Blog Posts

Rodolfo Taylor - Mistaken ID / Prosecutor Misconduct

Thu, 03 Jul 2025 02:20:58 +0000

Taylor, Rodolfo robbery NRE: mistaken witness identification, prosecutor misconduct, withheld exculpatory evidence

[520:49] 2nd Dept. 10/26/87 affirmed

"[W]e find that the witness Bailey's selection of [Taylor's] photograph from a photographic array two days before he picked [him] out of the lineup did not taint the lineup identification since there is no argument that the photographic array was in any fashion unduly suggestive and we conclude that the lineup itself was not unduly suggestive."

36 F.Supp.2d 534 E.D.N.Y. 2/22/99 writ denied

"Prior to July 1984, Detective Robert Anderson of the Third Precinct of the Suffolk County Police Department had been assigned to investigate a series of gas station robberies including the robbery of a Texaco station located at Motor Parkway and the Long Island Expressway in Brentwood...which occurred on February 22, 1984, and two robberies of a Shell gas station located at Route 111 and Spur Drive in Central Islip...which occurred on June 2nd and again on June 10, 1984...Harold Bailey had been working as an attendant at the Shell station on June 10th and had witnessed that robbery...On July 1, 1984, Detective Anderson asked Bailey to come to the Third Precinct to view a photo spread...Bailey was shown a photo spread and identified the petitionerRodolfoTayloras the person who committed the June 10th robbery."

"On July 3, 1984, Taylor was asked to accompany Officer Houlan and two Suffolk County police officers to the Third precinct where he appeared in a series of ten lineups...Five witnessesDennis Ford, Daniel Farrell, and Kathleen Young (the eye-witnesses of the June 2nd Shell robbery), Gary Meenahan (the victim of the February 22nd Texaco robbery) and Baileyeach viewed two separate lineups in which they all positively identified Taylor as the individual who had committed the robbery he or she had witnessed...Taylor was 23 years old, 6' 2-1/2" tall and weighed approximately 160 pounds."

[At trial]: "Meenahan...testified that...he had not seen any scars or moles on the perpetrator's face."

"Ford, Farrell and Young all gave similar descriptions of the robber of the Shell station. Ford claimed that he had observed Taylor for at least three minutes during the robbery...He described him as a black male, approximately 2023 years old, about 60 tall, with a thin build, short Afro, a thin mustache and hair in the center of his chin...According to Farrell, he had observed the robber for about five minutes...and described him [as having] a small mustache and goatee..."

"BeverlyWoods...testified that she had known [Taylor] for the last five years and that in February 1984, [he] had had a scar approximately 22-1/2 inches long on his left brow over his left eye...Richard Froberg,...testified that [Taylor] had been employed by his company on February 22nd and June 2, 1984 and during that time [Taylor] was clean shaven...Froberg also testified that on July 3, 1984, [Taylor] did not have a beard."

"Jaqueline Davis, the driver of the white car [which was at the station at the time]...testified that Taylor was not the man she had observed."

[984:414] 2nd Dept. 4/30/14 reversal of denial of post-trial motion without a hearing (by Judge Stephen L. Braslow ) without a hearing hearing ordered

"In December 2009, [Taylor]...moved to vacate the judgments of conviction, arguing that two supplementary reports from the Suffolk County Police Department and four sworn witness statements provided to him pursuant to his...FOIL [Freedom of Information] request had not been disclosed to the defense at his criminal trials..."

from NRE synopsis (by Maurice Possley):

"Taylor filed a [public records] request with the Suffolk County Police Department, which sent him numerous documents -- none of which had been disclosed by the prosecution at the time of Taylor's trials.

"These documents included reports showing that: ... -- On June 12, Farrell selected Lawrence Caudle from a photographic lineup. He said, 'I picked out #1 with no hesitation and state without doubt this is the same subject that robbed me on May 29th and again on June 2, 1984. I know this subject to be Lawrence Caudle.' ... -- On June 12, 1984, Young viewed a photographic lineup. She said that Lawrence Caudle 'looked much like the man who I saw commit the Robbery on June 2, 1984.'

-- On June 14, 1984, Ford...selected Forlando Carlton. He said, 'The reason I picked this one is because I am almost positive that this is the Black male that had robbed me, and if he had a little bit of facial hair I would say that he is definitely the one.'"

"On December 22, 2009, based on the discovery of these reports, Taylor, acting without a lawyer, filed a post-conviction motion to vacate his convictions. On February 12, 2010, Taylor was released on parole. He had spent 24 years, months, and 17 days in prison since the date of his first conviction.

"In November 2011, Judge Stephen [L.] Braslow denied Taylor's motion for a new trial. In April 2014, the [Second Dept.] overturned Judge Braslow's ruling, and ordered a hearing to determine whether evidence had been withheld and if so, whether it had an impact on Taylor's right to a fair trial. At a hearing in July 2014 Taylor's trial defense lawyer, Martha Palmer Rodgers, who was at the time of the trial a staff attorney for the Suffolk County Legal Aid Society, testified that she never saw the reports. She said she would have used them if she had them.

"The trial prosecutor testified that she listed on the outside of a folder the dates of documents that she had provided to the defense. None of the dates corresponded to the dates of the six reports that Taylor had received pursuant to his public records request. Still, Judge Braslow denied the motion for a new trial.

"In 2016, the Suffolk County [DA's] office agreed to revisit the case at the request of the Legal Aid Society. The [DA's] office assigned a senior-level prosecutor to review the case. Subsequently, the office concluded there was a 'substantial likelihood' that the reports had not been disclosed to Taylor's defense lawyer at the time of his trials and may have had an adverse impact.

"While this review was in progress, Timothy Sini, the newly-elected [DA] , created a Conviction Integrity Bureau (CIB). In April 2018, Kirk Brandt, attorney in the appeals bureau of the Legal Aid Society, sent a seven-page letter outlining the evidence that had been withheld and how, as a result, Taylor's trial had been unfair. He asked the CIB to review the case.

"'It is evident that the failure to provide Mr. Taylor's trial counsel with the aforementioned exculpatory documents undermined the integrity of his convictions and allowed an injustice to take place,' Brandt said.

"On December 2, 2021, [ADA] Craig McElwee filed a 25-page affirmation in support of a motion to vacate Taylor's convictions. While the prosecution said there was 'insufficient evidence for exoneration,' it had reached a 'secure conclusion' that Taylor did not get a fair trial because of the failure to disclose the reports.

"'It is the position of the CIB that the facts as detailed herein clearly established that the ideals of justice and fundamental fairness have been violated in this instance and vacatur of the convictions is appropriate,' McElwee wrote. Witnesses are either dead or unable to remember details, he said. 'Therefore, the indictments must be dismissed because the cases could not be reprosecuted at this time.'

"On January 27, 2022, the convictions were vacated, and the charges were dismissed.

"After the hearing, Taylor, surrounded by family members and friends, declared, 'It's very rewarding. It took patience, perseverance and good family.'

"Louis Mazzola, an attorney with the Legal Aid Society who wored with fellow Legal Aid lawyer Kirk Brandt on Taylor's case for a decade, said, 'He has never once wavered in his claim of innocence.'

"On July 18, 2022, Taylor filed a federal civil-rights lawsuit against Suffolk County and several officers, seeking payment for his wrongful conviction. The lawsuit was settled in 2023 for $12.8 million. In 2023, he also filed a claim for state compensation. He settled that claim in 2024 for $1 million."

[All emphases added unless otherwise noted.]

Natacha Tiger - False Confession / Misleading Forensic Evidence

Thu, 03 Jul 2025 02:19:44 +0000

Tiger, Natascha endangering the welfare of a disabled person NRE: false confession, plea, no crime, false/misleading forensic evidence

Suggestibility issues

48 N.Y.S.3d 685 2nd Dept. 3/1/17 denial of motion to vacate without hearing (by Judge Jeffrey G. Berry ) reversed hearing ordered re: actual innocence and ineffective assistance of counsel

"On November 23, 2011, a severely disabled child was admitted to Westchester Medical Center suffering from what appeared to be scald burns. [Tiger], a licensed practical nurse who had given the child a bath earlier that day, was subsequently charged with several crimes on the theory that she had burned the child with hot water. [She] thereafter pleaded guilty to endangering the welfare of a...physically disabled person...admitting that she had recklessly causedserious physical injury tothe child. Nearly two years later, [Tiger] moved...to vacate her conviction, primarily alleging that she was actually innocent because medical evidence established that the child's injuries had been caused by an adverse reaction to medications."

"Alejandra A....was born in May 2001. She had profound disabilities. As of November 2011, the child had a permanent tracheostomy and feeding tube, was completely immobile, was blind, and was dependent on others for all activities of daily living."

"On November 30, 2011, [Tiger]...made a statement to an investigator in which she stated, in part, regarding the date of the incident:

'I was working in the. . . home with [the child]...I...turned on thewater and started rinsing her body...[T]he water hit my hand and I could feel that the water was very hot. I then turned the cold water on to try to adjust it so it wasn't so hot...I wrapped [the child] in a towel and took her to her bed and when I pulled the towel down to put lotion on her arms and help her stretch and when I opened the towel more I noticed redness and peeling on her legs. I knew then that I had burned [the child] because the water was too hot when I was bathing her...I knew that I had burned [the child] with the hot water when I called [the child's mother] earlier but was afraid to tell her about what happened when I was bathing her earlier in the day.'"

"Accordingto [Tiger], the investigator started to ask [her] general questions about the child's bath on November 23, 2011, and [she] gave her account. After a time, it became apparent to [her] that the investigator did not believe her. The investigator confronted [her] with 'terrible, shocking photographs of [the child's] condition -- much, much worse than it appeared when [she] had last seen her -- which seemed to [her] to depict serious burn injuries. [She] was stunned and upset, and started gently crying. The investigator, in a stern voice, accused her of boiling water and throwing it on the child. [She] denied the accusation and again explained what had occurred. The investigator, looking angry and agitated, raised his voice and said that no one would believe [her]. He then said that he was going to give the [her] time to think and left the room."

"[She] asserted that when the investigator returned to the room, he sat down, held [her] hand, and said that he was trying to help her. He said that the [she] would be going to jail for a very long time, but that it would be 'safer' for her if she admitted to burning the child, even accidentally. He reminded her that she was the last person with the child and asked how it could be that the child was being treated at WMC's burnunit and getting skin grafting for scald burns if she had not burned the child. [She] asserted, 'I was afraid and confused because I could not explain any of these things, yet did not understand how it was that I could possibly have scalded [the child].'

"[She] claimed that, by that time, she had been at the CPS office for hours. She asked about the Interim manager who had accompanied her and was told that the manager hadleft. Although Interim sent a text message to [her] during the interview, the investigator would not allow her to send a text message in response. When [she] told the investigator that she needed to call her family, the investigator made her turn off her cell phone. She explained, 'Isolated, tired, and confused, I was eventually convinced by [the investigator] that I must have burned [the child] because I could not otherwise explain the photographs, her treatment in the burn unit, or her need for skin grafting.'"

"According to [her], her attorney advised her that if she were to plead guilty, she might, in view of her background, reasonably hope for a sentence of probation and community service, and avoid the risk of a lengthy term of imprisonment. Based on her attorney's advice and her inability to afford medical experts, [she] agreed to plead guilty."

"In his supporting affirmation, physician Bruce F. Farber noted that he had been involved in the practice of internal medicine and infectious diseases from 1980 to the present. He had specialty training in infectious diseases and had treated burn patients and patients diagnosed with toxic epidermal necrolysis (hereinafter TEN). He had reviewed, among other things, the child's medical records and photographs of the child.

"Farber gave a narrative of events leading up to and including the child's hospitalization. He noted that on November 16, 2011, a week before the incident in question, the child was evaluated by her pediatrician, who diagnosed pneumonia and prescribed the antibiotic Biaxin."

"Farber opined, based on his review of medical records, photographs, and [Tiger's] statements, as well as his education and experience in treating patients with TEN and burns, that the child's injuries were caused not by a thermal scald burn from bathing but by TEN.

"According to Farber, the family pediatrician and all WMC physicians -- emergency room, burn, pediatric, dermatologic, and infectious disease -- who evaluated the child on November 23 and 24, 2011, found, based on clinical presentation, that her condition was consistent with TEN, StevensJohnson syndrome (hereinafter SJS), or staphylococcus scalded skin syndrome (hereinafter SSSS). The biopsy results ultimately confirmed a diagnosis of TEN. Despite the history that the child had been bathed shortly before the onset of her condition, none of those physicians diagnosed or even considered a diagnosis of scald burns.

"Farber explained that TEN and SJS are life-threatening dermatological conditions thought to be an adverse reaction to medications. While their exact cause is unknown, they are thought to involve an autoimmune process characterized by exfoliation of the skin, i.e., blistering. They often are associated with certain medications and bacterial infections. Drugsfrequently found to be associated with TEN and SJS include antibiotics and antiseizure medications. The child was taking the antibiotic Biaxin as well as an antiseizure medication..."

[In both TEN and STS:] "The top layer of the skin, the epidermis, separates from the lower layer, the dermis, giving an appearance that is very similar to a scald burn...The loss of epidermis results in a high risk of infection, loss of fluids, and death. Prompt treatment is required and does not appreciably differ from the treatment burn patients receive."

[However, the Court of Appeals subsequently partially reversed the above finding that Tiger was not entitled to a hearing on the actual innocence claim.]

71 N.Y.S.3d 169 2nd Dept. 7/13/22 County Court's [ Robert H. Freehill ] denial of ineffective assistance of counsel claim reversed, plea vacated

"[D]espitereferencesin the hospital records indicating that a skin biopsy was ordered, [Tiger's] former counsel failed to obtain the skin biopsy pathology report, which would have supported the conclusion that the child's skin condition was caused, not by thermal burns, but by toxic epidermal necrolysis (hereinafter TEN), a condition associated with an allergic reaction to a medication that the child had been taking." "[Tiger] also demonstrated that her former counsel failed to consult a medical expert, or take steps to either seek the services of a court-appointed medical expert, or find a source of funding to secure the services of a medical expert before counseling [Tiger] to plead guilty. At the hearing, [Tiger] offered the expert testimony of Bruce Farber, a physician board-certified in the fields of internal medicine and infectious diseases, who reviewed all the medical records, including the subject pathology report. He opined that, based upon his review of medical records, as well as the pathology report, the child's skin condition was caused by TEN, and not thermal burns. He testified that the medical records, including the hospital chart, showed that the various medical providers, including a pediatrician, emergency room physician, dermatologist, infectious disease expert, and a burn fellow formulateddifferential diagnoses including SJS, TEN, or staphylococcal scalded skin syndrome, none of which included thermal burns.

"Notably, Farber testified that a board-certified dermatologist who treated the child documented a positive 'Nikolsky sign,' which was a finding seen with immunological skin reactions, and not thermal burns. He also testified that, based upon his review of the photographs of the child, the child's wounds appeared to grow and spread for days after her hospital admission, which was inconsistent with a diagnosis of thermal burns. "[Tiger] testified that the reason that she pleaded guilty was based upon her counsel's advice that nothing in the medical records supported her defense."

"Contrary to the County Court's determination, the evidence adduced at the hearing sufficiently established that there is a reasonable probability that, but for her attorney's errors in failing to obtain the pathology report and seek an expert consultation, [she would not have pled guilty]."

from NRE synopsis (by Ken Otterbourg):

"On July 13, 2022, the [Second Dept.]...ordered a new trial." "The state dismissed the charge in August 2023."*

[* Thus, the prosecution left Tiger 'hanging' for over a year before finally doing the right thing. That would appear to be something of a record.]

[All emphases added unless otherwise noted.]

David Ranta - Mistaken ID / False Confession / Perjury

Thu, 03 Jul 2025 02:16:40 +0000

Ranta, David; murder; NRE: mistaken witness identification, false confession, perjury/false accusation, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant; "OVERWHELMING"

Suggestibility issues

K18 "In 1991, David Ranta was convicted for the shooting death of Rabbi Chaskel Werzberger in a botched diamond heist..."

"In the early morning of Feb. 8, 1990, Chaim Weinberger, a diamond courier, left his Brooklyn apartment..."

"He was approached by a gunman but escaped unharmed. The gunman then crossed the street to the car where Werzberger was sitting...The gunman shot the rabbi once in the head, pulled his body from the vehicle and sped off.

"Two New York City detectives, Louis Scarcella and Steven Chmil, were put on the case.

"Shortly after the crime, police got an anonymous call that a man named Joseph Astin was the killer. Astin died in a car crash two months after the shooting. Astin was fleeing officers pursuing him in connection with the shooting.

"Scarcella brought Weinberger, the courier, to the morgue to see if he could identify Astin's body, and when Weinberger could not, Scarcella stopped chasing leads on Astin.

"Intead, the detectives were informed that two inmates awaiting trial on unrelated robbery charges, Dmitry Drikman and Alan Bloom, could have useful information on the crime.

"Bloom, who has since died, fingered Ranta as the shooter, and Ranta was arrested in 1990.

"Weinberger, the courier, could not identify anyone at the first of two line-ups and three other witnesses pointed to stand-ins, not Ranta.

"At a second line-up, three youths, including Menachem Lieberman, who said they saw the shooter waiting in a car before the crime occurred, identified Ranta.

"Bloom, who was granted immunity, acted as the government's chief witness at trial..."

"Scarcella admitted he had not taken any notes during interviews of Bloom and Drikman. At one point, the presiding judge...expressed concern about his mistrust of the detectives to the defense and the prosecution, but never charged the jury [i.e., told them about] the issue.

"Astin's wife, Teresa, later came forward saying Astin had confessed to the crime.

"Lieberman, the witness who expressed discomfort at his identification of Ranta, told [subsequent Conviction Integrity Unit] investigators that just before entering the line-up room, a detective told him to 'pick the guy with the big nose' and he acted accordingly."

K17 "After spending some 23 years in prison for a murder he says he did not commit, David Ranta walked out of a courtroon a free man yesterday after prosecutors conceded the evidence against him had 'degraded' to the point that they could no longer prove his guilt beyond a reasonable doubt.

"Ranta was convicted in 1991 for the high-profile shooting of a prominent ultra-Orthodox religious leader, Rabbi Chaskel Werzberger. But a fresh look at the case by the Brooklyn [DA's] Conviction Integrity Unit disclosed that a man who had once identified Ranta as the killer now felt 'discomfort' about his testimony, and others admitted they had fabricated statements fingering Ranta..."

[610:283]; 2nd Dept. 4/4/94; affirmed

"Although the police admittedly violated certain court orders, the police conduct challenged by [Ranta] was not so egregious as to 'manifest a disregard for cherished principles of law and order'...Given the overwhelming evidence of [Ranta's] guilt..."

[The Second Department 'justices' who signed off on this were Albert M. Rosenblatt, David S. Ritter, Vincent Pizzuto, and Myrian J. Altman. ]

from Records and Briefs:

[1] "Drikman gave Detective Scarcella information leading him to believe Mr. Ranta was involved in the case...However, he had no indication why Drikman would have such information or if Drikman was present at the scene of the crime ...Detective Scarcella claimed that Drikman picked out photos of Mr. Ranta and an individual named Steven Shakur and indicated these individuals were involved in the shooting..."

[3] "On July 13, 1990, [when Scarcella and Chmil first interviewed Bloom ], Bloom did not state that he witnessed the attempted robbery, saw anyone being dragged from a car, heard shots fired, or that he was present when the Rabbi was shot..."

"After receiving this information, Detective Scarcella spoke with members of Shakur's family who maintained Shakur was in Yugoslavia on [the day of the murder]... Despite the family's claim that Shakur was not in the country, they possessed Shakur's passport...Detective Scarcella did not attempt to verify the family's claims by examining the passport to see if it was stamped, thereby denoting entry into Yugoslavia on or near the dates in question...The detective also failed to show Shakur's photograph to any of the eyewitnesses ...The detectives' actions troubled the court...After hearing this testimony, the court raised the issue of selective prosecution on the part of the detectives..."

"Bloom's version of the events was not always consistent...Although Bloom gave consistent versions of the events on June 28, 1990, and July 13, 1990, at which time he implicated Shakur, four days later, on July 17, 1990, he told a different story."

[6] "After the detectives told Bloom they could not find Shakur, Bloom changed his story. The actions he attributed to Shakur four days earlier...he now attributed to Mr. Ranta* ...Bloom now alleged he sat double-parked...and smoked crack while he watched the events unfold. Bloom remained on the opposite side of the street two hundred feet away from where the crimes occurred. Yet, he claimed he was able to see the events transpire through his rearview mirror. ** "

[* It seems quite obvious that it was Scarcella who changed Bloom's story, when this 'detective' was greatly inconvenienced by the fact that (surprise, surprise) the alleged killer couldn't be found. ] [** That's preposterous, and would be laughable but for the fact it led to Ranta wrongfully spending decades in prison. No one can identify anyone via a rearview mirror from 200 feet away.] [7] "Bloom claimed he then heard two shots...However, Rabbi Werzberger was only shot once. There was absolutely no evidence of a second shot."

[8] "Drikman said he knew the identity of the individuals involved in the crime and the location of the murder weapon. Yet Bloom and the detectives claimed Drikman took no part in the crimes. Nothing was done to corroborate Drikman's non-involvement or to rule him out as the killer."

from NRE synopsis (by Maurice Possley):

"At about 5:30 a.m. on February 8, 1990, 38-year-old Chaim Weinberger, a jewelry courier, left his apartment building in the Williamsburg section of Brooklyn...carrying a 50-pound suitcase full of diamonds and other valuables he was taking to the Dominican Republic. Weinberger noticed a tall blond man eyeing him as he left his apartment building and when he got near his car, he saw the man following him. He tossed the suitcase into the trunk and got into his car to get away.

"The blond man put a handkerchief over his face and drew a pistol as he approached. Weinberger drove in reverse, knocked the robber down and sped off.

"The robber then noticed Chaskel Werzberger, a 56-year-old rabbi, warming up his car nearby. The gunman walked over, shot Werzberger in the head, yanked him out of the vehicle and drove off. Werzberger died three days later. His car was found in another Brooklyn neighborhood a day after the shooting, splashed with paint in an apparent attempt to cover fingerprints.

"The murder of the esteemed rabbi shocked a city accustomed to murders and a $10,000 reward was offered for information.

"A number of witnesses told police that they saw the events in full or in part. Weinberger described the gunman as being between 5'11" and 6'0" tall, clean-shaven and with blonde hair. Several other witnesses recalled that prior to the crime they saw two men in a station wagon parked nearby, one in the driver's seat and the other in the front passenger's seat.

"More than one hundred names surfaced as potential suspects, including Thomas Joseph Astin, who police learned of through an anonymous telephone call. But Astin died in a car crash while being pursued by police on April 2, 1990. After his death, detectives brought Weinberger to the morgue to view Astin's body, but Weinberger was unable to identify him as the robber.

"Beginning in June 1990, Detective Louis Scarcella interviewed Dmitry Drikman, a convicted rapist facing robbery charges. Drikman pointed the detective to Allan Bloom, a convicted robber and drug addict, who was in jail facing charges that could send him to prison for life. After several conversations with Bloom, the detective said that Bloom had admitted that he attempted to rob Weinberger with 35-year-old David Ranta, an unemployed house painter with more than a dozen arrests for theft, robbery and drug possession.

"Drikman and Bloom were then housed in the same cell together and subsequently, Drikman also implicated Ranta in the crime. Drikman's girlfriend was then interviewed and she told police she had seen Ranta and Bloom plotting how to cover up the attempted robbery and murder.

"Bloom would ultimately testify against Ranta after being granted immunity for his involvement in the robbery and murder and a promise for a reduced sentence on his outstanding robbery charges. He told the police that he had helped to plan the robbery of Weinberger and said Ranta, whom he had known for a few years, was an accomplice, as was another man named Steven Shakir.* Bloom said he left before anything happened and did not know who the gunman was, but he said that Shakir had a gun."

[* The Records and Briefs above spell this surname 'Shakur.' It's not clear which is correct.]

"After he failed a polygraph test, Bloom changed his story to say that not only did he see the crimes, but that Ranta was the gunman. Bloom would later say that he lied about Shakir's involvement. He also said that on the night before the crimes he had been with Drikman.

"Bloom said that he had stolen the station wagon that several witnesses had observed at the crime scene prior to the crimes, and that he had used the station wagon to drive himself and Ranta to the crime scene. He said Ranta approached Weinberger, pointed a gun at him and attempted to rob him. Bloom told police that he was supposed to be the getaway driver, but that after Ranta left the car, a police car drove by so he moved the car about 10 feet further away. As a result, Bloom said, Ranta didn't immediately spot the car after the botched robbery attempt and apparently decided to steal Werzberger's car.

"Bloom said Ranta ran across the sreet, fired his gun twice, pulled the rabbi from his car and fled.

"Bloom said he met Ranta later that day, took Werzberger's car and abandoned it in the Midwood section of Brooklyn. Bloom said that later, he and Drikman returned to Werzberger's car and splashed white paint on the interior to obscure any fingerprints. Bloom passed the polygraph test administered after his second statement.

"Two others corroborated Bloom. Cheryl Herbert told the police that she had been in a relationship with Ranta and that prior to her birthday in February, he told her he was expecting to come into possession of some nice jewelry. Herbert told police Ranta later told her that he was in a lot of trouble because he had participated in a robbery with two others and that they had abandoned him and as a result, he had to kill someone.

"Alison Picciano told the police that Ranta had admitted to her that he had pulled Werzberger from his car and shot him while he was on the ground.

"Ranta was arrested on August 13, 1990 and taken to a police station where detectives said that after initial denials, Ranta eventually admitted that he had been at the crime scene with Bloom and Drikman in a station wagon, which he believed Bloom had stolen. Police said Ranta said that he had known about a plan to rob a Jewish jewel courier and that he was to have been the 'lookout' during the robbery. The detectives said Ranta said he saw Bloom and Drikman exchange a gun in the station wagon and that, before any of the crimes occurred, he had left the scene when Bloom and Drikman began arguing about which one of them was going to commit the actual robbery.

"Ranta was placed in a lineup the following day. Scarcella reached out to a rabbi who came to the station with six witnesses. The first witness, Weinberger -- who had been the initial target of the robbery -- didn't recognize anyone. The next two witnesses identified someone other than Ranta.

"The fourth witness, who spoke only Yiddish and required an interpreter, initially said he didn't recognize anyone. The witness was then escorted to a nearby room with Detective Scarcella, a prosecutor and the interpreter. A tape recorder which was recording the lineup conversation was turned off and then turned back on as the witness said that, in fact, he had identified the man in position six -- which was Ranta.

"The fifth witness identified Ranta and the sixth witness identified another man in the lineup.

"A second lineup was held later that day. Three more witnesses came in and all three identified Ranta.

"Despite what police said Ranta had admitted, Ranta took and passed a polygraph examination.

"Ranta went on trial in [Manhattan] in May 1991.

"Bloom testified, as did Herbert and Picciano, portraying Ranta as the gunman. Bloom told the jury that when he and Ranta met later in the day after the crime, Ranta said, 'Why did you leave me? I had to kill someone.'

"Picciano testified that Ranta told her, 'I had to do what I had to do. I shot him.'

"Ranta's statement to the police was presented to the jury as well -- though it portrayed him as an accomplice instead of the gunman. The trial judge was critical of Detective Scarcella for failing to tape record Ranta's statement or take any notes and for failing to take any notes of his conversations with Drikman and Bloom. "The defense tried to suggest that Drikman was the gunman and that Ranta was innocent. Weinberger testified that Ranta was not the gunman.

"On May 22, 1991, Ranta was convicted by a jury. He was sentenced to 37-1/2 years to life in prison.

"His initial appeal was denied, but in 1996, Astin's wife signed a sworn affidavit saying that her husband, before he was killed in a car crash, had admitted that he killed Werzberger. She said that Astin left their home at 4 a.m. on the day of the crime and returned later in tears, saying he had robbed someone carrying jewelry and that someone had been hurt.

"Despite this affidavit, Ranta's motion for a new trial was denied. The judge said that Astin's wife's credibility was damaged because she was facing a drug charge* at the time she made the claim."

[* Recall that " Allan Bloom, a convicted robber and drug addict, who was in jail facing charges that could send him to prison for life," was nevertheless deemed sufficiently 'credible' to base this entire investigation on. Moreover, whereas Bloom stood to benefit immensely from testifying as he did, Astin's wife had absolutely nothing to gain by coming forward.]

"In 2011, Kings County [DA] Charles Hynes created a Conviction Integrity Unit and invited defense lawyers to present cases where they believed innocent defendants had been convicted. One of the cases proffered was Ranta's.

"The Integrity Unit began re-investigating. One of the witnesses who identified Ranta in the lineup said the lead police detective, Louis Scarcella, told him to pick 'the guy with the big nose,' so he picked Ranta because he had the biggest nose.

"The prosecution investigators discovered that during the weeks when police were interrogating Bloom and Drikman, both were allowed to leave jail, smoke crack cocaine and have sex with prostitutes in return for implicating Ranta.

"Drikman and his girlfriend recanted their accounts that implicated Bloom and Ranta. Bloom had since died.

"Ranta's lawyer, armed with the new evidence, filed a motion to vacate Ranta's conviction. The motion was not opposed by Kings County [DA] Charles Hynes, who was the [DA] when Ranta was arrested 23 years earlier.

"On March 21, 2013, Ranta was flown from his prison to a Brooklyn courtroom where his convictions were vacated and the charges were dismissed. He was then released.

"In May 2013, Ranta filed a $150 million wrongful conviction claim against the city of New York. In February 2014, the city settled the claim for $6.4 million. He also received $2 million in compensation from the New York Court of Claims."

[All emphases added unless otherwise noted.]

Derrick Redd - Perjury / Prosecutor Misconduct

Thu, 03 Jul 2025 02:10:50 +0000

Redd, Derrick; murder; NRE: perjury/false accusation, inadequate legal defense, prosecutor misconduct, misconduct that is not withholding evidence, prosecutor lied in court

35 N.Y.S.3d 546; 2nd Dept. 7/6/16; reversed, due to prosecutor misconduct

"[O]n October 25, 2008, at approximately 7:40 p.m., the police were called to an apartment on Leffert's Boulevard in Queens where they found the body of 25-year-old Niasha Delain. Delain, who was nine months pregnant, had been stabbed to death. Her mother and [Redd], who was the victim's boyfriend, were both at the apartment when the police arrived.

"The police searched the victim's apartment, [Redd's] two cars, and the residences of [Redd's] mother, father, and grandparents, but did not find a weapon or other physical evidence connecting [Redd] to the murder. [Redd] told the police that he was asleep at his mother's home in Queens, approximately 3-1/2 miles from the victim's apartment, during the early morning hours of October 25, 2008. However a search of cellphone service records related to [Redd's] cellphone indicated that, during that time, several calls placed or received by his cellphone were processed by a cellphone tower approximately one block from the victim's apartment. An expert testified at trial that cellphones signal to the nearest available cellphone tower and that, in Queens, at the time of the murder, the cellphone towers of [Redd's] cellphone service provider were located approximately four to five blocks apart.

"Eight days after the murder, Jinette Gerve, a neighbor who resided in the apartment above the victim's apartment, reported to the police that between 5:30 a.m. and 6:00 a.m. October 25, 2008, she heard a woman in the apartment below hers screaming ['Derrick!'], along with the words, 'Stop,' 'No,' and 'Don't do that.' This neighbor testified that she had not come forward earlier due to fear and uncertainty concerning the significance of this information. She admitted that she received assistance from the [DA's] office with regard to her residence, employment, and immigration status."

"[T]he judgment of conviction must be reversed and a new trial ordered as a result of pervasive prosecutorial misconduct. During opening statements as well as on summation, the prosecutor repeatedly engaged in improper conduct, including misstating the evidence, vouching for the credibility of witnesses with regard to significant aspects of the [prosecution's] case, calling for speculation by the jury, seeking to inflame the jury and arouse its sympathy, and improperly denigrating the defense."

[In the Nickel case, Prosecutor Peter Torncello certainly also 'engaged in improper conduct, including misstating the evidence' and 'seeking to inflame the [judge] and arouse [ his ] sympathy.' (In particular, see Propensity/Who Cares? , as well as Day Two of annotated trial transcript.)]

[As is almost always the case, despite the fact that this conviction was reversed due to prosecutor misconduct, this appellate decision does not actually name the prosecutor. However, a review of other decisions in this matter revealed that this person was Eugene Reibstein. ]

from NRE synopsis by Maurice Possley):

"The crime was discovered when Delain's boyfriend, 35-year-old Derrick Redd, and her mother came to the apartment because Delain had not responded to calls or text messages.

"Redd agreed to go to the police station for questioning. Although police later said that Redd made several statements that were suspicious -- 'I either avoid the problem or I eliminate it' and 'we argued about an abortion' -- he was released without being charged after 27 hours.

"However, on November 17, he was arrested and charged with murder, causing an abortion, and criminal possession of a weapon.

"In October 2011, Redd went on trial in Queens...The prosecution's primary evidence came from Jinette Gerve, who lived in the apartment above the one where Delain was killed. Gerve said that early in the morning of the day Delain was found dead, she heard Delain shouting Redd's first name and 'stop,' 'no,' and 'don't do that.'

"Gerve admitted that on the day the murder was discovered, she told police that she heard nothing. She further admitted that the second time police spoke to her, she again denied hearing anything. It was not until about two weeks later that Gerve gave a statement saying she had heard Delain calling Redd's name. She denied during cross-examination that she had been provided any benefits in return for her testimony."

"However, after Gerve finished testifying, the prosecution turned over records showing that in fact she had been paid $4,500 to relocate and that the prosecution was helping her with an immigration matter. Redd's defense attorney agreed to present the evidence in [a] statement to the jury, but did not re-open cross-examination to confront Gerve directly about her denial of receiving any benefits.

"The prosecution presented records that allegedly showed that Redd's cell phone had pinged off a cell tower a block from Delain's apartment in the early morning hours of October 25, 2008. At the time, Redd was living about three miles away.

"The prosecution also presented evidence of Redd's statements to police during his initial interrogation, and argued that those statements indicated he committed the murder because Delain had not gotten an abortion. In addition, the jury heard evidence that when arrested, Redd had three small cuts on his hand. The prosecution contended that this was proof that he had stabbed her and cut himself when the knife struck a bone in Delain's body, causing his hand, which was bloody, to slide forward and cut him.

"A medical examiner testified that she 'found nothing' in the autopsy that would be consistent with the time of death of 6 a.m. -- the time that Gerve said she heard Delain screaming.

"On November 3, 2011, the jury convicted Redd..."

"In July 2016 the [2nd Dept.] reversed the convictions...[It] found that the prosecutor, Eugene Reibstein, had engaged in egregious prosecutorial misconduct.

"Reibstein, the court said, had 'flatly misstated' the medical examiner's testimony, quoting her to the jury as saying, 'I found nothing in my autopsy that would be inconsistent with the time of death of 6 a.m.' And then, Reibstein went on to say, 'Can we get more clear than this, ladies and gentlemen?'

Reibstein told the jury that Redd suffered the cuts on his hands when he stabbed Delain more than 20 times. 'During this repeated stabbing, you may get yourself a little cut there, a little cut there and a little cut there,' particularly '(i)f the blade stabs something hard, like a baby.'

"The court said, 'Not only was the remark needlessly inflammatory, it also improperly cast the prosecutor as an unsworn witness in his own case.'

"The defense attorney repeatedly objected to Reibstein's comments, the court noted. Some of the objections were overruled and in a few instances, the judge cautioned Reibstein about making improper comments. In some instances, the judge didn't rule on defense objections at all."*

[* This also happened with Judge Paul Czajka in the Nickel case. (See Objection Analysis as well as Day One and Day Two of the annotated trial transcripts.]

"At one point, the judge warned Reibstein that 'if you keep inflaming the jury you will come to regret it.' Reibstein nevertheless continued.

"'Soon thereafter,' the appeals court said, Reibstein 'continued his string of inflammatory remarks by stating, "It happens, when you can't get somebody to (get) an abortion. . .you have to take care of them the last day yourself."'

"Redd went to trial a second time in March 2018 with a new defense attorney, Wynton Sharpe, who presented text messages between Delain and Redd from June 2008 -- six months before the crime. In one message, Delain said she was willing to perform sex acts for money so that she could pay for an abortion. In another, Redd said that he would go back to court to seek custody of the child after he was born.

"Sharpe also cross-examined Gerve with the records showing she had implicated Redd only after she received numerous benefits from the prosecution.

"Sharpe also introduced evidence showing that there were other cell phone towers further away from Delain's apartment where Redd's cell phone was picked up -- not a tower just a block away.

"On April 4, 2018, the jury acquitted Redd and he was released.

"Ih May 2019, Redd filed a federal civil rights lawsuit seeking damages from the city of New York. In October 2019, he filed a claim for compensation in the New York Court of Claims. He settled the claim for $30,000 in 2023."

[All emphases added unless otherwise noted.]

Filipe Rodriguez - Mistaken Witness ID / False Accusation

Tue, 01 Jul 2025 22:52:19 +0000

Rodriguez, Felipe; 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

[620:966]; 2nd Dept. 12/12/94; earlier denial of motion to vacate conviction affirmed

"[Rodriguez's] contention that his judgment should be vacated because the [prosecution] failed to disclose certain material at trial...is without merit. The record supports the hearing court's determination that the material in question was turned over to the defense."

[And yet, the NRE lists 'withheld exculpatory evidence.' ]

[620:832]; 2nd Dept. 12/12/94; affirmed

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

from Records and Briefs (civil):

[3] "Detectives engaged in a litany of misconduct that violated Felipe's Fourth Amendment, due process and fair trial rights, directly causing his wrongful conviction and incarceration. Eager to close a homicide investigation that was entering its [4] second year detectives from the [NYPD] and Long Island Railroad Police Department ('LIRRPD') fabricated police reports, withheld exculpatory information from prosecutors and the defense, and coerced [Javier] Ramos into implicating Felipe. In the course of the investigation, detectives drove Mr. Ramos to a cemetery and threatened to kill him if he did not implicate Felipe in the murder. [ADAs] withheld crucial exculpatory information from the defense, including a tape recording in which Mr. Ramos -- unaware that he was being recorded -- admitted to a co-worker that he knew nothing about the murder."

"NYPD Detectives John Beisel, John Califano, John Wilde, Jerry Fennell, NYPD Sgt. George Zaroogian, and LIRRPD Detectives Thomas Sullivan and Charles Wendel are named defendants in this lawsuit."

[6] "Prior to this wrongful conviction, Rodriguez had no criminal record." [That was also true of Nickel. ]

"On the morning of November 26, 1987, which was Thanksgiving Day, the body of 35-year-old Maureen Fernandez...was found in a remote industrial lot in Glendale, Queens...The lot was located behind Dubofsky's wholesale warehouse...Ms. Fernandez's body had 35 stab wounds to the neck, back, and pelvic area...Tire impressions were found in close proximity to Ms. Fernandez's body, leading police to believe that Ms. Fernandez [7] had been transported to the scene in a car driven by her killer...No physical evidence collected from the crime scene proved useful in identifying the vehicle or its driver...No murder weapon was ever found."

"Ms. Fernandez spent much of Thanksgiving Eve...at Wyckoff Heights Hospital...in Brooklyn, where her young daughter was being treated...A witness who was in the hospital that day told police they observed Ms. Fernandez drinking from a liquor bottle...At around 1:00 a.m., Ms. Fernandez used a hospital phone to call her husband, Carney Fernandez...The couple began arguing over the fact that Ms. Fernandez was drinking while watching the baby, and Ms. Fernandez hung up on her husband...Ms. Fernandez left the hospital shortly after that phone call and traveled to the Little Liva Bar...in Brooklyn...No witnesses actually saw Ms. Hernandez leave the hospital, so detectives did not know whether she left on foot or by car...The Little Liva Bar was located approximately one mile from Wyckoff Heights Hospital and approximately two miles from where Ms. Fernandez's body would be found hours later...According to bar patrons, Ms. Fernandez arrived at the Little Liva Bar between 2:00 and 2:30 a.m. in the company of an unknown male...Bar patrons told police that they believed that Ms. Fernandez and the unknown male arrived in a black, late-1970s model Chevrolet Monte Carlo...Detectives believed that Ms. Fernandez and the man likely departed together in the black Monte Carlo. Accordingly, for the next several months, detectives focused on locating the black Monte Carlo and its driver...Carney Fernandez, Ms. Fernandez's husband, was also considered a suspect."

[8] "In the days following the murder, detectives interviewed witnesses who interacted with Ms. Fernandez and the unknown man at the Little Liva Bar shortly before she was murdered...Detectives obtained detailed descriptions of the unknown man from bartender Joseph Castillo and bar patrons Robert Thompson and William Perry...All three witnesses described the unknown man as approximately 30-years-old, between 5'7" and 5'9", with no mustache and no eyeglasses...Thompson added that the man had 'reddish brown' hair, was 'bow-legged,' and was wearing a 'multicolored sweater,' 'beige pants,' and a gold ring...In a second interview in February, 1988, bar patron William Perry told Det. [Charles] Wendel and Det. [Thomas] Sullivan that the man with Ms. Fernandez on Thanksgiving morning 1987 was Italian or Irish, 'not Hispanic,' and had 'hazel or green' eyes...The February interview... was not documented... The February interview was not disclosed in any way to Mr. Rodriguez or his attorneys prior to his trial."

"More than four months after the murder, on March 17, 1988, Dets. Sullivan and Wendel conducted a videotape-recorded interview of Robert Thompson...Thompson added several details to his earlier description...Thompson said the man called himself a 'plumber's helper'...Thompson said that the man did not speak with an accent...Thompson said that the man looked Italian, not Hispanic ...Thompson added one further detail to his description of the man seen with Ms. Fernandez at the bar: he claimed that the man had a tatoo between his palm and index finger and four letters tatooed across his fingers, which appeared to read, 'LOVE'... The descriptions did not resemble Felipe Rodriguez, who had a thick mustache, wore eyeglasses, was 22 years old, stood approximately 6'1" tall, never had any tattoos, and never wrote the word 'LOVE' on his hands. ...Felipe never drove or had access to a Monte Carlo, the car driven by the suspected killer...Felipe is Hispanic and has brown eyes...In November 1987, Felipe was a mechanic. Felipe never identified himself as a 'plumber's helper'...[and] spoke with a Puerto-Rican-inflected Spanish accent."

"From the beginning, detectives working on the Maureen Fernandez homicide had information pointing to a number of potential suspects other than Felipe...One suspect was Ms. Fernandez's husband, Carney Fernandez... [9] Carney had no alibi for the time of his wife's murder*...Ms. Fernandez's friends and family told detectives that Carney physically abused Ms. Fernandez, had threatened to kill her, had a violent temper when drinking, was jealous of her, and that she wanted to leave him...Ms. Fernandez's friend Liz Velez told police that Ms. Fernandez was so afraid of Carney that she asked Liz for a gun to defend herself."

[* According to the NRE synopsis below, Carney actually did have an alibi.]

"Police also had information pointing to a suspect named Jose Perez Rivera...Less than a month after the murder, detectives received an anonymous call that the male in the [police] sketch. . .lives across the street from the Emergency Room of Wyckoff Hospital. . . [and] has an older model Monte Carlo in good condition.'...Detectives learned that this man was Rivera, who lived across from Wyckoff Hospital and owned a black 1978 Monte Carlo, just like the one bar patrons said Ms. Fernandez arrived and departed in on Thanksgiving morning...Records showed that Rivera was 5'7" tall, within the 5'7 to 5'9 range of the man seen with Ms. Fernandez at the Little Liva Bar...In August 1988, police characterized Rivera as 'a person of interest,' but appear to have abandoned their investigation [10] of Rivera after encountering difficulty locating him."

"Detectives identified another man, Eddie Ruiz, as a suspect who fit the description of the man seen at the bar: 5'7 or 5'8, thin build, wore gold jewelry, and drove a black car...According to police reports, Eddie Ruiz was believed to have known Ms. Hernandez, and on one occasion he assaulted Ms. Fernandez's female relative...In February 1988, bartender Joseph Castillo identified Ruiz out of a photo array as the person who was with Ms. Fernandez the morning she was murdered... Castillo's identification of an alternative suspect was not documented...Castillo's identification of an alternative suspect was not disclosed to the defense before the trial.

"Additionally, in April of 1988, detectives received a tip that a person named Edward Denning fit the composite sketch of the man seen with Ms. Fernandez the morning she was murdered...The tipster stated that Denning 'has a very violent temper and is known to frequent bars.'...Denning, a 28-year-old white man, was a police officer with the NYPD's 60th Precinct...All three bar witnesses -- Joseph Castillo, William Perry, and Robert Thompson -- described the man with Ms. Fernandez as being white, between ages 28 and 32...In May 1988, detectives interviewed the tipster, who described Denning as a 'crazy whacko' who used drugs, 'beat up his sister' and 'was not very stable.'...In July 1988, detectives contacted the NYPD's Internal Affairs Division and learned that Denning was 'on sick report' from November 23 to November 25, 1987 (Thanksgiving Eve), and that Denning also did not work on November 26 (when the murder took place) or November 27, 1987...Despite this information, detectives failed to pursue Denning as a suspect in Ms. Fernandez's murder."*

[* Perhaps because he was a cop? ]

"In April 1988, Det. [John] Beisel was assigned by the NYPD to lead the investigation into Ms. Fernandez's murder...Struggling to track down the black Monte Carlo or its owner, Det. Beisel shifted the investigaton's focus to the white Cadillac that watchman Robert Solonay had seen leaving the lot where Ms. Fernandez's body was found...Detectives learned about a white car owned by Pete Sierra, a security guard at Wyckoff Heights Hospital, where Ms. Hernandez spent time on Thanksgiving Eve 1987 before going to the Little Liva Bar...In August 1988, detectives located Sierra's car near Wyckoff Heights Hospital. Sierra's car was different from the car Solonay described as leaving the lot on Thanksgiving morning of 1987...First, Sierra's car was an Oldsmobile, but Solonay described a Cadillac. Second, Sierra's Oldsmobile had a red roof, but Solonay described an all-white car...Despite these differences, Det. Beisel obtained permisson from Sierra to voucher the red-and-white Oldsmobile as evidence...Sierra had purchased the Oldsmobile in early 1988 from a fellow Wyckoff Heights security guard named Javier Ramos...Ramos, not Sierra, owned the car at the time of the murder in November 1987...On or about September 9, 1988, Ramos visited the 104th Precinct to inquire why his former car, the white-and-red Oldsmobile, had been taken by the police...When Ramos entered the precinct, he was unaware that detectives were trying to connect his former car to a homicide."

"At the 104th Precinct, Det. Beisel took Ramos into an interrogation room...Led by Detective Beisel, detectives interrogated Ramos for approximately 13 hours ...Detectives used coercive tactics to get Ramos to either confess to the murder or lead them to another suspect...Det. Beisel was assisted in the interrogation by NYPD Sergeant [George] Zaroogian, NYPD Detective John Califano, John Wilde, and Jerry Fennell, and LIRRPD detectives Thomas Sullivan and Charles Wendel. ...The detectives told Ramos, falsely, that they 'knew' his former car was used in a murder, and that either he committed the murder or knew who did it...Detectives threatened to prosecute Ramos for the murder... Det. Beisel pushed Ramos, threatened to maim or kill him, called him a 'spic' and a 'Hispanic prick,' denied him food, water, and the use of a bathroom, and refused his request to leave...Ramos told the detectives that, in the past, he had loaned his car to two friends, Richard Pereira and Felipe Rodriguez, but did not indicate that he had done so at the time of the murder...Det. Beisel demanded that Ramos take him to Felipe's residence...Det. Beisel, Det. John Califano, and Det. John Wilde put Ramos in an unmarked police car and directed Ramos to lead them to Felipe's residence...On the way, the detectives stopped at Cypress Hill Cemetery in Brooklyn and threatened to kill Ramos if he did not either admit to the murder or implicate Felipe. Ramos gave the detectives what they demanded: he told them that he loaned the car to both Felipe and Pereira at the time of the murder... [12] This information was false...The detectives proceeded to [Pereira's address] with Ramos, but [he] was not home...[13] [D]etectives [subsequently] arrested Richard Pereira...At the precinct, Det. Beisel handcuffed Pereira to a chair and interrogated him in an effort to force him to confess...During this interrogation, Beisel smacked Pereira so hard that Pereira and the chair fell to the [floor] ...However, three witnesses then failed to identify Pereira at a lineup...Detectives then were compelled to void Pereira's arrest and let him go home."

"In late September 1988, Det. Beisel, Det. Fennell, and Det. Wendel placed a Nagra recording device on Richard Pereira and sent him to confront Javier Ramos at Wyckoff Heights Hospital, where they both worked...During the recorded conversation, Pereira asked Ramos where his car was on Thanksgiving 1987...Ramos responded: 'My car was parked in front of my mother-in-law's house, because my battery [] was dead. . .I told them all of this. And yet they didn't, they didn't want to hear that. . .They wanted me to confess to something.'...During the taped conversation both men discussed the abusive interrogation tactics used against them...Pereira described being 'smacked' by police 'all night long.'"

[14] "For approximately six months following the interviews and lineups in September 1988, Det. Beisel visited Javier Ramos multiple times each week at Wyckoff Heights Hospital...[15] During these visits, Det. Beisel threatened and pressured Ramos to implicate Felipe in the murder...On March 27, 1989, having failed to solve the Fernandez murder for 16 months, Det. Beisel and Detective Sullivan picked up Javier Ramos and drove him to the 104th Precinct...Det. Beisel and Det. Sullivan brought Ramos into an interrogation room, where Sgt. Zaroogian, Det. Fennell and Det. Wendel were also present...Ramos was facing the same detectives who, six months earlier, coerced his statement falsely accusing Pereira of the murder...This time, Ramos was interrogated for approximately seven hours...To induce Ramos to accuse Felipe, Det. Beisel falsely told Ramos that Felipe had accused Ramos of the murder...Beisel then falsely stated that Felipe's DNA had been found in Ramos's Oldsmobile and that Felipe's clothing matched the eyewitness description of the apparent murderer...When Ramos succumbed to the coercive tactics and agreed to provide a statement implicating Felipe, the detectives called ADA David Dinkman in order to prepare an affidavit for Ramos falsely accusing Felipe of committing the murder."

[So, to recap, the detectives quickly give up pursuing one promising suspect because he proves too difficult to locate. Another who fits witness descriptions is a cop, and they drop him like a hot potato. A third suspect who fits witness descriptions also is not pursued. A fourth guy shows up at the precinct wanting to know why his former car (even though it did not match witness descriptions) was impounded, and he's coerced into naming others who borrowed it lest he be charged with murder himself. One of the two guys he names is arrested for murder (based on essentially nothing), but then has to be let go when no witnesses pick him out of lineups. That just leaves the second guy whose name the former-car-owner coughs up under police coercion: Felipe Rodriguez, who does not match any witness descriptions, and has never owned or even had access to any of the cars described by witnesses. Great job, 'detectives.']

from NRE synopsis (by Maurice Possley):

"Police determined that Fernandez [the murder victim] spent the earlier part of the previous evening in the pediatric ward at Wyckoff Hospital, visiting her two-year-old daughter, who was a patient there. Late that evening, she went to a bar on Gates Avenue known variously as Little Liva, Live a Little, and La Fiesta. Witnesses who knew her said she was accompanied by an unidentified man whom she seemed to know. Another customer at the bar, Robert Thompson, told police that he tried to sell them a watch. Thompson and other witnesses would later describe the man she was with as 'white,' 'Italian,' or 'Hispanic,' clean-shaven or clean cut, stocky -- weighing between 175 and 200 pounds -- and about 5 feet 8 inches tall.

"Thompson, who was intoxicated on both drugs and alcohol that night, decribed the man as having reddish-brown hair."

"The pediatric ward at Wyckoff Hospital was rumored to be a place where male staff and visitors tried to pick up mothers of young patients. Detectives therefore began looking at the staff. Eventually, police determined that hospital security guard Javier Ramos had owned a white Oldsmobile and had worked from 4 p.m. until midnight at the hospital on the night Fernandez was last seen. They learned that Ramos had thereafter sold the car to another employee, Pedro Sierra, in February or March of 1988."

"[O]n September 25, 1988, police asked 23-year-old Felipe Rodriguez, who was a friend of Ramos, to come in for a voluntary interview with Detective Beisel. Rodriguez said he had on several occasions borrowed Ramos's car and sometimes visited Ramos while he was working at the hospital. Rodriguez also mentioned that he worked part-time as an auxiliary police officer. After the interview, Rodriguez went home.

"On March 27, 1989, Ramos was again taken into custody. This time, he was released after he signed a new affidavit claiming he 'wanted to put an end to this and just tell the truth.' In this account, he said it was Rodriguez -- not Pereira -- who borrowed his car on November 25, 1987. Ramos added a few additional inflammatory details. Now, he also quoted Rodriguez as saying he 'had to stab her to show that she was dealing with a man, not some boy.'

"According to the police report of Ramos's statement, he 'did not tell the complete truth about what had happened because I didn't want to tell on Felipe,' and that he falsely named Pereira because he 'was the only other person I ever loaned [the car] to at the time.' Ramos allegedly insisted that 'what I did say in my other statement was true if you substitute Felipe' for Pereira."

"Later that day, police arrested Rodriguez and placed him in a lineup. La Fiesta bartender Castillo as well as bar customer William Perry and bartender Ceznaukas did not identify Rodriguez. Only one witness, Thompson, selected Rodriguez, although his initial description from nearly a year earlier was of a clean-shaven man of Italian descent, about 5 feet 8 inches tall with reddish-brown hair. Rodriguez had a large moustache, jet-black hair, and was 5 feet 11 inches tall.

"Based on the second Ramos statement and Thompson's lineup identification, Rodriguez was indicted for the murder. After he took a police-administered polygraph examination and his denials of involvement in the crime showed no deception, Rodriguez was released on bail pending trial.

"In April 1990, Rodriguez went on trial in Queens..."

"Ramos claimed that he had failed to come forward for months and then falsely accused Pereira because Rodriguez was 'like a brother' to him. During cross-examination, Ramos denied that his true motivation in naming first Pereira and then Rodriguez was to protect himself from suspicion. He asserted that the only lie he told the police was to use Pereira's name in his initial statement. He said, 'I didn't want to give up my friend.'

"Thompson testified and identified Rodriguez as the man with Fernandez in La Fiesta. Thompson testified that he shook the man's hand at the bar, and observed that they were 'large hands' with 'no calluses.' He also testified that the man had letters written on the 'outside of the four knuckles' of his left hand, spelling 'L-O-V-E.' Rodriguez had no tatoos or birthmarks and the police had not noticed any markings when he was interviewed. Thompson admitted that he did not mention the marking on the suspect's hands until the last of his half-dozen police interviews and more than five months into the investigation, even though his earlier statements had described rings on the man's hands. He also admitted that he did not actually remember seeing the word 'L-O-V-E,' but only 'figured' that was what the writing spelled out, adding that he 'was pretty intoxicated' and 'it's 20 months later.'

"Thompson admitted that during the eight hours prior to his arrival at La Fiesta, he smoked five marijuana joints and consumed a half of a fifth of rum. At La Fiesta, he said he had at least three 'double-rum' and cola drinks. He said that when he left the bar at 4:30 a.m., Fernandez and the man were still there.

"Castillo, the bartender at La Fiesta, did not see any such markings on the suspect's hands nor did any other witness from either bar.

"Thompson's testimony was further contradicted by Castillo, who said he closed at 4 a.m., and by the warehouse security guard, Solonay, who said he saw the white car leaving the warehouse between 3 and 4 a.m. Solonay testified and did not identify Rodriguez as the man he saw in the white car."

"On May 2, 1990, the jury convicted Rodriguez..."

"In reviewing the record, Rodriguez's appellate lawyer, Martin Lucente from the Legal Aid Society, noticed in Rodriguez's pre-sentence report a reference to a taped conversation between Ramos and Pereira. There was no reference to the tape in the trial and Rodriguez's trial defense attorney, Jennifer Maiolo, had not noted it either.

"Lucente requested a copy of the tape from the Queens County [DA's] office. By that time, the trial prosecutor, Alan Safran, had left the office for private practice. Safran said he had disclosed the tape to Maiolo, but had not made a transcript of it because it was largely 'unintelligible' and in Spanish.

"Lucente had the tape translated and transcribed. On the tape, Pereira was heard confronting Ramos about why he falsely told police that Pereira had borrowed Ramos's car the night before Thanksgiving. At Rodriguez's trial, he testified that he had named Pereira because he was covering for Rodriguez, and Pereira's was the first name that came to mind since he was 'the only other person' to whom he had loaned his car. On the tape, however, Ramos told Pereira something different. Ramos said his false accusation was in direct response to the police's claim that Pereira had falsely accused Ramos of the crime first. Ramos was heard saying, 'I'm under the impression you pointed the finger at me.' Ramos said he sought to protect himself by pointing the finger back at Pereira, whom he thought was his accuser. Additionally, Ramos assured Pereira that not only did he know nothing about the crime, but that he had not loaned his car to anyone that night and lied to the police when he said he had. In fact, Ramos said, he did not even use the car to drive himself to his relatives in New Jersey on Thanksgiving Day because it was on the street with a dead battery. On the tape, Ramos was heard telling Pereira he told police 'all of this. And yet they didn't want to hear that.'"

"In October 1992, Lucente filed a motion to set aside Rodriguez's convictions on the ground that the tape had not been disclosed to Rodriguez's trial defense attorney.

"At a hearing in March 1993, the prosecution disclosed two police reports that referenced the tape. Maiolo claimed she had never seen them. Maiolo said that had she received the tape, she would have had it transcribed and translated, and then used it to cross-examine Ramos.

"Attorney Kenneth Litwack represented Rodriguez from April to November 1989, before Maiolo replaced him. Litwack testified that he knew something about the existence of an audio recording of a conversation between Pereira and Ramos, but was confident that he had never heard the tape or been given a copy. He did not specifically recall discussing the tape's existence with Maiolo, but he said it would have been his practice to relate 'every detail of the case' that he thought was important when transferring his file.

"Safran, the trial prosecutor, contended he had turned the tape over to Maiolo at the beginning of the trial. He also maintained that the recording was 'completely uninteresting,' 'gibberish,' and 'nonbelievable.'* He said he already knew that Ramos was a liar** after Ramos falsely implicated Pereira. Safran admitted that he had not asked for the recording to be translated or transcribed. He said that since he knew a little Spanish, he had listened to it with the aid of a paralegal. He admitted he had never played the tape for Ramos or asked Ramos about its contents before Ramos testified at the trial."

[* Recall that Safran had also claimed the tape was 'largely unintelligible.' But, how can 'gibberish' be 'nonbelievable'? If it were indeed the case that what was said was 'unintelligible,' then it could be neither believable nor nonbelievable, because, one would not be able to discern what was actually said. But as we now know, that tape was crystal clear -- and immensely exculpatory.] [** If that is so, why did Safran call him as a prosecution witness?]

"On July 30, 1993, the trial judge denied the motion to vacate the convictions. Although the judge indicated that the tape directly impeached Ramos and was favorable to the defense, he held that the defense had failed to show that the tape was not turned over."*

[* As a matter of logic, it's essentially impossible to 'prove a negative.' Thus, this judge was holding the defense to a standard no one could have met.]

"In 2001, after his appeal had been rejected, Rodriguez wrote to the Innocence Project requesting help. In 2007, his case was accepted. Unfortunately, most of the physical evidence from the victim's body and clothing had been destroyed pursuant to the medical examiner's protocols at the time. Ultimately, extracts from the car fabric cuttings were found, as were hairs from the victim's clothing. However, the extracts yielded no DNA and the hairs revealed only female DNA.

"After the search for biological evidence was exhausted, the Innocence Project recruited private attorney Zachary Margulis-Ohnuma to assist with non-DNA aspects of the case. In November 2016, Nina Morrison, senior staff attorney at the Innocence Project, and Margulis-Ohnuma filed a petition asking New York Governor Andrew Cuomo to grant clemency. The petition said that Rodriguez was not only 'innocent of the crime of conviction, but, more importantly, is an exceptionally worthy candidate for clemency because of his remarkable record of redemption, responsibility and generosity in prison.'

"In addition to citing Rodriguez's exemplary record while in prison, the petition noted that it was 'difficult to imagine' that if Safran had given the tape to the defense, 'he would not have made sure to prepare his own chief witness for the all-but-inevitable cross-examination that any defense attorney who listened to the tape would likely raise, by sitting down with Ramos to review the tape in detail and asking him to explain the contradictions, and obtaining a full transcription and translation of the tape, so he himself could at least be prepared to anticipate any questions the tape might raise in the jurors' minds.'"

"In December 2016, Gov. Cuomo granted the petition, commuting Rodriguez's sentence to time served. On January 26, 2017, Rodriguez was released. Subsequently, at the request of Rodriguez's lawyers, Queens County...[ADA] Robert Masters commenced a re-investigation of the case.

"As a result, additional reports and notes from the detectives' files were discovered that had never been disclosed to Rodriguez's defense. According to a report in the New York Daily News, these included a report saying that Perry, one of the witnesses at La Fiesta, affirmatively said that Fernandez and the man with her arrived at the bar in the black Monte Carlo. Such a report could have been used to discredit the theory that the white car seen by the security guard belonged to the killer. Perry's statement and other reports in the police file also directly contradicted testimony from the detectives and arguments by the prosecutor that the investigation had yielded no evidence indicating that the black car was connected to the victim or her murder.

"Also undisclosed were reports that Fernandez's husband, Carney Fernandez, was a suspect because of numerous witness accounts that he had a violent temper and was known to assault female companions. In addition, witnesses said that Fernandez wanted to leave him and that Carney did not like her going out without him. At the time, Carney had presented an alibi* and was found to be truthful when he denied involvement during a police-administered polygraph examination."

[* According to the Records and Briefs above, Carney did not have an alibi.]

"Most critically and 'decisive' in the [DA's] agreement to grant relief was the discovery of handwritten notes by a Long Island Railroad detective. The notes indicated that Ramos described Rodriguez as showing up at his house with a black man he had never mentioned before. The notes were dated March 27, 1989 -- the same day Ramos gave a sworn affidavit implicating Rodriguez, which made no mention of such a companion.

"And according to other reports, eight days before Ramos accused Rodriguez, Beisel obtained approval to arrest Rodriguez and put him in a lineup, while also trying to compel Ramos to testify as a material witness. The newspaper said this 'account differed sharply from (Detective) Beisel's memo closing the investigation. There, he wrote that, in a period of hours on March 29, 1989, Ramos implicated Rodriguez; detectives summoned an [ADA] who formalized the statement; detectives placed Rodriguez in the lineup and the (prosecutor) drew up an affidavit starting the prosecution.'

"In addition, in 2017, after being contacted by an Innocence Project Investigator, Ramos recanted his accusation against Rodriguez and said his statements to the police were false and the result of police pressure. He stood by his recantation in a lengthy, voluntary interview with Masters in December 2019, although the prosecution ultimately did not credit his recantation.

"On December 30, 2019, at a hearing in Queens...Masters said that the notes from the Long Island Railroad detective that were not turned over could have 'impeached the entire investigation.'

"Queens County...Justice Joseph Zayas granted a motion filed by the defense lawyers Morrison and Margulis-Ohnuma to vacate the convictions. The [DA's] Office joined the motion, agreeing that evidence favorable to Rodriguez had not been disclosed to the defense. Masters then dismissed the indictment.

"Justice Zayas said the case was a miscarriage of justice that 'took too long to correct.' He added, 'Mr. Rodriguez, you deserve better than that, but you never lost faith.'

"In March 2020, Rodriguez filed a compensation claim in the New York Court of Claims. In March 2021, Rodiguez filed a federal civil rights lawsuit. In April 2022, Rodriguez settled the compensation claim for $5 million. A year later, Rodriguez settled his lawsuit against the City of New York for $10 million."

[Due to the complexity of this case, some 'summing up' on key points would seem to be in order: 1) Cars. The white Cadillac or Oldsmobile seen by Solonay would appear to be a red herring -- albeit one which, via a circuitous and tortuous route, was integral to this wrongful conviction. But it does not appear to have had anything to do with the actual crime here. On the other hand, the black Chevy Monte Carlo may well have. One suspect, Rivera, was said to own such a car. (Ruiz also had a black car, though the make and model was not stated.)

2) Perpetrator Description. None of the witnesses said the perpetrator was Hispanic; and two specifically said he was not Hispanic. (Not only is Felipe Rodriguez Hispanic, but he also has a thick, Puerto-Rican Spanish accent.) Neither did any of the witnesses say the perpetrator wore eyeglasses; four specifically said he did not wear eyeglasses. (But Rodriguez did.)

3) Lineup Selection. Two of the three bar witnesses did not select Rodriguez. The only one who did -- Thompson -- was high on marijuana and drunk. Moreover, Rodriguez did not match the description Thompson originally provided.]

[All emphases added unless otherwise noted.]

Jose Rodriguez - Mistaken Witness ID / Prosecutor Misconduct

Tue, 01 Jul 2025 22:28:13 +0000

Rodriguez, Jose; robbery; NRE: mistaken witness identification, prosecutor misconduct, withheld exculpatory evidence

2013 WL 3939160; S.D.N.Y. 7/23/13; civil suit

"During his interview with Detective [Gerald] Heanue [on 2/21/06], [robbery victim Francisco] Baez said that at approximately 11:30 p.m. the prior evening, two individuals approached from behind as he was walking on the street...[and] that one...was a black male who...was aged sixteen to eighteen years old, wore a black fur jacket with the hood up, and was armed with a black 'semi-auto' gun during the robbery. Baez stated that the other individual was a Hispanic male, aged sixteen to eighteen years old, approximately 5'6" and 200 pounds, and wore a white jacket with patches and diamond studs in both ears.

"After the interview ended, Baez looked through a book containing photographs of individuals who had previously been arrested for robbery or grand larceny within the precinct, but did not see a photograph of either individual who had robbed him...Then Detective Heanue showed Baez photographs selected by a computer program that compiles six-person photo arrays of individuals based on variables entered by police...Based on the physical description that Baez provided of his assailants, Heanue compiled two photo arrays using the software, one for each perpetrator. When Baez viewed the fist array, [he] selected a mug shot of Rodriguez in which he appeared with diamond earrings in both ears...When he viewed the second, Baez selected Vynell Simmons as the other perpetrator.

"Rodriguez [later told a second officer] that at the time of the robbery, he was sleeping at his girlfriend's house...[At a lineup the following day, Baez] 'immediately' identified Rodriguez as one of the individuals who robbed him.

"[In a lineup the following day,] Baez identified Simmons as the second perpetrator.

"[An ADA assigned to the case] became aware that Simmons had been arrested but not indicted, though he did not know the reason why there was no indictment of Simmons.

"At the sentencing hearing, Rodriguez's trial counsel, referring to the fact that Simmons had not been prosecuted, stated that 'you have to ask yourself if it's the same witness, the same facts, then why are they dismissing against one person and not dismissing against my client...'

"Once he began serving his sentence, Rodriguez requested documents relating to his conviction. Eventually, on March 24, 2010, Rodriguez's appellate counsel, David Klem...sent a letter to ADA Joseph Ferdanzi, the Chief of the Appeals Bureau, requesting that his office disclose 'the basis for the dismissal of the charges against Vynell Simmons.' On April 29, 2010, Klem and ADA Ferdanzi appeared before Judge Newman and moved to vacate Rodriguez's conviction. Ferdanzi stated that a Brady violation had occurred as a result of the failure of the Bronx DA's office to disclose that Baez had 'wrongly' identified Simmons as one of the men who robbed him, and Judge Newman thereafter endorsed an order vacating [Rodriguez's] conviction and directing his immediate release from prison."

from NRE synopsis (by Maurice Possley):

"On February 20, 2006, at 11:35 p.m....Francisco Baez, a taxi driver, was robbed at gunpoint by two men as he walked down the street on his way home after having parked his cab for the night.

"Baez told police that the robbers took his wallet, containing more than $300 and his identification cards. Baez told police the gunman was a black man wearing a black hoody and black pants and a light-skinned Hispanic man with a ponytail and wearing either a red jacket or a white jacket with patches.

"The following day, Baez met with a detective assigned to the case and provided slightly more detailed descriptions. He described the gunman as a black man, 18 to 19 years old, 5'8" tall and weighing 150 pounds. The second robber was a Hispanic man, 16 to 18 years old, 5'6" tall, weighing 200 pounds, with 'Chinese-looking eyes' and wearing blue jeans and a white jacket with patches.

"Baez viewed photo books at the precinct that day, but after 15 to 20 minutes gave up and made no identification. A detective then put the description into the police information management system, which generated mugshots of possible matches.

"After viewing just 12 photos, Baez identified 19-year-old Jose Rodriguez as one of the perpetrators.

"Upon resetting the computer with the other description, Baez then identified Vynell Simmons as the perpetrator who displayed the gun.

"A week later, police arrested Rodriguez, who, at 5'6" tall and 180 pounds, was shorter and heavier than the description of the gunman Baez gave: 5 feet, 8 inches tall and 150 pounds. The following day, police arrested Simmons.

"Baez identified both Rodriguez and Simmons as the perpetrators in separate lineups. Rodriguez was indicted by a grand jury after Baez testified that he was one of the perpetrators. The prosecutors did not pursue an indictment against Simmons because Baez informed them just prior to entering the grand jury hearing Simmons' case, that his identification of Simmons was wrong.* Simmons' case was then dismissed."

[* We are not told how and why Baez came to this conclusion..]

"The prosecutors did not tell Rodriguez's attorney that Baez had recanted his identification of Simmons; nor did they explain why the case against Simmons was dismissed.

"On November 10, 2007, Rodriguez was convicted solely on the basis of Baez's testimony that he was the gunman."

"Rodriguez's appellate lawyers reinvestigated the matter, determining that Simmons and Rodriguez did not know each other, and that Simmons might have had an alibi...His appellate lawyers then made a post-conviction request for exculatory evidence from the Bronx [DA's] office, seeking the reasons why the charges against Simmons were dismissed.

"In the letter they argued that any questions about the accuracy of Baez's identification of Simmons as the perpetrator would be exculpatory for Rodriguez, since his conviction rested entirely on Baez's uncorroboated identification. In response, the prosecution agreed that the conviction be vacated. The charges were dismissed on March 25, 2011.

"Rodriguez later filed a federal civil rights lawsuit seeking compensation, but the lawsuit was dismissed."

[All emphases added unless otherwise noted.]

Wildon Rodriguez - Perjury / withheld evidence / witness tampering

Tue, 01 Jul 2025 22:07:30 +0000

Rodriguez, Wildon; murder; NRE: perjury/false accusation, prosecutor misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury, witness tampering or misconduct interrogating co-defendant, prosecutor lied in court

[735:811]; 2nd Dept. 12/31/01; affirmed

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

131 N.Y.S.3d 380; 2nd Dept. 9/30/20; grant of previous motion to vacate affirmed

"At trial, the [prosecution's] sole eyewitness, Althemease Cort, testified that she saw [Rodriguez] shoot the victim. In 2015, [Rodriguez] moved to vacate the...conviction on the ground that the [prosecution] had failed to disclose the relationship between Cort and law enforcement agencies..."

"Here, [Rodriguez] was not provided with material regarding Cort's participation as a witness in two unrelated homicide trials, along with prior agreements between Cort and law enforcement, including her use as a confidential informant by police and her placement in a witness relocation program following her participation in one of the unrelated homicide trials, during which her rent was paid by the Office of the Kings County [DA] for approximately one year. This material contradicted Cort's trial testimony that she did not have any 'deals' with law enforcement and had not been in touch with the [DA's] Office 'for a long period of time,' as well as the prosecutor's arguments during summation that Cort 'never took a deal' and 'never asked for anything in return.' Significantly, Cort's credibility was critical as she was the [prosecution's] only witness to testify that it was [Rodriguez] who shot the victim, and there was no other trial evidence directly linking [Rodriguez] to the crime..."

from Records and Briefs:

[2] "[T]he only alleged eyewitness viewed the shooting from a distance, at night, and did not come forward until she herself was incarcerated, and...one defense witness completely contradicted the [prosecution's] version of events, and another placed [Rodriguez] elsewhere at the time of the shooting."

from NRE synopsis (by Ken Otterbourg):

"Just after midnight on November 28, 1993, 21-year-old Craig Jolly was shot in the leg and back in a parking lot at the Wyckoff Gardens apartments in Brooklyn..."

"Jolly was unconscious when police arrived, and he died later that day at Methodist Hospital without saying who shot him. Police canvassed the neighborhood but didn't get any hard leads on suspects.

"A few months later, a witness named Althemease Cort came forward and said she had seen 18-year-old Wildon Rodriguez shoot Jolly after an argument. She knew Rodriguez from the neighborhood and picked him out of a photo array on March 1, 1994 and then from a live lineup on April 1, 1994.

"Due to a booking error by police, Rodriguez was not arrested after the live lineup, and he left the police station without incident. It wasn't until November 23, 1998* that Rodriguez was arrested, while he was at Rikers Island jail on an unrelated charge."*

[* That's over 4-1/2 years after Cort picked him out in a line-up. This wasn't just a 'bookng error': It was an astonishing dereliction of duty by the police in a murder case.]

"There was no forensic or physical evidence connecting Rodriguez to the murder. The state's case relied on Cort's testimony. Prior to the start of the trial, Rodriguez's attorney, Paul Madden, and [Brooklyn ADA] Kyle Reeves battled over what evidence prosecutors needed to disclose. This included potentially exculpatory information about the state's witnesses, such as their criminal conduct or any favorable treatment they had received from the state. Eventually, they reached an agreement, and in the disclosure documents provided to Madden, prosecutors noted Cort's extensive criminal record, including two convictions in April 1994 for possession of stolen property and possession of a controlled substance. For those convictions, she received two separate six-month sentences that ran concurrently.

"Rodriguez's first trial...began on April 27, 1999. A mistrial was declared on May 6 due to juror illness. The second trial began on October 12, 1999.

"At trial, Cort testified about seeing Rodriguez shoot Jolly. She had been one of the persons police interviewed in the immediate aftermath of the shooting and initially told officers then that she didn't see anything.

"Reeves asked Cort a series of questions aimed at vouching for her independence and credibility as a witness. Each time, she answered 'no' and said prosecutors had not offered her any deals or given her special treatment.

"Rodriguez did not testify, but he presented two witnesses. Azizi Moore, a former girlfriend who was the mother of his child, testified that she was with Cort and two other people driving back from McDonald's when they heard shots but did not see the shooting. They waited a few minutes, then ran and found Jolly's body. Moore said several minutes later she saw Rodriguez outside, along with many others, at the crime scene. A woman named Maria Cardona also testified that she saw Rodriguez just before hearing the gunshots. But she didn't see Rodriguez with a weapon and he was headed in the opposite direction from where Jolly was found.

"In his opening statement, Reeves told jurors that Cort 'didn't receive anything for coming forward. No one cut her any deals. No one gave her any breaks.' In his closing argument, he returned to this point and said Cort was the only person who could be believed. He said, 'She had to sit here and tell you, "Yeah, you know what, at one point in time I did stuff that I am not proud of, I stole, I sold drugs back in '86, '87. I got caught, and when I got caught, I pled guilty. I pled guilty because I did those crimes. I never took a deal."'

"The jury convicted Rodriguez of second-degree murder on October 20, 1999."

"Rodriguez appealed his conviction in 2001, arguing insufficient evidence. The Appellate Division...rejected his appeal on December 31, 2001. He also filed an unsuccessful petition for a writ of habeas corpus..."

"On December 15, 2015, Rodriguez filed a pro se motion in Kings County...to vacate his conviction based on the prosecution's failure to disclose exculpatory evidence and to correct false testimony. While in prison, Rodriguez had spent years filing extensive public-records requests related to his case. These documents undermined the state's claim that Cort had received nothing for her testimony.

"He tracked down the court transcript from a February 10, 1994 hearing, where a judge told Cort that she was a 'predicate felon' and looking at between 18 and 36 months in a state prison for the stolen property and possession charges she was facing. The stolen property charge was the most recent, occurring in January 1994. 'What was offered you was the minimum plea that can be offered and that's the minimum sentence that can be imposed,' the judge said.

"But Cort's plea and final sentencing were continued [i.e., postponed] several times until April 15, 1994. In the interim, Cort picked Rodriguez out of two lineups and testified before a grand jury. It was only then that she received that more lenient sentence, which she served in a city facility, rather than in an upstate New York prison.

"Separately, Rodriguez also uncovered evidence that Cort had received more than $35,000 in cash, housing and food allowances as part of a witness-protection program tied to her testimony against Louis Charriez, a defendant in a separate murder case. This assistance began on May 14, 1997 and continued until April 12, 1999, just prior to the start of Rodriguez's first trial. (Charriez was also unaware of the payments, and his conviction was vacated on February 25, 2021.) In its response to Rodriguez's motion, the state said that Rodriguez couldn't point to any specific agreement between Cort and prosecutors. It also said the witness-protection payments didn't need to be disclosed to Rodriguez, because they were unrelated to his case.

"On April 22, 2019, Justice Guy Mangano Jr. of Kings County...vacated Rodriguez's conviction and ordered a new trial. He sharply criticized Reeves for his 'blatantly intentional misstatements to the jury' and for not correcting Cort's false testimony about her deals with prosecutors. He also said prosecutors should have disclosed the substantial assistance and other benefits Cort received for her testimony in the Charriez case.

"Rodriguez was released from prison that day. The state appealed Mangano's ruling.

"Rodriguez's response to the state's appeal was aided by additional documents released by prosecutors that highlighted the relationship between Cort and Detective Joseph Yates, the lead investigator in the Jolly case. Cort, who died in 2007, was a confidential informant for Yates, and she reached out to him after her January 1994 arrest. There was an unsuccessful effort to void that arrest, and then Yates visited Cort at Rikers Island. Then, on March 1, 1994, they traveled to Brooklyn, where she picked Rodriguez out of a photo lineup.

"In its appeal, the state suggested these events were unrelated. Rodriguez's appellate attorney said that made no sense. 'The People seem to think,' he wrote, 'this Court is credulous enough to believe police just happened to stop by Cort's jail cell on a whim, that Cort closed their murder case for them while expecting nothing in return, and that she escaped certain upstate prison time on two open felonies as a result of good fortune.'

"On September 30, 2020, the Appellate Division...upheld Mangano's ruling. It said the records that the state failed to turn over were material to Rodriguez's defense because they undercut Cort's testimony that she didn't have any deals with prosecutors and because they contradicted Reeves's summation that Cort never 'took a deal' or 'asked for anything in return.'

"A spokesman for the [DA's] office said it disagreed with the court's ruling, but Cort's death made it impossible to retry Rodriguez. Prosecutors made a motion to dismiss the charge, which was granted on January 8, 2021."

"On February 25, 2021, Kings County...Justice Jane Tully vacated Charriez's conviction and ordered a new trial. Justice Tully declared, 'The People's failure to disclose the moneys paid, promises made, and benefits conferred upon every single witness who testified against [Charriez], failure to correct misstatements, and conduct in bolstering the credibility and misstatements of the witnesses, constituted a denial of [Charriez's] rights and a pattern of breach of the People's constitutional duty.'

"Justice Tully ordered Charriez released from custody that same day.

"In April 2021, Rodriguez filed a federal civil-rights lawsuit against the City of New York and other parties, which was settled later that year for $7 million.

"On January 27, 2023, the prosecution dismissed the case against Charriez."*

[* Note that the DA kept Charriez 'hanging' for nearly two years before finally dropping the charges against him.]

[All emphases added unless otherwise noted.]

Roman Carlton - Police Misconduct / Perjury

Mon, 30 Jun 2025 05:11:35 +0000

Roman, Carlton; murder; NRE: perjury/false accusation, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, knowingly permitting perjury

Suggestibility issues

G35 "G'Bye to 'Hell': 'Full Story' Springs [Queens] Man After 32 Years in Jail," Noah Goldberg, Leonard Greene, and Josephine Stratman, New York Daily News, 8/20/21, pg. 5

"Carlton Roman was an innocent man sent to jail on a lie.

"There, he languished for 32 years...until the right prosecutors came along and concluded the man convicted in Queens of a cold-blooded murder...didn't do the crime."

"Roman's freedom fight started after he was arrested and charged with [Lloyd] Witter's murder and for the attempted murder of Jomo Kenyatta, who survived the shooting, but has since had to use a wheelchair.

"A third man in the house, Paul Anderson, was found bound with telephone wire and handcuffed.

"The two survivors fingered Roman -- a friend of the murdered man -- as a ringleader and shooter..."

"But there was no hard evidence linking Roman -- a recent college graduate who had no criminal record* -- to the killlng. He was charged based on the eyewitnesses, despite the fact that his girlfriend confirmed his alibi."

[* Nickel also had no prior criminal record.]

"Roman submitted his case to be reinvestigated by the Queens DA's office in 2013 and 2018, but prosecutors made no moves to dismiss the charges. In April 2020, however, [Melinda] Katz, the new [DA], opened an investigation into the case.

"The case review found that Anderson recanted his story in 2019, saying that he falsely accused Roman of the killing.

"Anderson said Roman was not among the shooters and that he didn't even see him on the day of the crime, March 16, 1989.

"The Queens DA's office also found that Anderson, starting during the initial investigation and up to the present, has given six different versions of the events of the shooting and 'most are inconsistent with each other and the facts of the crime.'

"A new witness interviewed by the DA's office says Anderson and Kenyatta were involved in drug trafficking and that Kenyatta was a violent druglord.

"Despite that, Kenyatta testified at trial that he did not have a substantial criminal history, prosecutors said."

"The Queens DA's conviction integrity unit has overturned eight convictions since Katz became [DA]."

"Roman shared words of encouragement for those who have suffered his fate.

"'Stand strong,' he said, 'and never give up.'"

from NRE synopsis (by Ken Otterbourg):

"On March 16, 1989, 28-year-old Lloyd Witter was shot to death inside a house in the Jamaica section of Queens...Another person in the house, 27-year-old Jomo Kenyatta, was shot several times and taken to the hospital, where he remained unconscious for several weeks.

"Paul Anderson, who lived in the house, was found outside, bound and handcuffed, but otherwise unharmed. Anderson initially told Detective John Loguercio that four men came to his house. According to Loguercio's report, Anderson could not identify the men but gave a detailed description. He said the apparent leader was about 5'2" or 5'3" and walked with a limp. Two others, Anderson said, were no taller than 5'4". The fourth person was, Anderson said, about 6 feet tall and had a so-called 'Cameo' haircuit, tight on the sides and tall on top.

"A few hours later, at a precinct station of the [NYPD], Anderson told Detective William Pepey that an acquintance, 26-year-old Carlton Roman, was the shooter. Anderson referred to Roman, who had no criminal record and did not match any of his previous descriptions, by a nickname, 'Marshall.'

"Roman also knew Witter, and the next day, Roman called the home of Andrea Witter, Witter's wife. Roman asked her what had happened and said she was coming over to see her. Witter had previously received a call from Anderson about the shooting. Witter became scared and called the police. When Roman arrived at Witter's home, Pepey was waiting and arrested Roman. He was charged with [among other things] second-degree murder..."

"Separately, Anderson told the police on March 17 that a man named Hollis Laylor, who went by the nicknames 'Skinny' and 'Slim Man,' was another one of the assailants. The next day, he said two brothers, whom he only knew as 'Bigger' and 'Richie,' were the other assailants."

[So, on the day of the crime, Anderson says he couldn't identify the culprits. But just one day later, he provides the full names for two of them, and the nicknames of the two others.]

"Kenyatta remained at Mary Immaculate Hospital for several weeks, drifting in and out of consciousness. During that time, both Anderson and Pepey paid repeated visits. On April 13, 1989, Kenyatta identified Roman* as one of the participants in the shooting. The identification was unorthodox. Pepey brought a box containing letters, and Kenyatta spelled out 'Marshall,' 'Skinny,' and 'Richie' when Pepey asked who had shot him. He then showed Kenyatta a single photograph of Roman, and Kenyatta nodded to indicate the identification."**

[* Remember: Anderson -- who named Roman one day after he said he couldn't identify any of the assailants -- had visited Kenyatta in the hospital numerous times. Thus, it seems quite likely that Anderson (strongly) influenced Kenyatta to name Roman.]

[** This is reminiscent of a scene in 'Hurricane: The Rubin Carter Story,' where the latter is brought to the hospital for a 'show-up' in front of one of the (barely) surviving victims. That film chronicled another real-life wrongful conviction.]

"Roman's trial in Queens...began in October 1990. There was no physical or forensic evidence tying him to the shooting, and the state's case consisted of the testimony of Pepey, Anderson, and Kenyatta."

"At trial, Anderson... said that Roman, Laylor, Kenyatta and Witter had been at his house on March 15, 1989, and that a 'fuss' occurred after Kenyatta and Witter took a gun from Roman. The next day, Kenyatta and Witter came by to help Anderson move. Roman, Laylor, Biggie and Richie came by later. They handcuffed Anderson and placed him in the basement. After several hours, he heard the doorbell ring, then a series of shots.

"Anderson also testified that he was an architect, that he was not involved in dealing drugs, and that he had never been shot or treated at a hospital for a shooting."*

[* All three of these statements were lies. (See above and below.)]

"Kenyatta said the initial argument on March 15 was about drugs and involved Roman, Laylor, and Witter. Kenyatta said that he and Witter returned to Anderson's house on March 16. He said that when they walked in the house, the door closed quickly behind them. He then heard shots, and saw Laylor and Roman shooting Anderson.* Kenyatta said he tried to run away, but Roman shot him on the stairs. He said that he could look out the window and see the four assailants as they fled."

[* There is zero evidence (aside from Kenyatta's testimony here) that Anderson was ever shot -- or even, shot at. Anyway, according to Anderson himself, he was in the basement at the time, as opposed to just inside the front door, where Kenyatta said the shooting occurred.]

"Kenyatta testified on direct examination that his criminal record consisted of a single conviction for reckless driving and that he was not involved in the sale of drugs. But he was recalled to the witness stand after Roman's attorney produced evidence that he had pled guilty to attempted possession of a weapon after initially being charged with attempted murder.

"Pepey testified about Roman's interaction with Andrea Witter. He said that after Roman was arrested, he yelled out to Witter that he didn't kill her husband and 'when I got to the house I saw them there and left.'

"Pepey also testified that Andrea Witter told him that she had learned about her husband's alleged killer on March 16, when she left her house and walked to Anderson's at about 10 p.m. Andrea Witter did not testify.

"Roman testified and denied any involvement in the shooting. He said he wasn't involved in dealing drugs. He also presented two alibi witnesses, including his fiancee, who said Roman had been with them at the time of the shooting.

"The jury convicted Roman...on October 19, 1990."

"Laylor was never prosecuted.* Anderson returned to his native Jamaica, and Kenyatta experienced an apparent mental decline** that left him unable to testify."

[* Why> According to Kenyatta, he shot at Anderson. And even if he didn't, he was (allegedly) an accomplice to murder. And what about the other two alleged assailants? Did the police even try to find them?]

[** That was almost certainly feigned. (See below.)]

"Roman filed numerous appeals in state and federal courts, including a 2004 petition for a writ in...[the] Eastern District of New York. That petition, which was denied, claimed that his trial attorney had been ineffective through a lack of preparation.

"The pro se petition also said prosecutors 'relied on perjured testimony by their witnesses and failed to disclose aspects of their backgrounds that would have been favorable to the defense. That included...witnesses' denial of their prior criminal records and involvement, denial of having been shot, and claiming to have seen events they were not in a position to see.'

"Twice, in 2013 and 2018, Roman's attorneys asked the Queens...[DA's] Office to reexamine the conviction. Although the conviction was reviewed, no action was taken. In 2020, Roman's attorney, James Henning, resubmitted the case to the [DA's] new Conviction Integrity Unit.

"A new investigation found signfiicant problems with the evidence and testimony used to convict Roman, corroborating his defense that the men who testified against him were liars and drug dealers.

"Anderson had testfiied that he had never been shot, but he had refused to expose his leg to prove the absence of a gunshot wound. The investigation found medical records that said Anderson had been shot in November 1988. New witnesses told the CIU that Witter was the shooter in that incident. The investigation also found that Anderson had given at least six different accounts of the shooting that left Witter dead, and they were inconsistent with each other."

[* The fact that Witter -- the murder victim in this case -- had previously shot Anderson sure gave the latter a powerful motive to shoot him.]

"Kenyatta's credibility was also undermined. He testified that he was not involved in illegal activities but had become a victim by being in the wrong place at the wrong time. The extent of his criminal record could not be determined at trial because of his extensive use of aliases.* It turned out that Kenyatta had been arrested under these names for a series of violent crimes. A half-brother of Kenyatta's told the CIU that Kenyatta was a violent man who carried a gun and that Anderson's house was being used to sell drugs. Kenyatta told CIU investigators that he could not concentrate or remember details about the shooting, but other evidence suggested Kenyatta's claims of neurological impairment were a ruse."

[* That seems quite dubious, given that the police and prosecutors keep extensive files on aliases.]

"Pepey's testimony also came under scrutiny. The CIU interviewed Andrea Witter. She said Pepey gave false testimony about statements Roman made after his arrest. While Roman said he didn't shoot Witter, Andrea Witter said Roman never said he was at the house. Andrea Witter also said that contrary to Pepey's testimony, she hever walked to Anderson's house at 10 p.m. on the night of the shooting.

"The CIU said her account made sense. First, Witter lived nearly three miles away. It was very cold that night, and Witter had an infant and a 4-year-old child, and she wouldn't have brought them with her or left them home alone.

"Pepey also told investigators that he bought a fake visa for Anderson so he could return to the Unites States from his native Jamaica to testify against Roman.

"Anderson recanted his testimony in 2019. He said Pepey fed him details of the crime and pressured him to testify by threatening to have authorities seize his U.S. residence in Queens, which was owned by his sister.

"The CIU's investigation noted that Anderson never was asked about the discrepancies between his identification of Roman and the early descriptions of the assailants he gave to Detective Loguercio. But it's not clear if this was because the state failed to turn over this report or because Roman's attorney failed to bring it up.* The [DA's] office certified in 2015 that it could not locate its case file."**

[* Even if the state did turn over this report, it doesn't let the authorities (especially the detectives) off the hook for failing to confront Anderson about these very significant discrepancies.]

[** That's convenient -- and highly suspicious.]

"On August 9, 2021, the Queens...[DA] and Henning filed a joint motion asking the court to vacate Roman's convictions. In its affirmation, the [DA's] office said it 'had concluded that three witnesses and the facts undermining the credibility of the key trial witnesses Anderson and Kenyatta could not have been discovered in the context of Roman's trial with the exercise of due diligence and are of such character that they would have probably led to a verdict more favorable to the defendant.'

"In his affirmation, Henning took issue with that characterization. 'Whatever the contents of the lost prosecution file,' he wrote, 'the true character and credibility of Paul Anderson and Jomo Kenyatta could have been readily ascertained with relatively basic investigation and, indeed, should have been known -- at the very least -- to Detective Pepey.'

"On August 9, 2021, Justice Michelle Johnson of Queens...granted the motion and then dismissed the charges against Roman.

"[DA] Melinda Katz said, 'We are not so arrogant to think that the system doesn't make mistakes. When we find miscarriages of justice, we do everything in our power to correct them quickly.'"

"In September 2021, Roman filed a compensation claim in the New York Court of Claims. In November 2022, Roman filed a federal civil rights lawsuit against the City of New York. The lawsuit was settled in October 2023 for $18 million."

[All emphases added unless otherwise noted.]

Richard Rosario - "Overwhelming Evidence" - Prosecutor Misconduct

Mon, 30 Jun 2025 05:07:29 +0000

Rosario, Richard; murder; NRE: mistaken witness identification, inadequate legal defense, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant; "OVERWHELMING"

Suggestibility issues

[733:405]; 1st Dept. 11/27/01; affirmed

"[There was] overwhelming evidence of [Rosario's] guilt."

[The 1st Dept. 'justices' who signed off on this were Richard T. Andrias, Richard W. Wallach, Alfred D. Lerner, and John T. Buckley. ]

582 F.Supp.2d 541; S.D.N.Y. 10/22/08; writ denied

"On June 19, 1996, George Collazzo was fatally shot in the head on Turnbull Avenue in [the] Bronx...At least three eyewitnesses observed the incident...though only two of them testified that Rosario was the shooter. One witness, Michael Sanchez, was a friend of the victim and present with him at the time of the shooting...He testified that an argument arose between Rosario and the victim after the victim uttered a racial epithet, and stated that he had a clear and unobstructed view of Rosario's face during the verbal quarrel...According to Sanchez, Rosario approached from behind shortly thereafter, and shot the victim with a revolver...Three weeks after the shooting, a police lineup was organized, and Sanchez identified Rosario as the shooter, and stated that he had no doubt, either at the lineup or at trial, that his identification of Rosario was correct...A second witness, Richard Davis, identified Rosario as the shooter after reviewing photographs provided by police; he testified at trial that he had an unobstructed view of the shooting."

"Two alibi witnesses -- Jenine Seda and John Torres -- testified at trial that Rosario was with them in Florida the day of the shooting...Seda testified that she specifially recalled Rosario's presence in her home, because the day of the shooting was one day before she gave birth to a son, and she further testified that Rosario was present in her home when she returned from the hospital...John Torres, Rosario's friend and the father of Seda's baby, testified at trial that on the day of the shooting, Rosario had spent the day with him purchasing auto parts for a broken-down car.

[At a post-conviction hearing:] "Fernando Torres testified that on the day of Collazo's murder, he accompanied Rosario and John Torres to buy auto parts...Chenoa Ruiz, a next-door neighbor to John Torres and Jenine Seda, testified that she observed Rosario on both June 18 and June 19, and recalled frequently feeling irritated with Rosario because he was so often 'hanging out' with John Torres, who she believed should have been tending to Seda's pregnancy...Rosario was also memorable to her, she added, because he often kept her boyfriend out late at night, which caused her problems...She stated that she specifically observed Rosario at the home of John Torres and Jenine Seda on June 19, when she picked up Seda for a doctor's appointment."

2019 WL 4450685; S.D.N.Y. 9/16/19; civil suit

"[Police Sergeant Edward] Monks pressured [several officers whom he supervised] to close the investigation quickly because the shooting had drawn significant public attention and the victim was the son of a New York City transit officer. As a result, the police did not investigate certain aspects of the case -- the officers did not identify the accomplice or his vehicle; ask [Rosario] about the accomplice; investigate the claim that the victim had been fearful of a retaliatory attack, except interview the woman the victim had allegedly slapped; and looked past the fact that [Rosario] had no connection to this woman.

"Police failed to contact any of [Rosario's] alibi witnesses.

"[T]he DA's Office [eventually] reinvestigated [Rosario's] case. It concluded [he] had not received a fair trial. His conviction was vacated on March 23, 2016, and he was released after nearly twenty years in prison. The DA's Office further concluded on September 26, 2016, that it did not have sufficient evidence to convict [him], and [the] indictment was dismissed on November 3, 2016."

from NRE synopsis (by Maurice Possley):

"On June 19, 1996, 17-year-old George Collazzo and a friend, Michael Sanchez, were walking in the Bronx when a car pulled up and two men -- one black and one Hispanic -- got out. The Hispanic man a"Rosario's defense attorney presented two alibi witnesses who said that Rosario was in Florida for the birth of his son at the time of the crime. However, the prosecution cast doubt on their testimony by emphasizing that both were friends of Rosario.

"On November 23, 1998, the jury convicted [him]..."

"Rosario appealed repeatedly in both state and federal court. None of the appeals succeeded, even though Rosario presented seven more alibi witnesses who testified that he was in Florida at the time Collazzo was murdered. Three of the new witnesses passed polygraph examinations (as did Rosario himself).

"Rosario enlisted the help of the Exoneration Initiative (EXI), a non-profit organization in New York City that works to free the wrongly convicted. In their investigation, EXI attorneys Glenn Garber and Rebecca Friedman discovered that the police and prosecution had withheld evidence helpful to the defense.

"The concealed evidence showed that in his initial recorded statement, Sanchez said that he did not see the gunman -- a statement that cast doubt on his identification of Rosario at trial.

"The police also failed to document and disclose statements from two other witnesses that the gunman addressed Collazzo by name and that the getaway car had no license plates -- suggesting that the gunman knew and specifically targeted Collazzo. There was no evidence that Rosario and Collazzo had ever met before the shooting.

"The withheld evidence also showed that before Rosario's trial, the prosecution bolstered Sanchez's confidence in his identification of Rosario by falsely telling him that Diaz had initially identified Rosario in his first statement. In fact, Diaz failed to identify Rosario in a lineup held after Rosario turned himself in to police -- another fact the prosecution did not disclose.

"Rosario's trial attorney admitted that he failed to contact more than a dozen people in Florida whom Rosario said would testify that they saw him in Florida on the day of the crime. The lawyer, who took over from another defense lawyer before trial, said he mistakenly believed that the trial judge had previously denied a request for funds to send an investigator to Florida to interview the witnesses.

"In March 2015, despite the new evidence, Bronx...Judge Robert Sackett refused to grant Rosario a new trial.

"In January 2016, Darcel Clark was sworn in as [DA] for Bronx County. At the request of EXI, Clark's conviction integrity unit began to re-examine the case and sent investigators to Florida to interview 11 alibi witnesses for Rosario.

"After its investigation, the prosecution agreed to vacate Rosario's conviction, and on March 23, 2016, Rosario was released from prison. A day earlier, Dateline NBC aired an online documentary capping a three-year investigation that featured interviews with the alibi witnesses."

"On November 10, 2016, the case was dismissed.

"Rosario filed a claim for compensation in the New York Court of Claims. It was denied in 2020.

"Separately, Rosario filed a lawsuit in 2018 in [the] Bronx...against the City of New York and several police officers, seeking compensation...The case was later moved to...the [federal] Southern District...and went to trial in 2022. A jury awarded Rosario $5 million on August 11, 2022."

[All emphases added unless otherwise noted.]

rgued with Collazzo and then fatally shot him in the head. The men fled in the car.

"At the time of the shooting, Collazzo was carrying a loaded pistol and evidence would later suggest he was involved in selling drugs.

"Detectives asked Sanchez and a food cart vendor named Jose Diaz, who was nearby at the time of the crime, to look through books of photographs of people who had been arrested in that precinct. The police said that Sanchez and Diaz identified 20-year-old Richard Rosario as the gunman.

"Rosario, who had prior convictions for robbery and possession of stolen property, turned himself in to the police on July 1, 1996. Rosario said he had been in Florida at the time of the crime, but he took a bus to New York after his family told him that he was wanted for questioning."

"Rosario went on trial in [the] Bronx...in November 1998."

Danny Sarita - Perjury / False Accusation / Prosecutor Misconduct

Mon, 30 Jun 2025 05:04:43 +0000

Sarita, Danny; assault; NRE: perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpaory evidence

[909:442]; 1st Dept. 10/26/10; affirmed

"[T]he verdict was not against the weight of the evidence...The evidence established that [Sarita] cut the victim's face with a sharp object."

from NRE synopsis (by Maurice Possley):

"In the early morning hours of November 10, 2007, 25-year-old Danny Sarita left Melodia, a nightclub on 207th Street in far north Manhattan, after working the night as a DJ.

"A large crowd of people were milling about as the club closed down. On the way out, the mother of Sarita's son confronted Sarita. Witnesses told police that the woman, who had been drinking, was cursing at Sarita and rushed toward him. Sarita brushed her aside and the woman fell to the pavement. Wilfredo Hernandez, who had left the club with the woman, exchanged words with Sarita and walked away.

"At about that time, an unrelated fight among several men erupted on the street nearby. During the brawl, 24-year-old Giovanny Mercado was slashed in the face.

"Later that day, Sarita was told that police wanted to speak with him about the brawl. When he went to the precinct station, he was put in a lineup and was identified by Wilfredo Hernandez* and his sister, Yessenia Hernandez, as the man who slashed Mercado."

[* Remember: This is the guy who'd earlier 'exchanged words' with Sarita, apparently upset that he'd shoved the mother of his (Sarita's) son. Also, as we shall see below, he initially refused to identify anyone.] p> "Sarita denied that he was involved in the fight...He was arrested...He testified before the grand jury and denied being in the fight. Sarita was later re-indicted on a second charge...based on an allegation that he aided others in the assault on Mercado.

"Sarita went to trial in [Manhattan] in March 2009. Wilfredo Hernandez testified that he and Mercado and three other friends were at the nightclub to celebrate Yessenia's birthday. Wilfredo said the fight began when someone punched Mercado and knocked him to the ground. Although Mercado sustained a single slash wound to the face, Wilfredo said he saw Sarita lift him up by the waist and make a number of jabbing motions* at Mercado's face with a shiny object."

[* So...Unless Sarita somehow 'missed' Mercado's face in all but one of his slashing attempts, Wilfredo Hernandez is a liar.]

"Mercado testified that he was punched, knocked down and then someone -- he did not know who -- slashed his face.

"Yessenia testified that Sarita stabbed Mercado and then made a derogatory remark about him as he lay bleeding on the ground. Sarita's attorney suggested during cross-examination that Yessenia and Wilfredo targeted Sarita because Wilfredo and Sarita had exchanged angry words outside the nightclub just before the brawl erupted. Under cross-examination, Yessenia and Wilfredo both admitted they were highly intoxicated when they left the nightclub because they had smoked marijuana before coming to the club and drank heavily throughout the night.

"A police officer testified that Wilfredo Hernandez was drunk, belligerent and uncooperative at the scene, and initially refused to identify anyone who was involved in the fight. A police officer said that one witness at the scene said that the person who slashed Mercado had closely cropped hair. Sarita wore his hair in braids.

"A security guard testified that he saw Sarita in the crowd outside the club, but did not see him fighting. A video of the street taken from the club during the incident showed people outside the club involved in a brawl, but Sarita was not visible."

"On March 24, 2009, the jury acquitted Sarita of the...assault charges but convicted him of the...gang assault charge."

"Sarita's appeal was denied in December 2010. In 2011, defense attorney Peter Smith filed a motion for a new trial based on statements from three witnesses who said they were at the scene and that Sarita was not involved in the fight. Two of them said that they told police and a prosecutor that Sarita was not the man who slashed Mercado. The motion claimed that the prosecution had failed to disclose the statements to Sarita prior to his trial.

"After the motion was filed, the Conviction Integrity Unit of the [Manhattan DA's] Office re-investigated the case, interviewed the three witnesses and located a fourth witness who also said that Sarita was not involved in the fight.

"In April 2012, the prosecution filed a motion requesting that Sarita's conviction be vacated. On April 16, 2012, the conviction was vacated, the charge was dismissed and Sarita was released.

"Sarita filed a claim for compensation with the New York Court of Claims and settled for $450,000."

[All emphases added unless otherwise noted.]

Kevin Rojas - Mistaken ID / Police Misconduct / Perjury

Mon, 30 Jun 2025 05:03:23 +0000

Rojas, Kevin Luis; murder; NRE: mistaken witness identification, inadequate legal defense, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, perjury by official

Suggestibility issues

R7 [from FN39:] "Kevin Luis Rojas...was identified (wrongly) by seven witnesses after he was 'perp walked' in front of them,* having been arrested on a PATH train some blocks from the scene of the shooting because of the color of his jacket. Disovery of a PATH police sergeant who could establish Rojas's presence on the PATH platform at the time of the shooting finally led to his exoneration, after four-and-a half years in prison, reversal, acquittal after retrial, and, finally, a finding of actual innocence and grant of compensation by the Court of Claims."

[* This is what is known as a 'show-up.' It is extremely suggestive.]

[630:28]; 1st Dept. 7/20/95; reversed, due to ineffective counsel and suggestive I.D. procedure

"[Rojas] appeals from...charges arising out of a shooting in the Greenwich Village area...This appeal focuses on, inter alia, certain exculpatory evidence, overlooked by counsel, which, had it been investigated and provided to the jury, may well have proved [Rojas'] innocence.

"On the morning of November 18, 1990, at shortly before 2:07 AM, a group of youths, most of whom were college students, consisting of Javier Bueno, Rudy Quesada, Joe Fontanez, Jose Oquendo, brothers Camilo and Carlos Quinones, Joaquino Carrasquillo, Edward Gajador, and Denis Mondesire, were walking south on Broadway...after finishing a night out bowling.

"As the youths approached Waverly Place, two men walking uptown, one wearing an orange aviator-style jacket...and an unidentified companion, proceeded toward the young men. As the youths passed the two men, Mr. Oquendo and the individual with the orange jacket bumped into one another (it is unclear if the incident was intentional on the part of either man), which the Perpetrator took as a challenge. An exchange of words followed and the Perpetrator whistled to alert some nearby companions, who ran across Broadway to join the two men.

"The Perpetrator subsequently produced a silver handgun, later determined to be a .32-caliber automatic, yelled 'You mother f---ers better run,' and started firing at the walls of a New York University building. Some of the youths ran, but Mr. Fontanez stood his ground and, essentially, ceded that the Perpetrator had been victorious in the exchange. The friends of the two men began to depart, laughing, and as they left, one of them told the Perpetrator 'we should have done them, should have butt them,' which apparently meant we should have shot them.

"The Perpetrator then handed the gun to a companion wearing a 3/4-length green coat who began to fire the gun at the group of youths, striking Mr. Bueno in the neck and Mr. Quesada in the leg and buttocks. After the shooting, the Perpetrator's group ran, and were pursued, at a distance, by Mr. Fontanez as far as the BBQ restaurant on 8th Street and University Place, when they paused for a minute. Mr. Fontanez then doubled back to Waverly Place where he flagged down [an NYPD] patrol car. Mr. Bueno subsequently died from his injuries while Mr. Oquendo survived, but his wounds required the employment of a steel plate in his leg and lengthy therapy.

"The radio-run that eight male Hispanics and Blacks had been involved in the shooting of two people on Broadway and Washington Place, one of whom was wearing an orange jacket, was received by [NYPD] Officers Glenn Iannotto and Drew Palmer, who immediately proceeded to the Port Authority PATH station at 9th Street and 6th Avenue because, as Officer Iannotto explained, the station provided a means of escape from the area. As they entered the station, the officers observed a large number of people waiting on the platform, so Officer Palmer radioed for other officers to assist them. When a train pulled into the station minutes later, Officer Iannotto had two Port Authority Police officers detain the train to prevent the escape of any suspects. [NYPD] Officers Dean Pecorale and Jill Martin thereafter saw [Rojas], who was wearing a reversible jacket similar to the one worn by the Perperator, and removed him from the train.

"In the interim, Officers Visconti and Bishop, having recevied a radio-run of 'possibles' in the PATH station, proceeded to that location with Mr. Fontanez in order to see if he could identify anyone. At approximately 2:20 AM, Officer Visconti accompanied Mr. Fontanez to the train platform and onto the train, where he identified Carlos Cajas and Khari Streeter, whom he believed to be the shooter in the green coat. As Mr. Fontanez walked back toward the beginning of the platform, he identified [Rojas], who at the time was being frisked by Port Authority Police officers. Although Officr Visconti testified that none of the detained persons had been handcuffed when Mr. Fontanez identified [Rojas], Mr. Fontanez later testified at trial that [Rojas] had already been handcuffed when he first saw him, which testimony is consistent with his Grand Jury testimony.

"At the time of his arrest, [Rojas] was wearing a reversible aviator-style jacket, with an orange shell, similar to the one described as having been worn by the Perpetrator. [Rojas] later claimed that, when the police initially stopped him, he was wearing the jacket with the orange shell on the inside and the maroon side facing outward, but that the police made him reverse the jacket so that the orange side was facing outward prior to being identified by Mr. Fontanez. Mr. Fontanez' testimony supports that of [Rojas] to the extent that Mr. Fontanez testified that when he first viewed [Rojas], the orange shell was on the outside. [Rojas], at the time of his arrest, was in possession of a single, beat-up .22-caliber bullet which was found in his jacket pocket.

"Shortly after his arrest, Officers Pecorale and Martin placed [Rojas] in their patrol car and drove him back to the scene of the shootings, allegedly because they needed instructions from their supervisor, although it was never made clear why the instructions could not have been obtained over the radio. The officers further maintained, incorrectly, that they did not anticipate coming across any witnesses at the crime scene.* A short while later, Officers Bishop and Visconti also transported Mr. Fontanez back to the crime scene."

[* That's ridiculous. Two people have just been shot. Of course witnesses are going to stick around and talk about what just happened.]

"All but three of the youths who were shot at (two of whom were in the hospital), including the two passing in a car, testified at trial that they were at the crime scene when [Rojas] arrived, handcuffed, in the back of the patrol car. [Rojas] testified at the [motion to vacate] hearing that Mr. Fontanez, in front of other witnesses, pointed at him through the cruiser's window, saying that he was the one because '[h]e has the colors on.' At some point, Mr. Oquendo began punching the car and was restrained by the officers present at the scene.

"Once [Rojas] was brought to the 6th Precinct, he was provided with his Miranda warnings...and agreed to provide a statement, which was taken by Detective Daniel Massanova. The subsequent line-up procedure...was conducted so that the participants were rotated in and out of the viewing room and seen separately. The reason for this was that [Rojas] was believed to have tuberculosis and none of the fillers, all Police Academy cadets, wanted to be in the same room as [him].

"No line-up photos were taken, and police evidence indicated that all of the participants, except for one, were of Hispanic descent. The police cadet fillers all had short hair, befitting their attendance in the police academy, whereas [Rojas] and Cajas had 'medium' or 'normal' length hair which came over the top of their ears. [Rojas] also correctly points out that while the cadets were neat, fresh and clean-shaven with crew cuts, as they were on the way to the Academy, the suspects had been up all night before the 10:20 AM lineup, so the cadets were easily identified.

"Detective Massanova testified that after the line-up: Mr. Fontanez identified [Rojas], Cajas and Streeter; Mr. Everett identified Cajas and [Rojas]; and Mr. Logoa, Mr. Oquendo and Carlos Quinones identified [Rojas] as being at the scene. It was later determined that Mr. Logoa had not, in fact, identified [Rojas] in the line-up and that Detective Massanova was mistaken in his testimony. Mr. Carrasquillo failed to identify anyone."

[FN1:] "At the time of the incident, two friends of Mr. Fontanez' group, Brian Everett and Michael Logoa, were coincidentally driving by when the confrontation first began and they slowed down to observe. When the men appeared to be separating, and before any shots were fired, the two men in the car drove on.]

"Streeter was released after the line-up, and his arrest voided due to a verifiable alibi. [Rojas] notes, rather strikingly, that every witness that identified [Rojas] at the line-up had seen him in police custody before the line-up, and the two witnesses who identified Cajas had seen him in police custody before the line-up, whereas Mr. Carrasquillo, the only witness who had not seen a suspect before the line-up, did not identify anyone."

"On August 26, 1991, Justice Paul Bookson denied defendants' motion to suppress, fully crediting the [prosecution's] witnesses. Justice Bookson found that: Mr. Fontanez' PATH station identification was spontaneous and not police-arranged;* that [Rojas] was free from restraint at the time of the show-ups;** that once Mr. Fontanez identified [Rojas], probable cause to arrest existed; that the crime-scene viewings were inadvertent and not orchestrated; and that [Rojas'] suggestiveness challenge to the carousel line-up procedure should be rejected."

[* That's (conveniently) credulous: There was no legitimate reason for the police to publicly parade Rojas by all of these witnesses.]

[** That's preposterous: Most of the witnesses saw Rojas handcuffed, and or in a police car at the time of the show-ups.]

"At trial, Mr. Fontanez and other witnssses to the shooting identified [Rojas] as the Perpetrator...However, the testimony of the youths' descriptions of the Perpetrator varied, with Fontanez acknowledging that he looked different at trial. Accounts of the shooting varied also. For example, Mr. Fontanez testified before the Grand Jury that the man wearing the green coat, not [Rojas], had fired at the wall, and that he had not seen the Perpetrator with the gun, whereas at trial he testified that the Perpetrator fired at the wall before handing the gun to the man in the green coat. Mr. Oquendo originally told police that the man in the green coat had fired into the air, whereas at trial he could not recall who fired the gun.

"[Rojas] contends that he provided an alibi but that his trial counsel not only failed to give an alibi notice to the [prosecution]...but indicated during questioning that [Rojas] was, in fact, at the scene. [Rojas] also points out that neither the prosecutor, nor his trial counsel, interviewed the PATH police officer in charge, Detective Sergeant John Apel, who...could substantiate his alibi defense. [Rojas] further contends that his counsel never visited him at Rikers Island and only visited him once in the holding pen, for approximately one-half hour, and most of that contact was consumed by counsel urging [Rojas] to take a plea offer. Appellate counsel also notes that trial counsel never investigated [his] alibi and subpoenaed the New York City Transit Authority rather than PATH for the train station videotape (which, as it turns out, did no harm with regard to available evidence as the camera at the 9th Street station had no tape in it that night,* but does indicate...defense counsel's lack of diligence)."

[* So say the 'authorities.' But given their other conduct in this case, it's not at all clear that we should simply take their word for it.]

[In a motion to vacate hearing:] "Sergeant Apel stated that he recalled observing Cajas and [Rojas] on the morning at issue because they hung around and made an attempt to pass through the turnstiles without paying, but then backed off while other officers, who also were observing them, were hoping they would beat the fare so they could arrest them...Apel testified that Cajas and [Rojas] were in the station approximately ten minutes before the arrival of [NYPD] officers.

"In response to [Rojas']...motion, [the prosecutor supplied Rojas] with the actual 911 [DA's] Squad Tapes...which were not available at the time of trial.* The first 911 call, made by the manager of the Bayamo restaurant located across the street from where the confrontation took place, indicated that the shooting occurred moments before 2:07 AM. The Squad Tapes demonstrate that Officers Iannotto and Palmer first entered the tunnel of the station at 2:13 AM, and at 2:15 AM, one of the officers, believed to be Palmer, radioed Central Dispatch that there might be some 'possibles' at the PATH station. From the time of the shootings at 2:07 AM to the entry of the officers into the station, there was a time span of six minutes. Sergeant Apel's testimony that he saw [Rojas] in the station approximately ten minutes before the arrival of the police officers would place [Rojas] and Cajas in the station at approximately 2:03 AM, which was four minutes before the shooting that occurred five blocks away."

[* Rojas went to trial over a year after the crime occurred. Can it seriously be argued that the Squad Tapes weren't available by then? (And even if they weren't, given their importance, couldn't the trial have waited until these tapes were available?)]

"There was no evidence to support the [notion] that Cajas and [Rojas] ran from the scene of the shootings to the station, [given that] Sergeant Apel testified that [their] demeanors were normal, 'they were neither breathing nor perspiring heavily and they did not seem overly excited or surprised.' Sergeant Apel also testified that [Rojas] and Cajas were loitering outside the turnstile for about five minutes before finally making payment and entering. This behavior is not consistent with the action of two gunmen fleeing from a shooting they have just committed in the vicinity...[Rojas] notes that his private investigators conducted an experiment where they had a 'healthy young man' run from the scene of the shooting to the 9th Street PATH station, and that it took 4 minutes and 15 seconds to cover the distance, but that the runner was winded and perspiring heavily upon his arrival."

"[According to PATH logs and the conductor on duty, Rojas was] in the station seven minutes prior to the shooting."

"[Rojas'] trial counsel, [David] Fronefield, not only made no effort to investigate the foregoing evidence or [Rojas'] alibi, but further committed numerous errors during the course of the trial which tended to implicate [Rojas] rather than to prove his innocence. At trial, undercutting any alibi defense was Mr. Fronefield's repeated use of [Rojas'] name when speaking of the Perpetrator."

"Mr. Fronefield also demonstrated a lack of knowledge of his own client's appearance at the time of his arrest: While cross-examining Officer Iannotto, Fronefield inexplicably insisted that [Rojas] had long hair, despite the testimony of the officer that his hair was of normal length."

"The foregoing becomes extremely relevant when viewed in context with the 911 tapes first produced pursuant to the [post-trial] motion. 911 caller #12, who was never identified, describes the Perpetrator, the scene of the shootings and the events in great detail: The caller describes The Perpetrator three times...as wearing a short orange jacket, white pants and long hair in a ponytail. When arrested, [Rojas] had 'normal length' hair just over his ears, no ponytail and blue jeans. All of the foregoing, however, was ignored by Mr. Fronefield who chose, as the sole defense, to present character witnesses* consisting of [Rojas'] high-school counselor, photography teacher and biology teacher."

[* Character witnesses, if used at all, should be the proverbial 'icing on the cake,' presented only after eyewitness and other event-based testimony.]

"[D]espite [Rojas'] claim of an alibi, and the detailed statements made by both [Rojas] and Cajas to the police on the night of their arrest, defense counsel appears to have made no effort whatsoever to substantiate, or at the very least investigate, [Rojas'] claims. Mr. Fronefield did not go to the BBQ restaurant to interview staff or perhaps look through receipts in order to ascertain [Rojas'] presence and the time thereof; did not interview PATH officers or other PATH personnel (i.e., the train crew) in an effort to determine when the two men arrived at the station, which would have supported [Rojas'] alibi and claim of innocence; made no attempt to support the statements made by [Rojas] to the police and, in fact, attempted to have them ruled inadmissible; failed to serve the statutorily required notice of an alibi defense; and, in either one or two very brief visits to [Rojas] in preparation for trial, apparently spent much of the time (1/2-hour total) attempting to convince [Rojas] that he should accept a plea bargain for a crime [he] insisted he did not commit.

"Mr. Fronefield also failed to interview or elicit favorable testimony at trial from William Lytell Davis, an eyewitness to the shooting whose testimony could have shown that the police may have arrested the wrong person. Mr. Davis, who was working security at the Bayamo restaurant, testified at the [post-trial] hearing that he was looking out of the front window of the restaurant when he 'saw the incident go down and. . .told the manager to call 911.' When the police arrived, Mr. Davis gave them a description of the Perpetrator wearing a flight jacket turned inside-out with shoulder-length dirty-blond hair in a long ponytail, and of being of average height and kind of stocky. Mr. Davis, upon viewing [Rojas] in the patrol car at the scene, told the police that [Rojas] was definitely the wrong man. Mr. Davis was never brought to the station to identify [Rojas] in a line-up.

"At trial, it was established that [Rojas] is 5'7" tall, weighs 125 lbs. and that at the time of his arrest, he had dark hair which just came over the top of his ears. [Fronefield] never asked Mr. Davis whether [Rojas] was the perpetrator he saw the night of the shooting.

"The 'Sprint' reports, which are encoded accounts of 911 calls, and the [DA's] Squad Tapes, were not utilized by Mr. Fronefield at trial. One printout indicates that the perpetrators, including one with an orange jacket, were in Washington Square Park minutes after the crime. In addition, the prosecution had disclosed to defense counsel a police report of an interview with eyewitness Laura Mandell, who was not called, and who stated that she had encountered the perpetrators in Washington Square Park prior to the shootings. The foregoing information, of which Mr. Fronefield made no use, coupled with [Rojas'] alibi defense, which Mr. Fronefield chose not to pursue, reflects defense counsel's poor preparation, ignorance of the facts and ineffective performance.

"With regard to the .22-caliber bullet found in [Rojas'] possession, Mr. Fronefield, rather than call witnesses who could testify as to the alleged innocent explanation [FN2] for the bullet's presence, which explanation was never heard by the jury, made statements in his summation which implied [Rojas] may have been at the scene with a .22-caliber gun." [FN2:] "[Rojas] averred that he had found the beat-up bullet on the ground some weeks before the incident and kept it for good luck, a story which could have been supported by friends who were with him when the bullet was found."

"Remarkably, rather than pursue the alibi and mistaken identity defenses and attempt to explain the presence of a bullet, Mr. Fronefield indicated during summation that [Rojas] probably was at the scene but had not necessarily passed the weapon to the shooter, because of the fact that only .32-caliber shells were found at the scene. These statements, however, not only contradict [Rojas'] alibi statement to the police, but also subverted [Rojas'] credibility. Bringing the .22-caliber bullet to the jury's attention, therefore, made no sense, as Mr. Fronefield failed to elicit the innocent explanation of the bullet's presence, of which he was aware, and instead somehow tied it in with the murder scene and the shooting. It almost appears, at times, that Mr. Fronefield acted as a second prosecutor."

"Under the foregoing circumstances, the on-scene show-up and line-up identifications should have been suppressed, and an independent source hearing should have been conducted to determine the reliability of the identifications of [Rojas] at trial."

"While the testimony of Fontanez was a major part of the [prosecution's] case, his identification of [Rojas] was also questionable...Fontanez identified [Rojas] while he was wearing the bright orange jacket, handcuffed and being frisked by the police. The orange windbreaker worn by [Rojas] was a popular jacket at the time. One distributor in Manhattan indicated that it had distributed 10,000 to 15,000 of these jackets...Further, Mr. Fontanez identified Khari Sreeter and was sure he was the gunman in the green coat. Mr. Streeter testified at the [post-trial] hearing that when he was brought to the precinct, Mr. Fontanez told someone in the group, 'that's the mother f---er who shot him.' However, it turns out that Mr. Streeter had nothing to do with the shootings, and was later released by the police. After Streeter's arrest, PATH conductor Anne Marie Sheldon informed one of the officers that Mr. Streeter boarded her train, and her car, before it reached the 9th Street station and that a female passenger had told her that she had been waiting for the train at the 33rd Street station with Mr. Streeter."

[James Leff was the trial judge.]

from NRE synopsis (by Michael S. Perry):

"The initial eyewitness and many of the other witnesses had been drinking and were very emotional."

"On February 26, 1992, Rojas was convicted..."

"A retired lawyer, Priscilla Chenoweth, then editor of The New Jersey Law Journal, took an interest in the case after reading an article about Rojas in a New Jersey newspaper. She spoke with his teachers -- all of whom believed Rojas was innocent -- and went to meet with Rojas at Rikers Island jail.

"Using $50,000 of her retirement savings, Chenoweth hired former police officers to investigate the case. They discovered the key eyewitness had identified the wrong man as the man in the green jacket. They located a new eyewitness who was in a store near the shooting and who said Rojas was not either of the shooters."

"In July of 1995 Rojas was released on bail. He was tried again and acquitted by a jury in [Manhattan] on October 23, 1998. He later filed a claim with the New York Court of Claims and settled for $550,000. He then repaid Mrs. Chenoweth."

[All emphases added unless otherwise noted.]

Stephen Schultz - Mistaken ID / Inadequate Defense

Tue, 24 Jun 2025 03:26:08 +0000

Schulz, Stephen; robbery; NRE: mistaken witness identification, inadequate legal defense, prosecutor misconduct, misconduct that is not withholding evidence

Suggestibility issues

[774:165]; 2nd Dept. 3/29/04; affirmed

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

"[County Court] properly precluded [Schulz] from introducing evidence of third-party culpability at trial, since the proffered evidence was lacking in any probative value..."

[How could evidence that someone else did it not have probative value?]

"[There was a] pre-trial identification by one of the eyewitnesses of a third party as the 'true' perpetrator."

[797:24]; Court of Appeals 5/5/05; affirmed, but one dissenter

"A jury convicted [Schulz] of robbing El Classico restaurant. One of the persons in the restaurant, Jose Velasquez, the owner and cook, identified [Schulz] at trial. The second witness, an employee of the restaurant, Otilia Ruiz, failed to identify [Schulz] at trial.

"The customer went to the cash register, opened it and began taking money. Ruiz grabbed the robber by the shirt, told him not to take the money and screamed to Velasquez that they were being robbed. The robber pulled out a knife and held Ruiz by the neck with his other hand. Velasquez heard Ruiz scream. He came out of the kitchen and saw [Schulz] [???] leaving the restaurant.

[County Court had found that:] "1) prejudicial effect of news photograph of man who [Schulz] claimed could have committed charged robbery outweighed its probative value; 2) evidence was sufficient to support conviction; and 3) [Schulz] was not denied effective assistance of counsel."

[But, Judge Rosenblatt dissented. Moreover, the majority opinion was written by George Bundy Smith, the very judge who denied Nickel permission to have his case heard by the Court of Appeals.]

528 F.Supp.2d 77; E.D.N.Y. 11/19/07; writ granted, due to ineffective assistance of counsel (subsequently affirmed by 2nd Cir.)

"This is an extremely troubling case. The conviction [is] based upon the identification testimony of a single eyewitness...At the trial, Jose Velasquez...the owner and cook of the restaurant, testified that he heard the waitress, Otilia Ruiz...scream and, when he walked into the dining area, saw the robber leaving the restaurant. Velasquez unsuccessfully chased the getaway car, but testified that the car contained both a 'T' and a '1' in the license plate. Although Velasquez identified [Schulz] as the robber at trial, Ruiz was unable to identify the perpetrator in court as the robber, and the car that the prosecution had argued had been [Schulz's] getaway car did not have a 'T' or a '1' in the license plate (and had a New York Yankees insignia, which Velasquez had not mentioned).

"The defense sought to demonstrate at trial that the [robbery]...was committed by an individual named Anthony Guilfoyle...who had some similar physical characteristics to [Schulz] and had been arrested for numerous robberies in Suffolk County...including a robbery on the same night of the El Classico robbery [which Schulz was found guilty of] that occurred approximately three hours earlier, at a location about 10-12 miles away...When the Brooklyn Law School's Second Look Clinic interviewed Ruiz after the trial, Ruiz, who had no apparent motive to lie, stated in an affidavit that: (1) when the police showed her a photo array one day after the robbery, Velasquez (who was serving as an interpreter during the police interview) pointed at Schulz's photograph and told her that he was the person who had committed the crime; (2) prior to trial, Velasquez told her that, if she did not help put Schulz in jail, Schulz would be released from jail and hurt her; (3) [Schulz] did not commit the crime and, after being shown Guilfoyle's photograph, she was '90% certain' that Guilfoyle was the robber...[Schulz also] points to a post-trial affidavit from his roommate, Anthony Tralongo...stating that he was in the courthouse during the trial prepared to testify as an alibi witness for [Schulz, because Schulz] was with him in their apartment at the time of the El Classico robbery, but he never testified at the trial because [Schulz's] attorney told him that they did not need him.

"Detective Conde identified Schulz as a suspect to Detective Gieck because 'two police officers had furnished that name to Detective Conde.'...Detective Gieck did not explain how the two police officers determined that Schulz was a suspect.

"Although [defense counsel] indicated before opening arguments that he would be calling [Schulz's roommate] as an alibi witness...[he] did not call [the roommate] to testify. Moreover, [defense counsel] did not call two additional detectives to the stand that the prosecution had brought to court at [defense counsel's] request, to give testimony about the Guilfoyle robberies...[Defense counsel] rested the defense case without calling any witnesses to the stand or offering any evidence on [Schulz's] behalf."

from NRE synopsis (by Maurice Possley):

"On the evening of February 3, 1999, a tall, heavy-set white man entered the El Classico restaurant in Brentwood..."

"Jose Velasquez...heard Ruiz scream. He ran out of the kitchen to see the robber fleeing, then ran outside and saw the man get into a beige-colored car and drive off."

"Schulz was arrested and police brought his roommate's car to the police station, where Velasquez identified it as the getaway car.

"Schulz went on trial in August 1999 in [Manhattan]...Velasquez...admitted that at the time of the robbery, he had a pending charge of illegal gun possession which could have adversely affected his ability to keep the restaurant's liquor license. That charge had been plea-bargained down to a disorderly conduct conviction,* but Velasquez denied he had gotten a deal from the prosecution in return for his testimony."

[* There is an enormous difference, in terms of potential punishment, between these two charges. Illegal gun possession is a felony, typically resulting in several years in prison. By contrast, disorderly conduct is a misdemeanor, punishable by just a few months (or even no time at all) in county jail. A typical gun possession charge most definitely does not get pled down to disorderly conduct. The prosecution was clearly doing Veasquez an enormous favor, and the only plausible reason why is that he had identified Schulz as the robber in this case.]

"A police detective testified that the initial description of the robber was 6 feet, 2 inches tall, weighing about 250 pounds with 'rotten teeth.'"

"Because Guilfoyle was about 6 feet, 4 inches tall and weighed more than 450 pounds, the detective discounted him as a suspect because he was too big."

"[Barry] Levine [Schulz's lawyer] attempted to enter a photograph of Guilfoyle into evidence, but his request was rejected because he had failed to present sufficient evidence to link Guilfoyle to the crime. Levine did not present any other evidence. On September 2, 1999, a jury convicted Schulz..."

"In September 2009, the Second Circuit...upheld the [above District Court] decision. The Suffolk County [DA's] Office then dismissed the case and Schulz was released."

[All emphases added unless otherwise noted.]

Shaba Shakur - False Confession / Perjury / Police Misconduct

Tue, 24 Jun 2025 03:17:19 +0000

Shakur, Shaba (aka Louis Holmes); murder; NRE: false confession, perjury/false accusation, inadequate legal defense, police officer misconduct, misconduct that is not withholding evidence

Suggestibility issues

54 Misc.3d 674; Court of Claims 9/28/16; civil suit

"[On May 29, 2015, Kings Cty. Ct. Judge Desmond A. Green granted Shakur's motion to vacate his conviction] on the basis of newly discovered evidence and ineffective assistance of counsel.

"Notable is the testimony of (now former) Detective Louis Scarcella at the criminal trial, and then at the hearing...He...testified as to a statement from [Shakur] that implicated him in the murders, although [Shakur] consistently denied having made any such statement, no notes were taken and the statement was not given to [Shakur] to sign, and, as noted by the hearing court, the phrasing was similar to ones Mr. Scarcella attributed to other defendants in cases he handled and testified at.

"The Court [Green] noted, inter alia, 'the new evidence of Scarcella's propensity to embellish or fabricate' and cited various cases where convictions have been overturned due to Scarcella's conduct and troubling practice and pattern.

"At the...June 4, 2015 proceeding, the [prosecution] informed the [Green] Court that [they] were not retrying the case and not appealing the court's decision, and Green ordered the indictment dismissed."

from NRE synopsis (by Maurice Possley):

"Shortly after 10 p.m. on January 11, 1988, 21-year-old Fitzgerald Clarke and 23-year-old Steven Hewitt were fatally shot outside a building at Gates and Irving Avenues in Brooklyn...where they sold narcotics."

"Police brought in 23-year-old Louis Holmes for questioning the following day. Holmes -- who later changed his name to Shabaka Shakur -- was a friend of both victims, and a witness said that Shakur had quarreled over money he owed to Hewitt after buying Hewitt's green Mercedes Benz.

"Shakur was initially interviewed by police detective Phillip Mahony, who would later testify that Shakur denied shooting the victims and claimed he was in Jamaica, Queens at the time of the crime with his girlfriend.

"However, Detective Louis Scarcella said that he subsequently questioned Shakur and that Shakur told him that the victims were drug dealers and were going to kill him, so he shot them first.

"Another witness told police that Shakur -- before he was arrested -- had admitted committing the crime. That witness, however, was not called to testify at Shakur's trial, and in 2014 recanted his statement, saying he had lied to police to try to obtain leniency on other charges pending against him at the time.

"Shakur went to trial in [Brooklyn] in February 1989. Clarke's brother, Harley Young, testified that he was in the building at the corner of Gates and Irving when he heard gunfire. He said he came outside and saw Hewitt on the ground. Young said he saw Shakur chase and then shoot Clarke before fleeing the scene. Young admitted on cross-examination that he first told police he did not see the shooting.

"Young said that earlier that day, Shakur had quarreled with the victims over the price of the car he was in the process of buying from Hewitt."

"Scarcella testfied that Shakur told him, 'Man, you know I just got out. I spoke to the cops before on another case, and all it got me was jail. You know what happened. You have it all. They were going to kill me. . .They deserved to die. The two of them are part of an organization. They are drug dealers. The organization is bigger than you and me.' Scarcella admitted that he had no notes of the interrogation -- only a report that he said he typed up after speaking with Shakur.

"A gun found in a trash can near the scene was linked to the murders, but there were no finger prints or palm prints on the gun and it was not linked to Shakur.

"Two women -- Shakur's girlfriend and the girlfriend's best friend -- told Shakur's defense lawyer that Shakur arrived in Jamaica, Queens about 9 p.m. -- an hour before the shooting -- and spent the night in the girlfriend's home before going to work the following morning.

"On February 15, 1989, the jury convicted Shakur..."

"In 2012, a motion was filed seeking a new trial for Shakur, claiming that a witness would testify that Young was inside the building at the time and could not have seen the shooting." "[I]n 2014, defense attorney Ron Kuby presented evidence that Scarcella had fabricated the confession at a series of hearings on Shakur's motion for a new trial.

"The women who would have testified at the trial about Shakur's whereabouts at the time of the crime -- one of whom he later married -- testified at the hearings. The prosecution reported that the witness who claimed Shakur had confessed had recanted. And another witness testified that she was with Harley Young -- Clarke's brother -- when the shots were fired and that Young's claim of seeing the shooting was false."

"On June 2, 2015, [Manhattan] Justice Desmond Green granted the motion for a new trial and vacated Shakur's convictions...The judge also said he believed the testimony of Shakur's alibi witnesses.

"On June 4, 2015, the charges against Shakur were dismissed at the request of Brooklyn [DA] Kenneth Thompson..."

"In March 2016, Shakur filed a claim for compensation in the New York Court of Claims and settled it in 2017 for $5.5 million. In addition, he settled a claim against the City of New York for $3.6 million."

[All emphases added unless otherwise noted.]

John Scott - Reversed due to weight of evidence

Tue, 24 Jun 2025 03:10:38 +0000

Scott, John; robbery, depraved indifference; NRE: [no fields]

Suggestibility issues

[728:474]; 2nd Dept. 6/18/01; reversed, due to weight of evidence

"The [prosecution asserts that]...John Scott...was one of the two masked men who robbed a grocery store in Queens on March 21, 1996. Yet of the several persons who were present in the grocery at the time of the robbery, the [prosecution] produced none who, at trial, identified [Scott] as one of the robbers. There is no proof that [Scott] ever admitted to having participated in the robbery, and there is no physical evidence linking him to the crime. The only evidence linking [him] to the crime consists of the proof of a single extra-judicial [i.e., out-of-court] identification made by one witness based not on [the perpetrator's] appearance, but based instead on [the perpetrator] having spoken a few words in a voice which the identifying witness thought matched that of the taller of the two robbers." [Latter emphasis original.]

"The chief witness for the [prosecution] was William Vizcarrondo, who worked in the grocery where the robbery occurred...[His] trial testimony concerning his extra-judicial voice-based identification of [Scott] constitutes the cornerstone of the [prosecution's] case. Yet Vizcarrondo was not produced at a pre-trial Wade hearing* which was conducted in this case in order to permit the [prosecution] to meet [its] burden of proving that the extra-judicial voice-based identification was untainted by any suggestiveness."

[* That being the case, it's not clear why Vizcarrando was permitted to tesify at trial. Did the prosecution simply 'skip' the 'formality' of having their only inculpatory witness testify at the pre-trial hearing, knowing they wouldn't have to pay any price for doing so?]

"[T]he jury had no opportunity to hear [Scott's] voice, or to assess its allegedly distinctive quality. Furthermore, the jury had no opportunity to hear the voices of the five other members of the lineup from which [Scott] was selected. Had the [prosecution] proved that their principal witness selected [Scott] from a lineup consisting of other deep-voiced men, then the weight to be afforded to any evidence relating to such identification would certainly be stronger than if it were to appear that [Scott] was instead chosen from a lineup in which every other participant had a voice noticeably higher than his own."

from NRE synopsis (by Ken Otterbourg):

"The taller of the two robbers told Vizcarrondo to give him the money in the cash register and also 'run the shine,' which Vizcarrondo took to mean he had to hand over his jewelry...At some point during the robbery, a shot was fired but nobody was hit."

"Detective Gary Russo of the [NYPD] led the investigation. Because both robbers wore masks, Vizcarrondo couldn't offer a detailed description of the men. But he told Russo that he was able to see a little patch of skin around the eye holes of the tall robber's mask that suggested the robber was a light-skinned black man. Vizcarrando also said the tall robber had a distinctive voice, one that he would later testify was different from any he had ever heard.

"On March 29, 1996, police in Queens arrested John Scott for his involvement in a February shooting at his mother's house in the Astoria neighborhood. (He would be acquitted of those charges.) While at the police station, Scott agreed to take part in a lineup* for the bodega robbery. Each person repeated the phrase 'Run the shine,' and Vizcarrondo selected Scott, in part based on his 'deep' voice, and also that his skin color appeared to be similar to that of the tall robber."

[* There's something fishy here. Why would a suspect in one case 'agree' to appear in a lineup for a different case? Did Scott have (much of) a choice? Did police already suspect him in the bodega robbery, yet fail to tell him this when he 'agreed' to appear in the lineup for it?]

"Scott was then charged with [10 robbery-related counts]...and three counts of depraved indifference to human life for aiming and firing his weapon.

"At a pre-trial hearing, Scott's attorney tried to suppress Vizcarrondo's 'ear witness' identification."

"The judge denied Scott's motion to suppress, noting 'There was nothing elicited in the testimony to indicate that the voice identification was suggestive in any way.'"*

[* That's a very misleading statement: Because the prosecution was somehow able to avoid Vizcarrondo testifying at the pre-trial hearing, one of the primary purposes of whichis to determine what evidence should be suppressed because it's tainted in some fundamental way (that's why these are also called 'suppression hearings'), the defense had far less opportunity to show that the voice ID was suggestive. In any event, without an audio recording of this 'ear witness' procedure, it was essentially impossible for the defense to discover any hard evidence of suggestiveness. This is very similar to the position that child-sex-abuse defendants are in, in the absence of an electronic recording of the interviews. (See Suggestibility section.) Moreover, shouldn't the burden be on the prosecution to prove that the procedure wasn't suggestive?]

"The jury convicted Scott..."

"On June 18, 2001, the...Appellate Division vacated his conviction and dismissed his indictment. The court wrote that the trial court erred in allowing jurors to hear testimony about the voice identification."

"After his release from prison, Scott sought compensation for his wrongful conviction from the...New York Cout of Claims. Under the state's Unjust Conviction and Imprisonment Act, Scott needed to prove his innocence to receive an award.

"At the claims trial, both he and an alibi witness said that Scott was not in Queens at the time of the robbery. The witness testified that he and his then-girlfriend had been prepared to testify at Scott's criminal trial, but Scott's attorney had located them too close to trial and was unable to get them admitted as alibi witnesses."*

[* So, some permutation of the following seems to have occurred: a) the lawyer wasn't diligent enough about finding these witnesses; b) the lawyer failed to ask the judge for a continuation, to give him more time to find them; c) the judge (unreasonably) failed to grant the lawyer a continuance.]

"On February 6, 2006, a Court of Claims judge ruled that Scott had proven his innocence. He was then awarded $100,000 in state compensation."

[All emphases added unless otherwise noted.]

William Oakes - False Confession / Perjury / False Accusation

Tue, 24 Jun 2025 03:04:02 +0000

Oakes, William; murder, perjury; NRE: false confession, perjury/false accusation, prosecutor misconduct, police officer misconduct, misconduct that is not withholding evidence, misconduct in interrogation of exoneree

Suggestibility issues

[564:931]; 4th Dept. 12/21/90; reversed, because alibi had not been disproven beyond a reasonable doubt

"[Oakes], who is mildly retarded, was convicted of murder...for stabbing Edward Goulding to death in the Town of Cape Vincent sometime between 10:00 p.m. on Friday , February 24, 1984 and 9:10 a.m. the following morning. [Oakes'] estranged wife and their daughter had gone to live with Goulding several months before the incident. The [prosecution's] theory was that [Oakes] killed Goulding because Goulding caused [Oakes'] separation from his wife.

"[W]e conclude that the [prosecution] failed to meet their burden of disproving [Oakes'] alibi defense beyond a reasonable doubt...The proof at trial established that Edward Goulding was stabbed to death in his home...as he lay sleeping. There is no evidence linking [Oakes] to the murder other than his inculpatory admissions and 'confession' to the police.

"[Oakes] presented a number of disinterested [i.e., 'no axe to grind'] alibi witnesses that [his] landlady locked him in his apartment in Watertown from 8:00 p.m. on Friday evening February 24, 1984 until 5:45 a.m. the following morning, that his car was hemmed in between a camper and another car in his driveway, and that he was at a diner in Chaumont between 6:00 a.m. and 6:45 a.m. on Saturday morning and then at 6:50 a.m. went to a Catholic church, where he remained working all day."

858 F.Supp. 330; N.D.N.Y. 7/11/94; civil suit

"[Oakes] alleges that during the course of his [police] custody... Robert Cooke [of the New York State Police] and Edward Simser [of the Jefferson County Sheriff's Department] physically abused him until he confessed to the homicide of Mr. Goulding. The alleged physical abuse consisted of banging [Oakes'] head against the inside of a police vehicle, beating him and discharging a service revolver held to his ear.

"[Oakes'] first murder trial, commenced in November 1984, resulted in a hung jury. Upon retrial in September 1985, a jury convicted [him]..."

"Two months after the trial had commenced, the Jefferson County grand jury indicted Oakes for perjury based on testimony that [he] had given during the course of the first trial. In that testimony, Oakes had alleged violations of his civil rights by... Cooke and Simser* ...Deputy Sheriff David Stayer...made a statement alleging that... Cooke and Simser had admitted to lying about beating Oakes when he was in police custody in order to bolster the criminal case against him...Deputy Sheriff Richard Burns...gave a statement similar to the one given by Deputy Stayer. A department hearing was held and deputies Stayer and Burns were found guilty of failing to report knowledge of crimes committed by fellow officers."**

[* It is extremely rare for a criminal defendant to be indicted for perjury stemming from testimony he provided in his own defense. As it is now apparent that Oakes was, in fact, telling the truth about Robert Cooke and Edward Simser physically abusing him, charging Oakes with perjury can only be seen as part of an effort to get him to 'shut up' about what these 'law enforcement' officers did.]

[** Deputies David Stayer and Richard Burns are, in truth, heroes in this otherwise sad and tawdry affair. Although it does appear that they delayed coming forward with the truth about their fellow officers' misconduct -- likely due to the legendary 'blue wall of silence,' violators of which are often subjected to extreme forms of retaliation -- they did, eventually, do the right thing. That, not failing to inform on fellow officers earlier, was what really caused them to face departmental disciplinary proceedings. It would appear that, at least back in the 1980s, Jefferson County -- in northern New York -- was a rather backward cesspool of criminal injustice. (See Police section of this site.)]

from NRE synopsis (by Maurice Possley):

"[D]etectives Robert Cooke and Edward Simser ...interrogated Oakes...for more than 15 hours before finally allowing him to leave the station at 3 a.m. on February 26 after he allegedly consented to a search of his room and his car. Nothing linking him to Goulding's death was found, but nonetheless Oakes was arrested again that afternoon.

"Following another lengthy interrogation, Cooke and Simser said Oakes confessed to stabbing Goulding because he was angry at him for allowing Oakes' wife and daughter to move in with him.

"There was no physical or forensic evidence linking Oakes to the crime."

"In his statement, [Dep. Edward] Steyer* said under oath that Simser told him about 'a night of terror' when he and Cooke 'scared the hell out of Oakes.' According to Steyer, Simser said they fired a gun three times near Oakes' ear, pointed it at him and threatened to pull the trigger, and they beat Oakes. Steyer said Cooke gave a similar account of the shooting and beating in a separate conversation."

[* The above federal decision spells his name Stayer.]

"In 1986, when Steyer learned that acting Sheriff Franklyn Gowing was considering promoting Simser to the position of undersheriff, Steyer told Gowing about the statements of Simser and Cooke. Gowing notified the [DA] and Burns executed a sworn statement saying that Simser and Cooke had admitted to the shooting and beating.

"In May 1986, Gowing filed disciplinary charges against Steyer and Burns accusing them of failing to report crimes by fellow officers. Both ultimately were fired from the sheriff's department.

"After Gowing began disciplinary proceedings against Steyer and Burns, Oakes' defense attorneys asked for the appointment of a special prosecutor. In June 1986, Governor Mario Cuomo asked state Attorney General Robert Abrams to investigate the claims that the officers lied at Oakes' trial to cover up their mistreatment of him and the coercion of a false confession.

"Oakes waived immunity and testified before the grand jury that was empaneled to investigate the statements by Steyer and Burns. Ultimately, the grand jury found insufficient evidence to indict Cooke and Simser for their conduct in the Oakes interrogation,* and instead indicted Oakes, Steyer and Burns on charges of perjury."

[* Likely because the prosecutor running this grand jury didn't want the officers indicted, and thus, presented evidence in such a way as to secure that result. (After all, in over 98% of cases, grand juries do indict.)]

"In May 1987, a jury convicted Oakes of six counts of perjury. Steyer and Burns were acquitted in a separate trial."

"On December 21, 1990, the...Apellate Division reversed and vacated Oakes' conviction and dismissed the indictment...That same day, the Appellate Division reversed Oakes' perjury conviction. The panel of judges...held that the trial judge had erred by refusing to allow Oakes' defense lawyer to call a psychiatrist to testify that Oakes had a low IQ and was susceptible to being led by authority figures. Oakes' lawyer had contended that the testimony was relevant to whether Oakes possessed the requisite specific intent to knowingly and willfully give false testimony."

"[I]n January 1991, Oakes was released on bond pending a retrial on the perjury charges. The [DA] dismissed the charges in January 1991."*

[* Thus, the DA left Oakes 'hanging' for a year -- before finally doing the right thing.]

"Oakes later filed a federal civil rights lawuit that was settled for an undisclosed amount. He also filed a claim with the New York Court of Claims, but it was denied."

[All emphases added unless otherwise noted.]

Josue Ortiz - False Confession / Police Misconduct

Tue, 24 Jun 2025 02:57:05 +0000

Ortiz, Josue; manslaughter; NRE: plea, false confession, police officer misconduct, withheld exculpatory evidence

Suggestibility issues

2018 WL 8620414; W.D.N.Y. 5/18/18; civil suit

"On or about November 11, 2004, Miguel and Nelson Camacho were murdered...On or about November 16, 2004, [Ortiz] was questioned, admitted killing the Camacho brothers, and was arrested...[Ortiz] pled guilty to the murders of the Camacho brothers.

"Meanwhile, the [FBI] and the U.S. Attorney's office conducted an investigation of the 10th Street and 7th Street gangs, learning that three other men were responsible for the Camacho murders..."

from Records and Briefs (civil):

[5] [FN2:] "Ortiz's guilty confession and guilty plea was based upon a false and erroneous confession given to the Buffalo Police at a time when he was suffering from a severe psychotic break from reality, exacerbated by sleep deprivation, drug use and a limited command of the English language...DNA evidence excluded him from the crime scene as well as from items of evidence found at or near the scene...Moreover, the details of the murders that he gave police did not match the physical evidence (weapon, ballistics, number of killers, etc.) and eyewitness accounts of persons fleeing the scene. For example, police records listed Ortiz as between 6'3" and 6'6" tall and weighing between 280-330 lbs. ...Witnesses observed three (3) males about 5'5" tall and of medium build fleeing the scene."

[The fact that Ortiz was allowed to plead guilty to something that every bit of the actual evidence in this case clearly showed he did not do is a damning indictment of Buffalo and Erie County. And it's not like this is an old case: All of these events took place in the 21st century, long after DNA had become a well-established forensic tool.]

from NRE synopsis (by Maurice Possley):

"On November 11, 2004, 25-year-old Miguel Camacho and his 36-year-old brother Nelsobn Camacho were gunned down in Buffalo...Police believed the killings were drug-related.

"Several days later, police said 22-year-old Josue Ortiz flagged a police car and declared that he had committed the crime. He was taken to a police station and confessed to the crime.

"Ortiz was charged with the murders and pled guilty to two counts of first-degree manslaughter in Erie County...in 2006. The plea came after lengthy court proceedings about Ortiz's mental competency because he had been diagnosed with schizophrenia and bipolar disorder. He was sentenced to 25 years in prison.

"In 2012, the case against Ortiz came under question when a re-investigation by the New York State Police and the FBI resulted in federal prosecutors charging three gang members -- Brandon Jonas, Efrain 'Cheko' Hidalgo and Misael Montalvo -- with the same murders that Ortiz pled guilty to. Hidalgo and Montalvo, according to federal prosecutors, admitted their roles in the killings. Investigators learned that the murders were committed as part of a drug ring's operation in Buffalo.

"Initially, the Erie County [DA's] Office did not believe that the evidence exonerated Ortiz because evidence suggested four men were involved -- three who were seen running from the scene and Montalvo, who said he waited in a car during the shooting.

"John Nuchereno, attorney for Ortiz, began investigating and ultimately was able to persuade an Erie County...judge to order a hearing on a post-conviction petition for a new trial. However, before the hearing, Nuchereno was diagnosed with leukemia, and had to step aside. Attorneys James Auricchio and Jeremy Schwartz were appointed to conduct the hearing.

"As Auricchio and Schwartz prepared for the hearing, they discovered numerous forensic reports prepared by the Erie County crime lab that showed that Ortiz's clothing recovered from his home did not have a trace of evidence linking him to the scene.

"They also discovered a crime lab analysis of all the footprints found in the blood surrounding the victims. Ortiz wore size 15 shoes and there were no size 15 shoeprints in the tracks at the scene. In addition, Ortiz's shoes, which were recovered when he was arrested, were as white and clean as the day he bought them. None of these reports had been disclosed to Ortiz prior to his guilty plea.

"The defense lawyers also obtained additional DNA testing that linked the three suspects to the scene of the crime. The testing did not connect Ortiz to the crime.

"When those documents were revealed, [ADA] Michael Felicetta began re-investigating the defense claim that Ortiz was innocent. During the review, Louis Camacho, a surviving brother of the victims, told authorities that he saw suspects running from the scene of the shooting. He said he knew Ortiz -- who is 6 feet, 6 inches tall -- and that Ortiz was not one of the men he saw fleeing.

"In addition, authorities discovered that Ortiz attended the funeral of the Camacho brothers and that during the funeral, Louis Camacho may have told Ortiz details of the crimes.

"In December 2014, Ortiz's conviction was vacated and he was released on bond. In January 2015, the prosecution dismissed the charges against him.

"Ortiz subsequently filed a claim for compensation with the New York Court of Claims, which was denied in 2021. By then, Hidalgo, Jonas, and Montalvo had pled guilty in federal court."

"In April 2016, lawyers for Ortiz filed a federal civil rights lawsuit against the Buffalo police department."

"On May 10, 2022, a federal judge awarded Ortiz $6.5 million in damages from the City of Buffalo and an officer involved in his wrongful conviction."

[All emphases added unless otherwise noted.]

Steven Odiase - Mistaken ID / Inadequate Defense

Tue, 24 Jun 2025 02:55:22 +0000

Odiase, Steven; murder; NRE: mistaken witness identification, inadequate legal defense, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence

B33 "A judge has vacated the murder conviction of a man accused of killing a 15-year-old after the Bronx [DA's] conviction integrity unit found 'potentially exculpatory evidence' that was not given to the defense at trial.

"Odiase...had been serving 25 years to life for the fatal shooting of Juan Perez.

"The evidence that the conviction integrity unit uncovered included redacted disclosures to the defense that blocked out a witness description of a shooter not matching Odiase..."

"His co-defendant, Daikwan Giles, was identified by eyewitnesses and confessed to the shooting. He was convicted at the same trial..."

from NRE synopsis (by Maurice Possley):

"On June 12, 2009, 15-year-old Juan Jerez* was fatally shot while playing basketball near the intersection of Minerva Place and Creston Avenue in the Bronx...Witnesses reported hearing as many as seven shots."

[* The above article spells the victim's name 'Perez.']

"A day later, a witness identified 17-year-old Daikwan Giles as the primary gunman. Giles was arrested and gave a videotaped statement admitting that he fired several gunshots and killed Jerez. Giles said there was another gunman, who was nicknamed 'Boogz.'

"On June 17, 2009, police arrested Marcus Nolasco for smoking marijuana and trespassing. Even though he had been a friend of Jerez since he was nine years old, Nolasco only now disclosed that he had seen the shooting. Nolasco had an extensive criminal record including a conviction for assault, possession of cocaine, and several misdemeanor crimes. He later admitted he came forward because he wanted lenient treatment on pending charges, including charges of harassment and menacing.

"Nolasco testified before a grand jury that he was at the corner of Minerva Place and 198th Street (which was impossible since the two streets run parallel) when Giles and two others approached and Giles said he wanted to fight Jerez.

"Nolasco testified that Giles got about three feet from Jerez, pulled out a revolver, and fired several shots. Nolasco said he then saw muzzle flashes from Odiase's gun and that Jerez then fell to the ground. Nolasco said that he then fled, but as he ran, he saw Odiase and Giles pass their guns to two other youths who were on bicycles.

"Nolasco admitted he was 'buzzed' on marijuana at the time. Moreover, he saw Odiase for only a few seconds and then only the side of his face because he was wearing a hoody.

"Not long after, Nolasco pled guilty to his pending charges and was sentenced to community service. However, he did not appear for the community service and an arrest warrant was issued. Nolasco disappeared for two years before he was arrested in 2011. Diring that time, Giles was awaiting trial on charges of second-degree murder and criminal use of a weapon. Police finally arrested Odiase on June 13, 2011, and he was also charged with second-degree murder and criminal use of a weapon.

"Giles and Odiase went to trial in Bronx County...in May 2013. Several witnesses identified Giles and the prosecution presented his confession. Nolasco was the only witness to identify Odiase as the second gunman. Odiase's attorney failed to call any witness who could have testified that Odiase was never known as Boogz.

"On May 15, 2013, Giles and Odiase were convicted of the charges. Prior to sentencing, Odiase's sister, Kalimah Truesdale, began scouring the neighborhood of the shooting and looking for a witness to the murder. Ultimately, she spoke to a man named Washington Arana, who said that the mother of his child, Annabelle Mejia, saw the shooting. Mejia said the second gunman was not Odiase. A motion for a new trial was rejected, however, after Mejia refused to testify because she was afraid of retaliation. Giles and Odiase were sentenced to 25 years to life in prison.

"In April 2015, attorneys Jonathan Edelstein and Robert Grossman, who had not represented Odiase at trial, filed another motion to vacate Odiase's convictions. The motion cited Mejia's statement and elaborated that she said she saw seven youths come up the block, heard gunshots, and then saw a Hispanic youth whom she recognized from school. The youth was carrying a black gun.

"Mejia said that she gave a detective a copy of her yearbook and pointed out the photograph of the man with the gun. She said she was never contacted again by the detective and that the prosecution did not call her either.

"Mejia was shown a photograph of Odiase and she did not recognize him as being among the seven youths. The motion said that the prosecution had not disclosed this evidence to Odiase prior to his trial.

"The motion also said that another witness gave a sworn statement saying that 'Boogz' was a man named Jamie Maxwell who had the nickname tattooed on his arm.

"In 2016, newly-elected Bronx [DA] Darcel Clark created a conviction integrity unit, which undertook a review of the Odiase case and the still-pending motion. As part of that review, additional police reports in the case were turned over to Edelstein and Grossman.

"In March 2017, Grossman discovered that one of the reports turned over was identical to a report that was in the file of Odiase's trial defense attorney except for one major difference.

"In the report that was disclosed to the defense before trial, the name of a witness and that witness's statement had been whited out. The report that was still in the prosecution file showed that the witness was Mejia. Her statement described the second gunman as a tall, bearded man with dark skin. Odiase is short, has light brown skin, and did not have a beard at the time of the shooting.

"Grossman and Edelstein told the prosecution of their discovery -- that the defense had been deprived of a witness's statement that would have excluded Odiase as the second gunman.

"The prosecutor at Odiase's trial, Adam Oustascher, who had left the Bronx [DA's] Office in 2016, told reporters that it was 'normal practice' to take out information about witnesses who might face threats if they were exposed. He said he had disclosed the information that was whited out -- a claim that Odiase's trial defense attorney disputed.

"On April 17, 2017, the Bronx [DA's] Office filed a motion to vacate Odiase's conviction. Clark said in a statement, 'Steven Odiase is serving 25-years-to-life for murder, but the Conviction Integrity Unit has uncovered potentially exculpatory evidence that was not provided to the defense at the time of the trial. Because Odiase did not receive a fair trial I will ask the Court. . .to vacate Odiase's conviction in the interest of justice so he can be freed as soon as possible while we determine whether to retry him.' The conviction was vacated that day and Odiase was freed pending a retrial.

"On October 25, 2017, the prosecution dismissed the charges.* In 2019, Odiase received a $1.1 million settlement from the City of New York. In March 2020, he settled a claim in the New York Court of Claims for $895,000."

[* Thus, the prosecution left Odiase 'hanging' for over six months before finally dropping the charges.]

[All emphases added unless otherwise noted.]

Perrington & Sabazz - Police Misconduct

Tue, 24 Jun 2025 02:53:23 +0000

Perrington, Donald AND Shabazz, Omar; weapon possession/sale; NRE: police officer misconduct, misconduct that is not withholding evidence

[932:472]; 1st Dept. 11/15/11; affirmed

"The verdict was based on legally sufficient evidence and was not against the weight of the evidence..."

[977:141]; Court of Appeals 10/15/13; reversed, due to evidentiary error

"Defendants and a female codefendant were passengers in an automobile that was stopped by the police. All the occupants were charged with second-degree weapon possession after the officers observed a loaded handgun protruding from the handbag near the rear seat of the vehicle where the woman had been sitting.

"During the course of pretrial proceedings, the female codefendant had a conversation with Perrington's lawyer in which she stated that the gun belonged to her. At her separate trial, however, the woman testified that the firearm was not hers and she was acquitted of weapon possession.

"Defendants were tried jointly and they requested that Perrington's (now-former) attorney be allowed to testify about the female codefendant's acknowledgment of gun ownership...[County] Court held that the statement was inadmissible..."

"[T]he exclusion of the statement cannot be deemed harmless because the [prosecution's] case was not overwhelming. Defendants are therefore entitled to a new trial."

from NRE synopsis (by Maurice Possley):

"Shortly after midnight on January 10, 2008, New York City police pulled over a car near 144th Street and Seventh Avenue in the Bronx because it was speeding and changing lanes without signaling.

"The officers said they saw no movement by the four occupants of the car as they approached. One officer said the driver, Michael Arroyo, smelled of marijuana, so Arroyo and his passengers were ordered out of the car. Donald Perrington emerged from the front passenger seat. Karla Cornielle and 27-year-old Omar Shabazz got out of the back seat.

"When the officers looked into the car, they saw a handbag in the back seat. Inside the handbag was a nine-millimeter pistol containing 11 hollow point bullets.

"Police arrested all four people. The handbag was described as a women's handbag and was inventoried as belonging to Cornielle. There was no evidence any marijuana had been smoked in the car, but Arroyo turned over a small amount of marijuana that he had in his pocket. Police said they confiscated an empty bottle of champagne and a bottle of cognac that were in the back seat of the car.

"A grand jury later indicted Cornielle, Shabazz and Perrington on charges of second-degree possession of a firearm under a 'constructive possession' law which allows for prosecutions of everyone in a car if contraband is found in the vehicle that is not in the personal possession of one individual. The grand jury declined to indict Arroyo.

"During a status hearing while the case was pending trial, Cornielle, who was free on bond, told her defense lawyer that the gun was hers, that Shabazz and Perrington didn't know she had it that night, and she couldn't understand why she wasn't being allowed to plead guilty so that Shabazz and Perrington, who were in jail, could be released.

"At the request of Cornielle's lawyer, Cornielle's case was severed from the cases of Shabazz and Perrington. Cornielle went to trial in [Manhattan] first. She told the jury that the gun was not hers -- although on cross-examination by the prosecution Cornielle admitted that she had told her defense lawyer that the gun was hers. The jury acquitted Cornielle.

"In December 2008, Shabazz and Perrington went to trial together in [Manhattan]. The officers testified that they found the gun with the butt sticking out of the handbag, which was on the back seat of the car between Shabazz and Perrington.

"Defense lawyers sought to call Cornielle's defense attorney as a witness to present Cornielle's statement that the gun belonged to her and that Shabazz and Perrington did not know it was in the car. Cornielle, the defense lawyers said, was unavailable because she could not be located.

"The trial judge refused to allow the testimony, saying that Cornielle's admission was unreliable given her denial at trial.

"On December 18, 2008, Perrington and Shabazz were each convicted of second degree possession of a weapon. Each was sentenced to eight years in prison.

"A motion for a new trial was denied and the...Appellate Division upheld the convictions in 2011.

"In October 2013, the New York Court of Appeals reversed the conviction and held that Cornielle's defense lawyer should have been allowed to testify. Shabazz and Perrington were released on bond in December 2013 pending a retrial.

"On June 30, 2014, the prosecution dismissed the charges* against the two men."

[* Thus, the prosecution left them 'hanging' for some eight months.]

"Shabazz and Perrington (who changed his name to Donald Wallace) filed a federal civil rights lawsuit against Kieran Kailer, the police officer that searched the car. The lawsuit claimed that the three men stopped at a Chinese restaurant so that Cornielle could go in and buy food. They circled the block several times until she emerged, the suit said.

"As soon as Cornielle, who was carrying her purse, got into the back seat, Kailer and his partner turned on the flashing light in their unmarked police car and Arroyo pulled over.

"The lawsuit said Kailer ordered Cornielle to leave the bag of food, so she left it atop her purse and got out. Kailer then searched the car and found the gun, the suit said. Kailer found the liquor bottles in the trunk and put them in the back seat and photographed them as if they had been found there. The lawsuit was setttled in January 2018 for $675,000 each for Perrington and Shabazz.

"Both men also filed claims in the New York Court of Claims, and each received $600,000 in 2017."

[Thus, if the lawsuit allegations are true (and given that Perrington and Shabazz received large settlements, this would seem a reasonable conclusion), then the police story about stopping the car because it was speeding (and changing lanes without signaling) was a lie, as was the allegation that empty liquor bottles were found in the backseat. In fact, it appears the police had -- for some other, unknown reason -- already targeted Cornielle and/or the other passengers, and waited for Cornielle to get back in the car before arresting everyone. Perhaps they knew (or suspected) Cornielle had a gun, and waited until she got back in the car in order to arrest everyone in it on gun charges.]

[All emphases added unless otherwse noted.]

Frank & Adam Pejciovic- Mistaken ID / Police Misconduct

Tue, 24 Jun 2025 02:50:07 +0000

Pejcinovic, Frank AND Adam; assault; NRE: mistaken witness identification, police misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence

Suggestibility issues

[571:245]; 1st Dept. 6/18/91; reversed, due to illegal arrest and Brady violations

"On July 28, 1986 at approximately 4:30 P.M., Ramon Rivera and his friend, Pedro Molina, two Spanish-speaking Puerto Ricans, were attacked near the intersection of 188th Street and Arthur Avenue in the Bronx. Someone threw a glass bottle at them; but when they endeavored to ignore the provocation, Rivera observed a person hit his companion with a baseball bat. Molina fell to the ground, and Rivera, in order to protect the other man, threw himself on top of Molina. After Rivera had himself absorbed three blows from the bat, he was shoved up against a car about three times. That evening at St. Barnabas Hopital, the less injured of the two complainants, Rivera, described the perpetrators to Police Officer Quinn with the assistance of unofficial translators. The officer's ensuing report stated as follows: '(Perp. #1) male, white, age 16, height 5'11", weight 160 lbs. with brown medium length hair. (Perp. #2) works in Carvel -- 187th Street and Cambreling Ave., male, age 16, height 5'7", eyes green, hair blonde, medium length.' Detective Golub, also relying upon unofficial interpreters reinterviewed Rivera later that same evening and noted in his report that 'Rivera stated that he has seen one of the subjects. . .a few times within the past few weeks at the Carvel store. . .Rivera describes the subject as a male/white/16 yrs old/5'7"/150 lbs/green eyes/blonde medium length hair. He describes the subject with the baseball bat as a male/white/16 yrs old/5'11"/160 lbs/brown medium length hair.'

"Following his discharge from the hospital that same night, Rivera went to the precinct house and informed Detective Golub, again through interpreters, that he had just seen one of his assailants at the Carvel store and that a blue Cadillac driven by the bat-wielder was parked around the corner from that store. He advised Detective Golub and his partner that the youth with the bat was a white male, 16 years of age, 5'11" tall and having medium length hair. It should be noted that Rivera's subsequent depiction of the attackers varied from his initial ones, and at trial Rivera testified that the bat-wielder had a strong muscular build, was approximately 5'7" to 5'9" tall with short curly hair and skin that 'looked. . .Puerto Rican.' The second person was detailed by him as being a skinny white about 5'10" tall with hair that was 'a little bit straight,' while a third culprit was a blond 'American' having 'skinny, straight hair' and light eyes.

"As a consequence of Rivera's account, one Albert Giacoio was arrested at Carvel, and a stakeout of the blue Cadillac was undertaken by the police on Detective Golub's orders that any white male entering the vehicle was to be brought in for investigation. The surveillance of the automobile resulted in the apprehension of...Adam and Frank Pejcinovic and their cousin Dennis Kolasinac, who was later released; all three are Caucasians of Yugoslavian extraction. Adam and Frank denied any involvement in the assaults, but were placed in separate lineups apparently comprised entirely of Hispanic or black fillers. Rivera identified Frank as the person who had pushed him against the car, and Adam as the perpetrator with the bat. In the lineup relating to Adam, all of the participants were directed to remove their shirts before Rivera finally picked him out. It is significant that defendants were formally charged with the bias incident notwithstanding that they did not particularly match the descriptions of the perpetrators. Equally disturbing is that on August 6, 1986, a police detective named Gerald Coto wrote a report which declared that

Subject: BIAS INCIDENT AT 188th & CICCORONI PARK

1. The following was relayed to this office by a member of the community who stated that the attack on the Hispanic in Ciccoroni Park was perpetrated not by the perpetrator in custody, but by one John alias Eggabomb, male white, 16-17 years old, 5'9", Husky with black hair. Allegedly hangs out at Nathans -- Central Avenue, and at Dominick's restaurant on Arthur Ave. He is said to drive a 1978 white T Bird wth red top and spoke wheels.

"[T]here is no indication that Detective Golub, who received Detective Coto's report several days after defendants' arrest, ever attempted to verify its accuracy notwithstanding that it contained specific facts. Further, the existence of the document was never revealed to defendants so that they could pursue their own investigation, and they only obtained the report by chance in the autumn of 1988 when they subpoenaed the FBI file. As for the other material in the FBI file, it also disclosed contradictory versions of the perpetrators' appearance. Thus, in October of 1986, Detective Golub relayed the description of the bat-wielder furnished to him by Rivera at St. Barnabas Hospital -- that is, a white male with medium length brown hair; Molina remembered only that the boys were white. However, by January of 1987, Rivera provided the FBI with a rather different physical characterization when he asserted that the batterer was dark-complexioned, curly-haired, muscular and had a scar on his torso (evidently a close depiction of Adam). He also supplied details of the pusher and outlined the clothes supposedly worn by the assailants, but these descriptions conflicted with those initially given to the police.

"The matter eventually came to trial...Defendants, in large part, urged that they had been misidentified and/or that they possessed alibis for the crucial time. Of the [prosecution's] witnesses, Rivera was the only one who was able actually to pick out defendants as the attackers. Inexplicably, the defendant most positively identified, Albert Giacoio, was the only one acquitted...[It] is clear that defendants' arrest was unsupported by probable cause. Indeed, the evidence submitted at the pretrial hearings demonstrates that Detective Golub had instructed other police officers to keep watch over the blue Cadillac and apprehend any white male who attempted to enter the vehicle (regardless of whether or not he matched any of the descriptions conveyed by Rivera). Both Frank and Adam were, therefore, arrested merely because they came into contact with the subject car and for no other reason, and did not fit the original physical portraits of the attackers.

"[E]ven assuming that the lineups conducted in [this] case had not been unduly suggestive, a fact strongly contested by defendants, any evidence derived therefrom should have been suppressed as the product of an illegal arrest.

"[In] defendants' post-judgment motion to vacate their conviction...[they] urge that shortly before the concluson of the trial, they learned through the testimony of a witness, Gloria Marcado, the real last name of John Eggabomb, as well as other facts, which, with leads contained in the Coto report, enabled them, with difficulty, eventually to locate and confront John Guiliano...Ultimately, Frank and his cousin Dennis Kolasinac, it is stated, concealed a recording device and taped a conversation with him which fully corroborates his guilt for the crimes mistakenly charged to Adam Pejcinovic and reveals the innocence of both Pejcinovics."

from NRE synopsis (by Maurice Possley):

"The attack occurred as Rivera and Molina walked through the Belmont-Arthur neighborhood, a predominantly Italian-American section* of the Bronx..."

[* This fact may have constituted a primary motive for the crime; i.e., an Italian-American (actual) perpetrator 'defending his turf' from what he peeceived as 'trespassing' Hispanics. Herein, we see an Italian-American named as (one of) the actual perpetrator(s), which makes a lot more sense than a couple of Yugoslavian-Americans walking through an Italian-American neighborhood and deciding to pick on some Latinos.]

"Molina's skull and jaw were fractured and his arms were bitten. He was hospitalized. Rivera suffered a broken arm and bruises, and was released after treatment."

"Rivera said he and Molina began to walk fast, but they were followed. He explained that he heard the sound of Molina being struck in the head with an aluminum baseball bat and turned around to see Molina on the ground, convulsing. He threw himself over Molina to try to protect him, and was struck several times in the arm with a bat. Rivera got up and another youth pushed him against a car two or three times and then a third youth bit him on the arm. The attackers then fled.

"Over time, Rivera gave varying descriptions of the attackers, who came to be known as the batter, the pusher and the biter. In his first interview with police, Rivera said the batter was a 16-year-old white male with blonde hair and green eyes who was about 5 feet 7 inches tall. He gave no description of the pusher, and said the biter was a white male with brown hair who was about 5 feet 11 inches tall.

"Rivera claimed he recognized the biter from having seen him in the past in a Carvel store near the area of the attack.

"That night, police went to the Carvel store where they saw 18-year-old Albert Giacoio. They took Giacoio into custody and Rivera identified him as the biter."

"At the time, Frank was 16 years old, 5 feet 11 inches tall, with green eyes and brown hair. Adam was 19 years old, 5 feet 9 inches tall, with brown eyes and black hair. Giacoio was 18 years old, 5 feet 8 inches tall with blue eyes and blonde hair.

"Rivera was subsequently interviewed by the FBI, and for the first time said the batter was shirtless and had a scar on his chest or shoulder. During the first interview, Rivera's only description of the pusher was that he was 17 years old with brown hair."

"Prior to trial, defense lawyers challenged the identifications by Rivera, arguing that Rivera had given inconsistent descriptions and the lineup was racially suggestive.

"That motion was denied, and the three defendants went on trial in December 1988 in [the] Bronx...Rivera identified the defendants as the attackers, although he could not recall the location of the scar until Adam Pejcinovic was ordered to take off his shirt for the jury. During Rivera's testimony, he gave a different description of the batter than he gave during his interview with police immediately after the incident. On the stand he said the batter had curly, brown hair with swarthy 'Puerto Rican' type skin. He said the pusher was 5 feet 10 or 5 feet 11, and had shoulder-length hair and scars on his face."

"Molina was unable to identify any of the defendants. A total 26 witnesses testified for the defense that Giacoio and the Pejcinovic brothers were not involved, and were elsewhere at the time of the attack. One of the defense witnesses told the jury that the crime had been committed by a man she knew as 'Eggabomb' and his real name was John Guiliani.* The witness said that Guiliani had once been her boyfriend and that Guiliani had confessed to hitting Molina with a bat."

[* The above 1st Dept. decision spells this name Guiliano.]

[Attempting to trace Rivera's changing descriptions of the 'batter,' 'pusher,' and 'biter' turned out to be fiendishly difficult. It's not even clear that the 1st Dept. decision and NRE synopsis agree on how Rivera characterized each of the three at various points in time; i.e., the initial (local police) interview, the FBI interview, and the trial. In any event, looking at the 'batter,' apparently identified as Adam: Complexion/Race: Initially white, then 'dark-complexioned,' then 'Puerto-Rican looking' skin. (Adam actually dark-complexioned.) Height: Initially 5'11", then 5'7"-5'9". (Adam actually 5'9".) Hair: Initially brown and medium-length, then short and curly. (Adam's actually black.) Note that, over time, Rivera's description of the batter seems to get closer to Adam's actual characteristics -- including 'muscular' and 'scar on torso.' This would appear to indicate an (external) 'shaping' of Rivera's recollections.] "On December 17, 1988, the jury acquitted Giacoio and convicted Adam and Frank Pejcinovic..."

"Eleven days later, on December 28, Adam Pejcinovic and a friend located Guiliani and brought him to the residence of a Manhattan attorney named Neil Rosenberg at 2:30 a.m. While there Guiliani signed a statement admitting that he struck Molina with a bat. Guiliani promised to come to court and testify that he -- not the brothers -- was involved.

"The defense made a motion for a new trial and requested a hearing to present the alleged confession, but the motion was denied when Guiliani failed to appear."

"In June 1991, the Appellate Division...reversed the convictions of Adam and Frank Pejcinovic. The Court ruled that there was no probable cause to arrest the brothers and that the trial judge should have held a hearing on the motion for a new trial based on the statement signed by Guiliani. The Court ruled that the brothers were not arrested because of any physical description given by Rivera, but 'solely because they entered. . .the Cadillac.'

"The Court also criticized the police and prosecution for 'the incomprehensible failure. . .at any time to conduct even a cursory investigation into the possibility that there was some substance to John Eggabomb's implication in the attack. . .and the fact that defendants' conviction largely rested upon one person's identification.'

"In January 1993, following several days of hearings on the admissibility of Rivera's identifications of Adam and Frank Pejcinovic, [Manhattan] Judge Phyllis Skloot Bamberger ruled that Rivera would not be allowed to testify in court to his identifications of the brothers.

"On March 11, 1993, the prosecution dismissed the charges. Adam Pejcinovic was released in 1990, a year after he was sentenced. Frank Pejcinovic served 2-1/2 years in prison before he was released. The brothers filed a claim with the New York Court of Claims seeking compensation, but the claim was dismissed."

[All emphases added unless otherwise noted.]

Juan Carlos Pichardo - Perjury / Prosecutor & Police Misconduct

Tue, 24 Jun 2025 02:39:50 +0000

Pichardo, Juan Carlos; murder; NRE: perjury/false accusation, inadequate legal defense, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence

[769:791]; Court of Appeals 12/2/03 (This is actually a drug case collateral to the murder conviction; cannot find actual murder case on Westlaw)

"On January 11, 2000, the Judge who presided over the trial vacated [Pichardo's] murder conviction and ordered a new trial, concluding that he had not received reasonably competent representation and that counsel's errors seriously compromised [his] right to a fair trial. The Court noted that counsel seems to be unfamiliar with important...material in his possession, failing to impeach the [prosecution's] primary witness -- the only witness connecting [Pichardo] to the shooting -- and never calling potentially exculpatory witnesses to challenge that identification.

"On June 15, 2000 [Pichardo] was retried and acquitted of the murder."

from NRE synopsis (by Maurice Possley):

"On the afternoon of January 26, 1994, Ricardo Martinez was fatally shot after he stopped his car to put in a can of oil on Park Avenue in East Harlem...He and his wife, Roxanna, were on their way to deliver $2,000 worth of crack cocaine. Roxanna remained in the car, listening to music on headphones while her husband was working under the hood.

"Roxanna told police that her husband suddenly opened the driver's side door and said, 'They killed me,' and then collapsed. She said she heard one gunshot but did not see who fired the gun.

"Four days later, however, Roxanna told police that two men attacked her husband and identified them as 20-year-old Christian Patinos and 23-year-old Juan Carlos Pichardo, both...[of] whom she knew from the neighborhood.

"She said she was able to see both of them when, as they fled, Pichardo fell in the snow and Patinos fired a shot at her. She said she got out of the car and chased them, but they escaped. She said that when she returned to her car, she found a bystander, Benito Ortiz, comforting her dying husband.

"Patinos and Pichardo were arrested and charged with murder. At the time, Pichardo was free on bond after being arrested January 5, 1994, on a charge of selling a $20 bag of cocaine to an undercover police officer in the Bronx.

"The two men were tried separately, and Pichardo went on trial first before a jury in [Manhattan].

"Roxanna described both men and her futile attempt to chase them. Pichardo's attorney suggested in cross-examination that she fabricated her story after being granted immunity for her testimony before a grand jury because she feared prosecution for selling drugs. The prosecution then argued that Roxanna received immunity because she was afraid of retaliation.* Pichardo's attorney failed to cross-examine Roxanna about her earlier statement that she didn't see the shooting."

[* That makes no sense. Any potential for retaliation has nothing to do with her being granted immunity from possible drug charges.]

"Jeffrey Atlas, the judge presiding over the trial, frequently chastised Pichardo's lawyer for courtroom blunders.

"According to an account published in the New York Times, the judge at one point pulled the lawyer aside to criticize him for failing to object to an improper question by the prosecution: 'I'm dealing with a homicide,' the judge declared. 'If the jury convicts this man, I have to sentence him and I would like to do that with a clear conscience.'

"Ortiz testified that as he was passing by the parking lot where the shooting occurred, he saw two men walk into the lot and heard shots. He said he saw one man firing at Ricardo Martinez, then fall in the snow as he fled before limping to a waiting car. Evidence was presented that Patinos' nickname was 'El Cojo,' which means a person who limps.

"Pichardo's attorney put on an alibi defense, calling members of Pichardo's family who testified that he was home with the flu at the time of the shooting.

"After the last of the alibi witnesses left the courtroom, Atlas asked the lawyer to call his next witness. The lawyer turned to Pichardo and asked, 'You want to testify?'

"That was the first time the subject had come up between Pichardo and his lawyer.

"Pichardo decided to take the witness stand and denied involvement in the murder. But by taking the stand, the prosecution had an opportunity to question him about incriminating statements police said he made. Although Pichardo denied making the statements, his credibility suffered.

"Pichardo's lawyer complained to Judge Atlas that he thought the prosecution could not use these statements. Atlas later told the lawyer that any criminal attorney would have known the statements were admissible.

"During rebuttal, the prosecution called a detective who said that Pichardo had made the incriminating statements.

"During a day and a half of deliberations, the jurors asked to hear the testimony of Pichardo and the detective again -- a request that was rejected by Judge Atlas.

"In October 1994, the jury convicted Pichardo of second-degree murder and he was sentenced to 20 years to life in prison. Not long after, Pichardo agreed to plead guilty to the drug charge because the sentence -- one to three years in prison -- ran concurrently with the sentence for his murder conviction.

"Several months later, Patinos was convicted of murder and was sentenced to 20 years to life in prison.

"When Patinos' case was assigned to Frances Gallagher at the Legal Aid Society, Gallagher, who already had been working on Pichardo's appeal, noticed that the prosecution had disclosed evidence that was favorable to Pichardo in the Patinos case, but not in the Pichardo case.

"Gallagher discovered that another witness, Joe Smalls, told police on the day of the shooting that he saw a Hispanic male about five feet, two inches tall cross Park Avenue alone and shoot four or five times at Ricardo Martinez. Patinos was five feet, five inches tall and Pichardo was five feet, eleven inches tall.

"Gallagher also discovered that police reports disclosed to the defense in the Patinos case contained the name of a witness named Itzalia Alvarez, who told police she only saw one gunman firing four or five shots.

"A motion for a new trial for Pichardo was filed in June 1998. A hearing was held where Ortiz, Alvarez, and Smalls testified. On March 7, 2000, Justice Jeffrey Atlas granted the motion and ordered a new trial.

"Atlas ruled that Pichardo's defense attorney at trial had failed to hire an investigator, failed to interview potential witnesses, failed to request a jury instruction for the use of an alibi,* was ineffective in cross-examination and put Pichardo on the witness stand without realizing he could be cross-examined about allegedly incriminating statements police claimed he made."

[* Namely, that in order to convict, the jury had to find that Pichardo's alibi had been disproven beyond a reasonable doubt -- which does not appear to have happened.]

"Atlas said the defense attorney had failed to cross-examine Ortiz about his description of the gunman as five feet, five inches -- a height matching that of Patinos and six inches shorter than that of Pichardo.

"What Atlas found 'most appalling' was the lawyer's failure to hire an investigator and his failure to conduct any investigation at all, except to interview Pichardo's family members.

"Pichardo went on trial for a second time in the summer of 2000. Bolstered by the new witnesses as well as ballistics evidence showing that all the shots were fired by one gun,* Pichardo was acquitted by a jury on June 15, 2000 and he was released from prison."

[* Was this ballistics evidence available before the first trial?]

"Pichardo then began battling to erase the drug conviction, which the prosecution was using to attempt to deport him to the Dominican Republic, his native country. Pichardo argued that he would not have pled guilty had he not been facing a sentence of 20 years to life for the murder. In 2004, the conviction was vacated and the case was dismissed.

"Pichardo filed a claim with the New York Court of Claims and received a $200,000 settlement."

[All emhases added unless otherwise noted.]

Ronald Pondexter - Mistaken ID / Perjury / False Accusation

Tue, 24 Jun 2025 02:34:11 +0000

Pondexter, Ronald; murder; NRE: mistaken witness identification, perjury/false accusation, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

[645:759]; Court of Appeals 6/13/96; reversed, due to trial Court's refusal to explore whether subsequently privately recanting witness had essentially refused to (re-)testify

"[Pondexter's] murder conviction after jury trial arose out of a botched robbery committed by him [???] and an accomplice. After the two stole money at gunpoint from the two male victims, [Pondexter] shot and killed one of the men when the victim refused to give [him] his house keys. The other victim survived and testified, as did a second witness, Sharon Valdez, who claimed at trial to have seen the entire incident from her window overlooking the street.

"During [jury selection], the Judge asked [Pondexter] if he wished to waive his right to be present at sidebars. [Pondexter], through counsel, initially indicated that he wanted to be present. The [Judge] then stated that, 'if he's brought up to the bench there'll be a number of court officers surrounding him at all times.'* Defense counsel suggested that the Court instead 'send the jury out,' but the Trial Judge replied that 'I can't send 60 people out every time somebody wants to come up to me.' After discussing the case further with his lawyer, [he] signed a written waiver."

[* There is no indication in the record of what basis/justification this judge would have had for making such an assertion; thus, pro-prosecution bias seems to have been at play here.]

"The day after Valdez testified and was cross-examined, defense counsel told the court in camera [i.e., privately, in the judge's chambers] that he had spoken to Valdez...after her testimony. Valdez told defense counsel privately -- in sharp contrast to her incriminating testimony against [Pondexter] -- that she had been asleep on the night of the incident, and did not see anything that occurred ...On the following day, Valdez appeared in court with a court-appointed attorney. Both her attorney and Valdez indicated that she would assert her Fifth Amendment privilege against self-incrimination in response to any further questions.

"The trial court ruled that Valdez had a basis to assert the Fifth Amendment and denied defense cousel's request to have her assert the privilege under oath in the presence of the jury.* Defense counsel then requested that Valdez's testimony be stricken from the record. The trial court, however, denied the requested relief without comment or further inquiry."

[* Yet more evidence of judicial bias.]

"Striking a witness's testimony is 'the most drastic relief' available when a witness refuses further cross-examination under a claim of self-incrimination, and a court should only invoke it when there are no less drastic alternatives...But a trial court has an obligation to weigh the options, and the threshold inquiry and exercise were not undertaken and fulfilled here. When the court is faced with a recantation of the crux of a key witness's testimony....the court must at least explore whether the witness has essentially 'refused to testify...'"

from NRE synopsis (by Maurice Possley):

"In March 1992, two men were robbed at gunpoint in the vestibule of an apartment building in Brooklyn...When one of them refused to turn over his wallet and watch, the gunman shot both men. The man who resisted died. The other victim survived, but he was so drunk that he could not describe the robber.

"In April 1992, 22-year-old Ronald Pondexter was arrested and charged with second-degee murder, attempted murder, robbery and attempted robbery.

"He went on trial in Kings County...in February 1993. The surviving victim -- despite his initial claim of being unable to recall his assailant -- identified Pondexter as the gunman. The prosecution also called 19-year-old Sharon Valdez, a resident of the building where the crime occurred. She testified that she heard the gunshots and looked out her window to see Pondexter leaving the vestibule with a gun in his hand.

"In Pondexter's defense, attorney Michel Baum called Valdez's mother, Shirley Hudson, who testified that she was awakened by the gunshots and went to check on her children -- as she always did when she heard gunfire. Hudson testified that Sharon was asleep in her bed.

"Before the case was concluded, Valdez reached out to Baum and said she had lied -- that in fact she had not seen Pondexter. Valdez said that Detective Louis Scarcella had shown her Pondexter's photograph and persuaded her that he was the gunman and coerced her to identify Pondexter.

"Baum sought to call Valdez to the witness stand to recant her testimony in court. The judge apointed an attorney for Valdez and when she came to court, she said she would assert her Fifth Amendment privilege against self-incrimination in response to any questions. Baum asked that Valdez be required to assert the privilege in front of the jury, but the motion was denied. The judge also denied Baum's request that Valdez's testimony identifying Pondexter be stricken from the record.

"On February 24, 1993, the jury convicted Pondexter of all the charges and he was sentenced to 25 years to life in prison.

"In June 1996, the New York Court of Appeals reversed the convictions and ordered a new trial. The appeals court held that the trial judge failed to conduct a proper inquiry to determine whether Valdez's testimony should be stricken in light of her refusal to answer questions about her recantation.

"'When the court is faced with a recantation of the crux of a key witness's testimony under the circumstances as they evolved in this case, the court must at least explore whether that witness had essentially "refused to testify on questions of matters so closely related to the commission of the crime that the entire testimony of the witness should be stricken,"' the Court of Appeals held -- but no such inquiry was conducted.

"In May 1997, Pondexter went on trial a second time. Valdez did not testify -- only the surviving robbery victim. A jury acquitted Pondexter and he was released.

"In March 2013, Detective Scarcella came under scrutiny for coercing false testimony from witnesses in the conviction of David Ranta, who had been wrongfully convicted of a 1990 murder in Brooklyn.

"A few months after Ranta was exonerated, The New York Times published an article accusing Scarcella, who retired in 1999, of a variety of misconduct in many investigations: fabricating evidence, coercing witnesses and concealing evidence of defendants' innocence. The article reported that one witness, Teresa Gomez, a crack addict, had testified as an eyewitness in six separate murder cases. The report prompted the Brooklyn Conviction Integrity Unit to re-investigate 57 cases in which Scarcella was involved. The inquiry was later expanded to more than 70 cases."

[All emphases added unless otherwise noted.]

Charles Pierre - Mistaken Witness ID / Poor Legal Defense

Tue, 24 Jun 2025 02:30:01 +0000

Pierre, Charles; murder; NRE: mistaken witness identification, inadequate legal defense

11 N.Y.S.3d 389; 4th Dept. 6/12/15; motion to vacate granted, due to another person confessing to the crime "Two witnesses testified at the [motion to vacate] hearing that a third party (declarant) admitted that he beat the two victims with a baseball bat in their apartment and set a fire to destroy the evidence. The victims lived in the downstairs apartment of a building on First Street in Rochester, and the declarant lived in the upstairs apartment. One witness was a 'jailhouse lawyer' from whom declarant sought legal advice in 2013 on the issue [of] whether he could be convicted of those crimes after another person had been convicted of them. The witness testified that the declarant was concerned that his wife, who had left him, would report to the police that he had committed the crimes. At the time he allegedly made the statements, the declarant was awaiting trial for a 2007 murder, in which the victim was beaten and a fire was set in her home...The declarant's ex-wife testified at the hearing that the declarant told her on the day of the crimes in 2002 that he had committed them."

from NRE synopsis (by Maurice Possley):

"On August 1, 2002, firemen summoned to a burning apartment building in Rochester...found two bodies inside. Evidence showed that 46-year-old Clara Sconiers and 50-year-old Thomas Reed had been beaten to death with a blunt instrument before the fire was intentionally started.

"Police focused almost immediately on 36-year-old Charles Pierre, who had been Sconiers' boyfriend until he moved out after they had a fight about a month before the crime.

"Pierre was picked up for questioning after neighbors said they saw him on the street about the time the fire broke out. Although Pierre denied any involvement in the crime, he was charged with two counts of first-degree murder and arson.

"Pierre went to trial in Monroe County...in July 2003. A fire investigator testified that the blaze was intentionally set and that traces of an accelerant had been found in the debris.

"No physical or forensic evidence linked Pierre to the crime. Witnesses testified that he and Sconiers had a physical confrontation about a month before the crime, after which Pierre moved out. Other witnesses told the jury that they saw Pierre on the street near the burning building about the time the fire started.

"Pierre's attorney had subpoenaed several witnesses to testify that they saw Pierre hanging laundry in his back yard just about the time the crime was believed to have occurred, but did not call them to testify.

"On July 28, 2003, a jury convicted Pierre of two counts of first-degree murder and one count of second-degree arson. He was sentenced to 25 years to life in prison.

"In 2007, a Rochester woman named Katharina Lawn was beaten to death in her Rochester apartment, which was then set ablaze in an apparent attempt to hide the murder.

"In 2012, Rochester Police Investigator John Brennan was re-investigating the still-unsolved murder of Ms. Lawn, and focused on a possible suspect -- Darrell Boyd. Brennan tracked down Boyd's ex-wife, who said that Boyd had confessed to her that he had committed the murders of Sconiers and Reed and set the apartment building on fire to cover it up.

"Ultimately, Boyd was charged and convicted of the murder of Katharina Lawn in 2014 and sentenced to 25 years to life in prison. At the same time, Van Henri White, a new attorney for Pierre, filed a motion for a new trial on behalf of Pierre, citing the new evidence that Boyd committed the crimes Pierre was convicted of as well.

"At a hearing on the motion, Brennan testified that Boyd's ex-wife broke into tears during their interview. 'She told me she was crying because there was an individual in prison for two murders he did not commit,' Brennan testified.

"Witnesses who claimed they saw Pierre near the building at the time of the fire also testified and admitted under cross-examination that they were less than positive and gave testimony inconsistent with their testimony at Pierre's first trial.

"White also presented testimony from one of two prison inmates who said that Boyd had admitted that he beat Sconiers and Reed to death with a baseball bat and then set the apartment on fire before fleeing.

"One of those witnesses, Dolph Sturgis Jr., testified that he was working as a jailhouse paralegal when Boyd came to him for advice on the Lawn murder case. Sturgis said, 'He was concerned about another murder. . .he had committed. . .It was two people in a house that he had killed and burned the house.'

"In August 2014, Monroe County...Justice Douglas Randall vacated Pierre's convictions and ordered a new trial. The Monroe County [DA's] Office appealed the decision and in June 2015, the Appellate Division upheld the ruling.

"Pierre went to trial a second time in August 2015. Just prior to the retrial, the prosecution disclosed a police report that had been prepared in 2005 -- a decade earlier and two years after Pierre was convicted. The report said that Boyd's wife (they were not yet divorced) called police during a fight with Boyd. At that time, she told the police that Boyd was responsible for the murders of Sconiers and Reed. The report quoted the woman as saying that an innocent man was in prison for the crime. However, the woman's statement apparently was ignored and the report was not disclosed to Pierre.

"At the retrial, the defense presented the testimony about Boyd's admissions as well as alibi witnesses who testified that Pierre was hanging laundry in his yard at his new residence at the time of the crime.

"On August 13, 2015, the jury deliberated for less than two hours before acquitting Pierre on the murder and arson charges. He subsequently was deported to Trinidad.

"In September 2015, Pierre filed a claim for compensation in the New York Court of Claims that was settled in September 2020 for $2 million. He also filed a lawsuit in federal court that was dismissed in July 2019."

[All emphases added unless otherwise noted.]

The Marshall Project - Summary

Wed, 11 Jun 2025 02:43:31 +0000

In 2023 (precise date unknown), The Marshall Project released a series of reports on misconduct by New York State correctional officers. Here are some of the highlights:

'How We Investigated Abuse by Prison Guards in New York'

"The Marshall Project examined 12 years of employee discipline data and hundreds of prisoner lawsuits. To report on how New York State prison officials discipline officers they accuse of abuse, The Marshall Project examined two primary data sets. We received one through public records requests to the state corrections agency. The other we compiled based on thousands of pages of court records released by the state attorney general's office."

"For the first set of data, we asked New York's Department of Corrections and Community Supervision for its database of discipline cases it brought against employees. These records had been hidden from public view under a decades-old secrecy law which the Legislature repealed in 2020. The department gave us...files itemizing cases it filed from Jan. 1, 2010, through mid-April of 2022."

"For our second set of data, we asked the New York attorney general's office for every lawsuit it settled -- or lost -- on behalf of the corrections department since 2010."

'We Spent Two years Investigating Abuse by Prison Guards in New York. Here Are Five Takeaways'

"The state fails to fire most corrections officers it accuses of violence against prisoners or covering up abuse.

"New York's prison system has failed to fire nearly all corrections officers it accused of attacking people in their custody. And guards often work in groups to cover up assaults by lying to investigators and in official reports..."

1) New York's discipline system favors prison guards

"Over 12 years, the New York corrections department tried to fire officers or supervisors the agency accused of physically abusing prisoners or covering up midconduct in more than 290 cases. But in only 10% of those cases did the officers get fired. That's despite the agency classifying the employees as threats to the safety and security of prisons. Some of the officers retired or resigned, but the vast majority managed to keep their jobs.

"Examples include a guard whom the state tried to fire three times in three years for using excessive force; an officer who broke his baton hitting a prisoner 35 times; and guards who beat up a prisoner so badly he needed 13 staples to close gashes in his scalp.

"The guards' union contract requires any effort to fire an officer to be subject to outside arbitrators, who have final say on whether guards lose their jobs. In abuse cases, arbitrators ruled in favor of officers three-quarters of the time. Arbitrators often said the state's evidence was insufficient or found prisoners' testimony unconvincing."

2) In many cases of serious abuse, officials didn't try to discipline the officers accused

"The Marshall Project identified more than 160 lawsuits where, under a court order or settlement, the state paid damages to people who said guards abused them. Records show that the department did not try to discipline officers in 88% of those cases, including some in which prisoners were permanently injured or even killed.

"Examples include a prisoner whose account of a beating at the hands of officers was so strong, a jury awarded him $1 million; a judge called it 'the strongest excessive force case' she'd seen in her career. In another case, where a man was killed by officers after allegedly refusing to clean his cell, the state agreed to pay his family $5 million. The agency did not try to discipline the officers in either incident.

3) A culture of cover-ups among guards makes it hard to hold them accountable

"Guards often work in groups to conceal violent assaults by lying to investigators and on official reports, records show. Then the officers file charges accusing prisoners of assaulting them.

"In three-quarters of the abuse cases where managers tried to fire officers, the department also accused them of a cover-up, often by acting in concert. The department tried to discipline guards for incidents in which one or more were accused of committing abuse while others lied to hide it, bringing a case, on average, every two months over 12 years.

"In about half of roughly 160 lawsuits that we examined, prisoners complained that after violent incidents, guards retaliated against them by filing false charges of assault and sending them to solitary confinement."

4) The corrections officers' powerful union has protected this disciplinary process

"A key reason prison officials find it so hard to get rid of guards is the contract the state signed with the officers' union in 1972.* This agreement gives the final say on firing an officer to arbitrators hired by the union and the state -- a system the union successfully kept in later contracts. Only a court can overturn arbitration decisions."

[* Perhaps it is no coincidence that the Attica uprising, in which numerous prisoners as well as guards were eventually killed (almost all by the state police), happened the year before -- 1971.]

"The union has significant political influence, especially in rural communities that are home to prisons and their workers. It has protected members' jobs even as the number of people incarcerated in New York has plunged by nearly half since 2010 and the state closed two dozen prisons."

5) Our investigation captures only a fraction of prisoner abuse

"Experts say the records reviewed for this investigation probably reflect just a portion of the violence guards inflict in New York's corrections system. Many prisoners do not file complaints because they fear retaliation or not being believed. And in most of the state's 44 prisons, officers do not wear body cameras,* which sometimes help prove abuse." [* Beginning around 2018, at Clinton Correctional Facility, c.o.s as well as sergeants were regularly seen sporting body-worn cameras. But within about a year, such use dropped off precipitously. As of early 2024, they've virtually disappeared.]

'How a "Blue Wall" Inside New York State Prisons Protects Abusive Guards' (by Joseph Neff, Alysia Santo, and Tom Meagher)

"BEACON, N.Y. -- The way the prison guards described it in their paperwork, there was a minor disturbance the day they took Chad Stanbro to a dental clinic at a regional hospital.

"Stanbro, a prisoner, had been sedated but became agitated during surgery, took a swing at a dentist and kicked a correctional officer in the stomach, they wrote. The guard and a colleague had quickly restrained him and had driven him back to Fishkill Correctional Facility, where, according to the senior officer's account, Stanbro had 'reported no injuries.'

"But critical details were missing -- including that Stanbro had been paralyzed during the incident. A third officer [Kristofer Leonardo] had rushed into the clinic's operating room and had knelt on Stanbro's neck until he couldn't move, according to later court testimony. That guard had asked his colleagues to leave him out of their reports, they acknoledged at trial, and they had done so.

"Even though Stanbro's injuries were obvious -- he could not walk or move his body from the neck down -- the officer who injured him avoided discipline. Stanbro, hwoever, was accused of assault, and after he left the hospital was put in solitary confinement. In July, a federal jury awarded him $2.1 million in damages.

"Such cover-ups are commonplace across New York State's prison system, according to a Marshall Project review of thousands of pages of court documents, arbitration records and officer disciplinary data.

"At Auburn Correctional Facility, west of Syracuse, guards kicked a man, called him a racial slur and broke three of his ribs in what a judge called a 'barbaric assault.' At Elmira Correctional Facility, near the Pennsylvania border, officers beat a handcuffed man and threw him down a flight of stairs, fracturing his skull. At Clinton Correctional Facility, near the Canadian border, guards kicked and punched a handcuffed man, breaking his rib. In all three cases, the staff members filed false reports to cover up the assaults, court records showed, and faced no discipline.

"The records illustrate how cover-ups can make it difficult to hold officers accountable for using excessive force. They also reveal a typical playbook: Guards often work in groups to conceal violent assaults by lying to investigators and on official reports, and then they file charges against their victims and have them sent to solitary."

"The Marshall Project found and analyzed lawsuits involving excessive-force incidents that the state lost or settled in the decade ending in 2020...Half of the roughly 160 lawsuits complain of guards retaliating against the incarcerated people they injured. A man at Sullivan Correctional Facility said guards beat his head against the floor and smashed his face with handcuffs. At Sing Sing Correctional facility, officers fractured a man's eye socket. In both cases, corrections employees charged the men with assault and sent them to solitary. The state paid a total of $56,500 to settle the two lawsuits, but it did not discipline any of the officers involved, saying investigators could not verify the allegations."

"In March 2020, Officer Aaron Finn handcuffed a prisoner at Green Haven Correctional facility and repeatedly smashed his head into a wall and steel bars.

"A body camera worn by Finn captured the attack, which left the prisoner, Melvin Virgil, limp and unconscious. Footage from another body camera shows a sergeant repeatedly demanding, 'Who applied handcuffs?' and then 'Nobody knows nothing now?' as a group of officers stand silently.

"Finn filed six misconduct charges that day against Virgil, who went straight to solitary confinement. The guard claimed in his paperwork that he had hit Virgil once after the prisoner had smashed one of his fingers with the handcuffs. Another guard wrote that Virgil had tried to kick the officers even after he was on the ground. Two other officers involved, including the sergeant who had earlier demanded answers, filed similar reports.

"But the videos show Finn smashing Virgil's head into the wall twice before taking him to the ground and ramming his head into the steel bars four times. At the moment when the officers claimed Virgil kicked at them, the video shows him losing consciousness.

"Weeks after the assault, investigators showed the video to two officers and gave them a chance to amend their reports. They declined. Corrections officials moved to fire Finn, but did not file disciplinary charges against the other officers.

"Finn resigned a year after the attack. In an unusual turn of events, he was later arrested in connection with the assault. He pleaded guilty, and in November was sentenced to three months in federal prison. He did not respond to requests for comment.

"Virgil, who was serving a sentence for sexual abuse, robbery and assault, sued Finn and his colleagues last year. The guards have denied the allegations and asked a judge to dismiss the case.

"Another prisoner had accused Finn of a similar attack in 2015, when he said the guard handcuffed him and smashed his head into a wall. Last year, the state paid $9,500 to settle that case.

"A comprehensive look at cases like Virgil's, in which guards appear to conspire to cover up violent incidents, was not possible until recently. New York required all discipline records for prison guards and police officers to be kept secret. But the Legislature changed the law in 2020, allowing The Marshall Project to obtain thousands of discipline records detailing allegations of miscnduct inside prisons.

"The records show that even when the corrections department attempted to fire officers for excessive force or for lying about it, the agency succeeded just 10 percent of the time.

"The officers' efforts to conceal the violent episode that paralyzed Stanbro were complicated by a major factor: The incident happened in a public hospital rather than an isolated prison.

"Guards from Fishkill, where Stanbro was serving a 10-year sentence for stealing a television and violating parole, drove him to a dental clinic for prisoners in August 2018. During a procedure to treat a dislocated jaw, he became agitated, tried to pull away and knocked over a monitor, according to court records. When he regained full consciousness, he later testified, a third officer, Kristofer Leonardo, was pressing a knee to his neck as the other guards held him down. The force on Stanbro's spine paralyzed him, medical and court records show.

"Afterward, the other guards would testify, Leonardo asked them for a favor: Keep his name out of their official reports.

"'He was an officer that I respected,' Officer Nadya Palou told the jury, explaining why she went along with the request.

"After Leonardo left the hospital, a security camera in the parking lot captured Palou and a colleague lifting Stanbro's limp body into a van to drive back to Fishkill. They stopped along the way to prop him up, Palou later testified.

"Before the officers returned to Fishkill, hospital staff had already called the prison to complain about the use of force, a corrections supervisor testified.

"The guards who drove Stanbro wrote in their official reports that he had climbed into the van himself -- they did not realize there was video showing otherwise. As requested, neither mentioned Leonardo in their reports.

"In the prison infirmary, a nurse and a captain accused him of faking his injuries, he testified. It was only after the nurse repeatedly poked his feet with a needle and got no response that the staff members called for an ambulance.

"A helicopter took Stanbro to Westchester Medical Center, the same hospital where Leonardo had knelt on his spine. He spent 12 days there.

"Leonardo, who had been escorting men from a different prison to the dental clinic, did not report that he had used force on Stanbro. His supervisor at Greene Correctional facility later learned of an internal investigation and ordered the guard to fill out the required paperwork. Leonardo wrote that he wrapped Stanbro in a bear hug and helped handcuff him after Stanbro had punched a guard. In court, Leonardo denied both the assault and the request that his name be left out of the reports.

"The guards' stories fell apart at trial. In a rare concession, two officers admitted to jurors they had lied, first by omitting Leonardo from their reports and then by saying Stanbro had walked himself to the van. The dentist testified that Stanbro had bever tried to punch him or the guards.

"State officials did not try to punish Leonardo. The agency said Palou resigned while disciplinary charges were pending, and the third officer was fined $3,000. None of the officers responded to several requests for comment.

"While guards regularly suffer no consequences for using excessive force on incarcerated people, the prisoners often leave the encounters not only injured, but also facing administrative hearings that can lead to harsh penalties. "After Stanbro was discharged from the hospital, the guards accused him of assault. He was given 40 days in solitary confinement. Still paralyzed, he was allowed to leave his cell once a day for physical therapy, he later testified.

"Several lawyers, advocates and former correctional managers said it is common practice for corrections employees to beat prisoners and then charge them with assault, even when the prisoners have suffered grievous injuries as Stanbro did.

"Guards at Adirondack Correctional Facility, west of Lake Placid, beat a man and fractured his rib. And a beating by officers at Southport Correctional Facility, which closed last year, left a man with permanent damage to his shoulder and eye. In both cases employees accused the men of assaulting them -- and supervisors put the men in solitary confinement. Both prisoners got the rulings reversed on appeal. They later sued and received six-figure settlements. Two Southport officers were suspended for a year for their actions. None of the guards were fired.

"Attacks by guards are almost certainly more common than the discipline records indicate, experts said. Officers exert an enormous amount of control over prisoners' lives, which deters incarcerated people from reporting abuse, said Jennifer Scaife, executive director of the Correctional Association of New York, a nonprofit prison monitoring group. Scaife said she often hears from people who say they are being mistreated but are afraid that reporting it will cause guards to turn on them.

"'It's like, "Oh, you want to do that to us? Watch all the ways we can make your life a living hell,"' she said.

"Kevin Ryan, a former prison investigator in New York, found the cover-up culture among guards and indifference from top managers so effective at thwarting his investigations that he eventually quit.

"'At some point, it just becomes a waste of time because nobody is going to tell you the truth,' said Ryan, who was a federal customs agent for 25 years before joining the corrections system in 2015.

"Ryan pointed to the case of Roy Harriger, who was convicted in 2015 of sexual abuse of a child. Harriger said a guard at Attica Correctional Facility beat him in the back of the head with a baton, leaving him paralyzed. The assault occurred sometime after a guard had picked him up at the sergeant's office on his cell block, and before he arrived unconscious at the infirmary.

"Ryan assigned three investigators to dig through records and interview staff members.

"The officers put up a united front, saying they knew nothing or that Harriger had fallen in the shower. Crucial records were missing. About a dozen staff members refused to be interviewed by state police. Ryan said he never determined which guard attacked Harriger. No one was ever disciplined for the assault, and no criminal charges were filed.

"Harriger sued. At trial, his lawyer asked the sergeant working in his cell block and the sergeant at the infirmary which officers escorted Harriger that day. Both sergeants testified dozens of times that they didn't recall and never tried to find out.

"The judge said she was appalled: the corrections department, which 'requires the completion of paperwork on just about everything that occurs in the prison system, somehow neglected to file any paperwork related to this incident,' she wrote.

"Citing the medical records, the judge ruled in November 2020 that the Attica staff's story that Harriger had fallen in the shower was a 'fabrication.' She awarded him nearly $2.4 million. He has remained in a wheelchair since the attack and can't straighten the fingers on his right hand, which contract like claws and dig into the flesh of his palm, according to court records.

"Such assaults and cover-ups are crimes, Ryan said, and his office referred more than a dozen cases to the State Police and [FBI]. Those investigations almost never resulted in criminal charges against correctional officers.

"The best way to get officers to break their code of silence, Ryan said, would be to pressure them under oath in a federal grand jury, where deceit results in criminal charges like perjury or lying to an FBI agent.

"'Then you separate the heard,' Ryan said.

"Four years after the neck injury, Stanbro was paroled, but he has struggled since he moved back to live with his family in Elmira. After surgery and months of physical therapy, he can now use his arms and hands. He can walk with a limp and is able to lift only light objects. Nerve pain regularly shoots down his back through his triceps to his fingertips, according to testimony and court records.

"'I used to be a big, strong kid,' he said in an interview.

"Stanbro had dealt with mental health problems and substance abuse before he was imprisoned; since the assault, anger and depression have consumed him, he said. He landed in jail in February after suffering a psychotic episode.

"He has said he is troubled that none of the guards were prosecuted for the assault and cover-up. He was interviewed by the State Police and the Westchester [DA's] office, which closed the investigation without filing charges.

"Stanbro said he is reluctant to wish incarceration on anyone, but he believes that the three officers should go to prison.

"'It's the only thing that anybody seems to be scared of,' he said. 'This is not revenge I seek; this is change.'"

'In New York Prisons, Guards Who Brutalize Prisoners Rarely Get Fired'

"Shattered teeth. Punctured lungs. Broken bones. Over a dozen years, New York State officials have documented the results of attacks by hundreds of prison guards on the people in their custody.

"But when the state corrections department has tried to use this evidence to fire guards, it has failed 90% of the time, an investigation by The Marshall Project has found.

"The review of prison disciplinary records dating to 2010 found more than 290 cases in which the New York State Department of Corrections and Community Supervision tried to fire officers or supervisors it said physically abused prisoners or covered up mistreatment that ranged from group beatings to withholding food. The agency considered these employees a threat to the safety and security of prisons.

"Yet officers were ousted in just 28 cases.* The state tried to fire one guard for using excessive force in three separate incidents within three years -- and failed each time. He remains on the state prisons' payroll."

[* That's 28 firings over 12 years; or -- on average -- a bit more than 2 per year. Out of a total 16,000 officers, just .175% -- or 1 out of every 571 -- were fired for misconduct.]

"An officer who broke his baton hitting a prisoner 35 times, even after the man was handcuffed, was not fired. Neither were the guards who beat a prisoner at Attica Correctional Facility so badly that he needed 13 staples to close gashes in his scalp. Nor were the officers who battered a man with mental illness, injuring him from face to groin. The man hanged himself the next day.

"In dozens of documented cases involving severe injuries of prisoners, including three deaths, the agency did not even try to discipline officers, state records show."

"The abuse by guards has not just left prisoners with lasting injuries. It has also exposed the corrections department to liability in legal cases. The state paid more than $18 million as a result of lawsuits alleging excessive force..."

"The case of Harold Scott shows how corrections department officials can struggle to fire guards they believe have brutalized prisoners.

"In June 2019, Scott had just begun a 90-day sentence at the Willard Drug Treatment Campus, in the Finger Lakes region, for violating parole after serving time for burglary and assault.

"He got into a dispute with a guard over the number of rubber bands in his dreadlocks. When the officer, Timothy Downs, slapped him in the face, Scott said, he hit the guard back. What followed was a 'criminal street gang-style beating,' investigators would later write, with guards punching and kicking Scott even after his hands had been cuffed behind his back.

"Doctors at a nearby hospital determined that Scott had life-threatening injuries, including a punctured lung, and put him into intensive care..."

"Guards' written reports said they stopped using force as soon as they handcuffed Scott. Investigators concluded that the reports were falsified and that the officers 'conspired and created a false narrative to cover up the beating,' noting that the documents were 'identical in important sections.'

"Officials decided to fire the officers..."

"The union challenged the firings in front of separate arbitrators..."

"In all the cases, arbitrators agreed that Scott had been attacked but said the evidence did not prove who did it. They did not find any guards responsible for the assault but ruled that three covered it up; those officers were suspended for at least six months. A fourth officer had previously agreed to a suspension.

"After his beating, Scott was accused of assault and violent conduct, and kept for months in solitary confinement. The incident left him with lasting injuries, he said in an interview. Scott, 44, has difficulty breathing and speaks softly, he said, because it hurts to talk.

"In December 2021, Scott filed a lawsuit against the officers he said beat him. In a voice as quiet as a whisper, he said, 'I want to be heard.'"

"The union has suceeded in protecting members' jobs even as the number of people incarcerated has plunged by nearly half since 2010 and the state shut two dozen prisons. The number of officers has fallen about 22%, leaving the state with about one guard for every two prisoners, among the highest staffing ratios in the country."

"When Karl Taylor, a prisoner at Sullivan Correctional Facility, died in 2015, his family sued, alleging guards had beaten him for refusing to leave his cell. The state settled during the trial for $5 million and agreed to install cameras at the prison, which is near Monticello...But the department did not file disciplinary charges against any of the officers involved. The agency noted that a grand jury did not indict the guards."

"The attack that prompted Nick Magalios to file his lawsuit began when officers at Fishkill Correctional Facility...yelled at him for hugging and kissing his wife hello during a visit, which prison rules allowed.

"Afterward, Officer Matthew Peralta, who had reprimanded Magalios, knocked him on the floor and kicked and punched him as another guard [Timothy Bailey] held him down and a third officer watched, according to testimony in the civil trial.

"Photos of Magalios taken that day, in September 2017, showed bruises on his back and knees. He said he needed surgery to fix a shoulder injured in the attack. The corrections department opened an investigation but, citing insufficient evidence, never filed disciplinary charges against the officers. They still work at Fishkill."

"State lawyers called Magalios's allegations 'a fiction.' Peralta and another guard [Bailey] testified that they had never interacted with Magalios, who was imprisoned in 2014 for burglary, and denied using any force.

"A federal jury awarded Magalios $1 million in 2021. Judge Cathy Seibel reduced it to $500,000 -- closer to previous jury verdicts for prison abuse in that court district. Both sides have appealed.

"Seibel wrote in an order that the officers lied repeatedly, and she called Peralta's testimony 'laughable.' She described the lawsuit as 'one of the strongest cases of excessive force I have seen in my years on the bench.'

"She urged corrections officials to deem the assault on Magalios 'intentional wrongdoing' to force the officers to pay damages themselves.

"'I cannot think of a more effective tool for deterring future misconduct,' the judge wrote. It did not happen. The Marshall Project found only two excessive force lawsuits in which officers had to contribute some of their own money; taypayers were on the hook for the rest.

"Magalios, who is now out of prison and runs a property management company, said in an intervew that he appreciated the jury's ruling in his favor but was frustrated that no guards were punished.

"'You can commit gang assault on an inmate,' he said, 'and there's no repercussions.'"

[Except, perhaps, public shaming.]

Mark Prentice - Mistaken ID / Perjury / Witness Tampering

Wed, 11 Jun 2025 02:38:17 +0000

Prentice, Mark; robbery; NRE: plea, mistaken witness identification, perjury/false accusation, false/misleading forensic evidence, police officer misconduct, forensic analyst misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, perjury by official

Suggestibility issues

[572:406]; 3rd Dept. 7/11/91; affirmed

"After the victim of the robbery had testified, [Prentice] attempted to plead guilty...County Court and the [DA] were willing to accept the plea provided [Prentice] admitted the facts constituting that offense. When [he] refused to admit the particulars of the crime, County Court refused to accept the plea. The trial continued and after nine more witnesses had testified, but before the prosecution had rested, [Prentice] entered a plea of guilty to the entire indictment.

"We have examined [Prentice's] claim that the lineup procedure was improperly suggestive and find no merit in such contention. The victim's identification was positive and based on the view that the victim had of [Prentice] [???] in broad daylight when the crimes were committed."

"[C]onsidering [Prentice's] vicious, unprovoked attack of an 81-year-old man who was attempting to get [him] a glass of water that he had requested, the sentences imposed were fully justified..."

[617:570]; 3rd Dept. 10/20/94; granted motion to vacate second conviction (following reversal of first conviction -- which could not be found on Westlaw) due to county court's denial of subpoena for state police investigator who'd fabricated fingerprint evidence against Prentice.

"[Prentice] brought a...motion to vacate the judgment on the ground that State Police Investigator David Harding manufactured fingerprint evidence against [him]. County Court granted the motion...[Prentice was subsequently re-tried, and re-convicted.]

"[Prentice] contends that he was denied his constitutional right to present a defense. We agree. The gravamen of [his] defense was that the State Police fabricated evidence and manipulated witnesses in order to wrongfully obtain a conviction. In support of that defense, [Prentice] moved for an order compelling the production of Harding as a witness...[Prentice] submitted the affidavit of Harding which [said]...that '[o]ther members of the New York State Police participating in the investigation...knew of, and participated in, the fabrication of evidence and the presentation of false evidence against [Prentice].' ...Counsel for [Prentice] submitted a letter from the Special Prosecutor who prosecuted Harding, indicating that Harding had accused the State Police Investigator in charge of [Prentice's] investigation, Gary Allen, of complicity in the fabrication of evidence against [Prentice] in an affidavit of an accomplice who alleged that the same investigator coerced him into implicating [Prentice]."

[At a third trial in 1995, Prentice was acquitted.]

from NRE synopsis (by Maurice Possley):

"On August 30, 1988, 81-year-old Lawrence Meeker, Sr. was found beaten and robbed in his home in Enfield..."

"Two days later, New York State Police arrested 27-year-old Mark Prentice, who lived nearby. Police said that two of Prentice's friends, one of whom was the victim's grandson, reported that on the night before the victim was attacked, they were drinking beer with Prentice in the victim's shed, and that Prentice told them he planned to rob Meeker.

"Trooper David Harding reported that he searched the shed and found an empty beer bottle.

"Prentice denied any involvement in the crime. On September 10, 1988, Meeker, although still hospitalized, had recovered from a serious head wound sufficiently to be interviewed by police. He provided a description of his attacker that resembled Prentice. He subsequently identified Prentice in a photographic lineup.

"Ten days later, Trooper Harding reported that he had found a fingerprint matching Prentice on the sink in Meeker's kitchen. In addition, Harding said Prentice's fingerprint was on the beer bottle found in Meeker's shed.

"Prentice went on trial in Tompkins County...in February 1989. Meeker identified Prentice as his attacker. Harding testified that his fingerprint analysis placed Prentice in Meeker's shed and home. After this testimony, Prentice decided to plead guilty to two counts each of first-degree assault, first-degree robbery and first-degree burglary. He was sentenced to 12-1/2 to 25 years in prison.

"In 1992, the U.S. Department of Justice began investigating claims that New York State Police troopers, including Harding, had falsified fingerprint evidence. In December 1992, Harding pled guilty to perjury and admitted planting evidence in Prentice's and other cases. He was sentenced to 4-1/2 years in prison.

"Harding admitted that he retrieved a bag of empty beer bottles from Prentice's garage during a search for items taken from Meeker's home. Harding said he took photographs of fingerprints on those bottles. He said that he falsely claimed that one of the prints came from a beer bottle that he found in Meeker's shed. Harding also admitted that he falsely claimed that another photograph of one of the prints was on the kitchen sink in Meeker's home.

"The bag of beer bottles -- which had never been used during the prosecution of Prentice's case -- was discovered in an evidence vault. An FBI analysis of the photograph that Harding said he took of the fingerprint found on the sink showed the partial image of a Labatt's beer label -- the brand of beer in the bottles taken from Prentice's garage.

"Based on the disclosure, Prentice filed a motion to vacate his conviction. In February 1993, a judge granted the motion and dismissed the indictment, but allowed the prosecution to seek another indictment. In April 1993, a grand jury indicted Prentice on charges of burglary and assault -- without the fingerprint evidence.

"In July, 1993, Prentice went on trial a second time. At this trial, Prentice's lawyer asked the judge to issue a subpoena for Harding to testify for the defense. Prentice's lawyer said Harding would testify only if subpoenaed. In support of his motion, the lawyer submitted an affidavit from Harding in which he said that other members of the state police involved in the investigation of the assault and robbery of Meeker knew about the fabrication of the fingerprint evidence.

"The affidavit said that Harding would testify that his supervisor knew of the fingerprint fraud. Prentice's lawyer submitted an affidavit of the prosecutor who prosecuted Harding's case, confirming that Harding had accused his supervisor of complicity in the fingerprint fraud. Also, Prentice's lawyer presented an affidavit from one of Prentice's friends, who claimed that Harding had coerced him to implicate Prentice in the crime.

"The trial judge declined to issue the subpoena, and Prentice was convicted of first-degree burglary and first-degree assault. He was again sentenced to 12-1/2 to 25 years in prison.

"In October 1994, the Appellate Division...reversed Prentice's conviction and ordered a new trial. The appeals court held that Prentice had been denied his constitutional right to a defense -- specifically, evidence that the State Police fabricated evidence and manipulated witnesses.

"Prentice later sought compensation from the New York Court of Claims, but his claim was denied.

"Harding and four other State Police troopers were convicted of fabricating and planting evidence and all were sent to prison.

"Nelson Roth, who was appointed special prosecutor to investigate the scandal, ultimately issued a report to Gov. George Pataki based on an examination of thousands of cases handled by Harding and the others. Evidence was tampered with in at least 30 cases, the report said.

"Some of the defendants, after obtaining new trials, pled guilty and were released. Charges were dismissed for another defendant, Shirley Kinge, who had been wrongly convicted of helping her son to burn down a house to cover up her son's murder of a man, his wife, and their two children. In that case, Harding admitted that he planted one of Shirley Kinge's fingerprints on a gasoline can found at the scene of the fire.

"In December 1994, after evidence showed that State Police Lt. Craig Harvey had taken a print from one pane of glass in one burglary and planted it on a pane of glass in another burglary, the Broome County [DA's] Office dismissed the burglary conviction of William Labolt Jr. involving the planted fingerprint."

[All emphases added unless otherwise noted.]

Racky Ramchair - Mistaken Identity / Prosecutor Misconduct.

Wed, 11 Jun 2025 02:15:55 +0000

Ramchair, Racky; robbery; NRE: mistaken witness identification, prosecutor misconduct, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

671 F.Supp.2d 365; E.D.N.Y. 4/4/08; writ granted, due to ineffective assistance of counsel

"Ramchair's robbery conviction rested on a vigorously disputed one-witness identification of him as one of two robbers.

"The victim, Olek, had only a limited opportunity to observe the two robbers. They spent almost all of the approximately 15 minutes at issue in the back of Olek's cab, at night, while he was driving. Though the second perpetrator -- the one Olek described as a Guyanese Indian -- climbed into the seat after the first perpetrator wrapped his arm around Olek's head from behind and held a gun to his head, Olek promptly struggled free and exited the cab.

"The lineup was seven weeks later. Despite the time available to prepare a fair line-up, Ramchair was placed in one that day that was suggestive in the most aggravated way; i.e., Olek (himself Guyanese) had said the Guyanese Indian ethnicity of the second perpetrator was an 'important characteristic,' yet Ramchair was the only Guyanese Indian in the lineup.

"The unnecessary suggestiveness was aggravated by a bizarre 'carbon rub'; carbon paper was used to smudge a least two of the fillers' faces so they'd look like they had facial hair. That technique, which would be laughable but for the risk it creates of incorrect identifications, is especially indefensible where there was so much time to round up some fillers with real facial hair.

"It was crystal clear at each of the first two trials that the suggestive line-up, and the unreliable identification it produced, lay at the heart of the defense.

"The prosecutor pulled a dirty trick at the third trial. For the first time, she presented as evidence against Ramchair, Latimer's [Ramchair's lawyer] presence at the line-up and his failure to object to it at the time. That surprise tactic made Latimer an essential witness to the central factual dispute in the case: whether or not Olek's identification of Ramchair as the Guyanese Indian perpetrator [was] the result of a suggestive line-up."

"Not content with using Latimer's conduct as key evidence against Ramchair, the prosecutor capped off her case with outrageous and prejudicial accusations that Latimer was a racist. Though it was entirely appropriate for Latimer to contend that Ramchair was identified in the line-up only because he was the only Guyanese Indian in it, the prosecutor twisted that argument into accusations that Latimer believed 'all black people look alike...That's what he is saying.' She persisted in these egregious remarks, and in her claim that Latimer was racially 'insulting' the jury, even though the trial court sustained objections to them."

[Likewise, in Nickel's case, when his attorney objected to the prosecutor's use of certain terms, and the judge instructed the latter to 'refrain' from doing so, he kept at it anyway, with impunity. (See Propensity/Who Cares? section of this site.)]

[Though the present case does not name this miscreant prosecutor, an earlier one does -- albeit rather inadvertently, and only partially: Ms. Leopold. ]

"After an unexplained five-year delay, Ramchair's appellate counsel filed a brief that raised the wrong argument in response to the prosecutor's dirty trick. Counsel argued that it was error to preclude Latimer from testifying on behalf of his client at trial. But since the advocate-witness rule prohibits a lawyer from being both an advocate and a witness on a significant issue in the same jury trial...it was not error to keep Latimer off the witness stand. The error was the denial of his alternative motion for a mistrial... The failure to raise that claim on appeal constituted ineffective assistance of appellate counsel." [Last emphasis original.]

[In 2010, this same court ruled that the state's failure to comply with issue of conditional writ precluded retrial.]

from NRE synopsis (by Maurice Possley):

"At 11:30 p.m. on April 30, 1995, 35-year-old taxi driver Austin Olek picked up two men who hailed him in the rain and agreed to take them to 130th Street and Rockaway Boulevard in Queens..."

"On the way, the man sitting behind the front passenger seat asked Olek where he was from. Olek said he was from Africa and the passenger volunteered that he had been born in Guyana.

"When the taxi arrived at the destination, the man seated behind Olek put his left arm around Olek's neck in a chokehold and held a gun in his right hand to Olek's head. The man on the passenger side vaulted over the seat, grabbed $40 that was on the seat and $100 that was in the glove compartment. Meanwhile, Olek managed to break free of the other man's grip, and in the process exited the car. The two robbers fled in Olek's cab.

"Olek called police and described the man who had the gun as a black man and the passenger as a Guyanese man. Olek found the car parked in the neighborhood a few days later, but he did not call police, so no fingerprints were ever lifted from the vehicle.

"In May 1995, two men robbed a store in the Bronx and the victim said the robbers were a black man and an Indian man. Detectives showed photographs to the storeowner and he selected the photograph of 22-year-old Racky Ramchair, a native of Guyana of South Asian ancestry who had prior convictions for car theft and robbery, as one of the two robbers.

"Detective Robert Winnick then created a photographic lineup that included Ramchair and five other men, using photographs that Winnick said came from a box at the police station that was labeled 'Male Guyanese.' The five other men appeared to be African with dark skin, while Ramchair had lighter skin. Because some of the men had different hair, Winnick whited out the tops of their heads. Olek viewed the photographic lineup and identified Ramchair as the robber who said he was Guyanese.

"In June 1995, Winnick held a live lineup that included Ramchair and five other men -- three of whom were Hispanic and one of who was black.* All five were forced to wear backwards baseball caps to cover their hair and two of them were forced to run black carbon paper over their faces to give them the appearance of facial hair because Ramchair had a beard. Olek again identified Ramchair. The man Olek said had a gun was never found."

[* Thus, none of the lineup fillers were the same race as Ramchair. That's following a photo arrray in which Ramchair was the only person with lighter skin.]

"Ramchair went on trial in Queens County...in May 1996 on charges of first and second-degree robbery. Winnick testified about the photographic and live lineups, and told the jury that Ramchair's attorney, Jonathan Latimer, was present for the live lineup. Latimer contended that the live lineup was unduly suggestive because Ramchair was the only Guyanese man in it.

"The trial ended in a mistrial shortly thereafter because Ramchair was attacked in jail on Rikers Island and could not come to court.

"Ramchair went on trial a second time in June 1996. Winnick again testified about the lineup and at this trial, he said he could not recall if defense attorney Latimer was present. At the conclusion of the trial, the jury deliberated for a day and was sequestered in a hotel for the night when no verdict was reached. On the following day, one of the jurors suffered a heart attack and was hospitalized. Because the alternate jurors had been dismissed a day earlier, the trial judge declared a second mistrial.

"Ramchair went on trial for a third time in February 1997. This trial was virtually a replay of the prior trials until the moment when the prosecutor asked Detective Winnick if defense attorney Latimer had been present at the live lineup. After Winnick said that Latimer was present,* the prosecutor asked if Latimer had objected to the manner in which the lineup was performed. Winnick said Latimer had not objected."

[* So, at the first trial, in May of 1996, Winnick says Latimer was present. At the second trial, just a month later, Winnick says he can't recall. But at the third trial, held some eight months after that, Winnick does remember that Latimer was at the lineup? It seems likely the prosecutor -- Ms. Leopold -- had something to do with this.]

"Latimer objected to the question and argued (outside the presence of the jury) that the prosecutor's question was improper and the answer was prejudicial because it suggested that Latimer believed the lineup was proper since he did not object. In fact, Latimer told the judge, he believed it would be futile to object and that the best defense was to attack the lineup at trial.

"Latimer asked for a mistrial, saying the prosecutor and detective had sandbagged him. He argued that the only way he could counter Winnick's testimony was if he took the witness stand himself, but that would mean he could no longer be Ramchair's trial lawyer under attorney ethics rules. The motion for mistrial was denied. During closing argument, the prosecutor specifically told the jury that Latimer must have believed the lineup was proper because he had been present during the lineup and had not objected.

"On April 2, 1997, Ramchair was convicted of both counts of robbery. By that time, Ramchair had pled guilty to the other robbery in the Bronx and was sentenced to six to 12 years in prison. He was sentenced to 10 to 20 years for the Olek robbery and the sentence was to be served after he completed his sentence in the Bronx case.

"Ramchair's state appeals were not heard for five years and ultimately were denied. In September 2004, Ramchair filed a four-page hand-written federal petition for a writ of habeas corpus, arguing that his state appellate lawyer had provided inadequate legal assistance by failing to argue on appeal that the trial judge had erred in not declaring a mistrial at the third trial. U.S. District Court Judge John Gleeson appointed a lawyer to represent Ramchair.

"In October 2005, Judge Gleeson concluded that Ramchair's appellate lawyer should have raised the mistrial claim on appeal. The judge ruled, 'In my view, the prosecutor's conduct was both unfair and prejudicial to Ramchair. Once the prosecutor implied to the jury that Latimer had a different view of the line-up's fairness at the time it occurred than the one he expressed at trial, Ramchair needed Latimer as a witness to dispel that false implication. Because, in the circumstances, it would have been untenable to permit Latimer to act as both a key defense witness and the defense attorney, his motion for a mistrial should have been granted.' The judge listed eight separate reasons that compelled the granting of a mistrial.

"However, Gleeson also ruled that because that claim had not been raised in Ramchair's state appeal, Ramchair was required to go back to state court and raise the issue there.

"Despite the detailed ruling by Gleeson, the Appellate Division...denied Ramchair's state appeal on the mistrial issue in March 2006. The New York Court of Appeals agreed to review the Appellate Division's decision and in March 2007, concurred, again denying Ramchair's appeal.

"Ramchair then returned to federal court and renewed the argument before Judge Gleeson. In April 2008, Gleeson issued the writ on the ground that Ramchair's appellate lawyer failed to argue that a mistrial should have been granted in the third trial.

"The state appealed Judge Gleeson's decision and in July 2009, the Second Circuit...vacated the ruling and sent the case back to Gleeson for a hearing because during all the proceedings to that date, Ramchair's appellate lawyer had never been called to testify.

"Gleeson held the hearing, heard the testimony and again issued the writ. In the decision, Gleeson noted, 'Ramchair was present in my courtroom at the hearing. Observing him personally for the first time placed in even clearer relief the unfairness of the line-up, and the fallacy of the prosecutor's claim. . .that only skin tone, and not ethnicity, matters in determining whether a line-up is suggestive.'

"Judge Gleeson noted that Ramchair, a Guyanese Indian, appeared South Asian.

"'The fact that the perpetrator had such physical characteristics was important to the victim,' the judge wrote. 'Thus, it was hardly surprising (and not very probative) when the victim selected Ramchair from a line-up in which he was the only person who appeared South Asian. The prosecutor's argument that it did not matter that the fillers in the line-up were three Hispanics and an African-American, so long as their complexion was comparable to Ramchair's, was frivolous.'

"Gleeson added, 'Observing Ramchair in my courtroom helped me appreciate more fully why the prosecutor needed defense counsel's imprimatur on the line-up at trial. The prosecution's case hinged entirely on a vigorously-disputed one-witness identification. . .Even putting aside the ridiculous fact that at least two of the fillers' faces were smudged with carbon paper, it was obvious that none of them was South Asian. What could be a more effective answer to that glaring weakness in the prosecution's case than to lead the jury to believe that defense counsel himself had approved the line-up as fair by not objecting to it at the time?'

"The state appealed again and in 2010, the Second Circuit...upheld the writ, conditional upon the state deciding within 45 days whether to retry or release Ramchair.

"On July 10, 2010, after the state had not elected to retry the case or seek further appeals, Judge Gleeson issued the writ unconditionally, Ramchair's convictions were vacated, the charges were dismissed, and Ramchair was released."

[All emphases added unless otherwise noted.]