Legal Commentary

Bermudez Tries Again To Obtain New Trial

By TChris

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.

Full post as published by TalkLeft on October 10, 2008 (boomark / email).