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
    Anonymous Coward, 13 Sep 2021 @ 4:22pm

    Makes you wonder how many cases have proceeded in exactly the same manner, except the contrary evidence never came to light.

    reply to this | link to this | view in thread ]

  2. identicon
    David, 13 Sep 2021 @ 4:45pm

    So I did an image search for those names

    Somehow not particularly surprised that the youths locked away for decades on fabricated/imagined evidence were black.

    I do get the impression that this kind of bending the facts to get a predetermined outcome has quite a correlation to skin color. I don't really get the impression that the evidence for white suspects has a similarly strong tendency to get laundered into a guilty verdict but has a bit better chance to be judged on its own merits without additional help.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 13 Sep 2021 @ 5:13pm

    I'm not American so I might be missing something here but why is it the ballistics expert responsibility to pass evidence on to the defence rather than the prosecutors?

    As the prosecutor seems the person in the best place to ensure all evidence of a case is passed onto the defence.

    I'd understand it if the ballistics expert refused to hand the report over to the defence (or hid it like the other officers hid their evidence) but the story makes no mention of the tech doing something like that.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 13 Sep 2021 @ 5:39pm

    Re:

    It's exactly about the fact that it wasn't turned over to the prosecutor's office. It is then the prosecutor's job to turn over evidence to the defense.

    The tech ran a new report that would allow for the inclusion of more gun barrells, and retracted the initial report, instead of saying "no, this is correct", or just leaving the original report.

    So you are missing something, but it isn't a difference in legal systems.

    reply to this | link to this | view in thread ]

  5. icon
    That Anonymous Coward (profile), 13 Sep 2021 @ 5:39pm

    Re:

    All of the evidence in cases is to be provided to both sides.

    Prosecutors routinely fail to turn over evidence that might hurt their cases, their conviction rate being sacred to them advancing, and magically when they make it on the bench or to a higher legal office they take extra care to make sure no one ever challenge their wins & how they got them. Whats an innocent man in jail for a crime he didn't commit when a DA wants to be Governor?

    Knowing you could be punished by the court wouldn't you make sure to print 2 copies & messenger them to both sides to cover your own behind?

    reply to this | link to this | view in thread ]

  6. icon
    That Anonymous Coward (profile), 13 Sep 2021 @ 5:41pm

    Re: So I did an image search for those names

    Wait till we find out there is a law that is supposed to compensate them for being railroaded & they do everything they can to avoid having to pay these men.

    reply to this | link to this | view in thread ]

  7. icon
    JMT (profile), 13 Sep 2021 @ 5:54pm

    Re: So I did an image search for those names

    "I don't really get the impression that the evidence for white suspects has a similarly strong tendency to get laundered into a guilty verdict but has a bit better chance to be judged on its own merits without additional help."

    On the contrary, it gets laundered in the other direction, e,g. "affluenza".

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 13 Sep 2021 @ 7:30pm

    Re: Re:

    i think the confusion was they thought the ballistics tech was meant to personally turn over data to the defense, where the issue is the tech removed a valid report and replaced it with one the prosecutor liked better.

    reply to this | link to this | view in thread ]

  9. 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.

    reply to this | link to this | view in thread ]

  10. identicon
    Bobvious, 14 Sep 2021 @ 12:21am

    Margin of error

    If they kept extending that margin of error and included all ballistics events from the previous 40 years, they could have pinned the Grassy Knoll and Jimmy Hoffa on these kids as well.

    reply to this | link to this | view in thread ]

  11. icon
    ECA (profile), 14 Sep 2021 @ 1:25am

    Unlike other countries?

    truth, justice and the American way?

    For all the great things religion Trys to be.
    For everything Every country has heard about the USA, For Many decades.
    For all the democracies the USA has created and installed a despot.
    Is there any reason to keep repeating that 1st line?

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 14 Sep 2021 @ 6:38am

    Re: Re:

    Thanks, it wasn't clear in the article that the tech didn't disclose the report to the prosecutor, as it mentioned the prosecutor was the one who ordered a new report when the old one didn't match the evidence.

    reply to this | link to this | view in thread ]

  13. icon
    Ninja (profile), 14 Sep 2021 @ 8:18am

    So the ones responsible for this debacle, all of them, will get at least 36 years in jail to lose the exact same amount of time they made these men lose because of an unfair, biased ruling? And all the cases that relied on their work will be also put under scrutiny? Right? RIGHT?

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 14 Sep 2021 @ 1:37pm

    Re: I might be able to add some – that is, very little – bac

    From my view over the pond I often wonder how social Americans keep up against the asocial tides. There seem to be so many corrosive elements in the US on rampage. Rich cities getting richer at the expense of draining poorer ones ever more. Inside the rich cities it's the same divide, with millionaires sitting in their domes cleverly avoiding paying most taxes if at all while endulging in the biggest luxury and spouting off about philantropy. Meanwhile, rents jack up and homeless fill the street getting buckets of water poured over them by their fellow citizens still in houses. All of it clouded in a mist of drug abuse and police terror. When there's social energy being mustered up, like creating an income tax in Seattle, it's quckly devoured by psychopathic forces.

    I'm writing this in another western country and it's not like everything is perfect here. The US seems more like an extreme, the capitalist engine tuned to perfection by people (connected loosely if at all, not a cabal) for enriching themselves while grinding the social fabric. Not that they seem to care about the latter, it's just standing in the way of the bottom line. And they're suceeding. With them watching closely over the machine, is it even possible to turn the tides and tune it for Social Betterment? Will we allow all of the people to truly compete this time, the original American Dream? And how will we make sure to convert the machine from an incessantly growing cancer endangering our planets current form of life into something benign?

    It seems everything is doomed.

    reply to this | link to this | view in thread ]

  15. icon
    Wyrm (profile), 15 Sep 2021 @ 2:45pm

    I don't know if forensics expert like this one are subjected to the Brady decision. After all, they aren't the ones bringing evidence to court. That's the prosecutor's job.

    Falsifying evidence is definitely an out though, regardless of Brady. You can't make a report saying "no", then scratch that based on nothing but a "pretty please" from the prosecutor and write a new one saying "yes". That's malpractice, and it could (and should) be a foundation for re-examining every single case he worked on. Every case the prosecutor ever worked on too.

    Qualified immunity is not meant to cover deliberate violation of the laws and procedures, it was intended to shield law enforcement from mistakes in good faith, made while following procedure. (i.e. you got the wrong guy because available evidence actually pointed to him, not because you're convinced he is so you made up the evidence.) Extending it to a full immunity for any deliberate misconduct would mean law enforcement is totally above the law. Which is sadly the current state of affairs in way too many cases.

    reply to this | link to this | view in thread ]


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