| Just after 4 a.m. on December 25, 1999, Ernest Brown called 911 to report that his friend, Reuben Scrubb, had been shot outside a gas station in the Prospect Heights neighborhood of Brooklyn, New York. Brown told the dispatcher that the assailants drove a gray Infiniti. Scrubb, who was 22 years old, died later that day.
At 5:40 a.m., Brown gave a statement to detectives with the New York Police Department. He said that he and Scrubb had been at a bar called Po’k Knockers for several hours. As they left, Brown said, “A guy came out of the bar and walked right into” Scrubb. That man crossed Atlantic Avenue and got into a car. Scrubb and Brown also crossed the street, with the idea of catching a cab at the gas station.
Quickly, an Infiniti Q45 pulled up. The man who had bumped Scrubb was in the passenger seat, and both he and the driver began arguing with Scrubb. The driver asked the passenger several times, “Should I pop him?” He pulled away but then backed up and fired two or three shots. Brown said the gun looked like a TEC-9.
Brown described the passenger as a dark-skinned Black man, 18-20 years old, and 6’1” in height. He said the man wore glasses and had his hair in “corn braids.” He described the shooter—the car’s driver—as a Black man with light to medium skin, 20-30 years old, with “low cut hair.” He said the Infiniti was an older model that was “gray or gray/beige, a crazy color.”
Police also interviewed the attendant at the gas station. He did not see the shooting but said he saw a green car speed away.
Detective Anthony Pitre took over the case. Joined by another detective and an assistant prosecutor from the Kings County District Attorney’s Office, Pitre interviewed Brown on December 26.
Brown again said the events unfolded after “someone came out, I guess, of the club” and “bumped [Scrubb] real hard.” Brown now said this person was 6’2” or 6’3”, 18-23 years old, and clean-shaven. The driver was 26-30 years old. Brown said the Infiniti was “either a dark gray or like a cream color.”
Detectives interviewed the bar owner and two bouncers. The owner said the bar catered to a clientele that was older than the persons described by Brown. One of the bouncers said he didn’t see any fights or problems on the morning of December 25.
Pitre asked the police department’s Auto Crime Division to run a search for late-model Infiniti Q45s in Brooklyn that were gray, white or cream. The search produced more than 200 hits.
At 3:30 a.m. on December 28, a patrol officer pulled over an Infiniti Q45 for a minor traffic violation. The car was registered to Lillian Fuller, and the other occupant was her boyfriend, Maurice Mayo. They lived on 67 Stuyvesant Avenue, about 2.5 miles from the shooting. Pitre received a report on the stop the next day, which noted that police were looking for 25-year-old Kareem Mayo, Maurice’s nephew, in connection with an unrelated shooting.
At 8:15 p.m. on December 30, Pitre and another officer took Brown to Maurice Mayo’s block on Stuyvesant Avenue. Two Infiniti Q45s were parked across the street from his house. Brown identified the vehicle pulled over by the police two days earlier as the same color and make he had described in his earlier statements.
After viewing the cars, Brown and Pitre went to the police station. Brown viewed a photo array containing Kareem Mayo’s photograph and, according to Pitre’s report, selected Mayo as the driver of the Infiniti.
Pitre then began reviewing police records of Mayo’s family and created a photo array that included Mayo’s cousin, Donnell Perkins. Although Pitre said in his report that he assembled the array using the descriptions provided by Brown, Perkins was shorter than the man Brown described. In addition, he had a mustache and didn’t wear glasses. Most importantly, Perkins was only 17 years old, too young to legally drink, and Brown had said that the passenger in the Infiniti had bumped Scrubb after leaving a bar.
On January 6, 2000, Pitre showed up at Brown’s job and asked him to view a photo array. Pitre said in his report that Brown selected Perkins’s photo. Later that day, Pitre pulled Perkins over for an alleged speeding violation, and Perkins agreed to go to the police station. He was placed in a live lineup with five other men, each at least 30 pounds heavier and seven years older. Brown, who had already viewed Perkins’s photo earlier that day, selected Perkins as the man who bumped Scrubb.
Police arrested Perkins. When Fuller’s Infiniti was impounded, the paperwork said the car’s color was gold.
Mayo was arrested on January 28, 2000, and Pitre interviewed him in a holding cell. According to Pitre, Kareem Mayo said that he “wasn’t in no car with [Perkins] killing anyone.” Later that day, Brown selected Mayo from a live lineup.
Brown testified twice before the grand jury. Each time, he said the person who bumped Scrubb had come out of the bar. Perkins also testified before the grand jury. He lived at the house on Stuyvesant Avenue and had spent the evening hooking up a television with his cousin, Antwon. He said he went to bed about 10:30 p.m. and did not see Kareem that day or go to the bar. The grand jury indicted both men on charges of second-degree murder.
At a joint suppression hearing about the lineup identifications on March 31, 2001, Pitre testified about how the investigation led to Mayo and then to Perkins. Pitre said that after Fuller’s Q45 was pulled over, he “learned that the Mayo family was well known.” He did not explain what he meant. Pitre said he then proceeded to put together a book of people connected with the family and focused on Kareem Mayo because he “had the tendencies” and “was already wanted for a shooting on another case.” No charges were ever brought against Mayo in that incident.
Pitre speculated that Mayo used Fuller’s car, which was really owned by his uncle, Maurice.
“I don’t know if you have ever been by 67 Stuyvesant Avenue, but I mean, the way they park the cars and stuff like that, I mean—you know—a lot of people have access to the cars because they’re so closely parked together—you need more than one person to move the car to get out of a parking spot,” Pitre said.
Pitre testified about how he assembled the lineups and the photos for the arrays. He acknowledged that Perkins did not fit Brown’s description. He had a mustache, didn’t wear eyeglasses, and his skin was not dark. Pitre said that assembling the lineup for Perkins presented challenges, because of the difficulty finding teenagers whose parents would agree to let them be used as fillers.
Pitre also said he did not have Brown look at any other Q45s. He referred to the impounded Infiniti as cream-colored and grayish-beige.
Justice Carolyn Demarest of Kings County Supreme Court allowed the identifications from the lineups to be used but expressed concern about the case against Perkins. Justice Demarest said, “With respect to Mr. Perkins, the testimony that I have heard suggests to me that Mr. Perkins may very well not be the right person.” She noted that “the fillers in this lineup are significantly older than Mr. Perkins, and there is no one who even begins to match him in age as a matter of fact.”
Prior to trial, the state offered Mayo a deal to plead guilty to manslaughter in exchange for a sentence of 15 years in prison. He declined the offer, and the state never made an offer to Perkins.
Howard Greenberg represented Perkins, and Phillip Smallman represented Mayo. The day before opening statements, the attorneys learned the name of Brown, the state’s key witness. They were also given a copy of his grand jury testimony.
During his opening statement, the prosecutor told jurors about the man who bumped Scrubb outside the bar and said that—contrary to Brown’s grand jury testimony—Brown didn’t know whether the man had come out of the bar.
Brown testified about the events prior to the shooting. He was asked what happened when the men left the bar. “Someone came from [Scrubb’s] left-hand side and bumped him.”
Brown said he didn’t see where that person came from and hadn’t seen the person inside the bar. He then identified Perkins as the person who bumped him and later sat in the Infiniti’s passenger seat.
Brown said that Pitre had shown him a photo array on January 6, 2000. Asked whether he recognized anybody in the photographs, Brown said no. This contradicted Pitre’s report and testimony at the suppression hearing.
Brown testified that when he and Scrubb were at the gas station, he saw an Infiniti pull up. The driver began talking to him and Scrubb, asking Scrubb, “What the f--- is up with you and my man?” Brown identified Mayo as the driver.
Brown testified that he had called the Q45 gray on the 911 call, but that it actually looked beige or light tan. “It wasn’t gray, but it looked gray. Kind of.”
Brown said he had drunk about six beers over the course of the evening and that he hadn’t smoked marijuana.
During cross-examination, Smallman asked Brown about his vision. Brown said he did not have 20/20 eyesight. He testified that he was far-sighted and wore eyeglass, but only for reading. He said that there was no reason he should have been wearing glasses that night.
A pathologist testified that Scrubb died of a gunshot wound. He also testified that Scrubb’s blood-alcohol content was .18, nearly twice the legal limit. It was stipulated that a copper-jacketed bullet from a .380 caliber handgun had been found at the crime scene. An officer testified that a .380 is a different weapon than the TEC-9 that Brown had said he thought he saw.
Pitre testified about the investigation. He said he interviewed the staff at the bar and agreed that “they don’t allow 17-year-olds inside” and that its customers were generally older.
Neither Perkins nor Mayo testified. Their attorneys had given notice that they might present alibi evidence but then decided not to call these witnesses.
During his closing argument, the prosecutor said, “Let’s clear up something right away, ladies and gentlemen, and Ernest Brown is clear about this, he does not see where Donnell Perkins comes from, and you can have that read back to you … He doesn’t see him coming from the bar … We don’t know where Donnell Perkins came from. We don’t know if he was in the bar.”
He also said Brown had testified that he only wore glasses for reading and that it was “ridiculous” to believe he didn’t see the shooting clearly.
The jury convicted both men of second-degree murder on April 25, 2001. Perkins received a sentence of 22 years to life in prison. Mayo received a sentence of 25 years to life.
After their convictions, Mayo and Perkins began a series of appeals, initially arguing that their attorneys had been ineffective for failing to present alibi evidence. The motions included affidavits from Mayo’s family and girlfriend that said he was in Richmond, Virginia during the Christmas holiday. Perkins’s family said he was at home. Justice Demarest affirmed the convictions on September 27, 2002. She said the decision not to call alibi witnesses was a reasonable trial strategy, and that the defendants and their families had agreed with this strategy.
Perkins later filed a separate motion in state court asserting that the lineup Brown viewed was impermissibly suggestive. An appellate court affirmed the conviction. He also filed a petition for a writ of habeas corpus in U.S. District Court for the Eastern District of New York that raised many of these same issues.
Judge Edward Korman denied the petition on December 30, 2005, but he expressed doubts about the strength of the state’s case. “I agree with petitioner that the quality of the uncorroborated eyewitness identification here is troubling,” he wrote.
Judge Korman said that although there were “significant discrepancies” between Brown’s description and Perkins’s appearance, his hands were tied. “Barring some change in the standard for evaluating the legal sufficiency of the evidence in cases involving eyewitness identifications, I regret that I am unable to issue the writ,” he wrote.
After Perkins and Mayo had been sentenced, Greenberg had written a memo to Justice Demarest expressing his frustrations with the outcome of the trial. He wrote that in the three weeks between the verdict and the sentence, the defense had learned a great deal more about Brown. First, he owned a green car. Second, there was evidence that the shooting was gang-related, and Brown was the intended target. Third, “Mr. Brown [wore] thick eyeglasses on a regular basis (conspicuously absent during his testimony).”
The information about the eyeglasses had come through Perkins’s father, Donnell Mayo, who was friends with a man whose sister was then dating and later married Brown. At the time, the woman didn’t want to get involved, according to Donnell Mayo.
In 2015, Attorney Joel Rudin began representing Perkins. Rudin asked the Conviction Review Unit (CRU) of the Kings County District Attorney’s Office to re-investigate the case. The CRU opened an investigation, but was unable to interview Keeler Brown, who had divorced Ernest Brown and was now living in North Carolina. Rudin’s team interviewed her in 2017, and then she agreed to be interviewed by the CRU.
In an affidavit, Keeler Brown said, “I have been informed by attorneys for Mr. Perkins that Ernest testified at trial that he needed eyeglasses only for reading and that he did not smoke marijuana on the night of Reuben’s murder. I have also been informed by the attorneys that Ernest told police he was not much of a drinker. All these things are untrue.”
She said that Brown regularly wore eyeglasses when he drove a car and whenever he was home, including when he was watching television.
“Ernest generally did not wear his glasses when he left the house, though, especially when he went out to socialize,” Keeler Brown said.
“This was because Ernest’s glasses were unfashionable and he was embarrassed to be seen wearing them.” She provided several candid photos of Brown wearing glasses.
The CRU reviewed other evidence in the case and talked to the alibi witnesses for Perkins and Mayo. After the CRU took no action, Rudin and Mayo’s new attorney, Ronald Kuby, filed a joint motion for a new trial on September 17, 2020.
The motion said that the accuracy of Brown’s identifications was already “dubious” because of poor lighting and the stressful situation of a shooting. “Had the jury known that Brown needed glasses to see the perpetrators clearly but was not wearing them, and that he was likely drunk and high that night, it likely would have had a reasonable doubt about the accuracy of Brown’s identifications,” the motion said.
The motion also said that the state had failed to make a timely disclosure of the change in Brown’s testimony, where he testified that he didn’t know whether the man who bumped him came out of the bar. “Brown’s changed testimony was apparently meant to account for the unlikelihood, based on Detective Pitre’s investigation, that 17-year-old Donnell would have been allowed inside, or been inclined to patronize, [the bar].”
Just before trial, the state had given the defense a copy of Brown’s grand jury testimony. But it didn’t disclose that there had been a material change to that testimony, according to the motion. “Instead, the prosecutor opened on the new version and then immediately put Brown, whose identity as a witness had just been disclosed, on the witness stand, thereby depriving the defense, in the midst of the intense pressures of trial, of the opportunity to use Brown’s inconsistent statements with ‘some degree of calculation and forethought,’ as Brady requires,” the motion said.
“The prosecutor knew the in-court testimony was false in light of Brown’s sworn, contemporaneous statements, which the prosecutor himself had elicited before grand juries, yet he failed to correct it,” the motion said.
The motion also included affidavits from Mayo and Perkins. Mayo said he was in Richmond during that period. He also said he had never been to the bar on Atlantic Avenue, and that he and Donnell didn’t hang out. “I am eight years older than he is, and he was a kid to me.”
In his affidavit, Perkins also said that he and Kareem didn’t socialize because of their age difference. He said he didn’t wear glasses. In addition, Perkins said that “Based on the slang that was used in my neighborhood at the time of the shooting, a young man would have never referred to his cousin as his “man,” which is what Ernest Brown claimed the driver called the passenger before the shooting.
In its response, the state said Keeler Brown’s statement about her ex-husband’s vision and consumption of drugs and alcohol were insufficient to merit a new trial. First, she didn’t know Ernest Brown’s actual prescription. Second, there were other ways at trial that the defense could have learned about Brown’s eyesight issues; there was no reason why the defendants waited so long to raise this claim.
It also said that the prosecutor had adequately disclosed evidence and not elicited or failed to correct false testimony. “Rather than indicating that the prosecutor acted unethically in an attempt to change Mr. Brown’s testimony to conform with the evidence at trial, the record indicates what actually happened: Mr. Brown simply clarified his testimony,” the state’s response said.
Justice Dena Douglas of Kings County Supreme Court heard witness testimony during an evidentiary hearing.
Keeler Brown testified about Ernest Brown’s vision. Dr. Nancy Franklin testified about how memory and identification can be affected by external conditions, such as lighting, stress, and alcohol. She said that Brown’s identifications were unreliable. Dr. Michael Newton, an ophthalmologist, reviewed Brown’s prescriptions and testified that Brown had significant hyperopia, commonly known as farsightedness, and would have had difficulty seeing objects from multiple distances without the use of corrective lenses.
On January 23, 2023, Justice Douglas granted Perkins and Mayo a new trial. She said that evidence of Brown’s vision impairment could not have been discovered before trial, because the state kept Brown’s identity confidential, limiting the defense’s ability to properly investigate. “That defense counsels briefly cross-examined Brown regarding his eyesight and remarked during summation that his eyesight may have been poor is not a basis to deny this claim,” she wrote. “Neither defense counsel possessed the current evidence, presented during this hearing, to conduct a more thorough cross-examination of Brown.”
Justice Douglas said that Perkins and Mayo had not proven their factual innocence, and she did not address the claim that the state failed to adequately disclose Brown’s change in testimony.
Mayo was released from prison on January 30, 2023. Perkins had been released on parole in 2021.
On June 16, 2023, Douglas granted the state’s motion to dismiss the charges against Mayo and Perkins. An assistant district attorney said that the passage of time made it unlikely that the state could meet its burden of proof at a retrial.
In his remarks before the court, Rudin said he appreciated the state’s professionalism but said: “It is also obvious that there is a lot more that happened besides the passage of time. There was the undermining of the sole eyewitness’s testimony, the undermining of the integrity [of] the investigation by the assigned detective. The additional testimony that we presented that your Honor found established by a preponderance of the evidence and reasonable probability of a more favorable outcome had the case been tried. There is a lot more that happened.”
– Ken Otterbourg
|