()

High-profile members of New York’s legal community are seeking to become amici parties in a criminal case that addresses the issue of jury instructions on cross-racial eyewitness identification, which is set for arguments before the state Court of Appeals next month.

The proposed parties, which include former prosecutors and judges, say that the jury in the case of Otis Boone—a black man convicted of first-degree robbery in 2012 based on the identification of two white victims—should have been instructed on the tendency of individuals to identify members of their own race better than members of other races.

Caitlan Halligan

Among the 15 parties are former Court of Appeals judges Carmen Beauchamp Ciparick, of counsel at Greenberg Traurig, Howard Levine, senior counsel at Whiteman Osterman & Hanna and Albert Rosenblatt, counsel at McCabe & Mack; former Appellate Division, First Department, Justice Bernard Malone Jr., who is also senior counsel at Whiteman Osterman & Hanna; former state Supreme Court Justice Barry Kamins, partner at Aidala, Bertuna & Kamins; and former Manhattan prosecutors Daniel Alonso, managing director and general counsel at Exiger and Eric Corngold, a partner at Friedman Kaplan Seiler & Adelman.

They are being represented by Gibson, Dunn & Crutcher partner Caitlin Halligan and associate Kathryn Cherry and Bracewell partner Paul Shechtman.

Paul Shechtman

“We tell juries everyday that they should scrutinize testimony carefully, so it’s not a great leap to ask a trial judge to tell a jury that they should look at cross-race identifications with special care,” Shechtman said in an interview Monday.

Boone was convicted of committing separate robberies in Brooklyn where the victims, both white, said Boone nabbed their cellphones while brandishing a knife.

The second victim, identified in court papers as E.E., said his assailant stabbed him in the back and lacerated his kidney.

Boone asserted there was no corroborating evidence linking him to the robberies, but he was found guilty and sentenced to 25 years in prison.

The Appellate Division, Second Department, affirmed the verdict in 2015 but said Boone’s sentence was excessive and reduced it to 15 years.

The appellate panel also said that Acting Brooklyn Supreme Court Justice Vincent Del Giudice properly declined to charge the jury on the unreliability of cross-racial identification because Boone never placed the issue in evidence during the trial.

Boone was granted leave to appeal to the Court of Appeals. He argues in his brief that Del Giudice denied him a fair trial by declining to issue a charge on cross-racial identification. He supports his argument by citing scientific literature on the unreliability of such identifications, including a 2014 report from the National Academy of Sciences stating that cross-racial misidentification was the culprit in 42 percent of cases studied in which an erroneous identification was made.

Despite the mounting evidence, Boone’s brief contended, studies show that the problems with cross-racial identification are not well-known among the public at large. He also notes that the high courts in New Jersey and Massachusetts have ruled that juries should be instructed in cases involving cross-racial identification.

Boone is being represented by Lynn Fahey and Leila Hull, attorney-in-charge and supervising attorney, respectively, of Appellate Advocates Inc.

Assistant District Attorneys Leonard Joblove and Seth Lieberman are appearing in the case for the Brooklyn District Attorney’s office. When asked for comment, a spokesman referred to the Brooklyn DA’s reply brief in the case, which argues that Boone failed to preserve his claim that Del Giudice erred in not providing the jury with a cross-racial identification instruction.

If Boone preserved his claim, the prosecutors argue that issuing the charge to the jury would have improperly compelled jurors to infer as to how much contact the victims had with black people prior to the robberies.

The Brooklyn DA also argues that expert testimony on cross-racial identification would be an appropriate vehicle for addressing the issue.

Legal Aid Bureau of Buffalo Inc., Brooklyn Defender Services and the National Association of Criminal Defense Lawyers have also filed amicus briefs in the case.

Arguments in the case, People v. Boone, APL-2016-00015, are scheduled for April 25.

Copyright New York Law Journal. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.