tall, heavyset, and with a medium build. The other was about 20 years old, 5 feet 6 inches tall and was wearing a black jacket.

"The men later disembarked and escaped.

"Police managed to lift 21 fingerprints from a newspaper in the abandoned van. By the next morning, May 10, police determined that eight of the prints belonged to 26-year-old Aaron Boone. Officers staked out his residence on Junction Boulevard in Jamaica, Queens.

"At about noon, a white van parked in front of the house. Not long after, a man wearing a blue jogging suit and glasses came out of Boone's house carrying a duffel bag and got behind the wheel of the van. When police began following the van, the driver, 31-year-old Robert Majors, pulled over and fled, leaving his daughter inside. He threw away the duffel bag as he ran. Police caught him and reported that he said, 'Why are you bothering me? My daughter was in the car. My car was carjacked. My daughter was in it. I just ran all the way here from Junction Boulevard to get back to my car.'

"Police recovered the duffel bag and inside were five guns, including two assault weapons. Firearms analysts later said the assault weapons and a handgun had fired some of the bullets in the robbery.

"Not long after Majors left the house, Boone emerged, carrying a black bag. When he saw police, he ran. He was arrested after a short chase. Inside the bag was $31,000 in cash. He had $950 more in his pocket.

"Majors told police that Boone was his brother-in-law (Majors was married to Boone's sister). He said Boone called him and asked him to come over. Majors said that when he arrived, Boone asked him to take the duffel bag and put it in the van. Majors said that when he saw a police car following him, he panicked because he had a prior conviction for possessing a handgun and served time in prison.

"Meanwhile, Boone was questioned separately. He implicated himself and said that Majors 'hadn't done anything' other than take the guns someplace for him. When police asked Boone if Majors was involved in the robbery, Boone said, 'No.'

"Police put Majors and Boone in lineups. Charles, the bus driver, identified Majors as the first person to board the bus and said he was wearing a yellow jacket. Cherena, who was in his car, identified Majors as the second man to board the bus and said he was carrying a black jacket under his arm. According to Cherena, the third man who got out of the van -- the driver -- was wearing a yellow jacket.

"Cherena's wife, who was in the car with her husband, viewed the same lineup and did not identify anyone. Another motorist who said she saw two men in the green van failed to identify Majors, but in a separate lineup she identified Boone as the driver of the van.

"A pedestrian standing on 45th Avenue near 162nd Street told police he saw three men run to the bus. He said he suspected 'foul play,' and ran to a pizza parlor and called 911. However, he was unable to identify Majors or Boone.

"Another witness, Desiree Stone, told police she was getting off the bus when four men came running to get on the bus. She said the second person to board was wearing a yellow jacket, was 5 feet 9 to 5 feet 10 inches tall, wore glasses, and had hair in waist braid cornrows. While police had that information in their notes, the description of the cornrows was not included in the police report and thus not disclosed to defense attorneys. None of the suspects in the crime, including Majors, had cornrows.

"Boone and Majors were arrested and charged with attempted murder, armed robbery, possession of stolen property, and illegal possession of weapons.

"Boone was the head of a gang called 'Speedstick,' which was known for robbing check-cashing facilities and armored cars. He was known by the nickname 'Twin' because he had a twin brother, Ammon Boone, who was suspected of being a member of the Speedstick gang.

"On May 17 -- a week later -- detectives interviewed Thomas Emanuel, a confidential informant. Emanuel identified members of the gang -- including one with dreadlocks, which may resemble waist braid cornrows -- and described some of the gang's robberies. Emanuel also named Kevin McKinney as a gang member. Police interviewed McKinney on May 21, 1997. McKinney told detectives that four days earlier, 23-year-old Bernard Johnson had admitted to him that he committed the robbery with Boone and a third man identified only as 'Rasheed,' who drove a tan Maxima automobile.

"According to McKinney, Johnson told him that Boone had an AK-47 assault rifle and 'started shooting as soon as they got out of the van.' Johnson said he then began shooting as well. Boone ran up to one of the victims and 'let him have it,' according to McKinney's account. Johnson said he and Boone left in the van and Rasheed was in a backup vehicle. According to McKinney, Johnson said the van 'caught a flat tire' and so Boone and Johnson got on a bus. Johnson said they got off the bus near a terminal at Persons Boulevard and Archer Avenue in Jamaica, Queens. Johnson said he and Boone each got $40,000 and that Ammon Boone and Rasheed also got some money.

"Based on the statement, police arrested Johnson. Detectives said that he implicated Majors in the crime. Johnson was charged with attempted murder, armed robbery, assault, and criminal possession of a weapon.

"Although McKinney's statement implicated Rasheed, the detectives never followed up the lead even though a co-leader of the Speedstick gang was known to drive a tan Maxima -- the car that McKinney said Rasheed drove.

"The investgation was closed with the arrests of Boone, Johnson, and Majors. Police determined that a fingerprint belonging to Ammon Boone also was found on the newspaper recovered from the abandoned van, but that information was not disclosed to the defense as well.

"Detective Paul Heider, who was one of the three detectives who interviewed McKinney, testified at a pre-trial hearing for Majors. He testified to his conversation with McKinney, but never mentioned the part of McKinney's statement that Rasheed, not Majors, had been named as the third perpetrator. Detective Michael Sapraicone, who also was involved in the McKinney interview, testified and also did not mention that McKinney had implicated Rasheed.

"In September 1999, Johnson went on trial by himself in Queens...The prosecution's case relied primarily on his alleged confession, which Johnson denied making. On September 22, 1999, the jury -- not having the McKinney statement in which Johnson confessed to participating in the attempted murder -- acquitted Johnson of attempted murder and convicted him of armed robbery and criminal possession of a weapon.

"Boone and Majors went to trial together in February 2000 in Queens...Kerwin Charles, the bus driver, was asked to make an in-court identification. He identified Majors's attorney as the second man to get on the bus. Cherena, who was in his vehicle and had identified Majors in a lineup, was unable to identify Majors at the trial. Detective Heider, who had failed to reveal the McKinney statement, testified that Charles and Cherena had identified Majors in a lineup.

"Police officers testified to the circumstances that led to the arrest of Majors and the recovery of the duffel bag of weapons, three of which firearms analysis determined had fired bullets that wounded Bellone and Pettus.

"Dr. Carole Schuster, a chiropractor, testified that Majors came for an appointment at 10 a.m. on May 9 -- the day of the crime -- for treatment of a back injury suffered in a car accident. She said that Majors signed a patient log between 9:30 a.m. and 10 a.m. Majors was in the office for about 45 minutes, Schuster said. The crime took place at 10:22 a.m. The original log had been destroyed by the time of trial, however. She scheduled Majors's next appointment for May 12.

"At the time that police arrested Majors, they recovered an appointment card showing he had an appointment with Schuster at 10 a.m. on May 9. However, the date had been crossed out and May 12 was written on the card. The police never interviewed the chiropractor and the prosecution argued that Majors's May 9 appointment had been rescheduled to May 12.

"Kathy Rosa, the receptionist for Dr. Schuster, testified that instead of giving Majors a new card, she crossed out the date of May 9th and wrote in the date of May 12th -- his next appointment.

"The prosecution also introduced telephone records showing that calls were made from Majors's home to Boone's home in the days leading up to and on the day of the crime.

"Georgielle Majors, Majors's wife, testified that Aaron Boone was her brother and lived with their mother. She said that she often called her mother and that the calls were between her and her mother. She said that she had gone to the home to get merchandise to sell at a flea market and that Majors drove it back to the home because Boone wanted a ride to the train station. She also testified that Majors wore a back brace because of a car accident in 1996 and could not run as police claimed he did to get from the van to the bus.

"On March 20, 2000, the jury convicted Boone and Majors of two counts of second-degree attempted murder, first-degree robbery, criminal possession of a weapon, and criminal possession of stolen property. Boone was sentenced to 85-1/2 years in prison. Majors was sentenced to 90-1/2 years in prison.

"In June 2000, Majors was granted a new trial based on evidence that the jury improperly referred to a public transportation map during deliberations in an attempt to evaluate Majors's alibi. Majors's convictions for attempted murder, armed robbery, and possession of stolen property were vacated. His conviction for criminal possession of a weapon and the 12-year prison term imposed on that count remained intact.

"In October 2001, Majors went to trial a second time and chose to have the case decided by a judge without a jury. The prosecution's evidence was similar to the evidence in the first trial, with some differences. Charles, the bus driver, testified that Majors was the second man to board the bus and that he said, 'Pay up.'

"Majors's defense attorney failed to point out that on the day of the crime, Charles said that the first of the three men to board the bus said, 'Pay up.' The defense attorney did not elicit that Charles originally said the second man was 'husky.'

"Cherena, the man in the vehicle stopped next to the van, described the second man out of the van -- who the prosecution contended was Majors -- as 'heavy, chubby,' weighing as much as 245 pounds. Majors, however, weighed 160 pounds. Cherena was unable to make an in-court identification of Majors. Instead, he picked Majors's defense attorney.

"Unlike the first trial, Majors's defense attorney did not call the chiropractor or any other witnesses to testify to Majors's whereabouts on the day of the crime or to explain the telephone records.

"The defense also did not present evidence that Majors had worn glasses since he was 16 due to a diabetic condition, even though no witness said any of the men seen leaving the van or boarding the bus was wearing glasses.

"The defense also failed to present a surveillance video that showed the shooting began at 10:22 a.m., when Majors was still said to be at his chiropractor.

"On November 8, 2001.... Justice John Latella convicted Majors of second-degree attempted murder, first-degree robbery, and possession of stolen property. His sentence, when combined with the sentence imposed previously on the criminal possession of a weapon conviction, was 62 years to life in prison.

"In May 2005, the...Second Department...upheld the convictions and sentence.

"Majors subsequently filed a petition for a new trial, claiming his trial defense attorney provided an inadequate legal defense by failing to call the chiropractor at the second trial. That petition was denied* and in 2009 the ruling was upheld on appeal."

[* Likely by the same 'justice' who convicted him, John Latella. ]

"Two separate federal petitions for a writ of habeas corpus also were unsuccessful.

"In 2018, after filing his 10th request under the Feeedom of Information Law, Majors was provided with a copy of the statement made by McKinney that implicated Rasheed and not Majors as the third participant in the crime.

"In March 2019, Majors's attorneys, Thomas Hoffman and Jonathan Hiles, moved to vacate Majors's convictions. The motion cited the McKinney statement as well as the information that had been covered up about the witness saying that one of the men had cornrows. The motion also noted how Majors's trial defense attorney at the second trial had failed to present evidence of Majors's alibi.

"The motion noted that because the prosecution failed to disclose the McKinney statement, the prosecutor was able to rebut the defense claims that Majors was being framed and the prosecutor 'was able to argue unchallenged' to the jury that Detective Heider's investigation and testimony were trustworthy.

"The prosecutor told the jury that the defense 'suggests to you that Detective Heider has some big motive to frame Robert Majors. . .I submit to you there is absolutely nothing that supports that view. As a matter of fact, Detective Heider's motive is to get the real shooter. Why frame Robert Majors? Why not catch the guy who really did that?'

"On May 18, 2020, Justice John Latella, the same judge who convicted Majors at the second trial, vacated the convictions and ordered a new trial. The judge rejected the prosecution's assertion that the McKinney statement and the statement of the witness about the cornrows had been turned over to the defense prior to Majors's first trial.

"Justice Latella, noting that the prosecuton had withheld the McKinney statement for 20 years and that the defense at both of Majors's trials had not made use of that information, said the prosecution's claim 'strains credulity.'

"'The exculpatory nature of the information contained in the McKinney affidavit is to this defendant readily apparent,' Justice Latella said. He added that the affidavit 'would have provided his attorneys with clear avenues for investigation and opportunities to highlight weaknesses in the [prosecution's] case.'

"Justice Latella did not, however, vacate Majors's conviction for criminal possession of a weapon. At the same time, Justice Latella noted that the evidence of Majors's possession of weapons was 'wholly distinct from his alleged participation in the armed robbery of May the 9th.'

"On October 7, 2020, Majors was released pending a new trial, more than 20 years after he was first convicted. On October 20, 2020, the charges were dismissed.

"[ADA] Michael Whitney said the prosecution still believed Majors participated in the crime, but said that another trial would be 'unduly burdensome' for the witnesses, victims, and their families.

"Hoffman, Majors's attorney, called upon Queens [DA] Melinda Katz to investigate why prosecutors withheld the documents.

"'The pain of wrongful conviction can never be lifted, but perhaps some sense can be given to the suffering,' Hoffman said. 'I hope DA Katz will conduct an investigation to find out how [the documents] could be suppressed for 20 years.'

"In January 2021, Majors filed a compensation claim in the New York Court of Claims. In September 2021, Majors filed a federal civil rights lawsuit. He settled the lawsuit in October 2022, receiving $3.3 million."

[All emphases added unless otherwise noted.]

Robert Maldonado & Marcos Poventud - Police Misconduct

Tue, 03 Jun 2025 02:17:25 +0000

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

Suggestibility issues

R18 [155] "[There was a] joint criminal prosecution in 1997-98 of [both]...for the attempted murder and attempted robbery of a livery cab driver. The cab driver, who was shot in the head and barely survived, was the only witness identifying either...at trial and linking them to the crime. With the defense challenging the cab driver's ability to make accurate identifications, the police suppressed the fact that this eyewitness initially had identified as one of the perpetrators a man who was in prison when the crime occurred (the Brady material). After this information later surfaced, Maldonado, who had spent four years in prison, was acquitted at trial, while Poventud succeeded in overturning his conviction after nine years in collateral attack. [The Bronx DA's office had tried to get Poventud to accept a 'time served' plea bargain, but he refused.] Maldonado's civil lawsuit is pending...in the Bronx; Poventud's is pending in the...Southern District of New York.

"In their separate lawsuits, both Maldonado and Poventud alleged that the police suppressed the Brady material from prosecutors as well as the defense, or alternatively that prosecutors learned about the Brady material but colluded with the police in suppressing it from the defense."

[728:129]; 1st Dept. 5/17/01; affirmed

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

from Records and Briefs:

[2] "Robert Maldonado, age nineteen at the time of his arrest, who had no prior criminal record, was convicted of attempted murder and attempted robbery of taxi driver Younis Duopo, based solely on the identification by Mr. Duopo...Mr. Duopo did not make the identification of Robert Maldonado until three months after the crime."

"During his testimony at trial, Younis Duopo identified a photograph of Robert Maldonado's brother, Matthew, as the person who committed the crime; he later retracted this identification of the photograph of Matthew Maldonado." [Emphasis original.]

"Just two weeks after Younis Duopo was robbed and shot, three men, Jesus Martinez, Naftali Pagan, and Raymond Flores were arrested in the robbery of another cab driver.. Ballistics tests showed that the gun used by these men in that robbery was the same gun that shot Younis Duopo ...[T]here was not even the slightest suggestion that Robert Maldonado knew any of these men."

"Police Detective Frankie Rosado recovered a wallet from inside of Mr. Duopo's taxi. Inside of that wallet was an identification card of Francisco Poventud, who is Marcos Poventud's brother...Francisco Poventud was eliminated as a suspect because he was in prison on the day that Younis Duopo was robbed and shot...Since Francisco Poventud was eliminated as a suspect, the police sought to locate other members of Francisco Poventud's family."

[Seven days after the shooting, the police showed Mr. Duopo a photo array which inluded a photograph of Poventud.] "According to Detective Frankie Rosado, when he showed Mr. Duopo the array, Mr. Duopo kept tapping his head, indicating that he had a headache. Mr. Duopo then took a 'quick look' at the array, and shook his head...Detective Rosado recorded in his report 'negative results' from the photo array."

"The next day...another detective, Daniel Toohey, visited Younis Duopo in the hospital to show him a different photo array, which also included a photograph of Marcus Poventud...Toohey testfied that, through pointing, Mr. Duopo identified the photograph of Marcos Poventud from his second array. [Just over two weeks later,] Younis identified Marcos Poventud from a lineup."

[It appears that Poventud was the only person whose photo was in both of these arrays. Thus, via sheer repetition, Duopo (wrongly) came to believe that Poventud was one of his assailants.]

from NRE synopsis (by Maurice Possley):

"After seeing Marcos' photograph four different times, Duopo identified Marcos as the gunman."

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

"They went on trial together in Bronx County...in April 1988.

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

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

"While preparing for retrial, Maldonado's attorney, Julia Kuan, discovered that the prosecution had failed to disclose to the defense that Duopo had initially identified Poventud's brother Francisco as the gunman.* In December 2004, Maldonado went on trial a second time and Kuan was able to discredit Duopo's testimony with the new information. Maldonado was acquitted and released."

[* Thus, Duopo, the only witness to 'identify' Maldonado or Poventud, had previously identified brothers of both of them prior to identifying Robert and Marcos.]

"Poventud, who had lost his appeal, then sought to vacate his conviction based on the evidence discovered by Kuan. In 2005, Kuan persuaded a Bronx County...Judge to vacate Poventud's conviction and order a new trial. Poventud accepted the prosecution's offer to plead guilty to attempted robbery and he was immediately released.

"Both men filed federal lawsuits for violations of their civil rights. Maldonado's was settled out of court for $2.5 million. Poventud sought to withdraw his guilty plea, but gave up that attempt when he became ill. Poventud's federal lawsuit was dismissed because of his guilty plea, but in April 2013, the Second Circuit...reinstated the lawsuit. It was settled in December 2015 for $2.75 million."

[All emphases added unless otherwise noted.]

Wayne Martin - Police Misconduct / Prosecutor Misconduct

Tue, 03 Jun 2025 02:09:43 +0000

Martin, Wayne; murder; NRE: mistaken witness identification, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence

[983:813]; 2nd Dept. 4/23/14; affirmed

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

from NRE synopsis (by Maurice Possley):

"At about 5 p.m. on November 27, 2005, two men entered Gary's Tire Emporium on East 96th Street in Brooklyn...where they fatally shot the owner, Donald Turner, wounded Turner's 17-year-old son...and then shot [a 17-year-old employee] on the street outside the shop.

"A friend of the elder Turner, Michael Walker, was in the shop at the time of the shooting and escaped unharmed. He told police that one gunman dropped his hat inside the store.

"Police recovered the hat and later said they also found a knit hat on the sidewalk next to [the 17-year-old employee's] body, although that hat was not visible in any of the crime scene photographs taken by police evidence technicians.

"[Turner's 17-year-old son] told police that before the shots were fired, one of the gunmen demanded that his father stop selling marijuana because Turner's sales were hurting the gunman's marijuana business. At that point, the power went out and the man began shooting.

"DNA testing was performed on both the hat found inside the store, and the hat police said they found outside the store. The hat found outside contained a DNA profile that was linked to 35-year-old Wayne Martin, whose DNA was in the state database because of a prior robbery conviction.

"Martin was arrested in Philadelphia in October 2007 for a parole violation. He was formally charged with the murders of Turner and [the 17-year-old employee] and the wounding of [Turner's 17-year-old son] in August 2008 after Walker identified him in a live lineup. Although two men were said to have committed the crime, only Martin was ever charged.

"Martin went to trial in July 2010 in Kings County...Walker identified Martin as the gunman. [Turner's son] also identified Martin as the gunman. [He] also testified that while he was recovering from his wounds, he suffered a stroke and lost much of his memory for several months. He told the jury that his memory had since returned.

"On July 7, 2010, the jury convicted Martin of two counts of first-degree murder and one count of first-degree assault. He was sentenced to life in prison without parole.

"In July 2015, Martin filed a federal petition for a writ of habeas corpus seeking to vacate his conviction. In 2016, lawyers in the Brooklyn [DA's] office were working on their response to Martin's habeas petition and pulled the murder case file. The lawyers discovered that there were two different copies of the prosecution summary of the case. One version said that Walker had identified a man named Jeffrey Joseph -- not Martin -- as the gunman. In the other version of the summary, that paragraph was missing.

"Brooklyn [DA] Ken Thompson turned the case over to the office's Conviction Review Unit headed by Mark Hale to conduct a complete examination of the case.

"A further review of the file turned up a police report of an interview with a witness who said that he saw an additional suspect -- later identified as Allen Cameron -- commit the shootings. The Conviction Review Unit determined that neither document -- both of which contained evidence favorable to Martin -- had been disclosed to Martin's defense lawyer at trial.

"In June 2016, Hale informed the Brooklyn...administrative judge of the discovery of the documents and began an investigation of the prosecutor at Martin's trial, Marc Fliedner, who had recently left the [DA's] office. Fliedner denied that he concealed evidence from Martin's defense.

"In July 2016, Hale appeared in Kings County...Court and requested that Martin's conviction be vacated because the suppression of the police reports was an 'obvious constitutional violation' that resulted in Martin's trial being 'grossly unfair.'

"The defense believed that Cameron had fatally shot a police officer hours after the shooting at the Tire Emporium as he was trying to elude police because he was the tire store gunman. Cameron was convicted of murdering the police officer in 2007 and sentenced to life in prison without parole.

"On July 7, 2016, Justice Matthew J. D'Emic vacated Martin's convictions. Martin was released on August 3, 2016. Martin's attorneys, James Henning and Craig Phemister, subsequently filed a motion to dismiss the indictment because of police and prosecutorial misconduct.

"On September 7, while that motion was pending, the charges against Martin were dismissed at Hale's request.

"[DA] Thompson said, 'Following a thorough re-examination of the case, I have concluded that a lack of reliable evidence, compounded by the utter failure to disclose exculpatory evidence at the original trial, would make it impossible to retry this case.'

"'Therefore, we moved today to dismiss the indictment against Mr. Martin in the interest of justice.'

"Martin was the 21st person exonerated through the efforts of the Brooklyn [DA's] Conviction Review Unit under Thompson.

"In September 2017, Martin filed a federal civil rights lawsuit seeking damages."

[All emphases added unless otherwise noted.]

Angelo Martinez - Perjury / Police Misconduct

Tue, 03 Jun 2025 02:07:11 +0000

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

Suggestibility issues

[543:116]; 2nd Dept. 6/26/89; affirmed

[Apparently, there was an unduly suggestive lineup procedure.]

from Records and Briefs:

[4] "On October 3, 1985 a [pre-trial hearing] was held before the Hon. Robert T. Grohan ...of...Queens County...The sole witness to testify was the identifying witness, Mr. James Schweigert ...[who] testified as follows:

"On April 10, 1985 in the evening hours in the vicinity of 111th Avenue he observed a shooting...He saw the assailant exit a white Nova and then approach him asking for a cigarette and inquiring about the time Bingo was over. At about 10:30 P.M. the individual crossed Atlantic Avenue, approached an elderly man and shot him..."

"On April 12, 1985 he identified a photograph from a group of 300 pictures and on May 3, 1985 he was called to view a lineup wherein he identified [Martinez]..."

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

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

"The trial on this matter commenced on September 4, 1986 before the Hon. Seymour Lakritz..."

"Charles Fox, a cartographer testified that he drew a sketch of the crime-scene and said sketch was offered and introduced into testimony...and through Police Officer Freiburger additional photographs of the crime scene were introduced..."

[6] "Detective James Curran testified that he arrested [Martinez] on May 2, 1985 in Brooklyn..."

"Detective Anthony Burke testified that he conducted a lineup of...Martinez on May 2, 1985 at the 102nd Precinct...He further testified that [Martinez] was 5'9", 150 pounds and 19 years of age..."

"Detective John Solowsky testified that he received the two bullets that struck the deceased and upon examination they were .38 caliber. He further testified that the deceased had been shot at close distance..."

"Medical Examiner Dr. Yong-Myun Rho testified that the deceased was shot twice in the head..."

"James Schweigert, the sole identifying witness, testified that on April 10, 1985 at about 9:45 P.M. he was at Atlantic Avenue between 110th and 111th Streets in Queens County waiting outside a Bingo parlor for his mother...A man approached him asking for a cigarette...He had seen the same man around [noon that day]...Both he and the man remained there for about a half-hour until Bingo let out...He saw an elderly man and woman leave the Bingo parlor and approach a vehicle...[Martinez] (whom he identified as the [7] man in question) approached the elderly man and fired three shots at him.

"He described [Martinez] as being 19, having a mustache..."

"John Padilla testified that he knew [Martinez] 8 years and used to live in the same neighborhood...He was with [Martinez] in mid-April 1985 when [Martinez] [supposedly] told him he killed the old man...He did not tell him where this happened..."

"On cross-examination the witness stated he did not know the month or the year that [Martinez] made the statement..."

[So, in direct, Padilla says Martinez told him this in mid-April 1985. But then, on cross, he says he didn't know the month or year this was said.]

"Antoinette Burgos, a student at Manhattan Community College testified that the eyewitness James Schweigert did not have a good reputation for truthfulness..."

[8] "Elsie Rodriguez testified that around the time of the incident [Martinez] had no mustache."

from NRE synopsis (by Maurice Possley):

"On April 10, 1985, 70-year-old Rudolph Marasco was shot to death while leaving a bingo hall in Queens..."

"Two days later, a witness, 19-year-old James Schweigert, identified Angelo Martinez, 19, in a photo lineup.

"On May 3, 1985, Schweigert identified Martinez in a live lineup and Martinez was charged with murder. At the same time, a friend of Martinez, John Padilla, was also taken into custody. Police said he told them that Martinez had admitted shooting an old man.

"Martinez went on trial September 4, 1986. Schweigert identified Martinez as the gunman, although he did not disclose that a friend of his had previously accused Martinez of assault. Padilla testified that he implicated Martinez after police threatened to charge him with the murder.

"Martinez was convicted on September 10, 1986 and sentenced to 25 years to life in prison.

"In March 1989, Charles Rivera, a cooperating witness in a federal investigation, disclosed that he had committed the murder.

"Authorities didn't believe him, and their disbelief seemed to be confirmed when Rivera failed a polygraph exam.

"However, in his statement, Rivera provided a missing element -- motive. He said that Marasco lived in a building owned by Frank Sgro, father of his half-sister. Sgro wanted to sell the building, but Marasco wouldn't move out, so -- according to Rivera -- Sgro hired Rivera for $10,000 to kill Marasco.

"The building was sold four months after Marasco was murdered.

"Though federal authorities didn't believe Rivera, they passed the information to the Queens [DA's] Office. The information was then passed on to Martinez's attorney, Jennifer Maiolo, but she did nothing.

"In 2001 James Quinn, then deputy chief of homicide in the Queens [DA's] Office, checked and discovered that Maiolo had not acted on the information. He re-assigned the case to a prosecutor and two detectives for a re-investigation. Maiolo was later disbarred for actions in an unrelated case.

"During an interview, Rivera told them that he had killed Marasco and disclosed that he had used copper-jacketed bullets -- a detail that had never been publicly disclosed. He also said that he was chased by two people after the shooting -- a fact that was confirmed in police reports.

"Ultimately the investigators found a man that Rivera said was his driver that night, and that man confirmed that he drove Rivera to the bingo hall where the shooting occurred.

"On June 12, 2002, a joint motion by defense attorneys for Martinez and the prosecution was presented in court. The murder conviction was overturned and the charges were dismissed.

"On July 22, 2002, Martinez was released on bail, pending disposition of a federal conviction for selling cocaine in prison after he was locked up for the murder conviction. That sentence, 292 months, was later commuted to time served, in part because the lengthy term was the result of an enhancement based on his murder conviction.

"Martinez later filed a $50 million lawsuit in the New York Court of Claims. The suit was settled for $700,000."

[All emphases added unless otherwise noted.]

Halstead, Kogut & Restivo - False confession / False Accusation

Tue, 03 Jun 2025 02:03:26 +0000

Halstead, Dennis AND Kogut, John AND Restivo, John; murder, sexual assault; NRE: false confession (Kogut), perjury/false accusation, false/misleading forensic evidence, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

K15 "Restivo and Halstead were convicted for the 1984 rape and murder of a teenage girl. Yet they and another man, John Kogut, were freed in 2002 when DNA from the victim's body did not match the three defendants.

"Kogut had initially admitted to the crime but said he was forced into a false confession."

N11 [The three were arrested in 1985, and convicted in 1986.] "The men were believed to have raped and murdered a 16-year-old girl.

"Halstead and Restivo were incarcerated until June 11, 2003, when their convictions were vacated. Forensic studies had proven that neither man was the source of semen that had been extracted from the victim, and the men's attorneys discredited other evidence that suggested that the victim had been raped in a van that Restivo owned. Kogut's conviction was also overturned.

"The [civil lawsuit] jury...found that [Detective Joseph] Volpe fabricated evidence...maliciously prosecuted [Halstead and Restivo]...[and] violated [their] right to due process. Thus, Volpe was liable for wrongful incarceration [of the two]...The jury determined that the men's damages totaled $36 million."

[Halstead and Kogut] [580:413]; 2nd Dept. 2/24/92; affirmed

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

[Restivo] [619:584]; 2nd Dept. 11/7/94; affirmed

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

from NRE synopsis (by the Innocence Project):

"In 1986, Halstead and Restivo were tried separately from Kogut, who was also tried and convicted of rape and murder on the theory that the three men had acted together in abducting, raping, and killing the victim. A series of postconviction DNA tests excluded all three men as the rapists and proved that semen from the victim's body had come from [an] unknown assailant.

"In December 2005, the Nassau County [DA's] office announced that it would drop all charges against Dennis Halstead and John Restivo after John Kogut was found not guilty by Nassau County Judge Victor M. Ort on December 31, 2005."

"On December 5, 1984, the body of the 16-year-old victim was discovered, naked, in a wooded area of Lynbrook...She was last seen leaving her job at the local roller rink almost a month before.

"The medical examiner determined the cause of death as ligature strangulation; semen and sperm found on the victim's vaginal swabs suggested she had been raped."

"The local police department believed the victim's death to be connected to similar crimes involving the disappearances of other young women.

"By March 1985, investigators had focused their investigation in part on Dennis Halstead, who was believed to have been associated with another young woman who had disappeared. Early that month, John Restivo had been interviewed as part of the investigation and mentioned that he was acquainted with John Kogut, a sometime employee of Restivo's and his brother's moving business.

"In late March 1985, Kogut was brought to police headquarters for a polygraph examination. After three polygraphs, a detective analyzed Kogut's 'polygraph charts' and determined that Kogut was lying when he denied involvement in the victim's murder. Multiple officers proceeded to interrogate Kogut for more than 18 hours, repeatedly telling him that he had failed the polygraph examinations. Kogut was bombarded with allegations that he, John Restivo, and Dennis Halstead had abducted, raped, and murdered the victim. Eventually Kogut signed a confession that had been handwritten by a detective; this confession was the sixth version of facts allegedly given by Kogut.

"According to the final version of the confession, Restivo, Kogut, and Halstead were driving in Restivo's van. They encountered the victim, who got in the van voluntarily. Halstead and Kogut stripped the victim and Halstead raped her. They arrived at a cemetery, where Restivo stopped the van and also raped the victim. During the attack, the victim drifted in and out of consciousness. When she began to regain consciousness after the rape, she grew frantic and Kogut strangled her with a hard nylon rope.

"Kogut's confssion did not include any details about the crime not previously known by law enforcement. Kogut was taken to the site where the victim's body had been discovered, but again was unable to offer any new details about the crime.

"Based on Kogut's alleged confession, Restivo's van was searched, and several hairs were recovered and tested in a forensic lab."

"John Restivo and Dennis Halstead were tried together for rape and murder in November 1986; John Kogut had already been tried separately and convicted of rape and murder in March 1986.

"The prosecution argued that the two hairs found in Restivo's van were corroborative of Kogut's confession. An analyst testified that two hairs found in the front passenger seat were microscopically similar to those of the victim. The two hairs appeared identical to the victim's from 'root to tip, including artificial treatment.' This testimony was improper, because there is no adequate empirical data on the frequency of various class characteristics in human hair. It is impossible to say definitively that strands of hair are identical.

"The defense presented the testimony of hair comparison expert Dr. Peter DeForest. Dr. DeForest testified that the hairs found in Restivo's van displayed 'advanced banding,' a condition caused by bacteria eating away at the interior of the hair shaft. Advanced banding occurs only after death and only when the hair is still attached to the decomposing body, meaning that the victim could not have deposited the hairs while she was alive and supposedly in Restivo's van.

"At the time of trial, research on advanced banding was relatively new and no studies had been published about it. The state called its own expert, who testified to the limits of contemporary research, and argued in closing that 'for all anyone knows, banding occurs right after death, as when the heart stops and the lungs stop working and the blood settles.'

"In addition to Kogut's confession and the two hairs, the state presented the testimony of multiple witnesses who alleged that they had heard Restivo and Halstead make incriminating statements. Both men were ultimately convicted."

"[Post-conviction] defense attorneys...secured an affidavit from the state's expert witness, who had testified in 1986 regarding the hairs found in Restivo's van. The expert concluded, based on 20 years of research and expertise, that the hairs displayed 'post-mortem root banding,' a hallmark of decomposition that only occurs while hairs are attached to a corpse that had been dead for at least 8 hours, if not days or weeks. The banding on these hairs was similar to those found on dozens of hairs taken from the autopsy that had been in unsealed envelopes in a police department laboratory for months. Because the victim was only alleged to have been in the van for a few minutes after death, he concluded, the hairs could not have been shed during that time, and were instead autopsy hairs that were commingled with others from the van -- whether through negligence or misconduct.

"Based on these results, all three convictions were vacated in June 2003 and all three defendants were released. John Kogut, however, faced retrial, based largely on his confession. At trial, the prosecution sought to rebut the DNA evidence by arguing that the victim, who was said by her mother and best friend to be a virgin, had consensual sex with an unknown male prior to her rape and murder. Kogut's lawyer, [Paul] Casteleiro, argued that the confession was false, and won a motion to have expert testimony on false confessions admitted for the first time in New York State.

"After a three-month bench trial,* Judge Ort found Kogut not guilty on all counts in December 2005. His verdict included specific findings** that numerous aspects of the confession were contradicted by DNA and other forensic evidence, and that the decomposed hairs from the victim were not shed by her in Restivo's van. Before the end of the month, [ADA] Fred Klein said in court that the case against Halstead and Restivo should be dismissed because he could not prove guilt beyond a reasonable doubt."

[* Nickel's bench trial, by contrast, lasted barely two days. ]

[** Again, in stark contrast, in the Nickel case, Judge Paul Czajka made zero specific findings upon rendering his verdicts.]

"In April 2014, a jury awarded Halstead and Restivo $18 million each for their time spent wrongfully incarcerated. Kogut was not part of the civil lawsuit. Kogut received $1.5 million from the New York Court of Claims. Halstead received $2.2 million.

"In 2016, Restivo and Halstead filed another federal lawsuit, claiming that Nassau County had refused to pay the settlement. The new lawsuit said Restivo and Halstead voluntarily withdrew their lawsuit based on false representations by Nassau County that it would indemnify them. The lawsuit sought treble damages based on the $36 million plus another $7 million in attorneys' fees, costs, interest and other expenses.

"That lawsuit was eventually voluntarily dismissed. Nassau County appealed the jury verdict and lost. In January 2018, the U.S. Supreme Court declined to accept a further appeal and the money was ordered disbursed within 30 days."

[The NRE synopses for Halstead and Restivo are identical. However, the synopsis for Kogut does add a few additional details:]

"The body had been covered by leaves and debris and was located a short distance from the roller rink."

"[S]erology tests to determine the semen donor's blood type were never performed."

[All emphases added unless otherwise noted.]

Paul Gatling - Mistaken Witness Identification

Tue, 03 Jun 2025 02:00:26 +0000

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

Suggestibility issues

N14 "On October 15, 1963, 43-year-old Lawrence Rothbort, a painter and sculptor, was fatally shot in his home in the Crown Heights neighborhood of Brooklyn...Rothbort's wife, Marlene, who was nine months pregnant, said a black man with a shotgun demanded money and when Rothbort refused, the man shot him.

"A month after the shooting, police arrested 29-year-old Paul Gatling based on a tip from a convicted felon [Grady Reaves] who said he saw Gatling in the area of Rothbort's home immediately after the shooting. Gatling told police that he was there to pay his rent to his landlord -- which the landlord confirmed.

"Gatling, who was 6 feet 1 inch tall, was placed in a lineup with three much shorter men. Rothbort's widow was unable to identify anyone. Later, however, she viewed Gatling as he was being questioned by the detectives and identified him as the gunman."

[So, first, the lineup was suggestive, in that Gatling was put in with three much shorter men. Then, the widow just happens to see Gatling being questioned by detectives. Thus, she's now seen Gatling at the precinct twice . With such repeated suggestion, it was all but guaranteed that she would then 'identify' him.]

"Facing the death penalty, Gatling went to trial in Kings County...Court. In the middle of trial, he pled guilty and was sentenced to 30 years to life. He immediately attempted to withdraw his guilty plea, but was unsuccessful.

"Malvina Nathanson, a Legal Aid Society lawyer, came to believe in Gatling's innocence. In 1973, after years of working on the case, she sent a detailed application for clemency to Governor Nelson Rockefeller, who commuted Gatling's sentence. Gatling was released on parole in January 1974.

"Forty years later, in 2014, Gatling learned that Kings County [DA] Ken Thompson had formed a Conviction Review Unit to re-investigate cases of convicted defendants who made credible claims of innocence. Gatling sent a letter to Thompson, and the unit took up the case."

"In its reinvestigation, the conviction review unit discovered that Rothbort's wife, Marlene, had admitted to detectives that she was having an affair with a musician who boarded in their home [Leon Tolbert], and that the musician had told detectives he heard Marlene tell Rothbort that she would kill him if he continued to beat her. None of this had been disclosed to Gatling's trial attorney.

"On May 2, 2016, Thompson appeared in court with Gatling. After...Justice Dineen Riviezzo granted the prosecution's motion to vacate the conviction and the charges were dismissed, Gatling told the judge, 'I can't tell the court the pain and suffering. What has happened to me, this has stopped me from voting at every level. I come from a civic family and they don't understand why poppa can't vote.'"

from NRE synopsis (by Maurice Possley):

"'In 1964, an African-American accused of killing a Caucasian in front of his family with a blue-ribbon jury -- this case was hopeless,' Mark Hale, the head of the Conviction Review Unit, said. Gatling's conviction relied primarily on Marlene's eyewitness testimony.

"'Her dialogue was [out] of a bad b-movie. . . Mrs. Rothbort may have been involved in the murder,' Hale said.

"Gatling filed a claim for compensation with the state of New York and in 2018 settled the claim for $600,000. That same year, Gatling also settled a claim against the City of New York for $1.5 million."

[All emphases added unless otherwise noted.]

Terrence Mason - "Overwhelming Evidence"

Tue, 03 Jun 2025 01:55:05 +0000

Mason, Terrence; robbery; NRE: mistaken witness identification, perjury/false accusation, inadequate legal defense; "OVERWHELMING"

[565:552]; 2nd Dept. 2/4/91; affirmed

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

[The 2nd Dept. 'justices' who signed off on this opinion are Guy J. Mangano, Geraldine T. Eiber, Thomas R. Sullivan, and Vincent R. Balletta. ]

16 F.3d 38; 2nd Cir. 2/7/94; previous grant of writ (not in Westlaw) affirmed, due to evidentiary error and ineffective assistance of counsel

"On December 21, 1986, four men -- three blacks and one hispanic -- entered Golden City Jewelers...in Queens...drew guns, and stole approximately $100,000 worth of jewelry. During the following month, George Rivera, Christopher Arthur, Kevin Moore, and Mason were arrested...Rivera, Arthur, and Moore pleaded guilty...Mason elected to stand trial. His defense was misidentification.

"At Mason's jury trial...none of the three men who pleaded guilty to the robbery was called to testify.* Nor was there any evidence that Mason's fingerprints were found in the store, or in the getaway car, or on any of the stolen jewelry that was recovered. The recovered jewelry was found in the apartment of Arthur's girlfriend. There was no evidence that Mason had any association with anyone connected with that apartment. Rather, the state's evidence at Mason's trial consisted principally of the testimony of investigative police detective Philip Fuhr and three eyewitnesses: (1) Sam Rouhani, the store's owner, (2) Mohammed Weiss, a salesman, and (3) Larry Taylor, a security guard."

[* That fact speaks volumes: Had the prosecution truly believed Mason was involved, it would have made testifying against him a mandatory part of the the plea deal taken by at least one of the three (actual) perpetrators.]

"Rouhani and Weiss had not been asked to view Mason in a pretrial lineup or a photographic array* and testified that they could not recall any distinguishing features that would permit them to identify him. They were able to identify him at trial, however. He was the only black man sitting at the defense table.

[* This is an indication that detectives were not at all confident that Mason was involved.]

"Taylor, who likewise was unable to recall any distinguishing features, identified Mason both in a pretrial lineup and at trial."*

[* So, the only (3) eyewitnesses the prosecution produced 'identified' Mason, despite a lack of any distinguishing features.]

"Through Detective Fuhr, trial counsel brought out evidence that in the six-man lineup conducted a month after the robbery, it had taken Taylor three minutes to identify Mason.*

[* Thus, the only eyewitness who was asked to view a line-up took three minutes to 'identify' Mason. What, exactly, happened during that time?]

"[A] conversation with Rivera led the police to focus on Mason.

"The State's evidence against Mason was certainly not overpowering."

[And yet, the four above-named 2nd Dept. 'justices' said it was "overwhelming." ]

from NRE synopsis (by Maurice Possley):

"[At trial, Robert] Taylor, the security guard, gave an elaborate account of the robbery. He said that on the afternoon of the crime, Mason and three others came into the store. Mason told Taylor his name was 'Gerard' and asked about the cost of a gold nameplate. Taylor said he told Mason the price was $550. When Mason said he only had $20, Taylor said this was not enough to start a layaway plan.

"According to Taylor, Mason and the others left the store. Taylor said he went outside and saw Mason go to a public telephone. Mason and the other three men soon returned to the store and Mason said his wife wouldn't give him any money. Taylor told Mason that he could give the store owner the $20 and bring in more money later. At that point, Mason and the other three men drew their guns and robbed the store. Taylor testified that he had spoken with Mason for as much as 15 minutes in the two conversations.

"The prosecution then called Detective Fuhr, who testified that after Rivera was identified in a lineup, he had a conversation with Rivera. Following the conversation, Fuhr said he arrested Mason. The prosecutor elicited this testimony even though the judge had cautioned the prosecutor against introducing any evidence of statements implicating Mason by the three co-defendants who had pled guilty. Mason's defense lawyer did not object to Fuhr's testimony and did not object later on when the prosecution emphasized that testimony in its final argument to the jury.

"During deliberation, the jury asked that Fuhr's testimony be read back, which it was without objection from Mason's lawyer. After first reporting that they were deadlocked, the jury continued to deliberate. In June 1987, the jury convicted Mason of two counts of robbery. He was sentenced to 10 to 20 years in prison.

"In preparing to appeal the conviction, a different lawyer asked Mason's trial lawyer why he failed to object to Fuhr's testimony and why he failed to cross-examine Taylor with a police report which included a detailed description of the robbery that was very different from Taylor's trial testimony.

"The police report, which was based on accounts from the other witnesses, said that the robbers walked in, drew their guns and robbed the store. One of the witnesses said that Rivera had seemed to be in charge of the heist and recalled that the day befoe the robbery, Rivera came in and placed an order with the store owner for a gold nameplate. There was no reference to any conversations with Mason or that any of the robbers had been in the store, left and then returned.

"Mason's trial lawyer said he 'must not have noticed' the police report. He never said why he didn't object to Fuhr's testimony."

"In 1993, Mason filed a federal petition for a writ of habeas corpus, claiming that his attorney provided ineffective legal assistance because he did not object to Fuhr's testimony and failed to use the police report of the robbery to undercut Taylor's testimony.

"In September 1993, U.S. District Judge Edward R. Korman granted the petition, vacated Mason's convictions and ordered a new trial. The court held that the failure to object to Fuhr's testimony and to the prosecution's focus on that testimony in closing argument was sufficient to require a new trial. The court also said that the lawyer's failure to impeach Taylor was a significant error because 'all but one of the eyewitness identifications wasn't worth very much and the one (Taylor) that arguably the jury was more impressed with could have been subject in my judgment to very damaging cross-examination.'

"In February 1994, the 2nd Circuit...upheld Korman's ruling. In March 1994, Mason was released on bond pending a retrial. In November 1995,* the Queens County [DA's] Office dismissed the case."

[* Thus, the DA left Mason 'hanging' for over 18 months.]

"Mason later filed a complaint in the New York Court of Claims seeking compensation, but the complaint was dismissed."

[All emphases added unless otherwise noted.]

Maynard Williams - Prosecutor Misconduct

Tue, 03 Jun 2025 01:51:54 +0000

Maynard, William; manslaughter; NRE: prosecutor misconduct, withheld exculpatory evidence

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

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

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

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

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

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

from NRE synopsis (actually, New York Times article from 2/6/73):

"On April 3, 1967, Robert Crist and James Barnhardt were involved in an altercation in Greenwich Village. Crist testified that Barnhardt had confronted him, which led Crist to chase and strike Barnhardt. The two were separated by police officers who walked Crist away from Barnhardt.

"William Anthony 'Tony' Maynard, a black man, along with a white companion, confronted Crist for striking the older and smaller man. An argument ensued for several minutes until Sgt. Michael Kroll...arrived. Maynard and his companion left, and Kroll and Crist drove after them in Kroll's car.

"Crist and Dennis Morris, both witnesses, testified they saw Maynard shoot Kroll in the face with a sawed-off shotgun. Michael Febles, another witness, identified Maynard as the person he had seen arguing with Crist. Febles said that he had heard the shot fired, though he did not see who fired it. Febles also testified he had seen Maynard and his companion run away. Howard Fox, a cab driver, testified that in the afternoon before the shooting, he drove Maynard and another person to Greenwich Village, and that Maynard's friend had a camera bag over his shoulder.

"Maynard was accused based on the eyewitness testimony of Robert Crist, Dennis Morris, and Michael Febles. The first trial for Maynard in 1969 ended in a hung jury. The second ended in a mistrial. The third trial resulted in a conviction for manslaughter in the first degree on December 9, 1970. Maynard was sentenced to a maximum term of ten to twenty years for the crime.

"Lewis M. Steel, Maynard's attorney, reportedly filed five motions for a new trial. Steel's efforts were unsuccessful until the medical and criminal history of key witness Febles was discovered: Febles had a severe psychiatric history and had been convicted of disorderly conduct in 1966. [All emphases added unless otherwise noted.]

Louis Charriez - Prosecutor Misconduct

Tue, 03 Jun 2025 01:47:28 +0000

Charriez, Louis; murder; NRE: false confession, perjury/false accusation, prosecutor misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury, witness tampering or misconduct interrogating co-defendant, prosecutor lied in court

265 F.R.D. 70 (3/23/10); writ denied

"In the [present] case, a bizarre, momentary flare-up of temper resulted in [Charriez] [???] stabbing and killing his victim. The jury found that he had not intended to kill, but that death resulted from depraved indifference."

"Evidence presented at trial indicated that on January 10, 1997, in the hallway of 172 Miller Avenue in Brooklyn, [Charriez] stabbed Larry Byrd in the chest with a knife. The weapon was identified as having been given to [Charriez] a few weeks before the stabbing. The knife went through Byrd's down jacket and pierced his heart. Byrd buckled and said that [Charriez] had 'stuck' him. [Charriez] threatened that he would 'stick' him again and ordered Byrd out of the building. As [Charriez] was fleeing, a resident saw him bend over the victim and say that Byrd had gotten what he deserved. Byrd died later that day."

"A first trial resulted in a hung jury and mistrial. After a second jury trial, [Charriez] was acquitted of intentional murder and convicted of depraved indifference murder."

from NRE synopsis (by Maurice Possley):

"On January 10, 1997, 29-year-old Larry Byrd was fatally stabbed in the heart while on the second floor of a crack house where he lived in Brooklyn..."

"A month later, on February 19, 1997, police arrested 33-year-old Louis Charriez, who had been identified by witnesses as being in a fight with Byrd during which Byrd was heard to say that he had been stabbed and Charriez was said to have admitted he stabbed Byrd.

"When interviewed by police, Charriez said that he had lived in the building for two months and knew Byrd as someone who smoked crack cocaine and stole drugs and money from women drug users. Charriez said he and Byrd argued when Charriez told Byrd to stop smoking crack in the building. 'He [Byrd] takes out a knife, we struggle over the knife[,] he's high, he got stabbed in the struggle,' Charriez said. 'He goes down to the first floor, I think that he knocks on a door, they open the door, I walked past him, I left the building. I didn't know that he was that hurt.'"

"Charriez went to trial a second time in December 1997. Nadine Bailey testified that at about 6:30 p.m. on January 10, 1997, she began arguing with Robert 'Noodles' Thomas on the second floor of the building where they lived...She said that Byrd, who lived on the third floor wih Charriez and Bailey, intervened and confronted Thomas. Then, Charriez intervened and told Byrd to pick on someone his own size, Bailey said.

"She said Byrd and Charriez were arguing when Charriez said, 'I'm tired of this.' Bailey said Charriez swung and 'hit' Byrd. She did not see anything in Charriez's hands and thought he had punched Byrd. Bailey said Charriez told Byrd to leave the building. Bailey said he realized Byrd had been stabbed and ran to the first floor to call an ambulance.

"Bailey said she then heard Byrd knocking at the door. She let him in, and he said, 'I'm hit.' Bailey said she was trying to stop the bleeding when Charriez came down and told Byrd, 'You got. . .what you deserved,' and then left the building.

"Bailey testified that two days later, she found a bloody knife in her apartment. She said she recognized it because Charriez had borrowed it from her a few weeks earlier. Bailey said she tossed the knife in the rear of the building. It was later recovered by police, but there was no blood on it.

"Bailey admitted during cross-examination that when first interviewed by police, she did not say that Charriez stabbed Byrd. Under re-direct examination by the prosecutor, Bailey said she had not received any promises from the prosecution for her testimony.

"Althemease Ramsey testified that she and Fairlene Walton were in the first-floor apartment in the building when they heard a commotion from upstairs. She said she and Walton went to the rear door of their apartment and saw Byrd arguing with Charriez. She said Byrd was holding his chest and said, 'He stabbed me.'

"Ramsey said it appeared that Charriez had a knife in his hand.

"Walton testified that she saw Charriez holding a knife in his right hand and ordering Byrd to leave the building.

"Both women testified they saw blood gushing from Byrd's chest. Ramsey admitted that she had convictions for petit larceny and possession of drugs and stolen property. Walton admitted she had prior convictions for selling crack cocaine and for petit larceny.

"Ramsey claimed that in September 1997, prior to Charriez's first trial, Charriez tried to talk her out of testifying against him. Walton and Ramsey denied they received any benefits or preferential treatment from the prosecution.

"Marcus Lucien testified that he lived in the building and that at about 7:30 p.m. he was selling drugs around the corner on Atlantic Avenue when Charriez walked up. Lucien said Charriez said he was stressed because he had 'poked' Byrd. Lucien said he walked to 172 Miller Ave. and was told that Byrd had died. Lucien said he returned and that he and Robert McCreary, who was Lucien's lookout, attempted to physically restrain Charriez to make a citizen's arrest, but Charriez fled.

"When the prosecutor asked Lucien whether any promises 'whatsoever' had been made for his testimony, Lucien replied, 'None.'

"After Lucien left the witness stand, the defense learned that in fact Lucien had been given favorable treatment after being arrested for failing to complete community service. Lucien had been given a second chance after the prosecution said he was going to testify in a murder trial. The judge allowed the defense to reopen cross-examination of Lucien since the prosecution had not disclosed that information.

"Milton Ruffin and Felix Centeno testified for the defense that the building at 172 Miller Avenue was a drug house. Both testified they saw Charriez and Byrd struggling over a knife almost immediately after Byrd had consumed crack cocaine and became violently paranoiac.

"Ruffin said that Byrd swung the knife, Charriez grabbed Byrd's hands, and 'that's when I saw feathers' pop out of Byrd's coat. Centeno said he saw the knife slip in Byrd's hands and that Byrd stabbed himself. Ruffin and Centeno admitted they had numerous prior convictions. The prosecution questioned Centeno about hitting Lucien and McCreary with a pipe to dissuade them from testifying at the trial.

"Marie Ramos testified that in September 1997, during Charriez's first trial, Ramsey, whom she considered a best friend, told her that the prosecution had arrested her and taken her to the [DA's] office in handcuffs. Ramsey told Ramos that she was going to testify against Charriez because the prosecution would drop all of her warrants -- that it was either Ramsey or Charriez, and Ramsey said she was not going back to jail.

"Ramos testified that Ramsey told her to tell Charriez, 'I have to do what I have to do because I don't want to go to jail,' and that the prosecution had 'dropped everything' for her.

"On December 16, 1997, the jury convicted Charriez..."

"The...Second Department...affirmed Charriez's conviction in June 2000.

"Charriez refused to give up. He moved for a writ of error coram nobis, but that was denied in 2001. He filed repeated motions for a new trial and was rebuffed each time. He filed a motion for DNA testing, which was denied. He filed a federal petition for a writ of habeas corpus and that was also denied.

"A legal lifeline appeared in 2015 in the case of Wildon Rodiguez, who had been convicted of murder in Brooklyn in 1999...The primary witness against him was Ramsey, except she was identified in Rodriguez's trial as Althamease Cort, one of several names she used.

"On December 15, 2015, Rodriguez filed a pro se motion in Kings County...to vacate his conviction based on the prosecution's failure to disclose exculpatory evidence and to correct false testimony. While in prison, Rodriguez had spent years filing extensive public-records requests related to his case. These documents undermined the state's claim that Cort/Ramsey had received nothing for her testimony in Rodriguez's case.

"He had tracked down a court transcript from a 1994 hearing, where a judge told Cort/Ramsey that she was a 'predicate felon' and looking at between 18 and 36 months for the stolen property and possession charges she was facing. The stolen property charge was the most recent, occurring in January 1994. 'What was offered you was the minimum plea that can be offered and that's the minimum sentence that can be imposed,' the judge said.

"But Cort/Ramsey's plea and final sentencing were continued several times until April 15, 1994. In the interim, Cort/Ramsey had picked Rodriguez out of the two lineups and testified before a grand jury. It was only then that she received that more lenient sentence, which she served in a city facility, rather than in an upstate New York prison.

"Most significantly, Rodriguez also uncovered evidence that Cort/Ramsey had received more than $35,000 in cash, housing, and food allowances as part of a witness-protection program tied to her testimony against Charriez. This assistance had begun on May 14, 1997 and continued until April 12, 1999, just prior to the start of Rodriguez's first trial.

"Rodriguez's attorney, Robet Reuland, filed a petition seeking to vacate Rodriguez's conviction. The conviction was vacated in April 2019. Kings County...Justice Guy Mangano Jr. criticized the trial prosecutor, Kyle Reeves, for his 'blatantly intentional misstatements to the jury" and for not correcting Cort/Ramsey's false denials of any favorable treatment from the prosecution. Justice Mangano said the prosecution should have also disclosed benefits conferred on Cort/Ramsey in the Charriez case.

"In September 2019, Reuland filed a petition seeking to vacate Charriez's conviction. The petition said the trial prosecutor in Charriez's case, [ADA] Timothy Gough, had failed not only to reveal the benefits to Cort/Ramsey, but also an additional $20,000 in benefits to the other civilian witnesses for the prosecution such as Walton, Bailey, Lucien, and McCreary. In addition, Gough had elicited false statements from the witnesses denying they received benefits, and argued to the jury that the witnesses had not received benefits, the petition said.

"The petition said that Gough, who by then was the chief of the Kings County [DA's] Office Homicide Bureau, 'certainly. . .was aware of the truth, yet he did nothing to correct the record.'

"The petition said that Gough presented Cort/Ramsey as a 'civic-minded woman with a few arrests who had come forward out of [a] sense of civic duty, receiving nothing for her testimony and having no connection whatsoever to law enforcement. This impression of [Cort/Ramsey] was so utterly false that it would be almost laughable except for the sobering reality that her testimony certainly put one man in jail for the rest of his life and contributed significantly to the incarceration of another. . .Her testimony was available for purchase.'

"Meanwhile the prosecution appealed the ruling granting Rodriguez a new trial.

"On September 30, 2020, the Appellate Division...upheld the ruling granting Rodriguez a new trial. The appeals court said the records that the state failed to turn over were material to Rodriguez's defense because they undercut the testimony of Cort/Ramsey that she didn't have any deals with prosecutors and because they contradicted the prosecution's claim in final argument that Cort/Ramsey never 'took a deal' or 'asked for anything in return.'

"By then, Cort/Ramsey had died. On January 8, 2021, a prosecution motion to dismiss Rodriguez's case was granted.

"On February 25, 2021, Kings County...Justice Jane Tully vacated Charriez's conviction and ordered a new trial. Justice Tully declared, 'The [prosecution's] failure to disclose the moneys paid, promises made, and benefits conferred upon every single witness who testified against [Charriez], failure to correct misstatements, and conduct in bolstering the crediblity and misstatements of the witnesses, constituted a denial of [Charriez's] rights and a pattern of breach of the [prosecution's] constitutional duty.'

"Justice Tully ordered Charriez released from custody that same day. On January 27, 2023, the prosecution dismissed the case.

"In February 2023, Charriez filed a claim for compensation from the state of New York."

[All emphases added unless otherwise noted.]

McCallum & Stuckey - False Confession / Perjury

Sun, 01 Jun 2025 04:09:36 +0000

McCallum, David AND Stuckey, Willie; murder; NRE: false confession, perjury/false accusation, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, misconduct in interrogation of exoneree

Suggestibility issues

N9 [20] "In 1986, David McCallum...and Willie Stuckey, both 16, were convicted of murder, robbery, kidnapping and illegal use of a weapon after a man was abducted and murdered in Brooklyn...McCallum and Stuckey were exonerated in 2014 after the Brooklyn [DA's] Conviction Review Unit reinvestigated the case.

"The crime began with a kidnapping in 1985. Witnesses saw a man force Nathan Blenner into his car. Blenner's body was found the next day in a park with a single gunshot wound to the head. A security guard found Blenner's car two days later. Initially, the police had no leads for the murder, but then, during an interview with people in the area, a potential witness told police that Stuckey had recently given away a gun that he claimed had been used to kill someone.

"Stuckey and his friend McCallum were brought in for questioning. Both ultimately confessed, although their confessions did not match each other or the medical examiner's autopsy findings. Stuckey and McCallum both said later that detectives had slapped them during the interrogation.

"No physical or forensic evidence tied either teenager to the murder. They were convicted at separate jury trials and each was sentenced to 25 years to life.

"Stuckey died of a heart attack in prison after 14 years behind bars. McCallum continued to appeal his case.

"In 2011, McCallum's attorney asked Kings County (Brooklyn) [DA] Charles Hynes to submit the case to his Conviction Review Unit. Hynes informed McCallum's attorney that the Conviction Review Unit had determined that there was no credible evidence of innocence.

"After Kenneth Thompson was elected [DA] of Kings County in November 2013, McCallum's attorney asked him to take a fresh look at the case. Subsequently, DNA tests were performed on cigarette butts and a marijuana roach that had been found in Blenner's car. Neither Stuckey's nor McCallum's DNA was found, but a DNA profile that matched a man with a criminal record was developed. The reinvestigation also turned up evidence of alternate suspects who were known to police at the time of the initial investigation, but whose existence was not disclosed to the defense."

[McCallum] [551:808]; 2nd Dept. 1/29/90; affirmed

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

from NRE synopsis (by Maurice Possley):

"On October 20, 1985, 20-year-old Nathan Blenner was forced into his car and abducted in Queens...The following day, Blenner's body was found in Aberdeen Park in Brooklyn with a single gunshot wound in the head. His car was found on October 22 when a security guard reported that a group of youths set it ablaze on Fulton Street in Brooklyn.

"Police canvassed Blenner's neighborhood and found a woman who said that about an hour before the crime, she was washing her car on the street about a block from Blenner's residence. She told police that two black men walked by and one said she had a nice car. She replied that if her car were stolen, she would 'know where to look.' The woman said the men were in their 20s and one had braided hair. One was 5 feet 10 inches tall and the other was 5 feet 6 inches tall.

"The woman went through several police books of mugshots of robbery arrestees, but she did not identify anyone.

"Not long after, police questioned Terrence Heyward and Herman Mumford, who were both in their 20s, about a series of carjackings in Brooklyn that happened prior to Blenner's abduction and murder. They were questioned about the Blenner case, but denied involvement. Heyward, however, told Detective Joseph Butta that he knew that a 16-year-old named Willie Stuckey had recently given a gun to James Johnson and claimed that the gun 'had a body on it,' meaning it had been used to kill someone.

"Johnson led police to Stuckey and a friend of Stuckey, 16-year-old David McCallum.

"McCallum and Stuckey were brought in for questioning on October 27, 1985. Detective Butta said both confessed to carjacking and killing Blenner, although their confessions did not match. Stuckey said McCallum killed Blenner and shot him three times. McCallum said Stuckey shot Blenner and fired just once.

"Stuckey also confessed that he and McCallum had approached a woman who was washing her car just before the carjacking and commented that she had a nice vehicle.

"Both said Blenner was shot at night. However, the medical examiner said an autopsy indicated Blenner was shot during the day shortly after he was abducted.

"McCallum and Stuckey recanted the confessions almost immediately and claimed that detectives had slapped them. McCallum also said that the detectives threatened to hit him with a chair unless he confessed.

"Both rejected offers to plead guilty in return for prison setences of 15 years to life and they went on trial in Kings County...in October 1986. No physical or forensic evidence linked them to the crime. There were no witnesses who said they saw either one commit the crime. The primary evidence against them was their confessions."

"In 2011, McCallum's attorney, Oscar...Michelen's re-investigation of the case revealed the police interrogation of Heyward and Mumford, which had not been disclosed to the defense attorneys for McCallum and Stuckey prior to...trial."

"In April 2014, Rubin 'Hurricane' Carter, a well-known middle-weight prize fighter who was cleared of a wrongful conviction for murder in 1985, died of prostate cancer. Before he died, Carter sent a letter asking Thompson -- as a dying wish -- to review McCallum's case anew."

"On October 15, 2014, Thompson moved the Kings County...Court to vacate the convictions of both McCallum and Stuckey. The motion was granted and the charges against both men were dismissed. McCallum was released immediately.

"Thompson said the confessions clearly were false. He also was harshly critical of his predecessor, Hynes, for failing to seriously address claims of innocence. Thompson declared, 'I inherited a legacy of disgrace with respect to wrongful convictions.'

"McCallum subsequently filed a claim for compensation with the New York Court of Claims and in 2016 received $3.7 million."

[All emphases added unless otherwise noted.]

McCallum & Stuckey - False Confession / Perjury

Sun, 01 Jun 2025 04:09:38 +0000

Suggestibility issues

"No physical or forensic evidence tied either teenager to the murder. They were convicted at separate jury trials and each was sentenced to 25 years to life.

"Stuckey died of a heart attack in prison after 14 years behind bars. McCallum continued to appeal his case.

[McCallum] [551:808]; 2nd Dept. 1/29/90; affirmed

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

from NRE synopsis (by Maurice Possley):

"The woman went through several police books of mugshots of robbery arrestees, but she did not identify anyone.

"Johnson led police to Stuckey and a friend of Stuckey, 16-year-old David McCallum.

"Stuckey also confessed that he and McCallum had approached a woman who was washing her car just before the carjacking and commented that she had a nice vehicle.

"Both said Blenner was shot at night. However, the medical examiner said an autopsy indicated Blenner was shot during the day shortly after he was abducted.

"McCallum subsequently filed a claim for compensation with the New York Court of Claims and in 2016 received $3.7 million."

[All emphases added unless otherwise noted.]

Todd McCord - Mistaken Witness Identification

Sun, 01 Jun 2025 04:06:17 +0000

McCord, Todd; murder; NRE: mistaken witness identification

[553:806]; 2nd Dept. 4/2/90; affirmed

"The charges of which [McCord] stands convicted arose as a result of the October 6, 1986 attempted robbery of a Nabisco Warehouse in Queens County. At approximately 10:30 A.M. on that date [McCord] [???] and three accomplices entered the warehouse, threatened several employees with a shotgun and attempted to obtain the cash receipts. One of the employees being held at gunpoint managed to escape and the robbery was aborted. Immediately thereafter [McCord] and his accomplices fled in a green van bearing New Jersey license plates.

"At approximately 10:55 A.M., [NYPD] Officers Mark Wolf and Stanley Radzunski...observed a van matching the description previously broadcast...The officers commenced pursuit of the van, leading to a high-speed chase which terminated when the van collided with another vehicle. The collision resulted in the death of a passenger in the other vehicle. The collision resulted in the death of a passenger in the other vehicle. Two men ran out of the van. The codefendant Louis Slaughter [who is NOT on the NRE] was immediately apprehended, but the other man, who ran with a noticeable limp and was identified as [McCord], escaped. [McCord] was later arrested in connection with these crimes.

"One of the warehouse employees, William Blatz, had ample opportunity to observe [McCord] for five minutes during the commission of the crime, and in describing one of the perpetrators to the police, Blatz stated that he strongly resembled a former warehouse employee, Eric McCord, [Todd's] brother. Ten days after the crime, Blatz positively identified [Todd McCord] from a police lineup. In addition, another warehouse employee, William Judge, selected [McCord] from a lineup as the perpetrator wielding the shotgun during the robbery attempt...[W]e are satisfied that the verdict was not against the weight of the evidence..."

from NRE synopsis (by Maurice Possley):

"McCord went to trial in Queens...in October 1987...McCord's lawyer called alibi witnesses who testified that McCord was elsewhere at the time of the robbery.

"On November 10, 1987, a jury convicted McCord..."

"McCord's conviction was upheld in 1990 by the...Appellate Division. In 1993, McCord wrote a lengthy letter to the Queens [DA's] Office claiming he was innocent of the crime. McCord presented three affidavits supporting his claim. One was from a woman who said that at 7:30 a.m. on the day of the crimes, Lewis Slaughter, Clifton Waters and two other men came to her home to recruit her husband to take part in a robbery of the Nabisco Company warehouse. The woman said that she objected and ordered the men to leave the house. She said she told her husband 'that he better not go with them or I will leave him.'

"The woman said that at about noon that same day, Waters came back to her home 'really nervous stating that him and Lewis Slaughter was in the van while the cops were chasing it after they tried to rob the Nabisco Co. and that Lewis accidentally crashed his van into another car when the cops were chasing them.' She said that Waters told her that he thought Slaughter was arrested. The woman said she ordered Waters to leave and he did.

"Three weeks later, the woman said in the affidavit, Waters came back to the house 'to apologize' for coming to the house with the others to try to get her husband to take part in the robbery. 'Waters then stated the cops had mistaken(ly) arrested a guy named Todd McCord.' The woman said she immediately recognized that Todd McCord was a younger brother to Neal McCord, who had formerly dated an acquaintance of the woman.

"The woman said that 'at that point, I noticed that Clifton Waters and Todd McCord looked just alike.' The woman said she tried to find Neal McCord, but could not locate him. Four months later, Waters was fatally shot in the vestibule of his apartment building.

"The woman said that in 1992, her husband found Neal McCord and told him of the conversations with Waters. She said that at the time she did not come forward 'in fear for the safety of the family' from the others who were involved in the robbery attempt but were not apprehended. She said she feared she or her husband would be charged with something because of the robbery discussion that occurred in her home on the day of the crime.

"A private investigator working on behalf of McCord filed an affidavit describing an interview with Bernardine Waters, who was Clifton Waters' sister and who had a child with Lewis Slaughter. She said that after the attempted robbery, she came to believe that Clifton committed the crime with Lewis Slaughter and two other men. Bernardine Waters told the investigator that Slaughter told her he had never met McCord.

"Michael Kirkland, a friend of Slaughter, said in an affidavit that in 1987, while Slaughter was awaiting trial, he told Kirkland that McCord 'had nothing to do with the crime.'

"The Queens County [DA's] office interviewed the witnesses and conducted a re-investigation of the case over several months. [Manhattan] Justice Randall Eng held a hearing in March 1994. A man who was described only as 'Witness #1' testified after being granted immunity in return for his testimony. The witness said he was one of the robbers who had not been charged in the case...By then, the five-year statute of limitations on robbery had expired. The witness testified that McCord was not involved in the crime.

"On March 17, 1994, Justice Eng said the testimony of Witness #1 was credible and left 'no doubt as to (McCord's) non-participation in any of the crimes for which he was convicted.'

"The judge noted in a written decision that at the conclusion of the hearing, the prosecutor said, '(T)he People concede the defendant's motion and we ask the court to grant the motion.' After the convictions were vacated, the prosecutor dismissed the charges and McCord was released.

"McCord filed a claim with the New York Court of Claims seeking compensation. The claim was settled for $350,000 in 2000."

[All emphases added unless otherwise noted.]

Larry McKee - Mistake Identification / Police Misconduct

Sun, 01 Jun 2025 03:46:27 +0000

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

2001 WL 930843; S.D.N.Y. 8/15/01; writ denied, but Certificate of Appealability issued

"[McKee] was charged with the shooting death of Theodore Vance. An eyewitness testified to observing [McKee] [???] and Vance and that shortly thereafter, Vance was confronted by [McKee] and a Hispanic male. Ultimately, the witness saw [McKee] remove something from his pocket and then heard two shots. As he ran from the scene, he turned and saw [McKee] and then heard an additional shot. Shortly thereafter, he returned and found Vance's body."

from NRE synopsis (by Maurice Possley):

"On the night of February 19, 1996, 28-year-old Theodore Vance was fatally shot near the intersection of 176th Street and Andrews Avenue in the Bronx..."

"Rossy Chatelain, who was walking with Vance, told police that 25-year-old Larry McKee shot Vance. The shooting happened after Vance attacked McKee because Vance believed McKee was ogling his girlfriend. McKee ended the fight because he was losing.

"Chatelain said that later he and Vance were walking to Vance's home when he saw McKee, who is black, and a Hispanic man walking behind them. One of them called out, 'You, yo, turn around,' Chatelain said.

"Chatelain told police that the Hispanic man threw a bottle and Vance fled. McKee then pulled out a gun and shot twice. The Hispanic man did not have a gun, Chatelain said. Vance was shot twice and died an hour later.

"McKee was arrested and charged with second-degree murder.

"In May 1997, three weeks before McKee was scheduled to go to trial in Bronx County...the prosecution revealed a statement that a witness gave on the night of the shooting. Augustus Rivera said that he saw two Hispanic males and one black male chasing Vance and that one of the Hispanic men shot Vance.

"When McKee's defense attorney interviewed Rivera, he learned that the prosecution had interviewed Rivera two weeks earlier -- before disclosing Rivera's existence to the defense -- and Rivera had since changed his statement. He insisted he saw nothing on the night of the crime and he claimed that was what he told police that night.

"The prosecution didn't reveal the name of the detective who took the original statement from Rivera until after McKee's trial was already underway. When the defense objected to the late disclosure, the trial judge granted a recess for several days to allow for further investigation. That effort was stymied when the detective refused to speak to the defense.

"The prosecution's case rested primarily on the testimony of Chatelain, who identified McKee as the gunman, although his initial description of the gunman was a man 6 feet 3 inches tall and weighing 170 pounds. McKee was 5 feet 9 inches tall and weighed 210 pounds.

"When the defense sought to call Rivera as a witness, the judge ruled that the defense could not ask him about the police report. The report quoted him as saying that a Hispanic man shot Vance, but Rivera had by then disavowed that report. When the defense sought to call the detective to testify about the report, the judge said that the defense could not ask him about the report's contents."*

[* Why was the judge apparently 'ham-stringing' the defense here?]

"As a result, the defense did not call Rivera or the detective. Instead, the defense called Koshoto Stanback, who testified that he heard three or four shots and saw two flashes of light. Stanback said he saw a man an inch or two taller than 5 feet with a yellow complexion wearing a black leather jacket. The defense also sought to introduce a tape of a 911 caller who reported that the gunman was a Hispanic male with a pale yellow complexion and wearing a dark jacket. The judge denied that as well."

"On June 5, 1997, the jury convicted McKee..."

"After the conviction and prior to sentencing, the trial judge ordered a hearing to determine whether the prosecution's late disclosure of the information about Rivera's statement resulted in an unfair trial. The judge ruled that the prosecution should have disclosed the report of Rivera's statement and the name of the detective earlier, but that the delay did not cause McKee's trial to be unfair.

"The judge noted that at the time of the disclosure, Rivera was still available and there was no evidence that Rivera would have affirmed his original statement if he had been interviewed earlier.* Moreover, because the defense had been granted a mid-trial continuance to further investigate, the delay did not warrant a new trial."

[* This is an immensely misleading statement. Clearly, the earlier Rivera were interviewed, the more likely 1) he would not yet have changed his statement (for reasons that reek of official misconduct), and 2) the defense might have gained insight as to why he changed his statement. In any event, why is the onus on the defense; i.e., one could just as easily say that 'there is no evidence that Rivera would not have affirmed his initial statement if he had been interviewed earlier.' It is quite obvious that the earlier a witness is interviewed, the more time one will have to pursue leads produced by that interview.]

"The Appellate Division...upheld McKee's conviction. In 2001, he filed a federal petition for a writ of habeas corpus challenging the denial of a new trial. A federal judge dismissed the petition and in 2002, the...Second Circuit upheld the dismissal.

"In 2016, Darcel Clark was elected Bronx [DA] and subsequently established a conviction integrity unit to examine claims of innocence from defendants who asserted they were wrongfully convicted.

"McKee's attorney Michael Talassazan requested that the CIU re-examine McKee's case. In his own investigation, Talassazan had learned that Rivera was dead. He also found a new witness who said that he was present and saw a Hispanic man shoot Vance.

"On January 29, 2018, [ADA] Risa Gerson asked [Bronx] Judge Robert Torres to vacate McKee's conviction. Gerson, the head of the conviction integrity unit, had discovered that another witness had testified before the grand jury that indicted McKee that Vance, after he was shot, said the gunman was 'a Spanish guy.' That statement was never disclosed to McKee's trial defense lawyer.

"Gerson said the failure to disclose the grand jury testimony was 'particularly disturbing.' Moreover, 'given the nature of the grand jury testimony that was never turned over, the newly-discovered witness, considered in combination with the other evidence the jury did not get to hear,' the conviction should be vacated 'in the interest of justice.'

"Judge Torres then granted the motions to vacate the conviction and dismiss the charge, and McKee was released.

"McKee subsequently filed a compensation claim in the New York Court of Claims. In December 2018, he filed a federal civil rights lawsuit against the Bronx [DA's] Office and two New York City police detectives. He settled the lawsuit on April 7, 2021, receiving $4.89 million in compensation for his wrongful conviction. Separately, McKee received $4.5 million in compensation from the New York Court of Claims on March 21, 2022."

[All emphases added unless otherwise noted.]

Dhoruba bin Wahad - Perjury / False Accusation

Sun, 01 Jun 2025 03:41:07 +0000

Moore, Richard (aka Dhoruba bin Wahad); attempted murder; NRE: perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

[397:975]; Court of Appeals 7/7/77; affirmed

"The shooting occurred on May 19, 1971 on Riverside Drive in Manhattan. That evening a marked police car with two uniformed police officers, Thomas Curry and Nicholas Binetti, was stationed outside the home of Frank Hogan, who was then [Manhattan DA]. At approximately 9 o'clock the officers noticed a car going the wrong way on a one-way street. They pursued the vehicle and, after stopping it, were met with a hail of machine gun bullets.

"Both of the officers were seriously injured but survived the assault. Neither however was able to identify the persons who attacked them. Bystanders supplied some information: a description of the car as a blue or green late model Maverick or Mustang, several variations of the license plate number [FN1: There were three possible license plate numbers: 8373YR, 8373YD, and 8733YA] and a general description of the occupants as being black. In addition police ballistics experts were able to determine that the two officers had been shot by a .45 caliber automatic or semiautomatic weapon.

"Two days after the shooting...a young black woman left a package at WLIB, a Harlem radio station. Approximately a half hour later a black man left a similar package, folded inside a newspaper, at the security desk of the New York Times. Each of the packages contained a New York license plate No. 8373YR, a .45 caliber cartridge, an airmail envelope and a typewritten letter. The envelope indicated that it contained a letter explaining '(t)he shooting of two N.Y.P.D. Pigs on Malcolm's Birthday,' apparently referring to May 19, the birthday of Malcolm X. The letters stated: 'Here are the license plates sort (sic) after the Fascist state pig police. We send them in order to exhibit the potential power of oppressed peoples to acquire Revolutionary Justice. The armed goons of this racist government will again meet the guns of oppressed third world peoples as long as they occupy our community and murder our brothers and sisters in the name of law and order. . .The domestic armed forces of racism and oppression will be confronted with the guns of the Black Liberation Army, who will meet (sic) out in the tradition of Malcolm and all true revolutionaries real justice. We are Revolutionary Justice'..."

"Analysis by police experts revealed that each letter had been written on the same typewriter and halves of the same piece of paper. The police also discovered four readable fingerprints on the newspaper, which had been folded around the package delivered to the New York Times. The license plates, it turned out, had been stolen prior to the shooting.

"In the early morning hours of June 5, 1971 [Moore] and three others were arrested in an unrelated incident at a Bronx 'after hours' bar. Several weapons were found in the bar, including a loaded .45 caliber submachine gun. One of the patrons said [Moore] had entered the bar armed with the submachine gun. Police ballistics experts immediately checked the weapon and found that it was the one which had been used in the Riverside shooting. The police also learned that [Moore's] fingerprints matched two of the four prints found on the newspaper which had been left with the package at the...New York Times.

"A week later...the police received an anonymous call from a woman who stated that [Moore] had spent the evening of May 19 at a Bronx apartment belonging to the commonlaw wife of Eddie Joseph. That led them to Pauline Joseph, who became the chief witness for the prosecution. [FN2: At the trial it was stipulated that Pauline Joseph made the anonymous call herself, in which she originally stated that the four men being held in custody were not involved in the Riverside shooting or a later fatal shooting of two police officers in the 32nd precinct. ] Pauline Joseph stated that in January 1971 a girl friend of hers moved into an apartment with a man named Andrew Jackson, who was active in the Black Panther Party. After that a number of Jackson's friends, including [Moore] and Eddie Joseph, visited the apartment and, one by one, set up residence there. On May 15 [Moore] moved in with a black vinyl bag containing a machine gun. Later that day she saw a diagram of a building and was informed that [Moore] and Michael Hill were then planning to blow up a police station. They apparently abandoned this plan when she protested that 'innocent people,' meaning prisoners, might get hurt. The following day she again asked [Moore] and Hill what they planned to do. [Moore] replied 'we're going to deal with some pigs.' This time however he had decided to 'hit them from the outside.' When she pressed for further details [Moore] [???] simply said 'I'm going to kill them.'

"On May 19, Pauline Joseph saw [Moore] load the machine gun and place it in a duffel bag. At approximately 6 p.m. he picked up the duffel bag and left the apartment. Within 10 or 15 minutes, Irving Mason and Eddie Joseph, who was armed with a hand gun, also left the apartment. The three men returned approximately four and one-half hours later. Pauline Joseph noticed that one of the machine gun magazines was empty. [Moore] would not tell her what happened to the bullets. At 11 o'clock they all watched the news reports of the Riverside shooting on television. After it was over Pauline Joseph told [Moore] 'I think you did it' and he replied 'so what, you better keep your mouth shut.'

"That evening Pauline Joseph and Irving Mason's wife found an expended shell casing on the floor of a blue Maverick parked two blocks from the building. They turned it over to Irving Mason. The following day she saw two license plates in the apartment and she heard [Moore] and several others discussing the possibility of getting into the hospital 'to finish off the cops.'"

[Of course none of the evidence at trial directly established Moore's guilt. The prosecution's case was largely circumstantial.]

[His first trial ended in a hung jury.]

[568:784]; 1st Dept. 4/25/91; Cty. Ct. grant of motion to vacate affirmed, due to non-disclosure of Brady material

[579:636]; Court of Appeals 12/19/91; above decision reversed, saying that a hearing was necessary to determine whether violation likely contributed to verdict

[593:939]; N.Y. Cty. Ct. 1/7/93; new trial ordered, because materials withheld had reasonable probability of changing verdicts

[612:14]; 2nd Dept. 5/17/94; above decision ordering new trial affirmed

from NRE synopsis (by Maurice Possley):

"After his conviction, defense lawyers discovered that prosecutors had failed to turn over statements of witnesses that might have been used to impeach the witnesses' testimony at trial. In March 1990, Wahad's conviction was overturned because of the prosecution's failure to disclose this exculpatory evidence, and he was released.

"The prosecution appealed the decision and it was upheld in January 1993 in a ruling that said that the statements of the prosecution's key witness, Pauline Joseph, that were not disclosed included statements which 'depart significantly from some of her most crucial testimony, and that testimony was essential' to the prosecution's theory of the case.

"The prosecution then announced that they would not retry Wahad.

"Wahad sued both the FBI and the [NYPD] and ultimately received a total of almost $900,000."

[All emphases added unless otherwise noted.]

Sundhe Moses - False Confession / Perjury / Misconduct.

Thu, 12 Dec 2024 03:33:11 +0000

Moses, Sundhe; murder; NRE: false confession, perjury/false accusation, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, misconduct in interrogation of exoneree

Suggestibility issues

[689:652]; 2nd Dept. 6/1/99; affirmed

"[T]he verdict of guilt was not against the weight of the evidence..."

94 N.Y.S.3d 540; Kings Cty. Ct. 1/11/18; motion to vacate granted, due to recantations and police misconduct

"In 1995, when...Moses was nineteen years old, he was charged [with numerous crimes stemming] from a shooting...wherein two males exited a vehicle and shot into a crowd of people. Four-year-old Shamone Johnson was struck by two bullets and died. [Three other people] were wounded.

"[Moses] was identified in a photo array by two eyewitnesses, Sharron Ivory and Octavia Moore. [Two days later,] Detective Louis Scarcella and another officer picked [Moses] up at his home...Thereafter, [he] was interviewed at the precinct by several teams of detectives without being read his Miranda warnings.* He initally denied participating in the homicide and offered the alibi that he would later offer at trial. During this time, he was the subject of a lineup. Moore identified [Moses] in the lineup, but was unable to identify him at trial. In a later lineup, Ivory...also identified [Moore] in the lineup, but was unable to identify [him] at trial."

[* Nickel was never read his Miranda rights.]

"Besides the pre-trial identifications by Moore and Ivory, the only other evidence pointing to [Moses] was an inculpatory statement that he allegedly made to Detective Joseph Falcone after being read Miranda warnings [nearly seven hours after the police had picked him up]."

[According to this supposed statement, Moses "fired one time into the crowd," and a second man fired 4-5 times.]

"[Moses], however, testified on his own behalf at trial and stated that his statement was coerced...[He] stated that Detective Scarcella and other detectives threatened him but only Detective Scarcella struck him in the face, choked him while pressing his head against a wall and blew cigar smoke in his face. [Moses] testified that the other detectives held him down...[He] also offered an alibi witness, the mother of a friend, who testified that [Moses] was in her apartment at the time of the homicide. [One of the shooting victims] testified that he selected a filler [i.e., not Moses] during one of [the] lineups.

"Since the trial, both witnesses [Ivory and Moore] have recanted, in whole or in part, their identification of [Moses] that was made prior to trial. Neither eyewitness identified [Moses] at trial.

"[At a 2017 hearing on the motion to vacate, Moses] offered the testimony of Terrance Morgan, who was acquitted of the murder in a separate trial, but convicted of criminal possession of a weapon.

"Morgan testified that...during the summer of 1995, after Ben O'Garra was murdered, a dispute began between his neighborhood and another rival Brooklyn neighborhood. The dispute resulted in numerous shootings between Morgan's housing project and the housing project where the person who was believed to have killed Ben lived.

"At some point, Morgan was asked to participate in a shooting in revenge for the death of Ben O'Garra...[H]e was picked up by a car and driven to Brownsville with an unknown 'younger dude' and Juju, a drug dealer he knew from the neighborhood. He stated that [Moses] was not with him in the car. According to Morgan, Juju was murdered after the shooting.

"Morgan gave a far more detailed confession to the police than the statement that [Moses] was alleged to have given.

"Morgan remained unequivocal in his statement that [Moses] was not involved in the shooting.

"At the [2017] hearing [on the motion to vacate,] Detective Scarcella was confronted with his involvement in numerous convictions that the Kings County [Court] has vacated, such as Jabbar Washington; Vanessa Gathers; John Bunn; Shabaka Shakur; Rosean Hargrove; Roger Logan; David Ranta; Derrick Hamilton; Robert Hill; Alvena Jenette; and Darryl Austin...[T]he purpose of the testimony was to demonstrate that [Moses] now had a good faith basis...to impeach Detective Scarcella. That impeachment testimony consists of actual findings in the judicial opinions in the cases cited above, as well as public statements issued by the [Kings Cty. DA] in support of motions to vacate some of these convictions. The nature of this impeachment testimony is well documented and consists of, for example, a determination by the Hon. Desmond Green in the case of People v. Lewis a.k.a. Shabaka Shakur, dated May 24, 2015, that Detective Scarcella has a 'propensity to embellish or fabricate statements.'"

from NRE synopsis (by Maurice Possley):

"On August 27, 1995, three men, one dribbling a basketball, strolled up to a public housing project in the Brownsville neighborhood of Brooklyn...Two of the men opened fire with handguns, killing four-year-old Shamone Johnson, who was roller skating. Four others were wounded: [an 8-year-old, a 13-year-old, a 16-year-old], and 19-year-old Alex Moore.

"The two gunmen got into a car where a third man was waiting and sped off."

"Moses was suspected after Larry Cole, who lived in the housing project where the shooting occurred, told police he had heard on the street that Moses was involved. Cole had a history with Moses, who lived in the same housing project. In 1989, Cole tossed boiling water on the then-13-year-old Moses, causing burns on his abdomen and arm. Moses's mother got an order of protection against Cole. Cole was also ordered to pay restitution, although he never did.

"On August 30, 1995, three days after the shooting, [NYPD] Detective Robert Schulman showed a photographic array containing Moses's photo to Sharron Ivory, a witness to the shooting. Schulman reported that Ivory identified Moses as one of the two gunmen.* Schulman also reported that Octavia Moore, another eyewitness, selected Moses's photograph as well."**

[* Though perhaps technically true, it's extremely misleading: After Ivory failed to recognize any of the gunmen, a detective pointed to Moses and told Ivory to select him. (See below.)]

[** Based on Moore's subsequent affidavit, Schulman must have been lying. (See below.)]

"On September 1, 1995, Schulman conducted a live lineup and reported that Octavia Moore identified Moses again...Moore's brother...who had been wounded, also viewed the lineup, but did not identify anyone. Schulman conducted a separate lineup that same day for Ivory and Alex Moore...Schulman said Ivory identified Moses, but Alex Moore identified a filler.

"Detective Joseph Falcone said that by the end of the day, Moses had confessed to being one of the gunmen. As a result, Moses was charged with second-degree murder, four counts of assault, and criminal possession of a weapon.

"Moses went on trial in April 1997. Octavia Moore testified that she identified the gunman as the person in the #1 spot in the lineup -- which was Moses. However, when asked if she saw the gunman in court, she said she did not. She testified that the person she identified was a light-skinned black man, unlike Moses, who had dark skin."*

[* This is very odd. If the above details are correct, the person she had identified in the lineup was Moses. So, how could she have 'mistaken' a dark-skinned black man for a light-skinned one?]

"When Ivory testified, he also said he did not see the gunman in the courtroom."*

[* Fishier still. It's quite unusual for one witness to have (supposedly) identified a suspect in an array or lineup, and then, not been able to identify that same person in court. But for this to be the case with two witnesses -- that's virtually unheard of.]

"Detective Falcone testified that he and his partner questioned Moses, who initially denied involvement in the shooting and claimed he was at the home of a friend, Raynelle Clinkscale, playing video games at the time of the shooting. Falcone testified that about 30 to 40 minutes into the interrogation, however, Moses admitted that he, Morgan, and a third man he did not know went to the housing project and committed the crime. He said that he and Morgan fired the shots while the third man drove a getaway car.

"Moses testified that at the time of his arrest, he was enrolled in commnity college. He said that he was at Raynelle's house at the time of the crime. After he appeared in the lineups, he was taken to an interrogation room where, during the course of the day, at least five different detectives took turns questioning him.

"Moses said that after repeatedly denying involvement, Detective Louis Scarcella struck him in the face. Other detectives held him down while Scarcella choked him. Moses said he was terrified because he did not know what else the detectives might do, so he ultimately admitted to the crime. He said that when he signed the statement -- which he had not prepared -- he tried to smudge his signature as a way of signaling that he was not acting voluntarily.

"Detective Scarcella testified that his only involvement in the case was to arrest Moses on the orders of his superiors. He claimed he left the station around 11 a.m. that day and was not present when Moses signed the statement.

"Clinkscale's mother, Renee Flowers, testified that she came to her father's apartment that day and found Clinkscale and Moses playing video games. She made dinner and they all left her apartment shortly after 10 p.m. -- hours after the shooting had occurred.

"On April 14, 1997, the jury convicted Moses..."

"His appeals were unsuccessful. However, in May 2013, the [Brooklyn DA's] Office wrote to Sundhe that his conviction was under review by the office's conviction review unit because of Scarcella's involvement."

"On December 3, 2013, Moses was released on parole, despite his refusal to admit involvement in the crime. Moses's lawyers, Ron Kuby and Leah Busby, presented the evidence of Scarcella's involvement as well as recantations by Octavia Moore and Sharron Ivory to the parole board.

"Moore signed an affidavit saying that contrary to her testimony at trial, she never identified anyone positively. Rather, she had said one of the men in the lineup 'looked familiar.' When she got to court, she realized that the man she said was familiar was not Moses.

"Ivory also signed an affidavit saying that when he was shown the photographic lineup, he did not see either of the gunmen. However, the detective pointed to Moses and told him to pick him out. Ivory said that when he came to court, he refused to identify Moses because he felt he was no longer under the control of the police or the prosecution."

"In July 2015, Kuby filed a motion to vacate Moses's convictions, citing the evidence of Scarcella's misconduct as well as the recantations of Sharron Ivory and Octavia Moore. In addition, Terrence Morgan provided a sworn statement admitting that he was involved in the shooting and that Moses was not involved. Morgan said that the other gunman was a man he knew as 'Juju,' who had been murdered a few years after the shooting.

"Morgan said the shooting was in retaliation for the murder of Benjamin 'Killer Ben' O'Garro on August 17, 1995 -- 10 days earlier. O'Garro was fatally shot standing at a pay phone in the Fort Greene neighborhood of Brooklyn. According to Morgan, O'Garro was murdered because he stole jewelry from rapper Notorious B.I.G. at an awards ceremony."

"In January 2018, [Brooklyn] Justice Dineen Riviezzo granted the motion for a new trial and vacated Moses's convictions. The judge ruled that had the evidence of Scarcella's misconduct been presented to the jury in Moses's trial, he might have been acquitted."

"On February 16, 2018, the prosecution dismissed the charges."

"Moses received a $3.7 million settlement from the City of New York in 2019. He also filed a claim in the New York Court of Claims which he settled in 2020 for $3,500,000."

[All emphases added unless otherwise noted.]

Martin Nnodimele - Mistaken ID / Inadequate Counsel/ Misconduct

Thu, 12 Dec 2024 03:31:24 +0000

Nnodimele, Martin; robbery; NRE: mistaken witness identification, inadequate legal defense, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, prosecutor lied in court

Suggestibility issues

2016 WL 337751; 1/26/16; civil suit

"Nnodimele spent more than four years in custody for mutiple robberies for which prosecutors now say there is insufficient evidence of guilt..[H]is conviction was vacated and his criminal case dismissed...[He] accused [Detective Donald] DeRienzo and [Detective Edward] Garrity of various forms of misconduct, including fabricating evidence, withholding exculpatory information, and engineering unduly suggestive lineups.

"The robberies at issue took place in Manhattan over a two-week period in November 2007.

"[Nnodimele] informed DeRienzo that he could not have committed any of the robberies because he had been working full-time for a Brooklyn contractor named Leonard Parson... DeRienzo called Parson, who confirmed that [Nnodimele] worked for him. According to Parson, however, DeRienzo refused to provide the dates and times of the robberies and rejected Parson's offer to confirm [Nnodimele's] work schedule on particular days.

"[Nnodimele] claims that DeRienzo withheld material information from the prosecution and, in turn, the defense. Most significant in this regard are [Nnodimele's] allegations concerning Boyle, the eyewitness who spent the longest period of time with the perpetrator...and arguably the eyewitness who could have been most helpful to [Nnodimele] at trial. [Nnodimele] claims that DeRienzo (1) withheld Boyle's exculpatory lineup report from both the prosecution and the defense, disclosing her non-identification of [Nnodimele] for the first time during a suppression hearing held immediately before trial; (2) did not share or record Boyle's statement during the lineup that [Nnodimele] was definitely not the perpetrator of the Caravan robbery [one of the four robberies at issue]; and (3) did not share or record Boyle's statement that the man shown in the video still from the Visio robbery was the same person who had robbed the Caravan store, which made Boyle a potential exculpatory witness with respect to both robberies."

from NRE synopsis (by Maurice Possley):

"In late November 2007, New York City police created a wanted poster featuring a photograph taken from a surveillance camera during one of four store robberies in Manhattan. Police believed the same person had committed all of the robberies."*

"On December 9, a security guard at a men's homeless shelter was shown the poster and believed it depicted 47-year-old Martin Nnodimele, who had been living at the shelter on and off since August of that year.

"Police were summoned and arrested Nnodimele. After witnesses identified him in a series of live lineups and photographic lineups, Nnodimele was charged with three robberies on November 14, 20 and 26.

"Nnodimele went on trial in [Manhattan] on August 11, 2008. Witnesses from the three stores identified Nnodimele as the man who entered the stores, intimated he had a gun in his pocket, and left after money was handed over from the till. More than $1,700 was taken in the three robberies. Video surveillance footage of the three robberies was shown to the jury as well.

"Nnodimele presented witnesses who testified that he had been working as a day laborer on the days of the robberies, although he was not under constant supervision at all times.

"During closing argument, the prosecution told the jury that the robber was wearing the same clothing during all of the robberies and that it was the same as the clothing Nnodimele was wearing when he was arrested.* The prosecution said that Nnodimele's alibi witnesses were lying."

[* That was a lie -- see below.]

"On August 18, 2008, Nnodimele was convicted of two of the robberies and acquitted of the third. At his sentencing hearing, Nnodimele insisted he was innocent and that the video surveillance footage showed a man who had different facial features and was also much shorter."

"[T]he Center for Appellate Litigation in New York City was assigned to handle the appeal of the conviction. Attorney Jonathan Kirschbaum began re-investigating the case and discovered that Nnodimele's trial attorney had failed to locate a store employee who had been shown a photographic lineup and was adamant that Nnodimele was not the robber.

"Experts were retained to examine the video surveillance footage. Their analysis showed that the robber in all three cases was about 5 feet, 6 inches tall. Nnodimele, according to police booking records, was between 5 feet, 10 inches and 5 feet, 11 inches tall.

"Moreover, the analysis showed that the robber wore different clothing in the robberies, none of it matching the clothing Nnodimele was wearing when arrested.

"An examination of the surveillance video also showed that the robber looked different from Nnodimele -- one store was robbed by a bow-legged man with a pot belly, while Nnodimele had neither a pot belly nor bow-legs."*

[* Thus, not only did Nnodimele not match the person depicted in that video, but -- contradicting the police theory noted above -- there appeared to have been at least two perpetrators of these four robberies. (Did the police even examine the surveillance videos?)]

"Kirschbaum, joined by CAL attorney David Klem, filed a post-conviction motion for a new trial based on the new evidence, asserting that Nnodimele's trial attorney had provided an inadequate defense and that Nnodimele was factually innocent.

"On September 12, 2011 following an evidentiary hearing, the convictions for the two robberies were vacated. On October 24, 2011, Nnodimele was released on bond. The Manhattan [DA's] Office dismissed the charges on June 14, 2012."*

[* Thus, despite ample evidence of Nnodimele's innocence, the Manhattan DA's office left him 'hanging' for some nine months.]

"Nnodimele filed a claim for compensation in the New York Court of Claims that was settled in July 2014 for $450,000. Nnodimele filed a federal lawsuit against the city of New York which was settled in 2016 for $2 million."

[All emphases added unless otherwise noted.]

Julio Negron - MIstaken ID / Inadequate Counsel / Misconduct

Thu, 12 Dec 2024 03:27:14 +0000

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

Suggestibility issues

[976:220]; 2nd Dept. 12/11/13; motion to vacate denied

"The case involved an incident in which [Negron] was identified as the person who shot Mervin Fevrier in the thigh after a brief verbal altercation. Three eyewitnesses also identified [Negron's] car as belonging to the shooter, and testified, together with other eyewitnesses, that the shooter entered the apartment building where [Negron] resides.

"At trial, one of the eyewitnesses who had been with Fevrier at the time of the shooting testified that the shooter had a beard and mustache, and another witness picked out a filler who had a mustache from a lineup that included [Negron]. [Negron] testified that he was clean shaven both before and during the time of the shooting. The prosecutor introduced [Negron's] driver's license photo from 2004 showing him with facial hair.

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

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

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

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

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

"None of the witnesses, save the victim, was able to identify [Negron] as the perpetrator. [from FN1: The victim identified [Negron] at a lineup that was later suppressed as suggestive.] Indeed, two of the witnesses identified fillers from the lineups they viewed -- one selecting an individual with facial hair -- and a third witness, who viewed [Negron] at a precinct showup, stated that [he] was not the shooter.

"In December 2008, [Negron] made a pro se motion to vacate his judgment of conviction....[He] included letters from 11 witnesses stating that [he] had been clean-shaven."

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

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

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

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

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

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

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

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

"The [ADA] (who was also prosecuting Caban and was quite familiar with the circumstances of his arrest [Patrick O'Connor] ) in addressing [Negron's] third-party culpability application characterized Caban's arrest as 'irrelevant' and his connection with the shooting as 'tenuous at best.' The prosecutor also attempted to portray [Negron's] application as a mere attempt to pin the crime on another individual who lived in the same building and happened to be of the same ethnicity, all while aware that defense counsel was not fully familiar with the relevant information surrounding Caban's arrest."

from NRE synopsis (by Maurice Possley):

"Shortly before 4 a.m. on February 6, 2005, 31-year-old Melvin Fevrier was driving home from a party in Queens...along with a passenger, Elliot Miley. As Fevrier was driving up Woodward Avenue, a car was backing down the street. Fevrier honked his horn and exchanged words with the driver as they passed.

"Fevrier later told the police that the driver stopped, got out, and began yelling at him. Thinking he might have hit the other car, Fevrier got out and began walking toward the other driver. Fevrier said that both were yelling at each other, and as he got closer, the man got a pistol from his car and pointed it at him. When Fevrier asked what he was going to do, the man said, 'This is what I am going to do,' and shot Fevrier in the leg. Fevrier and Miley -- who was behind Fevrier at the time -- turned and ran. Fevrier and Miley got back into their car and as they sped sway, they heard two more gunshots.

"Fevrier and Miley eventually flagged down a bus, and the driver radioed for the police. Fevrier was taken to a hospital, and Miley returned to the scene of the shooting with an officer. Fevrier and Miley initially said the car had four doors and was either a Buick or a Cadillac, and Miley said the gunman drove off after the shooting. Nevertheless, Miley pointed out a green two-door Chevrolet Monte Carlo, which was parked on Woodward Avenue. The officer touched the hood of the car and found it still warm."*

[* So, this car Miley spots after the incident differs from the original description in terms of the number of doors AND make. Plus, it was said to have sped off. And then what -- the shooter drives it right back to the street where he just tried to kill these two guys -- and parks it? That's ludicrous.]

"Dmitriy Khavko, Zoryana Ivaniv, and Andriy Vintonyak had been sitting in a car parked on Woodward and fled when the shots were fired. They came back after police arrived, and said the driver had parked and walked into a building...Police towed the Monte Carlo and records showed it was registered to 38-year-old Julio Negron. Three .45-caliber shell casings were found on the street.

"Around 9:30 a.m., about five-and-a-half hours after the shooting, detectives rang Negron's doorbell and asked if he owned a green Monte Carlo parked around the corner. Negron pointed at the street, saying, 'No, I parked it across the street.' He said he had been at a party the previous night and then at a club until about 2 a.m. When he noticed the car wasn't across the street, he asked if it had been stolen. In response, the detectives asked him to come to the police station.

"Negron was eventually put in a lineup, but first, Fevrier was allowed to see him in a holding cell. Fevrier, who had been treated and released, was unable to say for sure that Negron was the gunman. The detectives, as well as the prosecutor, Patrick O'Connor, then took Fevrier into a private room and spoke with him for about 15 minutes. When Fevrier came out, he viewed the lineup again and said he was '100 percent sure' that Negron was the gunman.

"Miley was unable to identify Negron and identified the filler in position #1 as the gunman. Negron was in position #5.

"Two of the three people who were in the car on the street when the shots were fired came to the station. Ivaniv viewed Negron in a holding cell and immediately told detectives that Negron was not the gunman. Khavko picked the filler who was in position #2 in the lineup.

"Based on Fevrier's identification, Negron was charged..."

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

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

[* One wonders if this was the same pro-prosecution judge who overruled a previous judge's exclusion of Fevrier's testimony. This action by the prosecutor looks like a calculated attempt to 'familiarize' Fevrier with Negron before actually testifying.]

"Fevrier testified and identified Negron as the man who shot him. Khavko, Vintonyak, and Ivaniv testified that the gunman entered [the building] where Negron lived. Both Khavko and Ivaniv, who had identified fillers at the lineup, testified that they didn't see the gunman in the courtroom, although Negron was sitting at the defense table.

"Their descriptions varied. Miley said the gunman had a beard and a mustache and was wearing dark pants, a sweatshirt, and a black wool cap. Khavko and Ivaniv said the gunman had a black bandana on his head. Khavko also said the gunman wore a plain green jacket.

"Negron denied involvement in the crime. He testified that he was a custodial engineer for the New York City Department of Education and worked two jobs -- at a public school in Brooklyn during the day and at a high school in Long Island in the evening. He said he was clean-shaven at the time. Two friends of Negron testified they were out with him that night, and that he was wearing a jacket with a Ground Zero recovery patch, blue jeans, and a Yankees basebal cap.

"The prosecution, in rebuttal, presented a photograph of Negron's driver's license showing him with facial hair. The photograph on the license, however, was taken eight years earlier.

"The defense also sought to introduce evidence that a man named Fernando Caban was the real gunman. Caban resembled Negron, lived in the same building, and one day after the shooting had been arrested for possession of a cache of weapons. Prosecutor [Patrick] O'Connor objected to the evidence as insufficient and the judge barred it, ruling it didn't meet a standard requiring a 'clear link' between the evidence and the crime on trial.

"On March 27, 2006, the jury convicted Negron on all counts."

"[A] motion in Queens County...seeking to vacate Negron's convictions...claimed that Negron's trial attorney had provided an inadequate legal defense by failing to call witnesses to support Negron's testimony that he was clean-shaven at the time of the crime. The motion also said the judge had used the wrong legal standard in denying the defense the opportunity to present evidence that Fernando Caban was the real gunman.

"Moreover, the motion said that the prosecution had failed to disclose that Caban was arrested after he fled the building and threw away .45-caliber ammunition -- the same type used in the shooting of Fevrier.

"The motion was denied in 2012, and the Appellate Division upheld that ruling in 2013. In November 2015, however, the New York Court of Appeals reversed Negron's conviction and ordered a new trial based on new information about Caban that Negron had subsequently received pursuant to a public records request.

"The information showed that Caban had attempted to flee the building and discard the weapons and ammunition when the police arrived at the building to question Negron -- apparently because he thought the police were after him. In addition, Caban had been in possession of .45-caliber ammunition -- the same caliber involved in the shooting of Fevrier. Moreover, the prosecutor in Caban's case was [Patrick] O'Connor -- the same prosecutor in Negron's case.

"The appeals court ruled that the trial judge had applied an incorrect legal standard in barring the defense from presenting the limited information on Caban at trial. It further ruled that the additional information about caliber of the ammunition should have been disclosed to the defense.

"Negron was released on bond in January 2016. After the prosecution said it intended to retry the case, [a motion to dismiss the indictment was filed]. "On September 6, 2017, Queens County... Judge Gregory Lasak dismissed the charges, ruling that the prosecution had failed to present evidence relating to the failure of other witnesses to identify Negron when it presented the case to the grand jury for indictment.

"'Had the grand jury understood that two witnesses selected a person other than [Negron] in the lineup, one witness stated that. . .the shooter was not [Negron] and the circumstances under which Mr. Fevrier's identification changed from an equivocal to a certain one, not only would the grand jury presentation been forthright, but it is very likely that the outcome of the grand jury proceedings would have been different and that the grand jury would have determined that this was a needless or unfounded prosecution,'* Judge Lasak ruled."

[* Applying an analogous critique of the grand jury proceedings in the Nickel case, had THAT grand jury understood that each and every detail 'Arthur' provided (at his initial police interview) regarding Nickel's home was wrong, and had it been shown the police-taken photographs that proved it, the grand jury would have determined that THAT was an unfounded prosecution. ] "'Indeed, given the sheer volume of the exculpatory evidence and its bearing on the only critical issue in the case, the omission or incomplete nature of this evidence obviously had the potential to prejudice the ultimate decision reached by the grand jury that [Negron] was, in fact, the shooter,' the judge said.

"Negron subsequently filed a claim for compensation with the New York Court of Claims. It was dismissed in 2021. In November 2018, he filed a federal civil rights lawsuit against the city of New York, [prosecutor Patrick] O'Connor and a police investigator. The lawsuit was settled for $6.25 million in November 2021."

[All emphases added unless otherwise noted.]

Reginald Cameron & Armond McCloud - Police Misconduct

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

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

Suggestibility issues

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

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

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

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

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

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

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

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

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

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

from NRE synopsis (by Maurice Possley):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Nothing came of the letter.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[All emphases added unless otherwise noted.]

Shirley Kinge - Perjury, misleading forensics, police misconduct

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

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

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

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

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

from NRE synopsis (by Maurice Possley):

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

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

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

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

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

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

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

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

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

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

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

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

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

[All emphases added unless otherwise noted.]

Kerry Kotler - Mistaken ID, Perjury, Police Misconduct

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

Kotler, Kerry; sexual assault, burglary, robbery; NRE: mistaken witness identification, perjury/false accusation, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence

N4 [24] "In the matter of Kerry Kotler, the complainant was raped. A few minutes later, another person was raped nearby. The perpetrator of the second rape matched the description given by the complainant. The second victim was shown Kotler's photo but did not identify him, thereby permitting the argument that someone other than the accused also committed the earlier crime. The defense was not told about the second rape and the failure of the second victim to identify [25] Kotler. Further, the defense was not told that when the complainant selected Kotler's photograph, she said only that he looked like the rapist. Finally, the lead detective on the case destroyed both his original notes about the second rape and the original of the police report. Kotler learned all of this after the conviction. While the Brady violation was not the sole cause of the wrongful conviction, it might have contributed to it." [Latter emphasis original.]

from NRE synopsis (by the Innocence Project):

"Kerry Kotler was convicted for the rape, burglary, and robbery of the same victim on separate occasions in 1978 and 1981. A man in a ski mask and armed with a knife had raped and robbed her in her home. She could not identify him and reported only the burglary to the police. In 1981, she returned home to find a man who claimed to be returning for another visit, this time without a mask, who again raped and robbed her at knife point.

"The victim identified Kotler from a photo book, as well as by voice and at a live lineup. Testing by conventional serology could not exclude Kotler as the depositor of the semen on the victim's underwear. Kotler appealed based on many issues, but his conviction was affirmed.

"In 1989, Kotler succeeded in having the evidence sent to a laboratory for DNA testing. The amount of DNA, however, was insufficient and the evidence was returned. The evidence was then sent to Forensic Science Associates. PCR testing revealed that Kotler could not have been the depositor of the semen on the victim's underwear. The prosecution contended that the profile found could have been a mixture of a consensual partner and Kotler. The evidence was then sent to the Center for Blood Research, whose findings were the same as FSA's. The victim's husband was then tested and also excluded.

"In March 1992, based on these results, the defense filed to vacate the judgment. Besides the DNA results, the defense brought up the withholding of evidence including police reports that showed the victim's description to be quite different from Kotler and that the identification itself was not positive. The court held a hearing regarding the new DNA evidence, resulting in the prosecution joining the defense to vacate the conviction. The conviction was vacated on December 1, 1992. Two weeks later, the indictments were officially dismissed. Kotler had served eleven years in prison.

"He subsequently received $1.5 million in damages from Suffolk County. He also filed a claim for compensation in the New York Court of Claims and was awarded $1,512,000."

[All emphases added unless otherwise noted.]