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Due Process Claim Against Police Revived by Circuit

Mark Hamblett, New York Law Journal

June 17, 2015

A man who spent 18 years in prison after being wrongfully convicted of murder can pursue his claim that police identification procedures and witness coercion violated due process, the U.S. Court of Appeals for the Second Circuit has ruled.

Fernando Bermudez, exonerated of a 1991 shooting outside of a Manhattan nightclub after an identification witness recanted, had his lawsuit against the city reinstated by the Second Circuit.

Judges Guido CalabresiPeter Hall and Southern District Judge Jed Rakoff said Bermudez can go forward with his argument that police detectives used suggestive ID methods and coerced witnesses leading up to his conviction for the murder of Raymond Blount at the Marc Ballroom, also known as the Romper Room, in Union Square.

At 3 a.m. on Aug. 4, 1991, Blount punched 16-year-old Efraim “Shorty” Lopez in the face at the club. Lopez told another person about the assault, Luis Munoz, also known as “Wool Lou.”

It is now undisputed “Wool Lou” was the person who shot and killed Blount on 13th Street.

Detectives Michael Lentini and William Fitzpatrick brought in several witnesses for questioning and, as the seven went through photos provided by the detectives, Lentini allegedly took a photo of Bermudez out of a drawer, handed it to one witness and remarked that Bermudez looked cute.

Later, after looking at an array of six photos, two witnesses identified Bermudez as the shooter or said he pulled a gun, two placed him at the scene and two picked no one out of the array.

The following day, four of the witnesses picked Bermudez out of the lineup; three others did not. The detectives then brought in Lopez, who gave three inconsistent statements, initially saying he didn’t know the shooter, then describing the shooter as being 6’0 tall and about 180 pounds and conceding that he knew him­—and by the street name of “Wool Lou.”

After 30 hours in custody, Assistant District Attorney James Rodriguez and Detective Daniel Massanova conducted a videotaped interrogation of Lopez after Massanova told the prosecutor Lopez had voluntarily pointed at Bermudez’s photograph before he even reviewed a photo array.

However, in two affidavits in 1992 and 1993, Lopez said Massanova gave him the photo of Bermudez, told Lopez he was a drug dealer and promised Lopez that, if he did not name Bermudez as the shooter, Lopez himself would be charged with murder.

After Bermudez was convicted, but before sentencing before Manhattan Supreme Court Justice John Bradley, a private investigator hired by his family told Massanova that Lopez had a friend named Luis Munoz who went by the name “Wool Lou.” The detective passed this information on to the prosecutor, who obtained a copy of Munoz’ criminal history but allegedly did nothing more.

Bermudez was sentenced to 23 years to life and he began a long struggle to have his conviction vacated that included recantations of trial testimony by the five principal witnesses for the state.

On a petition for a writ of habeas corpus, Southern District Magistrate Judge Kevin Fox found the lineup procedures were “impermissibly suggestive” but said there was no due process violation because he did not credit the recantations of the witnesses or their claim of police coercion. Southern District Judge Loretta Preska adopted Fox’s report and recommendation and denied the petition.

But in 2008, Manhattan Supreme Court Justice John Cataldo vacated the conviction on the grounds that Lopez testified falsely that “Wool Lou” was Bermudez.

Released from prison, Bermudez sued police and prosecutors under 42 U.S.C. §1983 but Preska granted summary judgment for the defendants, finding that there could be no due process violation because the prosecutor’s independent decision to bring charges and put on questionable witness evidence was an intervening cause that cut off liability.

Preska dismissed the prosecutor from the case on the grounds of absolute immunity.

On the appeal in Bermudez v. City of New York, 14-1125-cv, Bermudez said the prosecutor was never informed about the suggestive procedures used in the photograph identification and array and was misled by Massanova about Lopez’s quick identification of Bermudez as the shooter.

Preska had found Assistant District Attorney Rodriguez had participated in the investigation and interviewed all the witnesses, including those who had doubts on Bermudez—and nonetheless secured the indictment and tried the case.

But writing for the court on Monday, Calabresi said “a reasonable jury could still find that ADA Rodriguez’s decision to prosecute could have been proximately caused by the officers’ conduct.”

Rodriguez was not there for the photo array or for Massanova’s interrogation of Lopez,” Calabresi said, and if the prosecutor believed what Masaanova said about Lopez’ identification “he might have been led to conclude, incorrectly, that any defects in the witnesses’ identification were a minor matter and for that reason could be ignored.”

“Moreover, it is also possible that ADA Rodriguez was misled about this evidence in another way that was not cured by his own subsequent interrogation of the witnesses,” he said. “Once the witnesses had adopted a story—either because of suggestive presentation of photographs or because of more overt coercion by the officers—they might very well have decided to stick with that story (or become convinced that it was true), and for that reason have misinformed the ADA when he subsequently questioned them.”

This may have prevented the prosecutor from making an informed decision on the evidence he used to secure the indictment and conviction of Bermudez, he said, so there are triable issues on remand on “whether ADA Rodriguez’s decision to bring charges was tainted by misleading information about how the witnesses came to identify Bermudez as the shooter.”

The circuit went on to hold that summary judgment was properly granted on malicious prosecution claims by Bermudez.

Brian Isaac of Pollack, Pollack, Isaac & De Cicco argued for Bermudez.

Bermudez is also represented Michael Lamonsoff and Seth MacArthur, the managing attorney at the Law Offices of Michael S. Lamonsoff, PLLC, who secured a $4.75 settlement with New York State in the Court of Claims last year (NYLJ, Dec. 23, 2014).

Assistant District Attorney Patricia Bailey represented the District Attorney defendants.

Karen Griffin, of counsel at the Law Department, argued for New York City and the police.

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