On an evening in March, Nancy Toh had just finished recycling some cans for a little extra cash, when a masked man came up to her screaming something she couldn’t understand. He spit in her eyes, then hit her in the face, knocking the 83-year-old Korean immigrant to the ground unconscious outside the mall in downtown White Plains. It was the latest in a string of brutal attacks on Asian-Americans across the country, prompting calls in some quarters for law enforcement to do more.
The following morning, Toh went to the police. And just a day later, as the press was getting wind of the attack, detectives arrested a suspect, Glenmore Nembhard, a homeless Black man with a criminal record for a previous assault and mental health issues, according to court and District Attorney’s office documents.
“An incident like this—we throw all our resources at it,” White Plains police captain James Spencer told a local TV station in a segment published hours after Nembhard’s arrest. “This was a very disturbing and serious incident that occurred in a safe city. And it’s one that we won’t tolerate.”
But two months after Toh was left bleeding on the street, Westchester County prosecutors dismissed the charges against Nembhard and agreed to release him from jail. The announcement sparked outrage in the local Asian-American community and more broadly on social media with some online commenters calling for vigilante justice.
What the public didn’t know, however, was that behind closed doors the Westchester County District Attorney’s Office had uncovered serious flaws in the police investigation. Indeed, Westchester’s new District Attorney Mimi Rocah was so concerned by the detectives’ conduct in the case that she sent a letter in early May to department leaders recommending the detectives’ work be subject to an internal review.
In the May 7th letter, obtained by Gothamist/WNYC, DA Rocah highlighted numerous issues her prosecutors brought to her attention: They found that the detectives used “irreparably suggestive” photo identifications procedures in their investigation, failed to properly document their work, and used leading questions to elicit hypothetical statements from the suspect, which they then characterized as a “confession” to the crime, despite the man’s mental illness.
Rocah said she knew the announcement to dismiss the charges against Nembhard would be politically unpopular.
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At the time, anti-Asian hate, fueled by President Trump’s anti-China rhetoric, was reaching a boiling point. The month before, an 84-year-old Thai immigrant was fatally pushed to the ground in San Francisco. A week after the assault in White Plains, a gunman would fatally shoot eight people, six of whom were Asian women, at three Atlanta-area massage parlors.
Mistaken identifications are one of the leading factors in wrongful convictions nationwide. And historically, many have stemmed from the inappropriately suggestive ways police administer photo arrays or in-person lineups inducing victims and witnesses to “identify” innocent people as their assailants.
“You can’t sit anywhere and talk about not prosecuting innocent people or the integrity of the process or reforming criminal justice, if we aren’t going to say, ‘We’re doing the right thing here, no matter what the political or public perception is,’” Rocah said in an interview with Gothamist/WNYC in her office. “It’s hard when I hear people or I see people on social media say that I’m the prosecutor that let the guy go who attacked an old woman, but, again, I know that’s not what happened.”
The White Plains Department of Public Safety did not answer specific questions from Gothamist/WNYC about the “concerning series of procedural mistakes” prosecutors identified during the police investigation. But in a statement, the department apologized for failing to “obtain justice” for the Toh family and acknowledged that there were “procedural missteps” that “left no options” for the DA’s Office to pursue the case.
The department also confirmed an internal review is underway but asserted that at this point it has found no “malicious intent” on the part of its officers.
After The Attack
Initially, Nancy Toh wanted to deal with the assault by herself without going to the hospital or to the police. The 83-year-old had survived the violence of war and foreign occupation in her native Korea. And as a retired nurse, she thought she could handle the bleeding on her own.
“In my culture, you know, if something bad happens, the first instinct is not to go to the police,” said Linda Toh, Nancy’s daughter, explaining her mom’s thought process. “You kind of try to either hide it or take care of it yourself.”
But after speaking to her daughter on the phone, Nancy Toh decided to give the authorities a chance to do their job.
The next morning, she went to the White Plains police and told them about the man who attacked her. She said he was a tall, thin Black man who appeared to be homeless. It was dark at the time and the attacker was masked. She remembered his eyes looked angry.
Within a day, police had a potential suspect in mind, Glenmore Nembhard, a Black man who they knew was homeless. No one had told police they had seen Nembhard commit the crime, but police knew that he frequented the area of the assault.
So they decided to show the victim a photo lineup, and see if she would recognize Nembhard among a set of pictures of other men.
When police administer a photo lineup to a witness like this, it’s ideally supposed to be “double blind,” meaning that the officer presenting the photos and the witness haven’t been tipped off to the suspect’s photo beforehand. These safeguards are supposed to ensure an officer doesn’t intentionally or unintentionally influence the witness into picking a certain image.
Instead of taking these precautions, however, police administered a photo array to Toh that was so suggestive that prosecutors later determined it was effectively useless.
Outside her home, police showed Toh a piece of paper, believed to be a photo of Nembhard, then immediately had her pick out a suspect from the array of photos, which included one of Nembhard, according to the District Attorney’s May 7th letter.
Confused about the process, the elderly immigrant selected the photo of Nembhard, Toh’s daughter recalled, noting that police never told her that she did not have to select a photo.
“She looked at the single photo, then she was looking at a six pack where the single photo showed up. She said ‘That’s the one,’ thinking that she was supposed to match that photo,” Linda Toh remembered.
Even after the initial selection, Nancy Toh hesitated, going back and forth between the other photos, her daughter said, prompting one detective to tell her to “go with” her “first choice.”
As Toh deliberated, one of the officers even made a pointing gesture at a photo, which Toh interpreted as pointing to the photo of Nembhard, according to the DA’s letter.
Finally, she settled on the photo of Nembhard. Police arrested him hours later.
In police paperwork, a detective claimed the photo array was “double blind” and that he gave full instructions to Toh.
Linda Toh disputes this. “There was no instruction given. We weren’t told that we were not supposed to sign it if you weren’t sure,” she said. “We had no idea. We just went with whatever they said.”
How The Case Fell Apart
In White Plains, police can bring criminal charges themselves without the approval of prosecutors. And in this case, they did, charging Nembhard with a felony assault.
At first, the case looked to be straightforward. “We were informed that there was some surveillance evidence and we were informed that there was a confession by the defendant, the person charged, which on its face sounds like a pretty strong case,” said Rocah.
But Rocah’s prosecutors started to have doubts after they interviewed Toh, who told them she was unsure about the photo identification. The District Attorney credits the victim for expressing her reservations.
“A lot of victims, not even with bad intent, I think wouldn’t have had the courage to do that because your community is looking at you and saying, ‘Wait a minute, but there is an arrest here and there was a charge and we want someone to pay for that,’” Rocah said. “They went against all those sort of very natural human instincts and said, ‘We’re not sure,’ because they didn’t want the possibility of an innocent man going to jail.”
With the identification in doubt, prosecutors alerted their superiors and began double-checking the other elements of the investigation: the surveillance footage and Nembhard’s “confession.”
That’s when they realized the case had no legs to stand on.
The security camera footage from outside the mall was too blurry to show who the perpetrator was. And after reviewing the interrogation of Nembhard, prosecutors concluded police did not actually get him to confess.
Though Nembhard repeatedly told investigators he heard voices and had difficulty remembering events, the DA’s letter said, investigators asked the suspect leading questions, gradually pushing him towards hypotheticals that sounded more and more like the crime.
After initially denying that he had even confronted anyone, the investigators got Nembhard to concede he might yell at strangers. Later, they got him to say that he may have accidentally bumped into someone. Finally, by the end of a second interview, Nembhard was conceding that during a mental fit he “might have confronted and hit someone who may have been an older woman,” according to the DA’s letter.
Police characterized these statements as an unequivocal “confession,” the letter noted. Prosecutors didn’t buy it.
“We looked at those things and it was clear, very clear that we could not proceed with this prosecution,” said Rocah. “It was not even a close call.”
“There’s Going to be Gray”
When the Toh family learned authorities were releasing Nembhard, Linda Toh remembers feeling paralyzed. The arrest had given her mother a sense of safety. Now that solace was gone.
“I felt bad that I couldn’t help her initially. I wasn’t with her when she was attacked,” the daughter said. “But then I felt even more powerless. I can’t even help her now to even, you know, give her a sense of safety back.”
Today, she says, her elderly mother finds it hard to trust people. Anyone could be a potential attacker. She’s afraid to go outside.
Still, the family, guided by its Christian faith, does not regret its decision to be honest with prosecutors about their doubts about the photo lineup.
“By the end of the day, we have to really face God and be truthful, and that is the value that we hold,” said Linda Toh. “My mom would feel so bad if she had inadvertently put someone in jail that did not do anything wrong.”
In the wake of her mother’s attack, the younger Toh has spoken out against the rising tide of anti-Asian hate in public and in the press. She wants others to be more prepared than her family initially was if they experience violence. Toh hopes their story will encourage others to report attacks quickly, document them extensively, and go public to seek community solidarity and legal assistance.
Though the case fell apart, Linda Toh insists her family holds no grudge with the police, whom she believes were just trying to help her mom. “There was a lot of pressure on them to perform,” she said. “And unfortunately, they took a shortcut, and, you know, it was found out.”
The anger she initially felt after learning about the case’s dismissal has now given way to a more skeptical melancholy.
“I realized, it must be the way that they normally do things. There are things that we don’t really want to know. You know, if you really look closely at police work, if you really look closely at political work, there’s going to be gray,” Toh said. “So I kind of understood that this was the way things are done sometimes and, you know, it’s a sad reality.”
George Joseph is a reporter with WNYC’s Race & Justice Unit. You can send him tips on Facebook, Twitter @georgejoseph94, Instagram @georgejoseph81, and at firstname.lastname@example.org. His phone and encrypted Signal app number is 929-486-4865.