February 25, 2007
Evidence in Inmate’s Hand, Justice in His Sights
By ELLEN BARRY
On a September afternoon in 2005, with a prison guard standing beside the operating table and another outside the door, a surgeon cut into the left hand of inmate No. 99A2254.
When he was questioned about his injury that night, Mr. Cardenas answered haltingly, arousing a detective’s suspicion. He had shot himself, he said, in his girlfriend’s living room, while handling a .380-caliber semiautomatic pistol that he had been showing to two visitors. He had no license for the gun.
The detective put Mr. Cardenas in a lineup, but when none of the robbery victims made a positive identification, she released him. A friend cleaned up the blood in his girlfriend’s apartment. The police never searched the site.
It took a few days for Mr. Cardenas to realize he might still be a suspect. He was due to serve a four-month sentence for credit-card fraud. Days before it was to begin, Mr. Cardenas fled to the Dominican Republic — a move that would damage his and his brother’s defense.
“I got scared,” he said recently. He had a seriously injured hand, he said, adding: “I was so skinny. I was watching these movies about what happens to people” in prison.
In his absence, the case against him took on a new life. One of the vendors called a detective days after the crime, saying he could now identify Mr. Cardenas as one of the robbers. The police visited Carlos Cardenas to ask about his brother, and began to suspect that Carlos had been involved. When the jewelry vendors returned to New York from California a year later, the police put Carlos in a lineup. One of the vendors chose someone else. Another chose Carlos.
At Carlos’s trial, one of the jewelry salesmen identified him as one of the robbers. There was no physical evidence linking Carlos to the crime. But the prosecutor noted dryly that Napoleon’s injury had occurred “coincidentally, I guess — just a major coincidence — with the same people, about the same time, about approximately the same area.”
In May 1996, Carlos Cardenas was found guilty of first-degree robbery, second-degree robbery and grand larceny. He was sentenced to 8 1/3 to 25 years in prison.
A year later, Napoleon Cardenas surrendered in Colombia to federal marshals and returned to the United States to serve his sentence for credit-card fraud. When he was released, he faced trial in the jewel theft. In court, the off-duty police officer and one of the jewelry salesmen identified Mr. Cardenas. As in his brother’s case, no physical evidence linked him to the crime, but the prosecutor noted the gunshot wound.
“You don’t have a fingerprint to say ‘I was there,’ but everything else tells you he was there, including the bullet that went through his hand,” the prosecutor told jurors. He compared the wound to dye packets rigged to explode on bank robbers.
Although Mr. Cardenas insisted that he could prove his innocence with ballistics evidence and alibi witnesses, his lawyer, Michael C. Harrison, disagreed, and focused on discrediting the government’s witnesses. In 1999, Napoleon Cardenas was convicted of first-degree robbery and second-degree assault, and sentenced to 15 to 30 years.
In 2002, with his legal remedies nearly exhausted, Mr. Cardenas wrote a stinging letter of introduction to Svetlana Kornfeind, a lawyer newly assigned to his case by the Legal Aid Society: he intended, he wrote, “to prove my claim in the courts as soon as I am given the opportunity. So, I want to ask you to be honest to yourself not to me but to yourself by telling me if you have the time or not to help me.”
Ms. Kornfeind was taken aback. But she scheduled a meeting with him. “We had to investigate the possibility that he was right,” she said.
Mr. Cardenas seemed to specialize in driving lawyers crazy. He wrote to his trial lawyer three times a week offering strategic advice. He placed calls from prison to the police in the 110th Precinct asking for documents; if they asked, he said he was a detective. He deliberately injured himself in prison to have X-rays taken of his hand, so he could be sure that the fragments of metal were still there, he said.
“I knew I had evidence in my hand,” he said. “People would laugh at me. I’d sit there and proclaim I was a political prisoner.”
Once in a while, he got a break. An old friend, Eddie Padilla, visited him as he was awaiting trial on the robbery charges. They were talking about friends from the neighborhood, Mr. Cardenas recalled, when Mr. Padilla brightened. Did Napoleon know he still had part of that bullet?
Mr. Padilla had helped clean up blood in the apartment where Mr. Cardenas, still in shock, had pulled the bullet jacket out of his wound. Mr. Padilla still had the jacket. At parties, he would take it out to show friends.
Ms. Kornfeind began to construct an argument to overturn the conviction, citing the newly discovered evidence and contending that Mr. Harrison, the trial attorney, had failed to investigate Mr. Cardenas’s alibi. Mr. Harrison did not respond to a request for comment for this article.
Ms. Kornfeind had the bullet jacket analyzed, and contended that the results bolstered Mr. Cardenas’s story: while the Police Department then issued full-metal, copper-jacketed ammunition, this jacket was aluminum, which peeled back on contact. Full-metal ammunition would have passed through the hand intact. The tissue that dotted the jacket was his, a DNA test showed.
The next challenge was to see whether the fragments in Mr. Cardenas’s hand matched the bullet jacket.
Using a tourniquet, doctors at Bellevue Hospital Center cut off the flow of blood to the hand; a “bloodless field” allows surgeons to more easily locate foreign bodies, nerves and tiny veins, said Dr. David W. Friedman, who supervised the operation. It turned out to be an easy task, since the shards were lodged above the bone, like splinters. They were removed through a tiny incision, wrapped in cotton and put in an evidence tube. The wound required only two stitches.
Ms. Kornfeind remembers “just sailing” across town to a crime laboratory, where the fragments would be analyzed. Traces of aluminum would suggest strongly that Mr. Cardenas had been shot with the hollow-point bullet; copper would back up prosecutors’ claim that he had been shot by a police service weapon.
In the end, the fragments were neither. They were shards of lead. Mr. Cardenas’s lawyers contended that they still supported his innocence, since hollow-point bullets, unlike full-metal bullets, break apart on contact, said Thomas A. Kubic, an instructor at the John Jay College of Criminal Justice, who consulted on the case for the Legal Aid Society.
From the point of view of the district attorney, the ballistics evidence was inconclusive. At a hearing in 2005, a prosecutor said that the gunshot wound had not been at the center of the case against Mr. Cardenas, who was implicated by four witness identifications, “a series of lies he told hospital personnel on the night of the crime as to how he obtained the wound, and his flight from the country immediately after the crime.” But Mr. Cardenas’s eagerness to undergo surgery had made an impression.
The case wore on for months, while the district attorney’s investigator tracked down informants. One of them convinced the investigator that others were responsible for the jewel theft. In January of this year, both brothers passed polygraph tests. That was the final hurdle.
At the hearing where the brothers were exonerated, their father, Napoleon Cardenas Sr., a 74-year-old carpenter originally from Colombia, thanked Ms. Kornfeind and Denise Fabiano, who represented Carlos.
“These are two beautiful persons,” he said in an interview.
Steven Banks, attorney in chief for the Legal Aid Society, said the case showed how errors made early in an investigation get “compounded time and time again.”
“It never ceases to amaze me how random it is that people get caught up in the judicial system and the related bureaucracy and can be swallowed up,” Mr. Banks said.
On the day of the hearing, Ms. Kornfeind had been expecting “an explosion of something at the end,” or at least the sight of her client with his handcuffs off, running into his mother’s arms. But Napoleon Cardenas, now 36, would not be released for two days, while immigration officials cleared a deportation order. His brother Carlos, 35, like Napoleon a legal permanent resident, remains threatened with deportation, even though his conviction has been overturned.
Ms. Kornfeind woke up early the day after the hearing, planning to work on Napoleon Cardenas’s immigration case. She pulled up the Web site for the Eastern Correctional Facility in Ulster County, and typed the familiar identification number, 99A2254. A message flashed: No such person exists.
She typed in his name, and got the same message: No such person exists.
That’s when she realized what had happened. Her client was free.