Volume 79, Number 25 | November 25 - December 1, 2009
West and East Village, Chelsea, Soho, Noho, Little Italy, Chinatown and Lower East Side, Since 1933

Photo by Marc Wishengrad

Fernando Bermudez speaking outside Sing Sing after he was released from prison. He then posted bail related to federal charges he faces that still have to be resolved.

Freeing Fernando; Conviction in ’91 killing overturned

By Claude Solnik

It was going to be a day Fernando Bermudez and his attorneys had waited for — or just another in a long series of disappointments. About 75 people waited in Judge Jonathan Cataldo’s courtroom at 111 Centre St. for a decision on whether he would overturn Bermudez’s nearly 20-year-old homicide conviction.

“There are more lawyers here than in the Gotti case,” said Mike Gaynor, a former New York Police Department homicide detective who investigated the case pro bono.

The city was focusing on the latest Gotti trial. But a crowd including a half-dozen attorneys gathered in this courtroom to find out whether a state judge would throw out Bermudez’s 1991 homicide conviction for the shooting of Raymond Blount on 13th St.

Bermudez had been sentenced to 23 years to life after teenagers picked his photo in connection with the crime. But since then everybody who picked the photo recanted. Voluminous evidence not only pointed to someone else, but to the fact that the main witness repeatedly told police and prosecutors before the conviction that someone else committed the crime. Prosecutors never pursued that lead.

To lawyers, the Innocence Project, investigators like Gaynor and many others, the conviction never passed the common-sense test. I wrote an article in the early 1990s for The Villager dubbed “The Wrong Man... .” Scott Christianson put Bermudez on the cover of his book “Innocent: Inside Wrongful Conviction Cases.” The New York Times ran a front-page article; Court TV aired an hour-long show. The Innocence Project filed an amicus brief. And a procession of pro bono attorneys looked at the facts and concluded the same thing: Bermudez was innocent beyond a shadow of a doubt. And yet nearly 20 years after his conviction, Fernando Bermudez, now age 40, was about to be brought into the courtroom in handcuffs.

“Why are we even still going through this?” Lawrence Darden, one of Blount’s friends, who was feet away from him during the shooting, asked weeks ago at Justice Cataldo’s hearings. “He’s not the individual.”

Bermudez’s attorneys argued the only evidence came from witnesses who picked his photo and soon recanted. Yet despite these witnesses’ contention that the wrong man was convicted, Fernando Bermudez remained in jail at Elmira, Shawangunk and then Sing Sing. Gaynor, a hard-boiled homicide investigator, sent him occasional letters with the words “an innocent man” on envelopes. The truth was the case had crumbled almost immediately after a brief trial. The witnesses who identified Fernando Bermudez’s photo soon said it was obvious he wasn’t the killer: Bermudez is 6 feet 2 inches tall, while the killer was far shorter. You couldn’t tell his height in a photo: Lineups were done with Bermudez seated.

“I couldn’t believe he was that big,” Frank Marchany, who was at the shooting and later picked Bermudez’s photo before recanting, said after seeing Bermudez standing. “The dude I remember wasn’t that big.”

But Bermudez remained behind bars, getting a college degree, earning the nickname The Professor, marrying a woman who saw a TV segment about him and watching years waste away. The case became Kafkaesque to the point where it would have been comic, if it weren’t so tragic. The worst thing — or best for Bermudez — was that Efraim Lopez, a.k.a. Shorty, who got into a fight with the murder victim hours before the shooting, had repeatedly told police someone named “Wool Lou” or “Luis” was the killer. He even gave police Wool Lou’s address — about a hundred blocks north of Bermudez’s. And there was a video of it. But Lopez then struck a deal with the District Attorney’s Office to identify Bermudez at trial in return for not being charged. And that identification somehow had been ignored by courts for decades. Wool Lou somehow vanished into the mist.

But Lopez on video could still be heard telling police that “Wool Lou” or “Luis” was the killer and giving police his address. Prosecutors didn’t pay attention. Instead, they made a deal in which Lopez wouldn’t be prosecuted in return for identifying Bermudez, whose photo had been picked, as the shooter. So Lopez went into court, saying “Wool Lou” was simply the name he called Bermudez. The defense said Bermudez’s nickname was “Most.” But the defense couldn’t show who Wool Lou was. And so Bermudez was convicted after what a witness repeatedly said stood up in court, calling him by a name he had never heard. All of this might have been avoided if the defense had brought in the real Wool Lou. That didn’t happen.

There are reasons the defense couldn’t find the real Wool Lou. Prosecutors gave written information regarding Wool Lou to the defense about a day before trial. The video prosecutors gave the defense in which Lopez identifies the shooter as “Wool Lou” and “Luis” was redacted: Wool Lou’s address was removed. I have never understood a reasonable explanation for that. The D.A. argued Bermudez was Wool Lou. Why, then, remove Wool Lou’s address — if they’re the same person? The trial judge denied the defense’s request for more time to find Wool Lou. And so at trial, Lopez insisted Bermudez was Wool Lou and himself was allowed to go free. Bermudez denied he ever heard the name, and insisted Lopez had implicated someone else. But with no one else to show as the real Wool Lou, Bermudez’s denials didn’t have much weight. All statements the main witness made about Wool Lou as the shooter were used to implicate Fernando Bermudez, even though that simply wasn’t his name. In retrospect, it all seems insane. But it happened.

Bermudez passed a lie detector test, had alibi witnesses, no motive and no connection to anyone at the scene — beyond the fact that a few picked his photo. But the fact that several people picked his photo was proof enough, especially when you had a main witness who also said he was the shooter. Soon the witnesses who picked the photo came forward, saying they felt pressured to pick the picture. One witness only testified at trial after being arrested, handcuffed and taken to court — where he said he testified as he was told. Other witnesses said other charges were dropped against them in return for their testimony.

Despite all this, the verdict stood. One reason is in New York State, cases return to the initial trial judge, who in this instance, repeatedly refused to consider recantations. He argued they were incredible since all witnesses recanted. That seemed absurd to me, because if one witness didn’t recant, the judge could challenge the others, since one still implicated Bermudez. The cards seemed stacked against efforts to overturn a conviction. The facts really didn’t matter.

“I know who did it,” the prosecution’s main witness said in a Court TV show, when he thought the cameras were turned off. “And it isn’t Bermudez.”

But the D.A.’s Office seemed to accept guilt after conviction as an article of faith rather than considering facts. A federal judge finally granted a hearing, saying the state judge should have let witnesses go back into court to recant. The federal judge then handed off the case to a magistrate, who heard testimony and waited two years before issuing a brief decision. By the time a decision was rendered, the recantations were buried beneath a pile of paperwork. It was fairly clear the magistrate wouldn’t overturn. If someone’s innocent, you don’t wait two years to let them go. The magistrate seemed to shut the door by refusing a new trial. Another door had closed, not even with a thud. Or had it?

The federal judge rubber-stamped the magistrate’s decision without hearing evidence herself in what seemed verdict by correspondence. I couldn’t understand how she could sign her name without hearing testimony, even if she read the trial transcripts and documents, which I doubt she did.

The federal courts, which freed Ruben “Hurricane” Carter, declined to overturn. But maybe the doors hadn’t completely closed. The federal magistrate ruled the identification process was “impermissibly suggestive” and “conducive to irreperable misidentification,” even though he declined to overturn. The magistrate found that witnesses who picked Bermudez’s photo sat together, passed the photo around and discussed it — before being shown the photo in a photo array. In other words, by the time they were picking the photo out of a series, they had already seen Bermudez’s picture. They were simply picking a photo they had already seen. They had produced one collective identification rather than independent selections. Witnesses not in the room with those people did not pick Bermudez’s photo.

It seemed that William Hellerstein, Bermudez’s lead attorney in the federal case, won on facts, but lost in outcome. At that point, Bermudez’s defense was in disarray. A return to state court seemed a tough road. The state judge who heard the initial case and — in my view, made a mistake by not allowing the defense time to find Wool Lou and then refusing to let witnesses recant — could swat facts like flies. Nobody seemed to know what to do. The facts were there. But there seemed an absolute failure of the system to absorb information after conviction.

After the loss in federal court, Lesley Risinger, a tall, thin, frail, sole practitioner, took the case. Her mother, Prescilla Chenoweth, had overturned the conviction of Kevin Luis Rojas, another Hispanic man convicted of homicide in Greenwich Village’s Sixth Precinct, also based on eyewitness testimony. Chenoweth argued Rojas’s identification was hopelessly tainted: Police dragged him from a train — where he was found wearing a jacket the same color as the main suspect — to the crime scene. Several witnesses seeing Rojas in cuffs and wearing that jacket at the scene identified him, as well as other witnesses that police rounded up from among hundreds in the stopped trains.

A police officer later said Rojas couldn’t possibly have committed the crime, because of the time he boarded the train. A witnesses also identified someone else in a stopped train as connected with the crime. That person couldn’t possibly have committed the crime because he had boarded the train uptown and never left the train. Bermudez was convicted on a haircut; Rojas, on a jacket. In the end, a judge set Rojas free. Bermudez languished in jail.

Chenoweth wrote a letter to the district attorney arguing these cases were “two peas in a pod.” She got no response. Assemblymember Adriano Espaillat, the first statewide official in New York of Dominican heritage, called for further investigation. Paul Von Zielbauer’s front-page article in The New York Times attracted additional interest to a case that had fallen through the cracks.

At some point, after crafting lengthy motions, Risinger traveled to Washington, D.C., where she convinced Barry Pollack, an attorney at Washington, D.C.-based Miller & Chevalier, to take the case. Pollack had successfully defended an Enron executive, but also had overturned the conviction of Martin Tankleff for a Long Island homicide. Pollack, Risinger and her husband, Michael, a law professor at Seton Hall University, helped craft a case. Alan Kaufman, at Kelly Drye Warren, also signed on. A team was ready to go. By now, however, the judge who handled the initial case had retired. Fernando Bermudez would have his first hearing before a state judge other than the one who presided over his initial conviction. The new judge, Jonathan Cataldo, seemed, if not shocked, startled by what he heard.

He soon indicated that the improper initial photo identification by itself could be grounds to overturn. Even more important, Pollack, Risinger et al. for the first time had something new on their side: The prosecution’s reinvestigation. The district attorney in 2007 commissioned an investigation to find Wool Lou. The prosecution was required to turn over the results of its inquiry, confirming Wool Lou was the man Bermudez’s attorneys insisted had done it — and that Wool Lou’s alibi didn’t hold up. He had left for Kentucky days after the shooting and changed his name. The D.A. had to acknowledge that its main witness repeatedly before trial said someone else — not Bermudez — committed the crime. Not only was someone else undeniably Wool Lou: Wool Lou and Lopez were friends. The kicker was that Fernando Bermudez and Wool Lou looked similar.

Then came one of the must terrifying turns in a terrifying case. I was on vacation when I found out the D.A.’s Office offered Bermudez a plea deal. He could walk free if he admitted guilt to a lesser homicide charge. Bermudez refused, something I think only an innocent man could possibly do. How could he say he was guilty of something he didn’t do after serving 18 years in jail? How could he end a case with a lie after lies caused so much pain? Bermudez didn’t simply want to walk free. He wanted to be vindicated. He wanted justice.

So here we were waiting for the judge and Fernando Bermudez to enter a courtroom crammed with cameras, minutes away from resolving this case or seeing it plunge back into judicial purgatory. A few people wore “Fernando Bermudez is Innocent” T-shirts beneath jackets. Marc Wishengrad, who made videos of the case crucial in explaining it, and Mickey Garcia, Bermudez’s friend, who ran a small printing company, made them. Hopeful lawyers looked on, except for Mary Ann DiBari, who led the investigation that produced recantations and identification of the real Wool Lou. She was in Israel on a trip with nuns, praying for a miracle, probably, among other things. She wanted to be at the hearing, but her son gave her the trip before the hearing date was set. I thought it was fitting that she was in a land of miracles (and problems) while we waited for a miracle. The truth coming out shouldn’t be a miracle. But somehow, it felt like it would be.

The judge entered the courtroom. Cameras clicked as Bermudez arrived. Then came the sound of handcuffs opening as Bermudez sat beside Lesley Risinger and Barry Pollack. The judge spoke briefly at 10:30 a.m, crisply ticking off the defense’s requests followed by the words “motion granted.” Then he said he “regretted” Bermudez had been put through this and wished him a happier life ahead and left the courtroom. Many people in the courtroom sobbed. Even Gaynor shed a few tears. So did I. The headline that ran in The Villager nearly 20 years ago had been vindicated. Fernando Bermudez was officially the wrong man. He was officially innocent.

Despite a 78-page decision vindicating him, however, Bermudez wasn’t a free man. After winning the case, he was cuffed and led back into the system to face a 20-year-old federal charge that was never adjudicated. Bermudez was accused of leading an undercover cop to someone else to buy drugs: A man who had been arrested hooked Bermudez up with the undercover cop, in order to get himself out of trouble. The courts hadn’t let Bermudez serve the time simultaneously. Bermudez walked out of the courtroom an innocent man, but not a free one.

A few minutes later, everybody left the courtroom. People talked outside and tried to understand why this moment had been so long in coming. Then calls came in that the D.A. was deciding whether to appeal. The D.A.’s own investigation, in the end, had provided important proof.

But even before anyone knew what the D.A. would do, Fernando Bermudez would get some more good news. He would be released from state prison and finally walk beyond the razor wire, which marked the four corners of his world for so long.

“Fernando’s free,” Marc Wishengrad said to me from a car, after Bermudez and some others drove away from Sing Sing and all those years of tragedy.

Fernando Bermudez had just left prison, walking into the arms of his wife and some others who had been part of his life, and his legal team, for years. To me — as I looked at him in a photo Wishengrad e-mailed to me at work — he appeared at once like the person who had been arrested so long ago and a little bit more like his own father, who had come into The Villager’s office years ago, arguing the case for a son who he insisted was innocent — and providing evidence — at a time when few listened.

“Please excuse my unironed shirt,” he reportedly said, although I wasn’t there to hear it. “At least my problems have been ironed out.”

Fernando Bermudez was free in time for Thanksgiving, although any day might have felt like Thanksgiving. He was headed home to see his children — including Fernando, Jr., who had never seen his father out of jail.

As I write this, Fernando Bermudez is a free, as well as an innocent, man.  The great cloud over this case, in addition to Fernando Bermudez’s years in jail, is the fact that there must be other Fernando Bermudezes incarcerated, even though the facts paint a clear and convincing picture of innocence.

I only hope the next time a future Fernando makes an argument and presents evidence, that prosecutors, judges and others listen, look, weigh the facts and consider that innocence isn’t just a fiction, but a real issue in our system, before deciding what to do next.

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