Michael Clancy - Mistaken ID

Clancy, Michael; murder; NRE: mistaken witness identification

2005 WL 1560485; S.D.N.Y. 7/1/05; request to amend petition granted

"[Clancy] submitted a letter informing the Court that his private investigator and former attorneys had discovered potentially exculpatory evidence and that he therefore would like to assert new claims in this habeas proceeding...[T]he Court grants [his] request to amend the petition and enlarge the record.

"The murder victim was John Buono, and the murder took place in the early hours of March 30, 1997 at a Domino's Pizza restaurant in the Bronx. According to two eyewitnesses, Mr. Buono entered the restaurant to order a pizza. Shortly thereafter, a man came in to speak with him for a while and then left. Later, another man entered the restaurant and shot Mr. Buono. In a lineup, both eyewitnesses identified [Clancy] as the shooter.

"The potentially exculpatory evidence that [Clancy] presents as the factual predicate of his new claims is in the form of statements made by David Prieto, an alleged eyewitness to the murder who did not testify at [Clancy's] trial. (One of the eyewitnesses who identified [Clancy] as the shooter also identified Mr. Prieto as the man who was with Mr. Buono before he was shot.) Mr. Prieto apparently told federal prosecutors and others that another person was responsible for the killing, but has refused to provide [Clancy] with an affidavit containing this information...Mr. Prieto is incarcerated in a federal prison in California and has demanded that he be brought to New York and to potentially 'get some time knocked off [his] sentence' before he will provide any testimony."

from NRE synopsis (by Kelsey Humpreys):

"Detectives with the [NYPD] investigated the murder as a drug-related killing, and they assembled a photo array of men whom they thought to be involved in selling drugs in the area. The six-pack of photos included a mugshot of David Prieto and 22-year-old Michael Clancy.

"On March 31, detectives showed the array to [a Miss] Ocasio, who was 16 years old and had been working at the restaurant the night before. She identified Prieto as having been with Buono at the tme of the shooting. She did not make any other identifications.

"The next day, April 1, detectives showed the array to [a Ms.] Linton, a customer at the restaurant. She selected Clancy's photo and said, 'He looks like the shooter. He's the shooter.'

"Two days after viewing the array a second time, Ocasio also identified Clancy as the shooter. On April 7, Linton and Ocasio each separately looked at a live lineup and selected Clancy as the man who shot Buono. Police arrested Clancy and charged him with murder.

"On April 11, 1997, detectives interviewed Prieto. He said he had been with Buono when the 'shot rang out.' He did not mention Clancy's involvement and made no mention of the shooter's identity.

"A few weeks after his interview, Prieto was arrested on a parole violation and remained in custody until December 8, 1997. Upon his release, he was immediately arrested by federal agents and charged with a wide range of federal offenses, involving murder, drugs, weapons, and racketeering. Facing the death penalty or life in prison, Prieto agreed to become a cooperating witness against his codefendant in the federal case and entered into a series of proffer sessions with the U.S. Attorney's Office for the Southern District of New York. Under the terms of his agreement, Prieto was to truthfully reveal the scope of his criminal activities.

"During a proffer session in either 1998 or 1999, Prieto told an assistant U.S. attorney about the Buono murder and that the wrong person had been arrested. The federal prosecutor relayed this information to the prosecutor in the Bronx [DA's] Office prosecuting Clancy. The local prosecutor told Clancy's attorney, and also provided him with a copy of the notes taken by the federal prosecutor. The poor penmanship and shorthand used would later be described as nearly 'hieroglyphic' and 'illegible.'"*

[* Much like the medical exam notes for 'Arthur' in the Nickel case (part of the buried evidence. )]

"Clancy's attorney reached out to Prieto's attorney, seeking Prieto's cooperation. 'It is my understanding that Mr. Prieto has named a shooter other than my client,' the attorney wrote on February 9, 1999. 'Moreover, Mr. Prieto knows my client and has stated that Michael Clancy was not the shooter.'

"Two days later, Prieto's attorney responded. 'I have spoken to Mr. Prieto,' the letter said. 'He does not wish to speak with you.'

"Separately, in June 1999, the [ADA] handling Clancy's case forwarded information to Clancy's attorney that said the person named 'Drew,' whom Prieto referred to in his proffer sessions, might be Andrew DeJesus.

"In pre-trial motions, Clancy's attorney highlighted the challenges he faced trying to put on a defense. 'Your Honor should be aware that the U.S. Attorney's Office believes that David Prieto is being honest and truthful when he speaks. [The trial (ADA)] believes that he's being a liar and incorrect. So we have two prosecutors' offices that differ* on this witness.'"

[* There are likely two primary reasons why they differ: 1) The assistant U.S. attorney was the person who conducted the proffer sessions with Prieto; who saw and heard him respond to questions; the Bronx ADA handling Clancy's case wasn't there; and, 2) For the latter to acknowledge that Prieto was right would also mean conceding that they had been absolutely wrong in prosecuting Michael Clancy.]

"Clancy's trial began in late October 1999..."

"Linton made a tentative identification during her testimony. She was asked, 'Are you certain that this is the person that you saw firing the gun?' She responded: 'It looked like him. It just looks like that he got fatter.' Linton said the shooter wore a black ball cap and a light or cream-colored jacket that might have a hood. She said he was about 5'8" tall and 'thin.' A detective who interviewed Linton said she told police in her statement that the shooter wore a white hoodie.

"Ocasio was unable to make an in-court identification. She testified that the shooter wore a white hoodie sweatshirt with the hood pulled over his head. She described the shooter as 5'9" tall with a medium build. (Clancy is 6'1" tall.)

"A firearms expert with the police department testified that the bullet that killed Buono came from a semi-automatic pistol. Linton and Ocasio each testified that the shooter paused for a second after firing his weapon.

"The jury convicted Clancy of second-degree murder and criminal possession of a weapon on November 23, 1999. Justice Denis Boyle later sentenced Clancy to 25 years to life in prison.

"After his conviction was affirmed on appeal, Clancy moved for post-conviction relief in 2006 based on new evidence, specifically Prieto's statements to federal prosecutors. The state argued that this was not new evidence; Clancy's attorney was aware of the gist of Prieto's comments, and his unwillingness to testify did not require vacating the conviction.

"Justice Boyle held an evidentiary hearing in 2007, where several witnesses, including Prieto, testified about the shooting.

"Prieto described the events leading up to the shooting. Earlier that night, he had seen Clancy and a man he knew as 'Fat Steve' in a van along Leland Avenue. They were with DeJesus, who was in a nearby car. Prieto said he and DeJesus, who was much younger, had a strained relationship and had become rivals in the drug business in this section of the Bronx. Prieto said he taunted DeJesus that night, saying that DeJesus wasn't as tough as he thought he was.

"Prieto said he and Buono, who had agreed to a drug-dealing alliance with Prieto, were at the Domino's when DeJesus came in, firing. He said that Buono fell to the ground. Prieto said he looked over and saw DeJesus, who was wearing a cream-colored sweatshirt, aiming the gun at him. Prieto said that DeJesus tried to fire, but the weapon jammed, giving Prieto time to draw his weapon. DeJesus fled. Prieto said he chased DeJesus, until DeJesus got into the same van that he had seen Clancy and 'Fat Steve' in earlier that night.

"Prieto said he didn't tell the police who shot Buono, because he wanted to take matters into his own hands.

"Prieto said the shooter was too quick to be Clancy, whom he knew well. 'He can't move like that, the way that kid moved. He's not agile enough to move like that. I mean I was there. It was my life that he was trying to take, you know. I remember.'

"As part of Clancy's motion, his attorneys included an affidavit from the Assistant U.S. Attorney who handled Prieto's case in federal court. The federal prosecutor said that if Prieto had testified in Clancy's case, he would have been treated as a non-credible, hostile witness, potentially compromising his use as a cooperating witness in the case in U.S. District Court.

"'At that time I was part of Team U.S.A. and so. . .I was trying to fulfill my obligations to Team U.S.A.,' Prieto said. 'I was facing a life sentence at the time. If my prosecutor didn't advise me to do that, I was not gonna do that. See, although I'm here to make it right today, the first rule of nature is survival, within all human beings is survival. And that, at the time, was in my survival.'

"On April 1, 2008, Justice Boyle granted Clancy a new trial, and he was released from prison.

"Justice Boyle wrote that Prieto's testimony was of 'such force and probative persuasiveness' that it would have likely led to a different verdict if it had been presented at trial.'

"He said that Prieto's testimony at the evidentiary hearing provided details of the crime that created a new, more likely, theory of the crime. Although the state had argued that Prieto was trying to help Clancy by pointing the finger at DeJesus, Justice Boyle said there was no evidence that Clancy and Prieto were friends. They were merely acquaintances. He also said that Prieto's cooperation agreement with the federal government required him to tell the truth, and in his proffer sessions, he admitted lying to the police about what he knew of Buono's shooting.

"'Moreover, it can be seen that had David Prieto provided the Assistant U.S. Attorney with details of the shooting which independent evidence might have refuted, as Prieto well knew, he could have forfeited the benefits of his plea agreement for untruthfulness,' Justice Boyle wrote. He also noted that although DeJesus and Clancy had different heights and builds, they share some facial resemblance.

"On a motion by prosecutors, a judge dismissed Clancy's charges on February 23, 2009.

"Three days later, DeJesus was arrested and charged with second-degree murder in connection to Buono's murder. The case was later dismissed, after a judge ruled that DeJesus would be allowed to use evidence of the Clancy conviction in his defense.

"On September 26, 2012, Clancy settled his claim for state compensation, receiving $2 million for his wrongful conviction."

[All emphases added unless otherwise noted.]