The opinion of the court was delivered by: Chin, District Judge.
In these related cases, petitioners Jose Morales and Ruben Montalvo challenge their 1988 convictions for the murder of Jose Antonio Rivera. By Opinion dated July 24, 2001 (the "Opinion"), I concluded that Morales's due process rights were violated when the trial court declined to order a new trial in the face of evidence that another individual had confessed to participating in the murder and exonerated Morales and Montalvo. See Morales v. Portuondo, 154 F.Supp.2d 706 (S.D.N.Y. 2001). By Order dated July 27, 2001, I granted Morales's petition for a writ of habeas corpus.
As to Montalvo, I have not formally granted his habeas petition, but his circumstances are substantially similar to Morales's circumstances. See Montalvo v. Portuondo, No. 97 Civ. 3336(RWS), 2001 WL 856615 (S.D.N.Y. July 30, 2001). Hence, Montalvo's petition must be granted as well.
The only issue remaining as to both Morales and Montalvo is whether I should grant the writs outright or whether I should permit the District Attorney to re-try them on the murder charges. The parties were given the opportunity to submit additional papers and factual materials and have done so.
In its latest submissions, the District Attorney's Office concedes-finally-that both Morales and Montalvo are entitled to have their murder convictions set aside. The District Attorney argues, however, that both Morales and Montalvo should be re-tried on the murder charges. The District Attorney writes:
The circumstances of this case are truly unique.... Without conceding
that there was legal error-and only under the remarkable
circumstances presented in this case-we believe the interests of
justice require a new trial.
(Resp. Mem. in Montalvo, at 4; see also Resp. Mem. in Morales, at 4) ("the writ should be granted only conditionally").
The District Attorney's arguments are rejected. For the reasons that follow, and in the interests of justice, Morales and Montalvo are hereby granted an unconditional discharge: their convictions are vacated and the Bronx District Attorney's Office is ordered to take whatever steps are necessary to restore Morales and Montalvo to the status they were in prior to their arrest and prosecution in the underlying murder case.
The facts are set forth in the Opinion and the Court's prior orders. In their supplemental papers, the parties have submitted additional factual materials. The additional evidentiary materials as well as other evidence not previously discussed are summarized below.
As detailed in the Opinion, Fornes told four individuals in 1988 that he and two others were involved in the murder and that Morales and Montalvo were not present. He identified the other two as Peter Ramirez, now deceased, and Carlos Ocasio.
On August 14, 2001, the District Attorney's Office interviewed Ocasio. Three prosecutors and two detectives were present. Ocasio was initially questioned for about half an hour, without a stenographer present. Eventually, he was placed under oath and examined with a stenographer transcribing the questions and answers. The transcript has been provided to the Court. Even though Ocasio was questioned about his possible involvement in a murder, he was not represented by counsel and he was not advised of his Miranda rights. No one was present on behalf of Morales or Montalvo.
Ocasio stated that on the evening of September 28, 1987, he was present at a pizzeria in the Bronx. He saw a group of eight to twelve individuals, including his nephew, Peter Ramirez. He heard his nephew say "we['re] going to go get him," "[t]o get the guy that stabbed me." (Ocasio Tr. at 6). This was approximately 15-20 minutes before Jose Rivera was stabbed. ( Id. at 6-7).
At the interview on August 14, 2001, one of the prosecutors asked Ocasio to identify the individuals present in the pizzeria:
Q. Who did you see in the pizzeria shop with Peachy or Peter Ramirez?
A. Remembering names, I saw the guy I know as Chicky, Carlos otherwise known as Monkey, Chuito [Jesus Fornes], Peachy [Peter Ramirez] and Joey. There's just so many people. I can't recall seeing Ruben [referring to Montalvo] or Cheo [referring to Morales] in the pizzeria.
Q. Did you say Ruben was in the pizza shop?
A. Yes, I could be mistaken.
Q. Can you tell us if Cheo [Morales] was in the pizza shop?
Q. Is that because you recall seeing them there?
A. I can recall them eating or sitting there, but not being part of the group.
Q. But you can say they were there?
( Id. at 8-9) (emphasis added). Hence, Ocasio initially stated that he could not recall seeing Montalvo or Morales in the pizzeria. Then, in response to the Assistant District Attorney's leading questions, he stated that he recalled that Montalvo and Morales were present, but that they were not part of Ramirez's group. ( Id. at 9).
Ocasio stated that he left the pizzeria, went home, and called his mother to tell her that his nephew was going to kill someone. His mother instructed him to stop the nephew. He then went to Kelly Park, but he was too late, as he saw his nephew "take the man." ( Id. at 11). He saw a group of about eight people taunting the man and throwing bottles at him. He saw the man pull out a knife and his nephew pull out an ice pick. He also saw others carrying bats and a couple of sticks. ( Id. at 11-14). He eventually saw "Chuito, Carlos and Peachy" chase the man. ( Id. at 14). Ocasio saw Chuito (Fornes) hit the man with an aluminum bat. He saw Peachy (Ramirez) stab the man twice "[a]bout his back." ( Id. at 15-16). And he saw Carlos (Monkey) hit the man with the bat as well. ( Id. at 16). The only three people he saw attack the victim were Chuito, Carlos, and Peachy. ( Id. at 16-17).
Ocasio also stated that he did not see Cheo (Morales) or Ruben (Montalvo) after the pizzeria or at the scene of the crime. ( Id. at 27, 28, 29).
In its papers, the District Attorney's Office contends that Ocasio stated in his interview that "a group of 12-13 people had been present at a pizzeria at 10:45 p.m. that night, including [Montalvo] and ... Morales, when Ramirez announced that he was going to `get' Mr. Rivera," and that in the park "10-12 people began to chase Mr. Rivera, and that group may or may not have included [Montalvo] and ... Morales." (Harris 8/20/01 Aff. in Montalvo, ¶ 34). The purported description of Ocasio's testimony mischaracterizes what he said. First, Ocasio testified initially, "I can't recall seeing Ruben or Cheo in the pizzeria." (Ocasio Tr. at 8). It was only when the prosecutor followed up by asking Ocasio (incorrectly, according to the transcript) "[d]id you say Ruben was in the pizza shop?" that Ocasio said "[y]es, I could be mistaken." ( Id.). Second, although Ocasio did eventually say that Montalvo and Morales were both present in the pizzeria, he also clearly said that the two were not part of Ramirez's group in the pizzeria: "I can recall them [Morales and Montalvo] eating or sitting there, but not being part of the group." ( Id. at 9). Third, notwithstanding the District Attorney's Office's suggestions otherwise, Ocasio was unequivocal in his recollection that he did not see Morales and Montalvo in the park, as he testified as follows:
Q. Did you see where Cheo and Ruben went after the pizzeria?
[Q.] Did you see where Cheo and Ruben went after they left the pizzeria?
A. No, I didn't. You asked me that.
Q. Could you say you saw them, you didn't see them or you don't know? What did you see of them after you left the pizzeria and came back?
A. When I left the pizza shop, when I saw them, they were inside sitting down.
I walked out the pizza shop, and I didn't say hi to them, stood in front and told my nephew what I was going to do.
I went home and they told me not to do nothing and they ...