New York Times

November 16, 2006
In Murder Case, New Evidence but Same Cell
By JIM DWYER

More than two years ago, investigators from the Queens district attorney’s office sat in Jaime Acevedo’s living room and listened to him describe a night in 1992 — an instant, really — that has yet to end.

Mr. Acevedo, seen by the authorities as an ordinary, law-abiding, working man with no reason to lie, said that he knew the inside details on a little-noticed murder in Woodside, one that seemed to have been solved and settled long ago.

Investigators had never spoken with Mr. Acevedo or realized that he knew anything about the case. But in fact, Mr. Acevedo told them, he had unwittingly given the killer a ride to and from the murder scene. The man he named had never been connected or charged with the crime.

There was more.

Mr. Acevedo said the one person accused and convicted of the murder had nothing to do with it. That man, Joshua Rivera, sentenced to 37 years, had not even been present, according to Mr. Acevedo.

The story did not end there. The district attorney’s investigators found another man who told essentially the same story as Mr. Acevedo: he, too, said that he had been in the car with the killer and that Mr. Rivera was not involved.

Two years later, Mr. Rivera, 36, is still serving time for the murder, and the man named as the real killer by the two new witnesses has not been charged.

In an era when DNA tests seem to have made unraveling convictions as easy as untying a shoe, Mr. Rivera’s case is a reminder that the criminal justice system, by law and custom, generally resists the reopening of jury verdicts, at times even in the face of new evidence that seems strong.

It is also a vivid example of the discretion that prosecutors can exercise in not only bringing cases but also reviewing their outcomes.

After his appeals were exhausted, Mr. Rivera wrote to prosecutors to insist on his innocence. Starting in 2003, prosecutors in an unofficial unit that examined claims of “actual innocence” located the new witnesses, according to court papers.

After those prosecutors raised questions about whether the right man was in prison, the case was turned over to more senior prosecutors. They resisted Mr. Rivera’s first request to overturn the verdict, saying that he and his lawyer could have found witnesses like Mr. Acevedo before his trial in 1995.

Now, however, as Mr. Rivera’s advocates continue to press his cause, the district attorney’s office has agreed to have the new evidence presented to a judge, who will consider whether it casts doubt on the verdict, a senior prosecutor in the Queens office said.

In particular, the judge will be asked to weigh whether the new evidence is strong enough to contradict the original testimony of two eyewitnesses who said that they saw Mr. Rivera do the killing. That senior prosecutor said he could not speak for attribution because the case is pending in court.

At its beginnings, the case seemed numbingly familiar, and simple.

On the morning of Sept. 19, 1992, a man named Leonard Aquino stood with another man in front of a building at 47-25 48th Street in Woodside. He was approached by a couple of men who spoke briefly, then opened fire. Mr. Aquino was killed; another man, Paul Peralta, was shot, but survived.

Mr. Rivera, whose nickname was Shorty 140, was known to many people in the building and had been in trouble before, including a conviction for gun possession.

His picture was picked out of an array of photos by Mr. Peralta and another witness, and in February 1993, five months after the shooting, Mr. Rivera was charged with killing Mr. Aquino and shooting Mr. Peralta. He was convicted in December 1995.

His efforts to overturn the case were supported by a friend who grew up with Mr. Rivera in Astoria, Sherman Jackson, who had competed with him in break dancing competitions. After a stint in the Marine Corps, Mr. Jackson became a prosecutor in the Queens district attorney’s office.

Troubled by his old friend’s assertion that he had been wrongly convicted, Mr. Jackson raised the question of Mr. Rivera’s innocence in 2003 with his boss, Gregory Lasak, who was a homicide prosecutor and had also been involved in the exoneration of 20 innocent people.

Based on a prison letter from Mr. Rivera, Mr. Lasak had already begun an investigation into Mr. Rivera’s case, according to Mr. Jackson. As part of that review, investigators tracked down Mr. Acevedo and the second man, Kenny Chung, who said he was in the car with the killer that night in 1992.

Meanwhile, Mr. Jackson, who had gone into private practice, spoke with Mr. Peralta and learned that he was wavering on his identification of Mr. Rivera as the gunman. He also spoke with a neighbor who had given first aid to Mr. Aquino and Mr. Peralta. The neighbor said that Mr. Peralta had told her that it had all happened too quickly for him to recognize his attackers.

Mr. Lasak began serving as a State Supreme Court justice in 2004. Mr. Rivera is represented by Chris Renfroe, a private defense lawyer in Queens.

Mr. Renfroe said that he believed that when District Attorney Richard A. Brown focused on the details of the case, he would quickly move to resolve it in Mr. Rivera’s favor.

Mr. Brown declined to comment on the case. But in the past, his staff had said that the case was not black and white. For one thing, Mr. Chung had consented to be interviewed only in the presence of a known gang member and had refused to identify the fourth person in the car.

Mr. Jackson, the former prosecutor and friend of Mr. Rivera’s, said: “The time for delaying has ended. The prosecution could shine from this because justice goes both ways, putting people in jail and getting them out.”

This week, Mr. Acevedo — who had no role in the trials and never spoke with the authorities until late 2004 — sat in a restaurant in Astoria and recalled the night of the murder.

He was 22 years old and had been working steadily in supermarkets and delivering advertising circulars since he was 14, which allowed him to buy the car that he drove into Manhattan that evening with three other men. One was Mr. Chung, who has also spoken with prosecutors about the events; the other two were acquaintances whom he knew only as Aid and Everlast.

After going to clubs, they returned to Queens near dawn. Mr. Acevedo said that his passengers directed him to pull over at 48th Street in Woodside.

The men he knew as Aid and Everlast got out of the car, and Mr. Acevedo said he stepped out a moment later. He estimated he was about five or seven car lengths away when they approached the door of the building. He heard shots, he said.

“I had no idea what was going to happen,” Mr. Acevedo said. “I saw flashes off the wall of the building.” The two men came racing toward him, and one of them dropped a gun in the curb and picked it up. They jumped in the car and fled the scene, he said.

Mr. Acevedo said he had no choice but to drive them away. “They had a gun and just shot someone,” he said.
In the car, he said, they talked about how they had made the approach.

“They said they asked those guys for weed, that was the story, then Aim shot,” Mr. Acevedo said. He dropped them at their homes in Elmhurst.

“Then I just drove around for two hours,” he said. “My head was so full. I didn’t belong with them. I was just being with people I didn’t belong with. I never was a thug.”

He currently holds a full-time, job, though he asked that it not be described. He has not had a girlfriend since the killing.

“I never got married, I never had kids, and these were my dreams,” he said. “At holidays, Thanksgiving with my sisters, sitting there and everyone is having a good time, then you stop. This is in the back of your head.

“When you wake up in the morning, instantly, this goes through my head,” Mr. Acevedo said. “To this day. I don’t even have to fully wake up. Instantly. Every day.”


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