.jpg) Malcolm Alexander (left) and his son, Malcolm Stewart with Vanessa Potkin(left), Innocence Project, and Emily Maw, Innocence Project New Orleans (Advocate photo: Matthew Hinton) At about 11:30 a.m. on November 8, 1979, a black man walked into a newly opened antique store in Gretna, Louisiana. The owner, B.N., a 39-year-old white woman, became suspicious. She attempted to direct him to furniture outside, but as she walked to the front door, he grabbed her from behind and clubbed her in the head with a handgun. He then forced her into a bathroom at the rear of the shop and raped her at gunpoint. After he raped her, he led her to the telephone, which had been ringing throughout the attack. As he held her in a chokehold and threatened to shoot her, B.N. completed the call without alerting the caller. The attacker then forced her back into the bathroom and raped her again. The attacker ordered her not to move and fled. B.N. used a towel to clean herself and called police. Police found three pubic hairs on the floor of the bathroom and also took the towel into evidence. B.N. said the attacker was black with a medium complexion, in his early 20s, about six feet tall, and 165-170 pounds. She said he was wearing blue jeans, a dark windbreaker, and a navy blue watch cap. B.N. said that he rode up to the store on a dark orange 10-speed English racing bike. Police broadcast the description and 10 minutes later, police stopped a black man with his jeans unzipped riding an orange 10-speed bicycle. The man was brought to the outside of antique store, and B.N. stood inside and viewed him through the front window. She said the man was not her attacker. B.N. was then taken to a hospital where a rape kit was taken.
On November 30, 1979, B.N. saw a man she thought might be her attacker. When police investigated him, they learned he worked at Superior Pontiac, a car dealership. The man's fellow employees said he was a hard worker and was not the type of person to commit a sexual assault. On December 18, 1979, police showed B.N. a photographic lineup, which included the man from Superior Pontiac, but she did not identify anyone as her attacker.
In February 1980, police arrested 20-year-old Malcolm Alexander after a woman accused him of sexual assaulting her. Alexander, who is black, told police the sex occurred after he gave the woman money and that it was consensual. Alexander was not charged in that incident, but a detective believed that he fit B.N.’s description of her attacker, even though he was only 5 feet 9 inches tall. On March 24, 1980, Jefferson Parish Sheriff’s Department Detective O’Neil De Noux Jr. asked B.N. to view another photographic lineup that included Alexander’s photo. De Noux’s report said that B.N. identified Alexander, but that her identification was “tentative.” Three days later, on March 27, B.N. viewed a live lineup that included Alexander. He was the only person who was in both lineups—a procedure considered to be improper and suggestive because a person can subconsciously convert the memory of seeing a person in the first lineup into a memory of that person being the perpetrator. Detective De Noux was not present because he was in court, so Detective Marco Nuzzolillo conducted the lineup. Nuzzolillo checked off the box “possible” in his report and next to it wrote “tentative.” Three hours after the live lineup, De Noux returned from court and interviewed B.N. privately. When he emerged, he reported that B.N. now said she was more than 98 percent sure that Alexander was her attacker. Alexander was arrested and charged with aggravated rape. He went to trial on November 5, 1980. The entire trial—from selection of the jury until the jury’s announcement that they found Alexander guilty—lasted one day. The entire trial transcript was only 87 pages long, and his lawyer, Joseph Tosh, did virtually nothing to defend him. It wasn’t the first or last time Tosh would fail a client—in 1999 he was disbarred based on more than 50 incidents where he took fees and did little or—frequently—nothing at all and refused to refund the money. Despite the existence of a rape kit and the towel, both of which contained semen, and the three hairs found on the floor where B.N. was raped, no forensic tests were performed. Neither the prosecutor nor the defense requested any testing on the evidence.
Even though his report of the March 24, 1980 photographic lineup said that B.N.’s identification of Alexander was “tentative,” De Noux told the jury that B.N. “without hesitation identified the photograph of Malcolm Alexander as the man who perpetrated the rape on her.”
Detective Nuzzolillo, who had conducted the March 27, 1980 live lineup and filled out the report marked “possible” and “tentative,” testified simply that B.N. identified Alexander. The prosecution failed to correct the detectives’ testimony or elicit any testimony regarding the police reports listing the identifications as “tentative.” Alexander’s attorney never asked any questions on cross-examination about those descriptions. Years later, attorneys for Alexander would be unable to determine whether the prosecution withheld the reports documenting the identifications as “tentative,” or if Alexander’s attorney had the reports but was so incompetent that he failed to realize their significance. B.N. testified and identified Alexander as her attacker. Again, no mention was made that her identifications had been labeled as “tentative.” Tosh presented no defense witnesses and never investigated whether Alexander, who had a steady job with a contractor at the time of the rape, had a viable alibi. Tosh made no opening statement to the jury and his closing argument took up just four pages of the trial transcript. The jury was sent out to deliberate at 5:20 p.m. By 6:16 p.m.—just 56 minutes later—they had voted to convict Alexander, returned to announce the verdict, and been dismissed. The judge sentenced Alexander to life in prison without parole. Tosh assured Alexander and his family that he would file an appeal, but he never did. When family members ultimately discovered that no appeal had been filed, they sought the help of another lawyer. That lawyer was granted permission to file an appeal although the filing deadline had lapsed. The appeal, however, was denied by the Louisiana Court of Appeal. In 1996, after reading a news article about DNA testing, Alexander asked the Innocence Project in New York for help. However, a search for the physical evidence was unsuccessful—court officials informed the Innocence Project that the evidence had been inadvertently destroyed in 1984 during a mass destruction of several hundred boxes of evidence from closed cases. A deputy clerk attributed the destruction to “human error, which should not have happened.” The Innocence Project closed the case but Alexander forged on. In 2004, after Louisiana enacted a post-conviction DNA testing law, he filed a motion for testing, hoping it would spark further searches for evidence. He also filed a federal petition for a writ of habeas corpus. In 2013, his efforts were rewarded when the Jefferson Parish Sheriff’s Department crime laboratory discovered the hairs that were recovered from the bathroom floor where B.N. was raped. The Innocence Project and the prosecution agreed to DNA testing on the hairs in 2015, and testing was performed in 2016. The tests showed that all three came from the same person. Alexander was excluded as the source of the hairs.
In 2017, the Innocence Project, joined by Innocence Project New Orleans, filed a motion seeking to vacate Alexander’s conviction, citing the DNA evidence as well as the failure of Alexander’s trial defense attorney to provide an adequate legal defense. “The most reasonable conclusion is that the hairs originate from the man who repeatedly raped B.N. from behind, on the floor in the very location where these hairs were collected,” the petition said.
On January 30, 2018, Alexander’s conviction was vacated. Judge June Berry Darensburg dismissed the charge and ordered Alexander released after spending nearly 38 years in prison. Innocence Project lawyers Barry Scheck and Vanessa Potkin expressed gratitude to the prosecution and the Jefferson Parish Sheriff’s Department. “The DA’s Office and the Sheriff’s Office were very cooperative in trying to see what happened,” Scheck said. “We’re very appreciative of this.” Orleans Parish District Attorney Paul Connick Jr., said, “After an extensive investigation during the past two and a half years, I agreed with Mr. Alexander's post-conviction attorneys that the defense attorney during the daylong trial 37 years ago provided ineffective representation in violation of his constitutional rights.” In May 2019, Alexander filed a claim for compensation from the state of Louisiana. A judge in Jefferson Parish rejected his claim in July 2021, ruling that Alexander had not provided clear and convincing proof of his factual innocence. Alexander appealed. On June 21, 2023, a five-judge panel in Louisiana's Fifth Circuit Court of Appeal ruled 4-1 that the judge used an erroneous standard in evaluating Alexander's claim and directed the trial court to award Alexander compensation. He was subsequently awarded $480,000.
– Maurice Possley
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