Mimesis Law
17 November 2017

With Power Comes Responsibility: Case of Richard Rosario

Mar. 28, 2016 (Mimesis Law) — A prosecutor’s duty is to do justice. Police officers are supposed to protect and serve. Together they hold the power over a life. With that power comes the responsibility to thoroughly investigate the facts and seek justice wherever it may be. We speak often of prosecutor’s failing to fulfill their duty, but we must also recognize those who honor their duty. Bronx District Attorney Darcel Clark has recommended that a court set aside the conviction of Richard Rosario, a man who has served 20 years for a murder he says he didn’t commit. Such a refreshing result, even if it took 20 years to get here.

In truth, the entire justice system failed Richard Rosario every step of the way over the past 20 years. Upon learning he was wanted for questioning in a Bronx murder, he returned to New York from Florida to clear up the misunderstanding and provide the police with 13 alibi witnesses who would testify he was in Florida at the time of the murder. The officers collected the alibi names and information yet did nothing to check it out.

Detectives, however, did not follow up with any of the alibi witnesses. So, with no evidence other than two stranger eyewitness identifications linking him to the murder, Rosario — the 21-year-old father of a 1-year-old boy and a 4-year-old girl — was arrested for murder.

They were already convinced he was guilty because two eyewitnesses had already identified him. Case closed, nothing more to investigate. In their eyes, they made the case and there was nothing more was to be done. The system failed. There was no search for the truth.

The prosecutor handling the case didn’t bother about the alibi witnesses either. That would be the defense attorney’s job, right? It’s tough for prosecutors to grapple with finding the truth. They often see a pretty package brought to them by the police and simply move forward. Sure, a defense attorney may bring them proof of a defense or alibi, but many do not see their duty to seek justice or continue investigating. The system failed. Prosecutors didn’t follow up or consider the integrity of the investigation.

All too often, police and prosecutors develop tunnel vision; a belief in the guilt of a particular suspect that results in working toward substantiating that theory rather than following the evidence. Emily Bazelon explored this phenomenon following the exoneration of Michael Morton:

What’s scary is how tenaciously police and prosecutors cling to their initial assumptions.

In that case, as the officer’s suspicion of Michael deepened, he chose to ignore the physical evidence that pointed to an outside intruder. Additionally, in the years following the conviction, prosecutors refused to consider new evidence and admit he’d been wrongfully convicted. They even failed to consider the possibility of a wrongful conviction and used every means possible to try and block DNA testing that might resolve the issue.

In retrospect, it’s clear that police and prosecutors headed off in the wrong direction and then couldn’t see flaws in the theory they’d chosen, or the clues that led elsewhere.

Back to Richard Rosario, it’s clear that officers and prosecutors developed at least some form of tunnel vision. They failed to follow evidence. They had their suspect and continued ahead without even considering the possibility of an alibi or alternate suspect. Even after the conviction, then District Attorney Robert Johnson failed to further investigate the case.

But it’s not just the police and prosecutors who failed.

Just after his arrest, Rosario was provided with an attorney. Not only does the accused have a right to counsel, but he is also entitled to state funds necessary to investigate his defense and challenge the state’s evidence. His appointed attorney took the necessary steps to request funds to investigate the alibi and have an investigator travel to Florida. However, that never came to fruition.

At some point and for reasons unclear, Rosario’s original attorney withdrew and was replaced by another appointed attorney. This attorney still did nothing to get the already approved investigator down to Florida to investigate, apparently claiming later he was unclear there was a court order approving the funds. Each of Rosario’s lawyers was court appointed. Yet, that is no excuse. Sometimes the defense is hamstrung by lack of funds for proper investigation, but here that was not the problem.

At trial, his lawyer had 2 of the 13 alibi witnesses testify to the fact that Rosario was in Florida at the time of the murder. Why were the others never interviewed or brought to court? Defendants are entitled to subpoena witnesses, and even court or state funds for travel should witnesses need to be brought in from out of state. Nonetheless, the jury discounted the two alibi witnesses and convicted. Why was a defense investigator not sent to Florida to find other concrete evidence of his stay? The system failed. His lawyers failed. The jury didn’t get the whole picture.

Rosario challenged his conviction in state court in 2004, arguing that his original attorneys were ineffective by not sending an investigator to Florida. During that hearing, seven of the alibi witnesses came to New York and told a judge that Rosario had been in Florida. But the state judge ruled against him, saying that his lawyers had on the whole “represented Rosario skillfully and with integrity” and that their failure to send an investigator to Florida was the result of a “misunderstanding or mistake” that “was not deliberate.”

Though a judge found it was not deliberate, there was no question but that Rosario’s counsel failed to adequately represent him. And then, the appellate system compounded that error by affirming the conviction. The court missed the mark: ineffective assistance of counsel need not be deliberate to be ineffective. The system failed. The court couldn’t see past the conviction and understand that key evidence was not investigated or shown to the jury. All too often, appellate courts simply affirm convictions. According to the Department of Justice, in 2010, 81% of those appeals that addressed the merits of the case were affirmed.

In 2014, as he worked on the “Conviction” series, Dateline producer Dan Slepian tracked down nine of the alibi witnesses that Rosario named the night he turned himself in. All said they had never been contacted by anyone from the NYPD or the Bronx District Attorney’s office, which has also been confirmed in court documents.

As Dateline producer Dan Slepian tracked down the alibi witnesses, he also attempted to track down the officers who worked on the case as well as the eyewitnesses. The officers were less than sympathetic. When asked why officers didn’t follow up with the alibi witnesses, Detective Crugar told Slepian, “apparently his attorney did a lousy job.” Granted, it may not have been Crugar’s responsibility to follow up on details that had been passed on the lead detective, but law enforcement bears some responsibility for failing to fully investigate. Perhaps it was law enforcement that did a lousy job. Why didn’t they follow the evidence wherever it lead? Why wouldn’t they search for the truth? Were they simply too busy? Did they not care?

Until police and prosecutors care about truth and justice, we will continue to see convictions that cast doubt on the fairness of our system. (Michael Morton, Anthony Graves, Ronald Cotton, and hundreds more.) Those with the power must be accountable and responsible. They must remain open and regularly challenge the evidence brought before them.

Between the witnesses and an investigation expert, Slepian found the state’s theory of the case was less than correct. The victim’s sister acknowledged to Slepian this was unlikely a random crime, as indicated by one of the eyewitnesses, Michael, who was with the victim when he was shot. Slepian’s expert investigator, a retired Bronx detective, also took issue with the state’s theory of a random crime. It seemed too personal, and why would a random murderer leave the eyewitness, Michael, unharmed? Of course these facts do not create a theory of innocence, but they certainly call the facts into question.

All eleven episodes of the Dateline NBC documentary, Conviction, are online to follow Slepian’s two-year journey for the truth.

While Bronx District Attorney Darcel Clark has not proclaimed Rosario innocent, she recognized the system failed: the trial was not fair; he did not have effective assistance of counsel. She recommended the court vacate the conviction while she continues to investigate. Finally, a step in the right direction for a system that failed Richard Rosario and so many others.

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