Man Jailed for 18 Years Despite 13 Alibi Witnesses including sheriff’s deputy

[jimmy olsen]

I don't get the judge's reasoning, why does it matter that it was a mistake rather than deliberate? What matters is the strength of the evidence.

http://www.nbcnewyork.com/news/local/bronx-man-wrongful-conviction-richard-rosario-alibi-murder-dateline-283397101.html

By Dan Slepian

Richard Rosario sat down in the visiting room of an upstate New York prison and began to recount the same story he's been telling since a summer evening nearly two decades ago.

"I turned myself in when I heard police were looking for me," says Rosario, now 39. "I gave detectives everything they needed that first night to prove my innocence. They never investigated any of it."

Rosario is now serving the 18th year of a 25-to-life sentence for a 1996 Bronx murder, even though he insists he was 1,000 miles away in Florida on the day of the crime -- and at least 13 alibi witnesses swear Rosario is telling the truth. Among the witnesses who can vouch for him are a sheriff's deputy, a pastor, and a federal correctional officer.

"Do you believe I'm still here?" he said, "It's insane."

As NBC News learned in an investigation that aired Thursday on News 4 New York, Rosario's story has never changed.

On June 30, 1996, he says he boarded a Greyhound bus in Deltona, Florida and headed back to New York City to clear up what he thought was a misunderstanding. A few days earlier, when Rosario had called home to speak to his mother, she'd told him that NYPD detectives had been to their Bronx apartment because they wanted to speak with him about a murder.

Once he arrived in the Bronx, Rosario called detectives at the 43rd precinct saying he knew nothing about a murder, but he'd voluntarily turn himself in the next day to answer any questions they had. Instead, detectives came to the apartment that evening and took Rosario to the precinct.

Two eyewitnesses had picked Rosario's photo out of a book of mugshots, saying he was the gunman who'd shot 17-year-old George Collazo in the face on the afternoon of June 19, 1996 after a brief altercation in the street. The eyewitnesses then picked Rosario out of a live line-up.

But Rosario insisted he'd never killed anyone, and was in Florida on the date of the murder. He said he'd been in Florida the whole month of June. He gave a detailed voluntary statement to detectives, providing them with the names, phone numbers and addresses of at least 13 people who he said could confirm he was in Florida on the day of the murder.

While in Florida, he explained, he'd been staying with his friend John Torres and John's wife Jeannine, who was pregnant. In fact, said Rosario, he was with them on June 19 when Jeannine went into labor. He'd celebrated with the couple and their friends the next day when the baby was born. If true, there was no way he could have pulled a trigger in the South Bronx on June 19. More than a dozen people could confirm his story.

"I didn't expect to be in jail for another day," Rosario says now. "I figured they'd make a few calls and I'd be released that evening."

Detectives, however, did not follow up with any of the alibi witnesses. With no evidence other than two stranger eyewitness identifications linking him to the murder, Rosario -- the 21-year-old father of a two- year-old boy and a four-year-old girl -- was arrested for murder.

Rosario had already had contact with the justice system. At the time of his arrest, he was wanted for a robbery.  Although he also contended he was not guilty of the robbery, after he was convicted of the murder, he pleaded guilty to the robbery. His sentence would run concurrently with the sentence for the murder conviction. He had also pleaded guilty to a robbery as a juvenile, which is why his photo was among the mugshots shown to eyewitnesses.

After his arrest for murder, Rosario was sent to Riker's Island, New York City's mammoth detention center, to await trial. He met with his first court-appointed attorney while at Riker's and begged for someone to speak with his alibi witnesses in Florida. The attorney asked a judge for money to send an investigator to Florida, and the request was granted.

But the lawyer never sent an investigator to Florida, and soon handed over the case to another lawyer. Due to an apparent miscommunication between the attorneys, the new lawyer believed that the judge had denied the request to pay for an investigator.

Either way, no investigator was sent to Florida, and the witnesses were never interviewed. Even so, two alibi witnesses -- John Torres and his wife Jeannine – did testify at Rosario's 1998 trial, saying Rosario had been in their home on the day of the murder, and that they remembered the day well because of the birth of their first child the next day. But the prosecution convinced the jury that those witnesses were not credible because they were Rosario's close friends. He was convicted and sentenced to 25 years to life.

Reporters from NBC's "Dateline" recently tracked down nine of the alibi witnesses that Rosario named the night he turned himself in. All of those reached said they had never been contacted by anyone from the NYPD or the Bronx District Attorney's office, which has also been confirmed in court documents.

Today, John Torres is a sheriff's deputy in Florida. In an interview with "Dateline," he said "if it was just a random date, I wouldn't be able to know. My son was born on the 20th of June. I am 100 percent sure Richard was in my living room when my wife went into labor the day before, on June 19th. He was staying in my house."

His wife Jeannine says she also knows that Rosario is innocent. "He was in my living room, and I said, 'Rich, you gotta go, the baby's coming.'"

Fernando Torres, John's father and an assistant pastor, said, "If my grandson wasn't born that day this would be all immaterial to me, but I came by the apartment, and Richard was the one who told me they had gone to the hospital, that I was about to be a grandfather."

Mike Serrano, a federal correctional officer, says he also remembers seeing Rosario at the Torres home when the baby came.

Dateline also tracked down retired NYPD detective Irwin Silverman, the officer who interviewed Rosario the night of his arrest in New York and took his statement detailing the 13 alibi witnesses. Silverman was not the lead detective and retired just a few months after the interview. Silverman told "Dateline"'s Lester Holt that he had no idea no one from the NYPD or Bronx DA's office ever followed up with the alibi witnesses, and called it "disgraceful."

Rosario challenged his conviction in state court in 2004, arguing that his original attorneys were ineffective by not sending an investigator to Florida. During that hearing, seven of the alibi witnesses came to New York and told a judge that Rosario had been in Florida. But the state judge ruled against him, saying that his lawyers had on the whole "represented Rosario skillfully and with integrity" and that their failure to send an investigator to Florida was the result of a "misunderstanding or mistake" that "was not deliberate."

Since then, Rosario has appealed to various federal courts, all of which have upheld the conviction. The Bronx DA's office stands by the conviction and the eyewitnesses, saying that the original jury already evaluated the alibi defense and rejected it.

In a statement, the Bronx DA's office said, "We have reviewed the case extensively. While there are cases in which we have consented to vacature of conviction without going through the legal process, this is one that we believe should be, and is, before the Court for decision. Our response has been filed with the Court, and beyond that we are not going to comment."

But Rosario's new lawyers at the Exoneration Initiative say they have now found new information that no judge or jury ever heard: a police report, which had been redacted 18 years ago at trial, in which the main eyewitness told someone he actually had not seen the shooter's face. Based on that police report, Rosario's defense attorneys have asked Bronx Supreme Court Judge Robert Sackett to re-open the case. A decision is expected soon.

Meanwhile, Rosario is still living out his sentence at the Sullivan Correctional Facility, hoping to be reunited with his son and daughter, now 22 and 24 years old.

"All I care about is the truth," said Rosario. "I just hope the truth comes out."

[Tonitrus]

Now those sound like DA's who should be going to jail.

[sbr]

Meh, what's a mistake among friends.

As long as those friends are po-po and prosecuters, the other 99% should consider themselves lucky they aren't already in gaol.

[The Brain]

Machiavelli.

[The Minsky Moment]

Three basic rules at play here.

First, the DA's office will never concede a wrongful conviction.  If God came down to proclaim the guy's innocence, the office would contest jurisdiction and raise a First Amendment bar.

Second, the standard for effective assistance of counsel is typically set so low that you can't win ineffective assistance cases unless your own lawyer calls you a drug dealer and a killer and dresses like Thomas Jefferson in court: http://cjonline.com/news/2014-09-12/hawver-appears-kansas-supreme-court-dressed-thomas-jefferson

Third unless there is an ineffective assistance claim or some grotesque fraud by the prosecution, the courts don't care whether you are actually innocent or not.

[garbon]

Second, the standard for effective assistance of counsel is typically set so low that you can't win ineffective assistance cases unless your own lawyer calls you a drug dealer and a killer and dresses like Thomas Jefferson in court: http://cjonline.com/news/2014-09-12/hawver-appears-kansas-supreme-court-dressed-thomas-jefferson

[CountDeMoney]

First, the DA's office will never concede a wrongful conviction.  If God came down to proclaim the guy's innocence, the office would contest jurisdiction and raise a First Amendment bar.

One would think somewhere down the line it might've been mentioned that one of the roles of a prosecutor is to prosecute the right person, not the easiest.  Or that it's OK to question an investigation's findings prior to court proceedings.  Fruit of the poisoned tree, and all that?  Do they not teach that in law school anymore?

[The Minsky Moment]

One would think somewhere down the line it might've been mentioned that one of the roles of a prosecutor is to prosecute the right person, not the easiest.  Or that it's OK to question an investigation's findings prior to court proceedings.  Fruit of the poisoned tree, and all that?  Do they not teach that in law school anymore?

You've worked in the system, you know better than that.  You don't screw around with conviction rates.

[CountDeMoney]

You've worked in the system, you know better than that.  You don't screw around with conviction rates.

Just makes me want to take the LSATs and open a law firm with Ide, specializing in overly dramatic courtroom performance art.

[crazy canuck]

You've worked in the system, you know better than that.  You don't screw around with conviction rates.

Just makes me want to take the LSATs and open a law firm with Ide, specializing in overly dramatic courtroom performance art.

[LaCroix]

(1) he originally took the stand at his criminal trial and claimed he had been living with a woman between february - april of 1996. prosecution impeached his testimony by showing he had been in a florida jail for 30 days between march and april. article fails to mention that rosario admitted to traveling between florida and NY fairly often. he was in NY in april but claimed to have left NY for florida in may.

(2) as the article states, he had two alibi witnesses testify at his trial. the article also fails to mention that the other potential alibi witnesses were considered questionable. the original trial court determined the other witnesses were "questionable and certainly not as persuasive as the two witnesses who did testify, and were rejected by the jury." these witnesses (a) seemed unwilling to travel from florida to NY or (b) "merely may have duplicated the testimony" in "a less-cooperative manner" of the two witnesses that did testify. at best, it was cumulative testimony.

(3) on habeas petition, a federal district court determined two of the potential alibi witnesses would have added to rosario's defense, at least enough to establish (a) deficiency in counsel that (b) undermined the confidence in the outcome of the trial. but, the two potential alibi witnesses weren't probative enough to overcome deference to the state court's conclusion. the court summed it up by saying, "[a]lthough I would reach a different result if the matter were before me for de novo review, the evidence is not so one-sided that Justice Davidowitz's conclusion can be characterized as unreasonable." federal court of appeals affirmed.

tl;dr -- not a grave injustice as the article claims. while it's possible he didn't commit the crime, the "thirteen alibi witnesses show he's innocent!" is simply wrong.

[Martinus]

You've worked in the system, you know better than that.  You don't screw around with conviction rates.

Just makes me want to take the LSATs and open a law firm with Ide, specializing in overly dramatic courtroom performance art.

Only if you aim at proving the innocence of your clients with interpretative dance.

[Barrister]

One would think somewhere down the line it might've been mentioned that one of the roles of a prosecutor is to prosecute the right person, not the easiest.  Or that it's OK to question an investigation's findings prior to court proceedings.  Fruit of the poisoned tree, and all that?  Do they not teach that in law school anymore?

You've worked in the system, you know better than that.  You don't screw around with conviction rates.

Really?  Do they care about conviction rates down there?

I don't even know what mine is, other than as a bald-ass guess.

Other than to say I'm 2 for 2 today. 

[garbon]

You've worked in the system, you know better than that.  You don't screw around with conviction rates.

Just makes me want to take the LSATs and open a law firm with Ide, specializing in overly dramatic courtroom performance art.

Only if you aim at proving the innocence of your clients with interpretative dance.

No, I'm thinking a mix of roles that Sam Waterson and CCH Pounder played on Law and Order.

[Baron von Schtinkenbutt]

Really?  Do they care about conviction rates down there?

Fuck yes.  It's like a QB rating for DAs down here.