There had been times when Dave Hammond, during two tours in Afghanistan as an army lawyer, had been called on in the middle of a battle to give the O.K. before a bomb could be dropped. That, he’d say, would “get your adrenaline pumping.” And there had been times when, as the military lawyer assigned to assist Chelsea Manning in the appeal of her conviction for disseminating classified documents, he’d been knee-deep in tense courtroom showdowns trying to keep the whistleblower out of prison.
But that sort of high-charged excitement, he’d come to believe, belonged to his past. And good riddance. He’d left the service (although he remained a major in the Army Reserve) and in 2015 had started practicing law in Syracuse, near his wife’s hometown, where they had settled to raise their family, because, as he idyllically imagined it, the time had come for “a simple, quiet life.”
But after listening to the conversation that Dan Myers, the investigator in his office, had recently recorded with Anthony Broadwater, the docility of Hammond’s new life in Syracuse had been blown to smithereens as effectively as if it had been hit by an I.E.D.
He knew, as any good lawyer would know, that despite what the celebrated author Alice Sebold had written in Lucky, her searing memoir recounting her 1981 rape as a college freshman at Syracuse University, the wrong man had been convicted. And he knew, as any good soldier would know, that he had a new mission: to exonerate Anthony Broadwater.
Hammond had started listening to the tape on July 23, the recording booming out of the speakers in his Volvo as he drove across Syracuse for a courthouse appearance. Transfixed, he was still following along, earbuds in his ears, iPhone in his pocket, as he bounded up the courthouse steps. It was only when he was rising to his feet in the courtroom, the judge taking his seat, that someone nudged him, and he hastily disconnected. But as soon as the hearing was over, he immediately turned on his phone and popped the buds back in his ears. He remained in the courthouse, sitting off in a corner by himself, just listening until the recording concluded.
And no sooner had it ended than a litany of questions began racing through his mind. Now what do I do? he asked himself. How can I right this terrible wrong?
Yet after only a few moments of thought, Hammond was pretty sure he had, if not an answer, at least a working strategy. He’d need to file a 440, a motion to vacate the Broadwater conviction. He also realized that it would be an uphill battle; courts can be as haughty as commanding officers, rarely willing to acknowledge their own mistakes. Therefore, he’d need to make his argument airtight, irrefutable facts bolstered by more irrefutable facts.
And to do this, he acknowledged, he’d need help. Someone, he intuitively suspected before he even knew all the details of the case, who would understand how to employ the objectivity of science to undermine the subjectivity of the courtroom. Immediately he focused on an attorney across town he’d worked with in the past, Melissa Swartz.
The problem was that Swartz was on maternity leave; her daughter had been born in a Cesarean delivery about five weeks earlier (just a couple of months, in fact, after the birth of his own third child). But Hammond knew there was no one in Syracuse who grasped the intricate ins and outs of criminal science like Swartz; before going off to practice law, she’d worked for years in the county D.A.’s office handling, as she’d put it, “all the science-geek stuff.”
“I got something you’ll be interested in talking about,” he texted Swartz with a deliberate vagueness; he thought a bit of mystery would be enticing. “Call if you get a second.”
And attached to the text was the Broadwater tape.
“I wanted to be a defense attorney since the fourth grade when I watched the O.J. trial,” Swartz, a stylish, animated woman in her mid-30s with a 100-kilowatt smile, would explain. “I wanted to be Johnnie Cochran.” And she was also a sucker for a good mystery.
So when Hammond sent her the tape without any further explanation, she didn’t wait long before listening. That night, while her husband slept peacefully in their bedroom, she stretched out on a couch in the nursery, headphones on, her newborn daughter curled up in her crib, and pressed Play.
At 5:21 the next morning she texted Hammond: “I’m in.”
Righting a Wrong
It was a war party.
Assembled along with Hammond in his office, overlooking the downtown rooftops on that late summer morning, were Dan Myers, the investigator, and Anthony Broadwater and his partner, Liz. Melissa Swartz remained home, for now at least, with her newborn daughter. And Timothy Mucciante, the ex-con and would-be film producer whose suspicions had started the ball rolling, would fly in from Michigan later.
The first step in the lawyers’ strategy was to get the transcript of the Broadwater trial. It would be the road map guiding their 440 motion. The problem was that, as in all sex-crime cases, it remained sealed. However, Broadwater, as a principal in the trial, could demand a copy.
So Hammond and Swartz, to make things official, later had Broadwater sign a retainer agreement; they would be his lawyers of record. Broadwater had been a little wary. He wanted to know what this was going to cost. “My goal is that you don’t pay a single dime,” Hammond sincerely explained.
And that was where Mucciante came in. He had helped set up a GoFundMe page for Broadwater (“Righting a Wrong,” it was confidently entitled) that had quickly received two anonymous $35,000 donations. Who had put up the $70,000? Mucciante claimed he didn’t know.
And while the two lawyers had by now discovered enough of Mucciante’s checkered past to give them the willies—namely, his three convictions for fraud—they’d pragmatically decided it wasn’t their problem. “We worked for Anthony,” Hammond explained. “All that mattered to us was clearing his name.” And besides, they prudently made sure their fees would be funneled through a legal-defense fund, Right Past Wrongs, that had no direct connection to Mucciante.
Yet Broadwater was still suspicious. He wanted to know why Mucciante was doing all this for him. So Mucciante told him all about his past life as a convicted felon, about his 10 years in jail. “I know what it’s like to be a second-class citizen,” Mucciante confided to Broadwater. “Only unlike you,” he added, “I was guilty.”
“Until I heard his story,” Broadwater would tell me, “I was thinking it was all bullshit. But this made sense.”
And so finally Mucciante and Myers were ready to accompany Broadwater to the courthouse to get copies of the trial transcript. But just before they headed out, Mucciante announced he had something else on his mind. “No big deal” was how he offhandedly began, Myers would remember.
Mucciante wanted everyone to sign releases for the filming of a documentary that would depict all the forthcoming events in the Broadwater case. And, he added sheepishly, he’d been told by “media lawyers” that he couldn’t pay Broadwater or any of the other participants now because that would violate “documentary ethics.” The big distributors such as Netflix, he earnestly explained, might have second thoughts.
So Broadwater signed a piece of his life away and, not for the first time, received nothing in return. And in the days that followed, Scott Rosenbaum and his team from Red Hawk Films would be diligently following Broadwater around, interviewing him and the other principals in this story for the documentary, which they had titled (perhaps redundantly) Unlucky.
Troubling Testimony
The trial transcript was only 214 pages. “I’ve read motions that are longer than that,” Hammond fumed. “It took just two days to ruin a man’s life.”
But in the brief courtroom proceeding there were two appearances that the lawyers fixed on like magnets. These were testimonies that had been the cornerstones of the prosecution’s case. Yet Hammond and Swartz hoped they could be the foundation for the “new evidence” that was legally required if the 1982 conviction was to be reversed.
The first was Alice Sebold’s unhesitant and definitive identification of Anthony Broadwater.
“Is the person who attacked you in Thorsten Park, is he in the Court today?” the assistant district attorney had asked Sebold as she sat in the witness stand.
“He is sitting next to the man with the brown tie and he has a grey three-piece suit on,” she answered.
“Let the record reflect,” the prosecutor went on, “that witness identified the Defendant.”
“I know what it’s like to be a second-class citizen,” Mucciante confided to Broadwater. “Only unlike you,” he added, “I was guilty.”
Later, in the brief non-jury trial, it would be mentioned that Sebold had not identified Broadwater at the original lineup: she had in fact picked the man standing next to him. “Both of them had approximately the same build. Their heads were the same size,” she told the court, in an attempt to explain her error. And under further questioning, Sebold added: “I was very scared, and he [the man to Broadwater’s left] was looking at me and I saw the eyes, and the way the line-up is, it is not like it is on television.... He looked at me, and I picked him.”
But in her memoir published 17 years after the trial, Sebold revealed what had happened in the aftermath of her initial misidentification. “Of course you chose the wrong one,” Gail Uebelhoer, an indignant assistant district attorney, had told her. “Madison [Broadwater’s pseudonym in the book] had his friend come down and stand next to him.” And Uebelhoer, apparently full of fury, went on to tell the teenage college sophomore: “They really worked a number on you. He uses that friend, or that friend uses him, in every lineup they do. They’re dead ringers.”
While Broadwater’s attorney, Steven Paquette, had asked that the original lineup be changed to include men who resembled his client, leading to the addition of the man Sebold had picked out, none of what Uebelhoer had told her was true.
In a sworn affidavit, Broadwater stated that the man Sebold had first identified “was not my friend. I did not know who he was, I did not know his name, and I had never met him in my life.” And as for there being a routine rolled out at “every lineup they do,” Broadwater affirmed that “I had never participated in a lineup procedure before.”
But what about Broadwater and the man Sebold picked being “dead ringers”? Swartz, who had a convivial relationship with the county’s long-serving district attorney, William Fitzpatrick, who was sworn in in 1992 (“He was my mentor,” she offered proudly), was able to get the actual 1982 lineup photos.
There is a young Broadwater, clear-eyed, broad-shouldered, stocky like a wrestler, standing next to another man on his left. They are about the same height, the same heft. “But their faces,” Hammond would say, “don’t look alike to me. Except, of course, for one thing—they’re both Black.”
Then there was the second, and no less disquieting, bit of trial testimony that had caught the lawyers’ attention. It involved the pre-DNA science the prosecution had offered to support their case. Only it wasn’t science at all.
On the stand, a police-department forensic scientist testified that “the hair recovered from the pubic combing was consistent as having come from Anthony Broadwater.” As well as, he might have mentioned, several hundred million other Black men.
But this contrivance was summarily hauled off to the dustbin of junk science when in 2015 the Department of Justice and the F.B.I. issued a joint statement. A review of hair examinations used in trials found “widespread, systematic error, grossly exaggerating the significance of microscopic hair analysis under oath.” Recent advances in DNA technology had conclusively demonstrated, the review went on to say, that “two hairs can be microscopically similar yet come from different people.”
On November 17, their argument fortified by these two new revelations—Sebold’s identification of Broadwater, which, the lawyers raged, had been influenced by “prosecutorial misconduct,” and the reliance on specious science—Hammond and Swartz filed their motion to vacate Anthony Broadwater’s conviction.
It was the first step in a legal process that could, they knew, drag on for years. But now all they could do was wait.
Both Hell and Hope
They didn’t have to wait long. Within days, William Fitzpatrick, the county D.A., responded in writing. “The people join in Mr. Broadwater’s motion to vacate his conviction.”
Before another week passed, Justice Gordon J. Cuffy of the New York State Supreme Court also agreed. He overturned Broadwater’s conviction of first-degree rape and five related charges. And he expunged from all records Broadwater’s categorization as a sex offender.
“I’m not going to sully these proceedings by saying, ‘I’m sorry,’” Fitzpatrick told the court. “That doesn’t cut it. This should never have happened.”
As for Broadwater, at the moment of his exoneration, he was, he’d say, “frightfully happy.” By that he meant, he explained to me, “I was happy but also fearful. I figured the way my life had gone, the moment I walked out on the street a meteor would fall on my head. I just couldn’t have a happy ending.”
Which leaves Alice Sebold.
“This is what I remember,” she wrote as her opening sentence in Chapter One of Lucky. And so perhaps she can use her faulty memory, the skittish recollections of a horribly victimized and traumatized teenager, as an excuse of sorts for all that followed. There are, after all, shelves of scientific studies documenting the disruptive effects trauma can have on memory. (Neither Sebold nor her representatives responded to Air Mail’s requests for comment.)
Sebold had not identified Broadwater at the original lineup: she had in fact picked the man standing next to him.
And there seems to be little doubt that she was manipulated by a vindictive prosecutor whose incendiary lies fueled Sebold’s admitted (and all too understandable) desire for vengeance on the monster who’d violated her body and upended her life.
And it would be wrong to denigrate her substantial talent, the raw, visceral power of the story she disarmingly recounted in Lucky, or the soaring writerly imagination that created a novel such as The Lovely Bones. Or to begrudge her the phenomenal success her skills have brought her, the millions of books that she has sold, the Oscar-nominated movie that was made from that novel, the small fortune she has earned by sitting at a desk and doggedly writing one good sentence after another.
And yet—
She has, as she admitted in an apologetic statement offered about eight long days after Broadwater’s exoneration, “irreparably alter[ed] a young man’s life by the very crime that altered mine.”
And she cannot run away from the fact that her identification of the wrong man was intrinsically grounded in the sad reality that to a young, scared white teenager these Black men looked very much alike: her assailant, Broadwater, and the other man in the lineup. Even Sebold appears to acknowledge the tacit racism in the conviction: “Mr. Broadwater … became another young Black man brutalized by our flawed legal system,” she wrote in her statement.
And there is no getting around the miserable likelihood that after all the sentences she has ever written, or for that matter ever will write, Sebold will be best remembered for a single sentence she wrote in Lucky depicting her mindset as she prepared to testify against her rapist: “Now I was going to murder him back.”
Only she murdered the wrong man.
And now she will forever have to live with her mistake.
“I live in a world where … both hell and hope live in the palm of my hand,” she’d written with a reassuring measure of hopefulness at the conclusion of her memoir. Only now her world must once again have turned into an unmitigated hell. As with Anthony Broadwater’s victimized life, it’s difficult to wish that cruel fate on anyone.
But what about the other characters whose lives were touched by this saga? What can they look forward to?
Hammond and Swartz are preparing to file a motion demanding restitution from New York State for the 16 and a half years Broadwater spent in jail, and for the life that lay in ruins as a result. What is such a tragedy worth in dollars and cents? Can anyone predict how a life might have been lived if a malevolent fate had not kicked it about? Regardless, a number will be typed on a page—and if the lawyers triumph in court, they too will share in the proceeds.
As for Broadwater, he’s hoping he can just get enough to purchase “a brick house, maybe a bit of land, a pond. Somewhere Liz and I can go off and live out our days in peace.”
Then there’s Myers, the private eye who tracked down Broadwater. He says, “It’s nice to have my name in the media for a good thing. Last time was for a bad thing,” he concedes. It’s clear that the car accident he’d become wrapped up in years ago when he was a cop, a story that had played out dramatically in the Syracuse press and had caused him to be reprimanded by his own department, still weighed heavily on his mind. And then, turning upbeat, he adds, “So I guess you could say this is my redemption.”
And redemption is very much on Mucciante’s mind, too. “Maybe all I did, all I went through, was to bring me to this. To this opportunity to start my life anew by helping someone.”
Or, as Sebold had shrewdly observed in Lucky, “You save yourself or you remain unsaved.”
Howard Blum is the author of several books, including Night of the Assassins. His next book, The Spy Who Knew Too Much: Pete Bagley’s Quest Through a Legacy of Betrayal, will be published by HarperCollins in June
