Jose Rodriguez - Mistaken Witness ID / Prosecutor Misconduct

Rodriguez, Jose; robbery; NRE: mistaken witness identification, prosecutor misconduct, withheld exculpatory evidence

2013 WL 3939160; S.D.N.Y. 7/23/13; civil suit

"During his interview with Detective [Gerald] Heanue [on 2/21/06], [robbery victim Francisco] Baez said that at approximately 11:30 p.m. the prior evening, two individuals approached from behind as he was walking on the street...[and] that one...was a black male who...was aged sixteen to eighteen years old, wore a black fur jacket with the hood up, and was armed with a black 'semi-auto' gun during the robbery. Baez stated that the other individual was a Hispanic male, aged sixteen to eighteen years old, approximately 5'6" and 200 pounds, and wore a white jacket with patches and diamond studs in both ears.

"After the interview ended, Baez looked through a book containing photographs of individuals who had previously been arrested for robbery or grand larceny within the precinct, but did not see a photograph of either individual who had robbed him...Then Detective Heanue showed Baez photographs selected by a computer program that compiles six-person photo arrays of individuals based on variables entered by police...Based on the physical description that Baez provided of his assailants, Heanue compiled two photo arrays using the software, one for each perpetrator. When Baez viewed the fist array, [he] selected a mug shot of Rodriguez in which he appeared with diamond earrings in both ears...When he viewed the second, Baez selected Vynell Simmons as the other perpetrator.

"Rodriguez [later told a second officer] that at the time of the robbery, he was sleeping at his girlfriend's house...[At a lineup the following day, Baez] 'immediately' identified Rodriguez as one of the individuals who robbed him.

"[In a lineup the following day,] Baez identified Simmons as the second perpetrator.

"[An ADA assigned to the case] became aware that Simmons had been arrested but not indicted, though he did not know the reason why there was no indictment of Simmons.

"At the sentencing hearing, Rodriguez's trial counsel, referring to the fact that Simmons had not been prosecuted, stated that 'you have to ask yourself if it's the same witness, the same facts, then why are they dismissing against one person and not dismissing against my client...'

"Once he began serving his sentence, Rodriguez requested documents relating to his conviction. Eventually, on March 24, 2010, Rodriguez's appellate counsel, David Klem...sent a letter to ADA Joseph Ferdanzi, the Chief of the Appeals Bureau, requesting that his office disclose 'the basis for the dismissal of the charges against Vynell Simmons.' On April 29, 2010, Klem and ADA Ferdanzi appeared before Judge Newman and moved to vacate Rodriguez's conviction. Ferdanzi stated that a Brady violation had occurred as a result of the failure of the Bronx DA's office to disclose that Baez had 'wrongly' identified Simmons as one of the men who robbed him, and Judge Newman thereafter endorsed an order vacating [Rodriguez's] conviction and directing his immediate release from prison."

from NRE synopsis (by Maurice Possley):

"On February 20, 2006, at 11:35 p.m....Francisco Baez, a taxi driver, was robbed at gunpoint by two men as he walked down the street on his way home after having parked his cab for the night.

"Baez told police that the robbers took his wallet, containing more than $300 and his identification cards. Baez told police the gunman was a black man wearing a black hoody and black pants and a light-skinned Hispanic man with a ponytail and wearing either a red jacket or a white jacket with patches.

"The following day, Baez met with a detective assigned to the case and provided slightly more detailed descriptions. He described the gunman as a black man, 18 to 19 years old, 5'8" tall and weighing 150 pounds. The second robber was a Hispanic man, 16 to 18 years old, 5'6" tall, weighing 200 pounds, with 'Chinese-looking eyes' and wearing blue jeans and a white jacket with patches.

"Baez viewed photo books at the precinct that day, but after 15 to 20 minutes gave up and made no identification. A detective then put the description into the police information management system, which generated mugshots of possible matches.

"After viewing just 12 photos, Baez identified 19-year-old Jose Rodriguez as one of the perpetrators.

"Upon resetting the computer with the other description, Baez then identified Vynell Simmons as the perpetrator who displayed the gun.

"A week later, police arrested Rodriguez, who, at 5'6" tall and 180 pounds, was shorter and heavier than the description of the gunman Baez gave: 5 feet, 8 inches tall and 150 pounds. The following day, police arrested Simmons.

"Baez identified both Rodriguez and Simmons as the perpetrators in separate lineups. Rodriguez was indicted by a grand jury after Baez testified that he was one of the perpetrators. The prosecutors did not pursue an indictment against Simmons because Baez informed them just prior to entering the grand jury hearing Simmons' case, that his identification of Simmons was wrong.* Simmons' case was then dismissed."

[* We are not told how and why Baez came to this conclusion..]

"The prosecutors did not tell Rodriguez's attorney that Baez had recanted his identification of Simmons; nor did they explain why the case against Simmons was dismissed.

"On November 10, 2007, Rodriguez was convicted solely on the basis of Baez's testimony that he was the gunman."

"Rodriguez's appellate lawyers reinvestigated the matter, determining that Simmons and Rodriguez did not know each other, and that Simmons might have had an alibi...His appellate lawyers then made a post-conviction request for exculatory evidence from the Bronx [DA's] office, seeking the reasons why the charges against Simmons were dismissed.

"In the letter they argued that any questions about the accuracy of Baez's identification of Simmons as the perpetrator would be exculpatory for Rodriguez, since his conviction rested entirely on Baez's uncorroboated identification. In response, the prosecution agreed that the conviction be vacated. The charges were dismissed on March 25, 2011.

"Rodriguez later filed a federal civil rights lawsuit seeking compensation, but the lawsuit was dismissed."

[All emphases added unless otherwise noted.]