.jpg) Fernando Bermudez On August 4, 1991, at a nightclub in New York City, some Hispanic and black teenagers began taunting each other and when words escalated to punches, 16-year-old Raymond Blount punched Efrain Lopez.
Lopez told a man from his neighborhood about the incident, and when Blount and his friends came out of the club prepared for a fight, the man shot and killed Blount. Police showed mug shots of Hispanic men to a group of Blount’s friends, and left them to deliberate together about the identification. The witnesses identified 21-year-old Fernando Bermudez as the shooter.
Lopez initially told police that the shooting was committed by a man named “Wool Lou,” a former classmate. Though police could have identified “Wool Lou” as Louis Munoz, they failed to follow up on this statement. Bermudez was brought in for a lineup, although he was taller and heavier than the descriptions originally provided by witnesses. Police told the men in the lineup to sit down so their height was not noticeable. All but one witness identified Bermudez as the shooter. The witness who did not identify Bermudez was not asked to testify.
Even though Lopez had given police the address of “Wool Lou” and even though his identification of “Wool Lou” was on videotape, Lopez made a deal with the prosecution to identify Bermudez as the gunman in return for not being charged in the case.
Lopez testified at Bermudez’s trial in New York County Supreme Court that the gunman was nicknamed "Woolu." The defense said Bermudez’s nickname was “Most.” Four of the witnesses who identified Bermudez in the lineup testified at trial and identified him as the gunman.
Bermudez, who passed a polygraph examination, presented alibi witnesses in his defense.
A jury convicted Bermudez of second-degree murder on February 6, 1992. He was sentenced to 23 years to life in prison.
In 1993, all the witnesses who identified Bermudez at trial recanted their identifications. Lopez admitted he lied to avoid prosecution.
The other four witnesses also recanted their identifications, saying they were pressured by police to identify Bermudez. Even so, Bermudez’s post-conviction appeals all failed.
Until November 12, 2009, when New York County Acting Supreme Court Justice John Cataldo overturned Bermudez’s conviction and ordered Bermudez released. The ruling came following an extensive hearing when the eyewitnesses testified and recanted their identifications. In addition, Professor Jennifer Dysart, an expert in eyewitness identification, testified about the unreliable and coercive identification procedures. She explained the phenomena of co-witness contamination and unconscious transference when joint identifications occur. The witnesses reinforce each others choices, strengthening their belief they have made the right selection, Dysart testified.
Justice Cataldo dismissed the charges with prejudice because the new evidence undermined the conviction, and because the collective identification procedure used by police damaged any possible identification testimony from the eyewitnesses. The justice noted although a new trial was the appropriate remedy, "I find by clear and convincing evidence, that the defendant has demonstrated his actual innocence."
Justice Cataldo declared that the four eyewitness identifications, "long since recanted, have been demonstrated, by a preponderance of the evidence and beyond, to be mistaken and the product of unduly suggestive procedures."
Justice Cataldo also ruled that the trial prosecutor, Deputy District Attorney James Rodriguez, knew Lopez was testifying falsely and failed to correct the perjured testimony. "The prosecutor had a duty to correct this testimony," Justice Cataldo ruled.
In 2011, Bermudez filed a federal civil rights lawsuit seeking $30 million in damages from the city of New York. In 2014, Bermudez was awarded $4.75 million by the New York Court of Claims. In 2017, the city of New York agreed to settle the federal lawsuit for $7 million.
– Maurice Possley |