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Austin Babb

Other Bronx County, New York CIU exonerations
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On August 7, 2010, gunshots were fired at a party at an apartment at 1454 Grand Concourse in the Bronx, New York. When police arrived, 19-year-old Demetrius Jones was on the floor, fatally wounded. Witnesses said the gunman entered the party and began shooting.

Three others were wounded. Sixteen-year-old Ariel Hall was shot in the arm. Eighteen-year-old Daquan Fletcher was shot in the back. And 18-year-old Brandi Garcia-Suila was shot twice—in her arm and her leg.

Sixteen-year-old Corey Collins, a friend of Jones, said he saw the gunman enter the building with another youth shortly before the shots were fired. Collins said he and a friend were returning from a bodega where they got drinks when they saw the two men put bicycles by the mailboxes in the lobby of the building.

Jones’s mother, who lived in the same building on a different floor, told police that she heard the shots, rushed to her door, and saw a young man with something in his hands running down the stairs. She said she went back inside and looked out the window. She said she saw the same youth get onto a bicycle and start to flee before crashing. The youth then fled on foot, she said.

Police confiscated the bicycle after dusting it for fingerprints and swabbing it for DNA. A Houston Astros baseball cap found nearby also was taken into evidence for DNA testing. The chain on the bicycle had jammed and come off the sprockets.

On August 8, one of the fingerprints was identified by police as that of Wade Quiah, a member of the East Homicide Brims street gang, which was part of the Bloods street gang. On August 9, another of the prints was identified by police as that of 20-year-old Austin Babb. Detective Steven Smith created two photo arrays, one containing a photo of Quiah and the other a photo of Babb. The photo of Babb was five years old—taken when he was 15.

Collins identified Babb as the gunman. He did not identify Quiah. When police interviewed Quiah, he admitted being at the party, denied involvement in the shooting, and said he left on a bicycle that crashed. The investigation of Quiah went no further, however, and focused solely on Babb.

On August 11, 2010, Babb was arrested. Collins viewed a live lineup and identified Babb as the gunman. Babb was then charged with second-degree murder, three counts of second-degree attempted murder, and criminal possession of a weapon.

During a pretrial hearing on a defense motion seeking to bar testimony about Collins’s identification, Detective Smith testified that there were “multiple eyewitnesses who saw the suspect come with a bike” to the party and after the shooting “try to flee on the bike.” The judge asked, “More than one person said the shooter left on a bike?” Detective Smith said, “Correct.”

After Smith completed his testimony, the prosecutor said he wanted to “correct” the record so there was no “misimpression” that “other people had seen the [shooter] riding on a bike.”

“I don’t know what the detective is referring to,” the prosecutor said. “[T]here’s only one person” Corey Collins, “that made an ID” and he “didn’t see the…shooter fleeing on a bike.”

The defense motion to bar testimony about the identification of Babb was denied.

Babb went to trial in Bronx County Supreme Court on October 8, 2014. By that time, Quiah had pled guilty in federal court to a charge arising from an August 2011 murder of someone that Quiah thought was cooperating with the prosecution in the Babb case. Quiah ultimately was sentenced to nearly 20 years in prison.

Babb's trial lasted more than six weeks. Collins identified Babb as the gunman, but admitted he had been drinking two different brands of brandy and smoked marijuana. He testified that he left the party to go to the bodega. When he was returning, he said he saw two youths put bicycles into the mailroom of the building. He said he went back to the 6th floor apartment where the party was going on. Collins said he was by a window when gunshots were fired. Collins said he recognized Babb as the gunman because a few weeks earlier, he had watched Jones and Babb engage in a stare-down.

Collins admitted that six months before the trial, he pled guilty to multiple drug charges and entered a drug and alcohol program. He also had been re-arrested on a felony drug charge one week before testifying in the trial. He said he had not been promised any leniency in return for his testimony.

His testimony was problematic in a number of areas. The prosecutor acknowledged that Collins testified about details that he had not mentioned in prior interviews. For example, Collins had not mentioned the stare-down during the initial investigation. Collins told the jury the gunman wore a red shirt, but the prosecutor noted that during pretrial preparation, Collins said he didn’t remember the color of the shirt.

On the witness stand, Collins asserted that he had gotten “a really good view” of the two men with the bicycles. However, during a break, the prosecutor told the defense attorney and the trial judge that Collins earlier said “he could not see the entire faces of the two individuals who were putting the bikes” in the mailroom.

Collins also testified that at the request of Detective Smith, he had gone to the precinct station and identified Babb in a lineup. The prosecutor reported that Collins told him that he couldn’t remember any lineup. The prosecutor noted that Detective Smith had driven Collins to court on the day of his testimony after which Collins remembered the lineup.

Then, one by one, several witnesses testified that they had viewed photo arrays and had not identified Babb as the gunman. Detective Smith had not disclosed these procedures to the prosecutor.

Brandi Garcia-Suila was the first to disclose that she had been shown a photo array and did not make an identification. During cross-examination, Garcia-Suila said that Babb was not at the party.

Vachelle Jones, Jones’s mother, testified that she looked at an array of photographs and was shown an individual photograph of Babb. However, she said she did not recognize him as being at the party.

The day after Jones testified, the prosecutor disclosed that Ariel Hall also had been shown a photo array. During her testimony, Hall said that Babb was not at the party.

Daquan Fletcher testified that Babb was not at the party. And when Justina Willis got on the witness stand, she said that she had seen a photo array and had not made any identification. She testified that Babb was not at the party.

During cross-examination, Detective Smith denied showing photo arrays to the other witnesses, including Vachelle Jones and Ariel Hall. He said he had a “recollection” of showing an array to Justina Willis. Smith admitted he showed two photo arrays to Willis—one with Babb’s photo and one with Quiah’s photo—and that Willis did not identify either one. Smith claimed that the arrays he showed to Willis were noted in his “steno book,” something neither the prosecutor nor the defense were aware of. None of the arrays was preserved and the detective did not document in any way the exculpatory arrays where witnesses failed to identify Babb.

At the time, the trial judge said he was troubled by the testimony, particularly the undisclosed information about witnesses who told police that the gunman was not in the arrays.

On November 21, 2014, the jury convicted Babb of second-degree murder, three counts of second-degree assault—rejecting the second-degree attempted murder charges—and criminal possession of a weapon. Babb was sentenced to 48 years in prison.

On April 22, 2016, the Office of the Chief Medical Examiner notified the Bronx County District Attorney’s Office that the DNA profile from the bicycle had been matched to a man who had been arrested for defacing a firearm and had not been previously linked to the case.

In May 2016, the District Attorney’s Office forwarded the report of the DNA match to Anastasia Heeger, Babb’s court-assigned appellate lawyer at the Office of the Appellate Defender.

Heeger then brought the case to the Bronx County District Attorney’s Conviction Integrity Unit (CIU). Heeger noted that Detective Smith had been involved in obtaining a false confession and several false witness identifications in the prosecution of Malisha Blyden and Latisha Johnson.

Blyden and Johnson had been exonerated in 2014 of a murder and other crimes. As a result, the CIU began a lengthy re-investigation of the Babb case, including visiting the crime scene and interviewing new and old witnesses. The CIU concluded that “the integrity of the conviction is impaired, bringing into question the correctness of the conviction.”

An assistant public defender representing Collins, who was facing a pending narcotics case, said that Collins’s file indicated that Collins’s three felony cases, which were pending at the time he testified against Babb, were dismissed on the motion of the prosecution shortly after Babb’s trial. The case file was unsealed and although no evidence was found of any deal with Collins, the CIU concluded that Collins may have “operated on the mistaken belief that cooperating…could benefit him in his pending cases.”

The CIU interviewed the friend who accompanied Collins to the bodega and returned to the party. The friend, who had never been interviewed by either the prosecution or defense, said that when he and Collins saw the men with bicycles, he asked Collins if he knew them. Collins said he did not. The friend’s statement contradicted Collins’s claim that he recognized Babb because he had seen Babb in a stare-down with Jones prior to the shooting.

Just as significantly, the friend identified a photograph of the man linked by DNA after being arrested for defacing a firearm as one of the two youths with the bicycles he saw in the lobby just before the shooting.

In February 2020, Risa Gerson, chief of the Bronx County District Attorney’s CIU, filed a recommendation to vacate Babb’s convictions and dismiss the charges. In a memorandum, Gerson said that the prosecution “has lost confidence in the correctness of the conviction.”

The memorandum noted that Collins had consumed 80 proof liquor and smoked marijuana. In addition, he had the three pending felony drug cases dismissed, although there was no record that the prosecution provided him with any benefit in return for his testimony.

In addition, “the reliability of Collins’s identification is significantly undercut by the fact that the detective who conducted the identification procedure had previously obtained false identifications in the Johnson/Blyden case,” the memorandum said. This had not been disclosed to Babb’s attorneys prior to the trial.

In addition, “Smith utterly failed to follow proper procedures in memorializing important witness information,” the memorandum said. “Even more troubling,” the memorandum said, was Smith’s failure to record that witnesses had viewed photo arrays that included Babb and said they did not see the gunman.

The DNA evidence further undermined the conviction, the memorandum said.

On February 6, based on the joint motion of the prosecution and the defense, Bronx County Supreme Court Justice Ethan Greenberg vacated Babb’s convictions. On February 8, 2020, Babb was released on bond.

On July 24, 2020, Justice Greenberg dismissed the charges.

In December 2020, attorney Joel Rudin filed a claim on Babb’s behalf in the New York Court of Claims seeking $16 million in damages for the wrongful conviction.

– Maurice Possley

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Posting Date: 2/22/2021
Last Updated: 2/22/2021
State:New York
County:Bronx
Most Serious Crime:Murder
Additional Convictions:Assault, Gun Possession or Sale
Reported Crime Date:2010
Convicted:2014
Exonerated:2020
Sentence:48 years
Race/Ethnicity:Black
Sex:Male
Age at the date of reported crime:20
Contributing Factors:Mistaken Witness ID, Perjury or False Accusation, Official Misconduct
Did DNA evidence contribute to the exoneration?:Yes*