STORY: "Reporting that made a difference in 2002." (Syracuse.com Editorial Board); Published on January 01, 2023.
PHOTO CAPTION" Anthony Broadwater (left) and his brother Greg struggle to lift more than 250 pound metal grate. Anthony was convicted of rape in 1981 and served 16 years in prison. He was finally exonerated in 2021. In February, Broadwater sued New York state over his wrongful conviction. The state is dragging its feet on a settlement.
GIST: "A year ago, we highlighted reporting by Douglass Dowty on the exoneration of Anthony Broadwater, who was wrongfully convicted in the 1981 rape of author Alice Sebold while she was a student at Syracuse University. In January, Dowty and Tim Knauss wrote the definitive story of how racism and incompetence doomed Broadwater to prison. In February, Broadwater filed a $50 million lawsuit against the state for wrongful imprisonment. Instead of simply paying him off, state lawyers filed papers delaying the case until at least 2024. Meanwhile, Broadwater is in ill health and living hand to mouth. Dowty pressed the issue in the editorial board’s pre-election interview with Attorney General Letitia James, who said a resolution would come “soon, very soon.” We sure hope so.
The entire story can be read at:
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PASSAGE OF THE DAY: National Registry of Exonerations: "Broadwater sought to overturn the conviction several times, but his efforts were fruitless. He was denied parole five times because he refused to admit guilt. He took two polygraph examinations—one after he was released on parole—and the examiners said he was truthful when he denied involvement in the crime. He once sent a check for $1,000 to renowned defense lawyer Johnnie Cochran, but the check was returned. In 1989, the physical evidence was destroyed. As a result, when DNA testing became available, Broadwater was unable to avail himself of it to prove his innocence. In 2012, following the exoneration of several defendants who were wrongly convicted on the basis of hair comparison testimony, the FBI began an internal review of microscopic hair analysis cases. The review found that virtually all of the testimony involved using the word “consistent” to describe hair recovered from crime scenes. The report concluded that using the words “consistent with” was erroneous. In 2015, the U.S. Department of Justice and the FBI joined with the Innocence Project and the National Association of Criminal Defense Lawyers to examine hair analysis errors in cases before December 1999. A review of 268 cases revealed erroneous testimony in 96 percent of the cases. In these cases, analysts gave scientifically invalid testimony, such as saying that hairs were a positive match or gave unsupported mathematical odds of a match. Twenty-seven of 29 analysts either gave faulty testimony or submitted erroneous reports."
ENTRY: National Registry of Exonerations: By Maurice Possley; Published on December 8, 2022. Contributing factors: Mistaken witness ID; False or misleading forensic evidence; Perjury or false accusation; Official misconduct;
GIST: On November 21, 2021, nearly 40 years after Anthony Broadwater was convicted of raping a Syracuse University student who went on to become a best-selling author, his conviction was vacated and the charges were dismissed in an Onondaga County courtroom.
Numerous attempts to overturn the conviction were unsuccessful. and on December 31, 1998, Broadwater was released from prison on parole. He was required to register as a convicted sex offender.
While Broadwater was spending his last year in prison, Sebold was at the University of California, Irvine completing a Masters of Fine Arts degree that included a course on memoir writing. Eight months after Broadwater was released, on August 4, 1999, Sebold launched her literary career with a memoir, “Lucky,” that detailed the attack and identified Broadwater as “Gregory Madison.” Sebold went on to write “The Lovely Bones,” which sold more than five million copies, and was made into a feature film.
The memoir, which sold more than one million copies, ultimately contained details which, when finally pieced together with other evidence, fueled the effort to clear Broadwater of a crime he had always maintained he did not commit.
The attack occurred shortly after midnight on May 8, 1981, the day Sebold was to return home at the end of her freshman year. She was walking to her dormitory through Thornden Park when she was grabbed from behind. She said the man threatened her with a knife, though she did not see the weapon, and dragged her under an archway where she was raped and sodomized.
She described her attacker as a Black man, 16 to 18 years old, muscular, and about 150 pounds. She said he was wearing a dark blue sweatshirt and dark jeans with a short afro-style haircut.
Police later recovered a pocketknife and her broken glasses. A partial fingerprint was found on the knife, but police could not link it to anyone.
The crime was unsolved when Sebold returned to the university for her sophomore year. At about 6:20 p.m. on October 5, 1981, she was walking on Marshall Street near the campus when she saw a man who she believed was her attacker. She said the man was talking to a police officer and that he “reminded [her] very much” of her attacker. She said the man called to her, “Hey, girl. Don’t I know you from somewhere?” She said she left immediately and went to her dorm room.
When Sebold notified police about 45 minutes later, she provided a more detailed description and a sketch she drew after returning to her dorm room. She said the man was Black, 5 feet five inches to 5 feet 7 inches tall, 165 to 175 pounds, “very stockily built, very muscular looking with short cropped hair that was down in the front, a pug nose but wider” than most Black men. “The eyes were almond shaped almost Oriental” and the suspect’s mouth had a thick bottom lip and a thin upper lip. She said he had a short neck with a boxy jawline and a dark, “but not too dark” complexion.
Police put out a bulletin, and Officer Paul Clapper reported that he had been on Marshall Street and spoke with Broadwater at the time Sebold said she saw her attacker.
On November 4, Broadwater stood in a lineup along with four other men. He was in position number 4. Sebold selected the man in position number 5. Even though she failed to identify him, Broadwater was indicted on charges of rape, sexual abuse, sodomy, robbery, and assault.
On May 17, 1982, Broadwater went to trial in Onondaga County Supreme Court. Broadwater chose to have his case decided by a judge instead of a jury. Sebold recounted the attack and identified Broadwater—the only Black man in the courtroom—as her attacker.
“He was walking up that street and he walked diagonally across the street and he said to me…‘Hey, girl, don't I know you from somewhere?’ I looked at him, and that was indeed the man who had raped me on May 8th,” Sebold testified.
Sebold admitted she did not select Broadwater in the lineup. She said that Broadwater and the man in position number five—Henry Hudson—resembled each other. She said she picked Hudson “because he looked at me” through the glass window.
She said she marked the box indicating she had picked the man in position five “because I was very scared, and he was looking at me and I saw the eyes, and the way the line-up is—it is not like it is on television. And you are standing right next to the person and he looks like he is two feet away from you. He looked at me, and I picked him.”
Assistant District Attorney William Mastine Jr. asked, “Is there any doubt in your mind, Miss Sebold, that the person you saw on Marshall Street is the same person who attacked you on May 8th in Thornden Park?”
“No doubt whatsoever,” Sebold replied.
Officer Clapper testified that on October 5, 1981, after he heard a bulletin with the description that the man Sebold saw was speaking to an officer, he realized he was the officer and that she was referring to Broadwater. Clapper testified that when Broadwater approached him, Clapper said, “Don’t I know you?” Clapper said he spoke briefly with Broadwater before they parted ways.
A physician testified that a rape kit was taken at the hospital after the assault. The physician described Sebold’s injuries and said that Sebold had been forcibly raped.
Assistant District Attorney Gail Uebelhoer testified that she was present during the lineup. She said that prior to the lineup, Broadwater asked that one of the four fillers in the lineup be replaced by Hudson, who was in the jail.
She said the four fillers had been selected by jail authorities. However, Broadwater “requested that a different person be put in the lineup and apparently he was unhappy with one of the people in the lineup,” Uebelhoer said. “Specifically, (he) requested that a different person, who he knew to be in the jail, be brought down and be placed in the lineup and that was the person that was brought down and put in the lineup [in] position five.”
A police officer described the unsuccessful effort to link the pocketknife to Broadwater by the partial fingerprint. The knife was not allowed into evidence because Sebold never saw it and it could not be connected to the crime.
Steven Kaszubinski, a police crime lab analyst, testified that he compared a pubic hair that was recovered from Sebold to a pubic hair obtained from Broadwater.
Mastine asked, “Were the various characteristics found consistent or inconsistent with the hair…having come from Anthony Broadwater?”
“The hair recovered…was consistent as having come from Anthony Broadwater,” Kaszubinski testified.
“All the various characteristics you had mentioned, did you find anything at all inconsistent between these two hair samples?” Mastine asked.
“No, I did not,” Kaszubinski replied.
Justice Walter Gorman, who was presiding over the trial, interjected and asked Kaszubinski, “Through the testing that you performed on the two samples of hair that you prepared… it is simple to rule someone out?”
“Yes, it is,” Kaszubinski said.
“With respect to the hair sample, you stated that all the tests that you had—all the comparisons, all the characteristics were similar, is that correct,” Justice Gorman asked.
“That is correct,” Kaszubinski said.
“They were consistent?” Justice Gorman asked.
“They were all consistent,” Kaszubinski said.
“But even with that testimony, you cannot say positively, based upon, say a reasonable degree of chemical certainty, that the defendant is the person?” Justice Gorman asked.
“No, sir, I cannot,” Kaszubinski said.
No serological testing was performed on the rape kit, although semen was identified as being present.
Broadwater testified and denied committing the attack. He said he was on Marshall Street on October 5, 1981, but that he hailed officer Clapper by saying, “Hey, haven’t I seen you somewhere before?” Broadwater said Clapper first confused him for his brother, Wade, and then recognized him from past encounters. He denied that he addressed Sebold in any fashion.
Broadwater testified that he had a scar on his forehead and under his eye. He and also had a tooth which that had been chipped half off while he was in the Marines—distinguishing features that Sebold had not mentioned in her description.
Broadwater also denied that he knew Henry Hudson or that he demanded that Hudson be placed in the lineup.
During closing arguments, Mastine, the prosecutor, noted that Kaszubinski, the hair analyst, had compared physical characteristics of the pubic hair recovered from the rape kit with Broadwater’s pubic hair. “[T]here was not one…characteristic out of some 11 or 12 named by Kaszubinski that were inconsistent,” Mastine declared.
“So all he could say was that it was consistent,” Mastine said. “I don’t like to use the word at all. That is the most anybody could ever say about a hair sample is that it was consistent. The same way that is all [the physician] could say about the fact that this woman was raped. That it was consistent. I would draw a parallel between the two. The seriousness, which I think the Court should give to those two pieces of evidence.”
At the conclusion of the closing arguments, Justice Gorman convicted Broadwater of first-degree rape, first-degree sexual abuse, first-degree sodomy, first-degree robbery, and assault. He sentenced Broadwater to 8 1/3 to 25 years in prison.
Broadwater sought to overturn the conviction several times, but his efforts were fruitless. He was denied parole five times because he refused to admit guilt. He took two polygraph examinations—one after he was released on parole—and the examiners said he was truthful when he denied involvement in the crime. He once sent a check for $1,000 to renowned defense lawyer Johnnie Cochran, but the check was returned.
In 1989, the physical evidence was destroyed. As a result, when DNA testing became available, Broadwater was unable to avail himself of it to prove his innocence.
In 2012, following the exoneration of several defendants who were wrongly convicted on the basis of hair comparison testimony, the FBI began an internal review of microscopic hair analysis cases. The review found that virtually all of the testimony involved using the word “consistent” to describe hair recovered from crime scenes. The report concluded that using the words “consistent with” was erroneous.
In 2015, the U.S. Department of Justice and the FBI joined with the Innocence Project and the National Association of Criminal Defense Lawyers to examine hair analysis errors in cases before December 1999. A review of 268 cases revealed erroneous testimony in 96 percent of the cases. In these cases, analysts gave scientifically invalid testimony, such as saying that hairs were a positive match or gave unsupported mathematical odds of a match. Twenty-seven of 29 analysts either gave faulty testimony or submitted erroneous reports.
In 2020, production was ongoing to turn Sebold’s memoir into a feature film. The film’s executive producer, Timothy Mucciante, became concerned that Broadwater was, in fact, innocent. Mucciante hired a private investigator to take a look at the case. The investigator eventually connected Mucciante to Syracuse defense lawyer David Hammond, who brought in another criminal defense lawyer, Melissa Swartz.
Ultimately, following the re-investigation, the lawyers brought the case to the Onondaga County District Attorney’s Office. On November 10, 2021, Hammond and Swartz filed a motion seeking to vacate Broadwater’s convictions.
The motion cited the discrediting of hair comparison testimony and also cited a portion of Sebold’s memoir that described the lineup. Sebold said that the men in positions four and five “looked like identical twins.” She had doubts about her selection immediately, telling a detective who was running the lineup, “It was four, wasn’t it?” Sebold wrote that when the detective said he could not tell her, she realized, “I needed to rebuild my case.”
Sebold wrote that right after, the prosecutor, who was Uebelhoer, entered the room in a state of anger. Sebold said the prosecutor said, “Well, we got the hair out of the bastard.”
When the detective said that Sebold now “thinks it was four,” Uebelhoer told Sebold, “Of course you chose the wrong one…He and his attorney worked to make sure you’d never have a chance.” Sebold noted that the detective warned Uebelhoer to stop talking, but Uebelhoer replied, “She has a right to know.”
The memoir quoted Uebelhoer as saying that Broadwater “had his friend come down and stand next to him. We had to send a car to the prison to get him here. They wouldn’t go ahead until he showed…They totally worked a number on you. He uses that friend, or that friend uses him, in every lineup they do. They’re dead ringers.”
According to the memoir, Uebelhoer explained that the “friend” purposefully looked scary to psych her out while Broadwater looked innocently downward.
The motion for a new trial noted, however, that none of that was true. “Broadwater had never participated in a lineup procedure before this one, he was not friends with person number five Henry Hudson, Mr. Hudson was not ‘transported from prison,’ and they were not ‘dead ringers,’ given their only common characteristic was their race,” the motion said. Uebelhoer’s explanation to Sebold was never disclosed to Broadwater’s defense attorney.
The motion also noted that since Broadwater’s trial, extensive research had been done showing that cross-racial identifications (Sebold is white) have significantly higher rates of mistakes than same-race identifications.
“Not a shred of reliable trial evidence connects him to this crime,” the motion said.
On November 17, 2021, Onondaga District Attorney William Fitzpatrick filed a response, joining in the motion to vacate the convictions. Fitzpatrick said he was “very disturbed” by Sebold’s account of being told by the detective that she picked the wrong person and the prosecutor’s strategy of how to deal with the misidentification.
Fitzpatrick was an assistant district attorney at the time of the trial, but had no memory of it. He said that he “never saw anything” from Uebelhoer to suggest “any deviation from high ethical standards.” However, Fitzpatrick said, “This was a time for a supervisor to order a step back and release Mr. Broadwater and review all of the evidence.”
Fitzpatrick noted that Kaszubinski “did not exaggerate his findings, although it certainly could be argued that the trial prosecutor did.”
He also noted that following the report by the FBI and Innocence Project on the high rate of erroneous testimony by hair comparison analysts, his office sought to identify any cases involving hair testimony for review. A legal database was searched for “hair comparison.” Broadwater’s case eluded that dragnet because the his appellate decision in that case did not contain that phrase.
“The identification in this case was seriously flawed and perhaps, through no fault of Ms. Sebold, tainted as well,” Fitzpatrick said. “The People join Mr. Broadwater’s motion to vacate his conviction.”
On November 22, 2021, Supreme Court Justice Gordon Cuffy granted the motion to vacate the convictions. Fitzpatrick then dismissed the case. Broadwater sobbed at the defense table, holding his head in his hands.
Later, he said, “I never, ever, ever thought I would see the day that I would be exonerated.”
Eight days later, Sebold issued an apology. “I am grateful that Mr. Broadwater has finally been vindicated, but the fact remains that 40 years ago, he became another young Black man brutalized by our flawed legal system. I will forever be sorry for what was done to him,” her note declared. “I will continue to struggle with the role that I unwittingly played within a system that sent an innocent man to jail. I will also grapple with the fact that my rapist will, in all likelihood, never be known, may have gone on to rape other women, and certainly will never serve the time in prison that Mr. Broadwater did.”
The project to turn “Lucky” into a feature film was scrapped.
In February 2022, Broadwater filed a claim in the New York Court of Claims seeking $50 million in compensation. In November 2022, he fileda federal lawsuit against the city of Syracuse and the Oneida County District Attorney's Office."
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PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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Christina Swarns: Executive Director: The Innocence Project;
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