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Bellamy v. City of New York

United States District Court, E.D. New York

May 17, 2017



          Ann M. Donnelly United States District Judge.

         The plaintiff brought this action on March 1, 2012 against Detectives John Gillen and Michael Solomeno, as well as the City of New York, for alleged violations of federal and state law, in connection with his prosecution for the April 9, 1994 murder of James Abbott.

         The plaintiff alleges misconduct on the part of the detectives who investigated the murder. Specifically, he asserts that Detectives Gillen and Solomeno fabricated evidence against him, and coerced an eyewitness into identifying him. His claims against the City are premised on the trial prosecutor's summation comments, and on a perceived policy not to disclose relocation assistance for threatened witnesses.

         The defendants move for summary judgment on all claims; the plaintiff cross-moves. For the reasons set out below, the defendants' motion for summary judgment is granted in its entirety, and the action is dismissed.


         James Abbott was stabbed to death on April 9, 1994. A jury found the plaintiff guilty of Murder in the Second Degree, on a theory that he acted with depraved indifference to human life.

         At that trial, the critical issue was identification. The jury heard evidence from two witnesses. One witness saw the plaintiff shortly before the murder; this witness also said that the plaintiff had threatened her after the murder. The second witness saw the killing itself. Both of these witnesses identified the plaintiff in separate lineups. The jury also heard that the plaintiff made statements to police. The plaintiff's stepfather testified for the defense, and said that the plaintiff was home at the time of the murder.

         The jury acquitted the plaintiff of intentional murder, and convicted him of depraved indifference murder. The plaintiff appealed his conviction to the Appellate Division, Second Department, which affirmed his conviction. The New York Court of Appeals denied the plaintiff's application for leave to appeal. The plaintiff filed a petition for habeas corpus in this district, and the Honorable Charles Sifton denied the petition in a written opinion.

         More than ten years after his conviction, the plaintiff persuaded a state court judge to vacate his conviction, pursuant to Criminal Procedure Law Section 440.10, and to grant him a new trial. The path to that decision was a tortured one, and spanned more than three years and two lengthy hearings.

         The plaintiff's initial claims at the 440 hearing were that his trial lawyer was ineffective, that one of the eyewitnesses had come forward with new evidence calling into question the reliability of his identification of the plaintiff, and that the prosecutor withheld Brady material. The plaintiff called many witnesses who purported to have seen either the crime or its aftermath, but none of them gave evidence that would have warranted setting aside the conviction. The record also revealed that the plaintiff's team of lawyers and investigators, including his current lawyer, Thomas Hoffman, engaged in questionable tactics in their dealings with witnesses. For example, the plaintiff's team told the witnesses-many of whom had testified at the plaintiff's criminal trial-that the plaintiff was innocent, that prosecutors knew he was innocent, that the real killer had been identified and was still at large. Most troubling, the lawyers paid a substantial fee to one of these witnesses-the eyewitness, Andrew Carter-who changed his testimony only after negotiating a payment.

         After the close of the evidence, however, the plaintiff's team announced that they had located a new witness, Michael Green, who claimed that Levon “Ishmel” Melvin had confided to Green that he had killed someone-presumably James Abbott-who was having an affair with Melvin's wife. Moreover, Green produced a tape recording, which he said that he had surreptitiously made of Melvin admitting to the murder. There were certainly problems with his testimony at the first hearing; like Carter, the defense team paid Melvin a significant amount of money, and told him that the plaintiff was innocent. Additionally, his account of how Melvin supposedly confessed to him was not entirely believable. Nevertheless, the recording itself was powerful evidence, and the judge granted the plaintiff's motion to vacate the conviction.

         Shortly thereafter, however, Green's story was revealed to be a hoax. After an investigation, Green admitted that Melvin had never confessed to him, and that he paid a friend to play Melvin's role on the tape. Judge Blumenfeld granted the prosecutor's application to reopen the hearing, at which Green admitted that his previous testimony was a lie, that Melvin had never confessed to him, and that he fabricated the entire story. He also claimed that the defense team employed indefensible tactics: that they fed him evidence and played on his sympathies, and that Mr. Hoffman paid him far more than Green admitted at the first hearing, and that after the tape was proved to be false, Mr. Hoffman told him to “disappear.” Green also described fabricating a second recording purporting to be a witness who had overheard “the real killers” discussing the murder.

         Despite Green's admission that the entire story was fabricated, Judge Blumenfeld adhered to his initial decision granting the plaintiff a new trial. He reasoned that Green could have been telling the truth when he testified that Melvin had confessed to him, and was only lying about the tape. Although the court ordered a new trial, the Queens County District Attorney's Office could not go forward with the case. In the years following the plaintiff's conviction, the New York Court of Appeals sharply restricted the circumstances under which depraved indifference murder, the crime for which the plaintiff was convicted, could be established. As a result, the Office could not retry the plaintiff for the murder of James Abbott.

         The Queens County District Attorney's Office dismissed the indictment against the plaintiff in September of 2011. Six months later, the plaintiff-represented by Mr. Hoffman- brought this lawsuit against the detectives who had investigated the murder of James Abbott and the City of New York.


         I. Factual History [1]

         A. Murder Investigation

         James Abbott was stabbed to death on Beach Channel Drive at the intersection of Beach 48th Street in Far Rockaway, Queens, at around 9:40 a.m. on April 9, 1994. (Defendants' 56.1 Statement (ECF No. 156) (“Defs.' 56.1”) ¶¶ 4, 9; Plaintiff's 56.1 Counterstatement (ECF No. 165) (“Pl.'s 56.1 Counterstatement”) ¶¶ 4, 9.) The murder site was three blocks from the Edgemere Houses, the public housing complex in which the plaintiff lived, and one or two blocks from the C-Town supermarket at 4909 Beach Channel Drive where Abbott had purchased groceries minutes before he was killed, (Plaintiff's Additional 56.1 Statement (ECF No. 167) (“Pl.'s Add. 56.1”) ¶ 21; Defendants' Responsive 56.1 Statement (ECF No. 172) (“Defs.' Resp. 56.1”) ¶ 21), and where the plaintiff bought beer on April 9, 1994. (Defs.' 56.1 ¶ 18; Pl.'s 56.1 Counterstatement ¶ 18.)

         The case was first assigned to Detective Michael Solomeno of the 101st Precinct, and transferred to his colleague, Detective John Gillen, before the plaintiff's arrest, which took place five weeks after the murder. (Pl.'s Add. 56.1 ¶ 22; Defs.' Resp. 56.1 ¶ 22.) In the weeks that followed the murder, the detectives continued to investigate. They went to the C-Town supermarket shortly after the murder, and learned that Abbott had been in the store moments before he was killed. (Pl.'s 56.1 Counterstatement ¶ 16; Pl.'s Add. 56.1 ¶¶ 30-31; Defs.' Resp. 56.1 ¶¶ 30-31.)

         They also spoke at least twice to Andrew Carter, [2] who told the police he saw two men attack the victim, and that the shorter man stabbed Abbott repeatedly.[3] (Defs.' 56.1 ¶¶ 6-9; Pl.'s 56.1 Counterstatement ¶¶ 6-9, Defs.' Ex. E (ECF No. 157-5).)

         Detectives Gillen and Solomeno interviewed Linda Sanchez, who was working at the C-Town the morning of the murder. (Defs.' 56.1 ¶ 12; Defs.' Ex. G (ECF No. 157-7).) She said that Abbott came to the store at about 9:30 a.m. (Defs.' 56.1 ¶ 13; Defs.' Ex. G.) Two other men also came in, picked up some beer, and got in the same line as Abbott. (Defs.' 56.1 ¶ 14; Defs.' Ex. G.) The two men left the store before Abbott, walked through the C-Town parking lot, turned back to the store, and then continued walking. (Defs.' 56.1 ¶ 15; Defs.' Ex. G.) Abbott also left, heading in the same direction as the two men. (Defs.' 56.1 ¶ 16; Defs.' Ex. G.)

         On April 15, 1994, Detective Gillen received a telephone call from someone identifying herself as “Anna Simmons.”[4] (Defs.' Ex. I (ECF No. 157-9).) The caller claimed to have overheard two men bragging about stabbing a man on Beach 48th Street. (Defs.' Ex. I.) According to the caller, the men said that they waited for the victim to leave the supermarket, and followed him to the scene of the stabbing; while he was on the telephone, they got out of their car, “snuffed him, ” and then drove away. (Defs.' Ex. I.) The woman added that the men were members of “the Regulators” gang, and that the victim may have been asked to join, but refused. (Defs.' Ex. I.) The caller said that she knew both men and gave the following description:

1. Rodney Harris [male/black] 26-27 [years of age] 5610 Beach Channel Drive Apartment 7g or 7H Short possibly 5'2-5'4" wears red hoodies
2. Ishael [sic] 5449 Almeda Avenue [male/black] 27-29 [years of age] possibly the head of the Regulators

(Defs.' Ex. I.) Although the caller promised to come to the precinct after she left work at 3:00 p.m., she never arrived. (Defs.' 56.1 ¶ 23; Pl.'s 56.1 ¶ 23; Defs.' Ex. I.)

         As documented in a DD5, Detectives Solomeno and Gillen, in an effort to interview the caller, visited two locations that the caller had given: a laundromat where she claimed to work, and an apartment at 411 Beach 54th Street, Apartment 2G. (Defs.' 56.1 ¶ 25; Defs.' Ex. K (ECF No. 157-11).) They could not find Simmons or anyone who knew her. (Defs.' 56.1 ¶¶ 25-27; Defs.' Ex. K.) Detective Solomeno showed both Carter and Sanchez, separately, two photographic arrays-one with Levon Melvin's[5] photograph, and the other with Rodney Harris's photograph-but neither Carter nor Sanchez identified either Melvin or Harris.[6] (Defs.' 56.1 ¶¶ 28-29; Solomeno Dep. Tr. 53:22-25, 55:9-60:5.)

         On October 20, 1994, ADA David Guy sent a letter to Detective Gillen, requesting the female caller's name, and appended a copy of Detective Gillen's notes from the April 15, 1994 conversation. (Pl.'s Ex. S (ECF No. 169-3 at ECF Page Nos. 10-11).) Detective Gillen created a DD5 in response, dated November 18, 1994, which documented the visit to the apartment and the laundromat the caller described.[7] (Defs.' Ex. K.) Detective Gillen added the phrases “does not live here 4/19” and “Photos neg 16 m/w 22 p/w” to his notes.[8] (Pl.'s Ex. S (ECF No. 169 at ECF Page No. 20).)

         It is undisputed that Detective Gillen never looked for or questioned Harris or Melvin.[9](Pl.'s Add. 56.1 ¶ 45; Defs.' Resp. 56.1 ¶ 45.)

         B. The Arrest and Lineups

         On May 13, 1994, Linda Sanchez called the 101st Precinct Detective Squad and said the person she saw immediately before the stabbing was now in front of 5132 Beach Channel Drive. (Defs.' 56.1 ¶ 30; Pl.'s 56.1 Counterstatement ¶ 30; Defs.' Ex. M.) The detectives arrived and directed the plaintiff to get into the squad car, which he did.[10] (Defs.' 56.1 ¶ 33; Pl.'s 56.1 Counterstatement ¶ 33.)

         The plaintiff says that he asked detectives why they picked him up. (Defs.' 56.1 ¶ 38; Pl.'s 56.1 Counterstatement ¶ 38.) Both sides agree that Detective Gillen told the plaintiff that they were bringing him back to the precinct stationhouse because he was drinking beer in public, and he would be fined for disorderly conduct and drinking a beer in the street. (Defs.' 56.1 ¶¶ 35, 36; Pl.'s 56.1 Counterstatement ¶¶ 35, 36.) At this point, according to the defendants, the plaintiff replied, “This must be a case of mistaken identity-someone probably accused me of murdering someone. Why would someone accuse me of something I didn't do?” (Defs.' 56.1 ¶ 37; Defs.' Ex. N (ECF No. 157-14).) Detective Gillen made a note of the statement in his spiral notebook. (Defs.' Ex. N.) Sometime later, Detective Gillen added to the note: “Statement made by def while being asked his pedigree - spontaneous & unsolicited.” (Pl.'s Ex. S (ECF No. 169-2 at ECF Page No. 30); Gillen Dep. Tr. 58:14-59:5.) The plaintiff denies making this statement.[11] (Pl.'s 56.1 Counterstatement ¶ 37.)

         On May 14, 1994, Detective Gillen conducted a lineup at the 101st Precinct. (Defs.' 56.1 ¶ 42; Pl.'s 56.1 Counterstatement ¶ 42.) Both Linda Sanchez and Andrew Carter viewed the lineup. (Defs.' 56.1 ¶ 46; Pl.'s 56.1 Counterstatement ¶ 46.) The witnesses were asked three questions: (1) Do you recognize anybody? (2) Whom do you recognize? (3) From where do you recognize that person? (Defs.' 56.1 ¶ 48; Pl.'s 56.1 Counterstatement ¶ 48.) A sergeant from a different precinct and Assistant District Attorney Stephen Antignani were in the viewing room when the witnesses looked at the lineup. (Defs.' 56.1 ¶ 186; Pl.'s 56.1 Counterstatement ¶ 186.[12])

         It is undisputed that Sanchez identified the plaintiff. (Defs.' 56.1 ¶ 49; Pl.'s 56.1 Counterstatement ¶ 49.) Detective Gillen documented this identification in a DD5 dated May 14, 1994. (Defs.' Ex. P (ECF No. 157-16).) Further, Sanchez signed a lineup report memorializing the identification. (Defs.' Ex. Q (ECF No. 157-17).) On this form, in response to the question, “Where do you recognize him/her from, ” Detective Gillen wrote that Sanchez answered, “From C-town he was with the guy who got stabbed on that Saturday & he is the guy who I called up on with the yellow shirt yesterday and the brown boots.” (Defs.' Ex. Q.)

         When Carter first viewed the lineup, he said that the person who stabbed the victim was either the person seated in position one, or the person in position two.[13] (Defs.' 56.1 ¶ 51; Defs.' Ex. R (ECF No. 157-18).) The signed lineup form reflects this identification: in response to the question “Do you recognize anyone?” Carter answered, “Either 1 or 2 I'm not sure.” (Defs.' 56.1 ¶ 52; Pl.'s 56.1 Counterstatement ¶ 52; Defs.' Ex. S (ECF No. 157-19).)

         After the lineup, ADA Antignani joined Detective Gillen and Carter in another room. (Antignani Dep. Tr. 94:15-96:22.) When Detective Gillen left, Carter told ADA Antignani that he knew that the stabber was the person in position number one, but that the hair was different. (Antignani Dep. Tr. 94:15-96:22.) Detective Gillen prepared a DD5 that summarized Carter's statements:

The line up was viewed by Andrew Carter and he stated that it was either position #1 or #2 that stabbed the victim at the c/o B.48 Street and Beach Channel Drive. He stated that it was more likely it was number one but could not be absolutely sure it was him. He stated that he was 99% sure but could not say for sure. Carter stated that it appeared that number one was the guy but it seemed as if he had cut his hair as he didn't have any braids.

(Defs.' Ex. R.)

         ADA Antignani memorialized his exchange with Carter in a memorandum dated June 30, 1994. (Defs.' Ex. U (ECF No. 157-21).) ADA Antignani said that Carter initially said that both the plaintiff, in position one, and a filler, in position two, “resembled” the stabber. (Defs.' Ex. U.) In a second conversation immediately after the lineup, Carter explained that his statement in the lineup room “reflected only that there was a resemblance between the persons holding numbers one and two in the lineup, and that the stabber on the date of the incident had a different style haircut than he did on the date of the lineup.” (Defs.' Ex. U.)

         The plaintiff asserts that Detective Gillen and Carter had a conversation outside the lineup room, during which Detective Gillen directed Carter to identify the person in position one-the plaintiff-and told Carter that “Bellamy was the right person to identify but that he had ‘cut his hair' and shortened his braids.” (Pl.'s 56.1 Counterstatement ¶ 53.) Detective Gillen denies this accusation.

         After the plaintiff was returned to his holding cell, Detective Gillen told him that both witnesses picked him out of the lineup. (Defs.' 56.1 ¶ 58; Pl.'s 56.1 Counterstatement ¶ 58.) According to the plaintiff, he fainted for a moment, and when he woke up, Detective Gillen said, “Once I close the door, I close it for good.” (Pl.'s Add. 56.1 ¶ 127.)

         The plaintiff told the detectives that he was with a friend, Terrell Lee, at the time of the murder. (Defs.' 56.1 ¶ 39; Pl.'s 56.1 Counterstatement ¶ 39.) On May 15, 1995, ADA Antignani, accompanied by Detective Gillen, took a sworn statement from Terrell Lee. Lee said that while he knew the plaintiff, he was not with him at the time of the murder:

ADA Antignani: [I]f Kareem told us that he was with you at the time, the morning or April 9th, would he be telling the truth?
Lee: I can't say if he would be telling the truth and I'm not going to try to justify what he's saying, but . . .
Antignani: So, were you with him?
Lee: No, I wasn't.[14]

(Lee Interview, Pl.'s Ex. S (ECF No. 169-1 at ECF Page Nos. 6).) On May 15, 1994, Detective Gillen arrested the plaintiff for murder, and signed the criminal court complaint. (Pl.'s Add. 56.1 ¶ 128; Defs.' Resp. 56.1 ¶ 128.)

         C. The Grand Jury

         ADA Antignani presented the case to the Grand Jury on May 19, 1994. Four witnesses testified: Police Officer Frank Perez, Linda Sanchez, Andrew Carter, and Detective John Gillen.

         Police Officer Frank Perez testified that on Saturday, April 9, 1994, at about 9:45 a.m., he saw James Abbott lying in a pool of blood on the corner of Beach 48th Street and Beach Channel Drive. (Defs.' 56.1 ¶ 63; Pl.'s 56.1 Counterstatement ¶ 63.)

         On April 9, 1994, Linda Sanchez was working as a cashier at C-Town. (Defs.' Ex. X, Grand Jury Tr. 8:16-9:8.) At 9:30 a.m., James Abbott, whom she knew as “a quiet customer” came into the store. (Grand Jury Tr. 9:9-10:2.) While he was checking out, Sanchez saw two other men in line: the plaintiff, whom she recognized as a customer, and a taller man. (Grand Jury Tr. 10:3-11:12.) Abbott stopped to talk to the store manager, and the plaintiff and the other man left the store. (Grand Jury Tr. 11:16-12:2.) As they left, the plaintiff stopped, turned back, and looked inside the store. (Grand Jury Tr. 12:3-12:13.) Sanchez went outside to the parking lot to get shopping carts, and saw that the plaintiff and the other men had stopped near a chicken place. (Grand Jury Tr. 12:10-14:2.) Abbott then walked through the parking lot, in the same direction as the plaintiff and the other men. (Grand Jury Tr. 14:3-14:16.) Sanchez learned later that morning that James Abbott had been killed. (Grand Jury Tr. 14:17-15:4.)

         In a lineup held on May 14, 1994, Sanchez identified the plaintiff as the shorter man behind Abbott in the supermarket on April 9, 1994. (Grand Jury Tr. 15:8-16:5.) The plaintiff's hair was different at the lineup; it was not as “loose” as it was on April 9th. (Grand Jury Tr. 15:8-16:16.)

         Andrew Carter, the third witness, testified that on April 9, 1994, he was waiting for the bus on Beach Channel Drive between Beach 48th and 49th Streets when he observed three men walk over from the direction of the C-Town. (Defs.' 56.1 ¶¶ 73, 74; Pl.'s 56.1 Counterstatement ¶¶ 73, 74.) One of them had two bags. (Grand Jury Tr. 19:9-13.) Two of the three passed him, while one stopped to light a cigarette, and nodded to Carter. (Grand Jury Tr. 19:14-20.) The man with the bags went to use the telephone. (Grand Jury Tr. 19:14-20.) When the man with the bags hung up the telephone, the other two men started hitting him. (Grand Jury Tr. 20:2-10.) The “little” man who had lit the cigarette pulled out a knife and starting stabbing the man in his head, neck, and chest. (Defs.' 56.1 ¶ 75; Pl.'s 56.1 Counterstatement ¶ 75.) The man fell to the ground, and both men kicked him “[a]ll in the chest, face, everywhere.” (Grand Jury Tr. 21:16- 17.)

         On May 14, 1994, Carter went to the 101st Precinct and viewed a lineup. (Grand Jury Tr. 21:21-22:2.) Carter testified that the person in position one-the plaintiff-“stabbed the guy to death in front of the bus stop;” his hair had been in short, kinky braids on the day of the stabbing, but “cut” on the day of the lineup. (Grand Jury Tr. 22:3-22:20.)

         Detective Gillen was the last witness to testify before the Grand Jury. (Defs.' 56.1 ¶ 78; Pl.'s 56.1 Counterstatement ¶ 78.) He conducted two separate lineups-one that Sanchez saw, and the other that Carter saw; the plaintiff was seated in position number one for both lineups.[15](Defs.' 56.1 ¶ 79; Pl.'s 56.1 Counterstatement ¶ 79.)

         The Grand Jury indicted the plaintiff for two counts of Murder in the Second Degree, and one count of Criminal Possession of a Weapon in the Fourth Degree. (Defs.' 56.1 ¶ 80; Pl.'s 56.1 Counterstatement ¶ 80.)

         D. The Suppression Hearing

         Prior to trial, the plaintiff's attorney, Kenneth Reiver, moved to suppress the lineup identifications and the plaintiff's post-arrest statements.[16] At a hearing held on three dates before the Honorable Steven Fisher, the State called Detective Gillen and ADA Antignani. Detective Gillen testified that on May 13, 1994, Linda Sanchez called the 101st Precinct, and said that the person who had been with James Abbott shortly before his murder was in front of 5132 Beach Channel Drive. (Sept. 9, 1994 Tr. 9:7-15.) The detectives, including Detective Gillen, arrived at the address and saw the plaintiff, who matched Sanchez's description, and was drinking a forty ounce beer. (Sept. 9, 1994 Tr. 9:7-10:3.)

         The detectives put the plaintiff in the back seat of their car. (Sept. 9, 1994 Tr. 13:15-17.) The plaintiff was not handcuffed, but was “getting a little aggravated.” (Sept. 9, 1994 Tr. 54:6- 25.) One of the detectives said they would “overlook” the fact that the plaintiff was drinking beer “in front of the project, ” but that he had to come to the precinct. (Sept. 9, 1994 Tr. 54:20- 25.) As they drove to the precinct, Detective Gillen attempted to get the plaintiff's pedigree information, and the plaintiff said, “This must be a mistake. Somebody must have accused me of murdering somebody. Why would somebody accuse me of something I didn't do?”[17] (Sept. 9, 1994 Tr. 12:23-13:5, 52:13-53:6.) When they got to the precinct, Detective Gillen advised the plaintiff of his constitutional rights. (Sept. 9, 1994 Tr. 13:23-16:21.) The plaintiff said that he did not want to talk, refused to sign a form to that effect, and was put in a cell. (Sept. 9, 1994 Tr. 16:3-17:23.) Then the plaintiff started talking. (Sept. 9, 1994 Tr. 18:4-12.) He said that he woke up at 10:00 a.m. on the day of the murder, and was in C-Town with a friend. (Sept. 9, 1994 Tr. 18:22-19:9.) He also said that he saw the victim's body, covered by a sheet, in the street, and that he knew the victim and his family. (Sept. 9, 1994 Tr. 18:22-19:9.)

         Detective Gillen arranged a lineup with five fillers.[18] (Sept. 9, 1994 Tr. 22:2-8, 33:2- 5.) Because the plaintiff was the only one with short braids, Detective Gillen asked the plaintiff to push back his braids. (Sept. 9, 1994 Tr. 84:14-85:5.) The plaintiff chose the first seat.[19](Sept. 9, 1994 Tr. 22:5-10.) Sanchez was the first to look at the lineup.[20] (Sept. 9, 1994 Tr. 22:19-23:2.) She stated that she recognized number one, the plaintiff, as “the guy who was with the victim in C-Town the day he got stabbed, ” and that the plaintiff was “the guy I called up on yesterday.” (Sept. 9, 1994 Tr. 30:25-31:11.)

         Carter viewed the lineup after Sanchez. (Sept. 9, 1994 Tr. 32:6-11.) He said that he wanted to get a closer look at the people in the lineup, so the detective asked that each participant step closer to the window. (Sept. 9, 1994 Tr. 60:18-61:11, 86:4-18.) Carter said that it was “either number one or number two, ” that he “thought it was number one, ” but that he was “also looking at number two.” (Sept. 9, 1994 Tr. 33:18-34:21.) When they got outside of the lineup room, Carter said he was “99 percent sure it was number one, ” but “the hair is throwing me off.” (Sept. 9, 1994 Tr. 85:9-14.) Carter was then taken to another room. (Sept. 9, 1994 Tr. 85:15- 86:3.) He called the detective over and said that he thought it was “definitely number one, ” but that his hair was “shorter, ” and repeated that “the hair was just throwing [him] off.” (Sept. 9, 1994 Tr. 34:14-21, 85:15-86:3.) Then he said that “it was definitely, without a doubt, number one.” (Sept. 9, 1994 Tr. 34:14-21, 85:15-86:3.)

         In addition to asking about the statements and the lineups, defense counsel questioned Detective Gillen about the caller who claimed to have overheard two men talking about the murder. (Sept. 9, 1994 Tr. 45:17-20.) Detective Gillen testified that he could not find the caller. (Sept. 9, 1994 Tr. 46:14-24.) He did not question the people that the caller had named because he did not have anyone to “verify” her information, and he did not want to compromise the investigation. (Sept. 9, 1994 Tr. 46:14-47:18.)

         ADA Stephen Antignani testified that he was present in the room when both witnesses viewed the lineup, as was a sergeant. (Sept. 9, 1994 Tr. 94:24-95:6, 103:21-104:5.) While Carter was looking at the lineup, the participants were asked to step closer to the window. Carter said that he recognized “either one or two. I'm not sure, ” and that he saw “one or two stab the black guy on Beach Channel Drive between Beach 47 or Beach 48 Street.” (Sept. 9, 1994 Tr. 104:24-105:11.) Less than five minutes after Carter looked at the lineup, ADA Antignani went to talk to him in order to schedule his grand jury testimony. (Sept. 9, 1994 Tr. 109:21-110:7.) Carter, who was “sort of apologetic, ” told the prosecutor that he “knew it was number one” who stabbed James Abbott, but that numbers one and two “resembled each other.” (Sept. 9, 1994 Tr. 99:17-100:6, 124:22-125:18.) He explained that he was “positive” that it was number one, but that his hair was different on the day of the stabbing than it was at the lineup, and that the plaintiff's braids were “looser” on the day of the murder. (Sept. 9, 1994 Tr. 99:17-100:6, 113:7- 19.) ADA Antignani spoke to Carter before the grand jury presentation. (Sept. 9, 1994 Tr. 100:11-25.) Carter repeated what he said after the lineup: that numbers one and two “looked alike, ” but that he was “definite it was number one, ” but that he had “different hair on the date of the stabbing.” (Sept. 9, 1994 Tr. 100:11-25.)

         Detective Gillen was recalled on September 20, 1994, and testified about the April 22, 1994 interview of Linda Sanchez. At some point between the April 9 and April 22, 1994, Sanchez called Detective Solomeno, and said that she had some information about the homicide. (Sept. 20, 1994 Tr. 8:8-13.) During an April 22, 1994 interview of Sanchez, Detectives Solomeno and Gillen learned that she had seen Abbott in the supermarket at around 9:30 a.m. on the day that he was killed. (Sept. 20, 1994 Tr. 9:10-10:9.) She saw two black men get in line behind Abbott. (Sept. 20, 1994 Tr. 9:10-10:9, 11:17-22.) She described one man as 5'5", wearing a green jacket and green hat, with short braided hair. (Sept. 20, 1994 Tr. 10:19-11:6.) The other man was between 5'7" and 5'8". (Sept. 20, 1994 Tr. 10:19-11:6.)

         Before Abbott left the store, he spoke with the store manager. (Sept. 20, 1994 Tr. 9:10- 10:9.) The two other men paid for their things and left. (Sept. 20, 1994 Tr. 9:10-10:9.) Sanchez saw them walk through the parking lot, towards Beach Channel Drive. (Sept. 20, 1994 Tr. 9:10- 10:9.) About halfway across the parking lot, they stopped and looked back at the store. (Sept. 20, 1994 Tr. 9:10-10:9.) Abbott left the store, and walked in the same direction as the two men, towards the chicken store. (Sept. 20, 1994 Tr. 9:10-10:9.) Sanchez went out to retrieve some shopping carts; as she walked back towards the store, she looked back, but did not see Abbott or the two men. (Sept. 20, 1994 Tr. 9:10-10:9.) Sanchez told the detectives that she knew the men from “coming into the store all the time, ” and that if she saw them again, or saw a photo of them, she would “definitely recognize them.” (Sept. 20, 1994 Tr. 12:6-12.)

         After both sides rested, the plaintiff's lawyer argued that the plaintiff's statements and both lineup identifications should be suppressed. (Sept. 20, 1994 Tr. 57:10-64:17.) He contended that the plaintiff was arrested without probable cause, that the lineup was unduly suggestive, and that ADA Antignani must have “suggested” to Carter that he should identify the plaintiff. (Sept. 20, 1994 Tr. 57:10-64:17.)

         Judge Fisher credited the testimony of both witnesses; he found that the detectives had probable cause to arrest the plaintiff, that the lineup was not unduly suggestive, and that the plaintiff's statements were spontaneous.[21] (Sept. 30, 1994 Tr. (ECF No. 182-1).)

         E. Criminal Trial

         The central issue in the plaintiff's trial was identification. The witnesses for the prosecution included Detectives John Gillen and Michael Solomeno, Andrew Carter, Linda Sanchez, Veronica Walker, and Deborah Abbott, the victim's sister. The plaintiff's stepfather testified for the defense. I summarize the testimony of the relevant witnesses.

         i. Detective John Gillen

         Detective John Gillen testified about his role in the investigation of James Abbott's murder and the arrest of the plaintiff. On April 9, 1994, Detective Gillen and other detectives, including Detectives Michael Solomeno and Darren Lane, went to the scene of the stabbing; when they arrived, Abbott's body was still there. (Trial Tr. 480:4-81:7.) Detective Lane spoke to Andrew Carter, who lived in a nursing home. (Trial Tr. 482:1-12.) The detectives canvassed the area for witnesses. (Trial Tr. 481:13-25.) About a week later, on April 15, 1994, Detective Gillen got a call from a woman who identified herself as “Anna Simmons.” (Trial Tr. 482:16- 24.) She said that she overheard two men talking about a murder; she identified them as “Ishmel” and “Rodney Harris.” (Trial Tr. 482:16-83:9.) Detective Solomeno checked precinct files, determined that Rodney Harris and Levon “Ishmel” Melvin had been arrested in the precinct, and got their arrest photographs. (Trial Tr. 483:7-22, 546:10-14.) He put together two photographic arrays, one containing Harris's photograph and the other containing Melvin's photograph, and showed them, separately, to Carter and Sanchez. (Trial Tr. 483:7-22, 484:2-6, 486:18-87:4.) Neither witness identified either Harris or Melvin. (Trial Tr. 486:22-24, 487:10-12.)

         Detective Gillen tried to find the caller at both the home address that she gave and at her workplace. (Trial Tr. 490:9-91:15.) No one at either location knew who she was. (Trial Tr. 490:9-91:15.) He did not question or arrest Harris or Melvin because he had “nothing to arrest them for.” (Trial Tr. 553:21-54:24.) He was “not going to approach a suspect and ask him questions about a homicide” when he could not verify whether the caller actually heard the statement. (Trial Tr. 553:21-54:24.) He did not believe that he had probable cause to arrest either man. (Trial Tr. 608:2-7.) Moreover, Detective Gillen was never able to verify that Anna Simmons existed. (Trial Tr. 490:9-91:15, 546:18-22, 605:3-6:10.)

         Detective Gillen was with Detective Solomeno at an April 22, 1994 interview of Linda Sanchez. In that interview, she said that she recognized one of the men who was behind the victim in line as a regular C-Town customer. (Trial Tr. 565:9-14, 570:3-10.)

         At about 6:00 p.m. on May 13, 1994, in response to a call to the precinct, detectives went to 5124 Beach Channel Drive. (Trial Tr. 491:16-92:12.) They stopped the plaintiff, who was wearing a bright yellow sweatshirt and dark pants tucked into Timberland boots, as described in the call. (Trial Tr. 493:7-17.) He was also drinking a forty ounce beer. (Trial Tr. 493:11-13.) One of the detectives told him that they were arresting him for drinking a beer in public, and put him in the back seat of their car. (Trial Tr. 493:14-94:15, 529:23-30:11.) As Detective Gillen tried to get the plaintiff's pedigree information, but before any mention of James Abbott's murder, the plaintiff yelled, “This must be a case of mistaken identity. Somebody probably accused me of murdering someone.” (Trial Tr. 494:23-95:3, 529:12-16, 599:15-22, 600:2-5.) Detective Gillen wrote down what the plaintiff said in his spiral notebook, along with the notation “Statement made by defendant while being asked pedigree.” (Trial Tr. 535:24-36:1.) Sometime later, the detective gave a copy of that notebook page to the prosecutor; he subsequently wrote, “spontaneous and unsolicited” on the original page, copied that page, and gave it to the prosecutor. (Trial Tr. 535:24-40:4.) Defense counsel had both versions at trial, and questioned Detective Gillen about them. (Trial Tr. 535:24-40:4.)

         When they arrived at the precinct, Detective Gillen advised the plaintiff of his constitutional rights; the plaintiff said that he did not want to answer questions. (Trial Tr. 496:17-97:2, 531:18-20, 560:10-61:16.) Detective Gillen put the plaintiff in a holding cell, and started filling out paperwork. (Trial Tr. 497:14-16.) The plaintiff told the detective that he was “there that day.” (Trial Tr. 499:2-501:25, 531:21-32:11.) He said that in the afternoon, he and Terrell Lee walked from the C-Town and saw James Abbott's body in the street. (Trial Tr. 499:2-501:25, 531:21-32:11.) He added that he had known Abbott “his whole life, ” and saw him “all the time” when he went to C-Town to buy beer. (Trial Tr. 499:2-501:25, 531:21- 32:11.)

         The next day, May 14, 1994, Detective Gillen put together a lineup with the plaintiff in seat number one, and five fillers. (Trial Tr. 502:14-5:7.) He asked the plaintiff to push his braids back and to flatten them so that he would not stand out. (Trial Tr. 510:9-19.) Two witnesses viewed the lineup: Linda Sanchez and Andrew Carter. (Trial Tr. 504:8-12, 505:11- 12.) Both witnesses identified the plaintiff, but Carter was hesitant. (Trial Tr. 509:12-21.) Carter said that “it was either one or two, ” and that he was not sure. (Trial Tr. 628:7-9.) Carter, who was in a wheelchair, was having a difficult time seeing, and was trying to lift himself up. (Trial Tr. 609:23-10:11.) He asked that the participants step closer. (Trial Tr. 627:22-28:6.) After each participant stepped forward, Carter repeated that he was not sure, and that it was either one or two. (Trial Tr. 628:4-9.)

         Detective Gillen also testified that at the suppression hearing, the plaintiff repeatedly blurted out statements during the examination of witnesses, including “It wasn't me, ” “That's a lie, ” and “He did not read me my rights.” (Trial Tr. 615:12-26:17.)

         On cross examination, defense counsel established that the detectives had never found a motive for the murder, nor any proof that the plaintiff had any relationship with the victim.[22](Trial Tr. 565:3-8.)

         ii. Detective Michael Solomeno

         Detective Michael Solomeno was originally the assigned detective on the case. (Trial Tr. 791:8-11.) He prepared the photographic arrays containing Rodney Harris' and Levon Melvin's photographs, and was with Detective Gillen when they were shown to Linda Sanchez and Andrew Carter. (Trial Tr. 791:19-94:18.) He interviewed Sanchez on April 22, 1994. (Trial Tr. 794:24-95:2.) Sanchez never told him that the plaintiff threatened her. (Trial Tr. 795:3-5, 803:14-17, 813:3-5.) Shortly before Detective Solomeno's testimony, the victim's sister gave him Veronica Walker's name and contact information. (Trial Tr. 801:14-802:5.) He interviewed Walker on December 1, 1995, while the trial was underway. (Trial Tr. 802:2-12, 807:4-8.)

         iii. Linda Sanchez

         Linda Sanchez was the next witness.[23] (Trial Tr. 631:20-789:1.) The prosecutor had previously disclosed, without the jury present, that he had only recently learned from Sanchez that about a week after the murder, the plaintiff came into C-Town, threatened her, [24] and warned her not to talk.[25] (Trial Tr. 520:3-21:12, 657:12-60:2.) In addition, on the day she called the police to report that the plaintiff was standing in front of 5132 Beach Channel Drive, the plaintiff gestured and wagged his finger at her, which she took as a threat. (Trial Tr. 660:3-14.) The prosecutor advised the court and counsel that his office was “mak[ing] efforts to relocate” Sanchez and was “proceeding with relocation.” (Trial Tr. 520:14-21:12.) He also said that for four days they had given her $25.00 a day. (Trial Tr. 520:14-21:12.) Mr. Reiver protested that it was “amazing that 18 months after this indictment . . . that I am advised after a trial starts that there is some incident that allegedly concerns my client, and I submit to the court that this is totally unfair and unethical. I withdraw the unethical part. It's unfair and highly prejudicial.” (Trial Tr. 521:13-22:2.) After a hearing at which Sanchez testified, the court ruled, over defense counsel's objections, that her testimony about the threats was relevant and admissible.[26] (Trial Tr. 700:25-01:3.)

         In the presence of the jury, Sanchez testified that she was unemployed and on public assistance, and had eight month old twins. (Trial Tr. 633:11-22.) She was not staying at her home, but at a place where a detective had taken her. (Trial Tr. 634:18-35:4.) She was receiving money from the District Attorney's Office: $25 a day for her and her children, to cover the cost of items like food and diapers. (Trial Tr. 633:23-34:14.)

         In April of 1994, Sanchez was a cashier at the C-Town at Beach Channel Drive and 49th Street in Far Rockaway, Queens. (Trial Tr. 635:5-17, 716:19-23.) On April 9, 1994, at around 9:30 a.m., James Abbott, who was a regular customer, was in another cashier's checkout line. (Trial Tr. 636:16-38:18, 641:8-21, 785:19-21.) Standing just behind him were the plaintiff and another man, buying beer. (Trial Tr. 641:8-25, 773:15-74:7.) The plaintiff was wearing a green camouflage jacket, and had “a lot of braids sticking up.” (Trial Tr. 640:21-41:4, 729:19-22, 774:3-19.) He also had a green hat, which he removed when he came into the store. (Trial Tr. 640:21-23, 729:19-22, 734:15-22.) Sanchez recognized the plaintiff as a frequent customer. (Trial Tr. 642:8-12.) In addition, she had once lived near him, and used to see him “hanging out.” (Trial Tr. 767:15-68:1.) The second man, who once sold Sanchez a packet of incense sticks, was light skinned and taller than the plaintiff. (Trial Tr. 730:1-14, 733:3-10, 777:15-19.) He was wearing glasses and had braids that were “going back.” (Trial Tr. 753:22-24, 730:1-4, 773:23-74:10.)

         Abbott stopped to talk to the store manager, later identified as Judeh.[27] (Trial Tr. 754:10- 17, 765:4-6.) The plaintiff and the other man left the store; once outside, one of them turned to look back inside the store, and then both turned to the right. (Trial Tr. 647:12-48:24, 649:12- 50:10, 764:18-66:3, 768:19-25.) Abbott left shortly thereafter, and also went to the right.[28](Trial Tr. 649:12-50:10, 768:19-25.) At that point, Sanchez's boss told her to retrieve shopping carts from the store's parking lot. (Trial Tr. 651:9-16, 755:19-56:5.) When she went outside, she noticed that Abbott had passed the plaintiff and the other man, who were now “right behind” Abbott, near what had formerly been a chicken store. (Trial Tr. 651:13-52:6.)

         Sanchez did not speak to any of the police officers who subsequently came to the store. (Trial Tr. 652:13-53:2, 744:7-11, 745:21-46:2, 763:18-22, 784:5-11.) She did not find out that Abbott had been murdered until after the police left; her boss told her what happened. (Trial Tr. 763:18-22, 784:16-85:5.) Although the plaintiff had previously been an almost daily customer, Sanchez did not see him again until about a week later, when he approached her at her register and said, “You know, you know, you fucking bitch. You're next.” (Trial Tr. 705:3-06:16, 747:12-16.) Sanchez worked the rest of the day, and thought that she called the precinct the next day. (Trial Tr. 706:20-07:9.) She spoke to “a lady, ” and asked to be transferred to Detective Solomeno, whose name she had seen in a local newspaper article about Abbott's murder. (Trial Tr. 707:10-20, 708:18-24, 741:10-48:10.) No one picked up the telephone after her call was transferred. (Trial Tr. 707:10-20, 708:18-24, 741:10-48:10.)

         She spoke with detectives, including Detective Solomeno, on April 22, 1994. (Trial Tr. 715:15-18, 750:25-51:7.) She told them about what she saw in the store on the day of the murder, but did not tell them about the plaintiff's threat to her a week after the murder. (Trial Tr. 749:9-20.) Detective Solomeno showed her two photographic arrays, but she did not recognize any of the people in the photographs. (Trial Tr. 715:15-16:10, 779:8-80:23.)

         iv. Andrew Carter

         Andrew Carter, who had used a wheelchair since the 1980s, testified that on the morning of the murder, he was waiting for the bus on Beach Channel Drive and Beach 48th Street. (Trial Tr. 865:15-23.) Three men, one of whom he identified as the plaintiff, came toward him from C-Town, said hello, and walked “right past” him. (Trial Tr. 866:14-69:10.) One of the men, later identified as James Abbott, was carrying a C-Town shopping bag. (Trial Tr. 867:16-68:2.) The plaintiff, who was the shortest of the three men, stopped to light a “crack joint.” (Trial Tr. 898:14-23.) Abbott went to use the payphone. (Trial Tr. 869:11-15.) Carter turned to look for the bus, and when he turned back, the plaintiff and the other man were “beating the hell” out of Abbott, “[k]icking him, boxing him.” (Trial Tr. 869:13-70:2.) At one point, the plaintiff pulled out a “brass knuckle knife, ” and stabbed Abbott repeatedly. (Trial Tr. 869:18-70:2; Defs.' 56.1 ¶ 113; Pl.'s 56.1 Counterstatement ¶ 113.) Both the plaintiff and the other man kicked Abbott as he lay on the ground. (Trial Tr. 872:9-13.) When they were finished, they looked at Carter, turned around, and ran away. (Trial Tr. 872:9-13, 874:7-75:12.) Carter, shocked, went closer to where Abbott was lying, and “saw him take his last breath.” (Trial Tr. 874:23-24; 875:17-21.)

         On May 14, 1994, Carter viewed a lineup at the 101st Precinct, and identified “either one or two, because they got their hair different.” (Trial Tr. 878:25-80:21.) After the lineup, he was put in another room. (Trial Tr. 881:4-7.) He told either the assistant district attorney or the detective that “it was either one or two because he had his hair different.” (Trial Tr. 881:8-24, 883:18-84:8.) When asked whether he ultimately picked one or two from the lineup, Carter said “Two.” (Trial Tr. 882:25-83:3.) After Carter left the lineup room, he told Detective Gillen that he recognized the person in position number one; he could not be absolutely certain, but was 99 percent sure. (Trial Tr. 884:11-19.)

         Carter made an in-court identification of the plaintiff as the person who stabbed Abbott. (Trial Tr. 869:16-70:20; 871:6-14.) He testified that he got a good look at the faces of Abbott's attackers, and that there was “no doubt” in his mind that the plaintiff was the one that stabbed the victim on the morning of April 9, 1994. (Trial Tr. 872:14-20.)

         v. Veronica Walker

         During the trial, ADA Guy advised the court and counsel that he had learned from Deborah Abbott, the victim's sister, that Veronica Walker had information about the homicide. (Defs.' 56.1 ¶ 117; Defs.' Ex. EE (ECF No. 157-31).) The detectives interviewed Walker on December 1, 1995. (Defs.' 56.1 ¶ 118; Pl.'s 56.1 Counterstatement ¶ 118.) The parties dispute whether Walker gave the detectives the plaintiff's name, or as the plaintiff contends, the detectives said his name and showed her a photograph of the plaintiff. (Defs.' 56.1 ¶ 119; Pl.'s 56.1 Counterstatement ¶ 119.)

         Detective Solomeno prepared a DD5 that summarized his interview with Walker. (Defs.' Ex. EE.) According to that report, Walker drove to the C-Town on Beach Channel Drive on April 9, 1994, and saw James Abbott leaving the store. (Defs.' Ex. EE.) He greeted her, and walked away through the parking lot. (Defs.' Ex. EE.) Walker left the store after ten minutes. (Defs.' Ex. EE.) As she drove out of the parking lot onto Beach Channel Drive, she saw Abbott hang up the payphone on the corner of Beach 48th Street. (Defs.' Ex. EE.) A black man dressed in dark clothing approached Abbott, and they started fighting. (Defs.' Ex. EE.) Walker drove past the two men, and then looked back and saw the plaintiff join the other man in kicking and punching Abbott. (Defs.' Ex. EE.) Walker did not stop, and did not learn until later that a man was killed in that area; even then, she did not connect it with what she had seen. (Defs.' Ex. EE.) She did not tell anyone about these events until she saw Deborah Abbott in July of 1994.[29](Defs.' Ex. EE.)

         Walker was then called as a witness.[30] She testified that on April 9, 1994 at about 9:30 a.m., she went to C-Town. (Trial Tr. 996:11-97:1.) As she walked in, she saw James Abbott, whom she knew from the area, coming out of the store. (Trial Tr. 997:2-98:8.) They spoke briefly, and Walker went into the store. (Trial Tr. 997:2-98:8.) She left about five minutes later, and drove out of the parking lot to the corner. (Trial Tr. 997:2-98:21.) She saw James Abbott fighting with a black man on the right side of the street, near a telephone booth. (Defs.' 56.1 ¶ 126; Pl.'s 56.1 Counterstatement ¶ 126, Trial Tr. 998:25-1000:24.) She turned right onto Beach Channel Drive, and saw a man come from the other side of the street, run behind her car, and join the fight. (Defs.' 56.1 ¶¶ 127-28; Pl.'s 56.1 Counterstatement ¶¶ 127-28.)

         Walker described this man as 5'6", slim, with his hair in braids. (Trial Tr. 1003:4-16.) She claimed that she did not recognize him, had never seen him before, and did not know his name.[31] (Trial Tr. 1002:22-1003:3.)

         Walker recalled speaking with Detectives Gillen and Solomeno the Friday before her testimony, during which she mentioned the name “Kareem.” (Trial Tr. 1003:22-4:4.) When asked if she told Detective Solomeno that the person who joined the fight looked like Kareem, she responded, “I said it could have been him. It could have.” (Trial Tr. 1005:13-5:16.) Walker did not identify the plaintiff at trial. (Pl.'s Add. 56.1 ¶ 284; Trial Tr. 1003:17-21.)

         vi. ADA Stephen Antignani

         Assistant District Attorney Stephen Antignani testified that he was at the May 14, 1994 lineup at the 101st Precinct; one of his responsibilities was to “assist[] in . . . making sure that the lineup[s] [were] fair.” (Defs.' 56.1 ¶ 141; Pl.'s 56.1 Counterstatement ¶ 141; Trial Tr. 948:9- 20.) He made sure that the fillers resembled the plaintiff, and that the plaintiff had the chance to choose his position in the lineup. (Trial Tr. 948:9-20.) Linda Sanchez viewed the lineup around 7:30 p.m., and Andrew Carter viewed it at around 8:00 p.m. (Defs.' 56.1 ¶ 142; Pl.'s 56.1 Counterstatement ¶ 142.) Carter made statements during the lineup, and ADA Antignani spoke with Carter after the lineup.[32] (Defs.' 56.1 ¶ 143; Pl.'s 56.1 Counterstatement ¶ 143.)

         vii. Defense Case

         The plaintiff's stepfather, Eugene Howard, testified that on the morning of the murder, the plaintiff went into the bathroom at around 9:00 a.m., and started watching television around 10:00 a.m. (Trial Tr. 1027:4-29:18.) The plaintiff left the apartment at around 10:15 or 10:20 a.m. (Trial Tr. 1029:9-13.) Howard saw the plaintiff again at around 11:00 a.m., just before Howard learned from his daughter and son-in-law that Abbott had been killed. (Trial Tr. 1027:4-29:18.)

         viii. Summations

         Defense counsel began his summation by reminding the jury that the People had the burden to prove the plaintiff's guilt beyond a reasonable doubt, including disproving his alibi. (Trial Tr. 1075:5-17, 1104:10-23.) He then went through the testimony of the main witnesses, beginning with Linda Sanchez, whose testimony he attacked as “simply not true, ” “not credible, ” “illogical, “fl[ying] in the face of common sense, ” and “rather strange.” (Trial Tr. 1076:18- 1084:5.) He assigned two motives to her: a desire to have “her 15 minutes of fame, ” and to get paid by the District Attorney's Office. (Trial Tr. 1086:8-87:2.)

         He also addressed Andrew Carter's testimony; he conceded that Carter had no motive to lie, but attacked his identifications as unreliable. (Trial Tr. 1087:9-1090:12.) He dismissed the lineup identification as mistaken, and reminded the jurors that Carter had wavered between the plaintiff and the filler in the number two position. (Trial Tr. 1087:9-1090:12.) He also pointed out Carter's testimony that he had selected the filler in the second seat. (Trial Tr. 1087:9- 1090:12.) As for Carter's in-court identification of the plaintiff, counsel posited that Carter identified him because, “Who else is sitting at that counsel table? A white lawyer, a district attorney, white court officers and Mr. Bellamy, a black man, ” and that Carter did not have to be a “rocket scientist to know” whom he was supposed to identify. (Trial Tr. 1099:3-18.) Counsel also dismissed Veronica Walker's testimony as insufficient to establish the plaintiff's guilt. (Trial Tr. 1091:3-93:9.)

         Counsel underscored what he argued were deficiencies in the police investigation, which he characterized as a “rush to judgment.” (Trial Tr. 1099:21-25.) He argued that the detectives should have done a more robust investigation of Rodney Harris and Ishmel Melvin, whom the “Anna Simmons” caller had identified. (Trial Tr. 1100:2-2:11.) He dismissed Detective Gillen's notes about the plaintiff's statements, and pointed out that the detective had added additional notes long after the original report. (Trial Tr. 1097:2-98:2.) Counsel also argued that the lineup was unduly suggestive. (Trial Tr. 1098:18-99:2.)

         Counsel urged the jury to accept the alibi proffered by the plaintiff's stepfather, and went through all the reasons why the jurors should credit it. (Trial Tr. 1103:14-04:23.) And, defense counsel pointed out that the evidence did not establish that the plaintiff had any motive to kill James Abbott. (Trial Tr. 1103:4-13.)

         Assistant District Attorney Guy began his summation by telling the jury that the nature and location of James Abbott's wounds demonstrated that his killer intended to kill him, and thus “clearly this was a case of intentional murder.” (Trial Tr. 1110:20-11:22.) Accordingly, the prosecutor argued, the “one question” for the jurors was whether they were satisfied beyond a reasonable doubt that the plaintiff was the killer. (Trial Tr. 1111:20-12:2.) Next, the prosecutor explained that the judge would instruct the jury that “we all have to be concerned to make sure that the right man is on trial, and the judge, of course, is absolutely right. That's as it should be. That's why we are all here.” (1112:3-9.)

         In the course of reviewing Andrew Carter's testimony, the prosecutor responded to defense counsel's argument that Carter identified the plaintiff in court only because he was the sole black man at the defense table, by arguing that the case was not about race, since the deceased was also black, but about “identification” and “recognition.” (1117:14-20.)

         At another point in his summation, the prosecutor discussed Carter's testimony that at the lineup he selected the person in position number two:

Mr. Carter told you when he testified in this courtroom that when he saw the lineup he picked either one or two. He wasn't sure, and that in the next room he spoke with the detectives, and when I asked him on the stand about that conversation he told you he picked out number two, and I showed him the lineup photos and he is still stuck with number two but you know he didn't pick out number two. Number two isn't sitting over there. Number one is sitting over there.

(1135:8-20.) The prosecutor also pointed out that the plaintiff, unlike the filler in the second seat, had braids. (1135:21-36:4.) The prosecutor argued that Carter made a mistake when he testified that he selected number two.

We all make mistakes, but that doesn't mean that when he said I picked out number two that in fact when he viewed the lineup he picked out number two and you don't have to take my word. Common sense will tell you that. It's the defendant, number one, who is on trial, not some filler in a lineup.

(1137:13-19.) ADA Guy also referenced ADA Antignani's testimony that when Carter first viewed the lineup, he “said that it was either one or two, he couldn't be sure, ” and that after the lineup, Carter said, “I am ninety-nine percent sure it was definitely number one;” the prosecutor then cited Carter's statement that it was the “difference in the hairstyle” that confused him. (1137:20-38:6.) From there, ADA Guy argued that the evidence showed the lineup was fair. (1138:8-22.)

         ADA Guy also reviewed Linda Sanchez's testimony, and argued that she had no motive to lie, that her identification of the plaintiff was reliable, and that her testimony was corroborated ...

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