| In September 1979, 22-year-old Gregory Reed and two others, Fred and Jerry Foster, were convicted of a stabbing murder in Manhattan, New York. They were convicted by a jury of second-degree murder and each was sentenced to 15 years to life in prison.
At the trial in New York County Supreme Court, prosecutors introduced a statement that Fred Foster gave to police in which he admitted that he had been looking for the victim and was at the scene when the stabbing occurred.
A prosecution witness testified that Fred Foster had previously threatened to kill the victim, and that he saw Fred Foster at the scene as he passed by on his way to Gregory Reed's apartment.
The witness testified that after he had been at Reed's apartment a short time, Fred Foster came in and said that “if anybody comes up asking for him, that he was upstairs painting along with Greg.” The witness also testified that Fred Foster called him repeatedly thereafter, asking him to testify that he was not around when the crime was committed and threatening to kill him if he did not.
Reed denied having any connection to the crime. He testified that he had been painting his apartment and learned about the incident from others. That testimony was consistent with his prior statements to the police. And that testimony was consistent with statements to police made by Fred Foster and Jerry Foster that Reed was not involved. Those statements also were introduced into evidence.
Donald Mason testified for the defense that none of the three defendants were involved.
The only witness who identified Reed as a participant in the stabbing was Jashel Leslie. However, Leslie conceded that for some time prior to the stabbing, he had been drinking and smoking marijuana. His testimony was highly suspect.
Leslie testified that Reed had a knife and had stuck the victim, but also testified that Jerry Foster had stabbed the victim. However, Leslie then changed that testimony to state that Fred Foster stabbed the victim and Jerry Foster was holding a pipe gun on him. And a day later during the trial, Leslie testified that his prior testimony that Jerry Foster had stabbed the victim was truthful, but that Greg and Reed—suggesting he meant two separate people, though Reed’s name was Gregory Reed--had stabbed the victim. Leslie later said that Jerry Reed and Greg Reed had stabbed the victim and that when he talked about Greg and Reed stabbing the victim he meant Jerry Foster.
All three appealed their convictions primarily on the ground that a juror had been allowed to be on the jury even though the jury had previously served on a federal grand jury less than two years earlier. The defendants cited prior appellate rulings that prohibited multiple jury service within a two-year period. Disqualification based on prior jury service within two years was designed to present a greater cross-section of potential jurors and reduce “professional jurors” from serving.
During jury selection, Jerry Foster’s attorney made a motion to excuse the prospective juror for cause, but the trial judge denied the motion. Foster’s attorney sought to use a peremptory challenge—one of several challenges given to the prosecution and defense allowing either side to excuse a juror without citing a reason. However, local court rules required that in a multi-defendant case, the majority of the defense attorneys agree. Attorneys for Reed and Fred Foster declined to go along with the attorney for Jerry Foster. As a result, the juror was allowed to serve on the jury.
In 1984, the New York Appellate Division, Second Department, ruled that Jerry Foster’s attorney should have been allowed to use his peremptory challenge to excuse the juror. The court vacated Jerry Foster’s conviction and ordered a new trial. The court upheld the convictions of Fred Foster and Reed, ruling that their lawyers had failed to preserve the issue for appeal by failing to join with Jerry Foster’s lawyer motion to excuse the juror at the trial.
Reed and Foster then appealed to the New York Court of Appeals. In May 1985, the Court of Appeals upheld the ruling that their attorneys had waived the juror exclusion issue. However, in reviewing the trial record, the Court of Appeals cited the widely conflicting statements of Leslie—“hopeless contradictions”—and concluded that the evidence against Reed was insufficient to sustain a conviction.
The Court vacated Reed’s conviction and ordered the case dismissed. The court upheld Fred Foster’s conviction.
Reed subsequently filed a claim for compensation with the New York Court of Claims. On November 7, 1988, following a trial in that court, Reed was declared factually innocent. He was awarded $495,000 in compensation.
– Maurice Possley
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