Stephen Schultz - Mistaken ID / Inadequate Defense

Schulz, Stephen; robbery; NRE: mistaken witness identification, inadequate legal defense, prosecutor misconduct, misconduct that is not withholding evidence

Suggestibility issues

[774:165]; 2nd Dept. 3/29/04; affirmed

"[W]e are satisfied that the verdict of guilt was not against the weight of the evidence..."

"[County Court] properly precluded [Schulz] from introducing evidence of third-party culpability at trial, since the proffered evidence was lacking in any probative value..."

[How could evidence that someone else did it not have probative value?]

"[There was a] pre-trial identification by one of the eyewitnesses of a third party as the 'true' perpetrator."

[797:24]; Court of Appeals 5/5/05; affirmed, but one dissenter

"A jury convicted [Schulz] of robbing El Classico restaurant. One of the persons in the restaurant, Jose Velasquez, the owner and cook, identified [Schulz] at trial. The second witness, an employee of the restaurant, Otilia Ruiz, failed to identify [Schulz] at trial.

"The customer went to the cash register, opened it and began taking money. Ruiz grabbed the robber by the shirt, told him not to take the money and screamed to Velasquez that they were being robbed. The robber pulled out a knife and held Ruiz by the neck with his other hand. Velasquez heard Ruiz scream. He came out of the kitchen and saw [Schulz] [???] leaving the restaurant.

[County Court had found that:] "1) prejudicial effect of news photograph of man who [Schulz] claimed could have committed charged robbery outweighed its probative value; 2) evidence was sufficient to support conviction; and 3) [Schulz] was not denied effective assistance of counsel."

[But, Judge Rosenblatt dissented. Moreover, the majority opinion was written by George Bundy Smith, the very judge who denied Nickel permission to have his case heard by the Court of Appeals.]

528 F.Supp.2d 77; E.D.N.Y. 11/19/07; writ granted, due to ineffective assistance of counsel (subsequently affirmed by 2nd Cir.)

"This is an extremely troubling case. The conviction [is] based upon the identification testimony of a single eyewitness...At the trial, Jose Velasquez...the owner and cook of the restaurant, testified that he heard the waitress, Otilia Ruiz...scream and, when he walked into the dining area, saw the robber leaving the restaurant. Velasquez unsuccessfully chased the getaway car, but testified that the car contained both a 'T' and a '1' in the license plate. Although Velasquez identified [Schulz] as the robber at trial, Ruiz was unable to identify the perpetrator in court as the robber, and the car that the prosecution had argued had been [Schulz's] getaway car did not have a 'T' or a '1' in the license plate (and had a New York Yankees insignia, which Velasquez had not mentioned).

"The defense sought to demonstrate at trial that the [robbery]...was committed by an individual named Anthony Guilfoyle...who had some similar physical characteristics to [Schulz] and had been arrested for numerous robberies in Suffolk County...including a robbery on the same night of the El Classico robbery [which Schulz was found guilty of] that occurred approximately three hours earlier, at a location about 10-12 miles away...When the Brooklyn Law School's Second Look Clinic interviewed Ruiz after the trial, Ruiz, who had no apparent motive to lie, stated in an affidavit that: (1) when the police showed her a photo array one day after the robbery, Velasquez (who was serving as an interpreter during the police interview) pointed at Schulz's photograph and told her that he was the person who had committed the crime; (2) prior to trial, Velasquez told her that, if she did not help put Schulz in jail, Schulz would be released from jail and hurt her; (3) [Schulz] did not commit the crime and, after being shown Guilfoyle's photograph, she was '90% certain' that Guilfoyle was the robber...[Schulz also] points to a post-trial affidavit from his roommate, Anthony Tralongo...stating that he was in the courthouse during the trial prepared to testify as an alibi witness for [Schulz, because Schulz] was with him in their apartment at the time of the El Classico robbery, but he never testified at the trial because [Schulz's] attorney told him that they did not need him.

"Detective Conde identified Schulz as a suspect to Detective Gieck because 'two police officers had furnished that name to Detective Conde.'...Detective Gieck did not explain how the two police officers determined that Schulz was a suspect.

"Although [defense counsel] indicated before opening arguments that he would be calling [Schulz's roommate] as an alibi witness...[he] did not call [the roommate] to testify. Moreover, [defense counsel] did not call two additional detectives to the stand that the prosecution had brought to court at [defense counsel's] request, to give testimony about the Guilfoyle robberies...[Defense counsel] rested the defense case without calling any witnesses to the stand or offering any evidence on [Schulz's] behalf."

from NRE synopsis (by Maurice Possley):

"On the evening of February 3, 1999, a tall, heavy-set white man entered the El Classico restaurant in Brentwood..."

"Jose Velasquez...heard Ruiz scream. He ran out of the kitchen to see the robber fleeing, then ran outside and saw the man get into a beige-colored car and drive off."

"Schulz was arrested and police brought his roommate's car to the police station, where Velasquez identified it as the getaway car.

"Schulz went on trial in August 1999 in [Manhattan]...Velasquez...admitted that at the time of the robbery, he had a pending charge of illegal gun possession which could have adversely affected his ability to keep the restaurant's liquor license. That charge had been plea-bargained down to a disorderly conduct conviction,* but Velasquez denied he had gotten a deal from the prosecution in return for his testimony."

[* There is an enormous difference, in terms of potential punishment, between these two charges. Illegal gun possession is a felony, typically resulting in several years in prison. By contrast, disorderly conduct is a misdemeanor, punishable by just a few months (or even no time at all) in county jail. A typical gun possession charge most definitely does not get pled down to disorderly conduct. The prosecution was clearly doing Veasquez an enormous favor, and the only plausible reason why is that he had identified Schulz as the robber in this case.]

"A police detective testified that the initial description of the robber was 6 feet, 2 inches tall, weighing about 250 pounds with 'rotten teeth.'"

"Because Guilfoyle was about 6 feet, 4 inches tall and weighed more than 450 pounds, the detective discounted him as a suspect because he was too big."

"[Barry] Levine [Schulz's lawyer] attempted to enter a photograph of Guilfoyle into evidence, but his request was rejected because he had failed to present sufficient evidence to link Guilfoyle to the crime. Levine did not present any other evidence. On September 2, 1999, a jury convicted Schulz..."

"In September 2009, the Second Circuit...upheld the [above District Court] decision. The Suffolk County [DA's] Office then dismissed the case and Schulz was released."

[All emphases added unless otherwise noted.]