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MORALES v. PORTUONDO
July 24, 2001
JOSE MORALES, PETITIONER,
LEONARDO PORTUONDO, SUPERINTENDENT, SHAWANGUNK CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Denny Chin, United States District Judge.
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.
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
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
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
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.
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.
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 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).
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
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.
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
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.
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 ...