PUBLISHER'S NOTE: In recent posts I have begun to pay more attention to cases which involve false confessions, and cases, like the Alexander case, in which the wrongful prosecution is triggered by a false identification. I have begun to precede each 'false confession' case with the following note: "The Charles Smith Blog is interested in false confessions because of the disturbing number of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of scientific research showing how vulnerable suspects (especially juveniles) are to widely used interrogation methods such as the notorious ‘Reid Technique.’ The note I will be placing on false identifications will read: Like false confessions, false identifications have been increasingly recognized as a cause of wrongful prosecutions. As the Innocence project has pointed out:'Research has shown that multiple identification procedures can contaminate a witness’s memory, causing a witness to become confused about whether he or she recognizes the person from the event or the earlier procedure, while also making the witness more confident in his or her identification.' (Other research has found serious flaws in different aspects of the identification process. HL); Some police forces have begun to reform their identification procedures. Others seem content to follow their usual procedures, in spite of the risk involved to the suspect, and the possibility that the person who committed the crime will remain free. Ideally, standards aimed at accurate identifications will be adopted or imposed on all U.S. states and in other jurisdictions where identification procedures are inadequate. In the meantime, this blog will continue to flag cases in which faulty identifications have led to injustice which come to our attention - injustice which cries out to be rectified and avoided."
Harold Levy: Publisher: The Charles Smith Blog;
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STORY: "Louisiana Man Exonerated by DNA Evidence After Serving Nearly 38 Years in Prison for Rape He Didn’t Commit," by reporter Kirsten West Savali, published by The Root on February 2, 2018. (Thanks to the Wrongful Convictions Blog for drawing this case to our attention. HL);
GIST: "Malcolm Alexander, who was just 21 years old when he was wrongfully convicted of aggravated rape and sentenced to life in Louisiana State Penitentiary (Angola), was released from prison Monday after Jefferson Parish Judge June Darensburg overturned his conviction. Darensburg made her decision after a reinvestigation by the Jefferson Parish District Attorney’s Office determined that Alexander did not have competent and effective counsel during his trial, and that his conviction rested heavily on a flawed, unreliable identification procedure. Her decision also rested on DNA evidence that was thought to be lost long ago. The case: On Nov. 8, 1979, a black man allegedly entered an antique store on Whitney Avenue in Gretna, La. He allegedly grabbed the owner, a 39-year-old white woman, from behind in the empty store and raped her twice at gunpoint. The victim never clearly saw her attacker’s face. In February 198 0, Alexander had a consensual sexual encounter with a white woman who asked him for money and later accused him of sexual assault. Even though the woman’s charges were unsubstantiated and no charges were ever filed against Alexander, authorities had his photo on file. That’s all they needed. Gretna police showed the antique-store owner Alexander’s picture, and she “tentatively” identified him as her assailant out of hundreds of photos shown to her. Three days later, police placed Alexander in a lineup, and by that time, the store owner was “sure” that he was the man who had attacked her. This was four months after she was attacked in the dark, from behind, at gunpoint. Alexander was the only man in the lineup whose picture had also been in the photo array. According to the Innocence Project: Research has shown that multiple identification procedures can contaminate a witness’s memory, causing a witness to become confused about whether he or she recognizes the person from the event or the earlier procedure, while also making the witness more confident in his or her identification. After a trial that lasted one day—during which Alexander’s attorney, Joseph Tosh, failed to make an opening statement or call any witnesses for the defense, and failed to adequately cross-examine the state’s witnesses about the identification—Alexander was sentenced to life in prison on Dec. 10, 1980. Still, he never stopped insisting that he was innocent. Alexander reached out to the Innocence Project in 1996, and the organization quickly discovered that critical DNA evidence had been destroyed only four years into his sentence. Alexander’s freedom felt like an impossible dream, but in 2013, there was a break in the case. Pubic hair recovered from the antique store where the rape took place was found at the Jefferson Parish Sheriff’s Office Crime Lab. The hairs belonged to neither Alexander nor the victim. This fact, along with Alexander’s lack of competent counsel and the flawed identification procedure, was enough for Judge Darensburg to overturn his conviction. “The stakes in this case couldn’t have been higher for Mr. Alexander, who faced a mandatory sentence of life without parole, yet the attorney that he entrusted with his life did next to nothing to defend him,” said Vanessa Potkin, post-conviction litigation director at the Innocence Project, which is affiliated with the Cardozo School of Law. “It is simply unconscionable,” she continued. “Mr. Alexander was just 21 years old when he was convicted after a trial that began and ended all in the same day. We know there are many more innocent people in prison today because their lawyers did not provide effective representation, or did not have the resources to put on an adequate defense. Without effective defense counsel, our system is nothing more than a conviction mill.” Tosh was disbarred in 1999 after he was found to have been negligent in dozens of other cases. Alexander’s family was waiting to greet him when he was released from the Jefferson Parish Correctional Center, including his son, Malcolm Stewart Sr., 40, and his grandson, Malcolm III, 20, the New Orleans Times-Picayune reports. Malcolm Stewart was 2 years old when his father went away; Malcolm III is almost the same age his grandfather was when he was wrongfully convicted. Alexander told reporters that being free and with his family made him feel “like a newborn baby.” Though his father, Edmund Alexander, died in 2004, there was another special person waiting with arms outstretched for her baby. “Thank you from the bottom of my heart for getting my child out of that place,” Alexander’s mother, Maudra Alexander, 82, told attorneys for the Innocence Project. “He’s been there for so long.”
The entire story can be found at:
https://www.theroot.com/louisiana-man-exonerated-by-dna-evidence-after-serving-1822650927B...
Read the U.S. National Registry of Exonerations entry at the link below: "
At about 11:30 a.m. on November 8, 1979, a black man walked into a
newly opened antique store in Gretna, Louisiana. The owner, B.N., a
39-year-old white woman, became suspicious. She attempted to direct him
to furniture outside, but as she walked to the front door, he grabbed
her from behind and clubbed her in the head with a handgun. He then
forced her into a bathroom at the rear of the shop and raped her at
gunpoint. After he raped her, he led her to the
telephone, which had been ringing throughout the attack. As he held her
in a chokehold and threatened to shoot her, B.N. completed the call
without alerting the caller. The attacker then forced her back into the
bathroom and raped her again. The attacker ordered her not to move and fled. B.N. used a towel to clean herself and called police. Police found three pubic hairs on the floor of the bathroom and also took the towel into evidence. B.N.
said the attacker was black with a medium complexion, in his early 20s,
about six feet tall, and 165-170 pounds. She said he was wearing blue
jeans, a dark windbreaker, and a navy blue watch cap. B.N. said that he
rode up to the store on a dark orange 10-speed English racing bike.
Police
broadcast the description and 10 minutes later, police stopped a black
man with his jeans unzipped riding an orange 10-speed bicycle. The man
was brought to the outside of antique store, and B.N. stood inside and
viewed him through the front window. She said the man was not her
attacker.
B.N. was then taken to a hospital where a rape kit was taken. On
November 30, 1979, B.N. saw a man she thought might be her attacker.
When police investigated him, they learned he worked at Superior
Pontiac, a car dealership. The man's fellow employees said he was a hard
worker and was not the type of person to commit a sexual assault. On
December 18, 1979, police showed B.N. a photographic lineup, which
included the man from Superior Pontiac, but she did not identify anyone
as her attacker. In February 1980, police arrested
20-year-old Malcolm Alexander after a woman accused him of sexual
assaulting her. Alexander, who is black, told police the sex occurred
after he gave the woman money and that it was consensual. Alexander was
not charged in that incident, but a detective believed that he fit
B.N.’s description of her attacker, even though he was only 5 feet 9
inches tall. On March 24, 1980, Jefferson Parish
Sheriff’s Department Detective O’Neil De Noux Jr. asked B.N. to view
another photographic lineup that included Alexander’s photo. De Noux’s
report said that B.N. identified Alexander, but that her identification
was “tentative.” Three days later, on March 27,
B.N. viewed a live lineup that included Alexander. He was the only
person who was in both lineups—a procedure considered to be improper and
suggestive because a person can subconsciously convert the memory of
seeing a person in the first lineup into a memory of that person being
the perpetrator. Detective De Noux was not present because he was in
court, so Detective Marco Nuzzolillo conducted the lineup. Nuzzolillo
checked off the box “possible” in his report and next to it wrote
“tentative.” Three hours after the live lineup, De
Noux returned from court and interviewed B.N. privately. When he
emerged, he reported that B.N. now said she was more than 98 percent
sure that Alexander was her attacker. Alexander
was arrested and charged with aggravated rape. He went to trial on
November 5, 1980. The entire trial—from selection of the jury until the
jury’s announcement that they found Alexander guilty—lasted one day. The
entire trial transcript was only 87 pages long, and his lawyer, Joseph
Tosh, did virtually nothing to defend him. It wasn’t the first or last
time Tosh would fail a client—in 1999 he was disbarred based on more
than 50 incidents where he took fees and did little
or—frequently—nothing at all and refused to refund the money. Despite
the existence of a rape kit and the towel, both of which contained
semen, and the three hairs found on the floor where B.N. was raped, no
forensic tests were performed. Neither the prosecutor nor the defense
requested any testing on the evidence. Even though his
report of the March 24, 1980 photographic lineup said that B.N.’s
identification of Alexander was “tentative,” De Noux told the jury that
B.N. “without hesitation identified the photograph of Malcolm Alexander
as the man who perpetrated the rape on her.” Detective
Nuzzolillo, who had conducted the March 27, 1980 live lineup and filled
out the report marked “possible” and “tentative,” testified simply that
B.N. identified Alexander. The prosecution
failed to correct the detectives’ testimony or elicit any testimony
regarding the police reports listing the identifications as “tentative.” Alexander’s attorney never asked any questions
on cross-examination about those descriptions. Years later, attorneys
for Alexander would be unable to determine whether the prosecution
withheld the reports documenting the identifications as “tentative,” or
if Alexander’s attorney had the reports but was so incompetent that he
failed to realize their significance. B.N.
testified and identified Alexander as her attacker. Again, no mention
was made that her identifications had been labeled as “tentative.” Tosh
presented no defense witnesses and never investigated whether
Alexander, who had a steady job with a contractor at the time of the
rape, had a viable alibi. Tosh made no opening statement to the jury and
his closing argument took up just four pages of the trial transcript. The
jury was sent out to deliberate at 5:20 p.m. By 6:16 p.m.—just 56
minutes later—they had voted to convict Alexander, returned to announce
the verdict, and been dismissed. The judge sentenced Alexander to life
in prison without parole. Tosh assured Alexander
and his family that he would file an appeal, but he never did. When
family members ultimately discovered that no appeal had been filed, they
sought the help of another lawyer. That lawyer was granted permission
to file an appeal although the filing deadline had lapsed. The appeal,
however, was denied by the Louisiana Court of Appeal. In
1996, after reading a news article about DNA testing, Alexander asked
the Innocence Project in New York for help. However, a search for the
physical evidence was unsuccessful—court officials informed the
Innocence Project that the evidence had been inadvertently destroyed in
1984 during a mass destruction of several hundred boxes of evidence from
closed cases. A deputy clerk attributed the destruction to “human
error, which should not have happened.” The
Innocence Project closed the case but Alexander forged on. In 2004,
after Louisiana enacted a post-conviction DNA testing law, he filed a
motion for testing, hoping it would spark further searches for evidence.
He also filed a federal petition for a writ of habeas corpus. In
2013, his efforts were rewarded when the Jefferson Parish Sheriff’s
Department crime laboratory discovered the hairs that were recovered
from the bathroom floor where B.N. was raped. The
Innocence Project and the prosecution agreed to DNA testing on the hairs
in 2015, and testing was performed in 2016. The tests showed that all
three came from the same person. Alexander was excluded as the source of
the hairs. In 2017, the Innocence Project, joined by
Innocence Project New Orleans, filed a motion seeking to vacate
Alexander’s conviction, citing the DNA evidence as well as the failure
of Alexander’s trial defense attorney to provide an adequate legal
defense. “The most reasonable conclusion is that the hairs originate
from the man who repeatedly raped B.N. from behind, on the floor in the
very location where these hairs were collected,” the petition said.
On
January 30, 2017, Alexander’s conviction was vacated. Judge June Berry
Darensburg dismissed the charge and ordered Alexander released after
spending nearly 38 years in prison. Innocence
Project lawyers Barry Scheck and Vanessa Potkin expressed gratitude to
the prosecution and the Jefferson Parish Sheriff’s Department. “The
DA’s Office and the Sheriff’s Office were very cooperative in trying to
see what happened,” Scheck said. “We’re very appreciative of this.” Orleans
Parish District Attorney Paul Connick Jr., said, “After an extensive
investigation during the past two and a half years, I agreed with Mr.
Alexander's post-conviction attorneys that the defense attorney during
the daylong trial 37 years ago provided ineffective representation in
violation of his constitutional rights.”
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5274