Robert Maldonado & Marcos Poventud - Police Misconduct

Maldonado, Robert AND Poventud, Marcos; attempted murder; NRE: mistaken witness identification, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

R18 [155] "[There was a] joint criminal prosecution in 1997-98 of [both]...for the attempted murder and attempted robbery of a livery cab driver. The cab driver, who was shot in the head and barely survived, was the only witness identifying either...at trial and linking them to the crime. With the defense challenging the cab driver's ability to make accurate identifications, the police suppressed the fact that this eyewitness initially had identified as one of the perpetrators a man who was in prison when the crime occurred (the Brady material). After this information later surfaced, Maldonado, who had spent four years in prison, was acquitted at trial, while Poventud succeeded in overturning his conviction after nine years in collateral attack. [The Bronx DA's office had tried to get Poventud to accept a 'time served' plea bargain, but he refused.] Maldonado's civil lawsuit is pending...in the Bronx; Poventud's is pending in the...Southern District of New York.

"In their separate lawsuits, both Maldonado and Poventud alleged that the police suppressed the Brady material from prosecutors as well as the defense, or alternatively that prosecutors learned about the Brady material but colluded with the police in suppressing it from the defense."

[728:129]; 1st Dept. 5/17/01; affirmed

"The verdict of guilt was not against the weight of the evidence."

from Records and Briefs:

[2] "Robert Maldonado, age nineteen at the time of his arrest, who had no prior criminal record, was convicted of attempted murder and attempted robbery of taxi driver Younis Duopo, based solely on the identification by Mr. Duopo...Mr. Duopo did not make the identification of Robert Maldonado until three months after the crime."

"During his testimony at trial, Younis Duopo identified a photograph of Robert Maldonado's brother, Matthew, as the person who committed the crime; he later retracted this identification of the photograph of Matthew Maldonado." [Emphasis original.]

"Just two weeks after Younis Duopo was robbed and shot, three men, Jesus Martinez, Naftali Pagan, and Raymond Flores were arrested in the robbery of another cab driver.. Ballistics tests showed that the gun used by these men in that robbery was the same gun that shot Younis Duopo ...[T]here was not even the slightest suggestion that Robert Maldonado knew any of these men."

"Police Detective Frankie Rosado recovered a wallet from inside of Mr. Duopo's taxi. Inside of that wallet was an identification card of Francisco Poventud, who is Marcos Poventud's brother...Francisco Poventud was eliminated as a suspect because he was in prison on the day that Younis Duopo was robbed and shot...Since Francisco Poventud was eliminated as a suspect, the police sought to locate other members of Francisco Poventud's family."

[Seven days after the shooting, the police showed Mr. Duopo a photo array which inluded a photograph of Poventud.] "According to Detective Frankie Rosado, when he showed Mr. Duopo the array, Mr. Duopo kept tapping his head, indicating that he had a headache. Mr. Duopo then took a 'quick look' at the array, and shook his head...Detective Rosado recorded in his report 'negative results' from the photo array."

"The next day...another detective, Daniel Toohey, visited Younis Duopo in the hospital to show him a different photo array, which also included a photograph of Marcus Poventud...Toohey testfied that, through pointing, Mr. Duopo identified the photograph of Marcos Poventud from his second array. [Just over two weeks later,] Younis identified Marcos Poventud from a lineup."

[It appears that Poventud was the only person whose photo was in both of these arrays. Thus, via sheer repetition, Duopo (wrongly) came to believe that Poventud was one of his assailants.]

from NRE synopsis (by Maurice Possley):

"After seeing Marcos' photograph four different times, Duopo identified Marcos as the gunman."

"Duopo met with a police sketch artist and they collaborated to create a sketch of Poventud's partner in the crime."

"They went on trial together in Bronx County...in April 1988.

"Duopo identified Poventud as the gunman and Maldonado as his accomplice. On cross-examination, however, Duopo was shown a photograph of Maldonado's brother and twice identified the brother as Poventud's accomplice. In an attempt to rehabilitate Duopo's testimony, the prosecution was allowed to introduce the composite sketch into evidence."

"In 2002, the New York Court of Appeals reversed Maldonado's conviction and ordered a new trial. The court held that the sketch was unreliable and should not have been admitted in evidence. The court said that 'courts and juries have no way to determine reliably whether a witness helped generate a description that mirrors the offender or one that in reality looks nothing like the offender.'

"While preparing for retrial, Maldonado's attorney, Julia Kuan, discovered that the prosecution had failed to disclose to the defense that Duopo had initially identified Poventud's brother Francisco as the gunman.* In December 2004, Maldonado went on trial a second time and Kuan was able to discredit Duopo's testimony with the new information. Maldonado was acquitted and released."

[* Thus, Duopo, the only witness to 'identify' Maldonado or Poventud, had previously identified brothers of both of them prior to identifying Robert and Marcos.]

"Poventud, who had lost his appeal, then sought to vacate his conviction based on the evidence discovered by Kuan. In 2005, Kuan persuaded a Bronx County...Judge to vacate Poventud's conviction and order a new trial. Poventud accepted the prosecution's offer to plead guilty to attempted robbery and he was immediately released.

"Both men filed federal lawsuits for violations of their civil rights. Maldonado's was settled out of court for $2.5 million. Poventud sought to withdraw his guilty plea, but gave up that attempt when he became ill. Poventud's federal lawsuit was dismissed because of his guilty plea, but in April 2013, the Second Circuit...reinstated the lawsuit. It was settled in December 2015 for $2.75 million."

[All emphases added unless otherwise noted.]