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To: Prison Patrick Crusade
Sent: Thursday, July 08, 2004 1:27 AM
Subject: ANOTHER INNOCENT? Jailed Man and Jailer Team Up in Effort to Reopen a Sexual Assault Case
July 6, 2004
Jailed Man and Jailer Team Up in Effort to Reopen a
Sexual Assault Case http://www.nytimes.com/2004/07/06/nyregion/06rape.html
The interview was like hundreds of others Timothy Huff had conducted as an investigator for New York State's prison system. In the spring of 1996, he sat down with a convicted sex offender in a dreary room at an upstate penitentiary and scribbled a few notes while the man insisted that he was innocent.
Mr. Huff, after a moment, made one small promise to the inmate, a 35-year-old former security guard named Ronald Bower who had served five years of a possible 54 years in prison for two sex assaults: he would make a single call to the detective who handled the case.
The case detective had retired, but the investigator who answered the phone at the Queens special victims squad said he had done some work on the case. The conversation, the prison investigator recalled, went like this:
Mr. Huff: "This guy says he's innocent."
The detective: "I think he is."
In that startling moment was born a rare collaboration, the joint effort of a convicted sex offender and his supporter in the State Department of Correctional Services. Over eight years, the two men were joined in the enterprise by several others, including an F.B.I. agent, one of the state's former top criminal justice officials, and the detective who took Mr. Huff's call.
The alliance has endured and has led to what the inmate's lawyers say has been an intensive reinvestigation of Ronald Bower's case.
At the heart of the effort has been an unsettling theory - first suggested by the detective Mr. Huff telephoned in 1996 and later put forward in court filings - that an off-duty police officer, a man who was himself arrested several months after the inmate and charged in two similar sex attacks, actually committed the crimes for which the inmate is imprisoned.
Mr. Huff's efforts, detailed in a 10-page sworn affidavit, helped uncover what he and others believe is a web of tantalizing facts that support their theory. Among other things, Mr. Huff obtained a statement from a witness in one of the attacks who conceded, after seeing a photograph of the officer, that she could have been mistaken about her identification of Mr. Bower.
Mr. Huff also helped establish that the officer, who
has since resigned from the department, was off duty at the time of the
two sex attacks that led to Mr. Bower's convictions, as well as seven other
assaults that fit the pattern of what became known at the time as the acts
of the "silver gun rapist." Mr. Huff also found that the two sex attacks
for which the officer was arrested - he was acquitted at separate trials,
contending that the sex was consensual - were nearly identical to some
Michael Perez, the former officer, declined to comment.
Mr. Huff, for his part, acknowledged in a telephone interview that he was surprised to find himself working on behalf of an inmate.
"Our job is to keep these guys locked up and keep society safe from people that would perpetrate such a crime - not go into prison and try help them get out," he said. "I'm not a big believer in rehabilitation. It's a terrible thing to say, but I just don't think it works. But you should have some semblance of justice."
Court Papers Filed
Lawyers for Ronald Bower, who had no prior criminal record, filed court papers earlier this year seeking to overturn his convictions. Citing new evidence, the motion was based in large measure on the work of Mr. Huff, who has since retired, and James Hughes, the F.B.I. agent, as well as others. The effort, which included private detectives, produced dozens of interviews and scores of documents.
Mr. Huff was assigned to work on the case in 1996 after describing his initial findings to his boss.
But while Mr. Huff and others have argued on behalf of Mr. Bower, some prosecutors and police investigators still believe that he is guilty. The question perhaps was best summed up by Stanley E. Carpenter, a retired police lieutenant who oversaw the original investigation when he headed the special victims squad, then known as the sex crimes squad, and who later, after leaving the Police Department and joining the Queens district attorney's office, worked on a review of the case.
Speaking of Mr. Bower's case recently, Mr. Carpenter said simply, "I'm just not sure."
Even if the motions filed by his lawyers do not overturn Mr. Bower's conviction, he could be granted a new trial on procedural grounds. Among the arguments put forward by his lawyers, led by Bruce E. Menken, is that his conviction should be overturned because prosecutors had failed to notify Mr. Bower's trial lawyers about the attacks attributed to Mr. Perez.
That information, Mr. Menken contends, would have given jurors reasonable doubt about Mr. Bower's guilt.
Two judges are reviewing the motions: Justice Joseph A. Grosso of State Supreme Court in Queens and Judge Jeffrey S. Brown of Nassau County Court.
At the same time, lawyers in the Queens and Nassau County district attorney's offices are also re-examining the cases, although a spokesman for Richard A. Brown, the Queens district attorney, said that his office had already reviewed the case, in 1999, and concluded that Mr. Bower was indeed guilty.
"We are always ready to listen to a claim of innocence no matter how long after conviction it is raised, even if it does not ultimately result in the defendant's exoneration," Mr. Brown said in a statement.
Trouble at Home
Mr. Bower's story begins in the spring of 1991, when he already had his share of trouble. After a divorce, he was living in a basement apartment in Queens, fighting to stay off public assistance and periodically fighting with his ex-wife. He even threatened her life once.
Things, though, soon got considerably worse.
Detectives in Queens and Nassau County were investigating a pattern of sex assaults in which a man - in most cases armed with a silver gun - was confronting women, mostly late at night and in the early morning hours, and forcing them to perform oral sex. The attacker had struck nine times since the middle of 1990, mostly near a stretch of Union Turnpike. He would order the women to secluded spots - a driveway, a backyard - where he sexually assaulted them. In two instances, he abducted his victims in their cars.
The victims were young women and teenagers, two as young as 14. Soon, Mr. Bower was charged with the assaults, but his arrest came about in a bizarre manner. His former father-in-law, James Smith, a retired New York police detective, and at least one other person called the police to report that Mr. Bower resembled a police sketch of a suspect, wanted in an unrelated sex attack, which had been published in a local newspaper, according to the court papers.
The police picked up Mr. Bower, but the two young women who had reported that attack could not identify him in a lineup. In fact, they acknowledged later that they had made up the incident because they had cut school, the court papers said. Still, while Mr. Bower was in custody, the police placed him in a lineup for several of the young women who had been victimized as part of the unsolved series of attacks.
Three of those victims picked him out, according to the court papers, and Mr. Bower was soon being prosecuted as the serial attacker.
Prosecutors in Queens offered him a plea deal of two to six years in prison, but he refused to take it.
His first trial in the two Queens crimes, in early 1992, resulted in a deadlocked jury. He was later retried and acquitted in one of the incidents and convicted in the other. The conviction resulted almost exclusively from the testimony of one of the girls, his lawyers said.
Mr. Bower was sentenced to 10 to 30 years in the Queens case in August 1992, and then tried in the Nassau County incident a year later. He was again convicted on the basis of the testimony of a victim, and he was sentenced there in November 1993. He will not be eligible for parole until 2010.
Mr. Bower, who has been in jail or prison since his 1991 arrest, said in one of two telephone interviews from the Sullivan Correctional Facility in Fallsburg, N.Y., "It's a horrible, horrible nightmare."
Mr. Huff, after working nearly two decades in state prisons, first met Mr. Bower at Green Haven Correctional Facility in Stormville, N.Y. He had gone there to investigate a series of angry phone calls that had been made to a judge in the Appellate Division of State Supreme Court in which the caller criticized the judge's ruling on Mr. Bower's appeal.
The Department of Correctional Services had been asked to have a talk with the inmate.
Mr. Bower quickly told Mr. Huff that the caller was his brother. It was then that the inmate began to implore Mr. Huff to look into his case.
"To keep my word, I called down to sex crimes," he said of his call to the specialized police unit in Queens.
Mr. Huff spoke to the detective, Gary Tepperman, who not only offered his opinion that Mr. Bower was innocent, but also said he thought Officer Perez had committed the crimes, an assessment Mr. Tepperman later repeated in an affidavit filed along with the motion seeking to overturn Mr. Bower's conviction.
"My mouth dropped open," Mr. Huff recalled. "I thought, 'We have an innocent guy in jail doing 18 to 54 years.' ''
Mr. Huff eventually contacted an F.B.I. agent in New York City whom Mr. Bower had mentioned. The agent, James Hughes, had come to know Mr. Bower when the security guard served as a witness for the F.B.I. in a large robbery in Queens and found him credible, according to his affidavit.
During the spring and summer of 1996, Mr. Huff made several trips to the New York City area, he said. There, he and Mr. Hughes interviewed police detectives and prosecutors in Queens and Nassau County, Mr. Perez's ex-wife, and others involved in the Bower or Perez cases.
They reviewed documents detailing the pattern of nine sex attacks in 1990 and 1991 that included the three for which Mr. Bower was charged, and compared them with the cases for which Officer Perez was charged in June and August of 1991.
Like Detective Tepperman, Mr. Huff and Mr. Hughes concluded that Officer Perez was likely to have committed most of those attacks, as well as the two for which he had been acquitted, according to their respective affidavits. Most significantly, Mr. Huff said, the similar crimes continued after Mr. Bower's arrest.
"That was the kicker," he said. "The silver gun rapist should have stopped."
The victims in the attacks had consistently described their attacker as a white man with a brown mustache, brown eyes and brown hair, in his 20's or 30's, with medium build, and most put his height at 5-foot-5 to 5-foot-8. In most cases, he wore a T-shirt, jeans and a bomber jacket. It was a description that could easily fit the 5-foot-10 Mr. Bower, although his lawyers contend in the court filings that it more accurately fits the shorter Mr. Perez.
Mr. Huff and Mr. Hughes found that even the detectives investigating Mr. Bower at the time considered the possibility that Mr. Perez might have been involved. They had asked some of the victims to view Mr. Perez in a lineup, according to the court papers. No one picked him out, however.
The two men also interviewed the prosecutor in Officer Perez's case. The prosecutor, according to court papers filed on Mr. Bower's behalf, suggested that a man who had been a key witness against Officer Perez had been paid to help exonerate the officer, an allegation his lawyer denied, calling it "sour grapes" over the acquittal.
But the men could not find the witness, and Mr. Bower's lawyers offer no supporting evidence for the accusation.
Mr. Huff and Mr. Hughes also talked at length to officials at the Police Department, which had reassigned Officer Perez after his trials to work in the property clerk's office. A lieutenant in the Internal Affairs Bureau, Jean O'Gallagher, began focusing on him and prepared an analysis that compared his work schedule with the attacks, finding he was off duty when each one occurred, according to Mr. Huff's affidavit.
Lt. O'Gallagher said the Internal Affairs Bureau had put Officer Perez under surveillance after his trials and found him looking into apartment windows, the affidavit said. The lieutenant told Mr. Huff that she had a lot of "Perez material" that would be helpful to the Bower investigation. Police Department investigators, according to the court papers, ultimately accused Officer Perez of soliciting a prostitute and initiated action aimed at firing him.
He resigned in 1997 rather than face an administrative hearing, Mr. Huff's affidavit said.
Finally, Mr. Huff also obtained the signed statement from the witness to the May 7, 1991, Queens attack that led to Mr. Bower's conviction. After viewing a picture of the police officer, she acknowledged that she could have been mistaken in her identification of Mr. Bower, according to Mr. Huff's affidavit.
For the moment, then, Mr. Huff, who lives in Saratoga
Springs, N.Y., is awaiting the outcome of the judicial review. He has not
spoken to Mr. Bower for some time because, he says, there is just not much
he can say. But the former investigator said recently that he clearly remembered
one of his last conversations with the inmate:
"I said to Bower, 'I don't know how to unarrest anybody.' I said, 'This is not something that's going to happen next week or next year, but I'll take the information I have to your attorney and we'll see where it goes from there.' "