Kevin Rojas - Mistaken ID / Police Misconduct / Perjury

Rojas, Kevin Luis; murder; NRE: mistaken witness identification, inadequate legal defense, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, perjury by official

Suggestibility issues

R7 [from FN39:] "Kevin Luis Rojas...was identified (wrongly) by seven witnesses after he was 'perp walked' in front of them,* having been arrested on a PATH train some blocks from the scene of the shooting because of the color of his jacket. Disovery of a PATH police sergeant who could establish Rojas's presence on the PATH platform at the time of the shooting finally led to his exoneration, after four-and-a half years in prison, reversal, acquittal after retrial, and, finally, a finding of actual innocence and grant of compensation by the Court of Claims."

[* This is what is known as a 'show-up.' It is extremely suggestive.]

[630:28]; 1st Dept. 7/20/95; reversed, due to ineffective counsel and suggestive I.D. procedure

"[Rojas] appeals from...charges arising out of a shooting in the Greenwich Village area...This appeal focuses on, inter alia, certain exculpatory evidence, overlooked by counsel, which, had it been investigated and provided to the jury, may well have proved [Rojas'] innocence.

"On the morning of November 18, 1990, at shortly before 2:07 AM, a group of youths, most of whom were college students, consisting of Javier Bueno, Rudy Quesada, Joe Fontanez, Jose Oquendo, brothers Camilo and Carlos Quinones, Joaquino Carrasquillo, Edward Gajador, and Denis Mondesire, were walking south on Broadway...after finishing a night out bowling.

"As the youths approached Waverly Place, two men walking uptown, one wearing an orange aviator-style jacket...and an unidentified companion, proceeded toward the young men. As the youths passed the two men, Mr. Oquendo and the individual with the orange jacket bumped into one another (it is unclear if the incident was intentional on the part of either man), which the Perpetrator took as a challenge. An exchange of words followed and the Perpetrator whistled to alert some nearby companions, who ran across Broadway to join the two men.

"The Perpetrator subsequently produced a silver handgun, later determined to be a .32-caliber automatic, yelled 'You mother f---ers better run,' and started firing at the walls of a New York University building. Some of the youths ran, but Mr. Fontanez stood his ground and, essentially, ceded that the Perpetrator had been victorious in the exchange. The friends of the two men began to depart, laughing, and as they left, one of them told the Perpetrator 'we should have done them, should have butt them,' which apparently meant we should have shot them.

"The Perpetrator then handed the gun to a companion wearing a 3/4-length green coat who began to fire the gun at the group of youths, striking Mr. Bueno in the neck and Mr. Quesada in the leg and buttocks. After the shooting, the Perpetrator's group ran, and were pursued, at a distance, by Mr. Fontanez as far as the BBQ restaurant on 8th Street and University Place, when they paused for a minute. Mr. Fontanez then doubled back to Waverly Place where he flagged down [an NYPD] patrol car. Mr. Bueno subsequently died from his injuries while Mr. Oquendo survived, but his wounds required the employment of a steel plate in his leg and lengthy therapy.

"The radio-run that eight male Hispanics and Blacks had been involved in the shooting of two people on Broadway and Washington Place, one of whom was wearing an orange jacket, was received by [NYPD] Officers Glenn Iannotto and Drew Palmer, who immediately proceeded to the Port Authority PATH station at 9th Street and 6th Avenue because, as Officer Iannotto explained, the station provided a means of escape from the area. As they entered the station, the officers observed a large number of people waiting on the platform, so Officer Palmer radioed for other officers to assist them. When a train pulled into the station minutes later, Officer Iannotto had two Port Authority Police officers detain the train to prevent the escape of any suspects. [NYPD] Officers Dean Pecorale and Jill Martin thereafter saw [Rojas], who was wearing a reversible jacket similar to the one worn by the Perperator, and removed him from the train.

"In the interim, Officers Visconti and Bishop, having recevied a radio-run of 'possibles' in the PATH station, proceeded to that location with Mr. Fontanez in order to see if he could identify anyone. At approximately 2:20 AM, Officer Visconti accompanied Mr. Fontanez to the train platform and onto the train, where he identified Carlos Cajas and Khari Streeter, whom he believed to be the shooter in the green coat. As Mr. Fontanez walked back toward the beginning of the platform, he identified [Rojas], who at the time was being frisked by Port Authority Police officers. Although Officr Visconti testified that none of the detained persons had been handcuffed when Mr. Fontanez identified [Rojas], Mr. Fontanez later testified at trial that [Rojas] had already been handcuffed when he first saw him, which testimony is consistent with his Grand Jury testimony.

"At the time of his arrest, [Rojas] was wearing a reversible aviator-style jacket, with an orange shell, similar to the one described as having been worn by the Perpetrator. [Rojas] later claimed that, when the police initially stopped him, he was wearing the jacket with the orange shell on the inside and the maroon side facing outward, but that the police made him reverse the jacket so that the orange side was facing outward prior to being identified by Mr. Fontanez. Mr. Fontanez' testimony supports that of [Rojas] to the extent that Mr. Fontanez testified that when he first viewed [Rojas], the orange shell was on the outside. [Rojas], at the time of his arrest, was in possession of a single, beat-up .22-caliber bullet which was found in his jacket pocket.

"Shortly after his arrest, Officers Pecorale and Martin placed [Rojas] in their patrol car and drove him back to the scene of the shootings, allegedly because they needed instructions from their supervisor, although it was never made clear why the instructions could not have been obtained over the radio. The officers further maintained, incorrectly, that they did not anticipate coming across any witnesses at the crime scene.* A short while later, Officers Bishop and Visconti also transported Mr. Fontanez back to the crime scene."

[* That's ridiculous. Two people have just been shot. Of course witnesses are going to stick around and talk about what just happened.]

"All but three of the youths who were shot at (two of whom were in the hospital), including the two passing in a car, testified at trial that they were at the crime scene when [Rojas] arrived, handcuffed, in the back of the patrol car. [Rojas] testified at the [motion to vacate] hearing that Mr. Fontanez, in front of other witnesses, pointed at him through the cruiser's window, saying that he was the one because '[h]e has the colors on.' At some point, Mr. Oquendo began punching the car and was restrained by the officers present at the scene.

"Once [Rojas] was brought to the 6th Precinct, he was provided with his Miranda warnings...and agreed to provide a statement, which was taken by Detective Daniel Massanova. The subsequent line-up procedure...was conducted so that the participants were rotated in and out of the viewing room and seen separately. The reason for this was that [Rojas] was believed to have tuberculosis and none of the fillers, all Police Academy cadets, wanted to be in the same room as [him].

"No line-up photos were taken, and police evidence indicated that all of the participants, except for one, were of Hispanic descent. The police cadet fillers all had short hair, befitting their attendance in the police academy, whereas [Rojas] and Cajas had 'medium' or 'normal' length hair which came over the top of their ears. [Rojas] also correctly points out that while the cadets were neat, fresh and clean-shaven with crew cuts, as they were on the way to the Academy, the suspects had been up all night before the 10:20 AM lineup, so the cadets were easily identified.

"Detective Massanova testified that after the line-up: Mr. Fontanez identified [Rojas], Cajas and Streeter; Mr. Everett identified Cajas and [Rojas]; and Mr. Logoa, Mr. Oquendo and Carlos Quinones identified [Rojas] as being at the scene. It was later determined that Mr. Logoa had not, in fact, identified [Rojas] in the line-up and that Detective Massanova was mistaken in his testimony. Mr. Carrasquillo failed to identify anyone."

[FN1:] "At the time of the incident, two friends of Mr. Fontanez' group, Brian Everett and Michael Logoa, were coincidentally driving by when the confrontation first began and they slowed down to observe. When the men appeared to be separating, and before any shots were fired, the two men in the car drove on.]

"Streeter was released after the line-up, and his arrest voided due to a verifiable alibi. [Rojas] notes, rather strikingly, that every witness that identified [Rojas] at the line-up had seen him in police custody before the line-up, and the two witnesses who identified Cajas had seen him in police custody before the line-up, whereas Mr. Carrasquillo, the only witness who had not seen a suspect before the line-up, did not identify anyone."

"On August 26, 1991, Justice Paul Bookson denied defendants' motion to suppress, fully crediting the [prosecution's] witnesses. Justice Bookson found that: Mr. Fontanez' PATH station identification was spontaneous and not police-arranged;* that [Rojas] was free from restraint at the time of the show-ups;** that once Mr. Fontanez identified [Rojas], probable cause to arrest existed; that the crime-scene viewings were inadvertent and not orchestrated; and that [Rojas'] suggestiveness challenge to the carousel line-up procedure should be rejected."

[* That's (conveniently) credulous: There was no legitimate reason for the police to publicly parade Rojas by all of these witnesses.]

[** That's preposterous: Most of the witnesses saw Rojas handcuffed, and or in a police car at the time of the show-ups.]

"At trial, Mr. Fontanez and other witnssses to the shooting identified [Rojas] as the Perpetrator...However, the testimony of the youths' descriptions of the Perpetrator varied, with Fontanez acknowledging that he looked different at trial. Accounts of the shooting varied also. For example, Mr. Fontanez testified before the Grand Jury that the man wearing the green coat, not [Rojas], had fired at the wall, and that he had not seen the Perpetrator with the gun, whereas at trial he testified that the Perpetrator fired at the wall before handing the gun to the man in the green coat. Mr. Oquendo originally told police that the man in the green coat had fired into the air, whereas at trial he could not recall who fired the gun.

"[Rojas] contends that he provided an alibi but that his trial counsel not only failed to give an alibi notice to the [prosecution]...but indicated during questioning that [Rojas] was, in fact, at the scene. [Rojas] also points out that neither the prosecutor, nor his trial counsel, interviewed the PATH police officer in charge, Detective Sergeant John Apel, who...could substantiate his alibi defense. [Rojas] further contends that his counsel never visited him at Rikers Island and only visited him once in the holding pen, for approximately one-half hour, and most of that contact was consumed by counsel urging [Rojas] to take a plea offer. Appellate counsel also notes that trial counsel never investigated [his] alibi and subpoenaed the New York City Transit Authority rather than PATH for the train station videotape (which, as it turns out, did no harm with regard to available evidence as the camera at the 9th Street station had no tape in it that night,* but does indicate...defense counsel's lack of diligence)."

[* So say the 'authorities.' But given their other conduct in this case, it's not at all clear that we should simply take their word for it.]

[In a motion to vacate hearing:] "Sergeant Apel stated that he recalled observing Cajas and [Rojas] on the morning at issue because they hung around and made an attempt to pass through the turnstiles without paying, but then backed off while other officers, who also were observing them, were hoping they would beat the fare so they could arrest them...Apel testified that Cajas and [Rojas] were in the station approximately ten minutes before the arrival of [NYPD] officers.

"In response to [Rojas']...motion, [the prosecutor supplied Rojas] with the actual 911 [DA's] Squad Tapes...which were not available at the time of trial.* The first 911 call, made by the manager of the Bayamo restaurant located across the street from where the confrontation took place, indicated that the shooting occurred moments before 2:07 AM. The Squad Tapes demonstrate that Officers Iannotto and Palmer first entered the tunnel of the station at 2:13 AM, and at 2:15 AM, one of the officers, believed to be Palmer, radioed Central Dispatch that there might be some 'possibles' at the PATH station. From the time of the shootings at 2:07 AM to the entry of the officers into the station, there was a time span of six minutes. Sergeant Apel's testimony that he saw [Rojas] in the station approximately ten minutes before the arrival of the police officers would place [Rojas] and Cajas in the station at approximately 2:03 AM, which was four minutes before the shooting that occurred five blocks away."

[* Rojas went to trial over a year after the crime occurred. Can it seriously be argued that the Squad Tapes weren't available by then? (And even if they weren't, given their importance, couldn't the trial have waited until these tapes were available?)]

"There was no evidence to support the [notion] that Cajas and [Rojas] ran from the scene of the shootings to the station, [given that] Sergeant Apel testified that [their] demeanors were normal, 'they were neither breathing nor perspiring heavily and they did not seem overly excited or surprised.' Sergeant Apel also testified that [Rojas] and Cajas were loitering outside the turnstile for about five minutes before finally making payment and entering. This behavior is not consistent with the action of two gunmen fleeing from a shooting they have just committed in the vicinity...[Rojas] notes that his private investigators conducted an experiment where they had a 'healthy young man' run from the scene of the shooting to the 9th Street PATH station, and that it took 4 minutes and 15 seconds to cover the distance, but that the runner was winded and perspiring heavily upon his arrival."

"[According to PATH logs and the conductor on duty, Rojas was] in the station seven minutes prior to the shooting."

"[Rojas'] trial counsel, [David] Fronefield, not only made no effort to investigate the foregoing evidence or [Rojas'] alibi, but further committed numerous errors during the course of the trial which tended to implicate [Rojas] rather than to prove his innocence. At trial, undercutting any alibi defense was Mr. Fronefield's repeated use of [Rojas'] name when speaking of the Perpetrator."

"Mr. Fronefield also demonstrated a lack of knowledge of his own client's appearance at the time of his arrest: While cross-examining Officer Iannotto, Fronefield inexplicably insisted that [Rojas] had long hair, despite the testimony of the officer that his hair was of normal length."

"The foregoing becomes extremely relevant when viewed in context with the 911 tapes first produced pursuant to the [post-trial] motion. 911 caller #12, who was never identified, describes the Perpetrator, the scene of the shootings and the events in great detail: The caller describes The Perpetrator three times...as wearing a short orange jacket, white pants and long hair in a ponytail. When arrested, [Rojas] had 'normal length' hair just over his ears, no ponytail and blue jeans. All of the foregoing, however, was ignored by Mr. Fronefield who chose, as the sole defense, to present character witnesses* consisting of [Rojas'] high-school counselor, photography teacher and biology teacher."

[* Character witnesses, if used at all, should be the proverbial 'icing on the cake,' presented only after eyewitness and other event-based testimony.]

"[D]espite [Rojas'] claim of an alibi, and the detailed statements made by both [Rojas] and Cajas to the police on the night of their arrest, defense counsel appears to have made no effort whatsoever to substantiate, or at the very least investigate, [Rojas'] claims. Mr. Fronefield did not go to the BBQ restaurant to interview staff or perhaps look through receipts in order to ascertain [Rojas'] presence and the time thereof; did not interview PATH officers or other PATH personnel (i.e., the train crew) in an effort to determine when the two men arrived at the station, which would have supported [Rojas'] alibi and claim of innocence; made no attempt to support the statements made by [Rojas] to the police and, in fact, attempted to have them ruled inadmissible; failed to serve the statutorily required notice of an alibi defense; and, in either one or two very brief visits to [Rojas] in preparation for trial, apparently spent much of the time (1/2-hour total) attempting to convince [Rojas] that he should accept a plea bargain for a crime [he] insisted he did not commit.

"Mr. Fronefield also failed to interview or elicit favorable testimony at trial from William Lytell Davis, an eyewitness to the shooting whose testimony could have shown that the police may have arrested the wrong person. Mr. Davis, who was working security at the Bayamo restaurant, testified at the [post-trial] hearing that he was looking out of the front window of the restaurant when he 'saw the incident go down and. . .told the manager to call 911.' When the police arrived, Mr. Davis gave them a description of the Perpetrator wearing a flight jacket turned inside-out with shoulder-length dirty-blond hair in a long ponytail, and of being of average height and kind of stocky. Mr. Davis, upon viewing [Rojas] in the patrol car at the scene, told the police that [Rojas] was definitely the wrong man. Mr. Davis was never brought to the station to identify [Rojas] in a line-up.

"At trial, it was established that [Rojas] is 5'7" tall, weighs 125 lbs. and that at the time of his arrest, he had dark hair which just came over the top of his ears. [Fronefield] never asked Mr. Davis whether [Rojas] was the perpetrator he saw the night of the shooting.

"The 'Sprint' reports, which are encoded accounts of 911 calls, and the [DA's] Squad Tapes, were not utilized by Mr. Fronefield at trial. One printout indicates that the perpetrators, including one with an orange jacket, were in Washington Square Park minutes after the crime. In addition, the prosecution had disclosed to defense counsel a police report of an interview with eyewitness Laura Mandell, who was not called, and who stated that she had encountered the perpetrators in Washington Square Park prior to the shootings. The foregoing information, of which Mr. Fronefield made no use, coupled with [Rojas'] alibi defense, which Mr. Fronefield chose not to pursue, reflects defense counsel's poor preparation, ignorance of the facts and ineffective performance.

"With regard to the .22-caliber bullet found in [Rojas'] possession, Mr. Fronefield, rather than call witnesses who could testify as to the alleged innocent explanation [FN2] for the bullet's presence, which explanation was never heard by the jury, made statements in his summation which implied [Rojas] may have been at the scene with a .22-caliber gun." [FN2:] "[Rojas] averred that he had found the beat-up bullet on the ground some weeks before the incident and kept it for good luck, a story which could have been supported by friends who were with him when the bullet was found."

"Remarkably, rather than pursue the alibi and mistaken identity defenses and attempt to explain the presence of a bullet, Mr. Fronefield indicated during summation that [Rojas] probably was at the scene but had not necessarily passed the weapon to the shooter, because of the fact that only .32-caliber shells were found at the scene. These statements, however, not only contradict [Rojas'] alibi statement to the police, but also subverted [Rojas'] credibility. Bringing the .22-caliber bullet to the jury's attention, therefore, made no sense, as Mr. Fronefield failed to elicit the innocent explanation of the bullet's presence, of which he was aware, and instead somehow tied it in with the murder scene and the shooting. It almost appears, at times, that Mr. Fronefield acted as a second prosecutor."

"Under the foregoing circumstances, the on-scene show-up and line-up identifications should have been suppressed, and an independent source hearing should have been conducted to determine the reliability of the identifications of [Rojas] at trial."

"While the testimony of Fontanez was a major part of the [prosecution's] case, his identification of [Rojas] was also questionable...Fontanez identified [Rojas] while he was wearing the bright orange jacket, handcuffed and being frisked by the police. The orange windbreaker worn by [Rojas] was a popular jacket at the time. One distributor in Manhattan indicated that it had distributed 10,000 to 15,000 of these jackets...Further, Mr. Fontanez identified Khari Sreeter and was sure he was the gunman in the green coat. Mr. Streeter testified at the [post-trial] hearing that when he was brought to the precinct, Mr. Fontanez told someone in the group, 'that's the mother f---er who shot him.' However, it turns out that Mr. Streeter had nothing to do with the shootings, and was later released by the police. After Streeter's arrest, PATH conductor Anne Marie Sheldon informed one of the officers that Mr. Streeter boarded her train, and her car, before it reached the 9th Street station and that a female passenger had told her that she had been waiting for the train at the 33rd Street station with Mr. Streeter."

[James Leff was the trial judge.]

from NRE synopsis (by Michael S. Perry):

"The initial eyewitness and many of the other witnesses had been drinking and were very emotional."

"On February 26, 1992, Rojas was convicted..."

"A retired lawyer, Priscilla Chenoweth, then editor of The New Jersey Law Journal, took an interest in the case after reading an article about Rojas in a New Jersey newspaper. She spoke with his teachers -- all of whom believed Rojas was innocent -- and went to meet with Rojas at Rikers Island jail.

"Using $50,000 of her retirement savings, Chenoweth hired former police officers to investigate the case. They discovered the key eyewitness had identified the wrong man as the man in the green jacket. They located a new eyewitness who was in a store near the shooting and who said Rojas was not either of the shooters."

"In July of 1995 Rojas was released on bail. He was tried again and acquitted by a jury in [Manhattan] on October 23, 1998. He later filed a claim with the New York Court of Claims and settled for $550,000. He then repaid Mrs. Chenoweth."

[All emphases added unless otherwise noted.]