NY Judge Clears Man After 18 Years, Cites Innocence

Fernando Bermudez cried as the Judge vacated his murder conviction today, after serving 18 years in prison. There will be no retrial, his case was dismissed.

Bermudez ''has demonstrated his actual innocence,'' state Supreme Court Justice John Cataldo said. ''This court wishes to express its profound regret over the past 18 years. I hope for you a better future.''

He was not freed immediately due to a pending 27 month federal sentence on drug charges. How was he convicted? Faulty eyewitness evidence and another participant in the fight in which the victim was killed got immunity for pinning it on Bermudez. [More...]

The teen involved in the fight -- who testified against Bermudez under an agreement sparing him criminal charges -- delivered ''a total fabrication'' on the witness stand, [Judge]Cataldo wrote. He said a roster of evidence actually pointed to one of the teen's friends, who has denied involvement.

''You combine the cooperating witness who lied with the eyewitnesses who conferred with one another, and you have an innocent man in jail for 18 years,'' said one of Bermudez' lawyers, Barry J. Pollack.

From the Judge's ruling:

“I find no credible evidence connects Fernando Bermudez to the homicide of Mr. Blount. All of the People’s trial evidence has been discredited: the false testimony of Efraim Lopez and the recanted identification of strangers. No other evidence supports a finding that Mr. Bermudez committed this crime. I find by clear and convincing evidence, that Fernando Bermudez has demonstrated he is innocent of this crime.

Accordingly, the judgment of the conviction is vacated, and the indictment is dismissed.”

Is the Manhattan DA's office sorry? No. They still think Bermudez is guilty but won't retry due to lack of witnesses. The eyewitnesses all recanted, and:

Four of Bermudez' friends testified that he was with them, miles away, at the time of the crime; friends of Blount's also said Bermudez wasn't the shooter, according to the judge's ruling. No forensic evidence linked him to the crime.

The DA may appeal. Let's see whether newly elected DA Cyrus Vance, who promised he "had an ear for innocence", who was supported by The Innocence Project, and who supported the creation of a wrongful conviction task force, keeps true to his campaign rhetoric:

"When an innocent person is imprisoned, everyone in our society loses. Wrongful convictions are incredibly destructive, first and foremost, to the person unjustly imprisoned and their family and friends, but also to society as a whole -- because the public loses confidence in the law. That's why as Manhattan DA, I would encourage a prosecutorial culture that understands the importance of getting every case right.

Representing Mr. Bermudez:

Kelley Drye & Warren LLP partner Alan R. Kaufman, who is the former chief of the criminal division of the U.S. Attorney’s Office for the Southern District of New York, New Jersey attorney Lesley Risinger, the Innocence Project at the Benjamin N. Cardozo School of Law, and Barry J. Pollack of Miller & Chevalier in Washington, D.C. provided pro bono representation for Mr. Bermudez.

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  • Display: Sort:
    How come people don't often cite the obvious (5.00 / 2) (#1)
    by inclusiveheart on Thu Nov 12, 2009 at 03:04:15 PM EST
    about wrongful conviction which is that the person who is a danger to society in a case like this one is left free to potentially kill other people?

    Locking up innocent people and letting the criminals go free really isn't my definition of "protecting society".

    My question is .. (5.00 / 1) (#2)
    by nyrias on Thu Nov 12, 2009 at 03:05:35 PM EST
    why did this take 18 years?

    If it is such an open & shut case (based on the judge very decisive action), one would think these arguments will work 10 years ago, or 15 years ago.

    really (5.00 / 1) (#5)
    by Jen M on Thu Nov 12, 2009 at 03:38:13 PM EST
    that gets left out so often.  I wonder about that myself.  

    As far as I'm concerned every subsequent crime commited by the ones that get away are on the state.


    John Cataldo (5.00 / 1) (#3)
    by mjames on Thu Nov 12, 2009 at 03:27:43 PM EST
    John Cataldo was my supervisor at the Criminal Defense Division of the Legal Aid Society in Manhattan - before Giuliani destroyed the Society. Solid attorney. Great judge.

    Still not free?.... (none / 0) (#4)
    by kdog on Thu Nov 12, 2009 at 03:34:54 PM EST
    Thats lame...the least the state can do is drop whatever drug charges are holding up this poor slob's release...literally the least the state can do.

    And no jurisdictional... (none / 0) (#6)
    by kdog on Thu Nov 12, 2009 at 03:52:36 PM EST
    bullsh*t either...set the man free!

    Credit for time served! (none / 0) (#7)
    by Peter G on Thu Nov 12, 2009 at 04:10:52 PM EST
    For goodness sake -- pursuant to 18 USC 3585(b)(2), the feds can and should credit the 18 years of "dead time" in NY state prison toward that drug sentence.  That's what we were able to do when my client Nick Yarris was exonerated from death row after nearly 22 years.  He had three pending "unserved" sentences in other jurisdictions, but they all agreed -- when we talked to the DA or the courts there -- to credit him for the time "served" on death row in Pennsylvania.  It took a couple of months to pull it off, but then he got out with nothing hanging over him.

    Exactly (none / 0) (#16)
    by Socraticsilence on Fri Nov 13, 2009 at 10:26:15 AM EST
    I don't see how this stime served can't be used for the drug offenses (at the same time I think I should say that time should only be used for pending charges- not any future crimes, though it would be kind of cool- if he had an 18 yr credit- rob a bank that's 15 years used of credit but you go free!)

    Is this (none / 0) (#8)
    by Steve M on Thu Nov 12, 2009 at 04:18:19 PM EST
    a drug crime that's pending from way back when, or something he committed while he was incarcerated?  Either way, come on, the guy has suffered enough.

    innocent of the murder charge only (none / 0) (#10)
    by diogenes on Thu Nov 12, 2009 at 06:03:40 PM EST
    1.  When do "recanting witnesses" ever get charged with perjury for the presumably false testimony that wrongfully imprisons innocent people?
    2.  Someone who earned a 27 month federal prison sentence for drugs is a hardly an innocent babe in the woods, although this guy didn't deserve 18 years for that offense (I have no idea what other crimes he may have committed and never been tried for).

    Alas, drugs and violence (none / 0) (#11)
    by Fabian on Thu Nov 12, 2009 at 06:28:27 PM EST
    are often found in each others company.

    Thats odd... (none / 0) (#12)
    by kdog on Thu Nov 12, 2009 at 06:42:32 PM EST
    plenty of drugs come through my place, never any violence.

    Well...there was that one time one of my boys brought this drunken idiot by and I had to throw his arse out...were you referring to alcohol Fabian?  Or maybe you meant prohibition...that and violence go together for sure:)


    Yes (none / 0) (#13)
    by Watermark on Thu Nov 12, 2009 at 10:40:47 PM EST
    because it's completely and totally OK to just come out and assume other crimes he committed and was untried for.  There's always some vast conspiracy a conservative can come up with to justify their draconian sentencing schemes.

    it was an absurd comment (none / 0) (#14)
    by Jeralyn on Thu Nov 12, 2009 at 11:33:04 PM EST
    positing the point of view that if you can't convict someone of the crime they are charged with, it's fine to lock them up for some other crime. Contrary to the rule of law and just shows the intellectual and moral paucity of the writer.

    silly judge! (none / 0) (#15)
    by cpinva on Fri Nov 13, 2009 at 12:26:26 AM EST
    doesn't he know that actual innocence is no bar to punishment?

    Judge J. Cataldo (none / 0) (#17)
    by nvf on Sat Dec 12, 2009 at 03:33:18 PM EST
    I also worked for John Cataldo way back when and found him to be professional, fair minded and hard working.    I just wanted to add this to  the  above comment of the  former Legal Aid staff attorney.