Appeals Court Says Police Ballistics Expert Can Be Sued Helping Wrongfully Imprison Two Men For More Than 17 Years

from the New-Haven-PD-just-as-fucking-culpable-for-this-atrocity dept

Judge Alex Kozinski noted back in 2015 there was an "epidemic of Brady violations" occurring during prosecutions in this country. "Brady" refers to the Supreme Court case Brady v. Maryland -- one that established the right for defendants to have access to exculpatory evidence, creating an obligation for prosecutors and law enforcement to produce this evidence during trials.

Obviously, this hasn't been an absolute since this ruling. Prosecutors aren't interested in handing over evidence that undermines their cases. And cops are equally unwilling to produce evidence that undercuts their arrests, narratives, and coerced confessions.

Here's how it works out for defendants, according to Judge Kozinski, while excoriating an appeals court decision that basically blessed Brady violations as long as the government still presented some inculpatory evidence.

It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it’s best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here.

Grim stuff. But it's the way the government continues to play the game. That's highlighted in this recent decision [PDF] by the Second Circuit Court of Appeals. Fortunately, the court sides with the two men wrongly convicted of a robbery and murder. Unfortunately, that decision more than 17 years after the fact.

Here are the allegations:

After each serving more than 17 years in prison for a robbery and murder they did not commit, plaintiffs Vernon Horn and Marquis Jackson brought civil rights actions against the City of New Haven and law enforcement officials under 42 U.S.C. § 1983. As relevant here, plaintiffs alleged that police forensic examiner James Stephenson violated their due process rights under the Fourteenth Amendment by withholding exculpatory ballistics reports in contravention of Brady v. Maryland.

And here's how police investigators developed their case against these two (at the time) teens, based on intuition not too far removed from the Sunday night quarterbacking of "Law & Order" viewers.

On January 23, 1999, Vernon Horn and Marquis Jackson went out on a Saturday night in downtown New Haven. The two teenagers met up with friends at the Alley Cat nightclub and then stopped by Dixwell Deli (the Deli), a 24-hour convenience store, at around 2:45 a.m. After purchasing a few items, they drove back to Jackson’s apartment several blocks away.

Around 3:30 a.m., three masked robbers burst into the Deli and opened fire. The shots hit an employee and a customer, Caprice Hardy, who died shortly thereafter. After stealing a cellphone from a store clerk and trying unsuccessfully to raid the cash register, the robbers fled the scene.

A few minutes after the robbery, Horn walked back to the Deli. This raised the suspicions of the lead detective on the investigation, who believed that perpetrators of homicides tended to return to crime scenes.

The police decided these two were the best fit for the robbery and murder charges. Nothing would dissuade investigators from this predisposition -- not even contradictory evidence. To ensure their preferred theory succeeded in court, the PD almost literally buried all evidence to the contrary.

Numerous pieces of evidence, however, suggested that a group of drug dealers in Bridgeport, Connecticut, not Horn or Jackson, was responsible for the murder-robbery. Call records for the stolen cellphone showed that four out of five calls made after the incident were to the Bridgeport drug dealers or their associates. Because the records did not support the case against Horn and Jackson, NHPD officers suppressed the records for nearly 20 years, hiding them in the basement of a detective’s house.

This is not even the issue being examined here, but let's read that last sentence again.

Because the records did not support the case against Horn and Jackson, NHPD officers suppressed the records for nearly 20 years, hiding them in the basement of a detective’s house.

What even the fuck, he asked professionally. HOLY SHIT.

But that's not even this issue here. The issue here is the supposed "ballistics expert," who also decided to not only bury exculpatory evidence, but whip up new "evidence" that supported the coerced confession the cops had obtained.

Here's how we get to this case. A police investigator with a theory unsupported by evidence sent casings to a forensic expert in hopes of obtaining a report indicating the bullets came from a Beretta linked to the nominal suspects. Unfortunately for him, the ballistics report disproved that speculative theory.

On February 3, 1999, defendant James Stephenson, the assigned firearms examiner, generated a General Rifling Characteristics Report (the 1999 GRC Report) that listed all firearm models that potentially matched the ballistics evidence, using a margin of error of +/- 2 thousandths of an inch. A Beretta handgun was not among the possible matches.

The first report handed to investigators and the prosecution noted the mismatch. This was noticed by the prosecutor preparing for the trial, who saw that the ballistics report didn't match up with assumptions made by police investigators. Rather than entertain the possibility it was the cops who were wrong, the prosecutor assumed it was the ballistics tech who had screwed up.

And, rather than stand by his original findings, the tech reran the test with a higher margin of error to ensure the Beretta cops and prosecutors wanted the murder weapon to be was included as a possible match.

On February 15, 2000, Stephenson generated a second GRC Report (the 2000 GRC Report). This time, using a larger margin of error of +/- 4 thousandths of an inch, the report listed multiple Beretta models as potential matches.

And he might have gotten away with it. But he failed to pass on these reports to the defendant -- not the one that said it wasn't a Beretta, nor the second pass which suddenly said it was a Beretta.

It took nearly twenty years to expose the ballistics examiner's malfeasance:

In 2018, as part of a re-examination of the case by the Connecticut Federal Public Defender’s Office, the NHPD produced the stolen cell phone’s call records and both the 1999 GRC Report and the 2000 GRC Report. After reviewing the belatedly disclosed evidence, the State’s Attorney’s Office successfully moved to vacate the judgments of conviction for both men. In or around April 2018, after serving 17 and 19 years in prison, respectively, Horn and Jackson were released.

These men lost a combined 36 years of their lives. The forensics examiner hasn't lost anything… yet. And yet, he insists he should be allowed to walk away from this lawsuit.

On appeal, Stephenson argues that: (1) he is entitled to qualified immunity because it was not clearly established by 1999 that “firearms examiners” had an obligation under Brady to turn over exculpatory evidence to the prosecutor; and (2) he is entitled to absolute immunity with respect to the 2000 GRC Report because he prepared it at the prosecutor’s direction.

Nope, says the court.

We disagree.

It was clearly established -- for at least seven years at that point -- that a police employee has similar obligations under Brady.

We disagree and conclude that a police forensic examiner, whether an analyst or technician fulfilling any of the roles associated with forensic analysis, in 1999 reasonably would have understood that he or she was required to turn over exculpatory information to the prosecutor.

As the analyst's own testimony pointed out, forensic techs are almost always former cops, at least in New Haven, Connecticut. And if police officers are subject to Brady obligations, it makes no sense to exclude former police officers who still work for the police department.

And there's no absolute immunity for the analyst either. He attempted to argue that the prosecutor's call with questions about the possibility of the murder weapon being a Beretta prompted his subsequent report. But he was never asked to perform another analysis or generate another report. He was only asked a question about the certainty of his conclusions. This means Stephenson can't hide behind the immunity afforded to prosecutors. And that means he will have to continue to defend himself and, hopefully, be held responsible for his role in stealing a combined 36 years of life from two teens.

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Filed Under: 2nd circuit, ballistics, brady violations, evidence, marquis jackson, police, vernon horn, wrongful conviction


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  1. identicon
    A former New Havener, 13 Sep 2021 @ 8:49pm

    I might be able to add some – that is, very little – backgro

    At the time this crime took place, I knew this neighborhood rather well. I was in college, but had lived until August 1998 in a group home on Winchester Avenue, not far from the corner of Dixwell Avenue and Bassett Street (yes, I was a ward of the state). The Dixwell Deli, known as the Two Four to the locals, was a twenty-four-hour deli and the preferred hangout of a large group of people, mostly drug dealers. They were known for being rowdy and not particularly welcoming to strangers.

    In the late 1990s, there was a string of robberies in New Haven. One did not hear about them from newspapers, but from word of mouth. And the streets talked. Drug dealers were being robbed for cash and drugs. No one knew who was doing it. Robbing drug dealers in New Haven wasn't exactly something one did. New Haveners have a chip on their shoulders and a kind of inferiority complex, because New York is so close. And because of this chip and because of this complex, street violence in the 1990s often went to extremes. I remember two incidents particularly well. The first involved a police officer, who was beaten horribly on Winchester Avenue, not far from the group home I was in – for no discernible reason other than he was duty. The second also happened on Winchester Avenue, and involved rival drug dealers from Brooklyn, New York, who were ambushed with gun fire as they left a local club, the Taurus, I believe it was called. … At any rate, it later came to light, I believe it was 1997 or 1998, that these robberies were being committed by other drug dealers from Bridgeport, Connecticut, just a short drive south from New Haven. —These cursory facts all fit the facts related in the story given here.

    Regardless of the violence committed by ordinary citizens in New Haven, the police in this particular neighborhood, the Dixwell Newhallville section of New Haven (known as the Ville), were – and I wish this were an exaggeration – worse than any of the drug dealers. The police acted with impunity. During my time in the neighborhood, I saw them jump out of their cars and chase people with golf clubs and beat people and plant drugs on people and rough people up for no reason. I'm not saying these people were all innocent; that would be an exaggeration. But some were, and some were known drug dealers and stick-up kids (that is, people known to do robberies by gun point).

    Two police officers remain in my memory. I don't remember their real names. Everyone called them Psycho and Maniac. And they had earned those nicknames. They were absolutely nuts – and violent. While the police officers are not named in this story (and I haven't bothered even to try to find out the names of the police officers), I would bet good money that they had something to do with the wrongful arrest. At the time, there were stories of incidents – and I had witnessed one incident – where Psycho and Maniac beat someone and planted crack cocaine. The charges? Possession of an illegal substance with an intent to distribute and resisting arrest.


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