Appellate court reverses Queens robbery conviction, finding judge acted as prosecutor
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The Queens Criminal Courthouse on Queens Boulevard in Jamaica. Eagle photo by David Brand
By David Brand
A state appellate court has reversed a Queens man’s 2018 robbery conviction, ruling that the trial judge acted as “an advocate” for the prosecution when he repeatedly questioned two uncertain witnesses until they identified the defendant in the courtroom.
Brian Mitchell was convicted of first-degree robbery, weapons possession and other charges after prosecutors said he entered a Jamaica nail salon and stole a purse on Aug. 1, 2016. The suspect was described as a 5 foot 3 inch man between age 30 and 40 who ran south out of the store. Mitchell is 5 foot 7 and was 57 at the time of the robbery, but he was apprehended with the purse north of the store. He told police he found the bag on the ground, according to court documents.
Several officers brought Mitchell to the 160th Street salon, where two women identified him as the suspect.
At jury trial, however, the same two women were initially unable to identify Mitchell as the man who robbed them during questioning by a Queens prosecutor.
In a standard bit of courtroom drama, the assistant district attorney asked the first witness if she could identify the suspect who robbed the nail salon. Mitchell was sitting in the courtroom before her.
“I think so,” she said, according to court documents.
“You’re not sure?” Buchter asked. “No,” the woman responded.
After the prosecution rested, Buchter continued questioning the witness until she identified Mitchell.
When the second witness took the stand, Buchter participated in the questioning along with the prosecutor.
“No, I don’t recognize anybody,” the second woman said, when asked by the prosecutor if she could identify Mitchell as the suspect. Buchter followed up nine times until the woman identified Mitchell.
The appellate judges ruled June 24 that Buchter denied Mitchell his right to a fair trial when he acted on behalf of the prosecution by repeatedly questioning the uncertain witnesses until they identified Mitchell.
“The record demonstrates that after the two complainants, in response to questions by the prosecutor, were unable to positively identify the defendant as the perpetrator of the robbery, the Supreme Court improperly assumed the appearance or the function of an advocate by questioning the complainants until it elicited a positive in-court identification of the defendant from each of them,” the four appellate judges wrote in a unanimous decision.
“Under these circumstances, the court's decision to elicit such testimony was an improper exercise of discretion and deprived the defendant of a fair trial,” they continued.
Mitchell now faces a new trial for the 2016 robbery. The Queens District Attorney’s office did not respond to an email seeking information on how they plan to proceed.
An Office of Court Administration spokesperson acknowledged the appellate decision. “Their opinion, as the criminal justice system is designed, supersedes that of the trial judge,” he said.
Denise Fabiano, a Legal Society Appeals Bureau attorney representing Mitchell, said Buchter’s behavior on behalf of the prosecution “grossly distorts the fairness of our judicial process.”
“We are grateful that the Second Department recognized this fundamental unfairness and ruled to rectify this miscarriage of justice,” Fabiano said.
