Building Bridges

The monthly newsletter of the Prison Action Network

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Monday, April 30, 2007

Innocent: The Story of Fernando Bermudez

from the April 13, 2007 New York Times front page

Accusers Recant, but Hopes Still Fade in Sing Sing By PAUL von ZIELBAUER

After five young people identified him in court as the murderer, Fernando Bermudez was convicted in 1992 of killing a 16-year-old youth in Greenwich Village. No other evidence — a gun, a fingerprint or a clear motive — tied him to the crime.

He has been jailed ever since, despite the fact that for 14 years, the same five witnesses have insisted their testimony was false. The five gave sworn statements in 1993 that Mr. Bermudez was not the killer and that their testimony had been manipulated by the police and prosecutors. They did so at the risk of being charged with perjury, and they have stuck with those accounts even as they have approached middle age, taken on steady jobs and raised families. Nonetheless, the recantations have had little impact. The same judicial system that once relied on the witnesses now no longer believes them.

“What does it take, with the system that we have, to reinvestigate a wrongful conviction?” said Scott Christianson, a supporter of Mr. Bermudez and a former state criminal justice official. “It’s really beyond me.”

The reason is based in the prevailing wisdom of the American justice system, which views recantations as untrustworthy, acts not of conscience, but of sympathy or bribery or coercion. That view is so deeply ingrained that one judge, rejecting one of Mr. Bermudez’s appeals in 1995, said candidly that five recantations were simply too many to believe.

In recent years, though, the reliability of recantations is being re-evaluated, driven in part by the growing number of cases in which DNA evidence has cleared people who had been locked behind bars for years. In several recent cases, DNA evidence has shown not only that people were innocent, but that witnesses who had recanted really were telling the truth. “Blanket suspicion of recantations is clearly not warranted,” said Rob Warden, executive director of the Center on Wrongful Convictions at the Northwestern University School of Law. “We know now that many of the traditional precepts that have been held by the courts are not warranted, and yet the courts continue to cling to them.”

Mr. Bermudez, 38, a husband and father of three, has no exculpatory DNA evidence in his corner. He is serving a sentence of 23 years to life and has watched appeal after appeal fail.
Yet he has never wavered from the account he first told investigators: He did not know the victim, Raymond Blount, he had no motive to shoot him and he was elsewhere with friends at the time of the murder in August 1991.

Two friends who were with Mr. Bermudez that night have given accounts that support his own. Their versions also have not wavered since the crime.

Mr. Bermudez’s supporters say he was a victim of the crime wave that beset New York in the early 1990s. They say that the police and prosecutors, overwhelmed in the face of a near record number of murders, seized on bad evidence, settled for easy answers, ignored looming contradictions and bullied impressionable young witnesses into testifying against Mr. Bermudez.

The Manhattan district attorney’s office rejects those assertions. It notes that the conviction of Mr. Bermudez has been upheld several times, most recently by a federal court in 2006. “A federal magistrate found after an extensive hearing,” said Barbara Thompson, a spokeswoman for the district attorney, Robert M. Morgenthau, “that the recantations of the eyewitnesses were incredible, that the conduct of the trial prosecutor with respect to the witnesses was proper and that the defendant’s due process rights had not been violated.”
The same magistrate judge, however, noted missteps in the case, among them allowing the people who identified Mr. Bermudez as the killer to view his mug shot as a group, a prejudicial blunder that in New York is nearly always grounds for ordering a retrial. The police also failed to look for the man whom the main witness had first implicated.

The police investigation was led by a detective who had been involved in an earlier homicide case in which a young man had been mistakenly identified as a killer only to have his conviction overturned. The detective was suspended from the force after being charged in a drunken-driving accident in 2004 in which two women were critically injured.

Mr. Bermudez’s situation has attracted a legion of supporters, including lawyers, law professors, a retired detective and a former federal judge. “The evidence powerfully shows that Bermudez is innocent,” said Bennett L. Gershman, a professor at Pace University Law School.

Mr. Bermudez’s hopes now rest on an appeal before the United States Court of Appeals for the Second Circuit. In an interview at Sing Sing prison, he recalled the faith he once had in the system. “I believed that it was as simple as telling the truth,” he said, “and the truth prevailing.” Now, he says, the truth doesn’t matter.

The Crime
Much of what happened to Raymond Blount early on Aug. 4, 1991, is not in dispute. On a dance floor at the Marc Ballroom on Union Square West, Mr. Blount punched another teenager, Efrain Lopez, apparently after he caught the youth looking at him the wrong way.
Angry and embarrassed, Mr. Lopez later testified, he approached a man in the club whom he knew from his neighborhood and told him what had happened. Later, at 3 a.m. outside the club, Mr. Lopez and his friends again encountered Mr. Blount and his friends. People broke bottles, ready to fight. The man from the neighborhood asked Mr. Lopez to point out the puncher. Mr. Lopez pointed at Mr. Blount. With that, the man jogged up and fired one .25-caliber bullet into Mr. Blount’s abdomen, severing an artery. He died at a hospital later that morning.

The killing was one of 10 in Greenwich Village that year.

“The Police Department was stretched,” said Mr. Christianson, who has written about the case. “The district attorney was stretched.”

Mr. Bermudez’s supporters say lapses in the investigation began within hours. Several of Mr. Blount’s friends were hauled into a windowless Police Department storage room. Photographs of young Latino men with arrest records were placed before them. Among the photographs was one of Mr. Bermudez, a graduate of St. Nicholas of Tolentine High School in the Bronx.
He had been arrested a year earlier on a marijuana possession charge and faced a separate charge that he had tried to sell 165 grams of cocaine to an undercover agent. But he had no history of violence and was living with his parents in an apartment in the Inwood section of Manhattan.

The photograph of Mr. Bermudez caught the eye of one witness, Jamie Velazquez. She asked, “Who’s this cutie?” or something to that effect, according to court records. The man looked, she said, like someone she had seen at the club. She and three other witnesses conferred and agreed he resembled the gunman.

A federal judge later found that the police had violated regulations that bar witnesses from collectively viewing a mug shot. Courts have ruled that such discussions allow witnesses to be improperly influenced by others.

But that morning, the police thought they had a lead on a suspect.

A Key Witness
The next evening, Aug. 5, detectives brought in the teenager who had been punched, Efrain Lopez, for questioning. Mr. Lopez, who had served time in prison for stealing a car, feared being charged in the shooting, he said later, because he had pointed out Mr. Blount for the gunman.

Over the next 27 hours, he was questioned about what had happened, eventually admitting he knew the gunman. The killer’s name is Lou, he said in a videotaped statement. Wool Lou was his street name, because he sold “wools,” slang for crack cocaine. Wool Lou, Mr. Lopez said, hung out near Mr. Lopez’s grandmother’s building on West 92nd Street, and in a schoolyard nearby. At trial, Mr. Lopez would testify that he had gone to Public School 84 with Wool Lou, and knew him to be Puerto Rican.

None of these descriptions matched Mr. Bermudez. He is of Dominican descent and lived on 204th Street, six miles from Mr. Lopez’s neighborhood. He had not attended P.S. 84. And he had never been called Wool Lou.

But presented with a photo array of suspects, Mr. Lopez pointed to Mr. Bermudez. As it turned out, there was a man known as Wool Lou who lived on West 91st Street, in Mr. Lopez’s neighborhood, and had a criminal record, though not for dealing drugs. His name, Luis Muñoz, and his street alias were in the Police Department’s files. Anyone looking at the files may have noticed how closely Mr. Muñoz’s facial features matched those of Mr. Bermudez.
But the police were satisfied they had their man. They never interviewed anyone from Mr. Lopez’s neighborhood, never spoke with any of his friends who knew the man named Wool Lou, or with anyone else from the 92nd Street schoolyard where Mr. Lopez said Wool Lou hung out. For his part, Mr. Muñoz said years later that he did not commit the crime.

The Arrest
On Aug. 6, detectives picked up Mr. Bermudez for questioning. From that moment, his supporters say, they should have wondered whether they had the right man.
Witnesses had said the gunman was light-skinned, thin, Hispanic, 5 feet 11 inches tall and 165 pounds, a description that the defense later argued matched that of the man listed in police files as Wool Lou. Mr. Bermudez was darker, and he stood a muscular 6-foot-1 and weighed 205 pounds.

Nonetheless, he was brought to the Sixth Precinct station for questioning by Detective Daniel Massanova. Mr. Bermudez told the detective and an assistant district attorney, James G. Rodriguez, that he and three of his buddies had spent the night of the shooting driving around Manhattan looking for girls. At 2 a.m. they ate at a restaurant a few blocks from the shooting, he acknowledged. But he said they had left the area by 2:30, a half-hour before the shooting, and were back in Inwood by 3 a.m. Mr. Bermudez was then placed in a police lineup in which he and several “fillers” were told to sit down instead of standing. His supporters say it had the effect of reducing the disparity between his height and that of the gunman described by witnesses.

One witness, Nkosi Boyce, later told a federal magistrate that detectives at the lineup had repeatedly asked him about Mr. Bermudez. “They said, ‘Is that him?’ ” Mr. Boyce testified. “I said, ‘It’s not him.’ They asked me again, ‘Is that him?’ I said, ‘That’s not him.’ ”
The prosecution did not ask Mr. Boyce to testify at trial.
Mr. Bermudez was represented by Barry Kenyon, a lawyer who hired a retired detective to help him prepare for trial. But they had little time. The district attorney’s office did not turn over its evidence until the last business day before the trial’s start in January 1992.

With only a weekend to study thousands of pages of witness statements, autopsy reports and grainy videotape of Mr. Lopez’s statement, Mr. Kenyon did little to challenge the credibility of the five witnesses. Four of the five, it turned out, had arrest or conviction records. One, Michael Thompson, had a gun possession charge that was dropped by the district attorney just before trial. That fact was never presented to the jury.

The key witness, Mr. Lopez, seemed the most troubled of all, a convicted car thief who said he routinely smoked marijuana. He was aware, he acknowledged later, that he might be charged if he did not cooperate with authorities.

At trial, Mr. Lopez’s role was crucial. On Jan. 28, 1992, he pointed to Mr. Bermudez and identified him as the killer. Four other witnesses did the same.

Still, the prosecutor, Mr. Rodriguez, lacked a clear motive to explain the killing, since Mr. Bermudez did not know anyone involved. Instead, he depicted Mr. Bermudez as a spoiled brat who dealt drugs, slept late, thought highly of himself and, thus, thought nothing of killing someone on a whim. And he suggested that Mr. Bermudez had suddenly begun wearing eyeglasses during the trial to confuse witnesses about his appearance.

It was enough, even without physical evidence. On Feb. 6, 1992, after an 11-day trial, a jury convicted Mr. Bermudez, then 22, of second-degree murder.


The Recantations
Years later, one witness, Mr. Thompson, says he still struggles to explain why he testified against Mr. Bermudez. “When you’re not educated or you just don’t know, when the cops tell you to do something, you do it,” said Mr. Thompson, 34, a married father who works at a private clinic for the mentally ill. “You figure they got the guy, he must have done it.”

Another witness, Okpa Iyesi, is now an elder at a church in Maryland. In his recantation, he said the prosecutor had lied to him, telling him that ballistics evidence already pointed to Mr. Bermudez as the killer, according to court records.

Ms. Velazquez, the witness, said she told Mr. Rodriguez on the eve of the trial that she did not think Mr. Bermudez was the killer, the court records show.

And Mr. Lopez said he knew all along that Mr. Bermudez was not Wool Lou. But he said the authorities threatened to charge him with murder if he didn’t cooperate. And he said Detective Massanova had made it obvious that he wanted him to pick out the Bermudez photograph. “He didn’t tell me, ‘Pick him,’ but he was like, pick him,” Mr. Lopez said in an interview. Detective Massanova, in an interview, denied coaxing Mr. Lopez. He and the prosecutor have denied any improprieties.

Approached by Mr. Bermudez’s first appeals lawyer in 1993, each witness submitted a sworn affidavit retracting the identification of him as Mr. Blount’s killer. But recantations have long been regarded with skepticism. Jury verdicts are meant to offer finality, legal experts say. Recantations undermine that certainty, if all it takes to reopen a case is to get witnesses to revise their testimony.

Some judges have ruled that recantations should be given more weight in cases where the original testimony constituted the only evidence. Few trials, though, have had five witnesses identify someone as a murderer, only to attest later that their testimony had been false. The very number upset Justice John A. K. Bradley, the Bermudez trial judge, who dismissed the first motion for a retrial without a hearing.“It strains credulity to believe that five unshaken trial witnesses would suddenly claim that they had testified falsely under oath,” he wrote in a 1995 decision. Had Mr. Bermudez presented fewer than five, he said, it would have been more believable.

In 1997, a state appeals court, citing “the inherent unreliability of recantations,” affirmed the conviction.

Appeals Pile Up
At first blush, the Bermudez case seems fertile ground for appeal, with a last-minute delivery of evidence, a conviction that relied on testimony from teenagers with legal problems of their own, and police work that the defense has characterized as slapdash.
But appeals courts tend not to look at mistakes in the aggregate. Rather, they consider whether any one error represents a violation of an appellant’s constitutional rights or a basic miscarriage of justice.

Appeals courts also generally limit their reviews to what happened on the record at trial and avoid delving into evidence that was not presented to a jury. It is a process that favors appellants whose lawyers aggressively raise objections and exploit gaps in evidence at trial, something Mr. Bermudez’s lawyer, Mr. Kenyon, acknowledges he did not do enough of — in part, he said, because the family lacked the money to fully investigate the case.
In 2002, though, a federal magistrate, Kevin Nathaniel Fox, finally agreed to hear testimony from the five recanting witnesses, as well as from the prosecutor, police detectives and Mr. Bermudez’s alibi witnesses.

He concluded that the prosecutor’s summation had included improper remarks, and that the police never should have allowed witnesses to discuss the mug shot as a group, a blunder he called “impermissibly suggestive and conducive to irreparable misidentification.”But he discounted the recantations as unbelievable. He rejected the account of one witness because, he said, her testimony reflected a more precise recollection of events than she had exhibited at trial. On Judge Fox’s recommendation, a judge in Federal District Court, Loretta A. Preska, turned down Mr. Bermudez’s bid.

Now Mr. Bermudez awaits the judgment on his latest, perhaps final, appeal. He has a clean disciplinary record and spends evenings reading legal briefs. His wife, whom he met through correspondence, and his children visit him every few weeks. In 15 years his story has not changed. “I sometimes have to manufacture hope,” he said, “because this is a very depressing, dangerous, evil place.”

Detective Massanova is now battling his own problems. He is on trial on charges related to the off-duty car accident in 2004 that injured the two women. In an interview, he declined to say whether he still thought Mr. Bermudez killed Mr. Blount.

“Bermudez is in jail because a number of people said he was the shooter,” he said. “I can’t use a lie detector test on everybody who comes in.”