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Floyd Batten

Other New York Exonerations With Inadequate Legal Defense
At about 11:30 a.m., on November 4, 1983, Igor Khutorsky, owner of a furniture store on Flatbush Avenue in Brooklyn, New York, was fatally shot by one of two men who pretended to be customers and then robbed the store.

Robert Evans, a store employee, said he and Khutorsky were alone in the store when a clean shaven African American man pulled out a .25-caliber semi-automatic pistol and a second man pulled out a revolver. Both demanded money. Khutorsky attempted to strike one of the men with a machete, but the man fired two shots, striking Khutorsky in the chest and head. Evans said he escaped by jumping out of a store window. When Evans returned, Khutorsky was dead. Police said the first call to 911 came in at noon.

Later that day, police asked Evans to view police mugshot books in the robbery unit. He selected the photograph of 20-year-old Floyd Batten. Three days later, Batten was arrested and Evans was brought to the police station where he happened to see Batten. Evans was shown a photographic array that included a photograph that had just been taken of Batten. The witness selected Batten’s photo as the gunman even though Batten was not clean shaven and in fact had long sideburns, a mustache and a goatee.  The second robber was never identified.

Batten went to trial in Kings County Supreme Court in September 1984. The employee testified and identified Batten as the gunman.

Batten testified in his own defense. He said he spent the morning with acquaintances, mostly doing errands with a man named “Rocky,” whom he had recently met. Batten said he was in the car with Rocky and two other acquaintances from 9:15 a.m. to 11:55 a.m. Then he visited his godfather at the elementary school where his godfather was a teacher to borrow $20 to get a haircut.

Batten’s godfather testified that Batten was with him from 12:12 p.m. to 12:35 p.m. Another witness who was in the car said he was with Batten from about 10 a.m. until 11:53 or 11:54 a.m. The testimony of the two witnesses provided an alibi for Batten for all but about 18 minutes—the time between 11:54 a.m. and 12:12 p.m.

After the alibi witnesses testified, but before the case went to the jury, the prosecution disclosed that a woman named Fortunio Clark told detectives and a prosecutor that she was in the furniture store with her aunt prior to the shooting. She and her aunt left when a “Spanish man with an Afro” came in who “looked suspicious.” Clark said that about two or three minutes after they left, they heard gunshots and saw the police arrive.

Prior to the trial, the prosecution disclosed to the defense that Clark had viewed a photographic lineup and had not recognize him as the gunman, but not that she had described the gunman as Spanish with an Afro, in contrast to Batten who was black and had short hair.

Clark had been subpoenaed by the defense to testify about her failure to identify Batten, but refused to appear—saying she had nightmares about the case. The prosecution had served a subpoena on her as well, but she ignored that too.

The trial judge noted that the disclosure of the description contradicted Evans’ assertion that the store was empty when the two robbers came in. But Batten’s attorney declined to have Clark produced through the material witness provision on the ground that Clark would likely be hostile to Batten if forced to testify.

In rebuttal, prosecution called a police officer who testified that the elementary school and the furniture store were 3.2 miles and apartment and that the distance could be covered in noontime traffic in 13 minutes—suggesting that Batten could have committed the crime during the 18-minute gap in his alibi testimony.

On September 6, 1984, the jury convicted Batten of second-degree murder, robbery and possession of a weapon. He was sentenced to 20 years to life in prison.

After Batten’s convictions were upheld on appeal, he filed a series of requests for information under the Freedom of Information law and obtained police reports that had never been disclosed to his defense attorney.

One report said that after Batten was arrested an informant told police that one of Khutorsky’s employees asked the informant’s girlfriend if she knew someone who would rob the store for him on November 3 or November 4.

Months later, police questioned the store employee, Douglas Barnes, who denied involvement. The police report said that Barnes was “believed to be the individual implicated in this incident by an informant.” Barnes, who had illegally entered the U.S. from Jamaica, was turned over to immigration authorities, which meant he would be unavailable to the defense, and the reports were not disclosed to the defense.

Batten filed a post-conviction motion seeking to vacate his convictions, but the motion was denied in 1994. Batten then filed a federal petition for a writ of habeas corpus.

In August 2003, U. S. District Judge Jack Weinstein granted the writ and vacated Batten’s convictions.

Weinstein ruled that Batten had received a constitutionally unfair trial when his lawyer failed to pursue measures under the material witness provisions to bring in Clark to testify. The defense lawyers efforts were “inadequate and cannot be excused as reasonable trial strategy,” Weinstein ruled.

Weinstein also found “most disturbing” the defense lawyer’s failure to call two other prospective alibi witnesses—security guards at the school where Batten went to see his godfather. One guard had told the defense lawyer prior to trial that he saw Batten sometime between 11 a.m. and 1:30 p.m. and the other said he saw Batten there between 12:05 and 12:10 p.m. The testimony “would have been valuable to corroborate the testimony of Batten’s godfather, whom jurors might have concluded had reason to prevaricate in order to protect his godson,” Weinstein ruled.

The Kings County District Attorney’s office filed a notice of appeal with the Second Circuit U.S. Court of appeals. Batten was released from custody in December 2003. In February 2004, the prosecution withdrew its appeal and the charges against Batten were dismissed.

In 2004, Batten filed a lawsuit in Kings County Supreme Court seeking damages from the detectives in the case. In 2015, the Appellate Division of the Kings County Supreme Court dismissed the case.

– Maurice Possley

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Posting Date: 12/15/2015
State:New York
Most Serious Crime:Murder
Additional Convictions:Robbery, Gun Possession or Sale
Reported Crime Date:1983
Sentence:20 to life
Age at the date of reported crime:20
Contributing Factors:Mistaken Witness ID, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No