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New appeal filed in Charlotte wrongful conviction case

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- 2010 (RALEIGH) NEWS & OBSERVER FILE PHOTO
Shawn Massey is seen with attorney and Duke law professor James Coleman shortly after Massey’s release from prison.

The legal fight between Shawn Massey and the Charlotte-Mecklenburg Police Department continues to drag on – 16 years after his arrest and more than four years after he was released from prison and his charges dropped.

Late last month, a federal appeals court sided with three police officers accused in Massey’s lawsuit of fabricating evidence that helped put the Charlotte man behind bars for 12 years.

The three-judge Fourth Circuit panel in Richmond, Va., ruled unanimously that even if Charlotte-Mecklenburg police officers J.J. Ojaniit, Gerald Esposito and Tom Ledford had falsified part of the case against Massey – which the officers deny – they still had adequate grounds to arrest him.

Nor, the judges said, can Massey prove conclusively that his later conviction hung solely on the disputed information – a requirement of cases involving alleged violations of constitutional rights.

But in an appeal filed this week, Duke law professor and Charlotte native James Coleman described the panel’s decision as “a miscarriage of justice” and called for Massey’s case to be heard by all the Fourth Circuit judges.

Once again, Coleman claimed that at least two of the police officers made up evidence that was essential to Massey’s arrest and conviction. He wants the full appeals court to clear the way for his client’s $10 million wrongful-conviction lawsuit against Ojaniit and Esposito to go before a jury.

In 2012, U.S. District Judge Robert Conrad of Charlotte threw out the suit. Massey has since dropped his claims against the third officer, Ledford.

Charlotte attorney Jim Cooney, who represents the police officers, declined to comment on the case.

Identifying a suspect

In 1999, Massey was convicted of kidnapping, assault and other charges and was sentenced to 14 years in prison.

A decade later, investigators from Duke Law School, who worked on Massey’s case for four years, uncovered evidence that they said proved Massey’s innocence.

He was released in 2010, and his conviction was 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 expressed temporary doubts that Massey had attacked her. However, he did not say Massey was innocent.

Massey sued the officers and unnamed others in 2011, accusing them of violating his constitutional rights and of trumping up key evidence.

Central to his argument is how he wore his hair.

On May 22, 1998, a 21-year-old Charlotte woman said she was surprised at the door of her apartment by an armed man. She said her assailant tried to rape her, threatened to kill her two young children, and then stole $60 from her purse.

She told police he wore his hair pulled back from his face, with braids on the back of his head.

Esposito, now retired from CMPD, reported that a friend of Massey’s who lived nearby said the suspect had slept in her apartment the night before the attack and wore his hair the same way as the victim’s assailant.

During the trial, the woman denied ever making that statement, saying Massey always kept his hair short. In interviews with Duke investigators that took place a decade after Massey’s conviction, the victim said her attacker wore “cornrows,” a traditional African-American hairstyle in which the hair is pulled into lines of tight braids.

Massey’s legal team from Duke, including Coleman, said photos taken of their client shortly before his arrest prove Massey’s hair was too short to have been braided.

Even so, in dismissing the case, Conrad ruled that officers had sufficient “probable cause” to charge Massey.

Coleman argued before the Fourth Circuit in March that the case hinged entirely on the false description of Massey’s hair.

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

Cooney, though, said the evidence included testimony from the victim and another woman that put Massey at the scene. He also cited testimony undercutting Massey’s alibi that he was at work at the time of the attack.

In its ruling, the Fourth Circuit panel unanimously agreed.

“Simply put, the central issue at trial was not whether Massey had cornrows or any other type of braids,” Judge Robert King wrote. “Rather, the prosecution’s case focused on the positive in-court identifications ... as well as testimony contradicting Massey’s alibi.”

Gordon: 704-358-5095
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