NY Law Journal

October 10, 2008

Faulty ID Procedures At Heart of Bid to Overturn Murder Conviction

By Thomas Adcock
New York Law Journal

The fate of Fernando Bermudez, ever hopeful of leaving the cell he has occupied at Sing Sing since his 1992 conviction in the fatal shooting of a teen following a dispute at the Marc Ballroom on Union Square, now rests with a solo practitioner who operates from her suburban home office, backed up by a large-firm lawyer who helped get the conviction of Martin Tankleff overturned last December.

The latest move in the matter of Mr. Bermudez, a cause célèbre for legal scholars and the defense bar who has maintained his innocence through years of state and federal appeals, was last Friday's 440 motion in Manhattan Supreme Court to reverse his conviction for second-degree homicide.

Pro bono attorneys for Mr. Bermudez - at the moment including Barry J. Pollack, a partner in the Washington, D.C., office of Kelley Drye & Warren, and solo Lesley C. Risinger of Kearny, N.J. - base their motion on faulty police identification procedures as well as the first-time claim in any courtroom that their client is "actually, factually innocent . . . substantiated by abundant corroborative information, some of which is quite new."

"I hope this will be the last round," said Mr. Pollack. "I hope the district attorney's office will look at this case once again, freshly and objectively, and agree with us."

Key to the 84-page brief is a March 2004 ruling by Southern District Magistrate Judge Kevin Nathaniel Fox in a habeas petition [Bermudez v. Portuondo, 00 Civ 4795].

Although he denied habeas, ruling that eyewitnesses to the shooting who recanted their trial testimony were "not credible" and "not reliable," Magistrate Judge Fox found that detectives allowed four of them to view mugshots together, during which time they accused Mr. Bermudez by consensus.

Such "flawed" and "suggestive" identification procedures, according to the brief, were not revealed at trial.

Mr. Bermudez was convicted on the basis of that eyewitness testimony, along with testimony by a fifth eyewitness. Six other witnesses who separately viewed the same series of mugshots failed to pick out Mr. Bermudez, according to the brief.

At trial, prosecutors presented no forensic evidence, no fingerprints, no motive, no blood or DNA evidence.

In his defense, trial counsel for Mr. Bermudez offered alibi witnesses who confirmed he was not present at Union Square during the shooting, that he had no knowledge of the preceding scuffle at the Marc Ballroom and that he was not acquainted with the victim or any other party to the dispute.

All five prosecution eyewitnesses recanted their trial testimony and, in appellate proceedings that followed through the years, named another man as the real killer. According to court papers, police have not investigated the subsequent allegation.

Alicia Maxey Greene, a spokeswoman for Manhattan District Attorney Robert M. Morgenthau, said the new brief had been received but that the office had not yet reviewed it.

On the matter of improper police interrogation procedure found by Magistrate Judge Fox, said Ms. Risinger, "Federal law didn't provide the relief we're looking for, but state law does."

Co-counsel to Ms. Risinger and Mr. Pollack in the motion are Alan R. Kaufman, a New York partner at Kelley Drye, and Ms. Risinger's husband, Professor D. Michael Risinger of Seton Hall University School of Law.

At the time Magistrate Judge Fox denied habeas, Barbara Thompson, a former spokeswoman for Mr. Morgenthau, noted in a written statement, "A federal magistrate found after an extensive hearing 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."

Nonetheless, Professor William E. Hellerstein of Brooklyn Law School, one of several litigators from law schools to aid Mr. Bermudez during unsuccessful federal appeals, said of his own loss, "It's one of the biggest disappointments in my professional career."

Mr. Hellerstein, former attorney-in-charge of the Legal Aid Society's Criminal Appeals Bureau, said further of Mr. Bermudez, "Of all the people I've represented, he's as innocent as I've ever encountered. There's hardly a day that goes by that I don't think of him."

Professor Risinger offered a similar view.

"The fact that [Mr. Bermudez] had nothing to do with this case is established by information to an overwhelming probability," he said. "This is a shameful failure of the system. He's been in prison for 17 years for something he didn't do."

Last January, Mr. Pollack and co-counsel in the case of Mr. Tankleff saw his client freed from 17 years in prison after a long trial in Suffolk County in which he was convicted of the 1988 murders of his parents.

On Dec. 21, 2007, that conviction was overturned in a unanimous decision by a panel of the Appellate Division, First Department. Pointing to a body of new evidence, the court ruled that had jurors at Mr. Tankleff's trial known about the evidence, they would probably have acquitted him.

The case of Mr. Bermudez was one of a "cluster" of murders in lower Manhattan nearly two decades ago during a period of unusually high murder rates and drug crime, said Ms. Risinger.

Two murder cases of the period, both heavily reliant on eyewitnesses for the prosecution, resulted in vacaturs of conviction after many years of pro bono appellate work on behalf of Luis Kevin Rojas, wrongly accused in the 1990 murder of a teen in Greenwich Village, and co-defendants David Lemus and Olmedo Hidalgo, wrongfully accused of a fatal shooting at the Palladium nightclub, also in 1990.

"These murders occurred at a time of peak homicides in New York City," said Scott Christianson, an Albany-based writer and criminal justice professor who has long supported Mr. Bermudez and his various defense lawyers. "There was tremendous pressure on police and prosecutors [for convictions], especially when the crime involved social clubs."

A former director of the Death Penalty Documentation Project at the New York State Defenders Association, Mr. Christianson selected Mr. Bermudez as the cover story for his book, "Innocent: Inside Wrongful Conviction Cases," in which he said questionable police procedure and faulty eyewitness testimony is "remarkably similar" from case to case.

With reference to the new motion in Mr. Bermudez's case, said Mr. Christianson, "Finally, some of these legal questions are going to be contested. But when all is said and done, it's still a horrible tragedy that this man is in prison today."

Ms. Risinger was involved in the Rojas case, as an investigative assistant to her mother, solo New Jersey attorney Priscilla Read Chenoweth, who successfully represented Mr. Rojas during a subsequent trial in 1998 after his original conviction was overturned.

In her late 40s at the time, Ms. Risinger was so inspired by her mother's criminal defense work that she enrolled at Seton Hall Law, her husband's school, eventually graduating magna cum laude.

Like mother, like daughter, said Mr. Risinger of his wife, Lesley, who has made criminal defense of the factual and actual innocent a specialty practice.

"The system is unfortunately set up in a way that once there is a conviction it's very hard to undo it, even in meritorious cases," said Mr. Pollack. "It takes years and years of litigation before you ultimately get to a point where a court is confronted with such unassailable evidence they have no choice but to reverse."

As the result of success in the Tankleff case, Mr. Pollack is confronted with what he described as "no shortage of inmates around the country who would like me to represent them for free." At the request of Mr. and Ms. Risinger, who needed the hefty resources of a large firm in order to properly represent Mr. Bermudez, Messrs. Pollack and Kaufman signed onto the case.

"How can any prosecutor, reading the information in this brief, think [Mr. Bermudez] ought to be spending one more day in jail?" asked Mr. Kaufman, who was until 2002 chief of the Criminal Division of the Southern District U.S. Attorney's Office.

Any "reasonable prosecutor," he added, "would have to be persuaded that there's been a manifest injustice in this case. I don't think that's too strong a statement. It's every prosecutor's nightmare to convict an innocent person."

Innocent Imprisoned
Truth in Justice