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To the burgeoning annals of discredited prosecutions conducted by former Brooklyn District Attorney Charles Hynes’ office, which we’ve been chronicling here at The Open File for some time, we must now add the 1993 kidnapping convictions of Everton Wagstaffe and Reginald Connor.

Last week a New York State Appellate Division panel, citing the prosecution’s last minute disclosure, and dispersal of key impeachment evidence in a mass of documents, unanimously vacated the judgments against both men, and dismissed their indictments.

The case has been the subject of excellent reporting for over three years now by Jim Dwyer at The New York Times, and you can read the story of Wagstaffe’s twenty-two year long effort to prove his innocence here and here.

The primary evidence that tied the two men to the abduction of Jennifer Negron, who was raped and murdered on New Year’s Day, 1992 in the Brooklyn neighborhood of East New York, was the testimony of Brunilda Capella, a police informant “who was under the influence of drugs and alcohol at the time she witnessed the victim being forced into a vehicle.”  With no forensic evidence in the rape or murder, the judge dismissed those charges pre-trial, but allowed the kidnapping count to proceed.

At trial, the prosecutor, Anne M. Gutmann, put one of the detectives on the stand to testify that it was the interview with Capella that led investigators to the defendants. But a decade later, through his own efforts while incarcerated, Wagstaffe discovered a discrepancy in the time stamps in the police records: contrary to the detective’s sworn testimony, the police had been investigating him and Reginald Conner before they first interviewed their informant.  This leant credence to the idea that police had simply employed an unreliable informant to furnish the evidence they wanted to convict defendants they had already selected, in the same manner as their colleague, the now notorious Louis Scarcella.

A Brady Violation Despite the Disclosure of Documents

In vacating their convictions, however, last week’s Appellate Division panel left untouched the question of police “fraud and misrepresentation” that Wagstaffe and Connor had appealed on.  They chose instead to rule on the defendants’ Brady claim–that they hadn’t been properly furnished with the police records in question, which would have allowed them to impeach the detective’s testimony and quite possibly discredit the informant.

There is no dispute that the defense was given the time-stamped documents. But the court found that the disclosure (after the Wade hearing, at the time of jury selection) was both too late; and, most interestingly, so “interspersed throughout a voluminous amount of other documentation, without specifically identifying the documents at issue at the time of delivery” as to not afford the defense “an adequate opportunity to develop a factual record for appellate review.”

We’ve written before at The Open File about the pernicious problem of late and last minute disclosure of Brady material, and how seriously it can compromise justice even as it feints toward compliance with the law. But here, to find a Brady violation, the court combined tardiness with the manner of disclosure, holding that “there was a reasonable probability that, had the prosecution identified these documents when delivering them to the defendants,” [emphasis added] their use “would have changed the outcome of the defendants’ trial.” Thus, Wagstaffe and Connor haven’t been cleared on the basis of police perjury, but because of prosecutorial misconduct in “the burying” of impeachment evidence.

This may explain why even Brooklyn District Attorney Kenneth Thompson, who has set up an conviction integrity unit in an effort to right the wrongs of his predecessor didn’t exactly greet the decision with open arms.  “We disagree on the basis for which they vacated the conviction and set aside the verdict,” he said in a very short statement.  “We are reviewing our options.”

We will stay-tuned, then, to see if the man who pledged during his campaign to unseat Charles Hynes that he would take on prosecutorial abuses forcefully sees fit to appeal a decision in a case where it is now clear that a prosecutor either knowingly or negligently elicited false police testimony, where the only government witness is now dead, and where the press has uncovered the first and only plausible account of the crime, pointing not to the defendants but to the victim’s would-be boyfriend.

Reginald Connor spent fourteen years in prison for a crime he didn’t commit; Everton Wagstaffe has now spent almost twenty-three.  He may still be deported to Jamaica once he is released.

Much of the adult lives of these two men have already been stolen by the state.

But our goal here at The Open File is to make sure that in highlighting cases like this, we don’t repeat the error so chronic in American public life, of allowing sentiment to obscure structure.  When made to contemplate the loss exonerated prisoners have suffered, the press and the public is often drawn to personalize the story, to wonder at a man’s discovery of Facebook and ipads, while letting drift into the background the fact that the legal structures and norms that led to such loss remain largely unchanged.  That is an injustice, too: enormous, often abstract, but very real.


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