Ricardo Benitez - Prosecutor Misconduct

Benitez, Ricardo; robbery; NRE: mistaken witness identification, inadequate legal defense, prosecutor misconduct, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

[991:133]; 2nd Dept. 8/20/14; reversed, due to prosecutorial misconduct

"[W]e are satisfied that the verdict of guilt was not against the weight of the evidence..."

"[Benitez] was charged with crimes related to the robbery of a Radio Shack store. A detective testified...that he had received information through the 'Crime Tips Office' and that, after further investigation, he began looking for a 'White male Hispanic,' with the possible name of 'Rick.' The detective went to an apartment on the sixth floor of a building located at 82-01 Rockaway Beach Boulevard in Queens, but did not find a person fitting that description. Later that day, however, the detective was provided with information that the person for whom he was looking was in front of the building. Upon arriving there, the detective arrested [Benitez]. The detective also testified that [Benitez]...gave his address as 82-01 Rockaway Beach Boulevard, Apartment 6B.

"During summation, the prosecutor strongly implied that whoever provided that tip had implicated [Benitez]: 'Someone calls 577-TIPS...[the detective] gets the information, and where does he go? 82-01 Rockaway Beach Boulevard, make a left out of the elevator. I'm looking for a guy named Rick who lives on the sixth floor. Ricardo Benitez.' After defense counsel's objection to this remark was overruled, the prosecutor continued: 'Gave Detective Lopez the following address. 82-01 Rockaway Boulevard, 6B. Rick. Ladies and Gentlemen, I introduce you to Rick.' Defense counsel again objected, but [County] Court again overruled the objection.

"The only purpose of the prosecutor's improper comments was to suggest to the jury in this one-witness identification case, that the complainant was not the only person who had implicated [Benitez] in the commission of the robbery...Moreover, in overruling defense counsel's objections, [the judge] 'legitimized' the prosecutor's improper remarks..."

[As is true in the vast majority of convictions which are reversed due to prosecutorial misconduct, the offending prosecutor was not actually named here. Also, it is not at all unusual for the police themselves to call crime 'tip-lines,' in an attempt to improperly shore up an otherwise weak case.]

2018 WL 2973387; E.D.N.Y. 6/13/18; civil suit

"Radio Shack employees Bernadette Johnson and Hazel Rodriguez...described the suspect as a light-skinned African-American or Hispanic male in his 20s or 30s. [They] further reported that the perpetrator had a gun and ran out of the store. Video surveillance showed the perpetrator moving around the store with no visible limp, wearing a sweatshirt with the hood pulled up and interacting with Johnson for no more than thirty seconds. Johnson and Rodriguez viewed photographs of potential suspects...but made no identifications.

"On [the day of the robbery, Benitez] was 54 years old [hardly 'in his 20s or 30s'] and lived across the street from the Radio Shack, but alleges that he was at a rehabilitation center, nearly ten miles away...[The month before the robbery, Benitez had been] diagnosed with necrosis of the hip and was told that he needed surgery. [Benitez] ambulates with the help of a cane."

[Thus, he did walk with a limp.]

"About a week later, [NYPD Officer Paul] Lopez was assigned to investigate...[He] knew that there were no suspects and was aware of both the surveillance video and the description provided by Johnson and Rodriguez. Lopez and [NYPD Sergeant Brian] Stamm conducted a database search to look for parolees in the relevant precinct, and found [Benitez's]...name and address located close to the Radio Shack...Lopez and Stamm brought Johnson in to view a photo array that included [Benitez's] photograph. [Benitez] alleges that Lopez and Stamm deliberately designed a photo array that, contrary to NYPD procedure, unlawfully suggested that [Benitez] was the perpetrator...[They] accomplished this by using a photo of [Benitez] in which he was the only man wearing a hooded sweatshirt and goatee, and was the only man unshaven, with short hair, looking gaunt and sickly. Johnson identified [Benitez] as the perpetrator..."

"[Subsequently, Benitez was placed] in an allegedly suggestive lineup...[H]e was the only person whose photo had been in the array shown to Johnson; appeared 15-20 years older than the 'fillers'; had darker skin (compared to lighter-skinned fillers); was unclean and disheveled (in contast to the clean-cut policeman fillers); was noticeably thinner than the fillers and appeared sickly (whereas the fillers appeared in good health). Johnson identified [Benitez] from the lineup."

from NRE synopsis (by Maurice Possley):

"Johnson told police that the robber was a light-skinned Hispanic man, about 5 feet 6 inches to 5 feet 8 inches tall, and that he was wearing dark pants and a dark-colored hoodie. The following day, Johnson, who was black, viewed mugshots on a police computer, but was unable to identify anyone because the sunglasses and hoodie masked the robber's face.

"A week later, however, Johnson reported that she was walking on the street near her house and saw the robber sitting in a parked car at a red light.* She said she stared at the man for five minutes while the car remained at the red light and realized the man was the robber. The following day, she viewed a photo array at the police staton and selected the photograph of 54-year-old Ricardo Benitez as the robber."

[* Remember: During the robbery, 'the sunglasses and hoodie masked the robber's face.' So, how in the world could Johnson have possibly 'identified' a man sitting in a car as the robber? It would appear that, after a traumatic event, a victim will often be 'hyper-vigilant,' bound and determined to 'find' the perpetrator -- somehow, somewhere. That's quite understandable, given a natural human desire for answers, for 'closure.' But it's also fraught with a high potential for wrongful conviction. The same thing occurred in the Anthony Broadwater case.]

"Benitez was arrested and put in a live lineup. The five others who stood with Benitez in the lineup were all 20 years younger and white while Benitez, who was Hispanic, had a dark tan.* Johnson again identified Benitez as the gunman.

[*Recall that both witnesses described the perpetrator as light-skinned. ]

"In August 2010, a hearing was held on a motion by Benitez's attorney to suppress evidence of the identification. The prosecution conceded the live lineup was unduly suggestive and agreed that it would not introduce testimony at trial about Johnson's identification of Benitez at the lineup.

"At the hearing to determine whether she had an independent basis apart from the tainted lineups to make an in-court identification at trial, Johnson's description of the robber had improved considerably. Johnson testified she stared at the robber's face for about five minutes during the robbery, which she claimed lasted 30 minutes. She said the robber was an 'older gentleman,' in his 50s.* He had a sunken jawline, a goatee, a light complexion, brown eyes, 'a bit of an accent,' and a limp. Benitez was walking with the assistance of a cane when he was arrested. Despite the changes in her description, the court ruled that Johnson could make an in-court identification at trial."

[* Both witnesses originally said the robber was in his '20s or 30s.' But now saying he was in his 50s matches Benitez's actual age of 54. This and other 'helpful' changes are strong indications of coaching by the prosecution.]

"In October 2010, Benitez went to trial...Johnson told the jury that she looked at the robber's face for several minutes [at the hearing, she said 5 minutes] -- although security video showed that the entire incident lasted about one minute and she only faced the robber for a few seconds. She identified Benitez in court as the robber, saying she could see through the robber's sunglasses that he had brown eyes."*

[* Even if this (rather dubious) claim were true, it's essentially meaningless: most people -- and almost all black and Hispanic people -- have brown eyes.]

[Following conviction, and then, reversal:] "In March 2015, Benitez went on trial for a second time...This time, the defense called Steven Penrod, a professor at John Jay College of Criminal Justice and an expert in eyewitness identification research. Penrod testified that numerous factors were present that research has shown adversely affect a witness's ability to accurately identify a perpetrator -- the cross-racial nature of the identification (Johnson was black and Benitez was Hispanic), the presence of a gun, the use of sunglasses and a hoodie, and the very brief time the witness and the robber were in close proximity.

"The defense also called an official from the City of New York who testified that a red light changes to green in less than a minute. That testimony undercut Johnson's claim that she saw Benitez in a car at a traffic light and watched him for five minutes before the light changed and the car moved on.

"On March 11, 2015, the jury acquitted Benitez and he was released after nearly six years in custody.

"[A] lawsuit...in the New York Court of Claims...was settled in 2017 for $675,000. That same year, Benitez filed a federal civil rights lawsuit seeking damages for his wrongful conviction. The lawsuit was settled in 2020 for $1,725,000."

[All emphases added unless otherwise noted.]