titantoo
07-23-2005, 02:14 PM
July 23, 2005
Prosecutors Asking Court to Free Convict
By SABRINA TAVERNISE (http://query.nytimes.com/search/query?ppds=bylL&v1=SABRINA%20TAVERNISE&fdq=19960101&td=sysdate&sort=newest&ac=SABRINA%20TAVERNISE&inline=nyt-per)
In a dramatic turnaround that is almost certain to free a Bronx man who has been in prison for more than 13 years, the Manhattan district attorney's office announced yesterday that it was asking a judge to throw out the man's conviction for the murder of a bouncer outside the Palladium nightclub in 1990.
Prosecutors said the conviction of Olmado Hidalgo should be overturned because new evidence that has surfaced would cause a jury to look more favorably on his case.
They did not ask the judge to cancel the conviction of Mr. Hidalgo's co-defendant, David Lemus, because they said the new evidence would not have helped him. Mr. Lemus will continue to press his case, defense lawyers said.
A spokesman for Justice Roger S. Hayes of State Supreme Court in Manhattan, who has been presiding over a hearing into the new evidence, said Justice Hayes had received the prosecutors' request and would consider it on Friday, when the parties in the case are scheduled to meet.
For years, lawyers for Mr. Lemus and Mr. Hidalgo have fought the men's convictions in various court hearings, arguing that they were wrongly identified by witnesses on Thanksgiving night in 1990 when the bouncer, Marcus Peterson, was shot and killed outside the nightclub on East 14th Street.
On that night, witnesses testified, a guest had argued with another bouncer, then left and returned a short while later with a friend. The two men shot two bouncers, one of them, Mr. Peterson, fatally. Prosecutors have said other patrons were also involved.
Now, for the first time, prosecutors are acknowledging what they had long been opposing - that Mr. Hidalgo, who is 40 and a native of the Dominican Republic, was convicted on weak evidence, an indication he might not have been involved in the shootings.
A senior law-enforcement official said that yesterday's request did not mean that the office was exonerating Mr. Hidalgo or that it had made a mistake when it prosecuted him.
"We are just looking at the evidence and are saying quite simply now that the new evidence might have caused a jury to reach a more favorable result," said the official, who spoke on the condition of anonymity because of the sensitivity of the case.
"He's entitled to have this set aside," the official said, referring to Mr. Hidalgo.
If as expected that does occur, there will still be an outstanding indictment pending against Mr. Hidalgo. But his lawyer, Daniel J. Horwitz, said it was unlikely that prosecutors would pursue another case against him.
"This is obviously a good day for Olmado Hidalgo," Mr. Horwitz said by telephone last night. "It's been too long in the coming, but we're grateful that we're here."
The case is enormously complex, and the prosecutors' statement yesterday traced it back through layers of witnesses and testimony, much of which the office's cold case unit reviewed during months of detailed re-investigation over the past year, which included interviewing more than 60 witnesses in 15 states. A judge had rejected the men's appeal in the mid-1990's, before the most recent evidence came to light.
Prosecutors said that among the new evidence that could have led to a more favorable outcome for Mr. Hidalgo were statements by a Bronx gang member, Thomas Morales, that he and a friend were responsible for the killing.
Mr. Hidalgo's case, they said, differs substantially from Mr. Lemus's. Witnesses did not identify him until nearly a year after the crime, they said, and there was no independent corroboration of their identification. Mr. Lemus, on the other hand, had confessed to killing Mr. Peterson in a bragging telephone call to a woman that was taped and offered as evidence at his trial. Mr. Lemus has said that he exaggerated to impress the woman.
Prosecutors also said their re-investigation found no connection between Mr. Hidalgo and all the other suspects in the shooting, including Mr. Lemus. The two men long maintained that they met each other for the first time in court, while prosecutors had said earlier that they were friends.
Mr. Hidalgo's lawyer at the 1991 trial argued that the fatal shots had come from the gun of one of the other bouncers. The new evidence, prosecutors said in the statement, might have allowed the lawyer "to adopt a more promising approach."
Mr. Lemus's lawyer, Gordon Mehler, said he hoped Justice Hayes would overturn his client's conviction as well. A bouncer who struggled with one of the gunmen on the night of the shooting testified at the hearing before Justice Hayes that Mr. Lemus was not the gunman.
But prosecutors argue that the new evidence does not change the fact that Mr. Lemus confessed to the shooting, and that it was unlikely that a jury would look more favorably on his case.
Still, Mr. Mehler said, "We remain hopeful that the court will decide that prosecutors made a mistake about David Lemus."
Prosecutors Asking Court to Free Convict
By SABRINA TAVERNISE (http://query.nytimes.com/search/query?ppds=bylL&v1=SABRINA%20TAVERNISE&fdq=19960101&td=sysdate&sort=newest&ac=SABRINA%20TAVERNISE&inline=nyt-per)
In a dramatic turnaround that is almost certain to free a Bronx man who has been in prison for more than 13 years, the Manhattan district attorney's office announced yesterday that it was asking a judge to throw out the man's conviction for the murder of a bouncer outside the Palladium nightclub in 1990.
Prosecutors said the conviction of Olmado Hidalgo should be overturned because new evidence that has surfaced would cause a jury to look more favorably on his case.
They did not ask the judge to cancel the conviction of Mr. Hidalgo's co-defendant, David Lemus, because they said the new evidence would not have helped him. Mr. Lemus will continue to press his case, defense lawyers said.
A spokesman for Justice Roger S. Hayes of State Supreme Court in Manhattan, who has been presiding over a hearing into the new evidence, said Justice Hayes had received the prosecutors' request and would consider it on Friday, when the parties in the case are scheduled to meet.
For years, lawyers for Mr. Lemus and Mr. Hidalgo have fought the men's convictions in various court hearings, arguing that they were wrongly identified by witnesses on Thanksgiving night in 1990 when the bouncer, Marcus Peterson, was shot and killed outside the nightclub on East 14th Street.
On that night, witnesses testified, a guest had argued with another bouncer, then left and returned a short while later with a friend. The two men shot two bouncers, one of them, Mr. Peterson, fatally. Prosecutors have said other patrons were also involved.
Now, for the first time, prosecutors are acknowledging what they had long been opposing - that Mr. Hidalgo, who is 40 and a native of the Dominican Republic, was convicted on weak evidence, an indication he might not have been involved in the shootings.
A senior law-enforcement official said that yesterday's request did not mean that the office was exonerating Mr. Hidalgo or that it had made a mistake when it prosecuted him.
"We are just looking at the evidence and are saying quite simply now that the new evidence might have caused a jury to reach a more favorable result," said the official, who spoke on the condition of anonymity because of the sensitivity of the case.
"He's entitled to have this set aside," the official said, referring to Mr. Hidalgo.
If as expected that does occur, there will still be an outstanding indictment pending against Mr. Hidalgo. But his lawyer, Daniel J. Horwitz, said it was unlikely that prosecutors would pursue another case against him.
"This is obviously a good day for Olmado Hidalgo," Mr. Horwitz said by telephone last night. "It's been too long in the coming, but we're grateful that we're here."
The case is enormously complex, and the prosecutors' statement yesterday traced it back through layers of witnesses and testimony, much of which the office's cold case unit reviewed during months of detailed re-investigation over the past year, which included interviewing more than 60 witnesses in 15 states. A judge had rejected the men's appeal in the mid-1990's, before the most recent evidence came to light.
Prosecutors said that among the new evidence that could have led to a more favorable outcome for Mr. Hidalgo were statements by a Bronx gang member, Thomas Morales, that he and a friend were responsible for the killing.
Mr. Hidalgo's case, they said, differs substantially from Mr. Lemus's. Witnesses did not identify him until nearly a year after the crime, they said, and there was no independent corroboration of their identification. Mr. Lemus, on the other hand, had confessed to killing Mr. Peterson in a bragging telephone call to a woman that was taped and offered as evidence at his trial. Mr. Lemus has said that he exaggerated to impress the woman.
Prosecutors also said their re-investigation found no connection between Mr. Hidalgo and all the other suspects in the shooting, including Mr. Lemus. The two men long maintained that they met each other for the first time in court, while prosecutors had said earlier that they were friends.
Mr. Hidalgo's lawyer at the 1991 trial argued that the fatal shots had come from the gun of one of the other bouncers. The new evidence, prosecutors said in the statement, might have allowed the lawyer "to adopt a more promising approach."
Mr. Lemus's lawyer, Gordon Mehler, said he hoped Justice Hayes would overturn his client's conviction as well. A bouncer who struggled with one of the gunmen on the night of the shooting testified at the hearing before Justice Hayes that Mr. Lemus was not the gunman.
But prosecutors argue that the new evidence does not change the fact that Mr. Lemus confessed to the shooting, and that it was unlikely that a jury would look more favorably on his case.
Still, Mr. Mehler said, "We remain hopeful that the court will decide that prosecutors made a mistake about David Lemus."