Court Report:

Surrogate Court Judge Anthony Scarpino, In His
Stated “There Is Substantial Evidence Indicating

Over the past 32 years, nearly 30 of them in retirement, former Major Crime
Detective with the White Plains Police Department, Austin Avery, has been involved
in the investigation of the murder of Oscar Nedd, a resident of White Plains, in early
January of 1975. Originally assigned with his 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, New York,” Avery quickly recognized that there had been
foul play and possibly a homicide. The Guardian recently spent nearly four hours
with retired Detective Avery at his home in Connecticut. The following information
is the product of that interview.


“On or about January 15, 1975, my partner and I were assigned to investigate the
report of a missing person, Oscar Ray Nedd, age 24, a male black, who resided in a
rooming house located at the intersection of Rockledge Ave. and North Broadway in
the City of White Plains. Oscar Nedd had been reported missing on January 8, 1975
by the husband of his half-sister, who lived in New York City. He indicated that attempts
to speak with Nedd by telephone had met with negative results, so he went
to the rooming house where Nedd lived, and a check of his room by him and the
manager revealed all of Nedd’s belongings were gone, as well as Ned and Ned’s cousin,
Joseph Fluellen. Also missing was Nedd’s car.


The informant said, ‘While checking the room he saw what appeared to be traces
of blood on the woodwork. He also said that the last time he had seen Nedd was in
the company of his cousin, Joe Fluellen, when Nedd came to visit him and his wife in
New York City.


My partner and I went to the rooming house and spoke with the manager, who
opened the locked door to Nedd’s room. At first sight, the room appeared to be in normal
condition, until we looked closer at the woodwork, and found numerous blood spots,
including, on the side of the lampshade. Under the bed we found bloody items of clothing.


At this point we turned over the mattress and found a huge puddle of dried blood.
My partner, John Markey, immediately called headquarters, requesting a photographer
and a forensic technician. Once these persons came to the scene, my partner
and I interviewed the manager and those tenants who were home at the time. It
should be noted that during this time period we received a message from the Warner
Robbins, Georgia Police Department stating that Joseph Fluellen had escaped from
prison in that city where he was being held on
an armed robbery charge. e message indicated
the Fluellen was believed to have stolen a
car in Georgia which was later recovered in New
Jersey, where he was believed to have friends. It
also indicated that Fluellen had relatives in the
White Plains area.


After receiving this information on Oscar
Nedd’s cousin, an “All Points Bulletin” was sent
out on the car owned by Nedd, and we began a
search of the area and the entire City of White
Plains for Oscar Nedd, his cousin Joe Fluellen,
and Nedd’s car. We continued our interviews with
the manager, tenants and friends of Oscar Nedd.


Our contacts revealed that Oscar Nedd was
well-liked, was engaged to be married to a young
woman, Paulette Reid who, at the time resided at
23 Old Mamaroneck Road, White Plains. Contacting
Miss Reid, we discovered that she and Oscar Nedd were in love and were planning
to be married. She stated that he called her every day, and she also indicated that
Oscar worked two jobs, and had saved close to $2,000 which was for their wedding,
planned in the near future.


Paulette said that on or about December 18, 1974, Oscar told her he had received
a phone call from Joe Fluellen, and that he was at the White Plains Train Station, and
had asked if Oscar could pick him up. She said, when he did, Fluellen told him he
had shopli ed in Georgia and was out on bail, and that as soon as he could, he was
going to return to Georgia, but needed a place to stay for the time being. Oscar told
her that he knew Fluellen was not a good person, and that he had once shot a relative
in Florida that was never reported to the police. He said he didn’t want his family
to think he would turn his back on a relative who needed help so he agreed to allow
Fluellen to stay with him.



Decision Declaring Oscar Nedd ‘Legally Dead’,


Oscar Nedd Was The Victim Of Foul Play”


Paulette also said that about a week later Oscar told her, while he was at work,
that Fluellen was going through his things in the room. On January 1, 1975, Oscar
and Fluellen stopped by Paulette’s apartment on their way to visit Oscar’s sister in
New York City, and then stopped at her place again on their way back. This was the
last time she ever saw Oscar. Paulette added that before going to New York, Oscar
told her that he was going but did not want her to go with them as he was upset over
something he had learned about Fluellen.


In our interview with Nedd’s sister and her husband we were informed that, while
at their apartment, Nedd told them he had something to tell them about Fluellen that
he had just learned. But, because Fluellen was there, he could not speak about it at
the time. We were also advised that Nedd had a doctor’s appointment for January 6,
1975 which he never kept. We continued our search for Nedd’s body and interviewed
friends and neighbors.


Some time in February of 1975 we received a bulletin that two male blacks, using
a car registered to Oscar Nedd, had been involved in a holdup in Arizona, but the
subject had gotten away. A week or two later we then received a call that two subjects,
Oscar Nedd and Willy Marshall, were arrested in Las Cruces, New Mexico, in Nedd’s
car for armed robbery. I called Las Cruces authorities and advised them that I did not
believe the subject who identified himself as Oscar Nedd was Oscar but was, in fact,
Joe Fluellen. As for the other subject who identified himself as Willy Marshall, I had
no idea who he was. Further interviews revealed that the subject, claiming to be Nedd,
admitted he was Joe Fluellen.


My partner and I requested permission to go to New Mexico and speak with
Fluellen, but we were denied. I could not believe the total lack of interest by DA Carl
Vergari and White Plains Police Commissioner John Dolce. They each reasoned to
me that the New Mexico Police would ‘handle the rest of the case.’ I replied, ‘How can
they handle it when they do not know the facts in this case?’ Again I was denied. I
later was advised that both subjects were convicted of armed robbery and sentenced
to 15 years in jail but had been released after serving only two and a half years.


I continued to work on the case with a new partner and, in 1977, we re-interviewed
a tenant in the rooming house whom I always felt knew more than he had said when
first interviewed. This resulted in his signed, notarized statement in which he said that
on January 1, 1975 he did, in fact, see Fluellen carrying what he believed to be a body
rolled up inside of a rug, place it in Nedd’s car, and drive off. Again, this information was
totally ignored by DA Vergari and the White Plains Police Department.


We continued to work the case. And, then, in June of 1978, I walked into the of-
fice of the Chief of Detectives Bernard Seit and saw a report in a folder marked Las
Cruces, New Mexico. I asked for permission to review the report, but was denied. At
this point I indicated now that I had 24 years of service, I was going to retire, knowing
this was the only way I could follow up on the case. Commissioner John Dolce called
me into his office and asked me to reconsider. I did, for the next several months, and
then put in my retirement papers in October, 1978. The following week I began to
investigate on my own, an investigation which has taken me all over the country. The
first place I went to was Marshallville, Georgia, where I spoke with Iris Rumph, Oscar
Nedd’s sister. She told me that Oscar was a good student, and also a good athlete, who
had never been in any trouble with the law. His goal in life was to further his education
and become a journalist, but their family was very poor and so he left and went to
live in Florida with an aunt, after which he went to New York, settling in White Plains.
He kept in constant touch with his family. Iris further added that when she learned
that Joe Fluellen had escaped prison and was with Oscar in New York, she had called
her brother December 31, 1974 advising him to tell Fluellen to leave. I believe this accounted
for what Oscar said he had to tell his sister in New York, but was hesitant to
do so in Fluellen’s company.


Over the past 31 years, I have been to Georgia eight times, speaking with relatives and
friends of Oscar. The next stop for me was the police station in Warner Robbins, Georgia.
There I discovered Joe Fluellen’s lengthy record of numerous crimes, ranging from armed
robbery and burglary to rape, and that this particular department had outstanding warrants
for his arrest. I continued my interviews with friends and relatives, discovering in
1993 that Joe Fluellen was wanted in armed robberies all over the South.


All this time I kept thinking of the report I was denied access to, and then I
requested permission to review the case again. When I was allowed to do this, I discovered
the report which had been directed to Captain Seit was from a former NYS
Police Lieutenant who was now assigned to the crime commission in New Mexico.
While reading the report I was shocked to learn that Fluellen had stated, in interviews
with FBI agents, that on or about December 15, 1974 he and Oscar Nedd decided to
go to California where Nedd met a girl in San Francisco. Fluellen said that Nedd failed
to show up at a pool hall one night and that he decided to drive back to Georgia by
himself, leaving Oscar Nedd in California.


Fluellen further stated that on January 8, 1975, another friend, Willy Marshall,
who had just gotten out of prison, decided to return to California with Fluellen. Fluellen
admitted that on their way back to California they did the holdups in Arizona and
New Mexico. The report also indicated an interview with Willy Marshall stated that
Marshall first met Fluellen while doing time in prison in Georgia. Fluellen escaped
this prison, and the next time Marshall saw him, was on January 8, 1975 when he was
released. At that time Fluellen asked him if he wanted to go with him to California,
and he agreed. Marshall indicated that while in the car he had asked Fluellen where
he had got it, and Fluellen responded that his aunt in New York gave him the car.
Marshall also revealed that Joe Fluellen had about $2,000 on him and that whenever
they stopped, he used Oscar Nedd’s name as identification for hotels, etc. He stated
that he saw what he believed to be blood in the car. He did not know who Oscar Nedd
was, nor did he ever see him.


On further investigation, I learned that both men had been given polygraph tests
and that Marshall had passed, and Fluellen had not. The same report included a statement
from the writer who said the car was released to an insurance company and that,
in his opinion, Fluellen was a hardened criminal who would continue a life of crime.
Fluellen had committed over 20 armed robberies and five armed bank robberies in Florida
where he was arrested in 1995, convicted, and sent to Federal prison in Georgia.
After gathering all this information, I met with Commissioner John Dolce to discuss
it. His response to me was, ‘this is an embarrassment to the Department.’ He
repeated this again, leading me to the conclusion that in his way he was asking me to
back off. I indicated that I wanted the District Attorney advised. Approximately two
weeks later I met with Commissioner Dolce, a top assistant district attorney, a captain,
two lieutenants and detective who worked out of Commissioner Dolce’s office. I gave a
verbal account of what I had discovered and placed the report in front of the assistant
DA, who refused to read it, stating that without a body the district attorney would not
consider the case. I responded to all present, ‘I want to make this perfectly clear. The
evidence in this case is overwhelming that Joe Fluellen murdered Oscar Nedd, and I
will do whatever it takes to bring this case before a grand jury.’ I continued my investigation
for the next two years and learned that Fluellen had been arrested in Miami,
Florida for five armed bank robberies. I went to Miami and received permission to
speak with him. I believe the only reason he agreed to speak with me was because he
didn’t know what I had discovered thus far. During our conversation he never denied
killing Oscar Nedd, but only repeated, ‘You can’t prove it.’


I met with DA Jeanine Pirro, who succeeded Carl Vergari, who had been the
DA when this case occurred. Those present at the meeting, besides Pirro and myself,
included her First Assistant and the chief of her Homicide Division. After giving her
all the information to date, her exact words to me were, ‘With all that evidence, why
didn’t you arrest Fluellen?’ She indicated that she would assign her investigators to assist
the White Plains Police Department with this case. I had made plans to go to California
to check out a gas station in San Francisco where Fluellen had taken Nedd’s car
for repairs. The receipt for this work was still in his possession when he was arrested
in New Mexico. When I returned back east, I set up a meeting with two detectives assigned
by Commissioner Dolce to reinvestigate this case. And, at that meeting, I was
asked if I had a copy of the case file, which I did not, but at the time I wondered why I
was asked. I was also asked by the detective who was at the meeting with the assistant
DA if I had copies of the negatives of the photos taken at the crime scene, which I did
not. Again, I wondered about these inquiries and was frustrated that the only thing
done by these detectives since reinvestigating the case was to ascertain that Oscar
Nedd’s social security number had not been used since his disappearance.


I realize that since this case was getting old, and a body was never discovered, those
new to the investigation did not consider it a priority. I decided to investigate by retracing
Joe Fluellen’s whereabouts after Nedd’s disappearance. I surmised that he may
have traveled straight to Georgia to see Willy Marshall, and that he was familiar with
areas in New Jersey as stated in his past interviews. I contacted the New Jersey State
Police and, with their help, I checked for any unidentified bodies found between 1975
and 1980. I discovered the records of an unidentified black male, age approximately
24, same height, same weight, whose remains were discovered on Route 80 in the area
of the Delaware Water Gap. The medical examiner’s report indicated that the remains
were found in 1976 and were believed to have been there for a year. I felt that because of
Fluellen’s ties in New Jersey and his familiarity with this area, that this could be the remains
of Oscar Nedd. Two weeks later the medical examiner said he had made an error,
and changed the sex of these remains from male to female. Since late 1990 I was aware
of new advancements in DNA testing and felt the New Jersey medical examiner was
unsure of the gender of those remains found in 1976. Once again contacting the New
Jersey Police, I discovered that since the first change, a pathologist changed the findings
back, the gender being male. With this new discovery, I traveled to Georgia, and asked if
I might speak with Oscar Nedd’s mother. I learned that his father had passed away, still
grieving over his son, Oscar. His mother was at the doctor’s office, where I visited and
spoke with her and her doctor in the presence of her daughter, Ms. Rumph, regarding
getting a blood sample for a DNA match test to the remains found in New Jersey. Both
agreed and, after the doctor had taken the sample and placed it in ice for my trip back

North, I assured Oscar Nedd’s mother that I would not give up on solving the disappearance
of her son whom she still grieved for every day.


Once I returned to White Plains, I went directly to Commissioner Dolce’s of-
fice with the new information and the sample, but he refused to accept the sample. I
left his office and went directly to New Jersey to give the sample to the State Police.
After a few weeks had passed, I was told the New Jersey Police could not locate the
remains found in 1976. However, after repeated calls and letters, it was approximately
six months later they were located and sent to the FBI Crime Lab.


I waited three years, with many phone calls in between, and finally decided to
go to the Warren County prosecutor’s office directly. On my way there, I stopped at
the New Jersey State Police substation in Totowa and spoke to Lt. Smeltz. I started to
tell him why I was in New Jersey, and where I was headed, and he started shaking his
head back and forth and told me he knew of me. Asked how he had heard of me, he
stated that he was notified of the remains being misplaced, and that those remains
were signed out in 1985 and were never signed back in until my repeated calls to the
Warren County Prosecutor’s Office. I received a call from Frank Murphy who said he
was a former police officer in Paterson, NJ and a former Secret Service agent. He indicated
he was currently a forensic science teacher at Seton Hall University and Ramapo
College. He asked for a meeting, which I agreed to. I told him all of the facts and he
responded with his desire to assist in getting the case prosecuted. Murphy asked if I
would be willing to discuss the case with his class at Ramapo College, which I did.


After my discussion, the class of thirty would-be ‘forensic scientists and lawyers’ voted
on whether they would indict if on a grand jury, and everyone said they would. In
one of our numerous discussions Murphy said we needed to get Oscar Nedd declared
legally dead, and together we began this next step.


During this time Frank Murphy sent a letter to the Westchester County DA’s of-
fice and Commissioner Dolce indicating who he was and that he believed an injustice
had occurred regarding this case. He suggested that the case be turned over to the
New York State Police. Jeanine Pirro’s office called the White Plains Chief of Police,

William Bradley, and asked him to contact Frank Murphy to see what was going on.
When Bradley called Murphy, he said there was absolutely no forensic evidence in the
case or photos of the scene. Frank’s response was, ‘if that is true, Chief, why did you or
one of your detectives tell a reporter with the Newark Star Ledger that the very small
amount of blood found in Nedd’s room was animal blood?’ The chief had no answer
for this and, although he said he would get back to Frank, he never did. I reminded
Frank that Bradley was not at the scene in 1975, but I was, and I know what I saw.


The very next day I went to the office of the Westchester Forensic Lab, and the head
of the department, Frank Drummond, happened to be in the building. He agreed to
see me. When we reviewed the report of the Oscar Nedd case, he said he was familiar
with this one in particular, saying, ‘Oscar Nedd case, right? There was a lot of blood in
that room. Without a transfusion, no one could survive that amount of blood loss. 59
North Broadway, right? It was in 1975, I’ll never forget it, my first big case.’ He said he
started in forensics in 1973 and got that case in 1975. He agreed to give me copies of
his reports if I would give him a foil letter. I arrived the next day with the letter, and he
gave me over 15 pages of reports and notes on the case. He then said, ‘We take photos,
but when a department like White Plains calls, they have their own, so we did not take
any that day.’ Frank Murphy called Frank Drummond to verify what he had said, and
Drummond repeated to Murphy what he told me the day before.


Efforts to declare Oscar Nedd legally dead were started. I went to the Surrogate
Court in White Plains and spoke with the chief clerk and advised her of my reason for
being there. The head clerk for Judge Scarpino instructed her to give me the forms and
procedure requirements. This took about six months.


I made several attempts to meet with the new White Plains Commissioner of
Public Safety, Frank Straub, who finally returned my call and agreed to meet with me.
The next day an Inspector Jackson called me and said he and Commissioner Straub
would meet with me at a diner in North Castle, outside the city limits. I knew this was
being done for one reason only, and that was to show interest in the case, but not in
Police Headquarters with Chief Bradley present. I met with them, and was told that
instead of going to the DA, Straub was going to assign a detective named Tim Byrne,
who worked out of the White Plains office but did not report to Police Headquarters.


Three weeks later I received a call from Detective Byrne, who said he could not locate
the case file and asked if I would meet with him at the same diner. He asked me for
details in the case, which I gave him entirely.


In November 2005 I was notified by the Surrogate Court that a hearing would be
held on December 8. At that hearing, a judge assigned a lawyer to the case. When he
did, I served a subpoena on the Records Division of the White Plains Police Department
for the case file, which was never produced to the Court. Instead, I got a call
that Investigator Byrne was very upset over the subpoena, and did not produce any
records and further indicated photos could not be located. I knew then why the two
detectives asked me if I had any copies on this case, and why Detective Byrne could
not locate the file. It was clear that someone had removed this file from the case folder.


Byrne also told me he could not locate any of the witnesses I had told him about.
All are unaware of this. I have spoken recently with the number one witness in
this case, in the presence of another witness who will verify this, and she reiterated
to me what took place on January 1, 1975. When I asked her if she would speak to a
reporter with Eyewitness News she refused, saying, ‘I know if I am subpoenaed I will
have to testify under oath, and I will, but I will not speak before any camera. I have not
slept well in 31 years for fear of Joe Fluellen, who will have me killed if I do.’ It should
be noted that I met with the New York State Police Investigative Unit which informs
me that the evidence is very strong proof that Fluellen did murder Oscar Nedd. But,
because of political reasons, they will not take over this case.


After reading what took place in this case one must consider the following facts.
It will clearly prove what occurred to cover up what was done and not done in the
murder of Oscar Nedd.


1. In an investigation of a murder, the family is always interviewed not only for
the possibility of being involved, but for information that could help in the case. No
one other person other than myself ever spoke to any of Oscar Nedd’s family.


2. When Fluellen was arrested in Las Cruces and interviewed, he was in possession
of Nedd’s car, which was used to transport his body across state lines. This car
should have been brought back to White Plains and held as evidence. Instead it was
turned over to an insurance company according to the Las Cruces report and the family
was never notified.




3. Photos of the blood in Nedd’s room are missing from the case file.


4. When I served the subpoena on the Records Division of the White Plains Police
Department for the case file to be given to the Surrogate Court, it was never done.


5. Detective Tim Byrne, who was assigned to the case by Commissioner Frank
Straub, told me he could not locate the case file for several weeks, and then said there
were no photos. He was also upset over the fact that I had subpoenaed the case file.
Why would this bother him other than he knew things were missing?


6. Detective Byrne also said he could not locate any witnesses and yet the star witness
in the case, Paulette Reid, lives right in the heart of White Plains.


7. Joe Fluellen told the FBI that he left Oscar Nedd in California in the middle of
December 1974 when in fact he and Oscar Nedd were visiting Nedd’s sister in New
York on January 1, 1975. There are six eyewitnesses to this.


8. There were three DAs in White Plains who failed to listen to the evidence in
this case as follows:


• Carl Vergari did not think it was worth the time, effort or money to send
investigators to New Mexico to speak with Joe Fluellen simply because he was arrested
for armed robbery and that was justice (Fluellen got out in two and half
years and went on with his life of crime).


• In my interview with Jeanine Pirro and two of her top aides after hearing
the evidence back in 1995, she said, ‘With all that evidence, Detective Avery, why
didn’t you arrest Joe Fluellen?’ When she learned that Vergari refused to pursue
the case, she backed off and refused to proceed with the case.


• Janet DiFiore has refused to meet with me simply because she does not want
to become involved and, like Pirro, refuses to listen to the overwhelming evidence,
which she knows would reveal what her predecessors did.


9. The commissioner at the time of this case was John Dolce. When I discovered
the Las Cruces report and what it contained, I went to speak with Dolce who, upon
hearing what I discovered, said, ‘This is an embarrassment to the department.’ I could
not agree more. It is and should be an embarrassment to allow a criminal like Joe
Fluellen to get away with murder. It is not only an embarrassment; it is a miscarriage
of justice. Commissioner Dolce also said, ‘Austin, you’re not making any friends here.’
My answer to that was, ‘I’m not looking to make friends. I’m looking for justice for a
poor Black family who lost a son and a brother.’


10. One must ask oneself: Why would Joe Fluellen take the rug from the room
other than to hide the body?


11. When the new Commissioner of Public Safety, Frank Straub, finally agreed
to meet with me, it was not in police headquarters or in his office. It was in a diner
outside the city limits. Also present was Inspector Jackson. I knew that he was only
meeting with me to establish the fact that he did, but I agreed to this because I wanted
to hear what he had to say. When I advised him and Inspector Jackson of the facts, he
listened and said nothing. I then asked him if he was going to request the DA to put
this before a Grand Jury and his response was, ‘Oh no. I will assign a detective to the
case for further investigation.’ I knew then that I was right and he was only meeting
with me to keep me quiet, but this will never happen.


12. When I spoke with an investigator with the State Police, his response was,
‘Detective Avery, you have the case solved and I would like to take this case.’ Two
weeks later he said, ‘I’m sorry but my superiors will not take over the case because
of political reasons.’ In other words, they didn’t want to offend the DA or the Police
Commissioner. How do I tell the Nedd family this?


This case is not only a failure to prosecute Joe Fluellen who killed Oscar Nedd, but
it is a clear picture of what those in power did to cover up what took place. There is no
doubt whatsoever that it was done because Oscar Nedd was Black and was perceived
as no one of any particular importance. This case was a very easy case to solve. It did
not take a Sherlock Holmes to solve it. Like DA Pirro said, ‘With all the evidence, why
didn’t you arrest Joe Fluellen?”


Analysis:

Joseph Fluellen, who has been incarcerated in Federal Prison for several years,
having been convicted of Armed Bank Robbery, is scheduled to be released, possibly
as early as next year. Retired Detective Avery’s concern is shared by The Westchester
Guardian. We believe that there is a very real possibility that Fluellen, upon his
release, may seek to silence those in Westchester capable of testifying and pointing a
finger in his direction for the murder of Oscar Nedd. We further believe it is incumbent
upon the District Attorney’s Office to avail itself of the evidence amassed over
more than 30 years by a dedicated, right-thinking detective who has lived by his
personal credo, “Quitters never win; winners never quit,” in his search for truth and
justice for Oscar Nedd’s loved ones.