Abandoned Justice: Who’s Looking for the Killers?

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Photo by Stephanie Ezcurra via Flickr

Ninety-two year-old Emma Crapser spent the last night of her life playing Bingo at St. Joseph’s Roman Catholic Church, about a half a mile from her Poughkeepsie, N.Y. apartment. Upon her return home, she was murdered, apparently in the course of an intended robbery.

Six years later, in December 1983, a 24-year-old black man named Dewey Bozella was convicted of her murder and sentenced to 20 years to life in prison. In May  1990, a judge found that prosecutors had improperly excluded black people from Bozella’s jury and ordered a new trial.

Bozella was convicted again. Then, in 2009, another judge vacated that conviction. This time, the district attorney declined to file new charges and Dewey Bozella found himself, after 26 years behind bars, a free man.

The court’s decision to overturn the conviction was based on its determination that the prosecution had failed to disclose exculpatory information to Bozella’s trial lawyer. This included information that undermined the credibility of key witnesses—like statements that contradicted their court testimony and deals in their own criminal cases—and pointed to the likely involvement of others in the crime.

Among the other suspects were two brothers who ended up going to prison on 25- year-to-life sentences for the robbery and brutal beating of two disabled elderly sisters, Madeline and Catherine King, and the murder of a third, Mary, in their family home about a half a mile from where Crapser had lived, eight months after Crapser was killed.

One of these men also had been implicated in the violent assault in the same neighborhood of yet another elderly woman, Estelle Dobler, carried out two months after Crapser’s murder and for which no one was ever prosecuted.

In its response opposing Bozella’s bid to overturn his conviction, the Dutchess County district attorney’s office downplayed the similarities among these three crimes; (but) in his 2009 decision to vacate the conviction, the judge called them “striking.”

As it turned out, one of the brothers convicted in the King case was released on parole months before Bozella was freed.

In 2015, Dutchess County settled a civil suit with Bozella for $7.5 million. To finance the payout, the county was forced to issue bonds.

[The same year,] 38 years after her murder, the Poughkeepsie Journal asked “Who Killed Emma Crapser?”

The newspaper offered no definitive answer, but the question itself points to a broader issue that tends to be underexplored in the context of wrongful convictions: what typically happens with respect to the underlying crime—and, by implication, [what happens to] the cause of justice and of public safety—when the person found legally responsible for committing it is later determined not to be?

How many murder cases might there be like Emma Crapser’s?

I set out to answer this question, using the National Registry of Exonerations, news reports and court filings, first to identify all of the murder convictions vacated nationwide since 2006 that, like Bozella’s, did not hinge on DNA evidence.  I excluded any case in which the vacated conviction involved a finding that a murder had not been committed (as has happened, for example, in several arson cases charged as murders but later determined to be accidents).

I looked exclusively for murder cases because murder typically has no statute of limitations, and therefore can be prosecuted at any time, even decades after the crime occurred, if new evidence or a new suspect is identified. Finally, I limited my search to the past 11 years on the assumption that it might be easier to get information about relatively recent vacated convictions than those overturned several decades ago.

My research turned up a total of 263 vacated murder convictions that fit this criteria (according to the National Registry, there have been a total of 2,034 known exonerations in the United States since 1989.).

This number does not represent 263 murders, but wrongfully convicted defendants.  In some cases, multiple people were wrongfully convicted for the same murder, while in others one person was wrongfully convicted for murdering more than one person.

Of the 263 people whose convictions were vacated, 161 were black; 65 white, 33 Hispanic and four Native American.

A vacatur is not equivalent to a determination of actual innocence; convictions must be overturned not only when there is a finding of factual innocence, but also when a defendant’s constitutional rights have been violated, regardless of guilt or innocence. In fact, very few wrongfully convicted people are ever able definitively to “prove” their innocence, though in the course of the appeals process many end up presenting evidence that calls their guilt into question.

Here’s what I discovered:

Forty-eight of those who were wrongfully convicted were re-tried after their convictions were vacated, and all were acquitted. Following these acquittals it appears that no new suspects were charged, except in one case where an additional suspect had been arrested outside the county a year before the vacatur, was extradited to the US, and pleaded guilty to the crime a month after the wrongfully convicted defendant was acquitted four years later.

Of the remaining 215 wrongful convictions, prosecutors charged a new suspect in murders related to just 16, or 7%, of them.

Notably, in 11 of these 16 cases it appears in fact that it was the existence of an alternative suspect—typically identified by defense investigators and further investigated by prosecutors—that led to the vacatur and dismissal of charges.

In an additional case, a new suspect pleaded guilty to the crime a year after the exoneration.

As to why no new charges were filed in the murder cases connected to 93% of these wrongful convictions, the answer often depends on who is offering the explanation. Prosecutors, cops and defense attorneys often tend to see things very differently.

That said, I was able to ascertain that the true perpetrators—determined either by credible confessions and/or objective evidence—of murders connected to an additional 24 of these wrongful convictions are either dead or in prison, serving a long sentence for a different crime, sometimes in another state.

While neither outcome represents justice for the victims in the wrongful conviction cases, those murderers are nonetheless “off the streets.”

I also discovered that with respect to murders for which an additional eight people were wrongfully convicted, the true perpetrators appear to be beyond the reach of law enforcement because of immunity or plea deals given to them by prosecutors (these cases tended to involve violence perpetrated by gangs).

In addition, I identified seven cases (and four of the cases in which a defendant was retried and acquitted), in which the person who was wrongfully convicted was convicted along with at least one or more others who, it seems fairly clear, were actually responsible.

While there is reason to believe that in some of these cases not everyone involved was apprehended, someone has been held accountable for these killings.

Then there are the 10 cases in which the underlying crimes were committed so long ago, and the original prosecutions so flawed, that law enforcement seems reasonably to have abandoned any hope of being able to conduct a productive reinvestigation.

This is in contrast to an additional 24 cases I was told by prosecutors were either the subject of an “ongoing investigation” or “open,” though what that means (does open mean active? Are the ongoing investigations targeting new suspects or the original defendant?) remains unclear, as all refused to elaborate. About an additional 48 cases, prosecutors elected to say nothing.

I did learn that 17 people whose convictions were vacated are viewed as actually innocent by the district attorney currently leading the office that originally prosecuted the case (in some instances, a predecessor did not share that view), but it appears that law enforcement lacks any meaningful leads regarding the true culprit. In these cases, both time passed and limited resources appear to be major obstacles to developing such leads.

That leaves 61 cases about which prosecutors or their spokespeople offered statements attributing the lack of new charges in a case to the “erosion” or “insufficiency” of evidence to re-prosecute the original defendant, thus implying that there is no other possible suspect.

In some of these cases, prosecutors stated outright that they believe the wrongfully convicted person to be guilty. I discovered, however, that in just over a third of these cases—like in numerous other cases that prosecutors declined to comment on—there seems to be credible evidence pointing to a different suspect altogether.

Freeing Marty Tankleff

Take the case of Marty Tankleff, who was convicted in 1990 of murdering his parents in their Long Island, N.Y. home and spent 17 years behind bars before his conviction was vacated by an appellate court.

According to Lonnie Soury, a media expert who worked closely with Tankleff’s appellate team, including private investigator Jay Salpeter, “in the effort to free [Marty], we conducted a major reinvestigation of the case that produced significant new evidence that three men committed the murder at the behest of Mr. Tankleff’s father’s business partner.”

Soury says that “the new evidence was turned over to [Suffolk County District Attorney] Thomas Spota,” who “did nothing with [it] other than continue to oppose Tankleff’s bid to overturn his conviction.”

After the Court vacated the conviction, Spota requested that it formally dismiss the charges against Tankleff,  saying that his office could not “reasonably assert that a new prosecution would be successful.” He also said he would ask then-Governor Eliot Spitzer to appoint a special prosecutor to reinvestigate the case.

Asked by e-mail whether Spota’s office had ever looked into these other suspects, a spokesman failed to answer the question, noting instead that then AG-Andrew Cuomo “conducted an investigation” after the DA “requested the Governor appoint a special prosecutor to resolve any residual doubts with respect to the potential prosecution of other individuals the defense claims participated in these murders.”

For reference, the spokesman attached to the e-mail an excerpt from the judge’s decision to dismiss the indictment following Cuomo’s review. That excerpt, however, did not mention that Cuomo—who Soury says [was] given the information developed by Tankleff’s appellate team—had investigated any other suspects and stated only that the “Attorney General’s office… determined that there should not be a reprosecution of defendant.”

For his part, Soury cannot say for certain why the DA failed to take action with regard to these other suspects, three of whom, he says, continue to live “freely and with impunity” in Suffolk County, but adds that “some evidence exists that the leader of the group was a confidential informant to the DA’s office” and that others may have had political connections that protected them from prosecution.

Indeed, in late 2015 federal investigators began looking into allegations of corruption involving the Suffolk County Police Department and Spota’s office. This came on the heels of a 2013 federal probe that led the Suffolk County police chief to plead guilty to federal civil rights and obstruction of justice charges.

But even absent the spectre of outright corruption, experts argue, there is generally little incentive for a prosecutor to reopen a case after a conviction has been overturned.

“To charge a different suspect in the crime is as clear an admission of initial wrongdoing as it’s possible to make,” says veteran defense and civil rights attorney Ron Kuby, who has represented numerous wrongfully convicted people.

“And prosecutors will [admit wrongdoing] only when they are absolutely forced to do so, by a court. And even then, they may acknowledge that there was misconduct, or that the evidence was insufficient or tainted, but rarely do they say, ‘we had the wrong guy and let the actual killer free X number of years.’ It makes them look really bad.”

Getting a prosecutor to go beyond an admission that mistakes may have been made to even consider a defendant’s actual innocence, let alone investigate other suspects, also can be an uphill battle, says Kuby, because prosecutors—like their counterparts on the defense side—tend to become deeply invested in their narrative of the crime.

And, he believes, many also become invested in a view of themselves as being “unfairly tarnished” by “shady defense attorneys” and “soft courts,” which makes it easier to justify inaction.

“It is easier to insist that you’re right and the defense lawyers and the judges were wrong because you don’t have to do any work… [and] can indulge in both self-pity and laziness. It’s a lot easier than going out and finding the actual killer.”

But even in instances where a prosecutor may be inclined to revisit a case, without unimpeachable evidence implicating the new suspect, mounting a successful new prosecution presents challenges.

According to Benjamin Schneider, a former Assistant District Attorney in Brooklyn, a vacated conviction “may doom a subsequent prosecution for the same offense, because the second defendant will offer the prosecution’s old, discredited evidence—and the fact of someone else’s conviction—to raise doubt about his own guilt.”

The prosecutor “will want to counter that,” Schneider says, by “arguing that reasonable doubt has not been raised by the old evidence, because the old evidence was tainted and the first defendant was set free after years in prison. But the jury will learn that this prosecutor’s office put an innocent person in prison, for this very crime, by using tainted evidence”—not exactly a ringing endorsement of the prosecutor’s credibility on the case.

All of this goes a long way toward explaining why, even when there is much to indicate the original defendant’s innocence and someone else’s guilt, new charges are brought so infrequently in the wake of a vacated conviction.

Where that leaves the loved ones of the victim, not to mention the public at large—which has an obvious stake in seeing the right people held accountable for violent crimes—is another question.

In the case of Emma Crapser’s murder, because the crime itself happened so long ago and Crapser was an elderly, childless woman, it has proved difficult to find anyone who might be an advocate for her today.

Indeed, the nephew who discovered the King sisters after their brutal assault by the same people who may well have been involved in Crapser’s murder months before, died in 1995, at the age of 74.

Of course, there is no guarantee Crapser’s relatives even would believe that Bozella was innocent or, if so, push to get the case reopened.

As Kuby notes, often “these families have at least grown accustomed to thinking the guilty person has been punished,” particularly when the DA’s office “continues to insist that they got the right person.”

It is not unusual, he says, for “the victim’s family and the DA’s office to engage in this synergy of denial that satisfies both their interests.”

But what about the interests of the communities where these crimes occurred?

By definition, those interests are supposed to be represented by the district attorney, the very same entity that, for whatever reasons, botched the case the first time around, quite possibly leaving the community more, rather than less, vulnerable to violence.

In such cases it is typically the DA’s more narrow interests—whether in avoiding revelations of incompetence or wrongdoing; prosecuting only cases they think they can win, or merely curbing the expansion of an already heavy workload—that win out.

And in the absence of a truly neutral body tasked with re-investigating these crimes, we may never learn who killed Emma Crapser, let alone be able to hold the right person accountable for her death—-or those of the many other murder victims whose cases, regardless of their legal status, remain in a kind of limbo in the real world, beyond the courthouse doors.

This is a condensed and slightly edited version of a story  published July 2 in the Daily Beast. Please click here for the complete version.  The reporting was supported by a grant from the Fund for Investigative Journalism. Additional support was provided by Hin Hon (Jamie) Wong through the Schuster Institute for Investigative Journalism, as well as a John Jay/Quattrone Fellowship in Criminal Justice Reporting. Readers’ comments are welcome.

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