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Otis Boone

Other Kings County Exonerations
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On February 16, 2011, 26-year-old Ben Zeitlin was walking on the street in the Midwood neighborhood of Brooklyn, New York, when a man with a knife approached from behind and asked for the time. When Zeitlin took out his phone to check the time, the man, who was wearing a baseball cap and a hooded sweatshirt, snatched the phone and fled.

Zeitlin pursued briefly, but the robber turned around, brandished the knife, and then ran off. The entire incident lasted less than a minute.

Ten days later, on February 26, 2011, 17-year-old Eli Eichler was walking after dark on a street in the same neighborhood when a man approached from behind and asked for the time. When Eichler took out his cell phone to check, the man grabbed it. During a brief struggle, Eichler suffered a slight puncture wound in the back from a knife wielded by the robber, who escaped with the phone.

The robber’s face during this incident was partially covered. He had a large Russian style hat and the earflaps were down. The lighting was poor—the robber was backlit by a streetlight that was behind him. Eichler saw the robber’s face only from the nose down.

The two victims gave descriptions of the robber that were general and covered a wide range—a black man ranging in age from 16 to mid-20s, with short hair, and about 160 to 190 pounds.

Not long after, Eichler’s phone was recovered from a man who said he bought it from someone in a bodega. His description of the seller was more specific, but did not lead to a suspect. The buyer was a black man who was bald and nearly 50 years old. Police placed him in a lineup, but Zeitlin and Eichler did not identify him. Eichler told the police at that lineup that he couldn’t remember what the robber looked like but that these men appeared much older. Police returned the phone to Eichler without attempting to download any GPS data in an attempt to track where the phone had been.

Several days later, with no suspects and no forensic or physical evidence, Detective Maureen Sheehan took over the case. She later admitted that she did not read the notes in the file about the recovery of the phone or that Eichler had told detectives at least twice that he could not identify his attacker.

Nonetheless, Sheehan assembled a lineup that included 19-year-old Otis Boone, who had been stopped, photographed, and released by police as part of its stop and frisk program. Boone had never been convicted of a crime.

On March 14, 2011, Boone, who was 6 feet 2 inches tall, was placed at the end of the lineup next to a man who was 5 feet, 8 inches tall. The robbery victims said their attacker had short hair—as did Boone—but three of the five members of the lineup had long hair. Eichler only identified Boone after police asked him—and only him—to step forward and say, “What time is it?”—the words the victims said the robber spoke.

The detective would later dispute this version of the lineup, but would concede that everyone in the lineup was ordered to stand up, despite the height discrepancy. All of the fillers in the lineup were also years older than Boone.

Ultimately, both Zeitlin and Eichler identified Boone and he was charged with two counts of armed robbery.

Boone went to trial in July 2012 in Kings County Supreme Court. He had not met his defense attorney until a day earlier. The defense lawyer failed to investigate Boone's claim that he was using his public benefits card a mile away at the time of the second robbery.

Both victims identified him as their attackers. Boone’s defense attorney requested that the trial judge instruct the jury about the fallibility of cross-racial identification. The request was denied on the basis that there had been no expert testimony or cross-examination concerning a “lack of reliability of cross-racial identification.”

On July 6, 2012, a jury convicted him of both counts. He was sentenced to 25 years in prison. On his initial appeal, the Appellate Division upheld the convictions but reduced his prison sentence to 15 years.

In December 2017, the New York Court of Appeals reversed Boone’s conviction. It ruled that in criminal cases where the witnesses and the defendant are of different races, defendants were entitled to have judges instruct jurors about the unreliability of cross-racial witness identification. The court held that the defense was not required to present expert testimony as a prerequisite for the use of the cross-racial jury instruction.

In the decision, Judge Eugene Fahey pointed to scientific evidence and exonerations of wrongfully convicted defendants and declared, “In light of the near consensus among cognitive and social psychologists that people have significantly greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race, the risk of wrongful convictions involving cross-racial identifications demands a new approach.”

The court noted that the “cross-race effect” had “been accepted by a near consensus in the relevant scientific community of cognitive and social psychologists, and recognizing the very significant part that inaccurate identifications play in wrongful convictions, we reach the following holding: in a case in which a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect.”

On January 29, 2018, Boone was released on a bond secured only by his signature. He went to trial a second time in February 2019, represented by Bess Stiffelman and Amy Swenson, attorneys from the Legal Aid Society.

Eichler and Zeitlin again identified Boone as the robber. For the first time, defense attorneys presented evidence that Boone was elsewhere when the second robbery occurred. State records showed that Boone used his public benefits card in two transactions one mile away and about five minutes before the second robbery occurred.

On March 1, 2019, the jury acquitted Boone, rejecting the prosecution theory that Boone, who had arrived in New York just four days before the first robbery, took a bus to the scene of the second robbery and reached there in less than five minutes.

One juror was quoted by the New York Times as saying the prosecution theory was “wildly unlikely.” Jurors hugged Boone after the verdict was announced and one juror said the jury reached its decision in about five minutes.

– Maurice Possley

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Posting Date: 3/24/2019
State:New York
County:Kings
Most Serious Crime:Robbery
Additional Convictions:
Reported Crime Date:2011
Convicted:2012
Exonerated:2019
Sentence:25 years
Race:Black
Sex:Male
Age at the date of reported crime:19
Contributing Factors:Mistaken Witness ID, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No