Pablo Fernandez - "Overwhelming Evidence" Perjury

Fernandez, Pablo; murder; NRE: mistaken witness identification, perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury, witness tampering or misconduct interrogating co-defendant, perjury by official; "OVERWHELMING"

Suggestibility issues

[670:840]; 1st Dept. 4/2/98; affirmed

"[Fernandez] [???] was hired by Jose Luis Marte to shoot Ramon Quintero, with whom Marte had an ongoing dispute. Marte was the head of a drug-selling gang known as the Red Top Crew, of which [Fernandez] was a member. On June 10, 1993, a man with a ponytail got out of a car in front of 504 West 135th Street and fired multiple shots from an automatic weapon at the persons in front of the building. Quintero was killed and another man was injured. Four eyewitnesses observed the shooting and identified [Fernandez] at trial as the shooter. [Fernandez] [supposedly] admitted to two members of another drug gang that he had shot Quintero and 'left him like a piece of shit on the floor.'

"On appeal, [Fernandez] contends that the trial court erred in denying him his...motion to set aside the verdict on the ground that the prosecution failed to disclose exculpatory Brady material...The alleged Brady material was the allegation that one of the police witnesses who testified at trial, Police Officer [Albert] Melino, had been under investigation for selling drugs in 1991 or 1992, a few months before he entered the police academy. In fact, Officer Melino was arrested based on these allegations two days after the jury convicted [Fernandez] in this case."

[Motion to vacate denied by county court, saying Melino was not crucial to Fernandez's conviction.]

"There is not one iota of evidence that the identifications were the product of coercion or suggestion,* or that Melino harbored some secret motive to influence four witnesses to falsely implicate [Fernandez]."

[* That's false. As we shall see below: "Witnesses described the gunman as a light-skinned man in his 30s or 40s, with a slight build and gray hair that was in a pony tail."

"Fernandez was much younger than the description of the gunman, did not have gray hair, had a stocky build, and was dark-skinned."

All of the above was known at the time. Given the fact that these 'witnesses' 'identified' Fernandez as the gunman, despite the fact that Fernandez did not actually fit the description of the gunman given in terms of these four extremely important physical characteristics, the only logical conclusion that can be drawn is, in fact, that 'the identifications were the product of coercion or suggestion.'

Also, recall that, according to the NRE, factors contributing to this wrongful conviction included mistaken witness identification, perjury/false accusation, police officer misconduct, knowingly permitting perjury, witness tampering or misconduct interrogating co-defendant, and perjury by official. ]

"[G]iven the overwhelming evidence of [Fernandez's] commission of the murder..."

[The 1st Dept. 'justices' who signed off on this decision were Milton L. Williams, Ernst H. Rosenberger, E. Leo Milonas, and Angela M. Mazzarelli. ]

2006 WL 121943; S.D.N.Y. 1/18/06; procedural motions granted

"While Fernandez's habeas petition was pending in the Second Circuit, on April 22, 2003, his attorney...filed a motion in state court to vacate Fernandez's conviction based on, inter alia, newly discovered evidence...The...motion was supported by affidavits from, inter alia, two eyewitnesses, who had identified Fernandez at trial as the shooter, recanting their trial testimony and stating that their identification of Fernandez was the product of Officer [Albert J.] Melino's conduct, and a third person, the second victim of the shooting, who had not been found by police at the time of trial and who stated that Fernandez was not the shooter."

916 F.3d 215; 2nd Cir. 2/22/19; writ granted, due to trial court error in rejecting recantation

"[W]e conclude that the state court's rejection of Jesus Canela's recantation -- in part, premised on the finding that Canela was 'trying too hard to be convincing'*... -- was an 'unreasonable determination of the facts in light of the evidence presented'...and therefore that the state unreasonably denied Fernandez's (second) motion for a new trial. Accordingly, we reverse."

[* What in the world does that mean? (Seemingly, nothing whatsoever.)]

from NRE synopsis (by Maurice Possley):

"Quintero was killed and 18-year-old Henry Gomez was struck in the neck and left hand, but survived.

"Witnesses described the gunman as a light-skinned man in his 30s or 40s, with a slight build and gray hair that was in a pony tail.

"The crime was still unsolved in 1994 when police, during an investigation of street gangs selling crack cocaine in Manhattan, obtained the cooperation of Raymond 'Dillinger' Rivera, Jr. and Martin 'Chango' Mejias, who were leaders of a gang known as YTC, which alternatively stood for Young Talented Children or Yellow Top Crew (for the color of the tops of the vials of cocaine that were sold). Both admitted to commiting hundreds of felonies, primarily drug sales and weapons crimes, but also ordering murders and violent assaults.

"According to detectives, Rivera said that Pablo Fernandez had admitted he shot Quintero. Mejias said that Jose Luis Marte, the leader of the Red Top Crew, another crack-selling gang, told him that he hired Fernandez for $2,500 to kill Quintero because Marte was angry at Quintero.

"On June 13, 1995, Fernandez, who was 20 years old at the time of the shooting, was indicted on charges of second-degree murder, first-degree criminal use of a firearm, and second- and third-degree criminal possession of a weapon.

"On July 13, 1995, Detective Albert Melino, who was one of the lead investigators on the case, brought [two 13-year-old boys], who were cousins of Quintero, to the police station. There, they identified Fernandez as the gunman, even though Fernandez was much younger than the description of the gunman, did not have gray hair, had a stocky build, and was dark-skinned.

"In January 1996, Fernandez went on trial in [Manhattan]. [One of the cousins], who was 13 at the time of the shooting, identified Fernandez as the gunman. [The other cousin], who was just days away from turning 14 at the time of the crime, also identified Fernandez.

"Two other witnesses, Jesus Canela and Manny Medina, also testified that they had identified Fernandez as the gunman. Canela said that police knocked on his door a couple of weeks prior to the trial offering protection to anyone who would talk about the case. Medina gave conflicting versions of his location, and testified that he was playing dominoes on the corner when he saw the gunman through the window of the car as it passed. He said Fernandez was the passenger and he was laughing.

"Two other witnesses testified, although neither identified Fernandez. Both said the gunman was a light-skinned man and one said the gunman had long gray hair.

"The prosecution contended that Fernandez had been wearing a disguise that made his hair appear gray."*

[* Oh really. And did this 'disguise' also transform his build from stocky to slight, as well as his complexion from dark to light?]

"Mejias and Rivera testified that Fernandez admitted shooting Quintero and that after he shot him, he picked up a shell casing from the final shot. No witness...ever said the gunman had picked up any shell casings. Rivera and Mejias said Fernandez claimed he left Quintero 'like a piece of shit on the floor.'

"Gomez, who had survived his wounds, did not testify. Police said they could not locate him, although they were looking for him under a different name.

"Fernandez's defense attorneys presented a photograph of Fernandez taken two months prior to the shooting. His hair was not gray, and it was too short to have grown long enough to be in a ponytail in two months.

"The only charge submitted to the jury was second-degree murder. On February 6, 1996, the jury convicted Fernandez.

"Nine days later, on February 15, 1996, the defense was informed that Detective Melino had been arrested on February 9 on charges of possession and sale of cocaine in 1991, before he was a police officer.

"Fernandez's attorneys filed a motion for a new trial, claiming that the prosecution had failed to disclose evidence of Melino's criminal conduct, whch could have been used to impeach his testimony at the trial.

"At a hearing on the motion, evidence showed that in 1991, undercover New York State Police officers were investigating the trafficking of cocaine from New York City to Ulster County...The undercover officers were introduced to Melino -- who was not yet a police officer -- who sold one of the undercover officers a half a kilogram of cocaine. The undercover officers reported several conversations with Melino during which they negotiated the purchase of two kilograms of cocaine from Melino for $40,000. Although a meeting was set up to make the purchase, Melino never showed up.

"One of the undercover officers and his supervisors claimed that Melino had bragged at the time that he was on the list to enter the New York City police academy. At the time, despite numerous inquiries of the New York City applicant investigations unit, the undercover officers were repeatedly told that Melino was not a recruit. The investigation of Melino went dormant at that point.

"But in January 1996, about the time Fernandez went to trial, one of the undercover officers saw a photograph in a newspaper of Melino receiving an award for his work as a police officer in breaking up Harlem-based cocaine-selling street gangs. Ultimately, a call was placed to the [NYPD] Internal Affairs Bureau to advise them about the prior investigation. Copies of the audiotaped conversations with Melino as well as surveillance photographs were sent for review.

"[ADA] William Burmeister testified at the hearing that on January 30, 1996 -- while Fernandez was on trial -- Burmeister met with the chief of the Internal Affairs Bureau and Melino's name came up randomly. The IAB chief told Burmeister about the drug-dealing operations. Burmeister said he was 'very skeptical' of the allegations because of the state police investigators' failure to pursue such a serious case. Burmeister said, however, that he reviewed the state police file, interviewed the undercover officer, and listened to the audiotapes.

"On February 8, Burmeister authorized Melino's arrest. On February 10, 1996, the day after the arrest, the drug possession and sale charges against Melino were dismissed and the case was sealed. Melino was subsequently dismised from the [NYPD].

"Burmeister said he was not aware that Melino was testifying in the Fernandez case or any other case.

"The trial judge denied the motion for a new trial, ruling that the prosecution's obligation to disclose the allegations against Melino was not triggered until February 8, when Burmeister approved Melino's arrest.

"Fernandez was then sentenced to 25 years to life in prison."

"In 2001, [the two (at the time of the crime) 13-year-old cousins of Quintero] told Quintero's mother, Rosa Rosario, who also was their aunt, that they had testified falsely. Both said that Melino had shown them a photograph array and pointed to Fernandez, saying that he was the shooter.

"In 2003...a petition seeking a new trial [was filed]. The petition was accompanied by affidavits from [the two cousins of Quintero] recanting their identifications of Fernandez. The petition also contained an affidavit from Henry Gomez, who had survived the shooting that killed Quintero. Gomez said that Fernandez was not the gunman.

"Gomez also said that after he was released from the hospital, he went to the police station and viewed photographs. He said he told the police that he did not recognize anyone as the gunman. There was no record of which photographs Gomez viewed, and Fernandez's defense had not been informed that Gomez had failed to identify the gunman.

"[T]he trial judge denied the petition for a new trial. The judge found that [one cousin's] recantation and Gomez's negative identification were not credible.

"In 2010, another petition was filed accompanied by an affidavit from Canela, who also recanted her identification of Fernandez. Canela testified at a hearing that Melino told him to identify Fernandez. The trial court again denied the motion for a new trial, concluding that Canela's recantation was not credible. Fernandez was denied permission to appeal."

"In 2009, a private investigator had interviewed Mejias, one of the two gang members who claimed Fernandez admitted shooting Quintero. Mejias said he had lied at the behest of the prosecutor and the detectives, including Melino. Mejias said that after he began cooperating, police took him to bars, where he got drunk and was provided with women to have sex with.

"In 2014, federal Magistrate Judge Gabriel Gorenstein recommended that the [federal writ of habeas corpus] be denied because the state court denials had been reasonable decisions. U.S. District Judge Kimba Wood adopted the recommendation and Fernandez's lawyers appealed.

"In February 2019, the U.S. Court of Apeals for the Second Circuit reversed and granted the writ."

"The prosecution then offered Fernandez an opportunity to plead guilty to manslaughter in return for his immediate release. Fernandez refused the offer.

"He was released on bond on August 2, 2019 pending a retrial. On September 13, the prosecution dismissed the charges.

"In June 2020, Fernandez filed a claim for compensation in the New York Court of Claims. In December 2020, he filed a civil rights lawsuit seeking further compensation. Fernandez settled the lawsuit in 2022 for $12 million."

[All emphases added unless otherwise noted.]