Brooklyn DA Moves to Vacate Conviction of Man Who Was Likely Mentally Disabled When He Pleaded Guilty to Rape of Mentally Disabled Acquaintance

Thursday, May 23, 2019


Brooklyn DA Moves to Vacate Conviction of Man Who Was
Likely Mentally Disabled When He Pleaded Guilty to
Rape of Mentally Disabled Acquaintance

Analysis of Defendant’s Medical and Psychological History, and Statements, Show He Likely Lacked Capacity to Know She was Unable to Consent Because of Her Disability; Defense Counsel Likely Provided Ineffective Assistance by not Raising Condition as a Defense

Brooklyn District Attorney Eric Gonzalez today announced that following a thorough investigation by his Conviction Review Unit, he will move to vacate a rape conviction against Livingston Broomes, 70, who served four years in prison after pleading guilty to second-degree rape. A careful analysis of the evidence in the case, including the likely mental disabilities of the defendant and the mental disability of the complaining witness, as well as the lack of a robust defense, led to the decision to vacate the conviction and dismiss the indictment.

District Attorney Gonzalez said, “After a lengthy and extensive investigation into this case, I have concluded that the cause of justice requires that we vacate the conviction of Mr. Broomes. Expert analysis of his mental capacity and an examination of the rest of the evidence reveal that the case was prosecuted as if an intellectually able individual had sexual relations with a person incapable of consent. The CRU investigation, however, revealed that he also likely suffered mental disabilities and likely did not receive effective legal assistance. This vacatur is part of my continued commitment to correct any injustice that took place in Brooklyn.”

The defendant will appear today at 2:15 p.m. before Brooklyn Supreme Court Justice Matthew D’Emic at 320 Jay Street, 15th floor. Publication of the full CRU report is contingent of the defendant’s waiver.

The District Attorney said that in early May 2011, a 32-year-old woman who had an intellectual disability discovered she was pregnant. She told the police and the Brooklyn District Attorney’s Office that Broomes, a 63-year-old acquaintance, forced her to have sex with him on multiple occasions. The defendant was arrested on May 3, 2011. On March 15, 2012, the defendant pleaded guilty to second-degree rape, i.e., engaging in sexual intercourse with someone who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

He was sentenced to four years in prison and 10 years’ supervised release. He completed his sentence in September 2014 and was to continue to be on post-release supervision until 2024. He was also required to register as a sex offender.

The CRU investigation revealed that the defendant was born in Barbados and was involved in a motorcycle accident in his late teens or early twenties and was severely injured, suffering two broken legs and serious head trauma that left him comatose for more than six months. He was diagnosed with dementia within weeks of his 2011 arrest. Relatives characterized him as “slow.” The complaining witness was classified as a special needs child and attended a high school for teenagers with developmental disabilities.

Furthermore, the investigation found, the defendant’s counsel didn’t recall that a few months after his arrest he began displaying signs of dementia and admitted he never considered an affirmative defense. According to the transcript of his guilty plea, the defendant told the judge “I really didn’t rape nobody,” but then proceeded to plead guilty.

The CRU investigation included an examination of police and court records, interviews with family members of the complaining witness and defendant, interviews with the defense attorney, and medical reports and examinations of both complaining witness and defendant.

The CRU has concluded that the defendant was likely mentally disabled at the time of the alleged offense and, therefore, pleaded guilty to a crime which he may not have legally committed. Furthermore, the defendant’s likely diminished mental capacity to recognize the complaining witness’s intellectual disability may well have contributed to his inability to comprehend that she could not legally consent to engage in sex or that his conduct was wrong. The CRU has also concluded that his plea was probably unknowing and, consequently, involuntary.

To date, the work of the Conviction Review Unit has resulted in 26 convictions being vacated. In addition, the CRU has found that of the cases reviewed thus far, 80 convictions are just and will not be recommended to be vacated. Approximately 80 cases are pending review.