POSTED: 1:30 a.m. HST, Dec 2, 2013
NEW YORK » The streetlights were bright at the Kingsborough Houses in Brooklyn, so even though it was about 4 a.m., one of the two off-duty correction officers sitting in the parked Volvo said he got a good look at the two men who rode up on bicycles.
It was summer 1991 and the officers, Robert E. Crosson and Rolando Neischer, were chatting in the predawn solitude.
The men on bicycles were armed. They ordered Crosson and Neischer out. But Neischer grabbed his own weapon and a firefight ensued. The police believed at least one of the carjackers was wounded, records show. Neischer was shot five times - in the chest, back, abdomen, thigh and ankle - and died four days later. Crosson was shot through his hand.
Two teenagers were arrested. They were quickly convicted.
It was an open-and-shut case.
But it was fraught with problems.
The suspects were arrested by Detective Louis Scarcella and his partner, Stephen W. Chmil. The case is among the 46 that Scarcella handled that are under review by the Brooklyn district attorney's office. Scarcella, one of the most successful and aggressive detectives in New York City history, came under scrutiny after accusations that he once framed an innocent man. He has been accused of roughing up suspects, inventing confessions, relying on the testimony of the same crack addict in multiple cases, and even pulling jailhouse informers, often dangerous criminals, out of prison to smoke crack and visit prostitutes or girlfriends.
But the involvement of Scarcella, who is retired, and Chmil was only the start of trouble for the two teenagers arrested in the case. Public records, court transcripts and interviews with both convicted men and their lawyers, as well as other law enforcement officials, reveal that if the detectives took shortcuts, they were the first in a series of missteps, errors and questionable decisions made by players at every level of the criminal justice system who touched this case, from the police to defense lawyers to prosecutors to the judge who heard it.
The teenagers' experience demonstrates how poor work by detectives at the initial stages can start a sequence of events that snowballs through the system, seemingly unstoppably, until two possibly innocent men have spent decades in prison.
Scarcella has said he never framed anyone and is proud of his work for the city. He referred questions about this case to a lawyer, Alan Abramson, who declined to comment.
The district attorney's review has invigorated a quest lasting years by several lawyers. They were appalled at the lack of evidence that led to the conviction of the two teenagers - Rosean S. Hargrave and John Dwayne Bunn.
YOUNG MEN ON BICYCLES
Crosson, who was 30, said he and Neischer, 31, were out late the night of Aug. 12, 1991, because Neischer's son had been hurt at a playground and wound up in the emergency room. After the boy was treated and taken home, the two men sat chatting in the car into in front of the public housing development where they lived into the early morning of the 13th.
That was when two armed young men on bicycles neared the Volvo. They stood on opposite sides and ordered the two men out, Crosson testified.
Crosson said the man on the passenger side pointed a blue steel gun at him.
"I put my hands up to my face, because the gun was pointed right at my face," Crosson testified. "The gun went off."
Shot in the hand and with blood running down his face, Crosson got out of the car and sprinted, he said. He heard lots of shots, he added. The carjackers dumped the bikes, hopped in the Volvo and roared off.
Crosson covered about 50 feet, he later testified. When he turned back, he said the Volvo and Neischer were gone.
The case was assigned to John Barba, a detective at the 77th Precinct, and to Scarcella, a Brooklyn North detective who served as a roving investigator for several neighborhoods. Scarcella was best known for getting suspects to admit crimes. With him came his regular partner, Chmil.
Crosson met them the day after the shooting at the 77th Precinct station house. Chmil testified that he and Scarcella reached into a drawer with roughly 600 mug shot photos and pulled out six at random to show the wounded survivor. Crosson said he recognized Hargrave in one of the pictures, saying he was "90 percent sure" that was the man who shot him, but that he would need to see him in person.
'ON A COLLISION COURSE'
Hargrave was a 17-year-old 10th-grade dropout who lived in the Kingsborough complex with his mother, grandmother and sisters. He liked stealing cars for joy rides while his mother, then a janitor at the Metropolitan Transportation Authority, struggled with single parenthood.
Court records show that Hargrave had been repeatedly arrested over the previous year, with each arrest growing increasingly violent.
Scarcella found Hargrave outside his sister's apartment. The detective said he did not need an arrest warrant because Hargrave was in the hallway, not inside. The 17-year-old was interrogated at the station and put in a lineup with five extras hired to stand in as suspects.
"They put me in a lineup with a bunch of dudes that looked like they smoked crack," Hargrave recalled. "They were out of place, like they should have been in a shelter."
Crosson came in and picked out Hargrave.
The detectives' reports do not indicate how they came to identify Bunn as the second suspect. Bunn, who was released on parole in 2006, said in a recent interview that he figured his name came up during the interviews with Hargrave. "He must have been like, 'I was with Dwayne,'" Bunn said.
Bunn was 14 and 5-foot-6 when arrested. He was a car thief. He had been arrested once before in a jewelry snatching.
Like Hargrave, Bunn was being raised by a single mother; both women had drinking problems. And like Hargrave, Bunns swears he was home in bed the night of the shooting.
Crosson pointed at Bunn in a lineup and said he was the killer.
WRONG LINEUP PHOTOS
The case was assigned to Edward Boyar, a veteran prosecutor whom District Attorney Charles J. Hynes had chosen four years earlier to be the lead trial lawyer in a racial killing case.
Boyar was known in Brooklyn legal circles as a gifted trial lawyer. But he had troubles, too. He was once suspended for three months after drunkenly shouting racial slurs in a Brooklyn bar, according to The Daily News.
Early missteps by the prosecution were allowed to stand. At a hearing before trial, the defense learned there were problems when a detective presented the court with photos of the "fillers" - the men who lined up with Hargrave. Three of the people in the photos did not match the men shown in the lineup, transcripts show. The detective had accidentally turned in close-ups from a different case, and the prosecutor apparently did not notice. The correct ones had been misplaced.
Justice Gloria Goldstein allowed the photo evidence and witness ID anyway.
The families were surprised at how quickly it was all over. Both sides presented their cases in a single day. Neither defense lawyer made an opening statement, and the prosecution had little evidence beyond Crosson's word. Only four people testified: the first police officer at the scene, the medical examiner, Crosson and Barba.
The medical examiner said the autopsy showed that Neischer had been shot with two different guns. One was fired by someone who shot from the left front of the victim and another from behind, the medical examiner said.
Yet even with so few witnesses, there were contradictions.
Barba took the stand and revealed that the fingerprints found on the bicycles and the Volvo did not match either suspect. And nobody in the Police Department ever asked Crosson for his prints, the precinct detective testified.
Robert Massi, Hargrave's defense lawyer, tried to show that the blood in the car and on the bicycles belonged to the carjackers and not Neischer, who was outside the car when he was shot. And if the carjackers were shot, he argued, then the two teenagers must be innocent, because neither was wounded.
But the blood-test results were never received, a detective testified. There was even confusion as to whether the testing had even been done.
Bunn's court-appointed lawyer, Harold Venokur, hardly spoke at all. Bunn said in an interview this year that although both he and Hargrave had alibi witnesses, the defense lawyers told the two that the witnesses contradicted each other, so they decided not to put them on the stand. Venokur, who has since died, was 79 years old and had a poor reputation.
At 11:05 p.m. the day after the trial began, the jury voted to convict.
Both defendants filed appeals, which were denied.
Barba has since died. Boyar, the prosecutor, is retired and lives upstate. He suggested he did everything right. "Those kids were guilty," Boyar said in a telephone interview. "I see that as a clean case."
Ten years later, lawyers working together to file a new appeal for the men were dumbstruck when they encountered an apparently insurmountable, and unexplainable, roadblock.
Crucial evidence had been destroyed.
"We wanted the bicycles. We wanted the blood," said William E. Hellerstein, who had been involved in the new appeal. But the evidence was gone. "There was some kind of order in the DA's file to release the evidence."
Bunn is still angry.
"They pulled the rug out from under us by destroying the DNA that would have proved we were innocent," he said. "Then everybody gave up on us."
The Exoneration Initiative, a nonprofit organization in Manhattan that has been investigating the case for two years, now represents Bunn. "This smacks of a cover-up, and it's really troubling," said Bunn's lawyer, Glenn A. Garber.
Hargrave recently hired Pierre Sussman, a civil rights lawyer in the Bronx. Sussman represents several murder defendants who were investigated by Scarcella; one of them was released from prison this year, largely because of flaws in Scarcella's work. The lawyer is deeply skeptical of the retired investigator.
"There are too many questionable evidentiary pieces to this conviction that rely on Scarcella and Chmil's work," Sussman said after an interview at his Bronx storefront law office across the street from the courthouse.
Through his wife, a New York City police officer, Crosson declined repeated requests to comment for this article. Bankruptcy court records show Crosson left the city's Department of Correction in 2010 and was employed last year as a bus driver.
Neischer's family said that although they never had a reason to doubt the convictions, if the men were to be exonerated or a judge ordered a new trial, they would not object.
Citing the open investigation, the Brooklyn district attorney's office also declined to comment. Goldstein, who now works for an arbitration company, did not respond to phone and email messages left at her company.
Massi, the trial lawyer, who left Legal Aid in 1995, is retired and living upstate. He is still haunted: "I was genuinely moved by that case."
Frances Robles, New York Times