Jose Garcia & Carlos Morillo - Perjury, Police Misconduct

Garcia, Jose AND Morillo, Carlos; murder; NRE: perjury/false accusation, inadequate legal defense, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

[both] [632:62]; 1st Dept. 9/26/95; affirmed

"[W]e find no police impropriety in connection with the photo and lineup procedures conducted.

"We note that...Morillo's specific claims on appeal of an unduly suggestive lineup were made before the trial court and were rejected; we also reject them.

"Contrary to the claims of [Garcia and Morillo], the record supports the jury's determination that the testimony of the identifying witness [Penny Denor] was reliable...The witness's concern for her son's safety prompted her to focus on [Garcia and Morillo] and their activities below her fourth-floor apartment window for approximately one minute, aided by excellent lighting conditions."

[Garcia] 2006 WL 3040903; S.D.N.Y. 10/26/06; writ denied

[Garcia had a boarding pass issued in the Dominican Republic on the day of the murder. He also spoke with someone in the U.S. on the phone from the Dominican Republic that same day.]

[Morillo] [957:88]; Bronx Cty. Ct. 10/6/11; motion for new trial granted, due to recantation, newly-discovered evidence, and police credibility issues "[Morillo] and his co-defendant, Jose Garcia...were convicted after a jury trial based on identifications made by a single eyewitness, Penny Denor...a woman with a lengthy psychiatric history, the details of which were largely unknown to [Morillo] at trial. * She testified that she looked out her fourth-floor window at midnight and saw [Morillo]** and two other men with guns approach her building. As she ran downstairs she heard five gunshots and saw the back of the men as they left the scene. Although her fourteen-year-old son, John Garey...was out on the street and witnessed the shooting, he was never called as a witness at trial.*** The [prosecution] did not present any physical evidence, motive evidence or any other evidence to corroborate Denor's identification of [Morillo] as one of the shooters."

[* This was also true of 'Arthur' in the Nickel case. The defense never did find out definitively what conditions his numerous psychiatric medications had been prescribed for. ]

[** We have now seen several wrongful-conviction cases in which an alleged eyewitness claimed to have been able to 'identify' someone on the street several floors below; this time, at midnight. This is simply not credible -- at any time of the day. Virtually no one at street level will be looking directly up at the person viewing from above -- much less, (helpfully) remain motionless long enough for someone up there to see and identify their face. (At best, this might be possible from a second-, or

perhaps third-floor window, under near-perfect conditions.)]

[*** This is very fishy, given that he witnessed the crime from street-level. It is quite likely that the reason this young man was not called to testify was because he simply was not able to identify Garcia and/or Morillo as the killer.]

"Denor, a complete stranger to both defendants, has now recanted her trial testimony, claiming she lied when she testified that she saw the faces of the shooters and identified them. She now claims that she did not actually see -- and could not have seen -- the faces of the shooters and that she identified [Morillo] based only on her observation of a photograph of him that she saw in the investigating detective's car. Denor states that she falsely identified [Morillo] out of a strong desire to protect her son, whom she believed was being threatened by the detective and whom she did not want to testify.

"[Morillo]...claims that Garey, now thirty-three years old, viewed photographs of [Morillo] and is certain that [he] was not one of the men he observed shoot Cesar Vasquez.

"Cesar Vasquez was shot and killed in the courtyard of his apartment building...at close to midnight on the evening of July 16, 1991...While [Denor's] testimony at the [pre-trial] hearing and trial was largely consistent, she contradicted herself in the details of her descriptions of the shooters.

"Garey told [Detective Anthony Pezzullo] that he could identify the shooters, and he looked through a book of mug shots. Pezzullo also showed him two single photos and asked if it was 'these two guys' to which Garey said no. When Pezzullo kept asking him about the two men, despite Garey's insistence that they were not the shooters, Pezzullo threatened that he could revive a prior assault and robbery charge if Garey did not cooperate.

[At the hearing on the motion for a new trial:] "Pezzullo was a grudging witness who was frequently abrupt, argumentative, and evasive. He often contradicted himself while testifying, as well as contradicting his prior hearing and trial testmony. Significantly, Pezzullo testified that it was standard procedure to document all identification procedures or important steps in an investigation with a DD5 [form], and that it would be inappropriate to show a witness a single photo of a potential suspect. Yet he testified throughout the...hearing that he failed to document numerous identification procedures, failed to document an interview he had with Garey, an eyewitness to the shooting who told him he could identify the shooters, and also showed Denor single photos of potential suspects."

from NRE synopsis (by Maurice Possley): "During the summer of 1991, Jose Garcia visited his wife's family in Matanzas, Dominican Republic and on July 15 he went to La Union International Airport in Puerto Plata, Dominican Republic, to board a flight to return to his home in the Bronx.

"But Garcia didn't get off the ground. He was arrested for attempting to board a flight on false travel papers. Garcia, who did not have legal status in the United States, was jailed overnight and was bailed out the following afternoon by his wife, Ana Ortega. That night the couple attended a prayer service in Matanzas for the family member of a friend.

"Sometime after midnight, however, Garcia received a telephone call informing him that Cesar Vasquez, an underling in Garcia's drug-selling business, had been murdered earlier that night in the Bronx.

"He would later learn that a witness, Penny Denor Cameron, told police that a car pulled up in front of an apartment building...in the Bronx and three men got out. She heard five shots and came downstairs to find the body of Vasquez in the courtyard.

"Garcia remained in the Dominican Republic until August 2, 1991, when he managed to get to the U.S., but was then arrested for entering the country illegally in California.

"The investigation of Vasquez's death stalled until police received a tip from Garcia's girlfriend in the Bronx pointing to a rival drug dealer seeking revenge for an earlier killing. A detective went back to Cameron, who went through mugshots and picked out a photo of Morillo as the driver and a photo of Garcia as a passenger in the car.

"Shortly thereafter Garcia was arrested in California. He was put in a lineup in New York and Denor identified him as one of the three men in the car.

"Despite his alibi and although Cameron's identification was somewhat shaky -- at one point she said the three men were black and wearing hoods and another time she said Garcia was wearing a flowered shirt -- Garcia and Morillo were convicted on January 8, 1993 by a Bronx jury. Both were sentenced to serve 25 years to life in prison.

"The jury heard virtually nothing about his alibi. His defense attorney put on one witness, Vasquez's sister, who said she had spoken by telephone from New York to Garcia in Matanzas the night of the murder. But the prosecution, in cross-examination, established that she had no personal knowledge that Garcia was in the Dominican Republic because she had not dialed the phone herself -- someone else had dialed and handed her the telephone.

"And even though the prosecution had been advised of Garcia's contention that he was in jail in the Dominican Republic at the time of the murder, the prosecution failed to fully explore whether that was true.

"For the next 14 years, Garcia fought to clear himself." "In 2000, Garcia filed a pro se motion to vacate his conviction, arguing ineffective assistance of counsel for failing to interview alibi witnesses and to obtain documentary support of his alibi. He attached papers documenting his stay in jail and statements of witnesses ready to testify to his presence in the Dominican Republic at the time of the murder and for some time after...Bronx [County] Court summarily denied the motion on December 7, 2000 in a hand-written order. Leave to appeal was denied.

"Garcia, still acting as his own lawyer, filed a writ of habeas corpus in federal court in April 2002." "[U.S. District Judge Lewis Kaplan] was familiar with Garcia's trial counsel, because he was appearing before Kaplan in an unrelated immigration matter. In that case, Kaplan found that the lawyer's performance was 'grossly ineffective.' Judge Kaplan's familiarity with Garcia's lawyer was probably the turning point in Garcia's favor.

"Kaplan sent the matter...to Magistrate [Kevin] Fox, ordered the Bronx [DA] to respond on the merits and appointed habeas counsel for Garcia. On February 16, 2005, Fox granted the request for an evidentiary hearing.

"At the hearing, Garcia's lawyer produced numerous documents proving that Garcia was in the Dominican Republic at the time of the murder. Seven witnesses testified that he was there and four witnesses provided sworn affidavits testifying to the same."

"Garcia's new habeas lawyer showed that the Bronx [DA] knew of Garcia's alibi claim for almost a year before his trial began, but only contacted the U.S. Department of State to request the passport and tourist card that Garcia was carrying when he was arrested. Informed that those documents could not be found, the prosecution ended its inquiry, never seeking the jail documents -- all of which were found by Garcia's habeas counsel years later.

"On December 21, 2006, Judge Kaplan concurred with the magistrate's finding that Garcia's trial lawyer had been ineffective and vacated Garcia's conviction. On February 21, 2007, the charges against Garcia were dismissed and he was released from prison.

"In 2010, the City of New York agreed to settle a wrongful conviction lawsuit brought by Garcia for $7.5 million. Garcia was then back in the Dominican Republic, where he had been deported under a 1999 deportation order stemming from an earlier drug arrest. He also received $450,000 from the New York Court of Claims.

"After Garcia was exonerated, lawyers from the New York law firm of Shearman & Sterling agreed to work pro bono on Morillo's case with the Legal Aid Society.

"The legal team created a video re-enactment of the crime which showed that it would have been difficult for Cameron to see details from four stories above the crime scene. They tracked down Cameron in New Jersey where she was dying of cancer. Cameron admitted she had lied about her identifications.

"Cameron said that a detective pressured her into testifying, knowing that she had not witnessed the crime, because he thought her son had seen it and knew who did it. She said he showed her pictures of the suspects before she identified them.

"In October 2011, Morillo's conviction was set aside and the charges were dismissed. He was released on November 2, 2011."

[All emphases added unless otherwise noted.]