For Defendant Bell: Marc Wolinsky, Esq., Wachtell, Lipton, Rosen & Katz; Scott Stevenson, Esq.; Janet Sabel, The Legal Aid Society, Queens, New York (Ken Finkelman, Esq., of counsel) For Defendants Bolt and Johnson: Rita Dave, Esq. For the People: Melinda Katz, District Attorney of Queens County (Bryce Benjet, Esq., of counsel)
For Defendant Bell: Marc Wolinsky, Esq., Wachtell, Lipton, Rosen & Katz; Scott Stevenson, Esq.; Janet Sabel, The Legal Aid Society, Queens, New York (Ken Finkelman, Esq., of counsel)
For Defendants Bolt and Johnson: Rita Dave, Esq.
For the People: Melinda Katz, District Attorney of Queens County (Bryce Benjet, Esq., of counsel)
Joseph A. Zayas, J.
Defendants George Bell, Rohan Bolt, and Gary Johnson move to vacate judgments of conviction imposed in connection with the December 21, 1996, murders of Ira Epstein and off-duty police officer Charles Davis. They allege that they are actually innocent and had no involvement in those crimes. They further assert, among other claims, that third-party culpability information, as well as impeachment evidence, that they specifically requested was withheld from them by the District Attorney's Office, and that, had this information been disclosed, there is a reasonable possibility that the results of their trials would have been different. The People agree with the defense on this point and therefore join that portion of the defendants’ motions. For the reasons that follow, the Court concurs in the parties’ analysis of the Brady issue (except to the extent indicated below), vacates the judgments of conviction on that ground, and holds the defendants’ remaining claims in abeyance.
Facts and Procedural History
A. The Murders of Ira Epstein and Charles Davis
Before sunrise on Saturday December 21, 1996, Ira "Mike" Epstein and off-duty Police Officer Charles Davis were shot and killed during an attempted robbery of Epstein's check cashing store at 94-21 Astoria Boulevard, in East Elmhurst, Queens. An aggressive, all-hands-on-deck investigation by the New York City Police Department began almost immediately. But, despite an exhaustive canvass, the descriptions of the perpetrators that the police were able to obtain from witnesses who had seen either portions of the crime itself, or the events that immediately preceded or followed it, were not particularly illuminating. There was, however, near unanimity about the fact that the perpetrators had travelled to and from the scene in a blue van.
The East Elmhurst neighborhood is somewhat confusingly named. It is located north, not east, of Elmhurst. It borders Jackson Heights and North Corona. There are several statements in this case that refer to the crime as having occurred in Corona, instead of East Elmhurst. This discrepancy is understandable.
The first significant break in the investigation came on December 23rd, when a man named John Mark Bigweh was arrested for selling marijuana. During a debriefing by Detective Bubelnik, Bigweh stated that, on Friday night, December 20th, he was with his friends "George Bell, Gary and Zebedia," on Northern Boulevard near 101st Street. The following morning, at around 6:00 a.m., Bigweh said, he returned to the same area to buy a blunt and saw George and Gary again. George had "a silver automatic gun" and Gary was talking about "get[ting] paid." Bigweh said he wasn't interested and left. He saw George and Gary get into a "red-like caravan with their homeboy driving."
The questioning of Bigweh continued for two more days. A series of statements of evolving content were produced. Bigweh ultimately told the police that he was a lookout for the attempted robbery of Epstein's check cashing store. His friends George Bell and Gary Johnson were involved, he said, as well as two other men — Jason, who drove everyone to the scene in a red (not blue) minivan, and "Roti." Bell and Roti were armed, and Bell was the shooter. Bigweh stated he had known Jason for about two years. He did not say how he knew "Roti."
Bell, who was 19 years old, and Johnson, who was 22, were arrested late at night on Christmas Eve. Their interrogations began during the early morning hours of Christmas Day. Detectives eventually elicited confessions from both men. In Bell's account, Roti (who Bell said was 19 or 20 years old) had recruited him to participate in the crime. Far more consequentially, he admitted shooting Epstein and Davis. Towards the end of a videotaped interview with an assistant district attorney that culminated the interrogation process, however, Bell appeared to say he was being "framed." Johnson, for his part, provided an extremely vague account of the crime, describing himself as an unwitting, hungover lookout. Bell and Johnson would quickly recant their confessions and assert that they had been coerced by detectives.
Notably, Bell's accounts of the crime had neglected to mention Bigweh. Instead, he implicated a friend, Carl, who had also been arrested, but would have his arrest voided. The omission of Bigweh was addressed a couple of hours after Bell's videotaped interview with an assistant district attorney was complete. According to a DD5, two detectives "had a brief conversation" with Bell in a holding cell at the 109th Precinct. They asked him if Carl was actually at the scene of the crime. Bell admitted that he was not. The detectives then asked if John (Bigweh) was at the scene, to which Bell nodded his head affirmatively. Asked to explain his prior statements to the contrary, Bell said that John "was close to ROTI" and he was afraid of being hurt in jail if he implicated John. At that point, the DD5 recounts, "[Bell] refused to continue [the] conversation."
On Christmas Day, Rohan Bolt, the 35-year-old owner of a restaurant on Northern Boulevard, was arrested. A woman had told Queens Homicide Squad detectives that a man from whom she bought crack drove a red van. She canvassed the area with detectives looking for the drug dealer. They spotted his van on Northern Boulevard. The detectives followed the van to a grocery store parking lot and stopped the driver, Bolt. According to one of the detectives involved in the arrest, he asked Bolt if his name was "Roadie," and he answered affirmatively. Unlike Bigweh, Bell, and Johnson, Bolt denied his guilt to the police and did not make any incriminating statements. (When he testified in his own defense at his trial, Bolt denied that his nickname was "Roti" or "Roadie," or telling the detective that he went by such a nickname.)
When Bigweh testified at Bolt's trial, he stated that he also identified Bolt when he was stopped in the grocery store parking lot, though police reports do not appear to reflect his involvement. In any event, in his testimony, Bigweh said that the van Bolt was driving at the time of his arrest was not the van used during the robbery.
In January, a Queens County Grand Jury returned an indictment charging Bell (alone) with six counts of murder in the first degree and two counts of murder in the second degree. In addition, Bell, Bolt, Johnson, and Bigweh were charged, under an acting-in-concert theory, with six counts of murder in the second degree (depraved indifference and felony murder), along with other related charges. With respect to Bell, the People later filed a notice, pursuant to CPL 250.40 (2), that they intended to seek the death penalty.
In 1995, the current version of the New York death penalty statute took effect. "But, since the [Court of Appeals’] decision in People v. LaValle , 3 N.Y.3d 88, 783 N.Y.S.2d 485, 817 N.E.2d 341 (2004), declaring a mandatory jury instruction provision of that ... law unconstitutional, the sentence of death cannot be imposed" (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Electronic Version, CPL 250.40 ).
At the end of January, Bigweh signed a formal cooperation agreement with the District Attorney's Office. Just eight days earlier, he had attempted suicide at Rikers Island, by taking pills. The District Attorney's Office obtained medical records related to the suicide attempt, which included information that Bigweh had a history of experiencing "AH [auditory hallucinations] of his dead mother at stressful times like his birthday or hers or the anniversary of her death. The voice tells him to ‘go home.’ " None of these records, which were in the District Attorney's file related to this case, were disclosed to the attorneys representing Bell, Bolt, and Johnson, despite specific requests for information of this sort having been made.
Several months passed before the police arrested a man that they believed to be "Jason," the alleged van driver. Jason Ligon's arrest was set in motion by a police debriefing of an informant. He was arrested at the end of May 1997, and interrogated by detectives. Ligon confessed to his role in the crime, and, in June, he was indicted on second-degree felony murder charges (Queens County Ind. No. 1893/1997).
Coincidentally, Ligon was the nephew of an eyewitness that the police had interviewed early in their investigation of the Epstein/Davis murders.
As it turned out, Ligon's confession was false. He was in Washington, D.C., at the time of the murders, and video surveillance proved it. According to an affirmation filed by the District Attorney's Office during the litigation of a post-conviction motion filed by Bell, they knew, "sometime prior to January 1999," that Ligon had recanted his confession. And the defense alleges that, prior to Bell's trial, the District Attorney's Office had seen the surveillance video that exonerated Ligon. The People, however, did not move to dismiss the indictment against Ligon until June 15, 2000 — after Bell, Bolt, and Johnson had all been convicted in separate trials.
B. The Demands For Information Connecting The Speedstick Gang To This Crime
On May 9, 1997, while pre-trial proceedings were moving forward in Bell, Bolt, and Johnson's case, three men ambushed an armored car delivering payroll in Flushing Queens, that was being guarded by an off-duty police officer (Arthur Pettus) and a retired detective (Joseph Bellone). Dozens of shots were fired by the perpetrators, and both officers were shot multiple times. They were seriously injured, but survived. Three men were ultimately arrested, Aaron Boone, Robert Majors, and Bernard Johnson. On May 12, 1997, before Bernard Johnson was arrested, the Daily News published an article about the armored car robbery. The article reported that "Boone and Majors are suspects in other payroll heists in Queens, including a December ambush that killed a check-cashing firm owner and off-duty Police Officer Charles Davis" (Alice McQuillan, The Daily News, Ambush suspect freed earlier , May 12, 1997).
The May 9, 1997 armored car robbery was not the first time that Aaron Boone had come to the attention of the police and the Queens District Attorney's Office. In fact, they had been investigating him and his twin-brother Ammon for several months. The Boones were believed to be the leaders of a violent robbery crew known as "Speedstick." One focus of the Speedstick investigation was the murder, on March 8, 1997, of an alleged Boones’ associate, Jamal Clark.
A DD5 concerning the investigation into Clark's murder recounts that, on March 28, 1997, two detectives from the Queens Robbery Squad, Sapricone and Calantjis, interviewed a witness, who the parties refer to as "Witness No.2," at the Queens District Attorney's Office. Witness #2, who was closely associated with Speedstick, was being held at Rikers Island on a probation violation. According to the DD5, the "QDA" had informed Sapricone and Calantjis that Witness #2 knew Jamal Clark.
Witness #2 told the detectives that, in January, he was hanging out with Clark and Clark said something to the effect that he "couldn't take it much longer" and that too much was going on. Clark specifically mentioned "that shit in Corona" (see footnote 1, supra ) as the source of his anxiety, implying that Witness #2 would know what he was referring to. Witness #2 responded that he didn't know what Clark was talking about; Clark told him to forget it, according to the report. That was the last time Witness #2 spoke with Clark.
Witness #2 further informed the detectives about an encounter at Rikers Island that he had with "John Marks" — i.e. , Bigweh. Bigweh, Witness #2 said, told him that he was in jail on "that Corona thing with the check cashing and the cop shit." Witness #2 volunteered that his friend Jamal had been "down on that job," though he qualified this assertion by saying that Jamal "never really said he did it," but Witness #2 got the "impression" that he did. Bigweh hoped Witness #2 could help him because, he said, "he had nothing to do with it."
Notably, before being interviewed by Sapricone and Calantjis, Witness #2 had been interviewed by another detective in connection with the Epstein/Davis murder investigation. The DD5 recounting that interview contains a less detailed version of the statement Clark reportedly made to Witness #2 about "that shit in Corona."
Several weeks later, on May 16, 1997, a witness the parties refer to as Witness #1 was interviewed at the 109th Precinct in connection with the investigation of the armored car robbery. The information that Witness #1 provided was documented in a DD5 authored by Detective Calantjis. (Three other detectives, including Detective Heider, were also present.) According to the report, Witness #1 had grown up with Aaron and Ammon Boone and was a member of Speedstick. Witness #1 identified several members of the gang. He also described a series of crimes the gang had committed, some of which Witness #1 admitted participating in himself.
Among these crimes was the robbery of a "check cashing store on Astoria [Boulevard]" that Witness #1 said "the group [had] robbed." "This job," Witness #1 explained, "was set up by the [Boone] Twins." Jamal Clark was outside and "something went bad"; no money was taken. Witness #1 said Clark told him about this crime during a phone call, when he (Clark) was "down south" with the Boone twins at a club they owned. Clark told Witness #1 he was concerned that the twins would kill him because "he knew [too] much and could tell the police." Just beneath this entry in the DD5, Detective Calantjis wrote: "Jamal Clark had a code name for all the robberies that he participated in with the group. The name is JASON."
The next day, May 17, 1997, Detectives Calantjis and Heider had Witness #1 identify several locations where he said Speedstick crimes had occurred, as well as other locations of significance to the investigation. Witness #1 would later testify in the Grand Jury proceedings related to the murder of Jamal Clark.
According to the People, this DD5 was included in three casefiles related to Speedstick prosecutions, each of which was handled by the Career Criminal / Major Case Bureau at the District Attorney's Office, of which ADA Charles Testagrossa was the chief. (It was not, however, found in the voluminous files related to this case during the Conviction Integrity Unit's reinvestigation.) One of these cases, naturally, was the May 9, 1997 armored car robbery. ADA Testagrossa, who would be the lead prosecutor at Bell's trial, was assigned to that case during the Grand Jury proceedings and for a time afterwards, including during the time when the DD5 documenting the interview with Witness #1 was prepared. In the District Attorney's files related to the armored car robbery, in a folder labeled "Speedstick," several pages of notes that the People acknowledge were handwritten by ADA Testagrossa detail the investigation into various aspects of the gang. On the first page of the notes, above the date 5/20/97, is Detective Heider's name. On the second page of notes, under the heading "Speed Stick 5/27/97," Testagrossa wrote: "Jamal Clark killed 3/8/97. Believe Jamal was driver in Davis homicide[.] Jason was Jamal." Beneath that, he wrote, "Davis homicide lookout was John Marks. He says driver was Jason [but] doesn't know who Jason was." On the following page, "Jamal Clark ‘Jason’ " was included by Testagrossa in a list of "Speed Stick Bosses."
All of this, of course, raised serious questions about whether Jason Ligon, who was arrested at the end of May and indicted in June 1997, had been correctly identified as the van driver.
The Daily News story reporting a connection between the armored car robbery and the Epstein/Davis murders quite understandably piqued the interest of the attorneys representing Bell, Bolt, and Johnson. It sparked a flurry of discovery demands to the District Attorney's Office, requesting any information in its possession, or in the possession of the NYPD, implicating the defendants from the armored car heist in these crimes. A May 20, 1997, letter from Johnson's lawyer to the District Attorney's Office, for example, quoted from the article and then stated, "Your Office is presumably quite aware of its obligations under Brady v. Maryland ." The letter went on to request, "forthwith," the disclosure of "any and all information in your possession, or in the possession of law enforcement, that points towards Mr. Boone and Mr. Majors as suspects, and, as such, exculpates Gary Johnson."
An August 25, 1997, motion to compel discovery, filed by Bolt's attorney, similarly stated:
[O]n May 12, 1997, an article appeared in the New York Daily News , which reports that an Aaron Boone and a Robert Majors, arrested in another robbery, were also suspects in the Robbery/Murder herein. It is obvious that the [Queens DA] and/or the Police have information which may inculpate Boone and Majors, and therefore exculpate the defendant, Bolt.
Bell's attorneys made an equally specific request, in a motion to compel court-ordered discovery compliance, that was filed in October 1997:
[E]xculpatory information has been reported to exist by the New York Daily News , which [reported] that two people arrested in an armed robbery in Queens, Aaron Boone and Robert Majors, were also suspects in the offense underlying this indictment. This information of course undermines the accuracy and reliability of the alleged statements made by the defendants in this case, and the prosecution's theory of the case. It must be disclosed, whether it is in the possession of the police or the district attorney.
A representative response from the District Attorney's Office to these inquiries is one submitted on October 26, 1997, by Assistant District Attorney Gary Fidel, in response to the discovery motion Bell's attorneys had filed. Fidel's affirmation stated, unequivocally: "[T]here is no evidence pointing to any uncharged person as being involved in the crimes charged." Still, the attorneys persisted in their inquiries. For example, during Bell's trial, the defense asked the trial judge, Justice Cooperman, to sign a subpoena for NYPD records concerning an analysis that had been conducted comparing ballistics evidence from the armored car robbery with the shell casings and bullets recovered during the investigation of the Epstein/Davis murders. Defense counsel explained that they were seeking these records because the trial prosecutors claimed not to have any insight into why the comparison was conducted. ADA Brad Leventhal chided defense counsel for engaging in a fishing expedition. Justice Cooperman agreed with that characterization, adding that it was "a fishing expedition in the Sahara Desert." He did not sign the subpoena.
It is not clear from the parties’ papers how the defense became aware of this aspect of the police investigation. Presumably the People disclosed police reports related to the ballistics comparison, the results of which were negative.
Later on, Bell's attorneys sought to call Detective Heider as a witness for the defense, in order to ask him about the impetus for the ballistics examination. In opposing the defense's application to call Heider, ADA Testagrossa derisively responded that the Boone/Majors/Johnson armored car robbery was a "completely different case," with "no connection" to this one, "other than the assertion that counsel has been trying to make and the implication they have been trying to raise any way they could during the course of this case." Justice Cooperman denied the application summarily. C. The Trials
George Bell was tried first, in the spring of 1999. The trial prosecutors were, as noted, Assistant District Attorneys Leventhal and Testagrossa. According to the People, both prosecutors "were assigned to this capital case just over a month before the start of jury selection."
The evidence against Bell included his confessions (which the defense argued were coerced and false ), as well as testimony from a man named Reginald Gousse, who claimed that Bell had admitted his involvement in the murders in a series of conversations between the two men while they were incarcerated at Rikers Island. Gousse, who was 26 years old at the time of Bell's trial, already had a very substantial criminal history. Facing charges related to two armed robberies (one of which involved the kidnapping of a Staples office supply store manager), Gousse testified under a cooperation agreement with the District Attorney's Office.
The defense sought to introduce expert testimony on false confessions in support of this argument, but the court declined to permit it, reflecting the skeptical views of such testimony that were prevalent at the time (see People v. Bedessie , 19 N.Y.3d 147, 156, 947 N.Y.S.2d 357, 970 N.E.2d 380  ["[t]hat the phenomenon of false confessions is genuine has moved from the realm of startling hypothesis into that of common knowledge, if not conventional wisdom"]).
Aside from Bell's own statements, an eyewitness, Gregory Turnbull, identified Bell as one of the perpetrators he had seen outside of the check cashing store on the morning of the murders. But Turnbull's closest vantage point was from nearly 200 feet away, and the crime occurred before sunrise. The prosecution also introduced into evidence phone records showing that, at a few minutes before 6:00 a.m. on the morning of the crime, two phone calls had been made from Gary Johnson's home to Bell's.
John Mark Bigweh did not testify against Bell. His cooperation agreement had been canceled by the District Attorney's Office in March, apparently because he had refused to be taken out of Rikers Island by investigators from the DA's Office so he could meet with the prosecutors preparing for Bell's trial.
In the end, Bell was convicted of six counts of first-degree murder and other lesser related charges. The jury declined to impose the death penalty. He was sentenced to life without the possibility of parole.
Gary Johnson was tried next, in the fall of 1999. ADA Leventhal tried the case alone. By this point, Bigweh was back on board cooperating with the District Attorney's Office and testified against Johnson. (Bigweh's prior, terminated cooperation agreement went unexplored, because it had not been disclosed by the People.) Gousse again testified for the People and, among other things, described a conversation in which Johnson, in Bell's presence, supposedly said that Bell had "screwed up a perfectly good robbery by shooting two people who didn't deserve to die prior to them getting the money." Johnson's confessions were also introduced into evidence. Moreover, Audrey McLean — who, at time of the murders, owned a restaurant on Astoria Boulevard, on the same block as Epstein's check cashing store — testified that on, Friday night, December 20, 1996, Bell and Johnson, who McLean recognized from the neighborhood, and one other man, came into her restaurant. Bell and Johnson did not order any food, McLean recounted; they just stayed near the front windows for about 15 minutes, looking in the direction of the check cashing store.
Johnson presented an alibi defense. George Bell's sister and mother testified that Johnson was at their apartment at the time of the crime (and had called before coming over, thus explaining the early morning phone calls). The jury, though, did not credit the alibi evidence and convicted Johnson of six counts of second-degree murder, among other offenses. He was sentenced to 50 years to life in prison.
Bolt was finally tried in the spring of 2000. ADA Leventhal was again the sole trial prosecutor. Bigweh testified against Bolt. So did Turnbull, the eyewitness. But Turnbull's identification of Bolt was problematic, for reasons aside from distance and time of day. When Turnbull viewed a lineup that included Bolt, on December 26, 1996, he failed to make an identification. A short time later, however, he told a detective that he had, in fact, recognized the individual in position 1 (Bolt) as one of the perpetrators, but had been afraid to say so. Finally, one of the detectives who apprehended Bolt testified that when he stopped him, he (Bolt) said his name was Roti.
Bolt testified in his own defense and asserted that he was opening his restaurant at the time of the murders. His mother testified, as well, and corroborated that account. Nevertheless, the jury found him guilty of, most notably, six counts of second-degree murder. Like Johnson, he was sentenced to 50 years to life.
Bigweh's cooperation allowed him to avoid a homicide conviction. He pleaded guilty to attempted robbery in the first degree and criminal possession of a weapon in the third degree and was sentenced to an indeterminate term of from five to ten years of imprisonment. In 2003, he was deported to Liberia.
Gousse was also handsomely rewarded for his cooperation. In 2003, the People did not oppose a pro se motion made by Gousse, who was not a United States citizen, to vacate a 1992 Queens robbery conviction that was the basis of a deportation order. The conviction was vacated and Gousse was permitted to plead guilty to a lesser charge. The following year, Gousse was sentenced in accordance with the terms of his cooperation agreement and released from jail. Not long thereafter, while impersonating a police officer, he murdered a bank manager on Long Island.
The convictions of Bell, Bolt, and Johnson were affirmed on appeal (see People v. Bell , 307 A.D.2d 1047, 763 N.Y.S.2d 762 [2d Dept.], lv denied 1 N.Y.3d 568, 775 N.Y.S.2d 785, 807 N.E.2d 898  ; People v. Johnson , 295 A.D.2d 368, 743 N.Y.S.2d 289 [2d Dept.], lv denied 98 N.Y.2d 768, 752 N.Y.S.2d 9, 781 N.E.2d 921  ; People v. Bolt , 295 A.D.2d 357, 743 N.Y.S.2d 886 [2d Dept.], lv denied 99 N.Y.2d 533, 752 N.Y.S.2d 593, 782 N.E.2d 571  ) and withstood collateral challenges in state and federal court.
D. the Current Motion
Now, armed with new information that has recently been disclosed to them through Freedom of Information Law requests, from the District Attorney's Office's Conviction Integrity Unit, and, fortuitously, from lawyers representing Robert Majors in his post-conviction litigation, the defendants move to vacate the judgments of conviction. They claim that they can prove, clearly and convincingly, that they had no involvement in the murders of Ira Epstein and Charles Davis and that the crime was actually perpetrated by members of the Speedstick Gang. Relatedly, they contend that newly discovered evidence, that they could not have obtained with due diligence at the time of their trials, creates a reasonable probability of more favorable verdicts. Finally, the defendants assert that the District Attorney's Office not only suppressed numerous pieces of specifically requested exculpatory information in its possession, including, most critically, the police reports that established a connection between the Speedstick Gang and this crime, but also repeatedly misrepresented to the court and to defense counsel that no such information existed. Had this compelling third-party culpability evidence and the impeachment material regarding Bigweh been disclosed, their argument continues, there is, at the very least, a reasonable possibility that the outcome of these proceedings would have been different. The District Attorney's Office, having undertaken a thorough re-investigation of this case, agrees with this last point — that is, they concede that the Speedstick information, as well as information related to Bigweh's suicide attempt and mental health history, was not disclosed to the defense, and that, if it had been, it is reasonably possible that there would have been different results in these trials. Rather perplexingly, though, they characterize these conceded nondisclosures as "good-faith" mistakes. Regardless, the People agree that the defendants’ convictions should be vacated on this basis now and that the defendants should be released on their own recognizance, while they continue their re-investigation and their analysis of the other grounds for vacatur raised in the defendants’ motions.
"Prosecutors occupy a dual role as advocates and as public officers and, as such, they are charged with the duty not only to seek convictions but also to see that justice is done. In their role as public officers, they must deal fairly with the accused and be candid with the courts" ( People v. Steadman , 82 N.Y.2d 1, 7, 603 N.Y.S.2d 382, 623 N.E.2d 509  ). One specific manifestation of this "rule of fairness" is the responsibility, under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to disclose favorable information to the defense ( Steadman , 82 N.Y.2d at 7, 603 N.Y.S.2d 382, 623 N.E.2d 509 ; see also People v. Novoa , 70 N.Y.2d 490, 496, 522 N.Y.S.2d 504, 517 N.E.2d 219  ). "A prosecutor's disclosure obligations under Brady are well established. [T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution" ( Matter of Kurtzrock , 192 A.D.3d 197, 138 N.Y.S.3d 649 [2d Dept., 2020] [alteration in original; internal quotation marks omitted]).
As the Court of Appeals has emphasized, "[t]he People, in their role as truth-seekers in criminal trials, have a broad obligation to disclose exculpatory evidence" ( People v. Garrett , 23 N.Y.3d 878, 884, 994 N.Y.S.2d 22, 18 N.E.3d 722  [internal quotation marks omitted]). And, unquestionably, evidence that other individuals may be responsible for the crimes for which an accused stands charged is favorable to his defense (see , e.g. , People v. Negron , 26 N.Y.3d 262, 269, 22 N.Y.S.3d 152, 43 N.E.3d 362  ). So, too, is information that "contradict[s] the People's theory of the case" ( People v. Rong He , 34 N.Y.3d 956, 958, 112 N.Y.S.3d 1, 135 N.E.3d 1081  ). The New York Court of Appeals has, understandably, drawn a hard line against the suppression of specifically requested exculpatory information. In People v. Vilardi , 76 N.Y.2d 67, 556 N.Y.S.2d 518, 555 N.E.2d 915 (1990), the Court explained why this strict approach is appropriate. A request for specific information "puts the prosecutor on notice that there is particular evidence the defense does not have and believes to be important" ( id. at 73–74, 556 N.Y.S.2d 518, 555 N.E.2d 915 ). And when a prosecutor fails to produce information in his possession that is responsive to that request, the logical inferences to be drawn from that failure are not flattering. Such a lapse "verge[s] on prosecutorial misconduct" and "is seldom, if ever, excusable" ( id. at 74, 556 N.Y.S.2d 518, 555 N.E.2d 915 [internal quotation marks omitted]).
The rule the Court articulated in Vilardi reflects the seriousness of this sort of misconduct and is designed to provide a powerful disincentive for engaging in it. The Vilardi rule holds that, when the prosecution fails to disclose specifically requested evidence, all the defendant needs to show to obtain reversal of a conviction is a "reasonable possibility" that the suppression of the information "contributed to the verdict" ( id. at 77, 556 N.Y.S.2d 518, 555 N.E.2d 915 ). This harsh rule is fair, because "suppression, or even negligent failure to disclose, is more serious in the face of a specific request in its potential to undermine the fairness of the trial" ( id. ). And a relatively low materiality standard should motivate a prosecutor, "[when] responding to discovery requests, thoroughly to review files for exculpatory material, [and] to err on the side of disclosure where exculpatory value is debatable" ( id. ).
The Brady analysis in this " ‘specific’ request case" ( People v. Wright , 86 N.Y.2d 591, 597, 635 N.Y.S.2d 136, 658 N.E.2d 1009  ) is straightforward. But it is important to emphasize, in framing it, that the People were seeking the death penalty against Bell. The stakes, then, could not have been higher, and the duty of care that should have been exercised by the People during the discovery process, correspondingly heightened. The extensive record before the Court, however, makes clear that the opposite occurred — that the District Attorney's Office, instead of "err[ing] on the side of disclosure" ( Vilardi , 76 N.Y.2d at 77, 556 N.Y.S.2d 518, 555 N.E.2d 915 ), deliberately withheld from the defense credible information of third-party guilt that was in its possession and that had in fact, been investigated, and documented in handwritten notes, by the lead prosecutor at Bell's trial, ADA Testagrossa. The prosecution, in other words, completely abdicated its truth-seeking role ( Garrett , 23 N.Y.3d at 884, 994 N.Y.S.2d 22, 18 N.E.3d 722 ), perhaps because it feared that the evidence being sought by the defense would substantially undermine the likelihood of obtaining a conviction.
As recounted above, in May 1997, a Daily News article reported that two of the alleged perpetrators of a violent armored car robbery — Robert Majors and Aaron Boone — were also suspects in the attempted robbery that resulted in the murders of Ira Epstein and Charles Davis. The lawyers representing Bell, Bolt, and Johnson made repeated, specific requests for information along these lines to the District Attorney's Offices. But they were told, in no uncertain terms, in sworn affirmations, that the Office knew of "no evidence pointing to any uncharged person as being involved in the crimes charged" — which, of course, was patently untrue.
Still, the attorneys persisted in their attempts to obtain exculpatory information that they had good reason to believe existed. Bell's defense attorneys, for example, sought an explanation for why the guns recovered during the investigation of the armored car robbery were compared to the ballistics evidence recovered from Epstein's check cashing store. In response to this inquiry, ADAs Leventhal and Testagrossa, in open court, disclaimed any insight into why the ballistics analysis was conducted. More troublingly, they accused Bell's attorneys of embarking on a "fishing expedition" and expressed annoyance over their repeated questions regarding a possible connection between Boone, Majors, and Johnson and the crimes for which Bell was on trial. Testagrossa called the two cases "completely different" and said they had "no connection," other than the one the defense had been trying, desperately, to contrive. These performances by the prosecutors were clearly delivered with aplomb; they certainly convinced Justice Cooperman that the defense's refusal to drop the issue was an utter waste of everyone's time.
Testagrossa's and Leventhal's vociferous denials, however, were completely false. It is now abundantly clear that their office possessed a significant amount of material that implicated the Boone-led Speedstick gang in this crime — most notably, the DD5s in which Witnesses #1 and #2 recounted admissions from Jamal Clark (who apparently used the alias "Jason") to being involved in the robbery of a "check cashing store on Astoria [Boulevard]" that was "set up" by the Boone twins, where "something went bad" and no money was taken.
Equally clear is that Testagrossa had knowledge of this information, as evidenced by his own handwritten notes. Testagrossa, of course, was involved in the early stages of the prosecution of Boone, Majors, and Johnson — that is, when the DD5 documenting the interview of Witness #1 was completed. And he was apparently briefed, at the end of May 1997, by detectives who informed him of the potential Speedstick connection to the "Davis homicide" and, specifically, that Jamal Clark was the unapprehended van driver in that case. The Court finds it difficult to believe Testagrossa, a bureau chief at the District Attorney's Office, did not immediately convey this information to the prosecutors who were handling Bell, Bolt, and Johnson's case at that time.
ADA Testagrossa, as mentioned, was not assigned to this case until the winter of 1999.
Testagrossa's bureau, moreover, simultaneously prosecuted two other Speedstick cases, the files for which also contained the Witness #1 DD5. The prosecutors involved in those other cases presumably were aware of the Epstein/Davis murder case — which, after all, involved the murder of a police officer and received significant press coverage, and would, in the fall of 1997, officially become a capital case. And even if those prosecutors somehow didn't know about the case already, it would not have been difficult to figure out that the DD5's description of a robbery of a check cashing store on Astoria Boulevard, where "something went bad," was likely a reference to it. The logical thing to do, at that point, would have been to pass the DD5 on to the team of assistant district attorneys involved in the pre-trial/discovery phase of Bell, Bolt, and Johnson's prosecution — if for no other reason than it might have, at least as far as the Speedstick prosecutors likely knew, contained information that would strengthen the People's case or provided leads for further investigation. By the same token, for the prosecutors responding to the repeated inquiries from Bell's, Bolt's, and Johnson's attorneys regarding a possible connection between Boone and Majors and this crime, it would not have required much legwork to figure out which of their colleagues prosecuting the Speedstick gang would have the answers to those questions. Given all of these obvious opportunities for sharing the Speedstick information, the fact that the exculpatory Witness #1 DD5 was not found by the Conviction Integrity Unit in the files related to this case is perplexing, to say the least.
In any event, even if this information (in one form or another) never made its way from the Career Criminal / Major Case Bureau to the assistant district attorneys handling this case in the spring of 1997, ADA Testagrossa eventually became the lead prosecutor at Bell's trial. And he unquestionably knew about the possible Speedstick connection, since his handwritten notes documented the suspicion that Jamal Clark, who Testagrossa identified as a "Speedstick boss," was "Jason," the van driver in the "Davis homicide." It is, therefore, mindboggling that Testagrossa asserted in open court that there was no link between the Boone-led Speedstick gang and this case.
Under no circumstances could the prosecutors in these cases have reasonably believed that this information — which suggested that another group of perpetrators, with a history of armed robberies targeting large amounts of cash, was responsible for the murders of Epstein and Davis and thus contradicted the People's theory of the case — was not favorable to Bell, Bolt, and Johnson and did not have to be disclosed. Its exculpatory value was, indeed, not "debatable" ( Vilardi , 76 N.Y.2d at 77, 556 N.Y.S.2d 518, 555 N.E.2d 915 ). Clark's admissions not only would have provided a concrete investigative lead for the defense to pursue (see Rong He , 34 N.Y.3d at 959, 112 N.Y.S.3d 1, 135 N.E.3d 1081 ). They also would have been admissible at the three defendants’ trials, since all of the elements of a declaration against penal interest easily could have been established (see People v. Soto , 26 N.Y.3d 455, 460-61, 23 N.Y.S.3d 632, 44 N.E.3d 930  ), and the probative value of the evidence far outweighed its potential to unfairly prejudice the People's case (see People v. Primo , 96 N.Y.2d 351, 356-57, 728 N.Y.S.2d 735, 753 N.E.2d 164  ). And, to the extent there was any doubt about the admissibility of such a third-party culpability proffer, it could have been persuasively supported by "reverse Molineux evidence — i.e. , evidence that [Speedstick] ha[d] committed bad acts similar to those the defendant[s] [were] charged with committing" ( People v. DiPippo , 27 N.Y.3d 127, 138, 31 N.Y.S.3d 421, 50 N.E.3d 888  ) — evidence which the DD5s documenting the interviews with Witness #1 contained in abundance. Finally, the prosecutors could not have credibly argued, at least with respect to Witness #1, that he was unreliable, since the District Attorney's Office had previously used him as a Grand Jury witness. Regardless, "[f]avorable information [must] be disclosed ... irrespective of whether the prosecutor credits the information" (New York Office of Court Administration " Brady Order," issued November 7, 2017, by Chief Administrative Judge Lawrence K. Marks).
The Court, moreover, agrees with the parties that there is, at the very least, a reasonable possibility that, had this suppressed evidence been disclosed, the outcome of these trials would have been different. In this regard, it is important to note that a different outcome can simply mean "shifting even one juror's vote" ( Turner v. United States , 582 U.S. ––––, 137 S. Ct. 1885, 1897, 198 L.Ed.2d 443  [Kagan, J., dissenting]). And a single hold-out juror is certainly a reasonably possible outcome of trials in which the third-party culpability evidence outlined above was introduced, let alone any additional evidence implicating Speedstick that the defense might have uncovered had it timely received the information revealed by Witnesses #1 and 2.
It is true, of course, that Bell and Johnson confessed. But the People and the defense agree that the circumstances surrounding those confessions, as well as their contents, raise legitimate concerns about their reliability. To cite just two examples, Bell said that the van was a shade of red, but numerous eyewitnesses said it was blue. His statements also neglected to mention Bigweh — an omission that detectives later sought to correct. Beyond that, it is hard to ignore the fact that one demonstrably false confession was elicited during the course of this investigation, Ligon's, when evaluating the reliability of the admissions made by Bell and Johnson.
The other major components of the People's cases were far from iron clad. No physical evidence, fingerprints, or surveillance video linked Bell, Bolt, or Johnson to the crimes. The reliability of Turnbull, the People's only eyewitness, was questionable, since he made his observations from over 180 feet away, before sunrise. Bigweh and Gousse were cooperating witnesses with serious sentencing exposure, who had every incentive to testify in the way they believed the People wanted them to. And, of course, Bigweh's reliability might have been further undermined, had the defense been able to cross-examine him about his mental health issues, which included a history of auditory hallucinations (see People v. McCray , 23 N.Y.3d 193, 199, 989 N.Y.S.2d 649, 12 N.E.3d 1079  ), and about his alleged statement to Witness #2, in which he disclaimed any involvement in the Astoria Boulevard crimes. Put simply, the Speedstick "information would have added a little more doubt to the jury's view of the evidence and it is reasonably possible that a little more doubt would have been enough" in these cases ( Negron , 26 N.Y.3d at 270, 22 N.Y.S.3d 152, 43 N.E.3d 362 [internal quotation marks omitted]).
That conclusion is sufficient to resolve the Brady issue. But the People's conclusory assertion — despite their concession of a material Brady violation — that "the trial ADAs’ ... on-the-record denials" were made in good faith merits some further discussion. For all of the reasons discussed above, the repeated denial of any connection between the perpetrators of the armored car robbery and these crimes was a complete misrepresentation. Most troublingly, it was a misrepresentation made by a prosecutor, ADA Testagrossa, whose own handwritten notes refuted it. This was, in short, not a good-faith misstatement; it was a deliberate falsehood.
The People's assertion of good faith is also puzzling because no affirmations from any of the assistant district attorneys involved in this prosecution have been submitted to the Court, so there is no explanation for why this information was not disclosed, let alone an explanation that would support the conclusion that the nondisclosure was fairly attributable to negligence, inadvertence, or anything else short of deliberate suppression. The People's position seems to boil down to the fact that the Witness #1 DD5's were not found in the files related to this case. Fair enough. But ADA Testagrossa's handwritten notes show beyond any doubt that he was aware of the essence of the information in those reports (which the People, of course, now concede was exculpatory), so their absence from the files pertaining to this case does not get them very far at all.
It is arguably possible that, by the spring of 1999, when ADA Testagrossa was trying this case and was questioned by Bell's defense lawyers about why the ballistics evidence in the armored car robbery was compared with the ballistics evidence recovered from Epstein's check cashing store, he had simply forgotten about the extremely memorable Speedstick connection to this case, which he learned about in 1997. But even if that sort of memory lapse had occurred — and the Court does not believe that it did — good faith would have required much more than making sweeping assertions about the absence of any connection between the perpetrators of the armored car robbery (i.e. , the Speedstick gang) and this crime, without first making a diligent effort to ensure that nothing in the District Attorney's Office's files related to the Speedstick investigation contradicted that position. And all that effort would have entailed was reviewing files of cases handled by Testagrossa's own bureau.
Other aspects of how this case was handled cast significant doubt on the People's position that these defendants "were prosecuted in good faith." One has to wonder, for example, if Jason Ligon's attorneys were ever made aware of the evidence indicating that Jamal Clark was actually the "Jason" who drove the van, and whether the belated dismissal of Ligon's case was motivated by the prosecutors’ desire to have charged someone with the role that Clark may have played in this crime until they had secured the convictions of Bell, Bolt, and Johnson. The defendants also allege, and the People do not really dispute, that a number of police reports documenting interviews with witnesses who reported seeing a blue or green van approaching or leaving Epstein's check cashing store on the morning of the murders were never disclosed to the defense, even though those accounts contradicted the People's theory that the van was red. In addition, the defendants point out that, during Johnson's and Bolt's trials, Bigweh testified, without correction by ADA Leventhal, that he started cooperating with the District Attorney's Office in October 1999, when, in fact, he signed a cooperation agreement (that was later voided) in January 1997. All of this leaves the distinct impression that the suppression of the Speedstick information was not an isolated instance of misconduct, but part of a larger pattern of behavior that was calculated to deprive the defendants of fair trials, which is particularly egregious given that the death penalty was being sought against 19-year-old George Bell.
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Belatedly discovered Brady violations committed in murder cases, especially capital murder cases, "merit[ ] the strongest possible condemnation because [they] deprive[ ] the defendant of a fair trial and also deprive[ ] the victim's family of a determination as to whether the defendant was responsible for the homicide and, if so, the imposition of a just sentence" ( Kurtzrock , 192 A.D.3d 197, 138 N.Y.S.3d 649 ). That observation rings true here. These three defendants were undoubtedly wronged by the District Attorney's Office's misconduct. But that misconduct, which may have been motivated by an understandable (though obviously misguided) desire to seek justice for Epstein's and Davis's families and loved ones, will now, nearly a quarter century after these tragic murders, likely cause the people most affected to revisit them — and to be deprived of whatever semblance of closure they may have experienced after these three men were convicted. It is conceivable, perhaps, that the People will retry Bell, Bolt, and Johnson, or build a different case against Speedstick. The passage of so much time, though, would seem to make either of these scenarios unlikely. In the end, then, the identities of the men who killed Ira Epstein and Charles Davis will likely remain unresolved. And the blame for that lack of resolution and closure will fall squarely on the office of the former district attorney.
In sum, the motions to vacate the judgments of conviction are granted to the extent indicated. This constitutes the amended decision and order of the Court.