NY Ct.: We Have Broad Powers to Correct Systemic Wrongs

In powerful language that will likely find its way into many future briefs to overturn wrongful convictions, a NY appeals court has reminded everyone that, when it comes to the criminal justice system, courts should not place form over substance. The case is People v. Hargrove 2018 WL 1833080, and it was handed down on April 18 2018 out of the Second Department – the NY Appeals court covering 10 counties, including Brooklyn, Queens, Nassau and Suffolk.

In the early morning hours of August 13, 1991, Rolando Neischer and Robert Crosson sat in a car in front of the Kingsborough housing projects in Brooklyn, New York. The two men both lived in the housing project and had known each other for their entire lives. They both worked as correction officers at Rikers Island. Two men approached the car on bikes and began shooting at the car. Crosson was shot in the hand and Neischer eventually died of the gunshot wounds inflicted upon him. Crosson told the first two police officers he approached after the shooting that one perpetrator was a “male black, 16 to 20 years of age.” He then told a detective at the hospital that the other perpetrator was “a male black in his twenties, five foot nine or ten, light skinned.” The case was assigned to Detective Louis Scarcella who managed to arrest two suspects within 24 hours of the crime. He testified he acted on an anonymous tip that led him to the suspects’ apartment building though he could not recall who took the call or who made the call. The defendant was known to the precinct after having been arrested on two prior carjacking cases but Scarcella claimed that had nothing to do with apprehension saying they “just got lucky.” Scarcella put the two defendants in a line up and they were identified by Crosson. The two defendants did not match the physical description however. Neither was light-skinned and one was 14 and the other 17. Crosson never stated in any identification that he knew the defendant Hargrove since Hargrove was a small boy as they lived in the same housing project.

All through the trial, the defense kept asking for lab reports on tests of blood and further fingerprint testing from the car. All the fingerprints and palm prints found had already come back as not belonging to the defendants. The NYPD and the DA’s Office insisted no testing had been done on the blood from the car and that since he defendants had no open cuts on them at the time of the arrest, then what difference would blood testing make. The trial testimony lasted one day – the jury deliberated four about twelve hours and convicted the defendant s of second degree murder. Hargrove was sentenced to 25 to life. He lost all his appeals.

Det. Louis Scarcella
Photo courtesy of John Taggart/NY Times

Then in 2014, it was reveled that Detective Louis Scarcella was involved in a large number of suspicious convictions where identification testimony was involved. He and his partners had engaged in many corrupt police practices to fake identifications or importune bad ones. Hargrove’s family got new lawyers who discovered Crosson’s connection to Hargrove and records that showed the blood had been sent for testing but then the results and the samples were destroyed and never exchanged with the defense.Defense counsel filed a motion in argued that despite the importance of the blood samples to the issue raised by the defendant during trial and on his direct appeal, the apparent release of this evidence “during the pendency of . . . [the defendant’s] appeal” indicated “that the evidence was destroyed as a result of bad faith.” They fled a motion to overturn his conviction and were granted a hearing in 2014.

At the hearing, Scarcella, Crosson the trial DA testified. The court found that Detective Scarcella’s testimony at the was “false, misleading, and non-cooperative” The court noted that Crosson had testified at the trial that the person who assaulted him was a stranger, and that “his assailants [were] two light skinned black males in their twenties.” The court observed that Crosson was a black male and that “[n]one of the defendants may be accurately described as light skinned’ black males. The court further noted that the defendant was 17 years old at the time and the codefendant was 14 years old.

In addition, the court noted that Crosson “never recognized or identified that his assailant was a person known to him or that he had previously seen the defendant. There [was] no evidence Crosson recognized the defendant at the outset of the crime, although they lived in the same housing for over twenty years and [Crosson] admitted to knowing the defendant’s family with whom the defendant lived.”

The court reiterated that “[t]here was no other evidence available, aside from Mr. Crosson’s testimony, to convict the defendant” (id.). The court then noted that the fingerprints that were taken from the bicycles used by the perpetrators and the fingerprints and palm prints that the police recovered from the stolen vehicle did not match either the defendant or the codefendant, and that in 23 plus years blood evidence that was recovered was not tested.” The court concluded: “Given the false and misleading testimony provided by former detective Louis Scarcella at the hearing . . . and the circumstances surrounding the conviction, with missing biological evidence, inconsistent testimony, and bare evidence, this court finds that the newly discovered evidence makes it probable that the result in this case would have been different if a new trial were held.”

The government appealed the ruling, raising two procedural issues: In their first point, they argue that the alleged evidence of police misconduct that was produced was largely inadmissible and would not have resulted in a different verdict.” In their second point heading, they argued that the defendant failed to demonstrate that blood evidence was improperly destroyed.

In upholding the reversal of the defendant’s conviction the court took a great deal of time detailing the many wrongful convictions attributable to Scarcella and the history of NY Law surrounding newly discovered evidence. The court noted that had the trial jury known about Det Scarcella’s history of bad police practices and outright corruption, the verdict could very well have been different. Further, the court said that Crosson’s testimony about the identification was questionable since Crosson repeatedly claimed at trial and during the new hearing that he did not know the defendant prior to this identification, though reports indicated that “Crosson identified [the defendant] as his shooter from the photos but admitted that he recognized him from the projects and would need to see him in person in order to be sure.”

In upholding the reversal, the court set out striking and powerful language to remind the government and future courts what’s at stake when looking at potentially wrongful convictions and what is the duty of the reviewing court:

The People have chosen to focus their appeal on an array of procedural and evidentiary arguments, largely ignoring the major underlying issues at stake. But these rules of procedure and evidence are not to be invoked for their own sake. They do not exist solely as an arsenal to be ranged against the accused or the imprisoned. They exist so that truth may emerge from their considered application. Indeed, it requires no earth-shattering pronouncement to state simply what centuries of jurisprudence make clear: that justice is the whole of the law.

And although our institutions of law enforcement are the bedrock of our system of justice, they do not deserve our blind faith or allegiance. When we succumb to that temptation we abdicate our duty to ensure that justice is done in every case and under every circumstance. Society’s allegiance and faith must be earned through our labors and consistently reaffirmed by our decisions. Recognition of our errors does not make our system weak, it makes it resilient. When we ignore our errors or seek to avoid confronting them, we imperil the very foundations of our legitimacy.

The court was not done, however. At the end of the decision, the court set out language making clear that a reviewing court has broad powers that it should exercise in trying to do justice overall as opposed to getting lost in or hung up on minor arguments based on procedure:

This Court is vested with “a broad and discretionary power to be exercised in accordance with the conscience of the court and with due regard to the interests of the defendant and those of society… .Although [this Court’s] ultimate concern should be the interests of justice in this particular case, [this Court’s] responsibilities also include a duty to correct any situation which casts a doubt upon the proper functioning of the courts in the administration of justice.”

I know that I will very likely be using this decision and its moving language in my post-conviction filings. Too often, courts allow post-conviction cases to be lost due to procedural failures. The Hargrove case sets a standard for courts to live up to – to do justice not just to the defendant but to the system overall.

On a side note – the case reflects how long it can take to get relief from a wrongful conviction. Convicted in 1992 at the age of 17; new evidence found and hearing held in 2014; reversal upheld in 2018 and defendant released after serving nearly 23 years in prison. Hargrove and Bunn maintained their innocence all along. Their families pursued justice on their behalf relentlessly in a two decade struggle to get at the truth. Congratulations to them and their team of lawyer in finally getting it done. You can read the whole decision HERE

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