By Jeffrey Deskovic
“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.
On November 6, 2008, Barry Gibbs, who served 19 years in prison in New York for murder and was proven innocent of it, and Scott Fappiano, who served 21 years for rape in New York before being proven innocent, gave a talk about their wrongful convictions at Baruch College in Manhattan. The purpose of the event was to raise public awareness about the problem of wrongful convictions, and to reinforce the reality that anyone can be wrongfully convicted at any time.
Vincent Pullara, Jr., was the master of ceremonies, and the primary event organizer. This was the second such event at Baruch College that Pullara had organized. I was the 
presenter at the previous event, which had taken place the prior semester. Booklets—that The Innocence Project had put together entitled Special Report: 200 Exonerated, Too Many Wrongfully Convicted, which contained many facts and statistics about wrongful convictions, along with the names, photos, time wrongfully spent in prison, and short case synopses of 200 wrongfully convicted people—were distributed to the audience. The booklet also contained information and statistics regarding the causes of wrongful convictions.
Pullara opened the event by speaking about how he had learned about the world of wrongful convictions as a result of his interning and volunteering at The Innocence Project, and that he had become quite passionate about the issue. He mentioned that it was a countrywide problem, and that New York had a particular problem with them, with 23 DNA-based exonerations.
After mentioning that misidentification was the cause of wrongful convictions in 75% of the 223 DNA proven wrongful convictions, he recognized a few of the members of The Innocence Project who were in attendance. He then acknowledged my presence and invited me to speak about what I had been up to since I had spoken at Baruch.
I mentioned that I had given several presentations since then, the most recent one being at the 34th annual gathering of The Northeastern Association of Forensic Scientists, which featured many people who work in crime labs testing DNA, and that they were receptive to speaking to members of the Legislature about passing reforms to prevent wrongful convictions. I had written more articles on the same, given more interviews with the press, was in the process of trying to obtain a grant to be able to do additional presentations, and had beefed up my website with more articles.
Pullara thanked me for sharing, and then introduced Barry Gibbs. Before getting into his story, Gibbs praised The Innocence Project, and he also thanked me for both my opening remarks and for my advocacy work in raising awareness about wrongful convictions and seeking legislative changes. Gibbs then began his story.
Prior to his arrest, Gibbs had worked as a postal worker and was a Vietnam veteran. Gibbs mentioned that he had been framed by former New York Police Department Detective Lou Eppolito for murder. He mentioned that The Innocence Project had been looking into his case for awhile, but they had to close it because it was learned that the DNA had been destroyed. He had ultimately been cleared because when the FBI raided Eppolito’s house, they discovered that he had Gibbs’ file there, even though he had no business with it since he had been retired. When Eppolito was asked what he was doing with the file, he stated that he was going to make a movie.
From there, the false case against Gibbs began unraveling and he was ultimately cleared. Eppolito and his partner, Stephen Caracappa, were convicted of being gangsters and carrying out hits for the mob. Their charges included eight murders, kidnappings, and other crimes. The trial court judge overturned their convictions, although stating that he believed that they were guilty, because he thought that racketeering portion of the case conspiracy did not continue past a five-year statute of limitations, and that the convictions for that charge influenced the jury verdict as to the other charges. But the Federal Court of Appeals disagreed, stating, according to an article in USA Today:
“A conspiracy to provide services to members and associates of organized crime continued well past the point in March 2000 when charges otherwise would have had to be filed. Many of the worst crimes occurred between 1986 and 1990.”
Gibbs spoke about his case and his time in prison. The facts of Gibb’s case, taken from the blog Strange Justice by Marc Simon, are as follows:
“In 1999 the Innocence Project took up the case of Barry Gibbs, but with no success. Unwilling to admit remorse for a crime he did not commit, Gibbs seemed doomed to live out his entire sentence without Parole or vindication. Then, in March, 2005, agents of the Drug Enforcement Administration raided the Las Vegas home of former NYPD Detective Lou Eppolito after arresting him, his son Anthony, and his former partner Stephen Caracappa on drug trafficking charges. Eppolito and Caracappa were also accused of participation with the Mafia in numerous murders. Inside Eppolito’s basement agents found the case file on the Barry Gibbs prosecution, which Eppolito had been an investigator on. Clearly, there were problems with the case. Gibbs had been convicted primarily on the testimony of one man, Peter Mitchell, who claimed he saw a man in a park dumping the slain body of Virginia Robertson. Mitchell had picked Gibbs out of a police line-up as that person and testified as to such at Gibbs’ trial. However, once confronted two decades later by Federal agents, Mitchell claimed he had been coerced by Detective Eppolito into falsely identifying Gibbs.”
Gibbs said that after being released with nothing, his life circumstances were difficult. He was living in a heavily subsidized room; was on food stamps and was in really bad shape financially. He stated several times that he was bitter.
In a prior interview with The New York Post, he mentioned that his son was young when he went to prison, and that he has not been able to reconnect with him. As he put it, his “son has his own life and doesn’t have any time for me.” Though not mentioning it at his presentation, Gibbs had attended the sentencing hearing of Eppolito, at which point the following verbal exchange, taken from The New York Times article on June 6, 2006, took place: “Mr. Eppolito!” he yelled from the gallery. “Do you remember me?” Apparently baffled, Mr. Eppolito said, “No.” “I’m the guy you put away for 19 years! I’m Barry Gibbs! You don’t remember me? You don’t remember what you did to me? To my family?”
Next Scott Fappiano spoke. The facts of Fappiano’s case are taken from The Innocence Project’s website:
“On October 6, 2006, Scott Fappiano walked out of the Kings County Supreme Court as a free man. After serving 21 years for rape, sodomy, burglary, and sexual abuse, post conviction DNA testing proved his innocence.
On December 1, 1983, in Brooklyn, New York, a white male intruder with a gun woke the victim and her husband, a New York Police Department officer. The perpetrator instructed the victim to tie up her husband in the bed with a length of telephone wire. He then ordered the victim to remove her clothing.
The perpetrator vaginally raped her throughout the house and forced her to perform oral sex on him. The perpetrator then smoked a cigarette and drank a beer, leaving both in the living room. The victim was able to flee into the hallway and bang on a neighbor’s door for assistance.
The perpetrator then fled the scene. The victim described the perpetrator as a white male of Italian descent. She was brought to the police station to view photographs of individuals who fit her general description. She selected a photograph of Scott Fappiano. She chose him again in a live lineup containing Fappiano and police officers serving as “fillers.”
On the same day, her husband viewed a live lineup and selected one of the “fillers.” The victim was taken to the hospital and a rape kit was collected. The vaginal smears and swabs tested positive for the presence of semen. The victim’s white jogging pants that she had put on after the assault also tested positive for semen in the crotch area.
Police also collected a towel containing semen stains, cigarette butts, and a beer bottle from the victim’s apartment. The Office of the Chief Medical Examiner (OCME) performed serology on the semen-stained towel and cigarettes. Fappiano was type O and the victim’s husband was type A.
These items had type A antigens on them. The jogging pants and rape kit could not be tested at the time of trial due to technological limitations. Fappiano was tried twice for this crime. The jury could not reach a verdict in his 1984 trial. He was tried again in 1985 and convicted of rape, sodomy, burglary, and sexual abuse.
The court sentenced him to 20 – 50 years in prison. In 1989, Fappiano was granted post conviction DNA testing of the semen-stained sweatpants. The District Attorney sent the evidence to LifeCodes, a private DNA laboratory. LifeCodes detected spermatozoa on the sweatpants, but no results were obtained. The sweatpants and rape kit were sent back to the District Attorney’s Office. In 2003, The Innocence Project began representing Fappiano.
A two-year search at the Office of the District Attorney and NYPD storage facilities did not turn up any evidence. In August 2005, however, Orchid Cellmark notified the Innocence Project that they had inherited materials from LifeCodes. Cellmark had two tubes of DNA extract from the sweatpants that corresponded to Fappiano’s case number. This evidence was transferred to the Office of the Chief Medical Examiner in New York. In 2006, the OCME performed multiple rounds of DNA testing over the course of the summer. They first determined that there was DNA from one male and one female in the sample.
They then excluded Fappiano and the victim’s husband from the male portion. Lastly, the OCME confirmed that the victim was the contributor of the female portion of the extract from the sweatpants, establishing that the evidence had indeed come from the same crime and proving that Fappiano could not have been the perpetrator. On October 6, 2006, Scott Fappiano’s convictions were vacated and he was released after serving 21 years in prison. He was greeted in the courthouse by his family.
Fappiano also mentioned the particular difficulties he had in prison as a result of being incarcerated for a sex offense. He mentioned that he had been beaten up various times, including an incident in which he had been hit with a metal pipe. He added that because the crime he was wrongfully convicted of involved a police officer’s wife, the correctional officers, who were supposed to provide security, instead were hostile to him. Thus he had to beware of both the guards and the prisoners.
At the time of his wrongful conviction, Fappiano was living in Bensonhurst, Brooklyn, and was attending St. John’s University, majoring in law. Fappiano mentioned that he and Barry Gibbs knew each other from prison. Speaking of his life today, Fappiano mentioned that he considered himself to be fortunate, unlike Barry Gibbs, because he had a lot of support from family and others. He said that he was now living with his mother, in the same house he grew up in and in the same bedroom, and that he had the same girlfriend that he used to have before he was wrongfully convicted. She now had two kids by a previous marriage, and as it happened she had broken up with her husband two months before his conviction was overturned. He said he regarded that as sign that they were meant to be together.
He stated that, unlike Barry Gibbs, he was not bitter. Backing that up, he had a smile on his face as he spoke and his personality, that of a likable, funny person, clearly radiated through, despite his frequent use of the F-word.
Throughout his presentation, he commented on the absurdity of different parts of his case and laughed at the prosecution arguing absurdities both at his trial and during the post conviction process, in an attempt to win no matter what. For example, he referenced the prosecution continuing the case against him rather than dismissing the indictment, because, as previously mentioned, his blood type did not match that left at the crime scene, and her police officer husband selected a filler out of the police lineup.
As Fappiano saw it, he thought that the police officer’s selection should have been given more weight since he had police training, and that this went to the matter of the accuracy of the victim’s identification. Taking that theme a bit further, he said that at the conclusion of his first trial which ended in a mistrial, the jury was polled and the count was 11-1 for acquittal. Nonetheless, despite all of the above, a determined prosecution retried him anyway, rather than dropping the case.
Another example that he felt was crazy was the prosecution insisting that the DNA found on a towel at the crime scene had to be tested to prove that it did not come from a consensual sexual encounter between the victim and her husband three days earlier. “Who has marital relations, ejaculates, then saves it on a towel for three days?” The crowd burst into laughter at that one.
At the conclusion of his presentation, Pullara called me up to make a few closing remarks. I began by pointing out that when exonerees speak about their stories, based upon my own experience, as well as conversations I’ve had with others, it seems we do it in order to raise public awareness about wrongful convictions, with the hope that this will inspire people to urge their representatives to pass legislative changes, and also as a way of trying to make a difference. But the price that we pay is that we relive what happened to us: including being arrested, falsely convicted, the horrors of prison, missing our families and significant events that occur throughout the natural course of a life cycle i.e. births, weddings, deaths etc.
I thanked Gibbs and Fappiano for sharing their stories. I then stated that most politicians do not pass legislation because it is the right thing to do morally, but instead they do so when the passage or non-passage of legislation is linked to votes and getting re-elected. Therefore, I said it was important that they call, email, and visit their representatives and insist that they pass legislation making the criminal justice system more accountable.
I have a variety of thoughts about this event. I have listened to many exonerees, including Alan Newton, Yusef Salaam, and Gary Beeman. But, this lecture was different in a variety of ways. Firstly, Fappiano said the F-word a lot. I had never witnessed that before. My sense was that the audience was giving him a pass because he had been incarcerated wrongfully for 21 years. I thought that his speech jumped around a bit, going from his case to jail and then back to his case, rather than being more sequential. Of course, I realize that he had not given many presentations and had not received training.
Gibbs didn’t give a clear, easy-to-follow picture of how he was wrongfully convicted although obviously he was—it jumped around as well. Of course, simply knowing about one’s case doesn’t mean that upon release the exonerated person is ready to be a member of a speaker’s bureau.
In terms of his being bitter, his present life circumstances, along with serving the 19 years wrongfully, certainly make that understandable. And, I recognize his right to feel that way. Yet I would like to see him enjoy the rest of his life rather than being bitter and unhappy, because he is a likable person despite that bitterness.
I believe that being released with nothing and having to struggle financially, while waiting years for lawsuits to wend their way through the legal system, is criminal, in and of itself. Money should be provided independent of what is awarded as a result of any lawsuit, simply by way of assisting the exonerated person to get back on their feet and get on with their life.
The fact that that isn’t how the system is set up is criminal and speaks volumes to the current lack of commitment to justice and equality in the criminal justice system, as does the fact that most states, including New York, still haven’t passed reforms to both criminalize prosecutorial misconduct and to make the system more accountable to prevent wrongful convictions.
Jeffrey Deskovic, Esq, MA, is an internationally recognized wrongful conviction expert and founder of The Jeffrey Deskovic Foundation for Justice, which has freed 9 wrongfully convicted people and helped pass 3 laws aimed at preventing wrongful conviction. Jeff is an advisory board member of It Could Happen To You, which has chapters in CA, NY, and PA. He serves on the Global Advisory Council for Restorative Justice International, and is a sometimes co-host and co-producer of the show, “360 Degrees of Success.” Jeff was exonerated after 16 years in prison-from age 17-32- before DNA exonerated him and identified the actual perpetrator. A short documentary about his life is entitled “Conviction“, and episode 1 of his story in Virtual Reality is called, “Once Upon A Time In Peekskill“. Jeff has a Masters Degree from the John Jay College of Criminal Justice, with his thesis written on wrongful conviction causes and reforms needed to address them, and a law degree from the Elisabeth Haub School of Law at Pace University. Jeff is now a practicing attorney.
