On August 28, 1992, a Black man entered the basement apartment of a 20-year-old Rutgers University student in New Brunswick, New Jersey. The man claimed he was wanted for murder and needed money to get to New York. He stole $40 and credit cards from the woman’s purse, then forced her into the kitchen, raped her, and fled.
The victim called the police and described her assailant and his clothing. She was taken to a hospital, where a rape kit was taken.
The following day, she was shown numerous police mugshot photographs, including one of 29-year-old McKinley Cromedy, but she could not identify anyone as her assailant.
On April 7, 1993, almost eight months later, the victim saw Cromedy on the street and believed he was her attacker. She called police and within 15 minutes, she viewed Cromedy in a one-on-one show-up and identified him as her attacker.
Saliva and blood samples were taken from Cromedy for analysis. On April 8, 1993, he was charged with aggravated sexual assault, burglary, robbery, terroristic threats and criminal sexual contact.
In July 1994, Cromedy went to trial in Middlesex County Superior Court. The victim testified that she remembered the distinctive walk of her attacker, which she called a “swagger.” A detective testified that he was familiar with Cromedy from prior arrests and that Cromedy had a distinctive gait.
No forensic evidence linking Cromedy to the crime was presented. He was excluded as the source of fingerprints lifted in the victim’s apartment. Hair samples recovered from the victim were determined to be neither the victim's nor Cromedy’s. Blood samples showed that Cromedy was a non-secretor, which meant that his blood type could not be determined by serological testing of the rape kit.
The defense noted that the victim had never mentioned anything about her attacker’s gait until after she saw Cromedy on the street. When the defense noted that Cromedy had been excluded from fingerprints lifted at the scene, the prosecution countered by saying that as many as 10 people lived in the building and had access to the area where the prints were found.
The defense did not seek DNA testing.
The defense proposed that the judge give the jury an instruction that said, in part: “ You may consider, if you think it is appropriate to do so, whether the cross-racial nature of the identification has affected the accuracy of the witness's original perception and/or accuracy of a subsequent identification.” That judge declined to do so.
On August 1, 1994, the jury convicted Cromedy of aggravated sexual assault, second-degree robbery, third-degree burglary, third-degree aggravated criminal sexual contact, and third-degree terroristic threats. He was sentenced to 60 years in prison.
On appeal, Cromedy’s defense attorney focused on the cross-racial identification, arguing that the trial judge had erroneously declined to instruct the jury on the permissibility of treating cross-racial identifications as less trustworthy than same-race identifications.
In 1998, in a split decision, the New Jersey Appellate Division rejected that argument and upheld Cromedy’s convictions. Appellate Division Judge James Shebell dissented, referring to findings by a state task force on minority issues.
Judge Shebell declared, “A jury instruction that contains no direct reference to the hidden fires of prejudice and bias which may be stoked by an incident such as the sexual assault in question and fails to call the jury’s attention to the problems of cross-racial identification, so well documented by the [New Jersey Supreme Court Task Force on Minority Concerns], denies minority defendants, such as McKinley Cromedy , their constitutional right to a fair trial.”
Cromedy then appealed to the New Jersey Supreme Court. On April 14, 1999, the court vacated Cromedy's conviction and granted a new trial. In a unanimous opinion, the court held for the first time in New Jersey that a cross-racial instruction should be given “when, as in this present case, identification is a critical issue in the case and eyewitness’[‘s] cross-racial identification is not corroborated by other evidence giving it independent reliability.”
The court noted that the need for the instruction was readily apparent. “ Indeed, some courtroom observers have commented that the ordinary person's difficulty of cross-racial recognition is so commonplace as to be the subject of both cliché and joke: ‘they all look alike,’” the court wrote.
Prior to a retrial, the prosecution agreed to DNA testing. The tests were conducted by the New Jersey State Police crime laboratory. On December 8, 1999, the testing excluded Cromedy. On December 14, 1999, the convictions were vacated and Cromedy was released. On December 20, 1999, the prosecution dismissed the charges.
Cromedy sought compensation from the state of New Jersey and in 2002, he was awarded $133,800.
– Maurice Possley
Posting Date: 08-29-2011
Last Update Date: 08-01-2018
