Fernando Bermudez - Perjury / Police Misconduct

Bermudez, Fernando; murder; NRE: perjury/false accusation, prosecutor misconduct, police officer misconduct, misconduct that is not withholding evidence, knowingly permitting perjury, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

C10 [481] "In People v. Bermudez, prosecutorial misconduct consisting of presenting false evidence was sufficient to warrant a vacation of a conviction, and was part of the court's decision to ultimately dismiss the indictment on the basis of 'actual innocence.' The case began in 1991, when Bermudez was arrested and charged with the murder of Raymond Blout. The prosecution's 'central witness' was Efraim Lopez, who informed police that the shooter was a man nicknamed 'Woolu,' and identified Bermudez from a photo lineup. After Bermudez was convicted, Lopez admitted that he identified Bermudez from a photo lineup only after being in police custody for almost thirty hours, that he [482] chose Bermudez out of fear that he would otherwise be charged as an accessory to murder, and that he had never seen Bermudez prior to trial. Moreover, during the trial, the prosecutor did not present any other witnesses who could identify Bermudez as 'Woolu,' convinced Lopez to testify through a cooperation agreement in which Lopez would not be prosecuted, and was unable to show that Lopez knew of a man named 'Most,' which was Bermudez's nickname. The court found this evidence sufficient to vacate the conviction and order a new trial on the grounds that the prosecutor 'knew or should have known' that Lopez's testimonly at trial was false."

[483] "[W]hile Bermudez's 2009 appeal was ultimately successful, it is significant to note that he had brought ten other appeals over the span of his eighteen-year incarceration, all of which had been denied.

[489] "In addition to considering the false testmony of Efraim Lopez, the court also focused on the 'unduly suggestive' and 'coercive' identification procedures used on four of the individuals who had identified Bermudez and testified against him, but later recanted their testimony. In addition, a fifth identification witness admitted that he 'never got a good look' at the shooter, there was a complete lack of any forensic evidence linking Bermudez to the crime, and there was no evidence presented by the prosecution to demonstrate that Bermudez's alibi witness was not credible. Finally, the court noted that at the very least, a new trial was warranted in light of the prosecution's abandonment of their theory of the case* at trial."

[* This happened in Nickel's trial as well, when Judge Paul Czajka instructed/persuaded prosecutor Peter Torncello to abandon the theory that the sexual photograph which was central to the case -- depicted Nickel and 'Arthur.' ]

from NRE synopsis (by Maurice Possley):

"On August 4, 1991, at a nightclub in New York City, some Hispanic and black teenagers began taunting each other, and when words escalated to punches, [one teenager punched another teen].

"Lopez told a man from his neighborhood about the incident, and when Blount and his friends came out of the club prepared for a fight, the man shot and killed Blount. Police showed mugshots of Hispanic men to a group of Blount's friends, and left them to deliberate together about the identification.* The men identified 21-year-old Fernando Bermudez as the shooter."

[* This was a mistake, as it allowed the teens to influence one another regarding the identity of the perpetrator.]

"Lopez initially told police that the shooting was committed by a man named 'Wool Lou,' a former classmate. Though police could have identified 'Wool Lou' as Louis Muniz, they failed to follow up on this statement. Bermudez was brought in for a lineup, although he was taller and heavier than the descriptions originally provided by witnesses.* Police told the men in the lineup to sit down so their height was not noticeable.** All but one witness identified Bermudez as the shooter. The witness who did not identify Bermudez was not asked to testify.

[* Given that Bermudez did not fit witness descriptions of the perpetrator, why was he placed in the lineup?]

[** Why? It's not as if the perpetrator committed the crime while sitting down. Several highly-questionable, bad-faith actions were undertaken by detectives here.]

"Even though Lopez had given police the address of 'Wool Lou' and even though his identification of 'Wool Lou' was on videotape, Lopez made a deal with the prosecution to identify Bermudez as the gunman in return for not being charged in the case."

"In 1993 [the year after Bermudez was convicted], all five witnesses who identified Bermudez at trial recanted their identifications, saying they were pressured by police to identify Bermudez. But Bermudez's post-conviction appeals all failed until November 12, 2009, when a [Manhattan judge] overturned Bermudez's conviction and ordered Bermudez released. [The judge] dismissed the charge with prejudice because the new evidence undermined the conviction, and because the collective identification procedure used by police damaged any possible identification testimony from the eyewitnesses.

"In 2011, Bermudez filed a federal civil rights lawsuit seeking $30 million in damages from the city of New York. In 2014, Bermudez was awarded $4.75 million by the New York Court of Claims. In 2017, the City of New York agreed to settle the federal lawsuit for $7 million."

[All emphases added unless otherwise noted.]