Courtesy photo[/caption] On April 18, 2018, the Appellate Division, Second Department issued a decision as noteworthy for its important substantive holding as for its dramatic context: People v. Hargrove, affirming the Supreme Court’s grant of a motion to vacate a 1992 conviction,is the firstappellate decision to address the elephant in the Brooklyn criminal justice system’s room—retired NYPD detective Louis Scarcella, whose investigative work was at issue in a dozen convictions vacated to date with more possibly to come. Not only has the decision riveted those involved with and otherwise following the Scarcella cases, it contains a bold restatement of the governing state standard for motions to vacate convictions based on newly discovered evidence—the Second Department rejects the long-standing common law requirement that the newly discovered evidence must not be merely impeaching, as contrary to the plain text of C.P.L. § 440.10 (1)(g). While a long time coming, the thorough decision was well worth the wait from a substantive perspective and a “must read” for anyone following Scarcella cases.
Background
Scarcella was a detective with the NYPD from 1981 until 1999, based in Brooklyn. In 2013, then Brooklyn District Attorney Charles Hynes vacated a 1991 murder conviction for which Scarcella had been partially responsible, noting that his Conviction Integrity Unit had “uncovered some questionable conduct” on the detective’s part. Among other issues, an eyewitness affirmed that a detective, possibly Scarcella, told him who to pick out of a lineup. DA Hynes, and his successor, Kenneth Thompson, committed to an unprecedented review of other convictions resulting from Scarcella investigations; according to the NY Times, the number of cases on the review list ran to more than 70 at its peak. The Second Department, in its recent decision, minces no words, describing Scarcella as “a police detective whose investigatory record is so troubling that the District Attorney has resolved to review every single one of his cases.” People v. Hargrove, No. 2015-04231, 2018 N.Y. App. Div. LEXIS 2614 (2d Dep’t Apr. 18, 2018). By mid-April 2015, the District Attorney’s Office, under Thompson, had consented to the vacatur of four additional convictions obtained in the 1988 to 1992 time period with which Scarcella and his partner, Steven Chmil, had been involved (Hamilton, Hill, Jennette and Austin). Although the Office made no explicit finding of Scarcella wrongdoing, each vacatur involved allegations of dubious testimony from alleged eyewitnesses. Kings County Supreme Court Justice ShawnDya Simpson granted defendant Rosean Hargrove’s motion to vacate his conviction. The court concluded that the District Attorneys’ previous decisions to vacate were based on “Detective Scarcella’s maleficence,” specifically, “unreliable or false identification testimony facilitated by Detective Scarcella” in roughly the same period as the Hargrove investigation. People v. Hargrove, No. 10150-91, 2015 N.Y. Misc. LEXIS 3691 (Kings. Co. April 14, 2015). Because “the possible unreliability and compr[om]ised identification testimony of a witness prepared by Detective Scarcella” was at issue in the Hargrove case as well, and that conviction rested on “scant evidence,” it was probable that a new trial would result in a different outcome. By the time of the Second Department’s decision this past April, the number of vacated Scarcella-related convictions had risen to a dozen (including Hargrove). Three different District Attorneys (Hynes, Thompson and Eric Gonzalez) had supported the vacaturs of a collective eight convictions in the late 1980s and 1990s with which Scarcella was associated (Austin, Logan, Gathers, Hamilton, Hill, Jennette, Ranta and Washington), and three different Supreme Court Justices (Simpson, Green and Riviezzo) had ordered convictions vacated in four additional cases covering the same time period (Hargrove, Bunn, Shakur and Moses), over the Office’s objection.
The Second Department Decision
In 1992, defendant Hargrove and a co-defendant (Bunn) were convicted, following a two-day jury trial, on murder and assault charges. The case involved the 1991 shooting death of a corrections officer, Rolando Neischer, during a car jacking. The only evidence supporting Hargrove’s conviction over what Justice Simpson described as a “summarily tried case, with missing evidence and a rushed process,” was his identification by a single eyewitness—Robert Crosson, another corrections officer and Neischer’s partner, who had himself been shot during the crime. Although the crime happened quickly, at approximately 4 a.m. and at one point he had covered his face with his hands, Crosson identified Hargrove from a photo array and a lineup as the individual who had allegedly shot him, and Bunn from a lineup as the individual who had allegedly shot Neischer. He confirmed those identifications at trial. Certain forensic evidence recovered from the crime scene did not match the defendants. Other forensic evidence was never tested and/or went missing. The arresting detective was Scarcella. Scarcella and his partner Chmil organized the photo array that included Hargrove and were the only members of law enforcement present when Crosson allegedly picked out Hargrove, and they also organized and were present, together with one other detective, for the subsequent lineup. There were several questionable circumstances—too involved to detail given this article’s space limitations—surrounding Crosson’s identification of Hargrove and his arrest by Scarcella. But the significance of those circumstances was not necessarily apparent at the Wade pretrial suppression hearing challenging the validity of the identification process and so not explored (Scarcella did not testify at the trial, only at the hearing). Had Scarcella’s relevant history of misconduct been known at the time of the Wade hearing, these questionable circumstances could have been a focal point. The Second Department offered numerous examples of how that history could potentially have led to suppression of the Crosson pretrial identification or otherwise have impacted significantly the case. The court affirmed the Supreme Court’s decision, agreeing that the newly discovered evidence (which “shows that this detective repeatedly procured false identification testimony during the same period that he worked to secure Crosson’s identification of the defendant”) created a probability of a more favorable verdict on retrial, particularly given the People’s “exceptionally weak” case. At a May 14, 2018 conference before Justice Simpson, the DA’s Office announced that, following the Second Department’s decision, the Office would not retry Hargrove but would, instead, dismiss the indictment.
Significance of the Decision
The decision carries broad significance for a number of reasons, not the least of which is that several other Scarcella-driven convictions are believed to be still under consideration by the new District Attorney’s Conviction Review Unit (as of last May, the Office reported having completed review of 41 cases) and at least three are believed to be the subject of pending § 440.10 motions. First, the decision upends the more than a century old, commonly recited, six criteria for obtaining a new trial based on newly discovered evidence. It excises newly discovered evidence “must not be merely impeaching” as a requirement. Methodically reviewing the common law origins of the familiar six criteria alongside the legislative history of subsection (1)(g) of §440.10, the court concluded that “the relevant statute only sets forth three of the six criteria that are routinely recited by this court. Significantly [given the Hargrove newly discovered evidence’s relationship to Scarcella], the requirement that the new evidence must ‘not be merely impeaching or contradicting the former evidence’ does not appear anywhere in the statutory language.” Going forward in the Second Department, Hargrove dictates that whether the newly discovered evidence is merely impeaching is a factor informing the evaluation into whether or not the evidence creates the probability of a more favorable verdict; it is not a legal prerequisite. Thus, under Hargrove, newly discovered evidence about Scarcella misconduct, even if merely impeaching, can serve as a legally legitimate ground for a vacatur motion. Second, the court rejected the District Attorney’s protest that supposed evidence of Scarcella’s misconduct had not arrived in admissible form and so should not be considered because it would never properly be in front of any jury at any new trial. While the Second Department impliedly preserved the District Attorney’s Office future ability to challenge the admissibility of such purported evidence (finding a waiver of that challenge in the Hargrove record), it called the position “without merit” and “disingenuous.” The harsh tone of the decision may discourage the Office from advancing this defense in pending and future Scarcella cases.Finally, in the author’s opinion, the court arguably suggests an answer to the riddle of why, in the face of well-documented misconduct, Scarcella has himself apparently avoided any criminal charges. While the statute of limitations may have run on any criminal conduct occurring over his career, the Second Department subtly reminds the reader that his testimony in § 440.10 hearings could potentially subject him to a perjury charge. Specifically, in discussing Justice Simpson’s credibility findings, the court agreed that the detective’s protests of a lack of recollection in some areas were suspect. It quoted from a decision as follows: “a witness who swears falsely, willfully and corruptly to the effect that he [or she] does not remember certain material facts involved in the issue on trial, when in truth they are within his [or her] knowledge and recollection, is guilty of perjury.”Lisa Cahill is a solo practitioner in New York City. While previously at Hughes Hubbard & Reed, she represented Vanessa Gathers, together with the Legal Aid Society and other Hughes Hubbard lawyers. Ms. Gathers is one of the twelve exonerated defendants referenced above.
