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Freeing the Wrongly Convicted

Thomas Adcock
New York Law Journal
02-12-2003


How sweet it was that day two weeks ago when two young lawyers and the man whose freedom they restored were finally able to do something as simple -- and anticlimactic -- as sit down together over coffee at a deli just around the corner from the Bronx Supreme Court.

The coffee break was a long time coming for litigation associates MariaSole L. Kaine, 28, and Edmund Polubinski III, 32, of Davis, Polk & Wardwell. But given the complexities in a case of attempted murder -- and the rarity of winning an appeal based on ineffective trial counsel -- the associates' ultimate victory was especially purposeful.

"He's a decent guy. A year and half ago, right from the start of all this, it was clear to me that he was innocent," said Polubinski of his client, Diomedes Polonia, 33, a father of two. Polubinski and Kaine were pro bono counsel on the case, overseen by the Criminal Appeal Bureau of the Legal Aid Society of New York. "To have the successes we've had in this case, and being able to change lives as we have," added Polubinski, a graduate of the University of Virginia Law School. "Well -- this is the reason we go to law school."

"I was only eight months out of school when I took on this case," said Kaine, a graduate of the University of California, Berkeley's Boalt Hall School of Law. "We were actually lawyer-slash-investigators on this one.

"The really sad part of it all is that some people think that just because you pay a [criminal] lawyer you're going to get a good lawyer," she added. "Look at Legal Aid -- they've got great lawyers."

Kaine said Polonia made exactly that mistake in declining a Legal Aid defense and instead paying half a requested fee of $5,000 to Queens trial lawyer John J. Garzon. According to Bronx Supreme Court Justice Peter J. Benitez, Garzon "made absolutely no effort" to interview a credible alibi witness. Garzon did not return a telephone call requesting comment.

Just before Christmas of last year, Justice Benitez vacated Polonia's 1998 jury conviction by granting a defense motion by Polubinski and Kaine, filed under CPL 440.10, claiming Garzon's ineffectual trial work. That action was capped by a Jan. 30 motion to dismiss indictment, filed by the Bronx district attorney's office before Justice Lawrence H. Bernstein.

CONFESSION FROM BROTHER

Polonia will not be tried again for shooting Thomas Hosford three times in the course of a robbery -- a crime to which his own brother Pedro, presumed by authorities to be at large somewhere in Puerto Rico, has confessed. In dealing with such matters as criminal flight and felony confession, not to mention confusion over a shooter casually known to the victim as "Freddy," Kaine and Polubinski quickly found themselves in an uptown mystery far removed from ordinary downtown matters such as accountant liability and deceptive marketing litigation.

"An appeals case where we'll need younger [pro bono] associates usually involves writing briefs, and getting the associates some valuable courtroom experience, but this went well beyond that," said Kevin Casey, 44, a supervisor in the Criminal Appeal Bureau at Legal Aid.

The Legal Aid Society has an ongoing relationship with Davis Polk, and the firm circulates a periodic e-mail list of pro bono requests, which included the Polonia appeal.

"This became a major undertaking on their part," Casey said of Kaine and Polubinski. "They went to the prisons [Rikers Island, the city jail, and the maximum security Eastern Correctional Facility in upstate Napanoch, N.Y.], and to various locations in the Bronx, and they hunted people down."

HUNTING FOR WITNESSES

On one occasion, the hunt was deceptively easy. In September 2001, during the first round of interviewing potential witnesses, yet another of Polonia's brothers -- Felix Polonia -- arrived at the Davis Polk offices on Lexington Avenue. Felix Polonia, according to Polubinski, was one of several persons prepared to testify against Pedro Polonia, whom Kaine described as "clearly the black sheep of the family." Not only was Felix there to help his imprisoned brother Diomedes, he brought along Pedro -- who goes by the nickname Freddy.

Diomedes and Pedro "Freddy" Polonia, said Polubinski, bear a strong resemblance to one another and are only a few years apart in age. When the shooting victim, Hosford, identified Freddy Polonia as his assailant, Bronx police went searching. In their search, police visited Diomedes Polonia at his Bronx apartment and believed they had found "Freddy." The victim, sedated in a hospital for treatment of his bullet wounds, was shown fresh mug shots of Diomedes Polonia, whom he identified as "Freddy." Later, the victim further identified the wrong brother at a precinct station house line-up.

Following the conference at Davis Polk, said Polubinski, Pedro "Freddy" Polonia signed a hand-written confession to the crime.

"We had the impression that he [Pedro] was genuinely interested in working with us to get Diomedes out of jail," said Polubinski, who turned over all such exculpatory evidence to the Bronx district attorney's office. "But then he disappeared."

Early last year, Kaine and Polubinski learned in the course of their continuing interviews -- from Pedro Polonia's girlfriend in New York, no less -- that the confessed assailant had fled to Puerto Rico. Then in May, the lawyers learned "through the grapevine," as Kaine put it, that Pedro Polonia had returned to the mainland -- this time to Lawrence, Mass., where he had been arrested for drug dealing and was making regular court appearances in that case.

"To their credit, a team of assistant DAs got in a car and drove up to Massachusetts," said Polubinski. "But he ["Freddy" Polonia] invoked his right to counsel and silence. Then, within days or possibly hours after, we heard that Freddy was on a plane out of Boston."

Meanwhile, the Davis Polk team had a passel of witnesses ready to testify last December before Justice Benitez that Diomedes Polonia -- a hard-working employee of a Bronx tire repair shop -- was in no way besides physical resemblance his brother "Freddy." Further, there would be testimony from Diomedes Polonia's girlfriend at the time, Kara Uriarte, that the two of them were in bed fast asleep during the 5 a.m. robbery at Hosford's home.

According to court papers, Uriarte reported the same to the Legal Aid lawyer who handled Diomedes Polonia's arraignment. In addition, according to court papers, Uriarte eventually called Garzon's Queens office on a number of occasions, leaving her home telephone and beeper numbers. She even appeared at Polonia's trial, waving to the defendant as he testified. Garzon never filed notice of alibi, and declined an opportunity for adjournment during trial to interview her and file late notice of alibi.

During the December hearing, Uriarte and all the other witnesses would assemble at the courthouse deli to take their turns testifying. Each day, they sat at the same square table in a window alcove that looks out on the Bronx Supreme Court. Because neither Polubinski nor Kaine speaks Spanish, they were aided in communicating with the witnesses and their client by Ruth Dominguez and Luis Alarco, paralegals at Davis Polk.

Kaine said dealing with the witnesses who rallied to Polonia's defense added an extra dimension of pressure for her and Polubinski.

"We both really felt so involved in everything, and we felt so strongly that Diomedes was innocent," she said. "Even so, you have to be realistic. You know what the truth is, and you know these [witnesses] are telling the truth. But it's very different when you talk to them, and when they're on the stand.

"The fact that we were spending so much time with them made them naturally think that Diomedes would get out," Kaine added, noting that she and Polubinski logged a total of 1,300 hours in the case. "You have to keep their hopes realistic."

But victory finally came -- late last week with the pro forma appearance before Justice Bernstein. A few days earlier, Polubinski and Kaine were given the heads up: no further trial would be sought. Accordingly, Polonia was put on a bus from Rikers Island at 5 a.m. on Jan. 28, and dropped at the usual place: a doughnut shop near Queens Plaza. He had been provided with a MetroCard good for two rides.

From arrest and incarceration to his final bus ride, said Polonia through Spanish interpretation by Alarco, "It was five years and eight months ... " Here he paused, for a word with Alarco. Then he added, "And eight days."

Polonia had trouble swiping his MetroCard -- a new innovation during his time behind bars -- and promptly found himself lost in the subway.

Associate MariaSole L. Kaine said that she and Edmund Polubinski III logged a total of 1,300 hours in the case.




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