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Freckles, FBI Reports Spark “Innocent” Claim
by Paul Bass | Dec 6, 2012 5:15 pm
Posted to: Legal Writes
Tom Ullmann invoked two words to claim that his client didn’t shoot popular vegan cycling enthusiast and musician Mitchell Dubey in a botched Newhallville robbery: “Freckles” and “FBI.”
Ullmann invoked those words Wednesday as the murder case against his client, Tashaun Fair, was continued until Jan. 22. Fair has pleaded not guilty.
His client is not only not guilty beyond a reasonable doubt, contended Ullmann, New Haven’s chief public defender. “I think my guy is innocent.”
And, Ullmann continued, he believes the witness at the heart of the state’s case may have been the shooter. Ullmann cited confidential FBI reports quoting a person who claims the witness fessed up to committing the crime. And Ullmann cited a physical description that could never match Fair’s.
“It’s such a slender thread they have hanging on this case, that it’s embarrassing that they made the arrest. Whatever name they latched on to, they ran it to the exclusion of everything else,” Ullmann declared.
The state, meanwhile, stands by the police investigation that led to Fair’s arrest in the case.
Prosecutor John P. Doyle invoked the same word—freckles—to argue that in fact the witness couldn’t have committed the murder. He praised the thoroughness of the New Haven police investigation.
Whoever committed the murder, it sent shock waves through New Haven as well as a national network of cyclists and underground musicians for its sheer random brutality.
The latest wrinkles demonstrate the difficulty of prosecuting murders, when so much information comes from tainted sources, traumatized eyewitnesses, or contradictory hearsay. Whose information do you trust, and whose do you discount? And how fine a detail from eyewitnesses should be considered crucial to pinning a murder on someone or absolving him?
The murder took place at 10 p.m. on Thursday, March 24, 2011. Mitchell Dubey, a 23-year-old mechanic at the Devil’s Gear bike shop, was at the Bassett Street home he shared with his roommates. They and some friends were seated in the dining room. A man wearing a partial face mask knocked on the door. Dubey answered. The gunman, who knew that “rich” “white” “college kids” lived in the house, had a week earlier stolen a computer from the premises, which sit in a predominantly black, low-income neighborhood. He allegedly returned to “jook” (commit a robbery or burglary) there. Surprised to find so many people home this time, he apparently panicked. He told Dubey to back up. “Dude, just put down the gun,” Dubey pleaded. The man fired a fatal bullet into Dubey’s chest instead, then fled.
Seventeen months later cops arrested Fair, who’s 19 years old. They said he was that partially masked man who fired the shot. (Click on the play arrow to watch highlights from the press conference announcing the arrest.) Fair’s family and friends have protested his innocence, placing posters on telephone poles to that effect (pictured at the top of the story). Fair remains on jail on $2 million bond. He had an appearance scheduled Wednesday on the sixth floor at the Church Street Superior Court building. Instead the case was continued seven weeks while the state provides more evidence, including audio recordings, to the defense.
The case rests largely on a witness not to the shooting, but to the scene.
The witness, an alleged member of Newhallville’s R2 gang, told police he had accompanied Fair to the house for the robbery, then stood outside and heard the shot as Fair went in.
Dubey’s friends were shown a photo array that included Fair’s photo. They were unable to identify Fair as the shooter.
The Freckle Factor
They described the shooter as black and light-skinned. They also said the shooter’s face has freckles.
“That’s the first thing I looked at when I saw the kid’s [Fair’s] face. Where’s the kid’s freckles?” attorney Ullmann, the court’s chief public defender, recalled in a conversation in his office after the court continuation Wednesday.
Fair doesn’t have freckles.
When Ullmann first raised his concerns in a court hearing last month (read Randall Beach’s New Haven Register account of that hearing here), prosecutor Doyle stood by the police investigation.
Doyle noted that Fair otherwise fits the descriptions, including having light skin.
Victims and witnesses of violent crimes often present descriptions with details that prove untrue, including perpetrators’ height, clothing and detailed physical characteristics. Doyle noted that while several people in the room that night offered the freckles detail, only one person was actually close enough to the shooter to have seen them. The witnesses in the house caught only a fleeting glimpse of the shooter, who ran away moments after entering and firing off the fatal shot.
Doyle also noted that someone else doesn’t have freckles: The witness, the alleged lookout, the man upon whose testimony the state’s case largely rests. The man Tom Ullmann said he believes could have just as likely committed the murder. That witness, in fact, has dark skin.
The FBI Factor
Ullmann based his argument on two documents not included in Tashaun Fair’s public court file: memoranda the FBI forwarded to the police. Those memoranda report on a conversation between FBI agents and a source. That source names a person who allegedly told him that Mitchell Dubey’s killer confessed the crime to him. That alleged killer turned out to be ... the witness on whom the Fair prosecution largely rests.
According to this report, this witness was the one who had burglarized Dubey’s home the week before the murder. He then allegedly returned for more and ending up shooting Dubey instead.
The witness’s contrary account to police, naming Fair as the shooting, “is the entire case against Fair. There is nothing else,” Ullmann argued. He noted that no witnesses from among Dubey’s friends ever identified Fair’s picture. No weapon was recovered. No other witnesses are mentioned as implicating Fair.
In court, Ullmann was critical of the police for not mentioning the FBI reports in the arrest warrant application.
That document does include exculpatory evidence casting doubt on Fair’s culpability. It mentions the problematic freckles. It refers to an interview cops did with a jail inmate; that inmate who quoted the witness as saying the shooting of “the Bassett Street ‘White Dude’ was his work.’” That inmate picked the witness on a photo board and gave police a taped statement, according to the warrant.
The document also shows that the witness changed his story to the police over time.
Police initially interviewed the witness—who is identified in the warrant as being “known to burglarize houses” and not matching Dubey’s friends’ descriptions of the shooter—in jail in 2011. He “at first denied any knowledge of the incident,” according to the warrant affidavit, written by Detective Wayne Bullock. Then the witness reported having had a conversation with Fair in which Fair allegedly admitted going to the Bassett Street house to “do a ‘Jooks’” and then firing the fatal shot after getting “scared” upon encountering so many people in the house. But the witness did not place himself at the scene.
Fast forward to April 2012. Detectives reported meeting another inmate who told them about his own conversation with the witness. The witness had allegedly told this inmate that he had accompanied Fair to the Bassett Street house, stood outside in the driveway, and heard the gunshot.
So the police tracked down the witness again so they could re-interview him. They found him, arrested him for outstanding warrants, then conducted an interview at police headquarters. This time the witness told the full story that became the basis of the arrest warrant. The official story.
Why version two?
“During our interview [the witness] became emotional and told us that he finally admitted what really happened because he was about to be a father and he felt bad for the victim’s family.” Weeks after, cops arrested Fair.
Which Inconsistencies Count?
The witness’s story isn’t the only one with inconsistencies in this investigation.
Fair—whom police had identified early on in the investigation as a prime suspect—himself denied committing the murder. He told detectives he was home in his bedroom at the time of the murder playing video games. At one point his mother came into the room to ask he’d heard gunshots, according to the warrant.
Detectives separately interviewed Fair’s mother. She too said Fair was home at the time of the murder. But she didn’t tell them that she had gone into his room after hearing the gunshot. Rather, she said, “Tashaun came into her room and asked what was going on.”
Police noted that inconsistency as significant enough to cast doubt on Fair’s alibi.
Defense attorney Ullmann called that detail insignificant, especially compared to other inconsistencies in the case: “It’s a minuscule inconsistency, if it’s one at all.”
Prosecutor Doyle argued that another fact cited in the warrant buttresses the veracity of the witness’s tale. The witness describes how Fair told him that when he entered the house, he was surprised to see a woman on the stairway. The police had never publicly disclosed that fact. So only someone with genuine knowledge of the incident would cite that detail, in Doyle’s view.
Ullmann argued that the witness might have known the information because he may have been the shooter. “One theory is that he gave that information because he knows, because he was inside.”
In any case, Ullmann argued, none of the other reports and statements in the case (which have not been released to the public) placed the woman “on the steps,” anyway.
Fair faces charges of felony murder, home invasion, robbery, carrying a pistol without a permit, and first-degree reckless endangerment. He probably won’t go on trial until well into 2013.
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This case reminds me somewhat of the murder of Yale student Christian Prince 20 years ago. If I remember correctly, the two ne’er do wells involved in that killing refused to rat on one another. Without any other evidence, the jury had to acquit one of the ne’er do wells of the murder charge; but he was convicted of attempted robbery.
Even though Mr. Fair is no Boy Scout, there isn’t enough evidence right now to gain a conviction against him. The “stop snitching” mentality of hip hop will be his salvation from prison. Either Fair or “the witness” did the killing. How is a jury supposed to decide?