WEBVTT - #185 Jason Flom with Pablo Fernandez 0:00:02.640 --> 0:00:05.640 In the early nineties, the crack epidemic was in full swing, 0:00:05.720 --> 0:00:08.680 and violence between rival gangs, the Red Top Crew and 0:00:08.680 --> 0:00:12.000 the Yellow Top Crew, among others, gripped Harlem and other 0:00:12.039 --> 0:00:15.560 parts of the city. On June tenth, nineteen ninety three, 0:00:15.720 --> 0:00:18.159 a slender, light skinned man in his forties with a 0:00:18.160 --> 0:00:20.840 gray ponytail rolled up to a building on West one 0:00:20.880 --> 0:00:24.239 hundred and thirty fifth Street and open fire, wounding fifteen 0:00:24.280 --> 0:00:29.160 year old Henry Gomez and killing eighteen year old Manny Kintero. 0:00:29.320 --> 0:00:33.360 The case went cold for two years. Then two members 0:00:33.400 --> 0:00:36.559 of Yellowtop joined forces with a corrupt detective and officer 0:00:36.600 --> 0:00:39.320 team to bring a close to this case in exchange 0:00:39.320 --> 0:00:43.440 for leniency in their own cases. Officer aj Molino had 0:00:43.440 --> 0:00:47.120 been involved in dealing at some point himself. The detective 0:00:47.280 --> 0:00:51.160 was Mark Tebbins, the same one responsible for Danny Ringcon's 0:00:51.159 --> 0:00:54.600 wrongful conviction in the bungling of another Red Top. 0:00:54.400 --> 0:00:55.880 Cruse shooting in the Bronx. 0:00:56.880 --> 0:00:59.680 These members of Yellowtop made up a story that Pablo 0:00:59.720 --> 0:01:02.160 fort and As had been hired by Redtop to carry 0:01:02.200 --> 0:01:05.759 out the June tenth shooting. Then Tevins and Malino used 0:01:05.760 --> 0:01:10.319 misleading identification tactics to trick or coerce several teenage eyewitnesses 0:01:10.360 --> 0:01:14.240 to build what they knew was a farcical case. The 0:01:14.280 --> 0:01:18.600 prosecution followed suit to turn Pablo, a stocky, darker skin 0:01:18.800 --> 0:01:22.440 twenty two year old with short black hair, into this slender, 0:01:22.680 --> 0:01:26.959 forty something light skin shooter with a gray ponytail. Pablo 0:01:27.040 --> 0:01:30.160 spent almost twenty five years behind bars, and it took 0:01:30.240 --> 0:01:32.920 nearly a decade and a half of pro bono work 0:01:32.959 --> 0:01:37.360 from legal giant Paul Weiss to win his freedom. This 0:01:38.040 --> 0:01:54.000 is Wrongful Conviction with Jason Flamm. Welcome back to Wrongful 0:01:54.080 --> 0:01:57.000 Conviction with Jason Flamm. That's me. I'm your host, and 0:01:57.120 --> 0:02:00.840 today I want to introduce first the tourney who spent 0:02:01.240 --> 0:02:05.400 thousands of hours pro bono on this case. So Dave Brown, 0:02:05.560 --> 0:02:07.160 thanks for being here on the show. 0:02:06.960 --> 0:02:09.520 Today, Thanks for having me Jason, and. 0:02:09.320 --> 0:02:12.880 With us, of course is the person who endured this 0:02:13.000 --> 0:02:14.959 night mare that you're about to hear about and live 0:02:15.040 --> 0:02:18.160 to tell the story. So now it's my great privilege 0:02:18.160 --> 0:02:21.080 to introduce you to Pablo Fernandez Babo. Thank you for 0:02:21.120 --> 0:02:22.200 being here with us today. 0:02:22.320 --> 0:02:22.760 Thank you. 0:02:23.120 --> 0:02:26.680 And this story goes back to the early nineties. Pablo, 0:02:26.919 --> 0:02:30.160 you came from the Dominican Republic, right, And you ended 0:02:30.240 --> 0:02:34.000 up as a teenager in Upper Manhattan at the height 0:02:34.080 --> 0:02:36.760 of the crack epidemic. What was it like growing up 0:02:36.840 --> 0:02:39.120 in that crazy time that we've heard so much about. 0:02:39.840 --> 0:02:42.560 It was way deeferent to day crying. 0:02:43.120 --> 0:02:46.640 Every day you walking in this three, you see the 0:02:46.680 --> 0:02:48.959 house in the botto of the crack the floor. 0:02:49.840 --> 0:02:52.280 You see a lot of cracking people walking in this 0:02:52.400 --> 0:02:53.440 three like a son. 0:02:53.280 --> 0:02:56.720 Be Gunshots could be heard regularly around the clock, not 0:02:56.960 --> 0:02:59.200 just at nighttime in those days. And you had a 0:02:59.240 --> 0:03:02.520 police force that out of control as well. And Dave 0:03:02.720 --> 0:03:05.520 take us back to the original crime and how this 0:03:05.720 --> 0:03:10.360 turned into this terribly flawed case and ultimately wonwful conviction. 0:03:10.639 --> 0:03:14.480 The crime in question took place on June tenth, nineteen 0:03:14.560 --> 0:03:15.120 ninety three. 0:03:15.800 --> 0:03:16.359 It was a. 0:03:16.400 --> 0:03:20.200 Drive by shooting where a car drives down one hundred 0:03:20.240 --> 0:03:24.040 and thirty fifth Street, stops. The gunman gets out for 0:03:24.320 --> 0:03:27.560 just a few seconds from the passenger side, fires several shots, 0:03:27.840 --> 0:03:32.280 kills Manny Kintaro, wounds Henry Gomez, jumps back in the car, 0:03:32.480 --> 0:03:34.800 and the car drives away. A number of eye witnesses 0:03:34.840 --> 0:03:37.360 saw that shooting. They called in to nine one one 0:03:37.440 --> 0:03:40.120 with descriptions. Some of them were interviewed by the police 0:03:40.400 --> 0:03:42.760 either that evening or in the days that followed, and 0:03:43.120 --> 0:03:46.520 they all described the shooter as having light skin, in 0:03:46.520 --> 0:03:50.120 his thirties or forties, tall, thin build, gray or salt 0:03:50.160 --> 0:03:52.640 and pepper hair pulled back in a pony tail. And 0:03:53.040 --> 0:03:56.720 Pablo looked nothing like that description. In nineteen ninety three, 0:03:56.840 --> 0:03:59.160 he was twenty years old, he had short, dark hair, 0:03:59.600 --> 0:04:02.640 stock built, he had never worn his hair long, much 0:04:02.720 --> 0:04:07.320 less in a ponytail. And the case went cold, we believed, 0:04:07.320 --> 0:04:10.640 because the police failed to follow up on leads. They 0:04:10.800 --> 0:04:14.800 sent officers who didn't speak Spanish to conduct interviews in 0:04:14.840 --> 0:04:17.200 the neighborhood around where the shooting took place, and they 0:04:17.240 --> 0:04:19.919 just came back and reported, well, we couldn't communicate with 0:04:19.960 --> 0:04:22.640 some of the witnesses because they spoke Spanish. Wow, and 0:04:23.080 --> 0:04:25.680 just we think there was no serious effort to really 0:04:25.720 --> 0:04:26.279 solve this clime. 0:04:26.600 --> 0:04:27.839 So the case goes cold. 0:04:28.000 --> 0:04:34.320 Approximately two years later, NYPD officers engaged in a really 0:04:34.560 --> 0:04:41.440 brazen and corrupt scheme to manufacture evidence against Pablo, faced 0:04:41.440 --> 0:04:44.080 with the facts that he bore no resemblance to the 0:04:44.080 --> 0:04:48.120 shooter and there was never any physical or forensics or 0:04:48.200 --> 0:04:50.680 ballistic evidence that connected him to the crime, and there 0:04:50.720 --> 0:04:52.919 was absolutely no motive for him to committed the crime. 0:04:53.400 --> 0:04:57.200 But let me start with the police officers who were 0:04:57.240 --> 0:04:58.760 the primary. 0:04:58.360 --> 0:05:01.640 Architects of this place to falsely. 0:05:01.160 --> 0:05:06.679 Incriminate Pablo, NYPD Officer Albert Molino. He went by aj 0:05:07.120 --> 0:05:10.119 who had ties to the drug trade himself from before 0:05:10.120 --> 0:05:14.280 he went to the police academy, and also Detective Mark Tevians. 0:05:14.720 --> 0:05:17.640 Our audience might remember Mark Tebans from another case that 0:05:17.680 --> 0:05:22.039 we covered recently, Danny Rincolone case, and of course all 0:05:22.120 --> 0:05:25.960 the corrupt tactics that he used to make that preposterous 0:05:26.000 --> 0:05:27.279 case stick as well. 0:05:27.640 --> 0:05:32.080 The corrupt and unconstitutional tactics that they used were not 0:05:32.279 --> 0:05:35.120 unique to them. I mean, these were commonplaces n MIPD, 0:05:35.360 --> 0:05:40.880 homicide and serious felony investigations during the early mid nineteen nineties, 0:05:41.320 --> 0:05:46.360 and the way they constructed this false case was based 0:05:46.560 --> 0:05:48.200 on Perger testimony. 0:05:48.400 --> 0:05:52.400 At the center of this corrupt investigation were two members 0:05:52.440 --> 0:05:54.760 of the Yellow Top Crew, who were rivals of the 0:05:54.800 --> 0:05:57.680 Red Top Crew. Now, in those days, of course, the 0:05:57.760 --> 0:06:00.280 crews were named after the colored caps of the crack 0:06:00.320 --> 0:06:04.200 files that they sold. Those Yellow Tops had two motives 0:06:04.240 --> 0:06:08.440 to give up seemingly useful but false information to the police. 0:06:08.760 --> 0:06:11.520 One was to help their own charges and the other 0:06:11.839 --> 0:06:15.640 was to try to inflict damage on their arrivals, the 0:06:15.680 --> 0:06:18.880 Red Top Crew, and these two individuals that worked with 0:06:19.000 --> 0:06:23.760 Melino and Tabins were Raymond Dilly Rivera and the leader 0:06:23.920 --> 0:06:29.000 of the Yellow Top Crew, whose name was Martin Chango Mehias. 0:06:29.320 --> 0:06:34.640 Now Mahias was known in the streets to be a crazy, 0:06:35.200 --> 0:06:38.240 violent drug dealer, and he was arrested in June of 0:06:38.279 --> 0:06:41.000 nineteen ninety four charged with three counts of murder, one 0:06:41.040 --> 0:06:44.080 kind of attempted murder, and multiple drug conspiracy charges, and 0:06:44.120 --> 0:06:47.440 he was facing potential life in prison, so he decided 0:06:47.480 --> 0:06:51.040 that he would cooperate with the Manhattan Die's office and 0:06:51.120 --> 0:06:55.000 testify against other people to get a lighter sentence. He 0:06:55.120 --> 0:06:58.080 put away dozens of people who worked for him, and 0:06:58.160 --> 0:07:00.640 around that time Rivera, who was one of the chief 0:07:00.680 --> 0:07:04.279 lieutenants in the Yellow Top Crew, came into the Benhatan 0:07:04.360 --> 0:07:07.360 Die's office and he confessed that he had committed more 0:07:07.400 --> 0:07:10.960 than five hundred felonies, including assaults, robberies, and attempted murder. 0:07:11.040 --> 0:07:13.560 He was never charged for any of those crimes. So 0:07:14.160 --> 0:07:21.240 somehow Melino and Teppans urged these two cooperators, Mihias and Rivera, 0:07:21.280 --> 0:07:25.040 to say that they knew Pablo had been hired to 0:07:25.080 --> 0:07:28.000 do this shooting for the leader of the Red Top crew. 0:07:28.200 --> 0:07:31.320 They said that they saw Pablo being paid money to 0:07:31.400 --> 0:07:33.920 do the shooting, about twenty five hundred dollars, and one 0:07:33.920 --> 0:07:36.840 of them said that after the shooting he saw Pablo 0:07:36.960 --> 0:07:39.840 come back and meet with the person who had hired 0:07:39.920 --> 0:07:42.000 him to do the shooting and take out a shell 0:07:42.040 --> 0:07:44.400 casing and say this is the bullet that killed Kintaro. 0:07:44.720 --> 0:07:47.440 They said that they knew that Pablo wore disguise like 0:07:47.480 --> 0:07:49.160 a wig, or he painted his hair. 0:07:49.080 --> 0:07:50.559 And of course we would have also had to believe 0:07:50.560 --> 0:07:52.400 that he had a makeup artist on hand who could 0:07:52.400 --> 0:07:56.240 have changed his skin color. But you can't be stocky 0:07:56.400 --> 0:07:58.640 and pretend you're skinny. That doesn't work. 0:07:58.920 --> 0:08:00.040 None of this was true. 0:08:00.080 --> 0:08:04.560 And then early nineteen ninety five, detective Tevins and Officer 0:08:04.640 --> 0:08:08.080 Milino found two eyewitnesses who had seen the shooting. Now, 0:08:08.360 --> 0:08:11.480 when these kids saw the shooting, they were approximately thirteen 0:08:11.560 --> 0:08:16.320 years old, and both of them were cousins of Manniquintaro. 0:08:16.560 --> 0:08:19.440 One of them his name was Hiccliffe Rosario and the 0:08:19.480 --> 0:08:23.000 other's name was George Rosario, and both of them had 0:08:23.200 --> 0:08:27.320 reported seeing a light skinned shooter, you know, long gray hair, 0:08:27.720 --> 0:08:31.560 thirties or forties do the killing. But they were pressured 0:08:31.640 --> 0:08:37.080 by Melino and Tebbns to falsely identify Pablo as the shooter, 0:08:37.679 --> 0:08:41.040 in part because the police just kept pointing to pictures 0:08:41.040 --> 0:08:43.200 of Pablo over and over and over saying this is 0:08:43.200 --> 0:08:46.040 a shooter. The police officers lied to Hicckcliffe and George 0:08:46.120 --> 0:08:49.040 Rosario and said, you know, even though he may not 0:08:49.080 --> 0:08:51.240 have been the shooter, he had something to do with 0:08:51.280 --> 0:08:52.319 the crime, so. 0:08:52.880 --> 0:08:54.000 You should say that he did it. 0:08:54.200 --> 0:08:56.400 And if you look at the picture from Pablo's lineup, 0:08:56.520 --> 0:09:00.400 they're six men and five of them are where white 0:09:00.440 --> 0:09:03.760 T shirts. And Pablo was put in completely different clothes 0:09:03.840 --> 0:09:07.319 to make it easier for the witnesses to falsely incriminate him. 0:09:07.480 --> 0:09:09.680 I think this is something they had done many times before. 0:09:10.360 --> 0:09:13.720 You would think that it would be incredibly difficult to 0:09:13.720 --> 0:09:18.080 frame an innocent person for murder. It almost seemed effortless 0:09:18.160 --> 0:09:20.199 for these corrupt police officers. 0:09:20.640 --> 0:09:24.120 And Paba, what was it like going through this for you? 0:09:24.320 --> 0:09:26.040 Did you understand what was going on. 0:09:26.320 --> 0:09:29.160 And the beginning, though I thought I learned a little 0:09:29.200 --> 0:09:31.520 about little, it was real for me. 0:09:31.880 --> 0:09:35.360 I just have my song, my first baby, to change 0:09:35.360 --> 0:09:38.679 that life, that quiet like that that in one one second, 0:09:39.400 --> 0:09:40.200 it's real hard. 0:09:40.720 --> 0:09:43.160 They have me in the Rackets Island, you know by 0:09:43.160 --> 0:09:44.560 that dying Rackets Island was. 0:09:46.360 --> 0:09:49.240 The acquisition that I have something that I know that 0:09:49.240 --> 0:09:52.960 I'm not doing man my song. 0:09:54.240 --> 0:09:57.320 Every time I see my soul in the cool it 0:09:57.440 --> 0:09:58.920 was It's. 0:09:58.800 --> 0:10:01.720 It's impossible, I think for anyone who hasn't been through 0:10:01.760 --> 0:10:05.120 it to imagine what you went through. I mean, you're 0:10:05.400 --> 0:10:08.040 twenty years old, you're still a kid. Now you're thrust 0:10:08.040 --> 0:10:11.920 into a very adult situation that you didn't cause and 0:10:11.960 --> 0:10:14.640 you didn't create. And I want to just highlight one 0:10:14.640 --> 0:10:16.760 of the things on the Innesis project has led to charge, 0:10:16.800 --> 0:10:22.560 among other organizations, to make videotaping of interrogations mandatory, but 0:10:22.720 --> 0:10:27.160 also the photo arrays, lineup procedures, all of that, anything 0:10:27.160 --> 0:10:31.200 involving eye witnesses should also be videotaped. That's the only 0:10:31.280 --> 0:10:34.520 way we can clamp down on these type of practices. 0:10:34.600 --> 0:10:36.959 And they're not always as nefarious as this one was, right, 0:10:37.160 --> 0:10:40.320 but if they're influencing the witness in any way. The 0:10:40.400 --> 0:10:43.240 jury must know about that. And that brings us to 0:10:43.280 --> 0:10:45.720 the trial, which was January nineteen ninety six. 0:10:45.960 --> 0:10:48.800 And let me start just a few weeks before the 0:10:48.840 --> 0:10:54.000 trial begins. Actually, because it appears that Melino and Teppans 0:10:54.559 --> 0:10:57.760 they knew approaching the trial as was a weak case. 0:10:58.280 --> 0:11:02.600 They had two cooperators obviously had motives to lie and 0:11:02.600 --> 0:11:06.000 fabricate evidence, and then you had these two teenagers who 0:11:06.000 --> 0:11:08.680 have been pressured to lie, and so it looks like 0:11:08.720 --> 0:11:10.760 they went out to try to bolster this case. And 0:11:10.800 --> 0:11:14.120 they found two more eyewitnesses and one of them, his 0:11:14.240 --> 0:11:20.120 name was Hayes's Canela. Canela recants in the mid two thousands, actually. 0:11:19.760 --> 0:11:21.080 As do the Rosarios. 0:11:21.360 --> 0:11:24.040 But Canela, when he came forward, he said that he 0:11:24.120 --> 0:11:27.120 had been pressured by the police officers and they showed 0:11:27.160 --> 0:11:29.720 him a picture of Pablo, not even a photo array, 0:11:29.880 --> 0:11:32.439 just a single photographic Pablo, saying this is the person 0:11:32.720 --> 0:11:35.440 who did the crime. And then they told him you 0:11:35.920 --> 0:11:38.720 don't have to testify in court about the fact that 0:11:38.720 --> 0:11:42.040 you saw this photo. So this witness is found two 0:11:42.120 --> 0:11:44.439 weeks before the trial, right, it's now two and a 0:11:44.480 --> 0:11:47.479 half years since he saw the murder, and he testifies 0:11:47.720 --> 0:11:51.480 that he still recognizes Pablo, even though you know Pablo 0:11:51.559 --> 0:11:54.760 was supposedly wearing a disguise at the time, and he 0:11:54.840 --> 0:11:58.240 says he's never seen any pictures of Pablo up until then, 0:11:58.400 --> 0:12:01.160 although of course, just two weeks before trial started he 0:12:01.240 --> 0:12:04.280 indeed was some pictures of Pablo, but that's all covered up. 0:12:04.440 --> 0:12:06.760 It's so bad because you can do nothing. You can 0:12:06.840 --> 0:12:10.679 say nothing. It's like it's somebody punching you and you 0:12:10.720 --> 0:12:13.040 can do nothing. Everything was lying. 0:12:13.640 --> 0:12:16.120 So Pablo, when the jury came back, what was that 0:12:16.200 --> 0:12:16.920 moment like. 0:12:16.960 --> 0:12:19.480 When you told me that I'm guilty? Oh man, I 0:12:19.480 --> 0:12:20.559 thought I want to die. 0:12:21.240 --> 0:12:23.520 I feel my bie, like like I hold in one 0:12:23.520 --> 0:12:26.480 thousand pounds my back and look you back to see 0:12:26.480 --> 0:12:29.880 my family. All my family was crying. I was crying. 0:12:29.920 --> 0:12:33.160 I was crying. I can't hold it. When you know 0:12:33.880 --> 0:12:37.720 that you hemasy and they find you guilty or something 0:12:37.760 --> 0:12:41.480 that you want to confront twenty five years, it's crazy. 0:12:42.160 --> 0:12:55.480 I lost my family, love my song, I love everybody. 0:12:55.520 --> 0:12:59.080 This episode is underwritten by the AIG Pro Bono program. 0:12:59.440 --> 0:13:03.000 AIG is a leading global insurance company, and for over 0:13:03.040 --> 0:13:06.840 a decade, the AIG pro bono program has provided thousands 0:13:06.880 --> 0:13:09.960 of hours of free legal services and other support to 0:13:10.040 --> 0:13:14.520 nonprofit organizations and individuals most in need. More recently, the 0:13:14.559 --> 0:13:18.280 program added criminal and social justice reform as a key 0:13:18.320 --> 0:13:19.560 pillar of its mission. 0:13:25.520 --> 0:13:27.800 The case against Pablo really began to fall apart just 0:13:27.840 --> 0:13:31.200 a few days after the trial when the DA's office 0:13:31.400 --> 0:13:34.800 came to Pablo's trial council and said, we've had to 0:13:34.920 --> 0:13:38.839 arrest Officer aj Malino because we discovered that he was 0:13:38.920 --> 0:13:42.480 under investigation by the New York State Troopers for dealing 0:13:42.880 --> 0:13:44.360 large amounts of cocaine to. 0:13:44.360 --> 0:13:47.520 Undercover cops a few years prior, right. 0:13:47.360 --> 0:13:50.520 Before he went into the police academy, and for some 0:13:50.640 --> 0:13:55.320 reason that investigation stalled, but it was reopened during the trial. 0:13:55.679 --> 0:13:59.680 Alino is arrested right after the trial, but the DA's 0:13:59.720 --> 0:14:02.760 office never follows up to prosecute him, and after about 0:14:02.800 --> 0:14:07.640 five years the case is dismissed for failure to prosecute. Now, 0:14:07.679 --> 0:14:10.599 it's my theory that somebody who's dealing large amounts of 0:14:10.679 --> 0:14:13.640 drugs and it goes into the police academy does not 0:14:13.840 --> 0:14:18.040 stop after they've become a police officer, and we'll see 0:14:18.040 --> 0:14:20.680 what comes to bite in Pablo's civil case. But I 0:14:20.720 --> 0:14:24.280 think this was likely a corrupt officer through and through again. 0:14:24.480 --> 0:14:28.000 We know during this time there were other officers in 0:14:28.120 --> 0:14:31.800 UPTAH Manhattan who were dealing drugs themselves, providing protection to 0:14:31.880 --> 0:14:34.600 drug dealers, robbing drug dealers, and signed the drugs themselves. 0:14:35.160 --> 0:14:38.960 And you know, Melino certainly seems to fit that pattern. 0:14:39.320 --> 0:14:42.040 Yeah, and one would think that that would cause an 0:14:42.040 --> 0:14:45.480 immediate reopening of the case or retrial or something. But 0:14:45.520 --> 0:14:47.480 of course we know that it took the most twenty 0:14:47.520 --> 0:14:50.040 five years for this to be resolved, and thousands of 0:14:50.120 --> 0:14:53.240 hours of pro bono legal work from you and your 0:14:53.320 --> 0:14:55.560 team at Paul Weiss. You know, it's one of the 0:14:55.560 --> 0:14:57.560 things that gives me hope, just the fact that there 0:14:57.600 --> 0:15:01.680 are people like you and firms like Paul Weiss and 0:15:01.720 --> 0:15:06.160 so many others that provide almost limitless resources of human 0:15:06.240 --> 0:15:09.840 talent to help someone like Pablo get out of what 0:15:10.000 --> 0:15:11.600 is almost impossible. 0:15:11.680 --> 0:15:13.280 Morassed, Dave, you. 0:15:13.200 --> 0:15:15.280 Didn't get involved to two thousand and five, but talk 0:15:15.320 --> 0:15:19.000 to us about this crazy appellate process. 0:15:19.120 --> 0:15:22.520 The next major event occurs in two thousand and two. 0:15:22.640 --> 0:15:25.880 Hicclab and George Rosaria both recanted their trial testimony. And 0:15:26.000 --> 0:15:28.240 they met with a lawyer who was representing Pablo at 0:15:28.280 --> 0:15:32.840 the time, and they provided sworn testimony stating that Malino 0:15:32.920 --> 0:15:35.920 and others had pressured them to falsely identify Pablo as 0:15:35.960 --> 0:15:38.640 the shooter. That Hicclo stated that he was positive that 0:15:38.680 --> 0:15:43.000 Pablo had not shot Caintaro. George said that he never 0:15:43.000 --> 0:15:45.520 would have identified Pablo as the shooter if he had 0:15:45.520 --> 0:15:48.320 not been told by the police that Pablo was involved, 0:15:48.360 --> 0:15:51.440 and that he had been pressured to identify Pablo after 0:15:51.480 --> 0:15:52.239 being shown. 0:15:52.000 --> 0:15:53.360 Pablo's picture again. 0:15:53.760 --> 0:15:58.920 The appellate courts did not consider this evidence enough. 0:15:58.840 --> 0:16:00.000 To free Publo. 0:16:00.400 --> 0:16:03.840 The next year, in two thousand and three, Henry Gomez 0:16:03.880 --> 0:16:07.200 so the second victim of the shooting. He provided sworn 0:16:07.280 --> 0:16:10.680 testimony that Pablo was not the man who shot him 0:16:10.880 --> 0:16:15.280 and didn't look like the shooter. That is not enough either. Now, 0:16:15.320 --> 0:16:18.120 in two thousand and five, my law firm got involved. 0:16:18.440 --> 0:16:20.960 Paul Wise, what are the top law firms not in 0:16:21.000 --> 0:16:24.880 the city in the world, comes in, you know, to 0:16:24.960 --> 0:16:27.640 the rescue. How did his case land on your radar? 0:16:28.160 --> 0:16:31.360 Now we do a lot of pro bono work at 0:16:31.400 --> 0:16:35.880 Paul Weis, including criminal defense work, criminal justice reform work. 0:16:36.240 --> 0:16:39.240 But as your question indicated, you know why, of all 0:16:39.360 --> 0:16:43.280 of the thousands and thousands of criminal defendants in the 0:16:43.320 --> 0:16:45.040 New York State system, how do we get involved in 0:16:45.040 --> 0:16:45.720 Paplo's case. 0:16:46.120 --> 0:16:47.680 Well, there was a Yale. 0:16:47.680 --> 0:16:52.120 Law student named Andrew Goldstein who, because of a program 0:16:52.600 --> 0:16:55.160 at Yale Law School, became aware of this case. And 0:16:55.160 --> 0:16:58.600 then he came to Paul Weise for our summer associate program, 0:16:58.600 --> 0:16:59.600 which lasts about eight. 0:16:59.520 --> 0:17:00.320 To ten weeks. 0:17:00.400 --> 0:17:02.800 And when he came in, he said, can I get 0:17:02.800 --> 0:17:05.760 some support from Paul Whise to help me on Pablo's case? 0:17:06.160 --> 0:17:07.160 And we said sure. 0:17:07.720 --> 0:17:10.600 We thought this was going to be something that we 0:17:10.720 --> 0:17:15.159 helped Andrew Goldstein with for a summer. Well, that summer 0:17:15.760 --> 0:17:20.240 lasted fourteen years. Andrew ended up coming to the firm 0:17:20.440 --> 0:17:23.199 as an associate where he worked on the case, and 0:17:23.240 --> 0:17:25.879 then he left us after about four or five years, 0:17:25.880 --> 0:17:28.520 and he became a prosecutor in the US Attorney's Office 0:17:28.520 --> 0:17:31.240 in the Southern District, and he went on to work 0:17:31.400 --> 0:17:34.359 on Bob Moller's team a few years ago and is 0:17:34.440 --> 0:17:38.879 now back in private practice and just so overjoyed that 0:17:39.119 --> 0:17:41.040 the case that he brought in as a law student 0:17:41.320 --> 0:17:44.480 ended with such a great result, even though it took 0:17:44.600 --> 0:17:48.240 to such a long time for justice to be delivered. 0:17:48.359 --> 0:17:51.560 What did it mean to you when Dave and his 0:17:51.720 --> 0:17:55.000 team first got involved with your case and to have 0:17:55.040 --> 0:17:57.600 their support, And how did that feel? 0:17:58.280 --> 0:18:01.520 The lawyer that I have so d even the thing came, 0:18:02.240 --> 0:18:04.640 they told me, listen, you look, you got the best 0:18:04.680 --> 0:18:08.760 loyal United States and maybe in the war you got 0:18:08.800 --> 0:18:11.520 one of the best loyal And I was so happy, 0:18:11.640 --> 0:18:14.919 my family too, because you know, I woant to be 0:18:15.000 --> 0:18:16.200 in the best hang. 0:18:16.720 --> 0:18:19.720 That I can be. That's that's the only way I 0:18:19.760 --> 0:18:20.520 came home. 0:18:20.760 --> 0:18:21.960 And I want to get to that, you know, the 0:18:22.000 --> 0:18:25.919 good part, your freedom. So let's go right back to 0:18:25.960 --> 0:18:29.680 that post conviction history. In two thousand and five, Paul 0:18:29.720 --> 0:18:32.959 Weisse took the case, and then there was another recantation. 0:18:33.040 --> 0:18:39.320 In twenty ten, ten Haines's Canela recants, and again that 0:18:39.440 --> 0:18:43.360 motion is denied. One of the reasons that the New 0:18:43.440 --> 0:18:47.399 York State judge said that this witness was not to 0:18:47.400 --> 0:18:50.160 be believed is because he said, well, he was trying 0:18:50.200 --> 0:18:54.159 too hard to be convincing when he recanted, which is 0:18:54.320 --> 0:18:59.440 just such a ridiculous and bizarre thing to say. And 0:18:59.760 --> 0:19:03.119 with lost in all the state court appeals, in the 0:19:03.160 --> 0:19:05.480 Federal District Court, and now we're going up to the 0:19:05.520 --> 0:19:07.800 Federal Appeals Court, and we knew that if we lost, 0:19:07.840 --> 0:19:12.119 it was over. We would have only had the ability 0:19:12.320 --> 0:19:15.399 to appeal to the Supreme Court, and there was almost 0:19:15.440 --> 0:19:17.800 a zero chance that they would ever have taken this case. 0:19:18.240 --> 0:19:23.439 So this was really our last stop. And this is 0:19:23.680 --> 0:19:27.280 really a case that shows you the value of perseverance. 0:19:27.600 --> 0:19:31.200 Well, it certainly does, because in February of twenty nineteen, 0:19:31.240 --> 0:19:34.400 the US Court of Appeals for the Second District finally 0:19:34.440 --> 0:19:38.600 overturned the conviction, ruling that it was unconstitutional and citing 0:19:38.720 --> 0:19:42.359 the state court's denial as a quote unquote unreasonable determination 0:19:43.000 --> 0:19:46.400 on the grounds that Canela was and again I'm quoting here, 0:19:46.880 --> 0:19:50.639 trying too hard to be convincing end quote. So now 0:19:51.040 --> 0:19:55.439 the conviction is overturned, but the indictment still stands because 0:19:55.440 --> 0:19:59.119 there's no statute of limitations on murder, and the DA 0:19:59.600 --> 0:20:02.399 comes in you with the deal right to go free 0:20:02.680 --> 0:20:07.600 immediately if you plead guilty to manslaughter. But yet on 0:20:07.640 --> 0:20:10.160 the other hand, they could still retry you. You had 0:20:10.160 --> 0:20:13.480 twenty five to life, so parole was just around the corner. 0:20:13.520 --> 0:20:17.080 But there's no guarantee you there either, because who knows, 0:20:17.200 --> 0:20:20.360 Like if you wouldn't have admitted guilt, if you had 0:20:20.359 --> 0:20:23.520 refused the deal, you might still be sitting in prison today. 0:20:23.960 --> 0:20:26.560 I understand, but it's never passed from my mind to 0:20:26.560 --> 0:20:29.520 take any deal with him. From the beginning, I will 0:20:29.600 --> 0:20:33.320 fire for my freedom. So after all this, jed walking 0:20:33.359 --> 0:20:37.919 in MKA and try to be free to prove my 0:20:38.000 --> 0:20:40.600 ino say, I'm not going to take nothing for these 0:20:40.640 --> 0:20:42.760 people nothing. 0:20:54.520 --> 0:20:54.680 You know. 0:20:54.920 --> 0:20:57.199 At first, we have the defense team thought there's no 0:20:57.240 --> 0:20:59.480 way the DA's office is going to retry this case. 0:21:00.000 --> 0:21:04.360 The hicclerf Rosario has recanted, George Rosario has recanted, Jesu's 0:21:04.440 --> 0:21:10.520 Canella has recanted. We learned that Rivera was a quadriplegic 0:21:10.600 --> 0:21:13.920 and gravely ill, not even able to speak, and then 0:21:14.359 --> 0:21:17.800 Mihias was a drug dealer who had served a significant 0:21:17.800 --> 0:21:21.439 amount of time in prison. And there's absolutely no case left. 0:21:21.840 --> 0:21:26.680 And so during the spring of twenty nineteen, the DA's 0:21:26.680 --> 0:21:30.920 office was making one disclosure after another to us that 0:21:31.119 --> 0:21:34.240 showed that the case was even worse than we had known. 0:21:34.720 --> 0:21:40.520 But we contacted Martin Maheis and he made some incredible 0:21:40.560 --> 0:21:43.520 exclosures to us. He told our investigator, you know, when 0:21:43.560 --> 0:21:45.960 I was cooperating with the police, I was supposed to 0:21:46.000 --> 0:21:49.280 go back to the Rikers Island after I testified, or 0:21:49.320 --> 0:21:50.679 after I met. 0:21:50.440 --> 0:21:52.080 With the DIA's office. 0:21:52.240 --> 0:21:55.959 But Melino and Tevins would take me all around the city. 0:21:56.480 --> 0:21:59.720 We would go to Dallas barbecue, we would get drunk. 0:22:00.160 --> 0:22:04.359 They would take me to visit girlfriends, take me shopping. 0:22:05.080 --> 0:22:07.919 I was drinking a lot at the time. I was 0:22:08.040 --> 0:22:13.520 drunk when I testified. I viewed Tevins as a friend, 0:22:14.040 --> 0:22:16.800 basically indicating that he would have done anything to please 0:22:17.000 --> 0:22:19.800 the police. He also said the police had given him 0:22:20.000 --> 0:22:23.760 marijuana to sell in prison. I mean, this was just 0:22:24.960 --> 0:22:29.800 amazing to us. And we got similar disclosures from the 0:22:29.800 --> 0:22:35.360 Manhattan Die's office about Mihias in July of twenty nineteen. 0:22:35.640 --> 0:22:38.520 Information to show that Mihias said, I'm not going to 0:22:38.520 --> 0:22:41.920 testify for you again. The police told me to lie 0:22:42.080 --> 0:22:44.159