“Misdemeanor Homicide” Revisited

Editor’s Note: Retired former White Plains Police Detective, Austin Avery, first featured in our May 3, 2007 edition, has been struggling to get the Westchester District Attorney’s Office to bring before a Grand Jury evidence regarding the murder of Oscar Nedd, on January 1, 1975.

For 32 years, nearly 30 of them in retirement, Avery, a former Major Crime Detective, has been involved in the investigation. Originally assigned with his former partner, John Markey, “to investigate the disappearance of a 24-year-old Black male who resided at 59 North Broadway in the City of White Plains,” Avery quickly recognized that there had been foul play and possibly a homicide. As a result of the article in May, Avery was eventually granted an audience with a Westchester Assistant DA and officers from the White Plains Police Department. However, despite an abundance of evidence gathered over more than three decades, he has been unable to convince the Westchester District Attorney to present it to a Grand Jury. His letter to Governor Spitzer, below, reveals some of the frustration and apparent intentional roadblocks which he has had to deal with in his valiant and dedicated effort to bring justice to a family so long denied.

Governor Eliot Spitzer
State Capitol
Albany, New York 12224


Dear Governor Spitzer,


After repeated letters to your office, you directed the State Police to assign an investigator to this case. The State Director did this, and an investigator from the Westchester Office of the State Police was assigned. I met with him at my home in Connecticut and spent several hours going over what took place in this case. After hearing the details he said he would look into it and get back to me.

Two weeks later he called me and said the witness who saw Joe Fluellen carrying a body rolled up inside of a rug had died, therefore his statement could not be used in court. I said I took a notorized statement
from that witness and I am aware that it could not be used at a trial, but it can be used in seeking an indictment.

At this point in our conversation I said to him, “I want to ask you a question. But before I do, I want you to know I will use what you say in my search for justice.” He said he understood and then asked me what is the question. I said, “even without this statement do you believe there is enough evidence to bring this case before a Grand Jury?” And his answer was, “Yes, I do.” I also want to bring to your attention that the photos and blood samples are missing from the case file. These blood samples were taken at the scene by the director of the Westchester Forensic Lab. I have in my possession 17 pages of his reports and a signed receipt for these
reports from Detective Ambrose of the White Plains Police. It should be noted the Chief of Police in White Plains said there was no blood found in the room. It also should be noted the Judge in Surrogate Court, His Honor Scarpino in declaring Oscar Nedd legally dead said in his report there is strong evidence to indicate Oscar Nedd was murdered. The victim in this case, Oscar Nedd’s mother’s blood is on file with the National Data Base.

I called Lieutenant Eric W. Fischer, Executive Officer with the White Plains Police Department. Lt. Fischer was at the meeting I attended at the District Attorney’s of- fice four ….. ago. I asked Lt. Fischer if the blood samples found at the scene were sent to the National Data Base for comparison with Oscar Nedd’s mother’s blood. At this time he said they could not be located.

Since this conversation with him I have made repeated calls to his office which have gone unanswered. I believe this is because they have been destroyed. This is a very serious development in this case. And you, as Governor of New York, need to take some action.

I will continue with my efforts to seek justice in this case. I will also do whatever I can to make the People of this State aware of the facts.

Austin Avery, New Fairfield, Connecticut