Man Jailed for ’91 Murder Is Cleared by Judge

November 13, 2009
Man Jailed for ’91 Murder Is Cleared by Judge
By JOHN ELIGON

A Manhattan judge ruled on Thursday that a man who had spent 18 years in prison for murder was innocent of the crime, sending a cathartic jolt through a courtroom packed with his friends and family members.

The prisoner, Fernando Bermudez, was not immediately released, however, as his lawyers must still sort out with federal authorities the status of a sentence on a drug distribution charge that he pleaded guilty to after he was arrested in the murder case. The time he served in state prison does not count toward his federal sentence of 27 months, but Barry J. Pollack, one of Mr. Bermudez’s lawyers, said he would appeal for his client’s release.

Mr. Bermudez, 40, broke down as Justice John Cataldo of State Supreme Court overturned his conviction. He whispered “thank you” to his lawyers, the judge and his supporters, who sobbed and applauded. He turned toward the gallery and whispered, “I love you,” then hugged his lawyers before being taken away in handcuffs.

“I hope for you a much better future,” Justice Cataldo told Mr. Bermudez.

Prosecutors continue to maintain that Mr. Bermudez is in fact guilty of the murder, in which Raymond Blount, 16, was gunned down on the street after a fight inside a Greenwich Village club in 1991. Mark Dwyer, the chief assistant Manhattan district attorney, said his office was deciding whether to appeal.

In his ruling, Justice Cataldo did more than overturn the conviction, dismissing the charges altogether. Short of a reversal by an appellate court, prosecutors cannot retry Mr. Bermudez for the crime, Mr. Pollack said.

James Estrin/The New York Times

Fernando Bermudez at Sing-Sing in 2007

A year after Mr. Bermudez’s 1992 conviction, five witnesses who had identified him as the killer at trial recanted, saying in sworn affidavits that, they were coerced or manipulated by the police and prosecutors to identify Mr. Bermudez as the killer. Several of those witnesses reiterated their recantations in September at a hearing before Justice Cataldo.

This was the 11th attempt to overturn his conviction by Mr. Bermudez, whose case had received a lengthy examination by The New York Times in 2007.

Lawyers and advocates for the wrongfully convicted said the significance of Thursday’s ruling was twofold. They said it was one of the rare instances in New York in which a judge had ruled that a defendant was innocent without the presence of exonerating DNA evidence. They also said that by ruling that Mr. Bermudez was innocent, Justice Cataldo had bolstered the prisoner’s chance of collecting compensation from the state.

“This case, like the overwhelming number of wrongful convictions, does not have the advantage of DNA,” said Scott Christianson, the author of “Innocent: Inside Wrongful Conviction Cases.” “So for this judge to assess all the evidence in the case and come to this decision is quite unusual.”

In his 79-page decision, Justice Cataldo wrote that Mr. Bermudez’s rights were violated because the police had allowed prosecution witnesses to view Mr. Bermudez’s mug shot as a group and to discuss his resemblance to the killer. Justice Cataldo also found that the prosecution should have known before sentencing that one of its cooperating witnesses, Efraim Lopez — a teenager whom Mr. Blount had punched at the club — had given false testimony.

“I find no credible evidence connects Fernando Bermudez to the homicide of Mr. Blount,” Justice Cataldo wrote. “All of the people’s trial evidence has been discredited: the false testimony of Efraim Lopez and the recanted identifications of strangers. I find, by clear and convincing evidence, that Fernando Bermudez has demonstrated he is innocent of this crime.”

But prosecutors have contended that witnesses may have been pressured into changing their testimony.

“We don’t think the defense has shown anything wrong with the verdict,” Mr. Dwyer said.

Outside the courthouse, Mr. Bermudez’s supporters beamed and waved shirts that read “Fernando Bermudez Is Innocent” for television cameras.

When Justice Cataldo declared Mr. Bermudez to be innocent, emotion flooded the tense courtroom.

“I couldn’t even breathe,” Christine Bermudez, Mr. Bermudez’s sister, said. “My heart just stopped.”

But Mr. Bermudez’s father, Frank, who lives in Washington Heights, was so nervous he could not stick around to watch. He left before the start of the proceeding and returned to find his daughter weeping in the courthouse lobby. She told him that his son had been exonerated. “I was crying, too,” Frank Bermudez said.

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