TRENTON >> In 1994, Time Magazine faced an onslaught of criticism and accusations of racism when it published a darkened image of O.J. Simpson’s mugshot from the Los Angeles Police Department on its front cover.
The doctored image was accompanied by the headline, “An American Tragedy,”
Quaadir Gurley
describing the circumstances that led to the once-beloved NFL running back being charged with the heinous murders of his ex-wife, Nicole Brown, and Ronald Goldman.
Unlike the Simpson image, the image of a black man on trial for murder in Mercer County did not appear to be doctored. And while it is unlikely to attract the same level of outrage, it has some legal observers drawing parallels between this murder case and the racially divisive “Trial of the Century” involving the famous former football star who is now serving time in Nevada for robbery.
The attorney for suspected killer Isiah Greene, who is on trial for the murder of high-ranking Bloods gang member Quaadir “Ace” Gurley, said the decision by Assistant Prosecutor James Scott to introduce the photograph of his client at trial could turn out to be “A Mercer County Tragedy” for prosecutors.
The photo, which The Trentonian was unable to obtain despite it being shown to jurors in court, depicts Greene asleep in a hospital bed. Greene is light-skinned but he appears darker in the photograph.
It is an important piece of evidence because a state witness said she saw a black man with a dark complexion running away after Gurley was shot in the courtyard of a Trenton housing complex in July 2013.
“In the African-American community, skin color and complexion is as an important factor in identification as hair color and eye color is in the general population,” said defense attorney Mark Fury. “[The witness] was unequivocal in her rejecting the proposition that Mr. Greene was as dark as the person she saw.”
Isiah Greene
Legal experts were split about whether there was anything unethical or wrong with Scott’s decision to introduce the photograph of Greene, which was taken in 2013 by a crime scene detective at a local hospital. Greene had been admitted to the hospital after he suffered an apparent self-inflicted gunshot wound, prosecutors said.
One unintended effect the photo could have is to introduce race in a case where it did not exist before.
The issue of the photograph could also come up at appeal if Greene is found guilty of Gurley’s murder by a jury.
“Extremely poor judgement on the part of the prosecutor,” said Bennett Gershman, a Pace University law professor who is an expert on prosecutor ethics. “It could mislead the jury. I also fault the judge who has to guard against evidence that I think it’s confusing and misleading. The prosecutor behaved foolishly to get in this photograph of the defendant.”
Judge Robert Billmeier allowed the hospital photograph of Greene into evidence and for it to be published to the jury over objections from Fury, who said it was misleading.
Fury said it was impossible to determine the reliability of the photograph, which could be impacted by lighting conditions and the fact police did not use flash when they took Greene’s portrait in a dimly lit hospital.
The photograph was shown to the panel to rebut testimony from one of the state’s witnesses, a 28-year-old woman who lived near Gurley in 2013.
She testified Wednesday that she saw a dark complected black man dressed in a white tank top, white shorts and white sneakers fleeing from the housing complex within seconds of shots ringing out outside of her door.
Fury asked the woman on cross examination to describe someone she considered dark complected. She said she considered her skin tone dark and Fury’s skin tone dark.
When Fury’s question turned to his client, the woman said she did not consider Greene to have a dark complexion.
It was a major coup for the defense. Scott looked to address the complexion issue in his cross examination of Greene Thursday morning.
The prosecutor asked questions about whether Greene, who was known to frequent a stretch of Sanhican Drive, spent significant time outside during summer 2013. Greene acknowledged the area was where he would “regulate.”
Scott then asked questions about whether Greene had gotten a tan while he was outside before showing a photograph of Greene laying in a hospital bed. He was recuperating from a gunshot wound to the shin that prosecutors believed was self-inflicted when Greene accidentally shot himself while shooting Gurley.
The prosecutor said Greene appeared “snuggled up” in the hospital bed, asked Greene if he knew he was being photographed and why he had his eyes closed.
Greene said he was not asleep when the photo was taken and that he kept his eyes closed because he didn’t like having a camera in his face.
Gerhman said if the prosecutor was trying to suggest Greene’s skin tone was darker, he “engaged in deceptive and misleading conduct” that the judge must remedy before the jury begins deliberations. The law professor said comparisons to the Simpson case were fair because of the opposing attorneys’ interjection of race into the trial.
“In both cases, you’re using race in a way that could produce a wrongful verdict,” Gershman said. “There might really be a case of mistaken identification. The skin color may be a key factor in the jury’s decision.”
Another legal expert said he did not find anything problematic with Scott’s tactics and said the onus was on Fury to convince the judge the photo of his client was unfair and should have been excluded from evidence.
“I don’t see a problem with it, and it is probably a good strategy by the prosecutor,” said J.C. Lore, a law professor at Rutgers who is an expert in criminal procedure. “If you have evidence of that, you would certainly want to put that in. You would have to have some good faith basis for believing he had a darker complexion at the time. If the prosecutor knew he didn’t have a darker complexion and was intentionally trying to mislead the jury that would be wrong.”
Lore said Fury could have presented another photo of Greene from the same time period showing he was, in fact, lighter complected if he wanted the judge to bar the photograph.
It remains to be seen how much of a factor the photograph – and its racial implications – have in closing arguments, which are slated for Friday morning. Fury did not want to tip his hand and say whether he plans to touch on race.
So far, Fury has built his defense of Greene on the premise of mistaken identity – that someone other than his client shot and killed Gurley on July 21, 2013, in the courtyard of the Donnelly Homes housing complex.
The state has countered with blood spots containing Greene’s DNA which prosecutors say link him to the murder scene.
Greene got on the stand and told jurors he was at the Donnelly Homes housing complex to try to convince a friend to take him and his friends to a Philadelphia nightclub after they had been drinking.
Prosecutors showed jurors surveillance footage from a Sanhican grocery mart that captured Greene wearing a white tank top, white cargo shorts and white sneakers the day before the shooting.
Greene has testified he put on a white T-shirt above the tank top sometime later in the day.
Gershman, the law professor, said he believed prosecutors had enough evidence without the hospital photograph to convict Greene. Now they have jeopardized that.
“The photograph is totally irrelevant,” Gershman said. “The photograph, to me, is lacking in reliability. And therefore, to me, it’s irrelevant. We don’t know what the true lighting conditions were. It might have portrayed him in a way that is totally inaccurate.”