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Lessons from the Archive: The Real McCoy

Published in the January 2020 edition of Queens Bar Bulletin, Editor’s Note, by Paul E. Kerson.


People v. Cardwell and Goss, 78 N.Y. 2d 996, 575 N.Y.S. 2d 267 (1991) is a leading decision concerning severances in multi-defendant criminal cases.

The Court of Appeals stated the law on this subject as follows:

“Special factors unique to this case compel us to conclude that there should have been a severance. These factors include the conduct of the trial itself. While no one factor is dispositive in such matters, we note that in this case McCoy’s attorney took an aggressive adversarial stance against both Goss and Cardwell, in effect becoming a second prosecutor. Goss’ attorney then responded by attempting to impeach McCoy’s story with evidence of a recantation, which elicited an assertion from McCoy that the recantation had been induced by Cardwell’s threats – damaging evidence elicited not by the People, but by a codefendant…” See 78 N.Y. 2d at 998.

Westlaw indicates that People v. Cardwell and Goss has been cited in 73 cases after 1991, and mentioned in 20 law review articles, form books, legal encyclopedias and textbooks.

None of these descriptions of the case give even the remotest clue as to what happened, or why it was important, or what it all means for future generations of lawyers trying to make justice happen.

I was Johnny McCoy’s attorney in that trial, and I saved my case file all these last 36 years so I could explain all this to you, my loyal readers all this time, in the far distant future of 2020. Everything in this article is from the public record of the case. No confidential communications between Johnny McCoy and me are used here.

It all “went down” on March 21, 1983 in a high speed chase on the Van Wyck Expressway (to the extent that any travel on the Van Wyck Expressway can be called “high speed”).

A robbery and homicide had just been committed in a grocery store on Linden Blvd. The police had a lead on the car involved.

Johnny McCoy, age 40, was a Black man with white hair. He had five children, aged 19, 17, 11, 10 and 3. After he lost his job, Johnny McCoy took to supporting his family by driving his own car as a “gypsy cab”.

Note to 21st century readers: Before cell phones, Uber, Via, Lyft, and Juno, the five counties of New York City were served by yellow cabs that did not like to leave Manhattan except for airport runs. The balance of the City, including most of Queens County, depended on neighborhood car services and brave individuals who drove the streets in their own cars picking up passengers.

After weaving in and out of Van Wyck traffic and followed at “high speeds” by more than 10 police cars, Johnny McCoy pulled his 2-door 1971 red Pontiac Firebird to a stop at the gasoline station on Hillside Avenue at Queens Boulevard. He was surrounded by police cars and police officers. One officer opened the driver’s door. Johnny, hands up, said “You got me”.

Johnny McCoy was taken to the police station, where he was beaten until he “confessed”. Johnny McCoy’s family raised money. They hired private counsel. Wade, Mapp and Huntley hearings were conducted. The family ran out of money. Private counsel was discharged. On May 2, 1984, more than a year after the crime, your Editor was appointed by Justice Seymour Rotker of the Queens County Supreme Court, Part C-1, to represent

Johnny McCoy as his public defender under Article 18-B of the County Law. Johnny McCoy was never able to make bail. He was caught red handed in a high speed chase. There was a confession right after the crime occurred. There was a plea offer involving a sentence of 8 and 1/3 to 25 years imprisonment.

None of this looked right to me. Cardwell was 27 years old. Goss was 31 years old. Neither was supporting any children or had any gainful employment. Both were in the back seat of the Pontiac when McCoy was surrounded by police officers in the gasoline station.

More to the point, two pistols were found in the back seat of the Pontiac. No gun was found in the front seat. The only logical conclusion: Goss and Cardwell committed the robbery and homicide, hailed a gypsy cab driven by Johnny McCoy, and directed him, AT GUNPOINT to speed away from the crime scene onto the Van Wyck.

The Assistant District Attorney would not listen to me about this, no matter how hard I tried to persuade him that this is what happened. But how could I possibly convince any jury that a gypsy cab driver would use a two door car? All gypsy cabs had four doors. No one ever heard of a gypsy cab with only two doors. So there is was: A human life, the father of five dependent children, depended on me to convince a jury that a two door car could be a gypsy cab. How to do such a thing? The police reports, Grand Jury Minutes, Wade, Mapp and Huntley hearing transcripts were of no help. They all said – guilty, guilty, guilty. I decided I would uncover my own alternative line of evidence. I wrote to nine people who had been Johnny McCoy’s passengers on unrelated trips – trips to church on Sunday, trips to the hospital to visit sick relatives, trips to the grocery store for people who had no car, trips to pick up sick children.

Much to my surprise, all nine showed up for the six week trial. And Justice George Balbach in Part K-6 let them testify that yes, Johnny McCoy drove his 2-door 1971 red Pontiac Firebird as a gypsy cab in 1983, and that yes, they each rode in it and paid Johnny McCoy to take them to church, the hospital, the grocery store or to pick up sick children.

I very vigorously cross-examined Goss and Cardwell. I pointed my finger at them with an outstretched arm and a booming voice – “YOU committed this crime and now YOU are trying to frame Johnny McCoy for it. YOU pointed a gun at his head and forced him to drive at high speed on the Van Wyck. YOU did that, not him.”

At the joint six week trial, Johnny McCoy was acquitted on Oct. 24, 1984. Goss and Cardwell were convicted. Johnny McCoy was in jail for more than a year and a half for a crime he did not commit because he could not make bail. I walked him out of the courthouse on Queens Boulevard, a free man after that long period of completely improper incarceration. I gave him money to take the subway home to his wife and five children. In all the past 44 years of practicing law with all of you, I can count on my hand the number of times I felt the level of pride I felt that day.

LESSON:

Always be very skeptical of the other side’s evidence in both criminal and civil cases, particularly if it comes from a large corporation or government agency, such as a Police Department. Do your own investigation. Gather your own evidence. What the other side thinks is “open and shut” is rarely that. There are always many sides to every story.

And I make a special plea to Westlaw: Write to all the lawyers on every case you publish. Ask them for essays on the real story behind every case. And publish those essays under the “Secondary Source Citing References” for each case you publish. Then we, your loyal lawyer-readers, will have a much better understanding of what the law is, what it means, why it is what it is, and where it came from. I hope you will list this Queens Bar Bulletin article under your Secondary Source Citing Reference for People v. Cardwell and Goss, cited above.


Read January 2020 Bulletin

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