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Lawyers and judges joust over defendant’s hair

A Charlotte man, who spent 12 years in prison on a conviction later thrown out by his prosecutors, has asked a federal appeals court to resurrect his $10 million lawsuit against police officers he accuses of faking key evidence.

Shawn Massey filed suit on constitutional grounds in 2011, claiming he was wrongfully arrested, convicted and imprisoned based largely on the misconduct of Charlotte-Mecklenburg police officers J.J. Ojaniit, Gerald Esposito, Tom Ledford and unnamed others.

A year ago, U.S. District Judge Bob Conrad threw out the case. His reasoning: Even if the officers had used the phony evidence described in the suit – which the officers deny – they still had ample “probable cause” to arrest Massey in 1998.

Massey was convicted that year of kidnapping, assault with a deadly weapon and breaking and entering. He was sentenced to 14 years in prison.

He was released in 2010, the charges and conviction erased. Then-Mecklenburg District Attorney Peter Gilchrist said his office erred in not letting Massey’s lawyers know that, before the trial, the victim in the case had expressed temporary doubts that it was Massey who had attacked her.

Last week, Massey’s attorney, Duke University law professor James Coleman, asked a three-judge panel of the Fourth District U.S. Court of Appeals to restore Massey’s lawsuit against police and help right a longstanding miscarriage of justice.

Coleman, a Charlotte native, heads the law school’s Wrongful Conviction Clinic, which worked for four years trying to get Massey out of jail. He told the judges that police fabricated the essential piece of evidence against his client.

And it had to do with Massey’s hair.

Cornrows and braids

On May 22, 1998, a man with a gun was waiting at the front door of a 21-year-old woman’s apartment. She had her baby in her arms and a toddler daughter by the hand. The man pointed his gun at her 18-month-old daughter, and told the family to go inside.

During the next 30 minutes, the victim told authorities, the man tried to rape her. He then threatened her kids unless she gave him money. He left with $60 from her purse.

The victim said her attacker wore his hair pulled back from his face, with braids on the back of his head.

Esposito, who recently retired from CMPD, said a woman who lived in a nearby apartment said Massey had slept over the night before the attack, according to court records.

More significantly, the officer said the woman told him Massey wore his hair the same way as the victim’s attacker. Massey was arrested a week after the crime.

During his trial, the woman denied ever making that statement, saying Massey kept his hair short.

Coleman focused on that contradiction last week in his oral arguments before Appeals Court judges Diana Motz, Robert King and Stephanie Thacker. And he accused Esposito of falsifying the witness’s descriptions of Massey’s hair to improve his case. (Esposito’s attorney, Jim Cooney of Charlotte, says the officers deny any wrongdoing.)

In 2009, the victim was interviewed by Duke law students working on Massey’s release and she told them that her attacker had “cornrows,” a traditional black design in which hair is pulled into tightly braided lines close to the scalp.

Coleman alluded to a photo taken of Massey two months before the crime, showing him with short hair. Sworn statements from two barbers, Coleman said, proved Massey did not have enough time to grow his hair long enough for cornrows or the loosely hanging braids that the victim first described on her attacker.

In short, all the key identifications that tied Massey to the crime were predicated on an inaccurate description of his hair, Coleman told the judges.

“It’s the only issue in the case,” he said. “Without it, the other evidence doesn’t matter.”

The judges waded in, particularly Motz, who interrupted Coleman on several occasions to press him on the facts of his argument and relevant law.

When Coleman interrupted her back, she responded pointedly, “I would think you would be interested in what I have to say so you could respond.”

During another exchange, King admitted he didn’t understand the difference between cornrows and braids.

“That’s important to know,” Coleman replied.

Plenty of ‘probably cause’

During his presentation, Cooney told the judges that the case against Massey swung on much more than just the length of his hair.

Witnesses at the apartments placed Massey there at the time of the crime, despite his alibi that he was working miles away.

The victim, though she expressed doubts before the trial over whether she would recognize Massey as her attacker, identified him in court by his appearance and his voice, Cooney said.

“This was a man who was with her for 30 minutes, threatening her, threatening her children, trying to rape her and then robbing her. She made a valid, in-court identification.”

He argued that the judge in Massey’s trial told the jury to give limited weight to Esposito’s testimony about the description of Massey’s hair.

Not that it was essential to the case against Massey to begin with, Cooney said.

“It’s not DNA,” he said. “Back when I had hair I could change it ... I can’t do that with DNA.”

The judges’ decision is expected later this year.

Gordon: 704-358-5095
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