UPDATE: David Lemus, the subject of this msnbc.com investigation and a companion “Dateline NBC” documentary, “In the Shadow of Justice,” was acquitted of all charges in a new trial Dec. 6, 2007.
What do you do when the system says you are innocent but won’t let you get on with your life?
David Lemus and Olmedo Hidalgo were released from prison in 2005 after having served 14 years for a murder that a New York judge found they had been wrongly convicted of.
No one disputes that Hidalgo is innocent, including the office of Manhattan District Attorney Robert M. Morgenthau, which, after years of opposition, eventually agreed to defense lawyers’ motion to dismiss his conviction.
And no one disputes that Lemus was wrongly convicted — no one, that is, except the office of Manhattan District Attorney Robert M. Morgenthau, which, after 15 years, three investigations, two hearings and one trial, still believes Lemus is guilty and plans to retry him in the murder of Markus Peterson, a bouncer at the Palladium nightclub who was gunned down onThanksgiving Day 1990.
Now, the assistant district attorney in Morgenthau’s office who argued against freeing Lemus two years ago is going public to say he, too, believes Lemus is innocent.
“I disagreed then and disagree now with the DA’s Office’s effort to retry Lemus,” Daniel L. Bibb wrote last month in a comment on a blog that criticized his role in the 2005 hearing. “And I still lose sleep over this case.”
Even though it was Bibb who stood up in court and argued that Lemus and Hidalgo should not be freed, “I fought tirelessly to convince my superiors that the convictions should be set aside and when I was forced to do a hearing I did everything in my power to insure that the defendants would win their motion to set aside the convictions,” Bibb wrote in the blog commentary, which MSNBC.com has confirmed as authentic.
Bibb apparently was not the only one inside the district attorney’s office who believed Lemus and Hidalgo were wrongly convicted.Video: Was evidence withheld? (on this page)
In a quarterly report filed with the New York State Division of Criminal Justice Services on April 22, 2004, a year before the hearing, the district attorney’s Cold Case Unit said it was nearing completion of its own review of the Palladium case.
“Substantial new evidence indicates that Lemus and Hidalgo were NOT involved in the homicide,” it reported. The word “not” is capitalized and boldface in the original.
Nonetheless, Lemus goes on trial again Oct. 22.
For first time, prosecutor reveals his doubts
Bibb’s doubts about his own case came to public light in May, when lawyers for Lemus subpoenaed NBC News for video of an interview conducted by Daniel Slepian, a producer for “Dateline NBC” who has followed the case since 2002 for a documentary, “In the Shadow of Justice.”
The taped interview was the first time Bibb had spoken publicly about “the most difficult case I’ve ever had” — the murder at the Palladium, which he had been assigned to reinvestigate after many years.
Bibb said he already believed Lemus and Hidalgo had been wrongly convicted for almost a year before he went into the courtroom of state Supreme Court Justice Roger Hayes and, under orders from his superiors, argued that they should not be freed.
“The decision to go to the hearing was not made in my presence. It became evident that the people who were making the decisions wanted to go to the hearing,” Bibb said.
Bibb is now a defense attorney in private practice. At that time, his boss was Morgenthau, who at 87 had been Manhattan’s elected district attorney for 30 years.
Asked whether Morgenthau himself was involved in the decision-making process, Bibb replied, “He was aware of what was going on.”
Based on Bibb’s comments, Lemus’ attorneys filed a motion to dismiss all charges, which was denied.
Police, prosecutors, juror back Lemus
Bibb is just one of many people involved in the Palladium case who believe that Lemus and Hidalgo were wrongly convicted. They include:
- Joseph Pillot, who confessed in 1995 to being an accomplice in Peterson’s killing with Thomas “Spanky” Morales, a fellow member of a Bronx drug gang. Not only were Lemus and Hidalgo not involved, he said, but he had never seen them in his life.
- Numerous witnesses who were never called at trial, whose contentions were known to police but were not disclosed to defense lawyers, who insisted that they saw Morales and Pillot fire the shots at the Palladium.
- Robert Addolorato and John Schwartz, two detectives who reinvestigated the case after Pillot confessed, found evidence they believe was hidden and eventually retired, they said, so they could speak out.
- Steven M. Cohen, a former assistant U.S. attorney who got involved after prosecuting Pillot and Morales on unrelated charges. He devoted more than a decade to working to reverse the convictions of Lemus and Hidalgo.
- Other witnesses, who initially identified Lemus and Hidalgo from still photographs but who said they were mistaken after seeing and hearing them speak on videotape.
- Carol Kramer, the forewoman of the jury that convicted Lemus and Hidalgo, who says jurors never saw evidence indicating that Morales and Pillot were the culprits and who told the court in 2005 that she was now “convinced ... that Lemus and Hidalgo were wrongly convicted.”
The district attorney’s office last publicly commented on the case in July 2005, when it became an issue in Morgenthau’s successful campaign for re-election. It said evidence implicating other shooters did not mean Lemus was not also involved.
What happened at the Palladium?
MSNBC.com compiled the following reconstruction of the 17-year-old Palladium murder case from court records, police documents and attorneys’ memoranda. MSNBC.com was also provided with a pre-air copy of Slepian’s documentary.
Thanksgiving night in 1990 was “Latin Night” at the Palladium nightclub in Manhattan. At about 1 a.m., shots were fired at the velvet ropes at the door, and two bouncers were hit. Markus Peterson, 23, an amateur bodybuilder from Brooklyn who coached neighborhood kids in football, was shot in the chest and died on a hospital operating table of internal hemorrhaging. Jeff Craig, 31, a former New York police officer, took a bullet in a thigh and survived.
Witnesses told detectives that a Hispanic man had gotten into a scuffle with a bouncer. He left but returned minutes later with friends and guns. Multiple shots were fired at close range.
Three weeks later, witnesses identified David Lemus, 22, a part-time construction worker who was going to night school to become a carpenter’s apprentice, in a photo array. Five weeks later, he was picked out in a lineup. He was arrested and charged with the murder of Peterson and the attempted murder of Craig.
Ten months later, Olmedo Hidalgo, 26, was also picked out in a photo array and a lineup. Hidalgo had come to the country three years earlier and was working at his brother’s grocery store, sending money to his family in the Dominican Republic. He was arrested and charged.
Both men had previous arrests, Hidalgo for gun possession and Lemus for driving a stolen car.
In November 1992, two years after the shooting, they were tried together. Four of the six witnesses who testified for the prosecution identified Lemus and Hidalgo. The area was well-lighted, and they could clearly see the men involved, they said.
Moreover, Delores Spencer, who was linked romantically to Lemus, testified that Lemus confessed to her a couple of days after the shooting that he was one of the gunmen.
Police had persuaded Spencer to wear a wire, which recorded Lemus insisting that he was, in fact, innocent. That tape was never played for the jury.
Instead, prosecutors played part of another conversation in which Lemus seemed to indicate that Spencer had reason to be frightened. “You know that I know that you know,” he was recorded saying, followed by three short sounds that prosecutors contended were meant to mimic gunshots.
The defense called no witnesses, so jurors never heard Lemus say that he had made up the story to impress Spencer, who he said was fascinated by the gangster lifestyle.
On Dec. 2, 1992, Lemus and Hidalgo were convicted of second-degree murder and second-degree attempted murder. They were sentenced to 25 years to life in prison.
‘This one case keeps me up at night’
In 2002, Daniel Slepian, with his camera, began shadowing two detectives, Bobby Addolorato and John Schwartz, for a “Dateline NBC” report on the Bronx Homicide Task Force.
At dinner one night, Slepian said in an interview with MSNBC.com, he asked Addolorato whether he took the job home with him. “You see some terrible things every day,” Slepian said.
“You know, I really don’t,” Addolorato said. Then he paused, Slepian said, and added: “Except this one case. This one case keeps me up at night.”
It was the Palladium case. Slepian had never heard of it.
Addolorato told Slepian in a videotaped interview that a couple of years after the Palladium trial, an informant told him that he had witnessed the murder at the nightclub. The informant said he was in his parked car when he saw two of his fellow gang members, Joey Pillot and Spanky Morales, open fire on the bouncers from the street.
Addolorato took his evidence to the district attorney’s office, where the original prosecutor, Assistant District Attorney Stephen Saracco, agreed to meet the informant.
“After about 20 minutes, he came back out and said, ‘Listen, thank you very much, [but] he’s really not on the money with his facts,’” Addolorato told Slepian on camera.
Addolorato said he dropped the matter, but not for long.
While working with federal prosecutors in an investigation of gang activity, Addolorato arrested Pillot and Morales. According to court documents, Pillot, angling for a deal, offered a confession to a different crime — he said he and Morales were the Palladium gunmen.
Court documents introduced at the 2005 hearing show that in a series of interrogations in February and March 1994, Pillot told Steve Cohen, then the head of the Violent Gangs Unit of the U.S. attorney’s office, that Morales shot the bouncers. Pillot said he, too, opened fire, but his 9mm gun jammed and an unfired bullet fell to the ground. The case record showed that an unspent 9mm round was found at the scene.
For Addolorato, the case had become an obsession. He learned that a few days after the Palladium murder, a tipster called the anonymous Crime Stoppers hot line, identifying Pillot and Morales. Addolorato found three other witnesses who said Morales had bragged about the killing. Court documents support Addolorato’s assertions.
In 1995, Lemus’ and Hidalgo’s lawyers were granted a hearing on their motion for a new trial.
Was there a third shooter?
At the 1995 hearing, prosecutors acknowledged that Morales “was considered to be a suspect,” possibly a “third shooter.” But that did not mean Lemus and Hidalgo were innocent, they argued.
Judge Jay Gold, who presided over the original trial, discounted Pillot’s account as “much worse than merely doubtful” and “entirely unworthy of belief.” The motion for a new trial was denied.
Over the following years, Addolorato kept plugging away. Among the many people he approached for help was Cohen, the federal prosecutor to whom Pillot had confessed in 1994.
By this point, Cohen was a defense attorney in private practice, and he took on the case for free.
“David [Lemus] said to me once that he wanted to be a tough guy with a car when all he was was a knucklehead with a bus pass, and he lied to Delores Spencer to build himself in her eyes,” Cohen said in Slepian’s documentary. “What does that make David Lemus? It makes him stupid. Does that make him someone who should be in jail 25 years to life? I don’t think so.”
Another witness comes forward
In 2000, The New York Times weighed in, raising questions about a possible injustice.
One man who read the Times article was Richard Feliciano, who was in prison on federal drug charges. He told federal prosecutors that he knew the wrong men had been convicted because he was with Morales at the time of the murder and it was Morales who shot Peterson.
When Addolorato was promoted to detective first class in 2002, he was joined in his crusade by a new partner, John Schwartz. NBC News, with the permission of the police department, was filming their investigation.
In April 2002, Feliciano gave a sworn affidavit reaffirming what he had said after the Times article appeared two years earlier: “Spanky ... shot the black bouncer with a revolver,” Feliciano said in the affidavit, adding: “I do not know, and have never seen, David Lemus or Olmado [sic] Hidalgo. ... Neither was involved in the Palladium shooting.”
Addolorato and Schwartz sought permission in November 2002 to arrest Morales, who was due to be released shortly from federal prison in West Virginia on unrelated charges.
“We were treated with such hostility from the time we walked in,” Schwartz told Slepian on camera. “I had never, never been treated like that in 19½ years with the police department.”
Morales was released and returned to New York.
Fresh investigation raises more doubts
In January 2003, the district attorney’s office opened a new investigation. Addolorato and Schwartz were removed as the lead detectives and were reassigned to assist their colleagues in Manhattan. For the first time, they saw the original case file.
Two prosecution witnesses had identified Morales before the trial, but he was never placed in a lineup. There was also a record noting that Morales’ sister-in-law called police in early 1991 and said Morales was involved in the shooting.
When Addolorato demanded to know why the information had not been turned over to the defense, he said, he and Schwartz were barred from working on the case and were ordered not to talk about it.
Schwartz, fed up with delays and what he saw as an injustice, retired in November 2003. Eight months later, Addolorato also retired. He said it was the only way he could speak out.
In November 2003, and again in February 2004, Morales was questioned by the new detectives about the Palladium murder. According to the investigators’ report, Morales told them “he had firsthand knowledge of the incident” and “he was there.” But he would not give specifics unless he was granted immunity.
A new day in court
In the summer of 2004, Lemus’ and Hidalgo’s lawyers filed a motion to have their convictions thrown out. Roger Hayes, a justice of the New York Supreme Court, which is the state’s appellate court, held a hearing in February 2005 to decide whether to hear the full motion.
Bibb was, as he wrote last month, already convinced that Lemus and Hidalgo were innocent, but he worked for Morgenthau, and he had his orders.
Bibb acknowledged there was evidence that Morales was involved and called him “a third perpetrator.”
According to a court transcript, when Hayes asked why Morales had never been prosecuted, Bibb said, “It is the subject of continuing discussion within my office.”
New arrest, but Lemus not cleared
The next month, Morales was charged in the case. But the district attorney’s office did not drop its opposition to freeing Lemus and Hidalgo.
But Bibb later won a partial victory inside the office. He was allowed to withdraw his opposition to throwing out Hidalgo’s conviction. After 14 years in prison, Hidalgo was released on Aug. 19, 2005, and was deported to the Dominican Republic on an unrelated 1990 weapons conviction.
But Morgenthau’s office continued to fight Lemus, saying now that he had been in league with Morales and Pillot instead of Hidalgo.Video: Was evidence withheld? (on this page)
On Oct. 19, 2005, Hayes granted Lemus’ motion for a retrial, citing Pillot’s confession, witnesses’ identification of Morales as the shooter and the district attorney’s switch to Morales as its prime suspect.
Two days later, Lemus was released from prison, a free man for the first time in 14 years. In an interview with MSNBC.com, Slepian described it as an “epic day.”
Morales’ case was thrown out last September. The judge said that police had had all the evidence they needed to arrest Morales in 1991 and that waiting almost 15 years to do so was “inexcusable” and a violation of Morales’ rights.
David Lemus is scheduled to go on trial yet again in the murder of Markus Peterson on Oct. 22.
‘The DA’s office doesn’t want to hear it’
Cohen, the former prosecutor who took on Lemus’ and Hidalgo’s case more than a decade ago, is now chief of staff to New York Attorney General Andrew Cuomo, and he has recused himself from involvement in the case. But before he did so, he told Slepian on camera:
“You know that not a lot is going to change because the DA’s office doesn’t want to hear it. There’s a kind of arrogance that comes with that power, and it only expresses itself rarely, so people think it’s not much of a problem."
“But the reality is that in those rare occasions, it involves human beings,” Cohen said. “And I concede they are right 99.99 percent of the time. But if it’s your kid who happens to represent the 0.01, good luck to you.
“Because you are David Lemus.”
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