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MORALES v. PORTUONDO

July 24, 2001

JOSE MORALES, PETITIONER,
v.
LEONARDO PORTUONDO, SUPERINTENDENT, SHAWANGUNK CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Denny Chin, United States District Judge.

    OPINION

The writ of habeas corpus — the "Great Writ" — has been described as the "highest safeguard of liberty." Smith v. Bennett, 365 U.S. 708, 712 (1961). "[F]rom our very beginnings," the writ has been a powerful remedy of last resort, the "[v]indication of due process [being] precisely its historic office." Fay v. Noia, 372 U.S. 391, 401-02 (1963), abrogated on other grounds in Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). This case serves as a reminder of its historic — and continued — importance.

Petitioner Jose Morales and his co-defendant, Ruben Montalvo, were convicted of murder in the Supreme Court of the State of New York, Bronx County, almost thirteen years ago. They have been in prison ever since.

The murder was a brutal one. A man was beaten and stabbed to death by a group of teenagers. Just days after the trial, as Morales and Montalvo were about to be sentenced, another teenager, Jesus Fornes, told at least four individuals — a priest, Montalvo's mother, Morales's attorney, and a Legal Aid attorney — that he and two other individuals had committed the murder and that Morales and Montalvo were innocent.

Fornes's statements were never heard by a jury. Fornes invoked his Fifth Amendment privilege against self-incrimination and refused to testify at a post-trial hearing on a motion to set aside the verdict. The priest from whom Fornes had sought spiritual guidance did not reveal the statements because they were made as part of an informal confession. The Legal Aid attorney from whom Fornes had sought legal advice did not reveal the statements because he was prohibited by the attorney-client privilege from doing so. Although Fornes's statements to Montalvo's mother and Morales's attorney were presented to the state court at a hearing on the motion to set aside the verdict, the state court denied the motion, refusing to order a new trial because it concluded that Fornes's statements were inadmissible hearsay.

Fornes was killed in an unrelated incident in 1997. The priest and the Legal Attorney have now come forward and publicly disclosed what Fornes said to them. Fornes's statements, as conveyed to the priest, Montalvo's mother, Morales's attorney, and the Legal Aid attorney, constitute convincing evidence that Morales and Montalvo were wrongly convicted and that, indeed, they are innocent.

The Bronx District Attorney's Office now concedes that Fornes made the statements in question, but argues that Fornes was not telling the truth. It is highly unlikely, however, that Fornes would have lied to the priest or the Legal Aid attorney. He believed that both conversations were privileged and confidential and he was seeking their advice and counsel. It is also highly unlikely that he would have lied to Montalvo's mother or to Morales's attorney, for he had nothing to gain and everything to lose by telling them of his role in the murder. Fornes revealed his involvement because he was troubled that two of his friends had been wrongly convicted of a murder that he had committed. It was precisely because they were innocent that he was prepared, at least initially, to come forward and place his own liberty in jeopardy.

At the trial in 1988, only one witness placed Morales at the scene of the crime. Morales took the stand and asserted his innocence. Five other witnesses, called by the defense, testified that Morales was blocks away from the scene of the crime at or about the time of the murder. Another witness who was in the park and witnessed the murder testified that Morales and Montalvo were not there. The jury believed the prosecution's one eyewitness and rejected the testimony of the defense witnesses, but the jury surely might have reached a different result had it been told of Fornes's statements.

Morales had a right to present evidence of Fornes's statements to a jury but he was not permitted to do so. Accordingly, his right to due process of law was violated and his petition for a writ of habeas corpus is granted.

STATEMENT OF THE CASE

A. The Facts

1. The Murder

On September 28, 1987, Jose Antonio Rivera was murdered in the Bronx. At approximately 11 p.m., Rivera, Jennifer Rodriguez, and Rodriguez's eleven-year-old son, Cesar Montalvo ("Cesar"),*fn1 were walking along a street near Kelly Park. They saw a group of teenagers, at least one of whom was carrying a baseball bat or stick. There had previously been an incident between Rivera and one of the teenagers, and the teenagers approached the family.

Rivera ran. Members of the group chased and caught him. Someone struck him in the head with a stick or bat, splitting his head open. As he lay on the ground, others stabbed him and hit him again. An autopsy would later reveal that Rivera sustained "multiple lacerations of the right side of the head with brain injury and intracranial hemorrhage, two stab wounds on the back, one piercing the left kidney with abdominal hemorrhage." (Trial Tr. at 68). Rivera died from a "combination of multiple laceration[s] of the head and stab wounds with internal injury and hemorrhage." (Id. at 68-69).

2. Morales Is Indicted, Tried, and Convicted

No one was arrested at the scene of the murder. A few days later, Morales, who was then only 18 years old, appeared at a police station for questioning. He did so voluntarily and denied any involvement in the murder. He was placed in a lineup. Rodriguez, who had watched as her common-law husband was murdered, identified Morales as one of the assailants.

Morales was thereafter indicted, together with Montalvo and Peter Ramirez, for Rivera's murder. Morales was offered a plea bargain that would have required a prison term of only one to three years, but he rejected the offer and insisted on going to trial. (7/16/01 Hr'g Tr. at 155). In December 1988, Morales and Montalvo went to trial. In the meantime, Ramirez had committed suicide.

On December 22, 1988, the jury returned a verdict finding both Morales and Montalvo guilty of murder in the second degree.

3. Fornes Comes Forward

Shortly after Montalvo and Morales were convicted but before they were sentenced, another teenager from the neighborhood, Jesus Fornes, asked to speak to Father Joseph Towle. Fornes was approximately 17 years old at the time. Towle, a Roman Catholic priest who worked in the Hunts Point section of the South Bronx, visited Fornes in his home. Fornes told him that he was upset because two members of his group had been convicted of a murder, that the two were not present at the scene and were not involved, and that he and two others had actually committed the murder. (Id. at 10-11). Fornes said that one of the other two individuals was Peter Ramirez. He told Towle that he and the other two used a baseball bat and a knife to take Rivera's life. (Id. at 16).*fn2 Towle described his conversation with Fornes as follows:

It was a heart-to-heart talk where he was feeling very badly that two of his friends had been accused and convicted of something which he had done and it was his desire to do something to make the truth appear and he wanted to make public the fact that he was responsible and they were not.

(Id. at 12-13). Fornes asked Towle what he should do, and Towle told him that "if he had the courage and heart to do it, that he should go to the court and that he should acknowledge that he was responsible and the others were not." (Id. at 13). At the end of the conversation, Towle granted Fornes absolution, "offer[ing] him pardon in the name of God for the things that he had done wrong." (Id. at 29).

4. Fornes Goes To Court

As a consequence of his conversation with Father Towle, Fornes went to see Montalvo's mother, Maria Montalvo. Fornes told her that he, Peter Ramirez, and Carlos Ocasio had committed the "killing" and that her son and Morales were not involved. (Id. at 109-11). Fornes told Mrs. Montalvo that he did not want Morales and Montalvo "to go to jail for something that they didn't do." (Id. at 112). Mrs. Montalvo immediately called her son's lawyer as well as Elizabeth Colon, Morales's mother, to tell them about her conversation with Fornes. Colon conveyed the information to her daughter, Maria Morales (now Maria Morales-Fowler). In turn, Morales-Fowler immediately relayed the information to Anthony J. Servino, Esq.

Servino had been retained, after the trial and before sentencing, to represent Morales on his appeal. When Morales-Folwer told him about Fornes, Servino said he wanted to meet with Fornes.

As was his practice when he was retained for an appeal before a defendant was sentenced, Servino went to the Bronx Supreme Court for Morales's sentencing on January 24, 1989.

There, he met with members of the Morales family. As Servino was waiting for the other lawyers to arrive, Fornes appeared, unexpectedly, accompanied by his parents. Servino asked to speak to Fornes and Fornes agreed. As Servino led Fornes from the hallway into an adjoining room, Morales-Fowler overheard Fornes say to Servino, "I did the crime, I will do the time." (Id. at 121).

As Servino testified, Fornes told him that:

it wasn't right that Jose and R[u]ben were in [jail], they didn't do anything, I should be there.
Then he kept on repeating, I did the crime, I will do the time. They did nothing. They weren't even there. They weren't even there.

(Id. at 50-51). Servino believed that Fornes had come forward because of "a genuine sense or feeling of guilt that Morales and Montalvo were in there and that they shouldn't be there." (Id. at 51). Servino was under the impression that Fornes had appeared at the courthouse because Morales and Montalvo were scheduled to be sentenced that day and he was hoping to do something about it before they were sentenced. (Id. at 52).

Fornes gave Servino the following account of the murder: On the evening in question, Fornes happened upon Carlos Ocasio and Peter Ramirez near Kelly Park. The three saw Rivera, his wife, and her son across the street. When eye contact was made, Rivera pulled either a screwdriver or knife out of his pocket. The three approached and Ocasio hit Rivera in the head and the back with a baseball bat. After Rivera fell to the ground, his head split open, Fornes picked up the bat and hit Rivera in the back. Ramirez then "went crazy" and stabbed Rivera, more than once. (Id. at 66-70, 84).

The meeting between Servino and Fornes ended with Fornes asking "what is going to happen to me now." (Id. at 54). Servino responded that he did not know, but that he wanted Fornes to meet with his investigator. (Id.). Fornes agreed to meet with the investigator at 2:00 that afternoon at Ms. Colon's grocery store in the Bronx. (Id. at 74).

Servino then obtained an adjournment of the sentencing, advising the court that he would be moving to set aside the verdict based upon newly discovered evidence — Fornes's statements. Servino also appeared as attorney of record for Morales, substituting for Morales's trial counsel.

5. Fornes Seeks Legal Advice

Immediately following the court proceedings, Ms. Colon reported to Servino that after the earlier meeting Fornes had told her he was not going to be at her store at 2:00. She said that Fornes had also asked, "do I need a lawyer now, do I need a lawyer now." (Id. at 75).

Fornes did not appear at the store at 2:00. Instead, accompanied by Father Towle and a family member, Fornes went to the Legal Aid offices on the Grand Concourse to seek legal advice. There, he met with Stanley Cohen, Esq., an attorney in the criminal defense division of the Legal Aid Society. Towle told Cohen that this was a "young man" who "felt horrible" and "had something he needed to get off his chest." (Id. at 89). Cohen then met with Fornes alone.

After Cohen explained the attorney-client privilege to him, Fornes told Cohen that he and two other individuals had killed someone and that the two individuals who had been convicted of the murder had not been involved. Fornes also told Cohen that he had been to court earlier that day and had spoken to a lawyer for one of the defendants. When Cohen asked Fornes why he was coming forward, Fornes replied:

I am here because I can't sleep, can't eat, no one has forced me or paid me or told me to do this, just something wrong has happened.

(Id. at 91). Fornes explained that he had gone into court and that he had hoped that more would have happened — he had been hoping that "people would say, okay, these two people can go home and everything will be fine." (Id. at 92). When Cohen pushed him further, Fornes stated that he had not come forward earlier because he had been convinced that the other two individuals would be found not guilty — in fact, they had not been involved. He was surprised when the two were convicted. (Id.).

Cohen discussed Fornes's "exposure" with him. He told Fornes that he could "conceivably be throwing [his] life away" by coming forward to admit the crime, but Fornes "didn't care. He said I did it, they didn't. I should be there, not them." (Id. at 93). Cohen then advised Fornes as follows:

I said, look, you are 17, 18 years old, you have your entire life ahead of you. If you feel guilt, you have the priest here, you can feel guilt with the priest. It is not in your best interests to go any further.
I recall saying to him, look, you brought this information . . . to someone in court that day. . . .
I said one of the problems that you have here is [that] by going forward [you may] not end up clearing the gentlemen who ha[ve] been convicted . . . but what you may end up doing is putting yourself in the middle of the case, you would end up being prosecuted, the other two who you tell me didn't do anything would not necessarily end up being released.
I just said I thought it was — he should not step forward, he should not answer questions and he should invoke the Fifth Amendment.

(Id. at 96-97).

6. Fornes Takes The Fifth

Eventually, Fornes accepted Cohen's advice. At some point, Cohen spoke to both defense counsel and the District Attorney's Office, advising them that he was representing Fornes and instructing them not to speak to Fornes.

Morales's attorney moved to set aside the verdict and a hearing was held on the motion in March 1989. Fornes followed Cohen's advice and invoked his Fifth Amendment privilege, refusing to answer questions.

7. Father Towle Breaks His Silence

In 1997, Fornes was killed, in an incident unrelated to this case.

In May 2000, Father Towle executed an affidavit in which he described the statements that Fornes had made to him some 11 or 12 years earlier. He had been corresponding with Morales in prison and Morales had described the efforts he was making to overturn his conviction. Towle began to consider whether there was some way, "within the framework of Catholic practice," for him to reveal Fornes's statements. (Id. at 22). Upon rethinking the matter, Towle concluded that the conversation was not a "formal confession" and that consequently, in the unique circumstances of this case, he was permitted to disclose the statements. (Id. at 22-23, 29-31, 41-42). If the conversation had constituted a formal confession, Towle would never have been able to reveal any portion of it, even after Fornes's death. (Id. at 30).

Father Towle would later explain his delay in coming forward:

Naturally, it had taken me a long time. There is nothing I am more careful about in my whole life than the confessional secret and therefore I reflected on the basis, if there were any basis on which I could reveal the fact that . . . Jesus Fornes had spoken to me, and eventually I made the judgment, yes, that I could, because I believed it was not a formal confession, and, understanding Catholic practice, I would be permitted to acknowledge that fact.

(Id. at 22-23). His conversation with Fornes was, as he later explained:

something that at that moment was so close if you will to a confessional matter that it was not — that was not my duty to come forward.
Now, in the course of time I have had to reflect a great deal, that is why I am here now, but at that time I think all would [have] understood that if someone were to come to a Catholic priest and to confess to a murder in a confessional situation which is between that person and God, using myself in this case as a medium, that there is nothing absolutely that I could say ever.

(Id. at 15-16).

Eventually, Towle executed the affidavit disclosing his conversation with Fornes. He provided a copy to Morales's attorney. Recently, Towle consulted with the Legal Department of the Archdiocese of New York and was advised that his ...


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