Robert Escalera - Murder / Mistaken ID
Escalera, Robert; murder; NRE: mistaken witness identification, inadequate legal defense, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant
Suggestibility issues
952 F.Supp. 1316; E.D.N.Y. 1/30/87; writ denied
"On August 18, 1975, at approximately 6:00 p.m., Pasquale Nieves and Felix Torres went for a walk in Fort Greene Park in Brooklyn. They were accompanied by Jesus Cordero, his young son, and another friend. After they had been in the park for about thirty minutes, a man approached and asked if they had seen his dog. Shortly thereafter, four young men came up to that man and one asked whether he would give him money if they found his dog. The man said that he had no money.
"Nieves and Torres, together with their friends, walked with the man who was looking for his dog. The four young men followed them. After approximately three to five minutes, the four young men stopped Nieves, Torres, and friends, indicating that it was a holdup. One of the four held a revolver, while the other three had knives.
"Cordero, who was holding a small baseball bat, swung at the gun hand of the man with the revolver. He missed, and the man shot him. The four young men ran away, and Cordero died several days later of the single gunshot wound to his chest.
"Nieves and Torres ultimately identified Robert Escalera as the gunman.
"In addition to testifying in his own defense, Robert Escalera called his friend Samuel Gonzalez as an alibi witness. Gonzalez, who knew Escalera for eighteen or twenty years at the time of the trial...testified that he met Escalera coming off a bus at 5:30 on the afternoon of the shooting...According to his testimony, Gonzalez walked with Escalera to the latter's house...left him there...and then returned to Escalera's house at approximately 6:40...The two were together until approximately 7:30...This testimony was offered to negate the possibility that Escalera had been at the scene of the shooting when it took place, at approximately 6:30.
"[D]uring Escalera's direct examination, his attorney advised the court -- for the first time -- that he intended to call Peter Escalera, [his] brother, as an alibi witness...Peter Escalera was prepared to testify that his brother had been at home between 6:00 and 6:30 p.m....Before this colloquy, Escalera had not given notice that...his brother might be called as an alibi witness.
"The trial judge precluded Peter Escalera's testimony, in view of New York's statutory requirement that criminal defendants provide, upon demand of the prosecution, a list of alibi witnesses..."
[This federal court determined that the trial Court's preclusion order did not violate Escalera's 6th Amendment right to call witnesses in his own defense.]
[From a photo array, Nieves and Torres picked out Escalera as the gunman.]
"The police, however, did something else to try to firm up the identification of Escalera. After Nieves and Torres identified Escalera's photograph, Detective Ruger brought the suspect to the [precinct]. He then brought Nieves and Torres to the office and told them 'I would like them to look at someone'...Ruger placed the witnesses in a room, where they viewed Escalera through a one-way mirror.*...Each identified Escalera as the gunman..."
[* This is known as a 'show-up' procedure. It is extremely suggestive.]
[This federal court found that, altough the above 'show-up' identification was improper, it nevertheless was not violative of Escalera's constitutional rights.]
826 F.2d 185; 2nd Cir. 8/13/87; writ granted
[However, the U.S. Supreme Court then vacated this grant (108 S.Ct. 1004). So, case then went back to the 2nd Circuit, which then kicked the case down to the U.S. District Court.]
from NRE synopsis (by Maurice Possley):
"Torres said he recalled that on several occasions, Escalera had visited the hotdog stand where Torres worked a year or two earlier.
"Escalera went on trial in Kings County...in August 1976."
"Escalera's lawyer claimed that the first time Nieves and Torres viewed photographs -- before Cordero died -- they had viewed photos together, with no police officer present, and that Torres picked Escalera because he recognized him from the hot dog stand and Nieves went along with his selection."
"On June 4, 1990...the Kings County [DA's] Office dismissed the case.
"Escalera filed a lawsuit in the New York Court of Claims, but was unsuccessful."
[All emphases added unless otherwise noted.]
