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Mayer Herskovic

Other New York Assault Exonerations
https://www.law.umich.edu/special/exoneration/PublishingImages/herskovic,%20mayer.jpg
Taj Patterson was walking home through Brooklyn, New York at about 4 a.m. on December 1, 2013, when he was chased and then attacked by a group of young men.

Many of the men were members of the Williamsburg Shomrim, a neighborhood watch group for the area’s Hasidic community. They would tell police that they had believed Patterson was vandalizing cars, but that suspicion turned out to be false.

As Patterson fought back, one of the attackers gouged him in the eye and then kicked him in the head. During the attack, he told police, that man also pulled off his sneaker and threw it on a nearby roof.

The attack left Patterson, then 22, blind in his right eye. He was intoxicated at the time of his attack, and he would tell investigators that he could not identify his assailants because they were all young Hasidic men, wearing the same basic clothes with similar coloring and facial hair. He said there was an initial group of three men who chased him, and one of these had been the man who blinded him and took off his shoe. Video cameras seemed to identify some of these possible assailants, but police initially closed the case without making an arrest.

Patterson’s mother complained to the media about the police department’s indifference. She said public officials were too deferential to the Hasidic community because of its political clout. The case was reopened, and on April 23, 2014, Mayer Herskovic, a 21-year-old HVAC technician, was one of five men arrested after other members of the Hasidic community named him as one of Patterson’s assailants. He was charged with gang assault in the first and second degree, unlawful imprisonment in the first and second degree, third-degree assault, and third-degree menacing. Charges were eventually dropped against two of the men. The other two pled to minor offenses and were given probation.

Herskovic was not a member of the Shomrim. The video footage excluded him from the initial chase, and there were no witnesses who said he was there. Patterson could not pick Herskovic out of a lineup.

When the bench trial began in September 2016, the state’s evidence hinged on DNA testing done on the sneaker recovered from the rooftop. It appeared to show a high probability that Herskovic’s DNA was on the part of the sneaker that Patterson’s assailant had grabbed. Patterson testified, and now said he was not sure that his principal assailant was in the group that initially chased him.

On September 23, 2016, Judge Danny K. Chun of the Supreme Court of Kings County convicted Herskovic of second-degree gang assault, first-degree unlawful imprisonment, and third-degree menacing. He was acquitted of first-degree gang assault. The other two charges had been dropped prior to trial. Herskovic was sentenced on March 16, 2017 to four years in prison, pending his appeal.

Herskovic’s attorney on appeal, Donna Aldea, asserted that the DNA testing was flawed. Moreover, the state had waited until the eve of the trial to provide the underlying notes and methodology, depriving Herskovic of effective counsel because of limited opportunity to adequately analyze the results.

The sample taken from the shoe was under 100 picograms, the standard lower limit for matches. However, the Office of the Chief Medical Examiner in New York had developed software that allowed it to amplify these small samples to run comparison tests that match genetic markers called alleles. The office’s analysts said the probability of the shoe sample having Patterson’s and Herskovic’s DNA was 133 times greater than it being Patterson’s and an unknown person’s.

Aldea argued that probability was misleading because it had combined two different testing methods. The first was a so-called composite test that dropped out potentially fluke alleles, ones that that weren’t consistently present. With that test, Herskovic’s genetic profile wasn’t a strong match. Some of his 15 pairs of tested alleles were present; others weren’t. So the analyst restored the fluke alleles, which he testified was permissible under OCME protocol. While the match was better, it also indicated the DNA of a third person.

In addition, Aldea argued that the gene pool in the Williamsburg Hasidic community was faily homogenous, and it was therefore possible that the partial matches detected by the DNA analysis could fit more than one person.

The OCME had discontinued using sample amplification shortly after Herskovic’s trial.

On October 10, 2018, the Appellate Division for the Second Judicial Department of the Supreme Court of the State of New York, vacated Herskovic’s conviction and dismissed the charges.

“Under the circumstances of this case, including the complainant's inability to positively identify any of his attackers, the varying accounts regarding the incident, and the DNA evidence, which was less than convincing, we find that the evidence, when properly weighed, did not establish the defendant's guilt beyond a reasonable doubt.”

– Ken Otterbourg

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Posting Date: 11/26/2018
State:New York
County:Kings
Most Serious Crime:Assault
Additional Convictions:Kidnapping, Other Violent Felony
Reported Crime Date:2013
Convicted:2016
Exonerated:2018
Sentence:4 years
Race:White
Sex:Male
Age at the date of crime:20
Contributing Factors:False or Misleading Forensic Evidence, Perjury or False Accusation
Did DNA evidence contribute to the exoneration?:No