$5.5 million dollars for one ruined life.
That’s how much the state of New York will pay Anthony Broadwater for the sixteen years he served in prison and the almost twenty-five years after he got out and couldn’t get his old life back.
Let me begin by reminding you that I’m a retired prosecutor who just wrote my first memoir. While the book touches on my work, its focus is on my family—the dysfunctional parts as well as the inspirational parts. I recently composed the disclaimer. I believe it’s important to provide one, especially when throwing memories out to the world as one might toss rice at a wedding. The thing about memory, is that it’s entirely unique. Two people can attend that same wedding and recount the event in such different ways, the listener might doubt they were in the same place at the same time. I used this very analogy in a couple of closing arguments as I urged a jury to convict someone based on testimony from several eyewitnesses which did not entirely match up.
So with the perspective of lawyer turned memoirist, I felt my worlds collide when I read about the Anthony Broadwater case in the New York Times. An all too familiar sadness blanketed me, as I absorbed yet another instance where the criminal justice system—a system I had toiled in for the better part of three decades—had destroyed the life of an innocent black man.
But this case hit home in a different way, when I dove further into the story of Mr. Broadwater’s accuser, Alice Sebold. Ms. Sebold is a bestselling author, most famous for her novel The Lovely Bones. Significantly, the success of The Lovely Bones directly drove up sales of her first book Lucky, the memoir she wrote about the sexual assault. I had not read either of these books, as I tended to steer away from all “entertainment” based on criminal law and court cases.
While Mr. Broadwater lived the life of a convicted sex offender, Ms. Sebold rocketed to fame and fortune with The Lovely Bones. In an article written for the Independent in 2003, Christina Patterson wrote: [Lucky] got some good reviews and then ‘sank into oblivion.’ She (Ms. Sebold) is famous because her first novel, The Lovely Bones, was last year’s publishing phenomenon. It sold two-and-a-half million copies in hardback, a record for a first novel. The paperback shot to the number one slot on Amazon six weeks before it came out. It hasn’t left the top 10 since.”
Publishing phenomenon. The prize every writer strives for, whether they want you to believe it or not. I fight increasing nausea as I continue reading. Another statement in the article stops me completely cold.
“I never thought about writing a memoir,” she declares matter-of-factly, “because I wanted to be a novelist or poet.”
Initially, Ms. Sebold’s report to police was determined to be “not completely factual,” despite her showing up bloodied and bruised. Her glasses remained at the crime scene, having been knocked off her face during the attack. At the bench trial, she testified that she had been grabbed from behind, punched, threatened with a knife, dragged by her hair and then raped in a tunnel.
Having not read the trial transcript, I don’t know what the lighting conditions in that tunnel might have been, but I can certainly hazard a guess. All of this notwithstanding, Ms. Sebold subsequently was able to testify: “I could not have identified him as the man who raped me unless he was the man who raped me.”
Except, of course we now know that she identified someone who did not rape her.
I have so many questions.
Because numerous devastating details have now emerged around Mr. Broadwater’s case, I will not repeat all of them here. Suffice to say, I struggle to comprehend how a case with no physical evidence and a misidentification could have gone forward, even in 1982.
I began my career as a prosecutor in 1994. One of the first cases I was involved in was the prosecution of a serial rapist. The DNA matches were blown up on large posterboards and placed side by side for the jury to compare. It was one of the first of its kind in my area.
The last criminal case I would try to a jury involved allegations of sexual assault on what our office characterized as a “vulnerable adult.” I was one of only a couple of attorneys assigned to these cases, primarily because I was one of only a few lawyers with the skills to work with this type of victim and litigate the case. By 2015, morale was dropping precipitously among us prosecutors in the violent crimes division. I had already gone toe to toe with a manager regarding a case of mine that I knew I could not win. My assessment of the case fell on deaf ears. I was such a good trial lawyer that I got it to a hung jury. After that, I refused to try it a second time and prevailed in the case being dismissed.
I say this only to establish that as a line attorney in a large District Attorney’s office, my ability to speak out was hampered and, in the end, punished with an involuntary assignment to a position I did not want. When I look at the Broadwater case, I wonder if there was pressure brought to bear on those prosecutors to bring such a weak case to trial, based on the racial dynamics of the case.
But I digress…
In my last criminal trial, the victim—disabled, obese, and wheelchair bound—alleged that she had been forcibly raped by an individual she had met on a dating app. When I met with her prior to trial, I found no reason to doubt her story. The defendant had not denied the event, but claimed consent. In Minnesota, consent is a legal defense to sexual assault. Once the defendant has established foundation for consent, the prosecution must prove lack of consent beyond a reasonable doubt.
These types of cases are often referred to as “he said-she said” and are extremely difficult to prove, absent some other evidence to corroborate a victim’s testimony.
In support of his claim of consent, the defendant testified that after the sexual encounter, he informed the victim that he no longer wished to have a relationship with her. The victim then threatened to go to the police and report a rape. According to the defendant, the victim made the threat in a message hosted by this dating app.
The police investigator assigned to the case was renowned for laziness and a general bad attitude. We prosecutors would joke among ourselves every time one of us received a case of his. The problem with having someone of this caliber assigned to investigate sexual assaults was that evidence was rarely, if ever, vigorously pursued. When the defendant testified at trial about these messages, a year had passed since the rape had been originally reported. For some reason, the investigator did not find those messages worthy of his time and energy to collect.
The trial resulted in a hung jury. Afterwards, the judge met with the jury and later informed me that the missing messages were the reason the jury could not agree to convict. I can’t say I blamed them. Following this outcome, I requested our office in-house investigator to track down the messages through the app itself. He obtained an administrative subpoena, which we served on the app itself—something unheard of when I first started out as a young prosecutor in 1994.
The results tore the case apart. The Defendant had told the truth. The victim, very clearly, threatened to report a rape if he did not continue their relationship. I wish I could say that was the end of it. But even more startling was the victim’s response when we showed her, in writing, the message exchange between her and the Defendant.
“I don’t know how those got on my phone.”
If that weren’t enough, her daughter berated us and threatened to call the news media and accusing our boss, the elected official, of trampling on victim’s rights.
The whole thing was quite surreal.
Which brings me back to Ms. Siebold. I’ve dug into reviews of Lucky as well as the response to the statement she issued around the time Mr. Broadwater’s exoneration became public, which opened as follows: “First I want to say that I am truly sorry to Anthony Broadwater and I deeply regret what you have been through.”
As a lawyer turned writer, I know more than many, how passive voice comes across. My editor, in her opening comments on the messy first draft of my memoir, noted that I tended toward passive voice, which is common in legal writing. I now wonder if a lawyer prepared Ms. Sebold’s statement.
She went on to express regret that “the life you could have led was unjustly robbed from you.”
My God, this reads as though she was sitting in the back of the courtroom as part of the audience for the trial, not on the witness stand, selecting the only black man in the room as her rapist, knowing her prior identification from a police lineup had been incorrect.
I’m not going to repeat the entire statement, just the passive voice parts:
“he became another young black man brutalized by our flawed legal system.
I will forever be sorry for what was done to him.
“my own misfortune resulted in Mr. Broadwater’s unfair conviction…”
Memory can protect us when we choose to let it. Ms. Sebold seems not to remember that she testified falsely, which directly led to Mr. Broadwater’s conviction. She then profited off of Mr. Broadwater’s conviction by writing a sensationalized story and offering it up for public consumption. After all, Ms. Sebold admitted that she originally aspired to be a novelist. The thing about fiction is it provides a safe space to create stories that might otherwise not be believed.
The victim in my case created fiction, just as Ms. Sebold did, all those years ago. I feel lucky that I cared enough to get to the truth when things didn’t add up.
I just wish all prosecutors could act in the same way.
Similar to the phrase “I’m sorry that happened to you.” It’s not an actual apology. Ms. Seybold SHOULD have said, “I’m sorry my incorrect identification led to the loss of your freedom for 16 years. I’m sorry that my incorrect identification led to decades of loss even after your release.”