Indictment No. 7806/91CHARGES:
September-October 1993
Murder in the second degreeI. The Crime and Trial Proceedings
Manslaughter in the first degree
Criminal Possession in the first degree
The Supreme Court of the State of New York
County of Bronx
851 Grand Concourse
Bronx, NY
Honorable Gerald Sheindlin, Judge
Brian J. Sullivan, Esq.
Assistant District Attorney,Bronx County
Paul Markstein, Esq.
Defense Counsel
1. The Crime: October 9, 1991, 11:30 PM
At approximately 11:30 PM on Wednesday evening October 9, 1991, Mark Johnson, 27, was shot three times. The three bullets entered Mr. Johnson’s body in the right thigh, the right shoulder, and the fatal shot was one to the head. The shooting took place at the side of 1961 Schiefflein Avenue in the Bronx. The victim was transported to Our Lady of Mercy Hospital where a Dr. Jervius pronounced him dead.
At the time of the shooting, Mark Johnson was standing on the street next to his car, a black 1982 BMW. He was talking with a girlfriend, Diana Almonte, who stated that she was “about three car lengths apart” at the time of the shooting. Almonte lived at 1981 Schiefflin Avenue. Almonte gave a statement to Patrol Officer Kevin Duffy from the 47th Precinct of the NYPD. PO Duffy was the first NYPD officer on the scene. (The first police officer on the scene was PO John Crecco of the NYC Housing Police).
2. The Witnesses
WITNESSES FOR THE PROSECUTION: Christine Holloway, Monique James, Robin James, PO John Crecco, NYC Housing Police, PO Kevin Duffy, NYPD, Detective Frank Morelli, Bronx DA Squad, Dr. Jonathan Pearl, Medical Examiner, Detective Sevelie Jones, NYPD
WITNESSES FOR THE DEFENSE: Jesus Jiminez, Marguerite Martin.
3. Synopsis of Civilian Witness Testimony
The most significant testimony was that of the civilian witnesses. During jury deliberations the jury requested a transcript of the testimony of Christine Holloway and Marguerite Martin.
CHRISTINE HOLLOWAY: At the time of the crime, Christine Holloway was 29 years old, and working as a Corrections Officer. She lived at 1173 E. 229 Street in the Bronx. On the evening of the crime she had visited her brother who was a patient at Our Lady of Mercy Hospital, and was returning to her home. She and her husband were separated at the time, and the husband was supposed to bring their two children back to Mrs. Holloway. As she approached her building’s parking lot, Mrs. Holloway noticed a BMW in the street with a man standing beside the car, which she described as “African-American, tall, well-built.” While parking her car in the parking lot behind her building, Holloway testified that she saw a man dressed in a dark hooded jacket walk in front of her vehicle, in the headlights, and out to the street, where he started shooting another man who was standing beside his black BMW. After the shooting, Holloway testified that the same man who had done the shooting ran back towards her car and past her car, disappearing behind a building. On November 20, 1991, Christine Holloway picked Shane Watson out of a lineup, identifying him as the person she saw in front of her car and the person who did the shooting on October 9.
MONIQUE JAMES: At the time of the crime, Monique James was 20 years old. She and her sister Robin lived at 1961 Schiefflin Avenue. Robin James testified that at the time of the crime she was in the bathroom and heard gunshots. She then went to the window and saw someone in “all black (clothing) running.” She then went to the bedroom window and looked out on the street where she saw a body lying.
ROBIN JAMES: Sister of Monique James, 14 years old at the time of the shooting. Robin James testified that she was doing homework in her bedroom and ran to the window after hearing shots. She saw a man running away from her, dressed in “black pants and a black hoody”.
JESUS JIMINEZ: Lived at 1985 Schiefflin Avenue at the time of the shooting. Mr. Jiminez had just started to eat dinner. He ran to the living room window and saw a man lying in the street, and another man facing the building. This man was dressed in “ black and white sneakers, black pants, a black hood, a black hoody with a hood on and then he had a hat on top and he had lots of flags on the hat.” Mr. Jiminez described this man as carrying a gun in his right hand, and “six feet tall, about 160 pounds. He was very slim. He appeared very slim.”
MARGUERITE MARTIN: Resided at 1045 E. 230 Street at the time of the crime. Mrs. Martin knew Christine Holloway. Mrs. Martin testified that Christine Holloway had spoken to her about the crime, saying “ a man ran past her car with a hood on his head. She (Christine Holloway) could not see his face.” She also testified that Christine Holloway had confided in her that “ the police were harassing her (Holloway) to be a witness.” Another statement Holloway made to Mrs. Martin was that “ it was impossible for her (Holloway) to see the face because of the hood.”
4. The Verdict : October 13, 1993
In a unanimous vote, the jury of twelve returned a guilty verdict at 4:47 PM.
5. The Sentence: November 23, 1993
Having been found guilty of Murder in the Second Degree, Shane Watson was sentenced to a term of life, with a minimum of 25 years to be served in state prison.
Shane Watson began serving his sentence at Downstate Prison for a brief period of time. He was then transferred to Attica in January of 1994 where he remained until March of 1995. From that time on until the present time Shane Watson has been incarcerated at Green Haven Correctional Facility in Stormville, NY.
II. Basis for Reasonable Doubt: Reflections on a Flawed Prosecution
Before the jury began deliberations, Judge Sheindlin informed the members of the jury of their obligations as jurors. As part of this proceeding, Judge Sheindlin instructed the jury as follows: “It is your sworn duty to decide if this defendant is guilty or not guilty solely and exclusively—listen to the words—solely and exclusively upon the evidence presented in this courtroom during this trial and upon nothing else”.
Later in instructing the jury, Judge Sheindlin reminded jurors of the presumption of innocence: “You will take the presumption (of innocence) with you into the juryroom. It continues right through the trial and the only way it can be removed from the defendant, the only way the presumption is destroyed is if all of you agree unanimously that the evidence is sufficient to persuade you beyond a reasonable doubt that the defendant did what the indictment says he did, that he is indeed guilty. Then the presumption no longer exists and only then can you bring in a verdict of guilty, remembering that the definition of the word guilty is proven beyond a reasonable doubt. This burden of proof remains upon the prosecution. It never shifts to the defendant. No defendant is required to prove that he is innocent, and each element of every crime submitted to you must be proven beyond a reasonable doubt."
Given this legal basis for a valid verdict of guilty, it is clear, after examining the trial transcripts and various witness statements given to the police that there was not nearly enough evidence to convict Shane Watson of this crime. Mr. Watson’s conviction was based upon the testimony of three very questionable witnesses; Christine Holloway, Robin James and Monique James. Two of these three witnesses, Robin and Monique James were forced to by the Prosecutor to testify, by virtue of a warrant which required that they appear in court to offer testimony, although neither of the James’ sisters wanted to testify. The key flaw in the prosecution of this case rests with the testimony of Christine Holloway. Aside from her testimony conflicting with initial statements she gave to the police following the shooting, Christine Holloway was herself the subject of a homicide case. Her estranged husband had been shot to death in Mrs. Holloway’s apartment. Apparently at the time of the shooting of Mark Johnson, Mrs. Holloway was under investigation, as was her boyfriend, also a Corrections Officer.
Paul Markstein, Shane’s attorney, brought this issue to the attention of Judge Sheindlin outside of the presence of the jury, during a recess at the time of Markstein’s cross-examination of Christine Holloway. Unfortunately, Mr. Markstein did not have documentation of the charges involving Mrs. Holloway at the time of the discussion with Judge Sheindlin. Accordingly, the judge denied Mr. Markstein’s request to pursue this issue in his cross-examination of Christine Holloway. In Judge Sheindlin’s words, the issue was “ collateral and it would tend to be confusing to the jury.”
Obviously, Mrs. Holloway’s alleged involvement in the murder of her husband has bearing on her credibility as a witness in Shane Watson’s case. Why? Because of her status as an officer of the law. Christine Holloway was a Corrections Officer at the time of the crime Shane was charged with. Her level of cooperation with the DA’s office regarding Shane’s case would certainly have an impact on the way her own case was being handled. As testified by Marguerite Martin, Christine Holloway had confided that the police were pressuring her to cooperate in the identification of Shane Watson as the shooter, this in spite of her own admission that she could not see the shooter’s face because of the black hooded sweatshirt he was wearing, the fact that he was running, and also because of the darkness of the night itself.
In his summation to the jury, Paul Markstein accurately described the case against Shane Watson as an “identity case”. At trial, there was no physical evidence presented by the prosecution that undoubtedly pointed to Shane Watson as the shooter. There was no gun produced. The police had never searched Shane’s apartment for a gun, or any physical evidence whatsoever such as bloody clothing, gunpowder residue on Shane’s clothing, etc. The only description which PO Duffy and Detective Jones got was that of a male in dark clothing. Diana Almonte, the person closest in proximity to Mark Johnson during the shooting gave a statement to Detective Jones in which she described the shooter as “an unidentified male”.
Christine Holloway’s testimony is by far the most questionable. In a hearing prior to the trial itself, Detective Jones testified that Christine Holloway initially reported observing a shooting. Contrary to Holloway’s trial testimony however, her initial statement was that she observed the shooting after exiting her auto and entering her apartment building. At trial, Christine Holloway testified that she observed the shooting while still inside her vehicle during her attempt to park it. (She stated that she was “not good at parking”). Also troubling is Holloway’s testimony regarding the shooter’s clothing. According to her testimony, she saw a person with a dark hood pulled over his head, so tightly that she cannot see his ears and in such a way that she is unable to describe anything distinctive about the person’s features. Yet several days later she picked Shane Watson out of a profile (side-view) photo array. Mrs. Holloway also testified that she saw a mugbook (photo collection of possible suspects) at the precinct. Detective Jones’ testimony completely contradicts this, because he testified that he never showed any of the witnesses a mugbook. Mrs. Holloway also claimed that she did not see Diana Almonte in the street near Mark Johnson, although Miss Almonte was only several feet away from Mr. Johnson at the time of the shooting.
Robin and Monique James both viewed a photo array when questioned at their apartment by detectives. It is critical to remember that the first description that Monique James gave to police was that she could not identify the perpetrator, since he was running away from her viewpoint, and she could not see his face. In spite of this, she eventually picks out Shane Watson’s photograph from a photo array. Monique was shown the array four days later than when Robin was shown the array. In both photo arrays, Shane Watson’s photo was in the identical position; his photo was #1 out of six. This obviously would influence the credibility of the identification. Both sisters lived in the same apartment, and would have spoken to each other about the photos they were shown. Having Shane’s photo in the same position in both photo arrays would certainly increase the chances of both sisters picking out his photo from the others. At trial, neither one of the James’ sisters were asked to identify the person they thought had committed the crime by pointing to the defendant.
The lineup procedure was also problematic. Roughly thirty minutes after Monique James failed to pick out Shane’s photograph in a photo array, she was shown a lineup, which of course included Shane Watson. Monique was unable to identify Shane Watson from a frontal view, or a right profile view. After flunking the first two viewings, she did finally choose Shane from a right profile view. Again, Monique James initially told the police that she could not see the perpetrators face at the time of the shooting, since he was running away from her and had on a hooded sweatshirt. Yet she was brought in to view a lineup.
Robin James’ testimony was also very problematic. In her initial statements to the police, Robin, then fourteen years old, identified the victim as having worn a blue jacket. The jacket recovered from Mark Johnson’s body was a hooded pullover, striped with gold and white stripes, tan in color. During Robin James’ viewing of the photo array, she testified that one of the detectives asked her repeatedly if the person she saw outside her window “ look(ed) like number one?” Like her sister, Robin initially stated that she did not see the perpetrator’s face at the time of the shooting. A tree outside of her bedroom window further obstructed her view. Yet she was shown a photo array and a lineup. The photo array she was shown had Shane Watson in the identical position as the photo array shown to Monique four days later. The positions of the other individuals in the two photo arrays were shuffled.
Why were the James’ sisters urged to view photo arrays and lineups, when they both stated that they had not seen the face of the perpetrator?
An equally important question surrounds Jesus Jiminez’ testimony. At trial, Jiminez testified that the person he saw with a gun was very slim, and wearing a hooded sweatshirt with a hat containing flags of some sort. Yet, Jiminez was never shown a photo array nor invited to view a lineup. Jiminez also testified that the perpetrator ran straight. Shane Watson is “pigeon-toed” and walks with a slight limp as a result of a motorcycle accident. Shane has a steel rod in his right leg. Why was Jiminez passed over by police in terms of viewing a lineup?
Another witness who did not testify at trial was Mr. William Nin. Mr. Nin lived in the building at 1961 Scheifflin Avenue. He stated to Detective Jones that he heard shots fired, and then looked out of his window. He saw a black male carrying what appeared to be a shotgun near the victim who was lying in the street. Mr. Nin described the shooter as wearing a burgundy or red hooded sweatshirt with the hood over his head, and otherwise dressed in dark clothing.
Marguerite Martin’s testimony casts further suspicion on Christine Holloway. According to Marguerite Martin, Christine Holloway confided that she had never really gotten a good look at the person doing the shooting because it was too dark, his hood was too tightly worn around his head, and the entire incident happened too quickly. Martin also testified that Christine Holloway told her she was being pressured by the police to testify. It should be noted that at trial, Christine Holloway’s demeanor during cross-examination was hostile and defensive. Her responses to Mr. Markstein’s questions were guarded and she often was resistant to elaborate on her answers.
III. Further Basis for Reasonable Doubt
Mark Johnson, the victim of the shooting on October 9, 1991, had a criminal history. He had been paroled recently for a homicide conviction from a case in 1983. Following Mark Johnson’s death, the police declined to investigate any individuals connected to the family of the victim of the 1983 homicide. Why not?
During my first visit with Shane at Green Haven on May 21, 2004, I asked him why he thought the police had targeted him for the crime. Shane explained to me that a year or so before the shooting he had a “run-in” with police in his neighborhood. According to Shane, he and a friend were approached by a man who turned out to be an undercover narcotics officer. The man repeatedly asked Shane if he (Shane) “ had anything to sell him”. Shane replied that he did not. After several similar exchanges, Shane became agitated and started to walk away. Before he could walk a full block, Shane was surrounded by police cars. The undercover officer pointed to Shane saying, “there’s the wiseguy” or something to that effect. Shane was arrested, and told me that at the precinct he was struck in the face several times by the same undercover officer. A photo was taken, with the right side of Shane’s face swollen and puffy. (This same photo was part of the photo array shown to Christine Holloway). Beginning with this incident, Shane believes that the police viewed him as a “troublemaker”. This could possibly account for the police wanting to look at Shane for the shooting of Mark Johnson.
Shane Watson was arrested on October 15, 1991. No weapon was recovered, and the NYPD did not issue a search warrant for Shane’s apartment. He arrest resulted from a call to the Crimestopper’s hotline. For two years, Shane appeared at every hearing. He maintained his innocence throughout the process, as he does to this day. On April 24, 1992, Shane voluntarily took a polygraph test. During the pre-test interview, Shane stated that he knew the victim. The results of the test indicated no deception, and the administrator of the test, Mr. Nat Laurendi, concluded that Shane’s answers were truthful.
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