PLEASE TAKE NOTICE, that upon the annexed affirmation of Leah M. Busby, duly executed on the 25 th day of November, 2013, the Memorandum of Law filed herewith and the exhibits thereto, and all proceedings previously held herein, the undersigned will move this Court, Supreme Court of the State of New York, Criminal Term, 100 Centre Street, New York, New York, at a day and time to be set by this Court, for: An order pursuant to Criminal Procedure Law 440.10 vacating the judgment entered against Johnny Hincapie on January 3, 1992, or in the alternative, an order granting an evidentiary hearing; An order, pursuant to Criminal Procedure Law 440.30(5) to produce the defendant at any hearing to be conducted for the purpose of determining this motion; and
2
Such other and further relief as the Court may deem just and proper.
Dated: New York, New York November 25, 2013
_________/S/______________ LEAH M. BUSBY RONALD L. KUBY Law Office of Ronald L. Kuby 119 W. 23 rd Street, Suite 900 New York, New York 10011 (212) 529-0223
Attorneys for Johnny Hincapie
TO: New York County District Attorneys Office One Hogan Place New York, New York 10013
1
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: CRIMINAL TERM PART X --------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK,
Leah M. Busby, an attorney duly admitted to practice as such in the Courts of the State of New York, hereby affirms, under the pains and penalties of perjury, as follows: 1. I am one of the attorneys for Johnny Hincapie, and I make this Affirmation in support of the Motion to Vacate the Conviction of Johnny Hincapie pursuant to Criminal Procedure Law 440.10. 2. I make this Affirmation upon the basis of personal knowledge and information and belief. The sources of my information and belief include a review of the documents in this case, conversations with my client, interviews with witnesses, and the exhibits annexed to the Memorandum of Law. 2
3. I hereby incorporate by reference, as if fully set forth herein, the Statement of Facts in the accompanying Memorandum of Law, pages 1-27. 4. The grounds for relief raised in this motion have not previously been determined on the merits upon a prior motion or proceeding in a court of this state, or upon an appeal from judgment, or upon a prior motion or proceeding in a federal court.
WHERFORE, it is respectfully requested this Court vacate the conviction of Johnny Hincapie pursuant to Criminal Procedure Law 440.10, or in the alternative, order an evidentiary hearing.
Respectfully submitted, _________/S/__________ Leah M. Busby
Dated: New York, New York November 25, 2013
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: CRIMINAL TERM PART X --------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK,
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO VACATE CONVICTION OF JOHNNY HINCAPIE
LEAH M. BUSBY RONALD L. KUBY Law Office of Ronald L. Kuby 119 W. 23 rd Street, Suite 900 New York, New York 10011 (212) 529-0223
Attorneys for Johnny Hincapie
Dated: New York, New York November 25, 2013 i
TABLE OF CONTENTS
Table of Cases and Authorities ................................................................................. iv
Index of Exhibits ....................................................................................................... vi
STATEMENT OF FACTS ........................................................................................ 1
A. Introduction ........................................................................................... 1
B. The Crime .............................................................................................. 4
C. The Truth the Jury Never Heard: Johnnys Story and the New Evidence ........................................................................................ 6
i. New Evidence: Luis Monteros Affidavit and Evidence Obtained from FOIL Request ..................................... 7
ii. New Evidence: Anthony Andersons Affidavit ........................ 12
iii. Ricardo Lopezs Statement ....................................................... 13
D. Rounding Up the Wolfpack ............................................................. 15
E. Confession and Lineup ........................................................................ 18
F. Trial and Post-Conviction Proceedings ............................................... 23
G. A Trail of Believers ............................................................................. 25
H. Conclusion ........................................................................................... 26
I. JOHNNY HINCAPIES CONVICTION SHOULD BE VACATED UNDER CRIMINAL PROCEDURE LAW 440.10(1)(g) ON THE GROUNDS THAT NEWLY DISCOVERED EXCULPATORY EVIDENCE, WHICH COULD NOT HAVE BEEN PRODUCED AT TRIAL, ii
CREATES NOT ONLY A PROBABILITY, BUT A NEAR CERTAINTY OF A MORE FAVORABLE RESULT IF IT HAD BEEN INTRODUCED AT HIS TRIAL. ......................... 27
A. The Elements and Interpretation of Criminal Procedure Law 440.10(1)(g) ................................................................... 27
B. The Affidavit of Luis Montero ................................................. 30
i. Luis Montero Has Nothing To Gain By Coming Forward ........................................................................... 30
ii. Monteros Consistent Statements and Clear Memory ........................................................................... 32
iii. The Recommendation for Dismissals Corroboration of Monteros Account ..................................................... 33
C. The Affidavit of Anthony Anderson ......................................... 34
i. Andersons Consistency ................................................. 34
ii. Johnnys Serendipitous Meeting with Anderson and Andersons Basis for Not Coming Forward Earlier.............................................................................. 36
iii. Space and Time ........................................................... 37
D. The Confession of Ricardo Lopez ............................................ 38
E. Conclusion ................................................................................ 39
II. JOHNNYS CONVICTION SHOULD BE VACATED UNDER CRIMINAL PROCEDURE LAW 440.10(1)(h) ON THE GROUNDS THAT JOHNNY IS FACTUALLY INNOCENT AND HIS CONTINUED INCARCERATION VIOLATES HIS RIGHTS TO DUE PROCESS UNDER ARTICLE 1, SECTIONS 5 AND 6 OF THE NEW YORK iii
STATE CONSTITUTION AND THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. ............................................................................... 42
III. THIS COURT SHOULD RE-OPEN JOHNNY HINCAPIES SUPPRESSION HEARING BASED ON THE NEW EVIDENCE THAT HIS CONFESSION WAS OBTAINED IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE NEW YORK STATE AND FEDERAL CONSTITUTIONS. THE NEW EVIDENCE ESTABLISHES THAT JOHNNY HINCAPIES CONVICTION MUST BE VACATED PURSUANT TO SECTIONS (1)(b), (1)(d), (1)(f), AND (1)(h) OF CRIMINAL PROCEDURE LAW 440.10. ............ 45
Ronald Sullivan, 4 Are Given Maximum Sentences in Utah Tourists Subway Murder, The New York Times, Jan. 4, 1992, Available at http://www.nytimes.com/1992/01/04/ nyregion/4-are-given-maximum-sentences-in-utah-tourist-s- subway-murder.html. ............................................................................................... 15
vi
INDEX OF EXHIBITS
Exhibits A1-A4: Renderings of 7 th Avenue Subway Station
Exhibit B: Affidavit of Johnny Hincapie
Exhibit C: Affidavit of Luis Montero
Exhibit D: Recommendation for Dismissal of Indictment of Luis Montero
Exhibit E: Affidavit of Anthony Anderson
Exhibit F: Videotaped Confession of Ricardo Lopez
Exhibit G: DD5 Report by Detective James Christie, dated Sept. 4, 1990
Exhibit I: Videotaped Confession of Johnny Hincapie
Exhibit J: Confession Transcript of Johnny Hincapie
Exhibit K: Vivian Shevitz Letter, dated May 22, 2007
Exhibit L: Affidavit of William Hughes
Exhibit M: William Hughes, The Murder That Changed New York City, City Limits Magazine, October 26, 2010, Available at http://www.citylimits.org/articles/4220#.Ukm3JxBHZFA
Exhibit N: Affidavit of Robert Dennison
Exhibit O: Resume of Johnny Hincapie
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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: CRIMINAL TERM PART X --------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK,
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO VACATE CONVICTION OF JOHNNY HINCAPIE
STATEMENT OF FACTS A. Introduction The murder occurred days before the New York Post screamed to then- mayor David Dinkins, Dave, Do Something! It was 1990 a year of 2,245 homicides, including children hit by stray bullets, robberies gone wrong, and as it was the peak of the crack epidemic, scores of drug-related killings. By September 1990, the city, seemingly at its breaking point, had had enough. When, on September 2, 1990, a group of teens attacked a family of tourists in a subway station, leaving 22-year-old Brian Watkins dead, the city was enraged. The murder was seen as especially callous because the purpose of the attack was to get money 2
to go dancing. The murder garnered tremendous publicity, with the public demanding swift police work. Under immense pressure to solve this high-profile crime, police rounded up and interrogated several suspects within hours of the murder. Eight men were ultimately charged with crimes for their roles in the mugging. However, in its haste to please the public, the New York County District Attorneys Office wrongfully charged two men with this crime. Before trial, the District Attorney recommended dismissal of the indictment against one of these men, Luis Montero. The other man, Johnny Hincapie, was wrongfully convicted of second-degree murder and robbery, sentenced to 25 years to life, and remains in prison to this day. Johnny Hincapie played no part in the attack on the Watkins family. No physical evidence linked Johnny to the crime no blood, no weapon, no fingerprints. He was not positively identified by anyone as a participant in the robbery. The only evidence supporting Johnnys conviction was a confession, obtained through coercion, and a line-up identification in which an eyewitness stated Johnny looked vaguely familiar. Luis Montero, himself falsely accused and held in jail for over a year before the charges were dismissed, has provided an affidavit attesting to Johnnys presence with him or within his sight at the time the Watkins attack took place Johnny could not have been a participant. Monteros account is supported by the 3
affidavit of Anthony Anderson. Anderson, who admits his presence and participation in the robbery, states that Johnny played no part in the robbery and was not present when it took place. The affidavits of Luis Montero and Anthony Anderson are also corroborated by an earlier statement by Ricardo Lopez, who, like Anthony Anderson, was actually involved in the mugging of the Watkins family. In his statement, Lopez said Johnny was not present at the time of the robbery. This statement was excluded from Johnnys trial as hearsay, but used against Lopez. Finally, Luis Montero describes the brutality inflicted upon him by the investigating detectives. He was on the cusp of confessing to a crime he did not commit simply to make it stop. His affidavit provides new and important evidence supporting Johnnys longstanding claims that his confession was coerced. Johnny, who had no prior arrest record before this case, has spent the majority of his life in prison for a crime he did not commit. He entered prison at age 18, and he turned 41 on June 5, 2013. Justice has been done for the Watkins family. Yull Morales, the member of the group who actually stabbed Brian Watkins, confessed at the time of the murder and remains in prison. The five other men convicted of second-degree felony murder and robbery for their roles in the crime Anthony Anderson, Pascual 4
Carpenter, Emiliano Fernandez, Ricardo Lopez, and Ricardo Nova also are imprisoned. It is now time to do justice for Johnny. B. The Crime On Labor Day weekend in 1990, Brian Watkins and his family were visiting New York City from Utah to watch the U.S. Open tennis tournament. (Tr. 181). 1
On Sunday, September 2, 1990, after a day of watching tennis, Brian and his family were en route to a restaurant in Greenwich Village from their hotel on West 53 rd Street. (Tr. 182-83). They entered the subway station at 53 rd Street and 7 th
Avenue shortly after 10:00 p.m. and purchased their subway tokens. (Id.) See, Renderings of 7 th Avenue Subway Station, attached as Exhibits A1-A4. While they were waiting for their tokens, they noticed a group of teenagers enter the station without paying, after one member of the group had jumped the turnstile and opened the exit gate for the others. (Tr. 184-85). Not thinking much of it, they collected their tokens, passed through the turnstile, and walked down the steps to the subway platform. (Tr. 187). About an hour before the Watkins family had entered the subway station, approximately 30 to 50 teenagers boarded a subway train in Queens to go dancing at the Roseland Ballroom, a nightclub on West 52 nd Street. (Tr. 1972). The cover charge at Roseland that night was $15 per person. A portion of the group did not
1 All references to the trial transcript will be cited as Tr. followed by the page number. 5
have enough money to get into Roseland, and at some point, hatched a plan to grab a wallet from someone. (Id.) When the train pulled into the 7 th Avenue station, the majority of the group left for Roseland. Those without enough money re-entered the subway station. (Id.) One member of the group jumped the turnstile and opened the exit gate, letting the others enter. (Tr. 184-85). The group then walked down the stairs to the subway platform, and stood near the stairway. (Id.) Having spotted the Watkins family and choosing them as the target for the mugging, the group proceeded to attack the family. (Tr. 1972). Brians father, Sherwin, was knocked to the ground and his right back pocket and left front pocket were torn open with a box cutter. (Tr. 194). As a result, he sustained a deep wound to his buttocks and leg. (Tr. 204). Brians mother, Karen, was grabbed by the hair and kicked in the chest and face. (Tr. 286). When Brian attempted to intervene, he was fatally stabbed in the chest. (Tr. 287). Brians brother and sister-in-law were also present, but were not harmed. (Id.) A member of the group of teenagers grabbed approximately $150 to $200 in bills from Sherwins torn front pocket, and then the group ran out of the subway station. (Tr. 204-05). Brian Watkins ran after the group that had attacked his family, unaware that his pulmonary artery was severed (Tr. 287). He collapsed on the first landing near the token booth (Tr. 288). When Brians family caught up with him and realized he 6
had been stabbed, they called an ambulance. Brian died in the ambulance on the way to St. Vincents Hospital. (Tr. 305-06). C. The Truth the Jury Never Heard: Johnnys Story and the New Evidence
Johnny Hincapie, who is from Bayside, Queens, had recently turned eighteen when the attack on the Watkins family occurred. (Hincapie Aff. at 1, attached as Exhibit B). While Johnny did not play any part in the mugging, he was with the larger group of teenagers who went dancing at Roseland. (Id. at 2). Johnny was a talented dancer and at the time of the mugging, was interested in pursuing a career as a professional dancer. (Id. at 1-2). As a teenager, Johnny worked at dance clubs as a promoter, and performed as a dancer in several music videos. (Id.) When the subway train pulled into the 7 th Avenue station, Johnny got off with the larger group and exited the subway station. (Id. at 3). He did not go immediately to Roseland he first needed to find Anthony Nichols, who had his money. (Id.) Johnny had given his money to Nichols to hold onto because Johnny was wearing designer jeans without pockets and didnt have anywhere to put it. (Id.) After a few minutes, Nichols had not come out of the subway station, so Johnny asked the individuals he was with where he could find him. (Id. at 3). Johnny then walked down the steps to the token booth level, to see if Nichols was still in the subway station. (Id.) Johnny then passed through the exit gate without 7
paying and spoke to several other people he knew about Nichols whereabouts, including a person who was sitting on a bench. (Id.) Johnny remembers being told that some people may still have been downstairs, at the subway platform level. (Id.) Johnny then started to go down an escalator to look for Nichols. (Id.) On his way down the escalator, he saw a large crowd of people rushing toward the stairs and escalator, in his direction. (Id.) At that point, Johnny, unaware of what had happened below but seeing people fleeing from something, turned around and exited the station. (Id.) Johnny remembers bumping into a woman as he went back up the stairs. (Id. at 3-4). When Johnny got out of the subway station, he ran into Anthony Nichols, and they both walked to Roseland together. (Id. at 4). Johnny did not find out that the crowd leaving the station was rushing out because of the mugging until he saw the news the next morning. (Id.) Johnny had no knowledge of a plan to mug anyone. (Id.) i. New Evidence: Luis Monteros Affidavit and Evidence Obtained from FOIL Request
Johnnys account is corroborated by a recent affidavit sworn to by Luis Montero, who, like Johnny, had gone with the larger group to Roseland but did not participate in the mugging. Monteros affidavit is attached as Exhibit C. According to Montero, a few minutes after the large group left the 7 th Avenue subway station on its way to Roseland, a skinny guy, came down into the station and asked 8
about the whereabouts of a person whose name Montero does not recall and Montero told him that he did not know where he was. (Montero Aff. at 3). Montero did not know then, and does not know now the name of the skinny guy. (Id.) A short time later, Johnny, with whom Montero was acquainted, walked into the train station from the street level and approached Montero while he was sitting on a bench. (Id.) See, Exhibit A3 for their approximate positions in the subway station. Montero remembers that Johnny was looking for someone, but he doesnt remember who that person was. (Id.) Montero then remembers watching Johnny leave the station and then come back into the station a short time later. (Id.) Johnny again approached Montero and they spoke to each other about two attractive girls who were standing a few feet away. (Id.) The girls eventually left. (Id.) Montero then saw Johnny walk toward the electric stairs entrance to the subway platform. (Id.) 2 As Johnny started to walk down the escalator, Montero heard screaming. (Id.) The screaming was coming from the floor below, the subway platform level, and Montero could not see the platform from where he was sitting. (Id. at 4). To see what was going on, Montero ran toward the middle escalator. (Id.) Montero saw Johnny, who was walking down to the platform level and had almost reached the bottom of the
2 There were three ways to get to the subway platform from the token book level: two stairways on either end of the platform or one escalator in the middle. See, Exhibits A1-A2. 9
escalator. (Id.) See, Exhibit A4, which shows where Montero stood when he saw Johnny on the middle escalator. Montero then saw Johnny turn around and come up the same escalator. (Montero Aff. at 4). Montero remembers that the escalator was not running at the time. (Id.) When Johnny turned around, Montero saw him bump into a woman who gave Johnny a dirty look. (Id.) Montero then noticed the two girls they had been checking out earlier running up from the subway platform. (Id.) At that point, Montero panicked and ran to the bench to grab his shirt and then started to run out of the station. (Id.) Montero saw Johnny ahead of him on the stairway as he was running out of the station. (Id.) Montero then proceeded to Roseland. (Id. at 5). Montero later found out that the commotion in the station was a result of the mugging of the Watkins family on the subway platform. Based on the information provided in Monteros affidavit, Johnny could not have been involved in the mugging because Johnny was not on the subway platform at the time it took place. Statements made to detectives and prosecutors at the time of the mugging investigation by a witness, known only as Ms. V, provide support for Monteros affidavit. Ms. V is likely one of the girls that Montero and Johnny were checking out. Johnny only very recently learned that Ms. V spoke to detectives and that she had knowledge that could be helpful in proving his innocence. In response to a 10
FOIL request made on November 29, 2012, the District Attorneys Office released to Johnny the Recommendation for Dismissal (RFD) of the indictment against Luis Montero. The RFD, which was released on April 9, 2013, is attached as Exhibit D. The RFD heavily cites Ms. Vs statements to detectives in support of the dismissal of the indictment against Montero. According to the RFD, Ms. V was on the subway platform with a friend when the Watkins family was attacked. (RFD at 1). In response to witnessing the attack, Ms. V and her friend ran up to the token booth level of the station. Ms. V then saw the two Hispanic men run out of the station. (Id. at 3) Ms. V did not know Luis Montero by name, but she noticed him and the Hispanic man he was with because she felt they were leering at her and her friend. (Id. at 4). Because Ms. Vs account of what took place matched Monteros account, the District Attorneys Office concluded that the evidence was strongly supportive of Monteros contention that he remained on a bench at token booth level [sic] throughout the attack. (Id. at 5). Thus, Monteros account of what he saw and did on the night of the mugging was deemed reliable by the District Attorneys Office at the time of the original investigation. Monteros current affidavit conforms with his original statements to the District Attorneys Office. Therefore, Monteros current affidavit should be afforded the same credibility today. 11
Montero has not come forward to exonerate Johnny until now because he was afraid of dealing with law enforcement again. (Montero Aff. at 10). Montero, who was wrongfully held in jail for a year and a half before the indictment against him was dismissed, had many valid reasons for fearing law enforcement and for trying to put this case behind him. While Montero was in jail on charges of participating in the Watkins mugging, he received threatening letters purportedly from the KKK and his mother was attacked by an unknown group of people because of Monteros alleged participation in the mugging. (Id. at 9). Montero was so afraid after he was released from jail that he left the United States to live in Colombia for several months. (Id.) To make matters worse, as a result of recordkeeping errors related to Monteros participation in the Watkins mugging, he has had many problems with immigration officials over the years. (Id. at 10). He has had to go to court several times to sort out immigration matters related to this case. (Id.) With a family to care for, Montero has been fearful of doing anything that might interfere with his ability to obtain American citizenship. (Id.) Today, Monteros situation has changed. Montero recently passed his citizenship test and background check and will be sworn in as an American citizen in the near future. Montero has come forward now because he is less concerned 12
with immigration issues and understands that sharing his knowledge could help set free a wrongfully imprisoned man. ii. New Evidence: Anthony Andersons Affidavit Anthony Anderson, who continues to admit his involvement in the mugging, has also come forward to exonerate Johnny Hincapie. Andersons recently submitted affidavit, attached as Exhibit E, corroborates Johnnys account of events. Anderson, who was convicted in a trial separate from Johnnys with two other co- defendants, was not friends with Johnny at the time of the mugging, but knew of Johnny because he had heard rumors about Johnny being a good dancer. (Anderson Aff. at 1). At the time of the investigation of the mugging, Anderson told detectives about the other individuals involved in the attack, but did not mention Johnny. In Andersons attached affidavit, dated December 7, 2009, Anderson states: never did I see, nor was Johnny, at the crime scene during or after it took place. Johnny never knew about the crime, nor did he engage in any of the planning. This I am sure. (Anderson Aff. at 1). Anderson goes on to state: To specify, on Sunday, September 2, 1990, at approximately 10:00 PM, I and about a group of 40 teenage boys and girls got off from the E train on 7 th
Avenue subway station in Manhattan. As everybody exited the subway station, five others and I stood back in the platform level to plan a robbery; Johnny was not a part of the group that stood back. As the robbery commenced, several other people were running around the subway station that was not a part of the victims family. Who were they? I do not know. I, at one point, ran between one staircase to another and had the opportunity to 13
observe who was at the platform, I did not see Johnny at all in the platform during the robbery. Then as someone yelled, lets go, me and the other five exited the station up to the street level and ran to Roseland nightclub. Again, Johnny was not with us when we exited the subway station nor was he with us when we ran to Roseland. Only upon arriving to Roseland is when I first saw Johnny already on line with some girls.
(Id.) Anderson also explains why he has not come forward until now: his attorney advised him to keep [his] mouth shut about any information in the case. (Anderson Aff. at 2). His attorney told him anything he said would hurt him because he had already made an incriminating statement against himself. (Id.) Anderson also states he did not know he was legally able to come forward because he was and still [is] a layperson to the law. (Id.) In conclusion, Anderson states: I always knew that Johnny had nothing at all to do with this crime. Therefore, I am coming forward now and speaking the truth. I cannot allow an innocent man to continue to be in prison for a crime which he was not involved. (Id.) iii. Ricardo Lopezs Statement The confession of Ricardo Lopez, who was convicted of second-degree murder and robbery along with Johnnys other co-defendants, provides even further corroboration of Johnnys innocence. Johnnys jury never heard Lopezs statement; the trial court excluded it as hearsay. The relevant portion of Ricardo Lopezs confession follows: 14
A: When we got out wewent upstairs. Then a that whole bunch of people like (Indicating.) there was 60 of us, and 50 of them left (Indicating.) and the ones that need money stood there, but the two of them left. Q: Okay. A: And thats like it was eight of us. Q: Who was there then? A: It was Rocstar [Morales], Emiliano, Score [Carpenter], Anthony, a who else? A whats his name Ricardo, me, Johnny, and Kevin. Q: Okay. And they all needed money? A: (Shakes negatively.) No, Johnny and Kevin left. Q: Okay. A: They left. Q: So all the others needed money. Right? A: (Nods Affirmatively.) All of them. All six of us.
(Video Confession of Ricardo Lopez, disc enclosed as Exhibit F). As if the fact that Johnny was not there needed further confirmation, Lopez again clarified: Q: So there were eight people surrounding the five? A: No. No. Six. (Indicating.) Q: There were six? A: Because the two of them left.
(Id.) This portion of Ricardo Lopezs confession, considered together with the new evidence described above, would have given jurors reasonable doubts, if not strong doubts, about Johnny Hincapies guilt. However, this evidence was not available to Johnnys jury.
15
D. Rounding Up The Wolfpack With the media calling the Watkins mugging a wolfpack attack, 3 police immediately began rounding up suspects. The police investigation began with two men, Antonio Gonzalez and Ivan Vazquez, who had been standing outside of the 7 th Avenue subway station drinking beer during the mugging. (Tr. 372). Gonzalez, a locksmith, and Vasquez, a dispatcher, both were employees of a nearby hotel and had recently gotten off of work. (Tr. 371). When the large group of teenagers initially left the subway station, Gonzalez and Vasquez saw most of the group walk toward Roseland, while about 12 individuals, both male and female, stayed behind and hung out near the subway entrance. (Tr. 384). According to both Gonzalez and Vasquez, 3 to 5 members of the group then re-entered the subway station. (Tr. 431). One individual stayed outside of the station and they saw a couple of guys go up and down the subway steps a few times. (Tr. 433). A few minutes later, Gonzalez and Vasquez heard screaming and saw the group of teenagers they had noticed earlier running out of the subway station and then run in the direction of Roseland. (Tr. 438). Gonzalez went down the steps and found Karen Watkins, bleeding and distraught. (Id.) Vasquez went home. (Tr. 439). The police were called, and Gonzalez stayed at the scene,
3 See, Ronald Sullivan, 4 Are Given Maximum Sentences in Utah Tourists Subway Murder, The New York Times, Jan. 4, 1992, Available at http://www.nytimes.com/1992/01/04/nyregion/4- are-given-maximum-sentences-in-utah-tourist-s-subway-murder.html. 16
watching as Brian Watkins was sped off in an ambulance. (Tr. 399). Not knowing what to do, Gonzalez returned to his office to calm down. (Id.) At some point later, he returned to the subway station and asked to speak with a police officer. (Id.) Gonzalez informed a detective that he knew where the people responsible for the crime were. (Tr. 400). He walked with several detectives the few blocks to Roseland, and after walking through the club, he pointed out one of the men he had seen running out of the subway station, who was later identified as Anthony Anderson. (Id.) Gonzalez also pointed out a Hispanic man he claimed to have seen standing outside of the subway station while the others were underground. (Tr. 402). This man was Luis Montero. One of the detectives who worked on this case was Detective Ronald Casey. On the night of the crime, Det. Casey first examined the scene at the subway station, and then went to speak with the family at St. Vincents Hospital. (Tr. 592). After speaking with the family, he drove them to Roseland, where show-ups of Anthony Anderson and Luis Montero were conducted, with the family remaining inside the vehicle. (T. 600-05). At the time of the show-ups, the Watkins family stated that both Anderson and Montero had participated in the attack on them. (Id.; RFD at 2). Anderson and Montero were then taken to the Midtown North police precinct, where they were interrogated by Det. Casey, and another detective, 17
Detective Carlos Gonzalez. (Tr. 1153). Det. Gonzalez, who had played a major role in the investigation of the Central Park Jogger case just a little over a year before, would go on to become a key player in the investigation of this case as well. Based on the interrogation and confession of Anthony Anderson, and the descriptions provided by the Watkins family, detectives identified several other suspects outside Roseland when it closed the next morning. (Tr. 621-26). Montero did not confess, and did not provide detectives with any helpful information. (Tr. 1174). Two of the individuals who were subsequently brought in for questioning early in the morning of September 3 rd , Pascual Carpenter and Ricardo Nova, ultimately confessed to participating in the mugging. (Tr. 1176-94, 1469-79). Based on the information obtained from Carpenter and Nova, detectives left the precinct to look for additional suspects. (Tr. 1479-80). A few hours later, at around 2:00 p.m., detectives returned to the precinct with Emiliano Fernandez, Yull Morales, and Ricardo Lopez. (Tr. 1496-1511, 1569-93). Eventually, Fernandez, Lopez and Morales also confessed their involvement in the mugging. Each of these six men told essentially the same story: they got off the subway near Roseland with a group of about 30 to 60 other teenagers, and a small group stayed behind to commit a robbery so they could pay Roselands entrance fee. With one member of the group armed with a knife and another member armed 18
with an orange box cutter, they surrounded a family and slashed an older mans pocket to take his wallet. It was not until later that night, around 8:00 p.m., that detectives left to look for Johnny Hincapie, based on information provided by Emiliano Fernandez. (Tr. 1594-95, 1977). Emiliano Fernandez also provided detectives with two other names: Anthony Nichols and Kevin Mouton, two individuals who were never charged in relation to the mugging. See, DD5 of Detective James Christie, dated Sept. 4, 1990, attached as Exhibit G. E. Confession and Lineup Based on the information provided by Emiliano Fernandez, detectives arrived at Johnny Hincapies home around 9:00 p.m. on September 3 rd . (Tr. 2688). The detectives asked for Johnny, and when he appeared, grabbed him by the arm and ordered him to accompany them to the police station. (Tr. 2692, 2696, 2913). When Johnnys mother asked the detectives if he needed a lawyer, they asked how old he was, and told her that an 18-year-old did not need a lawyer. (Tr. 2261-3, 2693-4, 2696, 2739). Johnny was then taken to the Midtown North police precinct and was interrogated by Detective Ronald Casey, Detective James Christie, and Detective Carlos Gonzalez. Det. Christie told Johnny that Emiliano Fernandez had given up his name as a participant in the robbery. (H. 1261). While Det. Christie testified 19
that he used no physical force and did not raise his voice at Johnny, (H. 1262), what actually happened in the interrogation room was much less benign. Detectives Christie and Gonzalez introduced themselves to Johnny, asked if Johnny was hungry or thirsty, and left the interrogation room. (Hincapie Aff. at 5). Johnny was then left alone with Det. Casey, who had been lying on a bunk bed in the room, smoking a cigarette. (Id.) When Johnny told Det. Casey that he did not know about the robbery, Det. Casey repeatedly told him he was lying, and that if he wanted to go home, he would admit his involvement. (Id. at 6). When Johnny continued to tell Det. Casey that he knew nothing about the robbery, Det. Casey became increasingly violent. (Id.) He blew smoke in Johnnys face, screamed at him, pulled his hair, slapped him, and pushed Johnny to the floor with his foot. (Id.) Finally, Det. Casey told him that in order to go home, he needed to memorize the story given to him. (Id. at 6-7). He then told Johnny the details of the robbery and the role Johnny was to have played in it. (Id. at 7). When Johnny asked what a lawyer would say about Det. Casey telling him to memorize a story that Johnny knew to be untrue, Det. Casey said that the lawyer would advise him to memorize the story. (Id.) Det. Casey recited the story Johnny was to memorize several more times, and when Johnny had it memorized to Det. Caseys liking, he called in Det. Christie to write the story down. (Id. at 7). Johnny was told to sign off on the story and was then moved into another room where he 20
was videotaped reciting the same story to Assistant District Attorney Donna Henken. 4 (Id. at 8-9). Unlike other suspects who were given the opportunity to write their own statements (Tr. 631, 787, 804), Johnny was not given this option. (Tr. 2203). The same detectives that had interrogated him and took down the statement sat in the room watching. (Hincapie Aff. at 9). In the video of his confession, Johnny can be seen responding to ADA Henkens questions with one-word affirmative responses, and watching the detectives as he speaks. See, Hincapie Confession, disc attached as Exhibit I and transcript attached as Exhibit J. When he explains his involvement in the robbery, he tends to use words like they and them instead of I or we. (Id.) Beyond his own affidavit, proof that Johnnys confession was false is provided in the confession of Johnnys co-defendant, Pascual Carpenter, who confessed and was convicted of playing the precise role in the robbery to which Johnny confessed. In Johnnys confession, he stated that during the robbery, he grabbed a woman from behind and pulled her off of one of his friends. (Id.) However, Carpenter confessed, much earlier in the day, that he was the person who held the woman back during the incident. (Tr. 650, 1277). Carpenters written
4 ADA Donna Henken, who was 33 years old in 1990, was a relatively novice prosecutor September 2, 1990 was her first night alone on the homicide chart. See, Emily Sachar, Prosecutor Has Clean Confessions, Newsday, Oct. 15, 1991, attached as Exhibit H. 21
statement was taken at 6:15 a.m. on September 3 rd . (Tr. 1188). Johnnys statement was taken more than 16 hours later, at about 10:45 p.m. (Tr. 1230). Only one woman was grabbed during the mugging, Brian Watkins mother, Karen Watkins. Michelle Watkins, the only other woman present, told officers that she had not been touched. (H. 377). At some point during Johnnys interview with Detective Casey, Johnny was shown two photos, one of Karen Watkins and one of Michelle Watkins, and asked to point to a photo of the woman he confessed to grabbing. (T.706). Detective Casey testified that Johnny identified the correct photo. (Id.) However, Johnnys version of events is quite different: Detective Casey pointed to the photo he should pick and Johnny replied, okay. (Hincapie Aff. at 8). At trial, Johnny attempted to show that his confession was involuntary and unreliable. Aside from cross-examinations of the relevant detectives, Johnny also presented evidence, based on tests administered before and after the robbery, that he had an impaired ability to comprehend verbal and written words, and that this condition is exacerbated by anxiety. (Tr. 2576, 2584, 2777, 2867, 2890). Finally and perhaps most important, Luis Monteros affidavit supports Johnnys account of how he came to confess. In his affidavit, Montero describes the physical and verbal abuse that he was subjected to after his arrest, including being hit on the sides of his body with some sort of weapon and being choked. 22
(Montero Aff. at 5-8). Montero also states that he was told to sign a piece of paper, but he refused to do so. (Id. at 7). Montero was so scared and confused after hours of questioning, accusations, and abuse that by a certain point he was ready to confess to playing a part in the mugging. (Id. at 8). Luckily for Montero, he was too late. When Montero told a detective that he was ready to speak with the DA, he was told that he had lost his chance because the ADA conducting the video-taped interviews had already left for the night. (Id.) The only other evidence presented at trial to corroborate Johnnys confession was a line-up viewed by Karen Watkins. During a line-up that included Johnny, Ms. Watkins said Johnny looked vaguely familiar. (H. 1154). However, Ms. Watkins also could not identify Johnny at trial. (Tr. 316-17). In other line-ups involving Johnnys co-defendants, Ms Watkins used similar language, stating that certain individuals looked familiar, or similar, but those individuals were in fact fillers, line-up members who were not suspects. (Tr. 762, 768). The Watkins family, understandably distraught after the attack, misidentified a total of 27 fillers during various line-ups. In line-ups that the other witnesses Sherman Watkins, Todd Watkins, Michelle Watkins, Antonio Gonzalez, and Ivan Vasquez viewed that included Johnny, no witnesses identified Johnny as a participant in the robbery. The truth is that some of the co-defendants looked similar, especially Johnny and Emiliano, and both the witnesses and detectives had trouble 23
differentiating between them. This was established at trial, when an investigating officer was asked to identify Emiliano Fernandez in the courtroom, and he pointed to Johnny Hincapie. (Tr. 1203). The officers explanation for this mistake was, gee they look alike. (Id.) Luis Montero was also mistakenly identified in a show-up on the night of the mugging. (RFD at 2). In preparation for trial, the District Attorneys Office learned that the Watkins family had not actually recognized Montero in the show- up, but rather his peace sign necklace, which several of the other defendants also wore. (Id.) Unfortunately for Johnny, the significant evidence that his confession was coerced and that the line-up was unreliable was insufficient to give Johnnys jurors a reasonable doubt as to his guilt. F. Trial and Post-Conviction Proceedings The New York County District Attorneys Office originally divided the eight co-defendants into two groups of four, ostensibly in an effort to avoid Bruton issues. Johnny Hincapie was tried in the first trial of four with Emiliano Fernandez, Ricardo Nova, and Pascual Carpenter. The D.A.s decision to try Johnny in this group assured that his jury would not hear Lopezs exculpatory statement. All four defendants were convicted of second-degree murder and robbery on November 10, 24
1991. They were all sentenced to a term of imprisonment of 25 years to life on January 3, 1992. 5
Johnny lost all of his appeals. His petition for a writ of habeas corpus was likewise rejected by the Southern District of New York. Attorney Vivian Shevitz was appointed to represent Johnny in his appeal of the Southern Districts decision. See, Shevitz Letter, dated May 22, 2007, attached as Exhibit K. The Second Circuit affirmed the decision. Ms. Shevitz petitioned the U.S. Supreme Court for a writ of certiorari, which was also denied. A firm believer in Johnnys case, Ms. Shevitz continued to work on Johnnys case pro bono and wrote to the New York County District Attorneys Office in May 2007, asking that the office reconsider his conviction. Id. The D.A.s Office re-opened Johnnys case, and even went so far as to interview him. However, the Office was not satisfied that Johnnys conviction was wrongful, and closed Johnnys case once again. In violation of all principles of best practices for conviction integrity review, former Assistant District Attorney Thomas Schiels, the same prosecutor who tried Johnnys case, was responsible for reviewing his conviction.
5 The remaining three defendants were convicted on April 23, 1992. The number of defendants in the second trial was reduced from four to three when Luis Monteros charges were dropped. 25
G. A Trail of Believers Vivian Shevitz was not the only person who has been taken with Johnnys story. Johnnys sincerity, perseverance, and consistent recounting of what happened to him have attracted a group of individuals who have been fighting to prove his innocence for years. The two central figures working on Johnnys case over the past decade are William Hughes, a journalist and journalism professor at City University of New York, and Robert Dennison, former chairman of the New York State Board of Parole. William Hughes met Johnny in 2006 while he was working as a reporter for The Journal News in Westchester County. (Hughes Aff. at 1, attached as Exhibit L). At the time, Johnnys case was under review by the New York County District Attorneys Office, and Hughes was working on a story about Johnny. (Id. at 2). Vivian Shevitz was Johnnys attorney at the time, and she asked that Hughes not publish an article until the District Attorneys Office finished its review. (Id.) In 2010, shortly after the District Attorneys Office chose not to reconsider Johnnys conviction, Hughes extensive article was published in City Limits magazine. This article is attached as Exhibit M. Convinced of Johnnys innocence, Hughes also set out to write a book to tell Johnnys story. (Id. at 3). Hughes investigative efforts led to the discovery that Luis Montero was never questioned regarding Johnnys participation in the crime. (Id.) Hughes wrote 26
to Johnnys other six co-defendants as well. (Id.) Of those co-defendants, two agreed to meet with Hughes, two said their attorneys advised them not to speak about the case, and two did not respond to numerous letters from Hughes. (Id.) The two co-defendants Hughes visited, Morales and Fernandez, told Hughes they could not remember whether Johnny was present when the crime took place, or whether Johnny was involved in the crime in any way. (Id.) Robert Dennison met Johnny when he was giving a presentation to prisoners about how to best position themselves for release on parole. (Dennison Aff. at 1, attached as Exhibit N). Johnny told Dennison his story, and Dennison was struck by Johnnys sincerity and found his story believable and compelling. (Id. at 1-2). Thereafter, Dennison met Hughes and the two have been working together to prove Johnnys innocence since that time. (Id. at 2-3). H. Conclusion While in prison, Johnny Hincapie has earned his GED, his bachelors degree in behavioral science, and a masters degree in professional studies and urban ministry. Johnny has also been involved in the prisons theater program. When released from prison, Johnny plans to start a non-profit geared toward providing access to theater education to low-income children. See, Exhibit O, Resume of Johnny Hincapie. 27
The newly discovered evidence in this case, including the affidavits of Anthony Anderson and Luis Montero, together with the excluded statement of Ricardo Lopez, clearly establish that Johnny was not present when the mugging of the Watkins family occurred. Johnny, a man with a demonstrated interest and capacity to better New York City and society in general, has spent his adult life confined in a state penitentiary. It is time to do justice for Johnny.
ARGUMENT I. JOHNNY HINCAPIES CONVICTION SHOULD BE VACATED UNDER CRIMINAL PROCEDURE LAW 440.10(1)(g) ON THE GROUNDS THAT NEWLY DISCOVERED EXCULPATORY EVIDENCE, WHICH COULD NOT HAVE BEEN PRODUCED AT TRIAL, CREATES NOT ONLY A PROBABILITY, BUT A NEAR CERTAINTY OF A MORE FAVORABLE RESULT IF IT HAD BEEN INTRODUCED AT HIS TRIAL.
A. The Elements and Interpretation of Criminal Procedure Law 440.10(1)(g)
The power to grant a motion to vacate a defendants conviction based on newly discovered evidence is purely statutory and may be exercised only when the requirements of the statute have been satisfied, the determination of which rests in the courts sound discretion. People v. Huggins, 144 Misc.2d 49, 51-52 (Sup. Ct., N.Y. County 1989). Crim. Proc. L. 440.10(1)(g) provides that the Court may vacate a judgment of conviction where: 28
[n]ew evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.
Crim. Proc. L. 440.10(1)(g). Courts have identified six prerequisites to the granting of a motion to vacate a conviction based on newly discovered evidence. Those elements are: 1. it must be such as will probably change the result if a new trial is granted; 2. it must have been discovered since the trial; 3. it must be such as could not have been discovered before the trial by the exercise of due diligence; 4. it must be material to the issue; 5. it must not be cumulative to the former issue; 6. it must not be merely impeaching or contradicting the former evidence.
Huggins, 144 Misc.2d at 52 (citing People v. Salemi, 309 N.Y. 208, 216 (1955), cert. denied, 350 U.S. 950 (1956); People v. Latella, 112 A.D.2d 321, 322 (2d Dept. 1985); People v. Balan, 107 A.D.2d 811, 814-15 (2d Dept. 1985)). Pursuant to Crim. Proc. L. 440.30, upon considering the merits of a motion to vacate, a court may grant the motion without a hearing if: (a) The moving papers allege a ground constituting legal basis for the motion; and (b) Such ground, if based upon the existence or occurrence of facts, is supported by sworn allegations thereof; and (c) The sworn allegations of fact essential to support the motion are either conceded by the people to be true or are conclusively substantiated by unquestionable documentary proof.
29
Crim. Proc. L. 440.30(3). If a court elects to conduct a hearing, the defendant has the burden of proof, and must prove by a preponderance of the evidence every fact essential to support the motion. Crim. Proc. L. 440.30(6). When reviewing new evidence, courts must consider the cumulative effect of the new evidence and determine if, had such evidence been received at the trial, the verdict would have been more favorable to the defendant. People v. Tankleff, 49 A.D.3d 160, 181 (2d Dept. 2007). In making this determination, courts will look to whether the new evidence would have significantly undermined the Peoples case. People v. Lemus, 2005 N.Y. Misc. LEXIS 3611 (Sup. Ct., N.Y. County, Oct. 25, 2005). One crucial consideration is whether the witnesses providing new evidence were unrelated to each other and whether their genesis as witnesses was separated by both space and time. Tankleff, 49 A.D.3d at 180-81. Courts also look to whether the missing evidence at trial deprived the defendant from presenting an alternative theory of the case to the jury. People v. Wise, 194 Misc.2d 481, 490 (Sup. Ct., N.Y. County 2002). In this case, the new evidence consists of the affidavits of Anthony Anderson and Luis Montero. Because of the weakness of the prosecutions original case against Johnny, either of these affidavits standing alone would constitute a basis to vacate Johnnys conviction. Considering the cumulative effect of the new evidence, in combination with the weak basis on which Johnny was 30
convicted, it is clear that Johnny was wrongfully convicted and his conviction must be vacated. B. The Affidavit of Luis Montero Luis Monteros affidavit is honest and highly reliable for several reasons. Montero had many reasons to continue to stay uninvolved in this case, but he chose to come forward because he thought it was the honorable thing to do. In addition, Montero has given his account of the night in question several different times to different individuals, and each version has been the same. Monteros memory of the night in question is clear the events of that night had a huge impact on his life and because of that, he remembers the night very well. i. Luis Montero Has Nothing To Gain By Coming Forward Luis Montero already has lost a great deal because of this case and he feared that he risked losing even more should he share the information he possessed related to Johnny. Montero was wrongfully held in jail for 18 months as a result of his alleged participation in the mugging, and while there, was sent threatening letters purportedly from the KKK. (Montero Aff. at 9). Monteros mother was attacked because of his perceived involvement in the mugging. (Id.) When Montero left jail, he was afraid people were following him. (Id.) Montero was so afraid that he left the country for Colombia for several months. (Id.) 31
When Montero finally came back to the United States, this case haunted him for years. Montero faced many issues with immigration authorities because of clerical problems with his record as a result of his wrongful arrest. (Id. at 10). Finally, within the next few months, and more than 20 years after his wrongful arrest, Montero will be sworn in as an American citizen. With the longstanding trauma this case has caused Luis Montero, it is not hard to believe that he never wished to approach law enforcement about his knowledge related to Johnny Hincapie. When Montero told the truth back in 1990, the detectives did not believe him. Instead, they put him in jail for a year and a half. Montero cannot be faulted for thinking that no possible good could come of allowing law enforcement into his life again. When William Hughes and Robert Dennison approached Montero about Johnnys case in 2012, Monteros life had come a long way he was (and still is) gainfully employed, had children, and was just a short time away from becoming a citizen. Montero was less fearful than he had been in the past about the immigration consequences of coming forward, and decided to speak about his knowledge of Johnnys innocence. (Dennison Aff. at 2-3). From the first time Montero was approached by representatives of Johnny, Montero has never asked for anything in return. (Id. at 3).
32
ii. Monteros Consistent Statements and Clear Memory According to Hughes, when initially approached, Montero gave a detailed account of his recollections of Hincapies movements and whereabouts in the minutes before Brian Watkins was killed with no prompting, coaching or leading questions of any kind. (Hughes Aff. at 3). Montero drew a detailed sketch on a napkin in his kitchen for Hughes and Dennison, showing where he was standing, using arrows to indicate where he saw Hincapie enter and exit the 7 th Avenue subway station on the E-line. (Id. at 4). Hughes went to the subway station the next day to see if his memory of the station was accurate, and it matched every word he said, and furthermore dovetailed exactly with what Hincapie had been telling me for six years. (Id.) When Montero was brought to the Law Office of Ronald L. Kuby in May 2013 to prepare an affidavit, Montero expressed concern about any potential negative effects his coming forward would have on him, especially on his immigration status and his employment. (Id.) When made aware that his coming forward would not negatively affect him, he reluctantly provided an overview of what happened on September 2, 1990. (Id.) Montero provided the same account, with the same details, that he had previously told Hughes and Dennison. (Id.)
33
iii. The Recommendation for Dismissals Corroboration of Monteros Account
According to the Recommendation for Dismissal (RFD) of the indictment against Luis Montero, a young woman, referred to only as Ms. V, made statements to detectives that provided corroboration of Monteros account of events. Ms. Vs statements were heavily relied on by the District Attorneys Office in its decision to dismiss the indictment against Montero. Notably, Montero provided his account to Johnnys team before the team obtained the RFD. (Hughes Aff. at 4). According to the RFD, Ms. V was on the subway platform with a friend when the Watkins family was attacked. (RFD at 1). In response to witnessing the attack, Ms. V and her friend ran up to the token booth level of the station. Ms. V then saw the two Hispanic men run out of the station. (Id. at 3) Ms. V did not know Luis Montero by name, but she noticed him and the Hispanic man he was with because she felt they had been leering at her and her friend. (Id. at 4). The District Attorneys Office determined that Ms. Vs account matched Monteros account sufficiently to establish the reliability of Monteros statements, and was strongly supportive of Monteros contention that he remained on a bench at token booth level [sic] throughout the attack. (Id. at 5). The District Attorneys Office deemed Monteros account of what he saw and did on the night of the mugging reliable at the time of the original investigation. Because Monteros 34
statements then are consistent with his statements today, this court should likewise deem his current affidavit reliable. C. The Affidavit of Anthony Anderson There is no reason to doubt the reliability and credibility of Andersons affidavit. Andersons consistent account of which individuals were involved in the mugging, the method by which Johnny learned of Andersons willingness to come forward on his behalf, Andersons reasonable basis for not sharing the information he possessed, and the space and time between the affidavits of Anderson and Luis Montero, all establish that Andersons affidavit is the truth. i. Andersons Consistency Anderson has been consistent all along. In Andersons original statements to detectives, he implicated himself along with several others in the mugging, but not Johnny: ADA Shiels: Now, you said that [Anthony Anderson] gave some names of persons that he was with. Do you recall what names he gave?
Det. Casey: He gave street names. He gave Score, Trauma, Rock Star, Ricardo, Ricky, Emiliano.
(H. 267). The real names of these individuals are as follows: Score was Pascual Carpenter; Trauma was Emiliano Fernandez; Rock Star was Yull Morales, Ricardo was Ricardo Nova, Ricky was Ricardo Lopez. Emiliano is the same Emiliano 35
referred to as Trauma. (H. 268-89). Anderson later gave additional names to Detective Casey, Joe Santana and Keith Aldridge, as people he was with. (H. 268). Santana and Aldridge were brought in for questioning and eventually released. (T.785). Anderson never mentioned Johnny Hincapie. Andersons recent affidavit constitutes newly discovered evidence even though Anderson gave previous statements about the Watkins mugging to detectives: it is not that the witness is newly discovered, but it is the fact that since the trial, the witness has, for the first time, made statements which makes such evidence newly discovered. People v. Stokes, 83 A.D.2d 968, 969 (2d Dept. 1981). Until recently, Anderson had not spoken to anyone about his knowledge that Johnny was not involved in the mugging. Andersons affidavit is not a repetition of his previous statements: Johnny never knew that Anderson specifically remembered that he was not present during the mugging. For this reason, this case is different from People v. Huggins, where the court held: The alleged new evidence is former codefendant Levon Crawfords proffered testimony that defendant was not in any way involved in the commission of the robbery, but rather, he just stood there. However, Crawford's proffered testimony is a virtual repetition of what Crawford said during his plea allocution. Defendant makes no claim that Crawford had any potential testimony not known to him at the time of the trial. Therefore, it does not satisfy CPL 440.10 (1) (g)s requirement that it be new evidence that was discovered since the entry of a judgment based upon a verdict of guilty after trial.
People v. Huggins, 144 Misc.2d 49, 52 (Sup. Ct., N.Y. County 1989).
36
In Andersons recent affidavit, he states that he and five others planned and committed a robbery. (Anderson Aff. at 1). This is clearly consistent with his original statement that he, Carpenter, Fernandez, Morales, Nova, and Lopez participated in the crime. Moreover, each of the five other suspects interviewed corroborated Andersons account of the six individuals involved. (Tr. 1470, 1187- 89). Anderson told the truth then: Anderson, along with Pascual Carpenter, Emiliano Fernandez, Yull Gary Morales, Ricardo Nova, and Ricardo Lopez were the only participants in the Watkins mugging. Today, Anderson is simply telling more of the truth: Johnny Hincapie was not involved. Johnny Hincapie was not there. ii. Johnnys Serendipitous Meeting with Anderson and Andersons Basis for Not Coming Forward Earlier
While in prison at Sing Sing, Johnny ran into Anthony Anderson in the visitors room. (Hincapie Aff. at 10). Johnny asked Anderson if they could meet to talk at some point in the prison library. (Id.) When they later met, Anderson told Johnny that he knew that Johnny was not involved in the mugging, but had been told by his lawyer not to speak about the case to anyone. (Id.) Johnny asked Anderson if he would now be willing to submit an affidavit on his behalf, and Anderson agreed. Anderson never asked Johnny for anything in return. (Id.) Anderson has no possible motive to lie: he and Johnny were never friends and are 37
not friends now. Anderson is not getting anything out of coming forward, except of course clearing his conscience. It is understandable that Anderson had not come forward until he was approached by Johnny. Andersons attorney had advised him to keep [his] mouth shut about any information in the case. (Anderson Aff. at 2). His attorney told him anything he said would hurt him because he had already made an incriminating statement against himself. (Id.) Anderson also stated he did not know he was legally able to come forward because he was and still [is] a layperson to the law. (Id.) Anderson ends his affidavit by stating, I always knew that Johnny had nothing at all to do with this crime. Therefore, I am coming forward now and speaking the truth. I cannot allow an innocent man to continue to be in prison for a crime which he was not involved. (Id.) iii. Space and Time In evaluating the reliability of new evidence, one crucial consideration is whether the witnesses providing new evidence were unrelated to each other and whether their genesis as witnesses was separated by both space and time. Tankleff, 49 A.D.3d at 180-81. The genesis of Anthony Anderson and Luis Montero as witnesses was separated by both space and time. Andersons affidavit came about because of a chance meeting between Anderson and Johnny in prison in 2009. (Hincapie Aff. at 10). 38
In 2012, Hughes located Luis Montero with the help of former New York State Board of Parole Chairman Robert Dennison. (Hughes Aff. at 3). Hughes and Dennison learned that no detectives or lawyers had ever approached Montero about his knowledge related to Johnnys involvement in this case. When located by Hughes and Dennison, Montero was not in prison and had not been in contact with Anthony Anderson. Separated in time and space from Johnnys encounter with Anderson in prison, Montero corroborated Andersons statement that Johnny was not involved in the mugging. (Id. at 3-4). D. The Confession of Ricardo Lopez In the context of CPL 440.10 motions, courts have considered evidence, even if it is not newly discovered, when it corroborates other newly discovered evidence. People v. Vasquez, 36 Misc.3d 1236(A), at *33 (Sup. Ct. N.Y. County 2012). In Vasquez, the Court was more inclined to consider such evidence because the motion did not rest on that evidence alone. Id. at 33-34. Although it is not new evidence, and was not admissible at trial 6 , the confession of Ricardo Lopez should be considered along with the new evidence because it strongly corroborates the affidavits of Anderson and Montero. Lopezs original confession establishes that more reliable evidence of Johnnys innocence
6 The Second Circuit held that Lopezs statement was rightfully excluded as hearsay. See, Hincapie v. Greiner, 56 Fed. Appx. 61, 62 (2d Cir. 2003). 39
exists, the genesis of which was separate in both space and time from the affidavits of Anderson and Montero. Ricardo Lopez was one of the six admitted participants in the Watkins mugging, and he remains in prison today. Lopez confessed shortly after the mugging, and the relevant portion of his confession reads as follows: A: When we got out wewent upstairs. Then a that whole bunch of people like (Indicating.) there was 60 of us, and 50 of them left (Indicating.) and the ones that need money stood there, but the two of them left. Q: Okay. A: And thats like it was eight of us. Q: Who was there then? A: It was Rocstar[Morales], Emiliano, Score [Carpentier], Anthony, a who else? A whats his name Ricardo, me, Johnny, and Kevin. Q: Okay. And they all needed money? A: (Shakes negatively.) No, Johnny and Kevin left. Q: Okay. A: They left. Q: So all the others needed money. Right? A: (Nods Affirmatively.) All of them. All six of us.
* * * * *
Q: So there were eight people surrounding the five? A: No. No. Six. (Indicating.) Q: There were six? A: Because the two of them left.
(Exhibit F). E. Conclusion Considering the cumulative effect of the newly discovered evidence, the affidavits of Anderson and Montero significantly undermine the prosecutions 40
already weak case against Johnny Hincapie. The only real evidence against Johnny was his confession. The other evidence against Johnny was minimal. If the jury had had the opportunity to weigh a confession that bore signs of coercion against the testimony of Anderson and Montero, the jury would have almost certainly come to a different conclusion about Johnnys guilt. The Appellate Divisions conclusion in People v. Tankleff is instructive here. In Tankleff, the court explained its procedure for evaluating the new evidence under C.P.L. 440.10(g): At the original trial, the defendants repudiated confession was the most compelling evidence elicited by the prosecution. Arguably, it was the linchpin of the prosecution's case. The Miranda aspects of this case have been extensively litigated and will not be revisited. However, when the evidence presented at the CPL 440 hearing is evaluated against the backdrop of the trial evidence, including the defendants confession, how the confession was obtained, and the fact that the defendant almost immediately recanted the confession, the newly-discovered evidence is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant(CPL 440.10 [1] [g]).
Tankleff, 49 A.D.3d at 182. Applying this reasoning to the case at bar, in which Johnnys confession was also the linchpin of the prosecutions case, this court should come to the same conclusion. The new evidence, evaluated against the backdrop of the scant evidence corroborating Johnnys confession and the improper means of obtaining it, should be considered of such character as to 41
create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant. The remaining prerequisites for granting a motion to vacate based on newly discovered evidence are likewise present. The new evidence was discovered since the trial: Johnny learned of Andersons knowledge of his innocence in 2009 and William Hughes and Robert Dennison tracked down Montero just last year. The due diligence requirement is measured against a defendants available resources and the practicalities of the particular situation. Lemus, 2005 N.Y. Misc. LEXIS 3611, at *57. The focus of Johnnys lawyers in the years following his conviction was to argue that Johnnys conviction was unjust for legal reasons, such as the exclusion of Ricardo Lopezs confession. When he lost his appeals and his habeas petition, Johnny wanted to hire a private investigator, but could not afford one. (Hincapie Aff. at 10). In attempting to investigate his case on his own, Johnny remembered talking to many people that night he did not know where to start in terms of locating people who could exonerate him. (Id.) Johnny never knew that Anthony Anderson remembered, and was willing to say, that he knew Johnny was not there until he bumped into him in prison. (Id.) And, it was not until William Hughes and Robert Dennison came on board that Johnny was able to locate and question Luis Montero. (Id. at 11). 42
The new evidence is obviously material to Johnnys innocence: both Montero and Anderson now say that Johnny was not there and could not have been there. The new evidence is not cumulative or impeaching. At trial, Johnny did not possess, and therefore did not present, evidence of witnesses who knew he was not present for the mugging. The new evidence is just that new and does not impeach witness testimony related to Johnny. There is no witness testimony for Johnny to impeach. Based on the foregoing, the conviction of Johnny Hincapie must be vacated, or in the alternative, a hearing must be held with respect to the newly discovered evidence. II. JOHNNYS CONVICTION SHOULD BE VACATED UNDER CRIMINAL PROCEDURE LAW 440.10(1)(h) ON THE GROUNDS THAT JOHNNY IS FACTUALLY INNOCENT AND HIS CONTINUED INCARCERATION VIOLATES HIS RIGHTS TO DUE PROCESS UNDER ARTICLE 1, SECTIONS 5 AND 6 OF THE NEW YORK STATE CONSTITUTION AND THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
New York trial courts are generally in agreement that the conviction of an innocent person violates the Due Process Clause of the New York State Constitution. People v. Bermudez, 25 Misc.3d 1226A (Sup. Ct., N.Y. County 2009); People v. Wheeler, 25 Misc.3d 690 (Sup. Ct., Kings County 2009). To establish actual innocence, courts require a defendant to demonstrate by clear and 43
convincing evidence that the defendant is actually innocent of the crime for which he was convicted. Bermudez, 25 Misc.3d 1226A, at *61. In claims for actual innocence, unlike claims based on newly discovered evidence, new evidence may be considered, whether or not it satisfies the Salemi factors. Id. The hearing court may examine all of the currently available, credible evidence in order to determine whether the defendant has met his burden of proof. Id. at *62. The Bermudez court explained: For example, if new evidence overwhelmingly demonstrates a defendants actual innocence, but could have been discovered by the time of trial by the exercise of due diligence, it would not meet the requirements of CPL 440.10(1)(g). Further, the right to raise a claim of actual innocence would obviate other legal barriers, such as prior adverse court determinations, which might otherwise bar further recourse to the courts.
Id. at *61-62. In this case, the overwhelming evidence supporting Johnny Hincapies innocence establishes by clear and convincing evidence that he is actually innocent. The reliable, credible affidavits of Luis Montero and Anthony Anderson corroborate each other and show that Johnny was not involved in, and was not present for, the mugging of the Watkins family. The Recommendation for Dismissal of Luis Monteros indictment demonstrates that Monteros statements are trustworthy and consistent. The other important exculpatory evidence is in the confession of Ricardo Lopez. 44
Should the court choose to ignore the content of Lopezs confession for the purpose of deciding this motion based on Crim. Proc. L. 440.10(1)(g), there is certainly no bar to considering the Lopez confession on the grounds of actual innocence. One of the purposes of courts permitting motions to vacate on the grounds of actual innocence is to consider evidence that might be barred in other contexts. See, Bermudez, 25 Misc.3d 1226A, at *61-62. In the confession of Ricardo Lopez, he states in no uncertain terms that Johnny was not at the scene of the mugging. (Exhibit F). When pressed about Johnnys presence, Lopez reiterated that Johnny had already left the subway platform when the mugging took place. (Id.) Ricardo Lopezs statements corroborate the affidavits of Anderson and Montero. Moreover, there was never and is not currently a relationship in time or space between the statements of these three men. Even if the original case against Johnny Hincapie was strong, these three pieces of evidence would be sufficient to establish his innocence. But the original case was not strong it was extraordinarily weak, and the court should also consider that fact in making its determination as to Johnnys actual innocence. In evaluating whether a defendant is actually innocent, courts consider the lack of evidence connecting the defendant to the crime. Bermudez, 25 Misc.3d 1226A, at *101. In Bermudez, the court noted: there has never been any forensic 45
evidence to link the defendant to this crime, no blood, no fingerprints, not even a sighting of his car. Id. The same is true in Johnnys case. There was no physical evidence linking Johnny to this crime no blood, no fingerprints. Johnny was the last of the defendants brought in for questioning, and was not brought in until Emiliano Fernandez gave Johnnys name, along with the names of two other individuals who were not involved, to detectives. (Exhibit G). Aside from the testimony from Karen Watkins that Johnny looked familiar (just as a couple dozen other lineup fillers looked familiar), the only other evidence presented at trial against Johnny was his own false confession. In sum, the weaknesses of the prosecutions original case against Johnny, together with the strong and credible new evidence and the confession of Ricardo Lopez, establish by clear and convincing evidence that Johnny is actually innocent of the crime for which he was convicted.
III. THIS COURT SHOULD RE-OPEN JOHNNY HINCAPIES SUPPRESSION HEARING BASED ON THE NEW EVIDENCE THAT HIS CONFESSION WAS OBTAINED IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE NEW YORK STATE AND FEDERAL CONSTITUTIONS. THE NEW EVIDENCE ESTABLISHES THAT JOHNNY HINCAPIES CONVICTION MUST BE VACATED PURSUANT TO SECTIONS (1)(b), (1)(d), (1)(f), AND (1)(h) OF CRIMINAL PROCEDURE LAW 440.10.
That the phenomenon of false confessions is genuine has moved from the realm of startling hypothesis into that of common knowledge, if not conventional 46
wisdom. People v. Bedessie, 19 N.Y.3d 147 (Ct. App. 2012). Johnny Hincapies confession was the central piece of evidence presented against him at trial. With that in mind, and considering the new evidence of Johnnys innocence, this Court should carefully consider the circumstances surrounding Johnnys decision to confess, and re-open his suppression hearing. During Johnnys Huntley hearing, which was consolidated with the Huntley hearings for his co-defendants, Johnny did not testify. Johnny was advised not to testify by his attorney. The hearing was devoid of any evidence of coercion by detectives. The testimony given by detectives at the hearing suggested that Detective Christie was the central detective involved in questioning Johnny, and that Detective Casey played a minor role. (H. 1262). This inaccurate portrayal of Johnnys interrogation allowed Detective Casey to avoid a rigorous cross- examination that could have elicited evidence of coercion. We now know that the interrogation of Johnny, and of his co-defendants, was coercive. This Court need not rely on Johnnys word alone in coming to this conclusion: the sworn statements of Luis Montero establish that the detectives in this case used incredibly coercive techniques, including both physical and emotional abuse, in order to elicit confessions. When Luis Montero was first questioned about the mugging, he told the detectives the truth, that he did not know anything about it. (Montero Aff. at 6). As 47
time wore on, and Montero continued to assert his ignorance of the mugging, the detectives became increasingly intimidating. (Id. at 6-7). After hours of questioning led nowhere, the detectives screamed at Montero, told him that he was lying and that he could go home only if he told them what happened. (Id.) The detectives also asked Montero to sign a pre-written statement. (Id. at 7). When the verbal abuse was not enough to elicit a confession, the detectives brought him into a large empty room with no one else in sight, choked him, and hit him on the sides of his body with some sort of weapon. (Id.) Montero was so scared and confused after the hours of questioning, accusations, and physical and emotional abuse that by a certain point he was ready to confess to playing a part in the mugging. (Id. at 8). Johnnys account of the abuse he endured that led him to give a false confession is consistent with Monteros account. As Johnny states in his affidavit, when he arrived at the police precinct, the first thing that he was told was that one of his best friends gave up his name as a participant in the robbery. (H. 1261). Two detectives asked him if he needed anything to eat or drink, then left the room. (Hincapie Aff. at 5). Johnny was then left alone with Det. Casey, who had been lying on a bunk bed in the room, smoking a cigarette. (Id.) When Johnny told Det. Casey that he did not know about the robbery, Det. Casey repeatedly told him he was lying, and that if he ever wanted to see his 48
family again, he would confess. (Id. at 6-7). When Johnny continued to tell Det. Casey that he knew nothing about the robbery, Det. Casey became increasingly violent. (Id.) He blew smoke in Johnnys face, screamed at him, pulled his hair, slapped him, and pushed Johnny to the floor with his foot. (Id.) Finally, Det. Casey told him that in order to go home, he needed to memorize the story given to him. (Id.) He then told Johnny the details of the robbery and the role Johnny was to have played in it. (Id. at 7). When Johnny asked what a lawyer would say about Det. Casey telling him to memorize a story that Johnny knew to be untrue, Det. Casey said that the lawyer would advise him to memorize the story. (Id.) Det. Casey recited the story Johnny was to memorize several more times, and when Johnny had it memorized to Det. Caseys liking, he called in Det. Christie to write the story down. (Id. at 7-8). Johnny was told to sign off on the story and was then moved into another room where he was videotaped reciting the same story to ADA Henken. (Id. at 8-9). Johnny was not given the opportunity to write his own statement. (Tr. 2203). The same detectives that had interrogated him and took down the statement sat in the room watching. (Hincapie Aff. at 9). In the video of his confession, Johnny can be seen responding to ADA Henkens questions with one-word affirmative responses, and watching the detectives as he speaks. See, Exhibits I 49
and J. When Johnny explains his involvement in the robbery, he tends to use words like they and them instead of I or we. (Id.) At trial, Johnny attempted to show that his confession was involuntary and unreliable. Aside from cross-examinations of the relevant detectives, Johnny also presented evidence, based on tests administered before and after the robbery, that he had an impaired ability to comprehend verbal and written words, and that this condition is exacerbated by anxiety. (Tr. 2576, 2584, 2777, 2867, 2890). Unfortunately for Johnny, at the time of his trial, the science and law related to false confessions was not nearly as advanced as it is today. See, Bedessie, 19 N.Y.3d at 147. Criminal Procedure Law 440.10 provides that a court may vacate a judgment on the grounds that [t]he judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting on behalf of a court or a prosecutor, CPL 440.10(1)(b), [m]aterial evidence adduced by the people at a trial resulting in the judgment was procured in violation of the defendants rights under the constitution of this state or of the United States, CPL 440.10(1)(d), [i]mproper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom, CPL 440.10(1)(f), or [t]he judgment was 50
obtained in violation of a right of the defendant under the constitution of this state or of the United States. CPL 440.10(1)(h). See, People v. Fuller, 29 Misc.3d 1207(A), *3-4 (Sup. Ct., N.Y. County 2010). It is well settled that a confession obtained by coercive means constitutes a constitutional violation. People v. Tarsia, 50 N.Y.2d 1, 10 (Ct. App. 1980). The Court of Appeals explained the dangers of using improper means to elicit a confession as follows: much of what is cherished in our society may be traced to the Federal and State Constitutions steadfast refusal to countenance confessions obtained by coercive means. To declare otherwise, in effect that the end of securing the conviction of a criminal justifies whatever means, however inhumane, the State chooses to employ, would signal the demise of public trust in the institutions of GovernmentEveryone therefore agrees that third degree methods are intolerable; their potential for generating unreliable, if not patently false, confessions is readily recognizable even by the most unsophisticatedWhat emerges from the cases is a reliance on the spirit of the constitutional protections, tempered always by the particular circumstances of each case.
Id. at 10.
In light of the new evidence provided by Luis Montero, and its corroboration of Johnnys account of how he came to give a false confession, this Court should re-open Johnnys suppression hearing. The conduct of the detectives in this case, particularly the conduct of Det. Casey, is precisely the type of treatment prohibited by our State and Federal Constitutions. Upon examination of the relevant evidence, this Court will likely find that Johnnys conviction must be vacated 51
based on Criminal Procedure Law 440.10(1)(b), (d), (f), and (h), on the grounds that Johnnys confession was obtained in violation of his due process rights.
CONCLUSION For the foregoing reasons, the conviction of Johnny Hincapie must be vacated. In the alternative, a hearing must be held to examine the newly discovered evidence.
Dated: New York, New York November 25, 2013
________/S/________________ LEAH M. BUSBY RONALD L. KUBY Law Office of Ronald L. Kuby 119 W. 23 rd Street, Suite 900 New York, New York 10011 (212) 529-0223
Attorneys for Johnny Hincapie
EXHIBITS A1-A4
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F This exhibit is a disc.
EXHIBIT G
EXHIBIT H
EXHIBIT I This exhibit is a disc.
EXHIBIT J
EXHIBIT K
Vivian Shevitz Attorney at Law 46 Truesdale Lake Drive South Salem, New York 10590 Office and voicemail: 914 763 2122 Telefax: 914 763 2322 e-mail: vivian@shevitzlaw.com
May 22, 2007 Hon. Robert M. Morgenthau District Attorney, New York County One Hogan Place New York, New York 10013
Donald J. Siewert Assistant District Attorney One Hogan Place New York, New York 10013
Re: Johnny Hincapie- Request to Review Conviction
Dear Mr. Morgenthau and Mr. Siewert:
In 2002, I wrote and asked you to review the conviction of Johnny Hincapie, whom I represented at the time by appointment of the Second Circuit Court of Appeals in connection with the denial of his petition for habeas corpus relief. With the passage of time and the courts and publics recognition through DNA testing that there have been many erroneous convictions, including in cases where the defendant confessed, I am asking you to review the case anew.
This Extremely High-Profile Case:
In September, 1990, New York City was stunned by an attack on a family of tourists from Utah. The family of five, on their way to dinner after attending the U.S. Open Tennis Tournament, was attacked by a gang of youths while waiting on a subway platform. The attack was shocking not only because it left twenty-two year old Brian Watkins dead from stab wounds, but because the motive of the attack was to get money to go 2 dancing, and the attackers went right from the scene of the crime to the dance hall. The murder engendered tremendous publicity and swift (and hasty) police work. Within hours, perpetrators were identified and arrested. The last of those arrested was Johnny Hincapie. Mr. Hincapie was not positively identified by anyone (he was not even tentatively identified by five of the six eyewitnesses who testified for the State at trial); no physical evidence linked him to the crime; and, unlike others who were prosecuted, he was not described by any of the eyewitnesses to the crime, he had no prior arrest record, he did not possess a weapon when arrested, and unfortunately for Mr. Hincapie in the post-DNA world no blood was found on his clothing.
However, Mr. Hincapie, confessed. On the videotape of the confession, Mr. Hincapie grudgingly repeats, in answer to questions, what the detectives had told the prosecutor he had stated, which, Mr. Hincapie respectfully states, was what the detectives had in essence coerced him to say.
The quick succession of arrests after the attack was triggered by two eyewitnesses who reported having heard a reference to Roseland when a group of youths fled the subway. (Trial Tr. 391) 1 The eyewitnesses were taken to Roseland by police and inside found and identified Anthony Anderson and Louis Montero. (Hearing 145, 913) Based on the interrogation and confession of Anderson and descriptions provided by the Watkins family, the police next found several other suspects outside Roseland when it closed the next morning. (Hearing. 267, 637, 1389-9; Trial 616, 1165-1185, 1433, 1780) Two of these (Joe Santana and Keith Aldridge) were eventually released (Tr. 785), but two others were brought in for questioning (Ricardo Nova and Pascal Carpentier), and both confessed to participating in the subway robbery; each also confirmed Andersons earlier identification of three other participants (which did not include Mr. Hincapie): Emilio Fernandez, Ricardo Lopez and Gary Morales. (Hearing 668, 1421; T. 633, 1472)
1
3 These three were tracked down the next day in Queens, brought in for questioning, and eventually each of them also confessed to participating in the robbery. (H. 710, 1608, 1625, 1780; T. 955, 1565, 1689, 1697, 1839) All told essentially the same story: They, among a huge group of young men and women (variously, 30 to 60), arrived at the subway stop near Roseland. Most headed directly for the dance hall, but a small group, realizing that they did not have enough money to pay the entrance fee, went back down into the subway to commit a robbery. One of them was armed with a knife and another a box cutter; they swarmed around the Watkins family and slashed Mr. Watkins pants pocket in order to take his wallet. Brian Watkins was stabbed in the ensuing melee.
Eventually Mr. Hincapie was arrested, interrogated, and charged.
Your office essentially relied on two pieces of evidence to convict Mr. Hincapie -- his confession that he was present and restrained one of the women in the group, and the assertion by the victims mother (Karen Watkins) when she viewed Hincapie in a line-up that he looked vaguely familiar.
Mrs. Watkins trial testimony demonstrated confusion, to say the least. She, like every other family member, had also mistakenly identified several of the line-up fillers as familiar and similar. Indeed, not only did the Watkins family (understandably numb and distraught after the chaotic events in the subway (T. 726, H. 270, 1235-6, 1759)) misidentify a total of 27 fillers in the course of various line-ups (T. 757-768, 3236), but significantly --one of the investigating officers who was asked to identify Emilio Fernandez in the court-room, mistakenly pointed to Johnny Hincapie. (Tr. 1203)
The officers explanation: gee they look alike.
Alas, that explanation was used by the prosecutor in summation to explain why Karen Watkins trial testimony, in which she also confused Hincapie and Fernandez, was understandable. (T. 3289))
The reason why this conviction should be re-thought, in the interest of justice and fairness, is that, while accepting the confession of participant 4 Ricardo Lopez for the truth in the trial following Mr. Hincapies trial, the prosecution successfully excluded the Lopez statement at Mr. Hincapies trial. Lopez statement was self-inculpatory. But Lopez also asserted that Johnny Hincapie had left the platform before the attack on the Watkins family. (Tr. 850-852)
Mr. Hincapie had not been identified as a participant by the first five youths who confessed. When questioned, each of the five had given a detailed statement in which he identified the other participants in the attack; and, with respect to the identity of the participants, the various statements largely corroborated one another. (H. 267-8, 954, 668, 685, 1421, 1548; T. 924).
Mr. Hincapie was arrested on the basis of the statement of one perpetrator, co-defendant Emilio Fernandez, who, only as an afterthought, said that Johnny Hincapie had been present. Fernandez had given an oral statement and signed a detailed written statement (which he had meticulously reviewed and corrected before signing) that had not included Mr. Hincapie. He named Hincapie only later, in response to police questioning, after he had time to digest the implications of his predicament, having been shown pictures of those already arrested, and thus figuring out who was not available to give up in order to curry favor. (H. 1625-1664; T. 1697-1716, 1826-36, 1976).
At trial, though Mr. Hincapie was precluded from introducing Lopezs video-taped statement that he (Mr. Hincapie) had left the scene before the attack, the fact that the other perpetrator, Fernandez, had implicated Hincapie in the crime was presented to the jury by the State. Even after that, Mr. Hincapie was expressly prohibited from discrediting Fernandez, his hearsay accuser.
Certainly, the prosecuting attorney, caught up with the urgency of the case, tried to avoid the obvious Bruton issues present in that one defendant implicated another. Throughout the trial the prosecutor offered redacted versions of the various statements by the defendants on trial, in which the names of any co-defendants were omitted. (T. 650, 924, 1705) (Some defendants were severed and tried after Mr. Hincapies trial to avoid Bruton 5 issues). In the same vein, the jury was repeatedly instructed by the court not to use these prior statements against any defendant other than the particular defendant who gave it. (T. 649, 941, 1705, 3476) The defendants objected to this procedure and, time after time, moved for a mistrial, arguing that, notwithstanding the instruction, the jury could not help but deduce that the blanks in the confessions referred to the other defendants on trial, and, accordingly, that the defendants had been directly implicated by their co-defendants. (T. 650, 1428-9, 1437)
Mr. Hincapie also objected to this procedure for another reason: his interests were different from the other defendants on trial with respect to the statements of participants other than Fernandez. In the case of Anthony Andersons confession, for example, Mr. Hincapie wanted to make use of the fact that he was not named. (T. 1442)) Once again, he was not named by anyone, until the last man, Lopez, who had noone to give up, was arrested and interrogated.
Notwithstanding the redactions and limiting instructions, the jury inevitably learned that Emilio Fernandez had implicated Mr. Hincapie.. First, Police Officer Matthew Santoro testified that, after he had given his written and oral statement, Fernandez gave the name of another person involved in the incident and either his phone number or address. ( T. 1716) Fernandez was the second to last person arrested; the jury easily understood the identity of the person supposedly involved in the incident as named by Fernandez.
Likewise, Transit Police Detective James Christie testified that, after Fernandez signed his statement, Fernandez gave further information and more names; Christie did further investigation and came up with further information regarding one of the other parties involved in this incident. According to Christie, he then proceeded directly to Mr. Hincapies home. (T. 1976-7)
If it wasnt obvious from this history of the investigation that Fernandez had fingered Hincapie, Christie made it explicit when he described how he began his interview of Hincapie:
6 I told him he was there [for a homicide] investigation and that we had received information from interviewing several of his friends during the day that he was present the day before at 53 rd Street and Seventh Avenue when a robbery had occurred, and he had taken part in the robbery with this group. And that one of his best friends Emiliano ... Fernandez had testified to this. (T. 1992-3)
Detective Christies summary of appellant Hincapies oral statement a statement made after Christie told him that he had been involved in the robbery - conformed in essence with the version of events provided by the members of the Watkins family and the other defendants (T. 2019-2020):
He said that he and several of his friends were on their way to Roseland, they didnt have enough money to get in. He and his friends decided to rob somebody and [sic] that the 53 rd Street and 7 th
Avenue subway station, they saw a group of people, that they decided to rob, surrounded and rob them, and when they approached these people, one of his friends had a box cutter. He also saw Rockstar with a knife, and, one of his friends demanded money from the male who refused.
The box cutter was then displayed, people started screaming, a fight ensued, and, during the fight, one of his friends and one of the men were knocked to the ground and one of the women in this group they were robbing, tried to pull one of his friends off this male.
He said that he then grabbed her from behind and pulled her off one of his friends.
Christie testified that he reduced this oral statement to writing and Mr. Hincapie signed it. (T. 1226) (Unlike other suspects who themselves wrote out their own statements (T. 631, 787, 804; H. 1760), Mr. Hincapie was not given this option. (T. 2203))
Christie also testified that he showed Mr. Hincapie a photograph of Brian Watkins mother (Karen) and sister-in-law (Michelle) and asked him to identify the woman he restrained. (Of the two women in the Watkins family, Karen Watkins was the only one who said she had been grabbed 7 during the robbery; Michelle Watkins said she had not been touched. (H. 377)) According to Detective Christie and NYPD Officer Carlos Gonzalez, who was present during the interrogation, Mr. Hincapie selected the photograph of the mother, Karen. (T. 2020, 1224) (At a pre-trial hearing, Detective Donald Casey, who was also present during the interrogation of Mr. Hincapie, testified that Hincapie selected the photograph of Michelle Watkins as the woman he grabbed. (H. 314) However, at trial, Casey changed his testimony and claimed he did not see which photograph Mr. Hincapie selected. (T. 706))
After he was interrogated and signed the statement written by Detective Christie, Mr. Hincapie was sent to be interviewed by Assistant District Attorney Donna Henken. Detectives Christie and Casey were present, and the interview was videotaped. Largely with one word affirmative responses to leading questions, Mr. Hincapie confirmed the information in the written statement, as the prosecutor asked him to do. His responses (as can be seen and heard on the videotape) were often halting and - consistent with one who had been programmed through fear to respond in a certain way - he kept his gaze on the two Detectives. (Notably, when he responded to questions that were not leading, he frequently used the third-person pronoun they and not the first-person I or we. While he at one time agreed that he had grabbed a woman and pushed her away, he more often placed himself on the periphery: outside the circle of people who planned the robbery and not among those who surrounded the Watkins family, as though he had been merely present and events unfolded around him. which is what Mr. Hincapie maintains is what happened.
Through a variety of means, including the circumstances leading to his arrest, the interrogation techniques used, and his particular mental handicaps, Mr. Hincapie attempted to show that this confession was involuntary, coerced and unreliable. In essence, he tried to show that a scared 18-year-old might falsely accuse himself of some minimal participation if he believed that that was the only way he would get to go home. Thus, he presented evidence (contrary to that offered by the officers who had come to his home) that when the officers entered his home late at night, they asked for him, and when he appeared, grabbed him by the arm and ordered him to accompany them to the station. (T. 2688, 2692, 2696, 2913) When his mother, frantic and hysterical (T. 2091, 2223, 2686, 2916), 8 said he needed a lawyer, the officers asked how old he was (18 at the time) and assured her he didnt need a lawyer. (T. 2261-3, 2693-4, 2696, 2739) When questioned, Mr. Hincapie was not only told that his best friend gave him up, but that it was in his interest to talk so that he did not get blamed for anything he did not do, that the best thing he could do is cooperate, that the D.A. would be told if he cooperated, that there was nothing to worry about, that the officers just wanted to talk and when they were finished, theyd take him home. (H. 1038, 1136, 1072, 1200, 1248, 1261, 1248; T. 1534, 1991-2, 2125-6) . Finally, Mr. Hincapie presented evidence from two experts that, as reflected by tests administered both years before the robbery and after his arrest, he had an impaired ability to comprehend verbal and written words, and that this condition is exacerbated by anxiety. (T. 2576, 2584, 2777, 2867, 2890, 2681-2)
Since the only corroboration of Mr. Hincapies purported role in the crime came from the victims mother, Karen Watkins, her testimony was critical. Her testimony was riddled with problems. She first related the events in the subway: She heard a yell and saw a group of young men run toward and surround her family. One came towards her with an orange knife in his hand and yelled at her to get back. She screamed and saw that another man had a knife at her sons throat and others were around her husband. She yelled for help and then someone grabbed her hair, pulled her head between her legs and kicked her in the chest and the face. She was knocked backwards and saw stars. (T. 285-6, 298).
Mrs. Watkins viewed a number of line-ups over the next two days, including one on September 4 involving Mr. Hincapie. The line-ups were also viewed by other members of the Watkins family (the victims father Sherman, his brother Todd, and Todds wife Michelle) as well as by the two men who had observed the gang of youths flee the subway. Mr. Hincapie was not identified in the line-up (or in court) by either Sherman, Todd or Michelle Watkins. Nor was he recognized by either of the two men who had observed the youths flee.
When Karen Watkins viewed the line-up that included Mr. Hincapie, she said that he looked vaguely familiar. (H. 1154) However, in other line-ups involving other defendants, Mrs. Watkins said the same kind of 9 thing, that certain individuals looked familiar or similar, but the individuals she picked out were actually fillers. (T. 762, 768)
At trial, Mrs. Watkins did not recognize Mr. Hincapie. However, she said that she had been pretty sure that the person she had selected on September 4 was the young man who was standing next to her just before she was grabbed by the hair and kicked. (T. 316-7)
Significantly, the only person she testified that she saw standing near her when she was grabbed, was the person she had seen coming towards her with the orange knife. (T. 291-2, 297-8) This is significant because there was no question that Mr. Hincapie was not the person with the orange-handled weapon.
That person was Emilio Fernandez the only man who identified Mr. Hincapie, when the actual participants had already been arrested.
Every confessing participant identified Fernandez as having had an orange box-cutter, and, indeed, Fernandez was still carrying it when he was arrested. (H. 270, 844, 1450; T. 974).
That Mrs. Watkins may have confused Mr. Hincapie with Emilio Fernandez when she viewed the line-up was apparent. The two looked alike (as dramatically demonstrated in the courtroom when Officer Borman pointed to Mr. Hincapie when asked to identify Fernandez, and then remarked, gee they look alike (T. 1503)). Mrs. Watkins was described as glazed and disoriented after the attack. (T. 727)
Not only was Mr. Hincapie not the person with the orange box-cutter (and thus not the person Mrs. Watkins saw standing next to her), but also there was other evidence that he was not the person who had grabbed her. Another defendant, Pascal Carpentier, confessed that he was the person who held one of the women back during the incident. (T. 650, 1277) (I was holding off this lady so that she wouldnt interfere because she was screaming.) (As stated above, Karen Watkins was the only one who was grabbed, so Carpentier must have been the grabber. (Michelle Watkins told the officers that she had not been touched. (H. 377))
10 In this context, I urge you to consider that Ricardo Lopezs statement exculpating Mr. Hincapie, even though excluded at trial, is important and should be considered now. Lopez told the authorities that he had met around 60 guys on the train on the way to Roseland. Among those he named were Pascal Carpentier, Gary Morales (Rocstar), Ricardo Nova, and Johnny. He explained that some of his friends did not have enough money to get into Roseland, and that they decided to rob somebody in order to get the money. He specifically named Emilio and Rocstar as two who did not have enough money, and said that he had seen Emilios orange box cutter and Rocstars knife. (A.26-31)
Critically, Lopez specifically identified those who participated in robbery, and stated unequivocally that Johnny was not among them (Transcript of confession, emphasis added):
A. When we got out we ... went upstairs. Then a -- that whole bunch of people like (Indicating.) there was 60 of us, and 50 of them left, (Indicating.) and the ones that need money stood there, but the two of them left.
Q. Okay A. And thats like it was eight of us.
Q. Who was there then? A. It was Rocstar, Emilio, Score [Carpentier], Anthony, a -- who else? A-- whats his name Ricardo, me, Johnny, and Kevin. Q. Okay. And they all needed money? A. (Shakes negatively.) No, Johnny and Kevin left. Q. Okay. A. They left. 11 Q. So all the others needed money. Right? A. (Nods affirmatively.) All of them. All six of us.
Lopez then related the group of sixs descent into the subway and the robbery. He re-emphasized that there were only six in the group who surrounded the family (he maintained that Johnny and Kevin had left) (A.38 (Tr. at 17); emphasis added.):
Q. So there were eight people surrounding the five? A. No. No. Six. (Indicating.) Q. There were six? A. Because the two of them left.
Lopez then referred to something that each of the six who remained had done during the course of the robbery or during the groups flight.
Lopez, after exculpating Mr. Hincapie, as was the case of all the arrestees who made inculpatory statements to the police, was sent to be interviewed by Assistant District Attorney Donna Henken.
Lopez interview occurred less than an hour after ADA Henken had interviewed Fernandez. Notably, while Lopezs assertion that Johnny and Kevin left flatly contradicted Fernandezs claim that Kevin Mootin (spelled variously as Mouton) and Johnny Hincapie were present (H. 1241), ADA Henken did not question Lopez about this discrepancy.
Notably, though the trial prosecutor objected to the introduction of Lopez statement at Mr. Hincapies trial, this same prosecutor (ADA Thomas Schiels) fully relied on Lopezs statement that Johnny and Kevin left for its truth in the subsequent trial of Anthony Anderson, Gary Morales and Ricardo Lopez. Thus, to counter defense arguments in that trial that prosecution witnesses were lying to protect their friend Kevin Mouton, an unindicted cohort who had been present on the subway platform and had been referred to by some of the confessors, this same prosecutor argued that there was no evidence that Kevin had had anything to do with the robbery. To make this point, the prosecutor twice emphasized that, in Lopez 12 statement the very statement objected to by the prosecutor in Mr. Hincapies trial -- Lopez had made the point said Kevin left before it happened. (Prosecutors summation, Transcript of April 21, 1992, Trial of Anderson, Morales and Lopez, at pp. 3292, 3336-7. Of course, Lopez had said that Mr. Hincapie had also left, with Kevin, before it happened. Mr. Hincapie was sentenced in 1992 to a term of imprisonment of 25 years to life on the murder charge, with lesser concurrent sentences on the robbery counts.
His appeals have been turned down.
Only this office can review the matter again.
I urge you to review the case in light of the evidence of false confessions, as has come to light in the exoneration through DNA testing of convicted defendants, and in light of the vacatur of the contemporaneous case of the Central Park joggers, who also had confessed.
It is unfortunate that Mr. Hincapie cannot turn to DNA. He is turning to you.
There is no doubt that Mr. Hincapie was among the 60-or-so youths who arrived at the subway stop for Roseland on the night that this vile stabbing occurred; but as his co-defendant Lopez stated in his own confession, Johnny and Kevin had left before the crime was committed.
Very truly yours,
Vivian Shevitz
cc: Johnny Hincapie - 92 A 0806 354 Hunter Street Ossining, NY 10562
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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: CRIMINAL TERM PART X --------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK,
Leah M. Busby, an attorney duly admitted to practice before the courts of the State of New York, hereby affirms under the pains and penalties of perjury that on November 25, 2013, she caused to be served one true copy of Defendants Notice of Motion to Vacate the Conviction of Johnny Hincapie, and the Affirmation and Memorandum of Law in Support thereof, upon the Office of the District Attorney, New York County, One Hogan Place, New York, NY 10013 by hand delivery, and upon Defendant Johnny Hincapie at Fishkill Correctional Facility, 271 Matteawan Road, P.O. Box 1245, Beacon, New York, 12508-0307 by pre-paid, first class United States mail.
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