Alan Newton Awarded $18.592 million For 12 years Wrongful Imprisonment

By John Schutty, attorney for Alan Newton

Alan Newton was wrongfully incarcerated a total of 22 years for a rape he did not commit (DNA testing on contents of a rape kit established his innocence in 2006), but he was allowed to claim damages at trial only for the last 12 years of his incarceration -- the City of New York failed to produce a misplaced rape kit to him for DNA testing between 1994 and 2005. False arrest and malicious prosecution claims were dismissed by the trial judge prior to trial, principally on the ground that the trial judge found that the arresting police officers could reasonably rely on the two eyewitness identifications that allegedly led to Mr. Newton’s arrest and conviction.

The jury, after a 3 and ½ week trial, awarded Mr. Newton a total of $18 million in damages against the City of New York for 12 years of wrongful incarceration; the jury also awarded Mr. Newton $500,000 against a senior police supervisor, Deputy Chief Jack Trabitz, and $92,000 against a Sergeant Supervisor, Patrick McGuire, for separately “intentionally inflicting emotional distress” upon Mr. Newton.

I.     SUMMARY OF KEY FACTS

A.     Introduction

Plaintiff Alan Newton was released from prison on July 6, 2006 after an incarceration of more than twenty-two years—he was imprisoned from June 28, 1984 to July 6, 2006. The People of the State of New York alleged that he assaulted, robbed and raped a 25-year old woman (hereinafter referred to as “VJ”) on June 23, 1984. On May 31, 1985, Alan Newton was convicted, after a jury trial, of Rape, Robbery and Assault, all in the First Degree. He was sentenced to a total sentence of 13 and 1/3 to 40 years.

In 2006, DNA testing on the spermatozoa collected from VJ scientifically demonstrated that Alan Newton was not VJ’s assailant. As a result of the DNA testing in 2006, the Bronx County District Attorney’s Office (“DAO”) agreed, in writing, that Mr. Newton was innocent of the rape, robbery and assault for which he was convicted. A comprehensive “Joint Motion to Vacate Conviction and to Dismiss Indictment” was signed and filed jointly by the Bronx District Attorney’s Office and Mr. Newton’s attorneys.

B.     The Crime and Conviction

At about 4:00 a.m. on June 23, 1984, “VJ”, the 25 year-old victim, stopped at a convenience store on Third Avenue and 180th Street in the Bronx, NY to purchase a beer while on her way to her ex-boyfriend’s house. She claimed that a man entered the store, purchased cigarettes and then left. When VJ left the store minutes later, she claims that the man from the store grabbed her from behind, put a razor to her throat, forced her into a car, and drove away. He took her to nearby Crotona Park where he orally sodomized her, raped her and then left. As VJ went to find a cab, the assailant allegedly returned, grabbed her again and took her to a nearby abandoned building. He took her up to the third floor, where they struggled and he raped her again. Afterward, the assailant told her that he was “going to fix it where you can’t identify me” and he cut VJ’s left eye with the razor, blinding her in that eye. She passed out and he took her money and fled. When VJ regained consciousness, she summoned the police and was taken to Jacobi Hospital, where she was treated and a rape kit was used to collect hairs and bodily fluids from her body (including spermatozoa). At the hospital, VJ gave a general description of the assailant, telling the detective he was “physically large” and that his name was “Willie.”

Alan Newton’s conviction rested exclusively on two identifications – by the store clerk, Aurea Gonzalez, and VJ, the victim. On June 27, 1984, four days after the crime, Ms. Gonzalez selected Mr. Newton’s photograph from a photo array and the following day she identified him in a live line-up. At the Wade hearing for the admissibility of her identification, Mr. Newton was present, however, Ms. Gonzalez failed to identify him. Nevertheless, at trial, she identified Mr. Newton.

While still in the hospital recovering from surgery, VJ viewed close to two hundred photographs on June 24 and 25, 1984, and selected Mr. Newton’s photo. She was unsure when she saw him in a line up on June 28, 1984, and so she asked for each participant to say a sentence. VJ watched as each man repeated the statement (in the same sequence as their line up positions), first while sitting down and then at the viewing window, during which Mr. Newton was asked to speak up. After these two rounds, each participant was then asked to repeat the phrase for a third time through a crack in the door, again in the same sequence. VJ allegedly identified Mr. Newton. Shortly thereafter, Mr. Newton began screaming in a holding cell and VJ, who was still in the precinct, then said “That’s him, that’s the voice,” “…that is the way he yelled at me.” After identifying him at the Wade hearing, about one week before trial, VJ called the prosecutor and reported that she was “not sure” if Mr. Newton was the assailant. This information was communicated by the prosecutor to the court and defense counsel. Nevertheless, VJ identified the defendant at trial.

VJ testified at trial that the assailant ejaculated and she felt the semen running down her leg. The doctor who administered the rape kit on VJ and a State’s serologist both testified they observed sperm on VJ’s vaginal specimens.

Alan Newton, twenty-three years old at the time of the trial, testified in his defense. He maintained his innocence and presented an alibi defense. According to Mr. Newton, after going to the movies in Brooklyn with his fiancé, her daughter, and other relatives, he went back to his fiancé’s home in Queens. They stayed up late watching television; he spent the night, and had breakfast there in the morning. Mr. Newton’s fiancé and her daughter corroborated his alibi, though their testimony was somewhat conflicted.

Mr. Newton was acquitted of all charges stemming from the incident in the park, but was convicted of the charges related to VJ’s attack in the abandoned building. His conviction was affirmed without opinion by the Appellate Division, First Department on May 11, 1989 and leave to appeal to the Court of Appeal was denied on August 7, 1989.

C.     The NYPD’s Inability to Produce the Rape Kit Upon Demand

Appreciating the value of the rape kit’s contents, Mr. Newton made repeated, relentless requests for testing on the rape kit as the science of DNA testing advanced.   The City of New York’s agents, servants and representatives repeatedly advised Mr. Newton, however, that “extensive searches were conducted,” but the rape kit could not be located. [See the attached “Timeline” which was used as a demonstrative exhibit during our closing at the civil rights trial.]

For many years, the City of New York has employed a “paper-based” evidence management system. “The mission of the New York City Police Department’s (NYPD) Property Clerk Division (PCD), is to accept, catalog, store and safeguard, have available for presentation in court, return to legal owner or otherwise legally dispose of all property which comes into the possession of the NYPD.” See NYPD’s Request for Proposals for “Property Evidence Tracking System (PETS)” dated April 27, 2007, p.6. “The PCD possesses approximately 1.6 million invoices per year for property and evidence in hand, and it has over 10 million pieces of property currently in storage. Almost two-thirds of these items are received as evidence from criminal cases….” Id.

At its core, the NYPD’s evidence storage system is incredibly simplistic: store evidence on a shelf and write down its location on a piece of paper so that it can be found later.   The NYPD’s paper-based evidence management system consists of, among other things, paper “Invoices” and logbooks.   As arrest evidence makes its way from the street through the precinct and ultimately into one of NYPD storage facilities, multiple numbering systems attach cataloging information, creating a paper trail of the evidence’s chain-of-custody. Following the chain-of-custody paper trail for the evidence is dependent upon: (a) accurate and complete information handwritten or typed onto the evidence’s primary identification tag—the NYPD “Invoice;” and (b) the preservation of the original Invoices. The NYPD’s evidence registration system is vulnerable to human error because if original Invoices are lost, misfiled, or stored in the wrong location, or if information is not completely and accurately placed on the Invoices, the evidence is subject to becoming the proverbial “needle” in The City’s “haystack” of millions of items of stored evidence.

The NYPD’s PCD uses an original White Invoice and an original Yellow Invoice to register, store, control and track the movement of property that comes into its possession. The original Yellow Invoice (the “working copy) is used to track the chain-of-custody (movement) of the evidence; the original White Invoice is used, for among other things, to record the destruction of the evidence. If even one of these two originals (the original White or the original Yellow) is lost or misplaced, PCD employees might not be able to determine if the evidence in question is still in the possession of the PCD. If both the original White Invoice and the original Yellow Invoice are lost or misplaced, PCD employees will likely be unable to locate the criminal evidence in its possession (if the evidence has been moved from its original storage location).

In the years prior to 2006, The City (NYPD) was, admittedly, destroying original White and original Yellow Invoices (among other things, constructively destroying “older” Invoices by placing them in unmarked storage boxes and unregistered locations to create shelf space).

When Alan Newton requested (and the criminal court ordered the production of) the VJ rape kit in the years after 1988, The City (NYPD) could not locate their original Yellow Invoice (or their original White Invoice) associated with the rape kit. Because the original White Invoice and original Yellow Invoice for the rape kit could not be located, The City (NYPD) was unable to locate the rape kit or confirm that it had been destroyed. Nevertheless, employees of The City repeatedly advised Mr. Newton wrongfully that the rape kit was probably “most likely destroyed.”
At trial, plaintiff will establish the second factor—widespread practice constituting a custom or usage—as the violation of his constitutional rights. Plaintiff will prove, as this Court has already noted, that the City employed a “poor or non-existent evidence management system.” Newton v. City of New York, 681 F.Supp.2d 473, 491 (SDNY 2010). The PCD used a paper-based evidence tracking system. In theory, this system can provide the means to manage the evidence within the PCD’s custody and control, if the paper-based system is maintained scrupulously. However, plaintiff will provide evidence that the PCD made it standard operating procedure to destroy original White Invoices making it impossible to determine the status of a particular piece of evidence. This practice carried through the 1990’s and was not formerly addressed until 2006 when the PCD’s Commanding Officer, Jack Trabitz, issued a memorandum to all PCD personnel ordering the discontinuation of the practice.

Plaintiff will detail his encounters with the PCD: how their practice of destroying Invoices (along with other evidence management deficiencies prevented him from being able to recover and test his exculpatory evidence). From 1994 until 2006, the NYPD repeatedly told him that the evidence connected to his case could not be found; he was repeatedly told that it was “probably destroyed.” To corroborate his experience and his contention that the PCD widely practiced recklessly indifferent property and record management policies, plaintiff will provide evidence of many other criminal cases handled by the Innocence Project, where similar requests for evidence were made by criminal defendants and the evidence and/or the loss of Invoices has never been fully explained by the NYPD. In twenty-one cases investigated by the NYPD and the Innocence Project, the NYPD admitted that over eighty-seven invoices were created but the NYPD could only find four pieces of related evidence. The NYPD did document the destruction of some of the evidence, but the NYPD has admitted that, the bulk of the missing evidence for the twenty-one cases, is “untraceable.”

Plaintiff must further establish that the NYPD’s custom, policy and practice of managing evidence by such a poor or non-existent system was known—either constructively or actually—by those in policy making positions. Monell, 436 U.S. at 694. Plaintiff will provide evidence that The City conducted a review of its evidence management system, and according to its own consultant’s assessment, it was known that the paper-based system was “extremely prone to clerical errors.” Despite considering two separate proposals to replace its paper-based evidence registration system with a computer-based system, The City each time abandoned those proposed projects. Plaintiff will also elicit testimony from Commanding Officer of the Property Clerk Division, Jack Trabitz, confirming that the PCD was destroyed older original Invoices throughout the 1990’s.

In sum, as required by a Section 1983 Monell claim, plaintiff will establish that the City engaged in a practice that was so widespread – the destruction of original Invoices – that resulted in an inability to state, definitively, whether the City still possessed evidence or not. The commanding officers of the PCD and other official policy makers within the City knew about this poor evidence management system, including the practice of destroying critical Invoices. As a result, plaintiff was deprived of his right to access the courts under the First Amendment, and his right to liberty guaranteed by the Due Process Clause of the Fourteenth Amendment.