Sami Leka - misconduct / withheld evidence

Leka, Sami; murder; NRE: mistaken witness identification, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

[619:144]; 2nd Dept. 11/28/94; affirmed

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

76 F.Supp.2d 258; E.D.N.Y. 11/30/99; writ denied

"Despite Sami Leka's claims of actual innocence, there is little evidence to support the claim and much to negate it, including an implausible alibi. The fact that the proof adduced at trial was not overwhelming does not establish that the jury's verdict resulted in the conviction of an innocent man. In any case, absent a constitutional violation, [Leka's] claim of actual innocence is not a ground for habeas relief."

257 F.3d 89; 2nd Cir. 7/12/01; above decision reversed, and writ granted

from Records and Briefs:

[5] "The charges against Leka arise from a shooting that occurred on February 12, 1988, on Ocean Avenue in Brooklyn. In the course of that shooting, Rahman Ferati...a participant in the shooting, was fatally wounded."

[6] "On February 12, 1988, shortly before 6:00 p.m., Rahman exchanged gunshots with an occupant of a car in front of 1954 Ocean Avenue, in Brooklyn...The State contended that Leka...had murdered Rahman because of a bitter custody dispute..."

"The State's evidence implicating Leka in Rahman's murder consisted solely of the testimony of Carolyn Modica and Elfren Renaldo Torres, who were walking together on Ocean Avenue at the time of the shooting...[7] At the time, it was raining...and 'it was starting to get dark,'...'[i]t was dusky out.'"

[9] "Torres testified, that the person he saw shooting the gun wore 'like a thick brown leather jacket'...was 'about five nine' ...and had a 'medium build.' [FN5:] In sharp contrast to Torres' physical description of the shooter, Leka was five feet, three inches tall and weighed approximately one hundred and sixty-five pounds...Thus, it appears that Torres described Rahman, not Leka.

"Torres testified that...he could not tell 'at that time if the [shooter] had any facial hair.' [FN6:] When interviewed on the night of the shooting, Torres said the man he had seen had a mustache. [from FN7:] Torres swore under oath that the police pressured him into selecting Leka from a photo-spread, and that his identification of Leka at trial was based on the photo-spread rather than his recollection of Leka as the man he saw shooting..."

[10] "Sali Ferati...Rahman's brother, lives across the street from the site of the shooting, heard the gunshots, and saw Rahman fall to the ground...Sali did not see the person who shot Rahman, but immediately ran to Rahman's side. Sali testfied that, as Rahman lay dying in his arms, Sali repeatedly asked Rahman who shot him. According to Sali, Rahman responded each time that it was 'Zeni,' obviously referring to Zeni Cira, Leka's co-defendant at trial...Sali further testified that he asked Rahman if Rahman recognized anyone else in the car, and Rahman said he [11] did not recognize 'the others.'...Thus, although the Ferati family has known Leka since he was a young boy...Rahman did not implicate Leka in the shooting.

"The State knew of, but did not call [to testify at trial], three other witnesses -- Wilfredo Garcia, an off-duty [NYPD] officer; Joseph Gonzalez, a United States postal worker; and Anthony Chiusano, a bus driver -- whose recollection of the events surrounding Rahman's murder differed significantly from the recollections of Modica and Jones. Moreover, notwithstanding its obligations...to disclose exculpatory and impeachment material to Leka sufficiently in advance of trial to allow his counsel to make effective use of this evidence, the State provided him with evidence concerning Gonzalez's and Chiusano's expected testimony only on the eve of trial, notwithstanding the defense's request for such evidence nearly two years earlier. As for Officer Garcia, the State withheld that evidence altogether, and never disclosed that Garcia's testimony undermined the reliability of the two eyewitnesses called by the State." [First emphasis added; second, original.]

"Garcia witnessed part of the shooting from the kitchen of his apartment, which was across the street from where the shooting occurred..."

"As Garcia stood near his kitchen window...he heard gunfire. He looked out his kitchen window and saw a white car come to a stop in a diagonal position in front of a man...Officr Garcia also saw two muzzle flashes from a gun coming from the passenger side of the car, and witnessed a Command Bus driving around the white car...As the bus maneuvered around the car, Garcia noticed additional shots being fired from the passenger side of the white car...Officer Garcia did not, however, ever see anyone get out of the white car and shoot at anyone.

"Garcia's observations of the shooting, if presented to the jury, would have undermined Torres' testimony that Leka, or anyone else for that matter, got out of the white car to participate in the shooting."

[14] "Notwithstanding the obvious import of Officer Gonzalez's observations on the day of the shooting, the [DA's] Office neither disclosed the substance of his observations to Leka, nor advised Leka that...Leka should interview Officer Garcia. As a result, Leka's trial counsel remained unaware that [an NYPD] Officer, with no motive whatsoever to shade the truth in favor of Leka, could substantially undermine the testimony of Modica and Torres, which was the only testimony offered by the state to link Leka to Rahman's murder.

"Nor did the [DA's] Office limit its misconduct concerning Officer Garcia's account of the shooting to a failure to disclose this exculpatory and impeachment evidence. Instead, the [ADA] responsible for the prosecution, in a calculated attempt to conceal the truth, deliberately misrepresented what Officer Garcia had seen on the day of the shooting. Indeed, well in advance of trial, in an obvioius effort to induce a guilty plea from Leka, the [ADA] told Leka's counsel that the State would call as a witness a police officer who would identify Leka as the man who shot Rahman...The [ADA] did not, however, provide any police reports, interview notes, or prior testimony of that police officer...Several days before trial...Leka's counsel learned for the first time that the [ADA's] prior representations about the police officer were false."

[15] "Once the trial began, Leka retained a private investigator, contacted Officer Garcia and asked Officer Garcia if he would permit Leka's counsel to interview him...Officer Garcia agreed to be interviewed as long as the [DA's] Office had no objection...When the [ADA] learned of the proposed interview, he not only objected, but moved for an order barring Leka from interviewing Officer Garcia...The [ADA] claimed that he would call Officer Garcia as a witness at trial, and that Officer Garcia would not consent to an interview by Leka's representatives in advance of his testimony."

[16] "Notwithstanding the [ADA's] repeated representations to the Court, the State never called Officer Garcia as a witness at trial. Indeed, in light of Officer Garcia's observations, any claim that the [ADA] ever intended to call Officer Garcia is highly suspect...[I]n stark contrast to his representations to the Court and Leka's counsel, the [ADA] told Officer Garcia that he would not be needed as a witness at trial."

[17] "[Joseph] Gonzalez, like Officer Garcia, never saw anyone get out of the [white] car."

[19] "[Anthony] Chiusano [also] made clear that he observed no one get out of the car during the shooting."

[20] "Leka and Cira were separately indicted for Rahman's murder...Joseph R. Benfante, Esq., represented Leka and Cira throughout their respective pretrial proceedings, and Cira paid Benfante's fees for his representation of both defendants...Benfante decided that he would continue to represent Leka, and another attorney was retained to represent Cira. Nevertheless, Cira continued to pay Benfante's legal fees for his representation of Leka...Ultimately, when Benfante was presented with compelling evidence that excluded Leka, but inculpated Cira, he was forced to choose between the undivided loyalty he owed to Leka, as a client, and the economic bias he had in favor of Cira, the man paying his legal fees...Benfante chose the latter."

from Reply Brief: [B02] "The State's opposition to this appeal is disturbing. It presents a misleading statement of the 'facts' and an erroneous depiction of the law, all in an effort to avoid accountability for its numerous Brady violations and its corrupt efforts to conceal exculpatory and impeachment evidence."

[The same could very well have been said about the state's opposition to Nickel's appeal.]

from NRE synopsis (by Stephanie Denzel):

"In 2008, Leka settled a wrongful conviction lawsuit against the City of New York for $3.1 million. He filed a claim for compensation in the New York Court of Claims, but the claim was dismissed."

[All emphases added unless otherwise noted.]