Morales v. Portuondo
| Decision Date | 24 July 2001 |
| Docket Number | No. 97 CIV 2559 DC.,97 CIV 2559 DC. |
| Citation | 154 F.Supp.2d 706 |
| Parties | Jose MORALES, Petitioner, v. Leonardo PORTUONDO, Superintendent, Shawangunk Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Randa D. Maher, Great Neck, NY, Jeffrey Pittell, New York City, for Petitioner.
Robert T. Johnson, District Attorney, Bronx County by Joseph N. Ferdenzi, Cheryl D. Harris, Allen P.W. Karen, Assistant District Attorneys, Bronx, NY, for Respondent.
The writ of habeas corpus—the "Great Writ"—has been described as the "highest safeguard of liberty." Smith v. Bennett, 365 U.S. 708, 712, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961). "[F]rom our very beginnings," the writ has been a powerful remedy of last resort, the "[v]indication of due process [being] precisely its historic office." Fay v. Noia, 372 U.S. 391, 401-02, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), abrogated on other grounds in Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). This case serves as a reminder of its historic—and continued— importance.
Petitioner Jose Morales and his co-defendant, Ruben Montalvo, were convicted of murder in the Supreme Court of the State of New York, Bronx County, almost thirteen years ago. They have been in prison ever since.
The murder was a brutal one. A man was beaten and stabbed to death by a group of teenagers. Just days after the trial, as Morales and Montalvo were about to be sentenced, another teenager, Jesus Fornes, told at least four individuals—a priest, Montalvo's mother, Morales's attorney and a Legal Aid attorney—that he and two other individuals had committed the murder and that Morales and Montalvo were innocent.
Fornes's statements were never heard by a jury. Fornes invoked his Fifth Amendment privilege against self-incrimination and refused to testify at a post-trial hearing on a motion to set aside the verdict. The priest from whom Fornes had sought spiritual guidance did not reveal the statements because they were made as part of an informal confession. The Legal Aid attorney from whom Fornes had sought legal advice did not reveal the statements because he was prohibited by the attorney-client privilege from doing so. Although Fornes's statements to Montalvo's mother and Morales's attorney were presented to the state court at a hearing on the motion to set aside the verdict, the state court denied the motion, refusing to order a new trial because it concluded that Fornes's statements were inadmissible hearsay.
Fornes was killed in an unrelated incident in 1997. The priest and the Legal Attorney have now come forward and publicly disclosed what Fornes said to them. Fornes's statements, as conveyed to the priest, Montalvo's mother, Morales's attorney, and the Legal Aid attorney, constitute convincing evidence that Morales and Montalvo were wrongly convicted and that, indeed, they are innocent.
The Bronx District Attorney's Office now concedes that Fornes made the statements in question, but argues that Fornes was not telling the truth. It is highly unlikely, however, that Fornes would have lied to the priest or the Legal Aid attorney. He believed that both conversations were privileged and confidential and he was seeking their advice and counsel. It is also highly unlikely that he would have lied to Montalvo's mother or to Morales's attorney, for he had nothing to gain and everything to lose by telling them of his role in the murder. Fornes revealed his involvement because he was troubled that two of his friends had been wrongly convicted of a murder that he had committed. It was precisely because they were innocent that he was prepared, at least initially, to come forward and place his own liberty in jeopardy.
At the trial in 1988, only one witness placed Morales at the scene of the crime. Morales took the stand and asserted his innocence. Five other witnesses, called by the defense, testified that Morales was blocks away from the scene of the crime at or about the time of the murder. Another witness who was in the park and witnessed the murder testified that Morales and Montalvo were not there. The jury believed the prosecution's one eyewitness and rejected the testimony of the defense witnesses, but the jury surely might have reached a different result had it been told of Fornes's statements.
Morales had a right to present evidence of Fornes's statements to a jury but he was not permitted to do so. Accordingly, his right to due process of law was violated and his petition for a writ of habeas corpus is granted.
On September 28, 1987, Jose Antonio Rivera was murdered in the Bronx. At approximately 11 p.m., Rivera, Jennifer Rodriguez, and Rodriguez's eleven-year-old son, Cesar Montalvo ("Cesar"),1 were walking along a street near Kelly Park. They saw a group of teenagers, at least one of whom was carrying a baseball bat or stick. There had previously been an incident between Rivera and one of the teenagers, and the teenagers approached the family.
Rivera ran. Members of the group chased and caught him. Someone struck him in the head with a stick or bat, splitting his head open. As he lay on the ground, others stabbed him and hit him again. An autopsy would later reveal that Rivera sustained "multiple lacerations of the right side of the head with brain injury and intracranial hemorrhage, two stab wounds on the back, one piercing the left kidney with abdominal hemorrhage." (Trial Tr. at 68). Rivera died from a "combination of multiple laceration[s] of the head and stab wounds with internal injury and hemorrhage." (Id. at 68-69).
No one was arrested at the scene of the murder. A few days later, Morales, who was then only 18 years old, appeared at a police station for questioning. He did so voluntarily and denied any involvement in the murder. He was placed in a lineup. Rodriguez, who had watched as her common-law husband was murdered, identified Morales as one of the assailants.
Morales was thereafter indicted, together with Montalvo and Peter Ramirez, for Rivera's murder. Morales was offered a plea bargain that would have required a prison term of only one to three years, but he rejected the offer and insisted on going to trial. (7/16/01 Hr'g Tr. at 155). In December 1988, Morales and Montalvo went to trial. In the meantime, Ramirez had committed suicide.
On December 22, 1988, the jury returned a verdict finding both Morales and Montalvo guilty of murder in the second degree.
Shortly after Montalvo and Morales were convicted but before they were sentenced, another teenager from the neighborhood, Jesus Fornes, asked to speak to Father Joseph Towle. Fornes was approximately 17 years old at the time. Towle, a Roman Catholic priest who worked in the Hunts Point section of the South Bronx, visited Fornes in his home. Fornes told him that he was upset because two members of his group had been convicted of a murder, that the two were not present at the scene and were not involved, and that he and two others had actually committed the murder. (Id. at 10-11). Fornes said that one of the other two individuals was Peter Ramirez. He told Towle that he and the other two used a baseball bat and a knife to take Rivera's life. (Id. at 16).2 Towle described his conversation with Fornes as follows:
It was a heart-to-heart talk where he was feeling very badly that two of his friends had been accused and convicted of something which he had done and it was his desire to do something to make the truth appear and he wanted to make public the fact that he was responsible and they were not.
(Id. at 12-13). Fornes asked Towle what he should do, and Towle told him that "if he had the courage and heart to do it, that he should go to the court and that he should acknowledge that he was responsible and the others were not." (Id. at 13). At the end of the conversation, Towle granted Fornes absolution, "offer[ing] him pardon in the name of God for the things that he had done wrong." (Id. at 29).
As a consequence of his conversation with Father Towle, Fornes went to see Montalvo's mother, Maria Montalvo. Fornes told her that he, Peter Ramirez, and Carlos Ocasio had committed the "killing" and that her son and Morales were not involved. (Id. at 109-11). Fornes told Mrs. Montalvo that he did not want Morales and Montalvo "to go to jail for something that they didn't do." (Id. at 112). Mrs. Montalvo immediately called her son's lawyer as well as Elizabeth Colon, Morales's mother, to tell them about her conversation with Fornes. Colon conveyed the information to her daughter, Maria Morales (now Maria Morales-Fowler). In turn, Morales-Fowler immediately relayed the information to Anthony J. Servino, Esq.
Servino had been retained, after the trial and before sentencing, to represent Morales on his appeal. When Morales-Folwer told him about Fornes, Servino said he wanted to meet with Fornes.
As was his practice when he was retained for an appeal before a defendant was sentenced, Servino went to the Bronx Supreme Court for Morales's sentencing on January 24, 1989. There, he met with members of the Morales family. As Servino was waiting for the other lawyers to arrive, Fornes appeared, unexpectedly, accompanied by his parents. Servino asked to speak to Fornes and Fornes agreed. As Servino led Fornes from the hallway into an adjoining room, Morales-Fowler overheard Fornes say to Servino, "I did the crime, I will do the time." (Id. at 121).
As Servino testified, Fornes told him that:
it wasn't right that Jose and R[u]ben were in [jail], they didn't do anything, I should be there.
Then he kept on repeating, I did the crime, I will do the time. They did nothing. They weren't even there. They weren't even there.
(Id. at 50-51). Servino believed that Fornes had come forward...
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