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The judge’s notice of retirement, marked personal and confidential, was dated July 31, 2020.
“It was my life-long ambition to wear a robe and to serve the judicial system faithfully, as well as with objectivity and integrity,” it said. “Having achieved this goal, with the will and guidance of God, I must continue to walk in accordance with his plan for me.”
ShawnDya Simpson had been one of the youngest judges to put on robes in New York’s court system when she was elected to the Civil Court in Brooklyn in 2003. Simpson, brought up in an immigrant family in a gritty corner of Brooklyn, had risen to a distinguished career: first as a prosecutor and most recently as a State Supreme Court judge handling the city’s daily tumult of criminal cases.
For Simpson, 54, the decision to retire was not entirely voluntary. She had been found to be suffering from early onset Alzheimer’s disease. Acting on complaints of erratic behavior, delays in issuing decisions and the failure to reliably show up in her courtroom, the State Commission on Judicial Conduct had worked to negotiate an end to Simpson’s career once her medical condition had been officially determined.
Robert Tembeckjian, the commission’s head, issued a statement along with the public release of Simpson’s retirement notice.
“This is as sad a situation as I have encountered in over 40 years of judicial ethics enforcement,” Tembeckjian said.
The judge’s husband, Jacob Walthour, said of his wife’s condition, “No two days are the same.” For a while, there were moments of familiar brilliance and vitality to go with moments of profound distress. But, he said, the illness was a miserable one: progressive and fatal.
“We can’t make many demands of her at this point,” Walthour said.
He said he and the family had for a long time mistaken her behavior and struggles for extreme exhaustion. Simpson was a judge, a mother of five, a lecturer, a member of a university’s board of trustees, and a leader in bar associations and several nonprofit organizations. She was, her family figured, dangerously oversubscribed.
“She always knew where Starbucks was,” Walthour said. “But she’d forget where she parked the car once she got there.”
Walthour worked with his wife in July to issue a statement to go along with her retirement announcement.
“I came from a ZIP code that doesn’t often spawn the kind of life, family and career I have been blessed to enjoy,” the statement said. “Whoever thought a little Black girl from the projects and raised by a single mother would have the opportunity to sit on the bench and balance the scales of justice?”
Days later, in the state prison in Woodbourne, New York, Nelson Cruz called his wife, Ericka, in Brooklyn. Imprisoned in Dorm E145, Cruz called at least three times a day.
“You are not going to believe this,” his wife told him.
Cruz had been convicted of shooting a man to death in Brooklyn’s East New York neighborhood in 1998. He was 16 the night of the killing, and he’d spent 22 years behind bars insisting he was innocent. He’d put his mother to work in his old neighborhood trying to find witnesses. He’d started a prison group, four inmates known as the Actual Innocence crew, who all but owned the library during an earlier stint at the state prison in Auburn. But year after year, his appeals had all been rejected.
In 2018, however, Cruz, then 37, was for the first time granted a formal hearing in court, where he could present eyewitnesses, alibi witnesses, evidence of possible police misconduct, whatever evidence of his innocence he could muster. The judge who had at last granted him a hearing was one with a history of vacating wrongful convictions: ShawnDya Simpson.
Simpson had ordered new trials for two Brooklyn men convicted of murder, saying their right to a fair trial had been tarnished by the work of two allegedly unscrupulous detectives. The Brooklyn district attorney opted not to retry either man. One of the men, John Bunn, kissed Simpson’s hand in court when he was freed.
The two detectives on those cases, Cruz had come to learn, had also worked on his.
As a prosecutor, Simpson had a reputation for reassuring younger colleagues that they could dismiss any case in which they didn’t trust their witnesses or the detectives working the investigations. The accused, she told them, were not just faceless actors in the busy machinery of a big city courthouse.
“I’m going home,” Cruz remembered thinking when Simpson granted him a hearing.
Yet over the next two years, Cruz and his lawyers became baffled by Simpson’s handling of his case. Simpson rendered decisions only to agree to reconsider them; the lawyers said she sometimes admitted she hadn’t adequately read the case filings. Later, Simpson was quietly reassigned from Brooklyn to the Bronx by court administrators. Cruz’s lawyers said they had to track her down physically in the Bronx just to see where things stood.
Ultimately, Simpson made Cruz wait nine months before she conducted the evidentiary hearing she had promised, and when it was held in 2019, Cruz’s lawyers assert that she could seem uncertain of herself about prior testimony and legal procedure.
Finally, in August 2019, Simpson had Cruz before her. She’d made her decision. She read a brief statement denying Cruz’s motion before, without explanation or warning, she simply walked off the bench. Cruz’s family members had been so confident of a good outcome they had bought him a new outfit, a slick sweatsuit and Yankees cap, to wear after being freed. At Simpson’s ruling, his wife and stepdaughter sobbed audibly.
Both prosecutors and Cruz’s lawyers waited in awkward silence for Simpson to return. She didn’t, and a court officer abruptly announced she’d be back in the afternoon. After lunch, Simpson reappeared. Cruz’s lawyers, disappointed and uncertain about what was happening, asked to reargue their case. Simpson quickly said she was open to reconsidering a case she had, just hours earlier, announced she had decided.
The specter of mental decline among the nation’s judges has been a real and thorny issue for decades. Federal judges are appointed for life, and they often serve well past 70. Some states have sought to address the threat by instituting mandatory retirement ages, though such measures don’t typically contemplate that a younger judge could be stricken with dementia. To date, there are few if any formal mechanisms for evaluating the health of judges or for reporting health-related concerns about them or their decisions.
That unusual day in Simpson’s court in 2019, Cruz guessed something was wrong, and he wrote to prosecutors from prison, asking them to recognize the obvious and intervene somehow.
“I know deep in my heart something went wrong at my hearing,” Cruz wrote to Eric Gonzalez, the Brooklyn DA. “I know me reaching out to you may not be the proper way to go about it,” Cruz added, “but I truly need help in this matter and feel that you have the power to step in and conduct an investigation.”
A year after the hearing, in early August 2020, Cruz’s wife told him over the telephone that his intuition had been correct.
“It’s confirmed,” Ericka Cruz blurted into the phone. “She has Alzheimer’s. She’s retiring.”
Cruz said he felt terrible about the judge’s illness but also uncertain about what it meant for him. How long had she been ill? Did it explain the confusion and delays of the last 24 months? Cruz immediately wrote again to prosecutors.
His letters were detailed, but his plea, he said in an interview, was simple: “Help me to know what to do now.”
“You Only Need One Witness”
Nelson Cruz was 45 minutes from his 17th birthday when he says he and several friends went out for Chinese food and alcohol. Cruz was a sophomore at Samuel J. Tilden High School, but getting served while underage in East New York was no big deal.
“Remember that drink called Malibu,” Cruz asked in a phone call from prison. “Coconut and rum, I think. A nice, smooth drink. That’s what I got myself that night.”
It was March 28, 1998. It was warm for late winter, and lots of people were still out even after 11 p.m. around the projects along Pitkin Avenue.
Gunfire suddenly erupted, maybe six or seven rounds in all. People started running. The police were there almost instantly. The 75th Precinct had for two decades been among the deadliest in the city, often seeing more than 100 murders a year. Cruz said he and his friends went to look but didn’t think much of the incident.
“Shots? You hear them all the time,” he said.
Hours later, his birthday having dawned, Cruz was still partying when his pager went off. His mother was calling.
“Detectives are at the house,” she told him.
The gunfire that night had left Trevor Vieira, a local tough guy in his mid-20s with a record as a stickup artist, dead on the street. A patrol car was already on the block, and within seconds, Eduardo Rodriguez had been arrested. Rodriguez, the cops said, had been ordered to drop the 9 mm gun he had in his hand. Rodriguez, a convicted felon, was soon interrogated at the 75th Precinct.
Inside the station house, Rodriguez would eventually convince detectives he wasn’t the gunman. He identified Cruz, a kid he’d known for years, as the killer. He said Cruz shot Vieira after an altercation and dropped the 9 mm running away. The gun police said he was holding when he was arrested, Rodriguez alleged, belonged to Cruz.
Andre Bellinger, an older man from the neighborhood with his own criminal past, walked into the precinct an hour or so after Rodriguez had given his account. He said he’d seen the shooting and later picked Cruz out of a lineup. Cruz, having retained a lawyer, had come to the station house voluntarily.
“I had nothing to hide,” Cruz said of his appearance at the precinct. “End result: I’ve been in prison 22 years.”
Bellinger was the only person to identify Cruz at his very brief murder trial. None of the police officers who testified said they’d seen Cruz that night. One of the two officers first on the scene had told investigators he saw a man running with a gun but said he was African American. Neither Cruz nor Rodriguez could be described as African American.
Cruz’s lawyer walked the other responding officer through what happened.
“Did you see the muzzle flashes of the gun?”
“I saw muzzle flashes.”
“And you jumped out of the car almost immediately upon hearing the shots, correct?”
“Your gun drawn?”
“Did you ever see Nelson Cruz on the scene?”
“Did you ever see Nelson Cruz with the 9 mm handgun in his hand?”
“You did see Eduardo Rodriguez with a 9 mm handgun in his hand, correct?”
“As a matter of fact, you were pointing your 9 mm at him, correct?”
“Because he had a gun in his hand, correct?”
“And you were screaming at the top of your lungs to ‘Drop the gun, Drop the gun,’ correct?”
Bellinger, in his testimony, made some striking admissions: He said the police had told him Cruz had been identified as the killer, but he could not remember if they had done so before or after he had given his own statement; he testified that police had also told him that Cruz and his lawyer were on the way to the station house in the hours before Bellinger’s identification of Cruz; and he testified that he’d only been able to identify the murder weapon as a 9 mm gun because the police had told him that’s what it was.
“You didn’t know what kind of gun Mr. Cruz had in his hand; isn’t that correct?” Cruz’s lawyer asked Bellinger.
“And the only reason you would ever have told anyone it was a 9 mm is because the police told you beforehand that it was a 9 mm; isn’t that correct?”
“Yes, I asked him what he was killed with. They told me it was a 9 mm.”
Rodriguez, the first person to allege Cruz had shot Vieira, never testified at all. Prosecutors said he couldn’t be found. Earlier, they had said he couldn’t be found to identify Cruz in a lineup at the station house, despite the fact that he was in custody at Rikers Island jail.
Cruz’s lawyer put on no witnesses. Instead, he asked the judge to dismiss the charges, saying the prosecution had failed to make even a prima facie case against Cruz.
“I just want to point out to the court that there was only one witness in this case who even identified Mr. Cruz,” the lawyer said. “That witness, of course, is a convicted felon.”
“There are no other witnesses who even identified Mr. Cruz as being anywhere near the scene,” he added.
The judge was unmoved.
“You only need one witness, and whether the jury believes him or not is up to them,” the judge said. “Your motion is denied.”
The jury soon convicted Cruz, sending him away for 25 years to life.
“It Was, Simply, What She Wanted to Do With Her Life”
ShawnDya Simpson joined the Brooklyn DA’s office at the start of 1991. The office did not lack for work, handling thousands of felony cases and as many as 700 murders a year.
Simpson found herself in the middle of all of it — investigations, grand jury presentations, sex crimes, trials. Seven years later, she was a deputy bureau chief, and two years after that, bureau chief.
“You know, in a big office, you can age into certain positions. You don’t age into a bureau chief’s job,” said Michael Farkas, a former colleague. “She was a woman with talent and personality and confidence. If you are a man with those qualities, they say you have your shit together. Sadly, those kinds of women often get labeled as overbearing. Men can be intimidated by them.”
“But she was extremely likable,” Farkas said. “An inspirational figure. A mentor to younger assistant district attorneys.”
One of those younger prosecutors was Richard Southard. When he heard of Simpson’s diagnosis, he scrambled to reach out. There was lots he could say, but he settled for saying something simple and straightforward: “Thanks.”
“She got you to believe in your own talents, your own judgment,” recalled Southard, now in private practice. “She would not do your work for you, but she would empower you to think you could do it yourself.”
Southard said there can be great pressure on young prosecutors to produce convictions, even in cases they might not fully trust. Simpson, he said, was his protector in that regard.
“If you have doubts, come to us, that’s what she said,” Southard said. “She was a supervisor who had your back. I never once felt guilty dismissing a case I didn’t believe in. And that’s because of her.”
Another former colleague said Simpson was trusted enough by former DA Charles J. Hynes that she was allowed to appear on a variety of television shows, including one called “Power of Attorney.”
“First, he had to trust that she wouldn’t do or say something problematic,” the colleague said. “But he also trusted she wouldn’t use her notoriety to, say, run against him one day for district attorney. She was a storybook prosecutor for a place like Brooklyn — an African American woman with skill and integrity and a social justice purpose.”
Growing up, Simpson spent the first 13 years of her life with her mother and sister living in the Bay View Houses, a public housing complex comprising 23 buildings and more than 1,600 apartments in Canarsie, a working class neighborhood in southeast Brooklyn. Her mother worked in a modest job at a local bank, and her absent father’s parents contributed money to the family’s well-being. But budgets were tight. When she later went off to the University of Pittsburgh, the beneficiary of financial assistance, she “basically had no money in her pocket,” said Jacob Walthour, her husband.
Walthour was a young investment banker at Lehman Bros. when he bumped into Simpson in the apartment building they happened to share in Brooklyn. She worked long days for the DA. He kept the kind of hours that would see him lead his own hedge fund years later. Chance encounters in the hallway were as close to dating as either of them would get.
“She was stunningly attractive, of course, but she also was, like me, all about making a difference,” Walthour said.
Walthour himself had come from a modest background, one of three children of an African American couple who ran a restaurant in the Black section of Hudson, in upstate New York, then a fatigued former industrial town. His parents never graduated high school, but their business lasted decades and sent all three of their children to college.
“A very real American success story,” Walthour said.
Simpson and Walthour had four children, three girls and a boy. He said they joined organizations like the YMCA of Bedford-Stuyvesant and the Jack and Jill Foundation, paid tuitions for the children of others “and took kids into our house.” Indeed, Walthour and Simpson gained guardianship of a close friend of their son, giving them five children in all.
One of their children had special needs. Doctors had told Simpson and Walthour the child would never do so much as drink from a straw. Neither parent was buying it.
“Today, she is 23. She skis. She can swim,” Walthour said. “If you invest in someone, something, there’s a chance they can do what people might never have expected.”
Simpson, he said, only ever had one personal ambition. And she invested everything she had in pursuit of it.
“She wanted to be a judge,” Walthour said. “It was, simply, what she wanted to do with her life. And she’d known it from early on in that life.”
Walthour said he eventually got a call from Clarence Norman, the Democratic Party leader in Brooklyn, and the kingmaker of judges in the borough. They had dinner. Norman wanted Simpson to run.
“She and I talked,” Walthour said. “And we said, let’s do it.”
In 2003, Simpson, just 38, won a countywide election for a seat on New York’s Civil Court, then a rarity for an African American judicial candidate. She later spent time in Criminal Court, failed in a run to be a judge in Surrogate’s Court, but then in 2016 was elected to State Supreme Court in Brooklyn.
She made an impression in a variety of ways. She would be named jurist of the year by the New York Criminal Bar Association. She’d be named to the board of trustees at the University of Pittsburgh, where she’d gone to college and law school. In 2008, The New York Times credited her with a different kind of distinction. Simpson was featured in an article about judges and their robes, and how she, more than most, liked to be daring with what she wore in court — bright scarves, lime green suits.
“It’s a different era. I think some judges, you just kind of bring your personality to the bench,” she said. “I don’t need a robe to define who I am.”
In some ways, though, Simpson noted the new era still came with entrenched biases. Years into her time on the bench, she could, as an attractive African American, be flirted with by men who mistook her for a secretary. The robes, then, could still serve a purpose for making clear exactly who she was.
Walthour said his wife’s focus as a judge was to hold prosecutors to high standards. He said she knew the system was weighted against defendants, that prosecutors had “an unfair advantage of resources.”
”The job, she said, was to prosecute, not persecute,” Walthour said of his wife. “She knew who she was. She knew where she came from. She knew how things worked. She knew the system could break down. And that every breakdown like a wrongful conviction resulted from multiple failures.”
“She was a second-chance kind of person,” he added. “She wanted the game to be fair.”
“Don’t Go Home and Forget About Me”
The Actual Innocence group at the state prison in Auburn met in the library on Fridays. They were four inmates, each committed to gaining their freedom.
They divided up work on their cases, developing specialties of one kind or another, as they pressed their claims of innocence. They researched precedent, filed motions, obtained police files, sought evidence of mistakes or misconduct.
“I was the crime scene artist,” Nelson Cruz said in a recent interview.
Derrick Hamilton was another of the four. Convicted of murder, he’d spent two decades developing his skills as a jailhouse lawyer. He liked what he saw in Cruz: a quiet determination, a sense of loyalty, a commitment to the work.
“He had a head on his shoulders,” Hamilton said of Cruz. “Always asked questions. Always said he was innocent.”
The group made a pledge: If one of them got out, he wouldn’t forget the others. Cruz made Hamilton pledge to him personally.
“Don’t go home and forget about me,” Cruz told Hamilton. “Come for me.”
Hamilton had been convicted of a 1991 killing in Brooklyn. A single eyewitness had helped lead to his imprisonment. That witness later recanted, and Hamilton claimed a Brooklyn homicide detective named Louis Scarcella had framed him.
In 2015, after Scarcella had been named by multiple people behind bars as a serial manufacturer of forced confessions and phony evidence, the Brooklyn DA’s office looked into Hamilton’s case. The office did not fault Scarcella, but it determined the lone witness’s testimony had been “patently false.” The office asked a judge to vacate Hamilton’s conviction, and Hamilton walked out of court a vindicated man.
Hamilton would not forget Cruz.
Cruz had grown up with two brothers, his mother and stepfather in an apartment on Miller Avenue in East New York. Cruz said he’d been arrested once on a gun charge and again on a marijuana charge. Both had been dismissed, he said. In the first case, he said he was arrested along with other family members when his uncle’s gun was found by police in the family apartment, and no charges were ever pursued, an account the DA’s office did not dispute.
Staying out of trouble could take some work in his neighborhood. Drug crews operated. Gangs were a real thing. Guns were commonplace. So were arrest sweeps in the projects.
Ask Cruz, and he’ll tell you he was a not unpromising high school sophomore in high school in 1998. He’d grown up in a supportive household helmed by his mother in and around a set of housing projects one neighborhood removed from where Simpson had been raised. He said he talked his way into some occasional construction training with the Guyanese laborers on the block. And he said he’d found a subject in school that had grabbed him.
“I don’t know, I always loved biology,” Cruz said. “Maybe, I thought, I could be a teacher.”
Certainly, once behind bars, he did his homework. Books, record requests, how to write a brief.
“I’m 18, 19,” he said, “trying to familiarize myself with the law.”
Whatever the strength of the case for his innocence, Cruz became convinced the case for his guilt was suspect. None of it made much sense to him.
His fingerprints weren’t found on the gun; indeed, the gun hadn’t even been tested for prints at all. Eduardo Rodriguez, the man arrested with the gun, had convinced the police Cruz was the shooter. But he was out on parole and had a rather obvious motive to lie. No wonder, Cruz thought, Rodriguez never testified at trial.
The one eyewitness who did testify, Andre Bellinger, had laid out a detailed but far from fully substantiated version of the murder: Cruz, he said, had argued in front of a neighborhood deli with a local man with the street name Shack. Shack had threatened Cruz with a gun, but the standoff had broken up without violence. Cruz, Bellinger testified, had later returned with a gun, looking for Shack. He ran into Vieira and accused him of having given Shack the gun he’d threatened Cruz with. Vieira shoved Cruz, who pulled out a gun and squeezed off two rounds. Vieira, wounded, managed to return fire with his own gun.
Yet Shack, the man Bellinger said had been pivotal in the events leading up to the killing, never testified at the trial.
Cruz knew he had more to work with. While his defense lawyer called no witnesses on his behalf, Cruz still remembered who he’d hung out with that night and who could establish his alibi. Also, during his time in prison, Cruz said he’d run into another neighborhood man who had seen the shooting, who knew Cruz hadn’t done it and who could undermine the testimony offered by Bellinger. Cruz’s witness said that he’d been with Bellinger after the shooting, and that Bellinger had never indicated he’d either seen the violence or knew who the killer was.
Cruz, with limited resources, said he sent his mother to comb the public housing projects on Pitkin Avenue to find his alibi witnesses. His mother died in 2009, but not before she’d had some success.
“She played investigator, hit the streets,” Cruz said. “She got me a lot of phone numbers.”
Cruz eventually got affidavits signed by witnesses to the shooting and other people who were having birthday drinks with him the night of the killing. He argued this amounted to new evidence, and thus it might persuade a judge to consider yet another appeal.
Cruz had also acquired something else he thought might get a judge to give him a formal hearing: police paperwork showing that two of the detectives who had helped with the case were Louis Scarcella and his partner, Steven Chmil. By 2014, Scarcella and his partner’s work was the subject of a wholesale review by the Brooklyn DA’s office, more than 50 homicide cases. Hamilton had been cleared of his murder conviction based partly on claims of misconduct by the two. Nearly a half dozen other convictions in cases involving the detectives had been overturned.
One of those cases was a murder conviction that ShawnDya Simpson had vacated in 2014.
Simpson had ordered a new trial for Rosean Hargrove, a man Scarcella and Chmil had played a role in sending away for killing an off-duty corrections officer. Simpson considered Scarcella and Chmil’s work on the case, given their emerging history, to be newly discovered evidence.
In her decision, Simpson said the question before her wasn’t Hargrove’s innocence but whether the role of Scarcella and Chmil was enough to conclude Hargrove hadn’t received a fair trial. Her decision ordering a new trial accused Scarcella of misconduct in the initial investigation and of lying on the witness stand when he testified at the hearing held by Simpson.
“The pattern and practice of Scarcella’s conduct, which manifest a disregard for rules, law and the truth, undermines our judicial system and gives cause for a new review of the evidence,” Simpson wrote.
The DA appealed the ruling, insisting that, whatever the role of the detectives, Hargrove was guilty. A belief had taken hold in Brooklyn legal circles, including the prosecutor’s office, that having Scarcella and his partner anywhere near an investigation was being used as a get-out-of-jail-free card by people legitimately locked up for murder. It was a belief solidified when Simpson also ordered a new trial for Hargrove’s co-defendant, John Bunn. The office didn’t even appeal her ruling on Bunn’s case and chose not to retry either Hargrove or Bunn.
“It’s a long time coming,” Simpson had said in court when she vacated Bunn’s conviction. “It’s an emotional journey for us.”
Lawyers for Scarcella and Chmil, who have insisted for almost a decade now that the two were nothing but principled cops during their long careers, say Simpson got the Hargrove case wrong. And they have objected to what they say were gratuitous and erroneous swipes Simpson took at Scarcella: that he had boasted on television that he was willing to break any rule to get confessions, and that he had defied her order that he not bring his old service revolver into court.
The lawyers said in an interview that neither of those things happened, and that they remain “appalled” by Simpson’s “distortions.” They say that at the time they had no reason to suspect Simpson was in some way impaired. Asked what they thought today, the lawyers said it was too sensitive a topic to comment.
Cruz, for his part, didn’t care about Scarcella and Chmil’s gripes with Simpson. He had acquired written reports Scarcella had made to the case file in 1998. Scarcella and Chmil had played a role in the identification of Cruz as the gunman. Scarcella had even arranged for Cruz’s surrender, when Cruz came with a lawyer to the 75th Precinct, where Bellinger identified him as the killer.
In 2017, Simpson was set to evaluate Cruz’s latest motion. Hamilton, a member of the prison library group, helped Cruz get a lawyer.
Hamilton was thrilled that Simpson had been assigned the case.
“We were ecstatic,” Hamilton said. “She was a judge who was willing to call a spade a spade.”
Simpson, though, denied Cruz’s motion.
Her decision discounted Cruz’s witnesses as unreliable, inconsistent or unconvincing and noted that other judges on earlier appeals had felt similarly. None of it, including the role of Scarcella and Chmil, qualified as new evidence.
Cruz and his lawyers were stunned. To them, Simpson’s decision was both a disappointment and an enraging puzzle.
She had declared that Scarcella and Chmil had played no role in Cruz’s identification. The lawyers had submitted the Police Department’s own records showing the opposite.
She said Cruz hadn’t been convicted based on Bellinger’s eyewitness testimony alone, and that his version of events had been backed up by the testimony of Rodriguez. Yet it was undisputed that Rodriguez had never testified.
On one page of her decision, the lawyers said, she referenced an evidentiary hearing that had yet to actually take place.
“I was, like, hold on,” said Cruz.
Hamilton, Cruz’s prison library ally, had a dark suspicion. He thought police and prosecutors had somehow gotten to Simpson. They’d had enough of her freeing convicted murderers, Hamilton figured. He had no evidence of that, but two decades behind bars for a murder he was wrongly convicted of had left Hamilton pretty cynical.
The person who wrote the 2017 decision, Hamilton said, “That wasn’t Judge Simpson.”
“It Can Be a Long Road to Diagnosis”
It’s an agonizing, maybe impossible question for Jacob Walthour to answer: When did those closest to his wife first suspect something might be amiss? Is he remembering accurately, or has his memory been shaped by the painful fact of her diagnosis?
“The summer of 2018, maybe,” he said.
Walthour, who is now the chief executive officer at Blueprint Capital, a New Jersey hedge fund, said his daily routine was to be up at 5 a.m. and at the office by 6. Simpson was a Supreme Court judge with “a boatload of cases.” There was homework to help with, and then bed. Maybe they’d find 15 minutes to catch up. It wasn’t ideal for making subtle medical assessments with untrained eyes.
“ShawnDya could pick a jury and remember everyone’s first and last names 45 people deep,” Walthour said. “In the morning, we’d speak, and then later she couldn’t recall it. And our ‘How was your day’ conversations before bed? I guess they might have become less detailed.” She often seemed exhausted.
“‘I’m tired, Jake,’ she’d say,” Walthour remembered.
That July, Simpson was suddenly moved from Brooklyn to the Bronx. Lucian Chalfen, a spokesman for the Office of Court Administration, said at the time that she and two other judges had been relocated for “operational” reasons, without elaborating. A legal blog cited sources as saying the three had been moved for “falling behind on their caseloads, not holding enough trial days and spending too much time away from the bench.”
Walthour said his wife’s productivity was indeed the reason given, but he said at the time, he suspected it was more about politics. State courts in New York can be at least occasionally afflicted with ambition, agendas, grudges.
“My first thought was, ‘No way,’” Walthour said of the productivity claims. “Felt like a hit job.”
It wasn’t. Lawyers appearing before Simpson had begun to complain: She was strangely combative; litigants were waiting until lunch hour for her to show up; she’d arrive only to go for the day, citing an emergency.
Walthour said Simpson didn’t fight the move to the Bronx. It played publicly as a demotion, but he said Simpson thought the Bronx might be less intense. If she was tired, maybe that wasn’t a bad thing.
“Because she was a judge, a lot of our conversations were walled off,” Walthour said. “There’s lots we can’t talk about. It made it harder for me to really say whether her work was being affected. When I’d call her at work, I asked could I speak to the judge. I didn’t ask her staff how she was doing at her job.”
Gil Rabinovici, a doctor and researcher at the University of California, San Francisco, said roughly 5% of people hit by Alzheimer’s are under the age of 65, some 200,000 victims a year.
He said it can be a painfully hard illness to identify. People can be suffering from symptoms for years as families get confused and doctors work their way through tests for everything but dementia. And there is no single definitive test for Alzheimer’s.
“It can be a long road to diagnosis,” Rabinovici said.
The difficulty is sometimes doubly so when a person has an impressive intellect and professional accomplishments. An average result on a cognitive test might mask what is in fact a sharp decline.
“You can erroneously be considered OK,” Rabinovici said. “Contrary to what many people may believe, substantial numbers of people with early onset Alzheimer’s do not have the genetic makeup that would make them vulnerable.”
Rabinovici said that among high-functioning professionals, the symptoms are often mistaken for depression or a sleep disorder. In part, he said, that’s because the symptoms may not surface in ways that people might expect.
“It often doesn’t involve issues of memory,” Rabinovici said. “It can manifest in problems making decisions, matters of judgment, trouble with language, even difficulty with one’s vision.”
Sophisticated tests for helping identify the threat of early-onset Alzheimer’s have been developed, though they aren’t always accessible, even to people with resources, he said. Spinal taps, during which tests are run for certain telltale protein levels, are one of them. Specialized scans of the brain are another. Even then, those tests have to be coupled with a clinical assessment consistent with Alzheimer’s for there to be a fully trustworthy diagnosis.
Delivering news of an early onset Alzheimer’s diagnosis, he added, is a brutal experience. He has done it with parents and their children in the room; sometimes it’s the parent getting the news, sometimes it’s the child.
“It’s a terrible disease.”
“Impaired Judges Are at Work Right Now”
Francis Shen, executive director of Harvard’s Center for Law, Brain and Behavior, said the issue of cognitive decline among judges is both considerable and complicated. To take the bench, federal judges are required to undergo a medical exam that includes mental health measures. Once appointed, though, they are never required to receive what Shen calls a “brain health” exam.
“We just have no good system for assessing a judge’s cognitive health,” said Shen, who recently produced a 90-page study titled “Aging Judges.”
Shen said the average age of federal judges today is 69, with a number of judges over 90 still presiding in courtrooms. State judges tend to be younger, he said, and some states, including New York, have used mandatory retirement ages to try to address issues related to aging jurists.
Yet there are no formal mechanisms for those worried about a judge’s mental health — fellow judges, clerks, litigants — to raise alarms or intervene.
“The dominant form of response,” Shen said of dealing with potentially impaired jurists, “has been sort of backroom discussions and deals. Pull a judge aside, gently inquire, maybe persuade someone to get checked or even step down.”
Shen said the system’s shortcomings are even more pronounced in a case such as Simpson’s — a judge afflicted with dementia at a frighteningly young age.
There are tools on the horizon, perhaps as little as five years away, Shen said, including blood tests that could signal a judge was at risk of dementia. But these will come with concerns about privacy and politicization, he acknowledged. Federal judges are given lifetime tenure in part to insulate them from partisan politics.
“Over the years, plenty of people have said we can’t require assessments of judges because such a thing could be weaponized,” Shen said. “I understand that concern. But I disagree that something can’t be institutionalized.”
Shen said his idea is that all state and federal judges get tested every five years. The universality of the tests would help reduce any stigma. The results, he said, would only be shared by doctors with the individual judges and go along with a formal clinical assessment. Judges showing signs of being ill, or at serious risk of becoming so, would then be equipped to decide for themselves what course of action to take — retirement, say, or a lesser role on the bench.
Until better tools and a process for using them arrive, however, the justice system remains vulnerable.
“Impaired judges are at work right now,” Shen said.
In New York, state judges can be compelled to submit to an exam if court officials become sufficiently concerned. Asked how often that happens, Chalfen, the court administration spokesman, would not say. Asked what resources the court system offered its judges for being alert to health problems, Chalfen sent a hyperlink to the Judicial Family Institute.
The site says nothing about dementia or other specific impairments.
The federal judiciary has created something called the Wellness Committee to better equip judges and their supervisors to be able to identify and responsibly deal with the challenges of age and decline. Shen cited 9th Circuit Chief Judge Phyllis Hamilton, who observed: “‘We’re an organization that is required to police ourselves.”
“If we wish to retain the goodwill and confidence of the public in our ability to render justice by judges who are unimpaired, we have to take steps,” she added.
One of the most vexing issues involving judges found to be suffering from mental impairments concerns what happens to litigants who had cases before them when they may have been ill. What recourse do they have to probe any impact on their cases and, if warranted, to contest the outcomes?
One could complain to the State Commission on Judicial Conduct, which in Simpson’s case, people did, in growing numbers. But the complaints were more about her demeanor and an inability to show up on time, or at all.
Lacking any other option, aggrieved litigants could, of course, file an appeal with a higher court. If a judge in decline erred, appellate courts have the chance to deal with the mistake. But in the course of any case, there are myriad decisions made by judges — in hearings or trials, involving testimony or procedures — that are fundamentally judgment calls, with judges given wide discretion in rendering them. Saying exactly when a judge was ill, and if and how that illness affected any decision, can seem impossible.
Shen said the U.S. Supreme Court had yet to explicitly weigh in on the due process implications of a judge’s potential mental illness.
“The track record of people appealing decisions because of a judge’s possible impairment is not great,” Shen said.
Shen’s paper used the example of a California man sentenced to death for murder by a 64-year-old judge feared to be impaired. Ronald Deere, the defendant, filed in federal court seeking to have his execution stopped, saying the judge who ordered his death suffered from dementia. To support his claim, Shen wrote, Deere offered four affidavits from attorneys attesting to the judge’s seeming decline.
Deere’s bid failed, with a federal appeals court saying in part that the testimony of the attorneys established nothing more than “eccentricity” on the judge’s part as opposed to proven consequences of dementia.
Shen noted there was some dissent, however, with one judge on the 9th Circuit panel writing: “The majority holds that a judge suffering from dementia may sentence a man to death. I disagree.”
“I’ve Never Seen Anything Quite Like This”
“Listen, you put a lot of time and effort into this case. I’m going to listen.”
It was June 7, 2018, and Nelson Cruz’s case was once more before Simpson. After her decision denying Cruz’s motion, she had agreed to allow his lawyers to reargue their case. The summer of 2018 was also when Simpson’s family had begun to worry about her health and lawyers and others appearing before her were beginning to complain about her performance.
“I’m not saying such a thing never happens, but, well, such a thing never happens,” Justin Bonus, one of Cruz’s lawyers, said of Simspon’s decision to grant a reargument of her 2017 decision.
If unusual, it was certainly an opportunity for Bonus to tell Simpson she had been mistaken about major details of the case.
“I think you know I’m patient,” Simpson told Bonus. “And I will correct myself if I’m wrong. That’s why we’re here. I’m here to listen. And I know how passionate you are, so go for it.”
“Absolutely. You’re wrong,” Bonus said bluntly. “And I’ll tell you why.”
Bonus went through it all. He argued that Scarcella and his partner were deeply involved in Cruz’s identification. The two had taken Rodriguez, the man who was originally arrested, to Cruz’s family apartment, took a family photograph and showed it to Rodriguez. They were later in the station house when Bellinger picked Cruz out of a lineup.
Only Bellinger had testified at trial. No other eyewitness, certainly not Rodriguez. Simpson’s 2017 decision denying Cruz’s motion referred to an evidentiary hearing that never happened. It was exactly that — an evidentiary hearing — that they had been seeking, and that she had denied.
Cruz’s lawyers appeared to prevail. At the hearing’s end, Simpson said she wanted to reread Bellinger’s testimony.
“As you know, I’ve had a lot of these cases back to back to back, and they’re kind of all coming together,” Simpson said. “And just to provide justice to all you, just give me an opportunity to review it again. That’s all I ask.”
She then declared that she intended to do more than reread Bellinger’s testimony — she was going to redo her 2017 denial of Cruz’s motion. She asked for prosecutors and defense lawyers to physically return her printed decision.
“Give me the decisions you have back so I can revise it,” she instructed them.
Bonus described the moment as “wild.” But he was happy to give back her decision denying Cruz a hearing.
A month later, Simpson formally granted the hearing. Cruz could present witnesses. His lawyers could cross examine Bellinger and Rodriguez. Cruz had waited two decades to have that chance.
He would wait some more.
Within weeks of her July 2018 decision granting Cruz’s hearing, Simpson was moved to the Bronx by court administrators. No one notified Cruz or his lawyers.
Chalfen, the court administration spokesman, said Simpson’s Brooklyn cases had been reassigned, except for Cruz’s. Chalfen said because the case involved a post-conviction motion, it “makes sense that a judge familiar with the whole trial record presides.”
But it proved frustrating to get Simpson to set a date for the hearing she’d granted, Cruz’s lawyers and family said. Bonus, the lawyer, said he rode the subway more than an hour each way to her Bronx courthouse to try to buttonhole her, in vain. Ericka Cruz, Nelson’s wife, would sometimes call Simpson’s chambers to press her for a date. She said Simpson regularly answered her own phone, was always polite, but nothing much happened.
“She took my name and number, and said just give me a few minutes,” Ericka said. “I was confused. Nelson’s case was my first time dealing with the law. I was like, is this normal?”
It took nine months, but in the spring of 2019, Simpson held several days of hearings.
Some 18 witnesses took the stand. Half a dozen spoke on Cruz’s behalf, either placing him elsewhere at the time of the shooting or testifying that they had seen the killing and he wasn’t involved. The officer who had testified at the trial that he hadn’t seen Cruz that night did so again. Bellinger’s former girlfriend, Bonnie Cooper, testified that Bellinger had admitted he had not actually seen the killing but only heard that Cruz was the gunman. Her son, Chris Cooper, testified he’d been in Bellinger’s car returning with him from basketball when the shooting broke out.
“Well, the Coopers definitely were reliable witnesses, I will say that,” Simpson said.
Bellinger, meanwhile, admitted as he had at the trial that he hadn’t seen Rodriguez at the scene or observed the police arrive immediately — two facts that were not in dispute by either side.
“If you really want to go into how unreliable Andre Bellinger is, we can,” Bonus said at one point.
“Well, I already know that,” Simpson responded. “You don’t have to go there.”
Cruz and his lawyers had even tracked down the man with the street name Shack. Bellinger had testified that the entire violent episode in March 1998 had begun with a dispute between Cruz and Shack. Shack testified at the hearing that none of that was true.
Significantly, Cruz’s lawyers got one of the detectives who worked on the case to reveal that Scarcella and Chmil had been in the station house before Bellinger picked Cruz out of a lineup. One or both had even been alone with Bellinger in the minutes before the lineup.
To Cruz’s lawyers, Scarcella and Chmil’s involvement in the identification fit with those in cases Simpson had overturned.
“What’s he doing, playing tiddlywinks?” Bonus asked of Scarcella’s time with Bellinger. “We know he is always involved. He is the closer.”
Simpson didn’t disagree.
“We know their track record,” Simpson said of Scarcella and his partner. “And you know there is a whole bunch of research we could do on Chmil and Scarcella for what they’ve done to a lot of, I will say, wrongfully convicted, innocent people.”
Throughout the days of testimony, Simpson was consistently cordial and forgiving. She joked in comparing the sometimes bickering lawyers to her own children. She called both sides “brilliant” and often thanked them for refreshing her memory or making a sound argument.
On the bench, Simpson was known for signaling her understanding of the unsavory things that went on in the rougher corners of Brooklyn, regrettable conduct both by people being arrested and those doing the arresting.
During the hearing, she reassured one witness she knew what life was like “in the hood” and told another she understood what “survival” could look like in Brooklyn.
“That’s the streets. You’ve got to live it to know it,” she said.
But Cruz’s lawyers said they saw signs of confusion and uncertainty on Simpson’s part, even when such instances seemed to work to their advantage. In interviews and court filings, the lawyers have argued that Simpson more than once admitted she hadn’t adequately read the papers both sides had filed. The lawyers said it could seem as if she was leaning on them and the prosecutors to clarify certain procedural issues or legal precedent. They said she gave various disputes full airings but never fully resolved them.
“It often seemed like the last side she heard from was the side she agreed with,” Bonus said.
Almost four months after the hearing, Simpson called both sides to court on Aug. 29, 2019. She’d decided. News teams were there. It was another Scarcella case, and there was an expectation Cruz would be released. Cruz, in a pressed white shirt, was walked handcuffed to the defense table. Cruz’s family was there. Derrick Hamilton was, too.
To a person, they were optimistic.
Simpson took the bench and almost instantly began to read her decision. She read quickly and clearly, if quietly. She tugged at one ear, seeming a bit nervous. Her decision did not go into great detail. The defense hadn’t sufficiently impeached Bellinger. It hadn’t adequately established that Scarcella and Chmil had poisoned the investigation. The motion was denied.
A television camera was trained on Cruz and his defense team. Cruz hung his head but was silent. His stepdaughter’s crying could be heard intermittently. Bonus looked floored and close to tears.
For several unbroken minutes, Bonus pleaded, screamed, corrected what he said were the judge’s misstatements.
The only eyewitness who testified against Cruz, Bonus said, had been told by police that Cruz was the killer.
“I’m not denying that,” Simpson said.
“He’s 16, with his friends,” Bonus said of Cruz on the night of the killing. “We’re going to believe on the day of his birthday he killed somebody. Let’s think about that for a second.”
“This is wrong,” Bonus insisted.
And then Simpson exited without a word.
Outside, Ayana Harry, a correspondent with Channel 11 News, went live.
“In all of my years as a reporter, I’ve never seen anything quite like this,” she said. “The judge stood up in silence and walked out of the courtroom.”
Harry continued: “Shock and sadness rocked a Brooklyn courtroom. A family left heartbroken.”
That afternoon, the reporter and everyone else were back in front of Simpson. She first announced that she was standing by her denial. Bonus argued again. Simpson then called both sides to the bench. When the huddle broke, it was clear she’d agreed to have both sides submit papers about a possible reargument. Dates were set for filings.
Simpson ended by saying she’d produce a written version of the decision she’d just delivered in court. She never did.
Cruz was sent back to prison.
Ericka Cruz said she retreated to the courthouse bathroom. She didn’t want to do TV interviews. Ericka had grown up in Brooklyn, and her family had been friends with Cruz’s. Nelson, she said, had been her “childhood crush.” Once imprisoned, Cruz would call Ericka’s house, and Ericka soon came to be the person taking his calls. They were married in January 2018 at Green Haven state prison.
In the bathroom, Ericka was dizzy from the latest turn. But a nagging question about the judge, she said, had become an urgent one.
“What is wrong with her?”
“We Are Asked to Do Better”
This summer, Eric Gonzalez, the Brooklyn DA, won considerable praise when he issued a special report, “426 Years: An Examination of 25 Wrongful Convictions in Brooklyn, New York.”
The report was based on work done by the office’s Conviction Review Unit, and it was completed in partnership with the Innocence Project and an outside law firm. It spared no one, and in some instances it even directly criticized the work of prosecutors in his office for having contributed to those wrongly convicted serving a total of 426 years behind bars.
Gonzalez, like Simpson and Cruz, had grown up in Brooklyn the son of a single mother, his a native of Puerto Rico. He wrote in the report that he had become haunted by one of the 25 cases the office had looked at: a man of his age who had been wrongly convicted of a brutal sexual assault and served 30 years in prison. The case had involved a mistaken identification. Gonzalez described the day the man was freed.
“It was an emotional day, gratifying because justice was done and heartbreaking that it came so late and at such cost,” Gonzalez wrote. “We are asked to do better, and I believe we can and will. And I believe that to do better, we must reckon with and be transparent about the mistakes of the past.”
The office, in interviews and in repeated court filings, insisted it has reckoned honestly with the Cruz case. And the office has never budged in its insistence on his guilt.
In 2015, the office, as part of its review of scores of Scarcella cases, began to reexamine Cruz’s. Oren Yaniv, a spokesman for the office, said Gonzalez was unafraid to walk away from tainted Scarcella cases, but reexamining Scarcella cases had also turned up dozens in which his work was found to have been sound.
Of the Cruz reexamination, Yaniv said, “Like all Conviction Review Unit investigations it was very thorough in that everyone who had anything to do with the case was interviewed, including alleged witnesses procured by Cruz’s lawyer.”
Yaniv said the reinvestigation broke off in 2016 when Cruz and his lawyers filed their latest formal papers.
“I’m sure you realize that it makes no sense for our office to both reinvestigate the case cooperatively and engage in an adversarial process, and it’s against our policy,” Yaniv said.
In interviews, legal filings and court arguments, Gonzalez’s office has made clear the reexamination and reargument of Cruz’s case only solidified its belief in his guilt. They have argued that all of the various claims made by Cruz over the years — that Bellinger’s eyewitness testimony was unreliable, that Cruz’s trial lawyer failed him in not calling alibi witnesses, that Scarcella and Chmil had hopelessly tainted the case, that the testimony of his alibi witnesses amounted to new evidence of actual innocence — were “meritless.”
The prosecutors have sought to establish inconsistencies in the accounts of witnesses who testified on Cruz’s behalf. They have noted that one witness who testified at the 2019 hearing that Cruz wasn’t the gunman had waited years to come forward, and had done so only after meeting Cruz when they were both in prison. They have suggested in interviews and court proceedings that Cruz’s family put money in the witness’s prison account to help win his support. They turned up a witness who said the black car Andre Bellinger said Cruz had driven to the murder scene had been given to Cruz by his step-father.
Prosecutors have asserted that while Scarcella and Chmil worked on the case, no one has ever testified that either of the detectives told or coerced them to identify Cruz as the killer. The office has noted that Cruz told conflicting stories to reporters about being pressured to confess, saying in one account it was Chmil who had bullied him, and in another, a year later, that it had been Scarcella.
The prosecutors have noted that a New York appeals court has declared that the mere presence of Scarcella and his partner in a case is not enough to undermine it. The detectives worked for 12 years together on more than 100 cases, and their work is not an easy and unquestioned route to a defendant’s freedom and lucrative civil lawsuit.
Scarcella and Chmil, who testified at the 2019 hearing, said they could not remember much about the Cruz case, but they denied any wrongdoing.
Prosecutors, as well, have claimed that Cruz’s alibi witnesses — the friends who were supposedly partying with him that night — had not offered to testify at his trial in 1999. Cruz’s defense lawyer at his trial had told the judge the witnesses could not be found or, in one instance, declined to step forward because of their family’s concern for their safety.
Gonzalez’s office has even attacked the integrity of some of the lawyers who worked years ago on Cruz’s case. One was convicted in federal court of lying on behalf of an imprisoned client. Prosecutors had two witnesses testify that they felt they’d been threatened by Cruz’s family and or people working on his behalf.
The office, too, has stood by a disputed claim by Chmil that Cruz confessed inside the police precinct back in 1998 that he had shot Vieira — but only in self-defense. The judge barred the claim from the trial, since according to Chmil the confession had been made only after Cruz’s lawyer had left the station house and after he’d been warned not to talk about the case with Cruz.
Just this month, the office for the first time disclosed that the idea that Cruz had killed Vieira in self defense had been supported by Cruz’s stepfather. The office said it had interviewed the stepfather, Miguel Figueroa, in 2015 as part of its reexamination of the case, and that Figueroa said in a recorded conversation that he had heard from people in the neighborhood that Cruz was defending himself when he killed Vieira; when asked if his stepson ever told him that he was innocent, he replied that he hadn’t.
However, in an interview with ProPublica in late September, Figueroa, speaking through an interpreter, said that his son was innocent, and that Rodriguez was the killer. He denied telling investigators otherwise.
Prosecutors never called Cruz’s stepfather to testify under oath at any hearing in the case.
In the lead-up to Cruz’s 2019 hearing before Simpson, his lawyers had sought to compel prosecutors to turn over the interviews and material they had collected as part of their reinvestigation of the case. Cruz’s lawyers argued they were entitled to it, not unlike they would be entitled to potentially exculpatory evidence before a trial.
Prosecutors resisted, but Simpson eventually made them turn over some material, including interviews investigators had done with Bellinger and Rodriguez, the two ostensible eyewitnesses to the killing.
Rodriguez’s account of the killing was detailed. It was dramatic. It was also not at all consistent with much of the prosecution’s theory of the case.
Rodriguez told investigators he had been all but a member of the Cruz family back in 1998, something Cruz and his step-father call a fiction. He’d done two stints in prison and did not want to go back. He looked out for Nelson, bought him clothes and smacked him around when he got out of line.
Vieira, Rodriguez said, was new to the neighborhood and had been trying to establish himself as a badass by brandishing a gun and threatening people. Rodriguez said Vieira had targeted Cruz and humiliated him on the street by sticking a gun down Cruz’s throat. Incensed, Cruz had opted for revenge, got a gun and on the night of the killing told Rodriguez he was going to deal with Vieira.
Rodriguez said he told Cruz he would have to handle his business alone, and he watched as Cruz confronted Vieira and took a swing at him. Vieira shot at Cruz, and Cruz responded by firing a burst of bullets. Cruz bumped into Rodriguez as he fled and dropped the murder weapon. That’s when the police turned up.
There was no mention of a prior encounter with Shack. No claim Vieira had given Shack the gun he’d supposedly threatened Cruz with. Cruz, according to Rodriguez, had not fired first.
Rodriguez repeated much of his version of events at Cruz’s 2019 evidentiary hearing. It proved an unusual appearance.
Rodriguez, dressed in a bow tie and a ruffled tuxedo shirt, said Cruz had been like a son to him, despite the fact that he hadn’t been able to give detectives Cruz’s last name the night of the shooting. He said he had made sure Cruz did his homework as a boy despite admitting he did not himself know how to read. He testified he was 6 feet, 7 inches tall, only to be forced to step down from the stand to make clear he was no taller than 5 feet, 8 inches. He said he had shrunk over the years. He said he had failed to tell detectives the night of the murder that Cruz had shot Vieira only after being fired on himself in part because he’d been drinking vodka that night. He said he failed to show up to testify at Cruz’s trial because he was told by the authorities his account wasn’t that important.
Rodriguez now lives with eight of his 10 children in an apartment in Yonkers, N.Y., just north of the city.
“My husband didn’t kill anybody,” Shemekia Rodriguez, his wife, said upon seeing a reporter at their door. She said Cruz was trying to get out of prison by invoking the work of the accused detectives. “Instead of getting on his knees and praying to God, he wants to ruin another man’s life,” she said of Cruz.
Eduardo Rodriguez initially said he was happy to talk — “I’m not guilty of anything” — but after speaking with the DA’s office, he would not answer questions.
“They told me not to say a word,” he said of prosecutors.
In Bellinger’s interview with investigators, his account had changed considerably. Bellinger’s testimony had for two decades been the linchpin to the case against Cruz, and prosecutors had stood by it at every step.
Now, on Nov. 12, 2015, at the Linwood Diner in Brooklyn, Bellinger told investigators he could not remember Cruz’s supposed dispute with the man named Shack. At Cruz’s trial in 1998, Bellinger had said the incident had been what set the entire fatal episode in motion.
By 2015, Bellinger remembered none of it.
“Bellinger’s recollection of events was consistent with his prior statements, except that he did not recall the Shack incident,” investigators wrote in their report of the interview. “He did not recall the name Shack.”
Yaniv, the spokesman for Gonzalez’s office, said its Conviction Review Unit was a national model, and the office’s own website chronicled its noteworthy work: 28 exonerations.
ProPublica directly asked why Gonzalez had such enduring confidence in a case with few witnesses, conflicting accounts of the circumstances leading up to the killing, no forensic evidence and a defendant with no prior record of violence.
Gonzalez would not be interviewed, but his office said that Bellinger’s account of the actual killing — Cruz confronting Vieira and then shooting first — had never varied. Gonzalez, the office said, was also swayed by the knowledge that the car Bellinger said Cruz had arrived in at the murder scene had indeed been registered to Cruz’s family.
Yaniv, the office’s spokesman, said that, in the end, the decision to stand by the conviction was informed by what he said was the bad faith dealings with Cruz’s initial defense team, the unreliability of Cruz’s alibi witnesses and the alleged threats made against prosecution witnesses.
For the office, whatever the timing and severity of Simpson’s illness, she had ruled correctly – both in 2017 and again in 2019.
Cruz’s lawyers have called the office’s reinvestigation a charade. The lawyers said they had only gone ahead with their motion after waiting two years without Gonzalez’s office having produced a decision. The lawyers said the office shared little if any of what it had found. They claimed Cruz’s witnesses were subjected to extraordinary scrutiny, while the prosecution’s witnesses were given a pass.
“It’s a conviction integrity unit without integrity,” said Bonus, one of Cruz’s lawyers.
Today, Bellinger lives in Georgia, where he said he is caring for his ailing mother. She has dementia, he said.
In several telephone interviews, Bellinger remained adamant Cruz had been the gunman. He repeated claims that he’d been threatened by Cruz’s family and defense team.
But he also stuck by what Cruz’s lawyers have long seized on as an impossibility: that he never saw Rodriguez or police in the seconds after the shooting despite having stayed and watched what happened. He also said things that were at odds with his prior claims — how well he knew Cruz at the time of the shooting, and where he had played basketball that night. And he could not account for why he no longer remembered the incident with Shack.
“I told them what I could remember,” he said of his 2015 interview with investigators. “It doesn’t concern me. They can do whatever they want to do.”
Before hanging up, Bellinger asked about the status of the case. He was sorry to hear about the judge he’d testified in front of in 2019. Caring for his mother had given him an appreciation of dementia’s toll. He wasn’t surprised that Cruz was arguing the judge’s illness might have affected the case.
“It’s a good argument,” he said.
“It’s Not Her Fault”
In October 2019, six weeks after the latest Cruz hearing, the State Commission on Judicial Conduct notified Simpson it had opened an investigation. The commission investigates a wide range of allegations of misconduct, from drinking problems to offensive behavior to a refusal to put in the required hours, involving judges with the smallest village courts to the state’s highest.
The commission informed Simpson it was investigating reports that her “demeanor toward litigants, defendants, lawyers and others had become erratic and even intemperate, and that she was frequently absent from the court, arriving very late, leaving very early or not arriving at all, despite the fact she was scheduled to preside.” The complaints extended all the way back to at least 2018, but they also included objections to her most recent work in the Bronx.
Commission investigators dug in, examining court records and trial transcripts and interviewing a wide range of people about when and if Simpson showed up in her courtroom.
The notice of the investigation didn’t much shock Jacob Walthour.
Simpson’s husband, worried that his wife was exhausted in the summer of 2018, was more confused and concerned by early 2019. Simpson, he said, had always been happily zealous about Christmas, buying presents six months early, hanging decorations in November.
“Christmas that year snuck up on her,” Walthour said. She was behind, not as enthusiastic. “Not her usual self,” he said.
He asked that she see a doctor, for what he wasn’t sure. Basic blood work came back normal. But his fears deepened.
“Even in the months after Christmas, I didn’t see a lift,” Walthour said. “We thought it might be a psychotic break.”
The family vacation in August 2019 began a hurtful endgame. Walthour said the family’s annual “pilgrimage to Martha’s Vineyard” laid bare her distress.
“She couldn’t hide it,” he said of her decline.
Walthour said he recruited friends for an intervention. Simpson took a medical leave days after the Cruz hearing on Aug. 29. Walthour said he benefited from the generosity of his wealthy clients as he sought the best medical help.
“We were going to take it one doctor’s appointment at a time,” he said. “I told her, We’re going to concentrate on what we need to do to get you back to who you are.’”
Meanwhile, Cruz was waiting for the chance to reargue his case. Simpson had granted him the chance in her final days on the bench. Weeks passed, then months. His lawyers learned of Simpson’s medical leave via a bounce-back email when they wrote to her. The emails first said she’d be back in the New Year, then even later.
At the same time, investigators were probing Simpson’s performance. Walthour said he and his wife were not personally involved in engaging with the judicial conduct commission.
“ShawnDya and I have never been shy about it. If there’s an issue, we hire lawyers,” he said. “We hired lawyers and told them to deal with the commission.”
Some subsequent blood tests showed Simpson had low levels of iron. It didn’t seem to mean much. Doctors then had her spend five days in the hospital having her brain activity monitored. Walthour was hoping it might show seizures were at the root of the problems.
A spinal tap, he came to learn, might be the best indicator of brain disease. It was hard for him to process. Simpson’s grandmother had lived to 102. Her mother was still alive. There was no history of dementia in her family. But after the spinal tap and a PET scan, the doctors called asking the couple to come in.
“The results are in. The doctor wants to see you. What’s that mean?” Walthour said. “Well, you know what it means.”
Simpson and her husband received the news together. Her career was over. Her life would be, too, although how soon was unclear.
“Truth is, she maybe for the first time didn’t care about whether she could be a judge anymore,” Walthour said. “She thought about her children. How much longer did she have to be with them?”
Simpson’s lawyers notified the judicial conduct commission of the diagnosis on Feb. 27, 2020. Doctors, he said, had described the disease as in its “middle stages.”
No one, though, informed Cruz or his lawyers, and five months would go by before Simpson’s diagnosis and retirement would be made public.
Robert Tembeckjian, the commission’s administrator, said the commission considers itself “duty bound to timely report to court authorities if it discovers a sitting judge is suffering from an ailment that could be compromising their abilities.”
Chalfen, the spokesman for the Office of Court Administration, said the office did not learn of her diagnosis until the public announcement on July 31. Asked if he was suggesting the judicial conduct commission had failed to notify the office in February, Chalfen did not respond.
Chalfen would not answer a variety of other questions concerning Simpson, such as if or when the office had received complaints about her, or if court administrators had missed an opportunity when they moved her to the Bronx to inquire more deeply into her problems.
By early 2020, Cruz and his lawyers were desperate to get on with their case. They wrote to Simpson. They pleaded with court administrators. They asked Gonzalez, the DA, to either abandon the conviction or do something to get to the bottom of what had happened to Simpson. It was an open secret in courthouse circles that she was suffering from a mental illness.
“She was known as a good judge — vibrant, lively, fair, she said what she had to say and it was her courtroom, always,” said Bonus, who had appeared before Simpson earlier. “I had no issues. Ever.”
“But it was clear that by the time of the August 2019 hearing, she was ill. You can make an argument she’d been sick to one degree or another at every stage of our case before her. If people had reason to know that and said or did nothing, well, I don’t have words for that.”
On April 13, Bonus was explicit in a letter to Gonzalez.
“I have been informed that Judge Simpson will not be returning to the bench and is suffering from some form of dementia,” Bonus wrote. “This raises the serious question as to whether my client received a fair hearing. One major concern is the fact that the Court readily admitted on several occasions that she did not read the record yet ruled on the motion.”
Bonus asked Gonzalez to consent to having the case moved before another judge “or whatever other fair and equitable decision you can think of.”
Gonzalez had Bonus into his office in June to hear him out. In a conference room, Bonus argued his evidence and made clear he thought Simpson was not well. He asked Gonzalez to consent to a retrial. Gonzalez said he suggested Bonus ask Brooklyn’s chief administrative judge to intervene. Bonus and Gonzalez met a month later at a vigil for a slain child in Brooklyn. Bonus asked again for a retrial. Gonzalez said he’d get back to him. He didn’t, Bonus said.
Cruz, for his part, wrote to Matthew D’Emic, the chief administrative judge in Brooklyn. D’Emic told him that there was nothing he could do, and that Cruz should write to Simpson, a judge D’Emic knew had been away from the court for almost a year.
It was not until Aug. 17, more than two weeks after the announcement of Simpson’s retirement, that Cruz’s case was reassigned to a new judge. It had been a year since Simpson had promised to hear Cruz’s arguments again, only to exit the bench and never return.
Chalfen, in response to a question, said court administrators had no plans to scrutinize Simpson’s handling of Cruz’s case or any others she had handled in recent years. Individual litigants, he said, would have to seek a revisiting of their cases by filing formal appeals. There would be no notification made to those litigants informing them that Simpson had been sick and had retired.
The judicial conduct commission’s investigation may not be over. Tembeckjian said the commission is authorized to do two important things in a case such as this: determine if other judges or court officials had failed to responsibly report concerns about Simpson or had in any way acted to disguise an impaired judge’s compromised state; and make a formal referral to court authorities if it found evidence to indicate Simpson’s illness had a damaging impact on any individual case.
Simpson, like all Supreme Court justices, had a law secretary, a lawyer who, much like a clerk for a federal judge, helps research cases, write decisions and the like. Simpson’s law secretary, Isiris Isaac, did not respond to repeated inquiries via telephone, email and text. Chalfen said that court officials had not interviewed Isaac about Simpson’s illness, and that Isaac is still working in a pool of law secretaries assigned to Brooklyn Supreme Court.
In New York, if there has ever been an appeal based on a judge’s mental state, court officials are unaware of it, Chalfen said.
Cruz and his lawyers have mounted a number of efforts in the aftermath of Simpson’s announcement.
In August, they filed a writ of habeas corpus in federal court saying the judge’s illness had denied Cruz his “substantive due process rights.” They are waiting for a judge’s response.
The lawyers have also filed papers with the judge recently assigned Cruz’s case, Laura Johnson. They asked that Cruz be freed on bail, and that Simpson’s 2019 decision from the bench denying Cruz’s motion be vacated.
The DA has countered that there’s no reason to believe Simpson decided in error because of her illness.
“Defendant never asserted that Justice Simpson was inattentive, disoriented, or incapacitated,” prosecutors wrote in their most recent filing. “The record of the evidentiary hearing that Justice Simpson granted at defendant’s request speaks for itself and refutes any suggestion that Justice Simpson was impaired by a cognitive disability that affected her competence to preside at those proceedings.”
The office has accused Cruz’s lawyers of exploiting a tragedy.
“It’s uncontested,” said Yaniv, the office spokesman, “that the defense only raised these concerns after she ruled against them.”
The office has even argued that if Simpson was impaired in 2019 when she denied Cruz’s motion, she might well have been sick in 2018 when she granted him his lone legal victory: an evidentiary hearing. That might have to be vacated, too.
Johnson, on Aug. 24, denied bail for Cruz. But she instructed prosecutors to tell her why she shouldn’t vacate Simpson’s last oral ruling, and they filed their papers in the final days of September.
“We’re in outer space,” Bonus, Cruz’s lawyer, said of the unusual developments.
For now, Cruz works on his case and calls his wife, Ericka. He always makes sure to call at 3 p.m. It’s when Ericka gets off work, and she and Cruz pretend he is with her, walking her home.
“He is one strong individual,” she said. “He’s just asking, always asking — our next move, what is it.”
Today, Simpson is at home with her family in South Orange, New Jersey. Walthour, her husband, said the family and caretakers try to keep her active. He said there are still occasions when they can provoke her into laughter or a favorite reminiscence. But those suffering from early-onset Alzheimer’s often experience a more rapid decline than older patients.
“She can look fine,” he said. “But the person she was is evaporating.”
Some of that disappearing person, though, was captured in her letter of resignation.
“My heart and soul were brought to chambers and to my court part each and every day,” she wrote. “I hope the Office of Court Administration, my colleagues and the public will view my career in the spirit that it was intended, in that I served the people of the State of New York with the passion and honor they deserved.”
Walthour would not say whether the judge talked about any cases, older ones or more recent ones, or if she worried about their outcomes.
“The criminal justice system, I would argue, is supposed to fix anything that needs fixing,” Walthour said. “My decision to talk is to encourage people to understand that ShawnDya is a victim in this story.”
“It’s not her fault.”