Mimesis Law
16 February 2019

Enger Javier: The System At Its Absolute Worst

November 18, 2016 (Fault Lines) – Early in the morning of August 19, 2012, Enger Javier’s life took a radical turn for the worse.

At around 1:20 AM, Javier, then a 22-year-old member of NYC’s Trinitarios street gang, was hanging out on the sidewalk a block away from a Bronx McDonald’s, listening to music with his friends and sipping from a soda cup. All of a sudden, he saw a man sprint down the street, about a half dozen others giving chase. Javier did nothing but remain where he was, staring after the unfolding pursuit.

Later that night, Javier and his friends were detained and brought to the 44th Precinct, where they were interviewed by Detective Carlos Faulkner. It turned out the man Javier had seen running – 22-year-old Hansell Arias, formerly a member of rival Bronx gang Dominicans Don’t Play – had been stabbed and left to die in the parking lot outside the McDonald’s.

Faulkner liked the look of Javier for the killing. Javier claims he interrogated him for hours, trying to get him to break.

“Hour after hour, he kept coming back in the room,” Javier said. “‘Oh, we know it was you. Say it was you. We already know it was you. Say it was you.'”

Under the same circumstances, weak-willed, exhausted or just plain frustrated people routinely confess to crimes they didn’t commit. (Yes, that includes murder, and even child rape.) The problem is endemic, and made worse by the way cops “massage” false confessions after they obtain them. But to his considerable credit, Javier refused to play ball.

One day after he saw Arias run down the street, Javier was arrested and charged with his murder. In classic Post style, the New York Post’s report on the killing was lifted straight from the police blotter.

An ex-con has been busted for the fatal stabbing of a pizzeria worker in the Bronx, police said.

Enger’s [sic] criminal record included possession of a weapon inside a correctional facility and gun possession, according to cops.

The deadly bloodshed was gang-related, cops said.

Following his arraignment, where bail was set that he couldn’t afford, Javier disappeared into the bottomless constitutional and criminal-justice pit that is Rikers Island. Like his better-known jailmate, Kalief Browder, Javier was doomed to spend several years on the Rock, waiting for trial. Like Browder, Javier kept maintaining his innocence. And like Browder, Javier was routinely tossed in the hole: a practice that, in the opinion of everyone from left-wing legal activists to psychiatrists to the head of Colorado’s Department of Corrections, amounts to cruel and unusual punishment.

Javier would ultimately spend two years in pre-trial detention – including five months in solitary – making court appearance after court appearance without any hint of a resolution in sight. He says he was beaten during a riot and physically abused, claims that are entirely in line with the documented conditions of brutality at Rikers.

Much has been written about the mockery New York’s criminal justice system makes of constitutional speedy trial, the systemic delays in Bronx criminal court and the extreme squishiness of New York’s statutory speedy-trial right. Then there’s the way the state’s needlessly punitive and frequently lawless bail-setting regimen exacerbates these problems and condemns legally innocent defendants to sit behind bars, depriving them of their families, jobs, reputations and the ability to mount an effective defense.

Like so many before him, Javier found himself in the unenviable role of warm body in the system. And the failure of New York’s leaders to do more than mouth pretty words of reform after Browder’s story went viral means there’ll be many more in years to come. But unlike the others, Javier was fished out of the oubliette. What happened?

Two years after he was thrown in jail, Javier’s family was able to come up with the money for his release. As part of his supervised release conditions, the Bronx DA contracted with a private investigator, Manny Gomez, to fit him with an electronic ankle bracelet. As Gomez tells it, by the time Javier showed up for his snazzy new legwear, he was already convinced Javier had been wrongfully accused.

“I saw from the beginning of the case there was a big red flag,” Gomez said in an interview. “By the time I put [the] ankle bracelet on him, I was 95 percent sure this kid was innocent.”

So Gomez, a former NYPD cop, set out to do some fact-finding.

The Bronx DA’s case against Javier consisted of two eyewitness identifications, one of the flimsiest, least reliable forms of evidence available. (New Jersey now requires judges to give jurors special instructions on the unreliability of eyewitness testimony.) One of the witnesses was an unidentified female bystander who, under Det. Faulkner’s supervision, picked Javier out of a lineup; the other was Jansel Paula, one of Javier’s friends who, like him, was detained and brought to the 44th Precinct for an interview with Faulkner on the night of the murder.

First, Gomez found the first witness’ lineup report. Here’s what Faulkner wrote she said:

Out of all six guys number 3 [Javier] looks like he was with the other guys. I don’t know where I remember him. Not sure.

It wouldn’t take Clarence Darrow to pick that apart. But fortunately for the cops, there was still Paula’s ID. Right? Well, in November 2015, Gomez interviewed Paula, who subsequently came forward and told ABC7 Eyewitness News the cops held him for three days* and coerced him into signing a statement against Javier:

Hoffer [the reporter]: “I want to be clear. Police were threatening you with prison time if you didn’t?”
Paula: “Yes, sir, if I didn’t say it. They was making me pressure, I’m going to make 20 years inside the jail.”

Not content with exploding the DA’s case, Gomez set out to find affirmative evidence of Javier’s innocence. It turned out the Bronx DA had been sitting on DNA samples gathered from under Arias’ fingernails for two years and never bothered to test them. Under pressure from Gomez and Javier’s family, prosecutors sent the samples to a crime lab. They didn’t match Javier.

Most damning of all, Gomez discovered that on the night of the murder, police collected surveillance footage from an auto body shop that shows Javier on the sidewalk, cup in hand, as Arias and his pursuers run down the street. The ID’s unmistakable: Javier’s wearing the same clothes as later in the night when he was taken to the 44th Precinct. When Eyewitness News ran the footage Gomez recovered on November 14, 2015, it was the first mention of Javier anywhere on the Internet in over three years:

The cherry on the cake comes from court transcripts. They prove that the prosecutor assigned to Javier’s case, John Morabito, told the presiding judge no video was recovered from the crime scene. If the cops turned the surveillance footage over to Morabito, he committed a massive Brady violation and a serious crime; if not, NYPD knowingly deprived the prosecution and the defense of a critical piece of evidence. Nor can the cops claim ignorance: an officer’s canvass report shows they knew what they found.In February, three and a half years and 26 court appearances after Arias’ murder, Bronx DA Darcel Clark dropped the charges against Javier. (By that time, even the murder victim’s family had joined in calling for his release.) Clark and the NYPD have since failed to do anything about Morabito or Faulkner; until Wednesday, when PIX11 News reached out to the DA and the police as part of a follow-up report, it appears there was either no investigation or that it had stalled completely.

Since then, Gomez has said Internal Affairs gave him a call and told him Faulkner’s actions are being re-examined. Eyewitness News says that when they contacted Faulkner for a comment, he pulled a Lou Scarcella and claimed he “did not recall” anything about the Javier case.

Nor are the potentially dirty cop and prosecutor the only people the cops should be looking at. Gomez said he was able to track down who he claims are Arias’ actual killers – two Trinitarios gang leaders – from the surveillance footage. Six new eyewitnesses have since come forward to corroborate his information. And according to Gomez, the same people are implicated in a 2010 killing for which two men who took a plea deal are currently serving time. Again, it seems it took a kick in the ass from the media for anything to get done:

Within hours of our inquiry, Homicide Bureau detectives started interviewing the witnesses that Javier’s private detective and lawyer had brought to them. The investigation had been dormant for months, until the inquiry from PIX11 News, according to Gomez[…]

The amount of government failure in Enger Javier’s story is almost beyond belief. From cops to prosecutors to jails to the ostensible rights guaranteed defendants by state law and the Constitution, not a one was able to keep him from losing years of his life and liberty to an outrageous, ginned-up case.

By rights, heads should roll for this level of criminality and incompetence. And Javier and his lawyers have already sued the city to the tune of $20 million. But all too often, nothing happens, and the cops’ and DA’s reluctance to investigate further implies it’s going to be tough to impose consequences in the Bronx. If there’s one thing the system does well, it’s look after itself.

*If true, Paula’s statement was made two days after Javier’s arrest, meaning NYPD slapped the cuffs on him with nothing more to go on than the lineup ID.

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