BLACK MENAGERIE: WITNESSES' TALES IN CONFLICT, LEADING TO DEBATED VERDICT IN SHOOTING CASE

On Feb. 13 -- less than one month after Circuit Court Judge Kenneth A. Marra was nominated by President Bush to serve as a U.S. District Judge for the Southern District of Florida -- the judge signed an order denying Vishnu Persad's motion for a new trial.

Judge Marra concluded that the verdict handed down by the all-white jury against a non-white, foreign-born Trinidadian on Oct. 31, 2001 -- six weeks after the Sept. 11 terrorist attack -- "was not contrary to law or to the weight of the evidence."

Were the judge and jury caught up in the anti-terrorist frenzy that was consuming Palm Beach County and the rest of the country during Persad's trial?

Persad was convicted, despite overwhelming evidence, of aggravated battery with a firearm causing serious bodily injury to Mary Beth Dziadik. He asked Judge Marra to take another look at the evidence, which included the unchallenged testimony of three alibi witnesses: Nadine Vidor, Sam Pierre, and Ernesto Guevara, all of them also non-white.

In his motion for a new trial, Persad's attorney pointed out that "the three witnesses stated unequivocally, without hesitation and without any doubt that on Thursday, March 2, 2000, the defendant was with them at the Florida Atlantic University library in Boca Raton, Florida. Further, these witnesses testified that the defendant was with them on that night from 7 p.m. until 11 p.m. and that they were certain because the study group met that Thursday, March 2, 2000 for an upcoming Organic Chemistry mid-term examination."

In addition to the alibi testimony, which his attorney said demonstrated that he could not possibly have been anywhere near the scene of the shooting, Persad's lawyer also pointed out that the so-called eyewitness testimony of the victim's husband, J.D., should have been thrown out.

He says that testimony was fatally tainted by their private investigator, who poisoned the police photo lineup by showing J.D. a picture of Persad, taken when he was 17 or 18 years old, and telling J.D. that it was a picture of the shooter.

Gene Pullen, the witness who by all accounts was in the best position on the night of March 2, 2000 to identify the person who shot Mary Beth, was never able to pick Persad out of the photo lineup. In fact, he picked someone else, not Persad.

Pullen, a buddy of fellow biker "Bitchin' Bob" Marciante, himself has an incredibly ironic history. He admits to having been arrested in a strikingly similar incident in the small town of Taos, N.M., in the late 1980s or early 1990s.

He claimed in a sworn deposition given during the investigation of this case that "a gentleman passed me on the shoulder of the road, threw something at my car. As I proceeded to follow him he stopped in the middle of the road, stopped his car in the middle of the road and ran towards my car. I pulled a pistol out of the glove compartment, pointed it at him and asked him what his business was with me."

It was a .32 caliber Smith and Wesson revolver, said Pullen, who was charged in that case with aggravated assault with a deadly weapon. He said he got 18 months probation for that. Pullen also admits that he had been drinking on the night of March 2, 2000. Asked how much he had to drink at the Winner's Circle biker bar the night of the incident, he said, "I wouldn't have a clue."

When asked what he noticed about the car that he says the shot came from that hit Mary Beth, nearly killing her, he said in his deposition, "It seemed to be basically ... nothing stuck out. It didn't seem to have real special wheels, or nothing stuck out about the vehicle as being impressive in any way, shape or form."

Several witnesses for Persad swore in their depositions that his car was very noticeable, because it had writing all over it. One witness, Eddie Prince, told the prosecutor and Persad's then-defense attorney that Persad's car had "like Chinese writing almost everywhere, on the hood, trunk and the windows."

Another witness, Raphael Defreitas, said essentially the same thing, that the car had "China-looking writing on it. I even joke about it on him, I said I think he is going Chinese now."

Asked where the writing was, Defreitas said, "I think the windows and the side and all over the car."

Witness Glen Malcolm offered similar testimony when he was asked for a description of the car and if there was any writing on it.

Malcolm responded, "Yeah. He always got this Trinidad writing on it."

Persad described his car as being "unique." He said the car is "adorned with huge Chinese-style writing all over and has alloy sports rims."

He said that, on the hood of the car from one end to the other, is the word TRINISPORT. "On the windshield across the top is IRON TRIANGLE. On the back window there is a huge lion and on the side panels are Chinese symbols that mean courage and virtue."

None of the prosecution witnesses recalled seeing a car that fits the description of Persad's car, except that it was "tan or beige."

None of them saw the writing on the car. But the arresting officer who went to Persad's home to execute the warrant on December 7, 2000, testified that he readily noticed the decals and symbols on the car as well as the white symbol on the back window of the car without having to shine his flashlight on it.

Complicating matters even more for the prosecution was a statement from Sheriff's Department Detective Ada Tyz, who reported on May 3, 2000 that she and Detective Flint went to the jail and met with inmate Douglas Gross, who informed them that a cellmate of his, Steven Lee, was a member of a gang known as the Latin Kings, that Lee had "a lot of firearms" and that he was the one who shot "the lady on the motorcycle."

Approximately two weeks later, on May 18, 2000, Detective Tyz reported that she received a call from the victim, Mary Beth, "who saw a picture of a Gabriel Celestino who was wanted in Palm Beach County for Aggravated Battery on a woman by running her over. His picture was in the most-wanted section of the local newspaper. She said that is the person who shot her."

Persad's appeals attorney, Michael Gelety, in the motion for a new trial, which Judge Marra turned down, argued that "the case before this court has a remarkable number of independent areas which would all, on their own, require the granting of a new trial after this court's review of the weight of the evidence involved."

Gelety pointed to the lack of credible evidence to support the identification of the defendant as the perpetrator; the lack of credible physical or corroborating evidence, such as fingerprints; the lack of a weapon; and physical and testimonial evidence pointing to a subject other than the defendant -- such as the wrong license tag number, the description of the car, the photo, and identification of others.

In addition, said Gelety, there was no attempt by the state to rebut or contradict the defendant's viable, reasonable and overwhelming alibi and a lack of any credible evidence to explain contradictory evidence, impeached evidence, and illogical and unreasonable evidence and testimony.

More fundamentally, say some, was the lack of any credible evidence to overcome or explain the factual taints and corruptions of the trial testimony.

Gelety said these all warrant the granting of a new trial, due to the fact that the "weight and credibility of the evidence would not support a verdict of guilty."

He stated, "When the court reviews the extremely suspect nature of the incredible and non-credible evidence presented in this case, the conclusion is inescapable that the manifest weight of the evidence did not support the verdict."

For whatever reasons, known only to himself, according to one observer, "Judge Marra must have had stars in his eyes that blinded him to the truth, and now he wants to sit on the Federal District Court? Lord help us!"

Persad is facing a 43-year sentence.