Bermudez Tries Again To Obtain New Trial

By TChris, Section Innocence Cases
Posted on Fri Oct 10, 2008 at 04:41:26 PM EST
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Fernando Bermudez' conviction should leave you feeling a bit queasy. On the basis of eyewitness testimony, a jury found him guilty of shooting and killing a teenager in 1992.

Magistrate Judge Fox found that detectives allowed four of them to view mugshots together, during which time they accused Mr. Bermudez by consensus. Such "flawed" and "suggestive" identification procedures, according to [Bermudez'] brief, were not revealed at trial.
Mr. Bermudez was convicted on the basis of that eyewitness testimony, along with testimony by a fifth eyewitness. Six other witnesses who separately viewed the same series of mugshots failed to pick out Mr. Bermudez, according to the brief.
At trial, prosecutors presented no forensic evidence, no fingerprints, no motive, no blood or DNA evidence.

All five eyewitnesses have since recanted their testimony. [more ...]

The defense is seeking a new trial from a Manhattan trial court. Burmudez' federal habeas petition was denied in 2004. The defense hopes to persuade the court that evidence of his actual innocence, combined with the constitutionally flawed identification procedure, warrants a new trial.

In addition to the recantations, the defense has evidence (that the police apparently refuse to investigate) pointing to another person as the more likely suspect.

A federal magistrate ruled that the recantations were unreliable. That's a standard ruling. The law disfavors recantation evidence, and judges routinely say "well he's changed his story so he's untrustworthy so the recantation isn't credible" without climbing the next step of that logic ladder: if the jury had known how untrustworthy the witness is, it probably would have rejected his trial testimony. The cynical among us wonder whether the law disfavors recantations (and strongly embraces the value of finality) because granting a new trial to correct a past injustice creates a whole lot of extra work for judges.

Recantations of identifications that resulted from an improperly suggestive identification technique, in a trial that lacked physical evidence corroborative of guilt, should leave you with the queasy feeling that an innocent man is spending his life in Sing Sing.

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Bermudez Tries Again To Obtain New Trial | 3 comments (3 topical)

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my, my TChris, (5.00 / 1) (#2)
by cpinva on Fri Oct 10, 2008 at 08:37:19 PM EST

we are just a wee bit cynical, aren't we? :)

The cynical among us wonder whether the law disfavors recantations (and strongly embraces the value of finality) because granting a new trial to correct a past injustice creates a whole lot of extra work for judges.

i often wondered that very same thing, actually: if the guy's full of it now, the logical progression would be that he was full of it then too.

that would require taking an affirmative step, and cost the state (us) more money. it's really just so much easier to leave them in jail.

as well, i suspect a high % of judges are former prosecutors, loathe to state publicly that one of their own made a mistake.

: It is a numbers (none / 0) (#3)
by JamesTX on Sat Oct 11, 2008 at 11:23:27 PM EST

game, and the system is up for a natural correction in that area. I have followed the conservative revolution in criminal justice with dismay since it started with the Reagan era putsch. The system has always been reluctant to admit even blatant error, under the assumption that conviction was difficult enough that it should not be taken lightly. The problem with that reasoning is that it is no longer difficult at all, but mostly automatic. Jurors have been acculturated into fear of authority, which is the underlying reason for no chance of acquittals, regardless of the strength of the case. They simply will not publicly rebuke a prosecutor or the police, even if they clearly know they are wrong. They have an unconscious fear of reprisal, and law enforcement has successfully conditioned everyone to believe that all challenges to their authority will be weeded out and met with certain punishment. These are people you just no longer say "no" to in public. When that psychological feat was finally pulled off (about 1990), it was the end of fair trials. The statutory changes making conviction easier added to the prosecution's advantage, and now you simply can't look to the court for reason. It's over. Insert coin.
Obama doesn't look too concerned about it, but we can always hope that a spreading and growing progressive populism will eventually work its way down to this problem. Right now, criminal injustice is the lowest peeve on the progressive agenda, especially among white hipsters who really still buy into the lie. That is what makes them qualitatively different from their 1960s counterparts, and they will proudly proclaim so. They are able to challenge the concept of unlimited executive power at the abstract level, and their experience with Bush has led them to recognize the fundamental irrationality of government through arbitrary, raw executive power. But, they have a conflict, in that they see their local police as infallible heroes with whom they share peculiar cultural values and basic lifestyle patterns. That is why there really is no impending political change to be expected out of this group, because they are still under the complete political control of local executive power (including police organizations).
There is a light way down the road somewhere, but criminal justice is still going to be a very dark place for a long, long time. In fact, it may be dark enough to overshadow and prevent any real change at all, in that all they have to do is start feeding the propaganda through the local mechanisms while maintaining the attitudes toward productions like BushCo as a charade for "progressivism".

The endless (none / 0) (#1)
by JamesTX on Fri Oct 10, 2008 at 08:06:50 PM EST

march...

...and you are telling me that Americans, the people I grew up respecting and honoring for their sense of justice, like this stuff? Apparently they do.

Six other witnesses who separately viewed the same series of mugshots failed to pick out Mr. Bermudez, according to the brief.
At trial, prosecutors presented no forensic evidence, no fingerprints, no motive, no blood or DNA evidence.

The only good thing is that a fair share of this crap is coming out, thankfully, just in time to match any of the rumored Republican last-resort campaign platform: "Tuff on crime"...the old standby. It may be needed as they have screwed everything else up so badly they can't lie about it anymore. If the modus operandi holds, the tuff talk was planned to conveniently coincide with a momentary spike in unexplained, random, violent crimes, which apparently are coming down as planned (they must have been paid for in advance). Check out how nasty those bikers are looking lately! What a show! That'll scare some sense into anyone thinking about voting Democratic!