Bermudez v. City of N.Y.
| Citation | 790 F.3d 368 |
| Decision Date | 15 June 2015 |
| Docket Number | Docket No. 14–1125–cv. |
| Parties | Fernando BERMUDEZ, Plaintiff–Appellant, v. CITY OF NEW YORK, Michael Lentini, William Fitzpatrick, Daniel Massanova, John Mulalley, Baker, (First Name Unknown), Mulcahy, (First Name Unknown), Various John Does, Who Are or Were Officers of the New York City Police Department, Individually & In Their Official Capacity, Various Jane Does, Who Are or Were Officers of the New York City Police Department, Individually, Defendants–Appellees, Robert M. Morgenthau, Individually & In His Official Capacity as Former District Attorney of New York County, Nancy Ryan, Individually & In Her Official Capacity as Assistant Attorney of New York County, James Rodriguez, Individually & In His Official Capacity As Assistant Attorney of New York County, Robin McCabe, Individually & In Her Official Capacity As Assistant Attorney of New York County, Mary C. Farrington, Individually & In Her Official Capacity, Hilary Hassler, Individually & In Her Official Capacity as Assistant Attorney of New York County, Herculano Izquierdo, Individually & In His Official Capacity as Assistant Attorney of New York County, Defendants. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Brian J. Isaac, Pollack, Pollack, Isaac, & De Cicco, LLP, New York, N.Y., for Plaintiff–Appellant.
Patricia A. Bailey, New York County District Attorney's Office, New York, N.Y., for Defendants.
Karen Griffin, New York City Law Department, New York, N.Y., for Defendants–Appellees.
Before: CALABRESI, HALL, Circuit Judges, RAKOFF, District Judge.**
I. BACKGROUND
Plaintiff Fernando Bermudez was incarcerated 18 years for a murder he did not commit. The crime in question took place around 3:00 AM on August 4, 1991. A 16– year–old boy named Efraim Lopez was at a party at the Marc Ballroom in Manhattan, and was punched in the face by a man named Raymond Blount. Lopez told another individual about this altercation with Blount, and the parties in the case before us do not dispute that this other individual subsequently shot and killed Blount. Moreover, the parties before us no longer dispute that this other individual was not Bermudez.
Detectives Michael Lentini and William Fitzpatrick were assigned to the case, and later on August 4 they brought seven witnesses in for questioning—Nkosi Boyce, Lawrence Darden, Terrence Hall, Okpa Iyesi, Frank Kent, Michael Thompson, and Jaime Velasquez. The detectives asked this group of witnesses collectively to describe the shooter. The witnesses said he was a 16–to–26–year–old Hispanic man approximately 5 worth of photographs of prior arrestees that matched this description.1 The witnesses went through the photographs together while engaging in conversation with each other. At one point, Velasquez took a photograph of Bermudez out of one of the drawers and showed this photograph to several other witnesses, remarking that Bermudez looked cute. Velasquez gave the photograph of Bermudez to Detective Lentini, and the police officers immediately ended the procedure despite the fact that the witnesses had not yet looked through all of the photographs.
Later that evening, Detective Daniel Massanova made a six-photograph array, which included Bermudez's picture. He showed the array to the witnesses, and told them “I want you to look at these six photos here in front of you and to decide which one you think is responsible.” Joint App'x at 699. Thompson then identified Bermudez as the shooter, Hall and Iyesi stated that Bermudez was at the scene, Darden and Boyce did not identify anyone as the shooter, and Kent identified Bermudez as “the kid with the gold chain who reached behind his back for a gun.” Joint App'x at 86.9–.10.
The next day the police conducted a lineup that included Bermudez. At the lineup, Velasquez, Thompson, Kent, and Iyesi all identified Bermudez. The remaining three witnesses stated that they did not recognize anyone in the lineup.
The police also brought Lopez—the 16–year–old whose punching was the cause of Blount's shooting—into custody, gave him Miranda warnings, and questioned him about the shooting. In the course of his long interrogation, Lopez gave three inconsistent written statements to the police. In the first statement, Lopez did not admit to knowing the shooter's name, but described the shooter as 6'0? and 180 pounds, wearing a white shirt with black designs, beige shorts, and a chain with a gold medallion. In the second written statement, Lopez indicated that he knew the shooter and that the shooter's street name was “Wool Lou.” In the third statement, Lopez said that Wool Lou was the individual in “photograph 2” (the photograph of Bermudez), and that he knew Wool Lou from the neighborhood and from seeing him at the building where Lopez's grandmother lived.
Subsequently, after Lopez had been in custody for a total of around 30 hours, Assistant District Attorney James Rodriguez and Detective Massanova questioned Lopez and took a videotaped statement. In that statement Lopez a) indicated that the shooter was named “Lou” and had the nickname “Wool Lou,” and b) identified Bermudez, from his photograph, as “Wool Lou.” Lopez further said that he did not recognize the nickname “Most” (which was known to be Bermudez's nickname). Crucially, as it will turn out, during the videotaped interrogation, Detective Massanova told ADA Rodriguez that at the original interrogation Lopez had voluntarily pointed to Bermudez's photograph before Massanova even opened up the photo array.
In two later affidavits given in 1992 and 1993, which were produced in connection with Bermudez's post-trial collateral challenges to his conviction, Lopez, however, gave a very different account of Detective Massanova's original interrogation. According to these affidavits, Detective Massanova gave Lopez a photograph of Bermudez, told him that Bermudez was a drug dealer, and said to Lopez that if he did not identify Bermudez as the person who had killed Blount then Lopez would be charged as the shooter.
On August 6, 1991 Bermudez was arrested, and Detective Massanova and ADA Rodriguez conducted a videotaped interrogation. Bermudez denied any involvement in the shooting and also denied that he had been at the Marc Ballroom on the night of the shooting. He said that on that night he was driving around in his father's car looking for girls and stopping to eat at restaurants. Several of Bermudez's friends also went to the precinct and gave videotaped statements that they had been with him the evening of August 3, and that they had not been at or near the Marc Ballroom.
ADA Rodriguez interviewed everyone who had viewed the lineup, including those who did not identify Bermudez. According to Rodriguez's later testimony at a federal habeas corpus hearing, Velasquez said that she saw Bermudez inside the Ballroom before the shooting, and that she saw him reach behind his back for a gun before she heard a gunshot. The ADA also testified at the habeas hearing that Thompson said that he saw Bermudez shoot Blount. After interviewing the witnesses, ADA Rodriguez presented murder charges against Bermudez to a grand jury, using Velasquez and Thompson as witnesses. Bermudez was indicted and brought to trial. The prosecution's evidence at trial included testimony from Lopez, Velasquez, Thompson, Kent, and Iyesi. Based on this evidence, the jury convicted Bermudez.
After the verdict but before sentencing, a private investigator hired by Bermudez's family notified Detective Massanova that Lopez had a friend by the name of Luis Munoz who went by the name of “Wool Lou,” and that Munoz had recently left the state of New York. Detective Massanova informed ADA Rodriguez of this fact. The sole inquiry Rodriguez made was to obtain a copy of Munoz's criminal history. After the conviction, Bermudez moved to set aside the verdict due to the newly discovered evidence that Luis Munoz was the real shooter. The judge denied this request, and on September 18, 1992, sentenced Bermudez to a term of 23 years to life in prison.
Over the next few years Bermudez brought four different motions in state court, under New York Crim. Proc. Law § 440.10, seeking relief from his conviction. These motions were denied. Notably, in connection with these motions the five principal trial witnesses—Lopez, Velasquez, Thompson, Kent, and Iyesi—all recanted their previous testimony and proffered affidavits stating that they did not believe Bermudez was the shooter.
On June 28, 2000, Bermudez filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York, claiming that his conviction was based on perjured testimony and that his due process rights were violated by impermissibly suggestive identification procedures. Magistrate Judge Kevin N. Fox held a hearing at which the trial witnesses, Detective Massanova, Detective Lentini, ADA Rodriguez, and the trial judge all testified. Magistrate Judge Fox found that the photograph identification procedures were “impermissibly suggestive and conducive to irreparable misidentification.” Bermudez v. Portuondo, No. 00–4795, 2004 U.S. Dist. LEXIS 5427, at *102 (S.D.N.Y. Mar. 29, 2004).
He also found, however, that Bermudez could not establish a due process violation. The Magistrate Judge concluded this based on the witnesses' detailed testimony at trial that they had seen Bermudez, on Lopez's testimony about personally knowing Bermudez, and on his own determination that the witnesses were not credible both when they said their testimony had been coerced and when they sought to recant that testimony.
District Court Judge Loretta Preska adopted Magistrate Judge Fox's report and recommendation in its entirety. Both the District Court and the Second Circuit denied Bermudez's motions for a certificate of appealability.
In October 2008, Bermudez filed...
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