On May 16, 1997 Thomas Hosford was shot several times in the course of an early morning robbery at his home in the Bronx. He was rushed to the hospital and while sedated said that the man who shot him was an acquaintance who had been introduced to him as Freddy Polonia. Freddy was Pedro Polonia, the brother of Diomedes Polonia. After the robbery Pedro had appeared at a friend’s house with a gun and bloody clothes and said he had shot someone. Other friends helped dispose of the weapon and get Freddy to the airport where he fled to Puerto Rico.
As police searched for Freddy they found Diomedes and asked him if he was Freddy. English is not Diomedes’ first language and, confused by the question, he initially answered that he was. He was arrested on May 20, 1997, and later identified by Hosford in a photo lineup. Hosford also identified Diomedes in an in person lineup, though he was more tentative. Diomedes and Pedro are close in age and resemble each other.
At trial the principle evidence against Diomedes was Hosford’s identifications of him as Freddy. Diomedes claimed he had an alibi, and his girlfriend was willing to testify that he was at home with her at the time of the crime. She contacted Diomedes’s lawyer several times but he failed to call her back, or present any evidence of an alibi at trial, or even interview witnesses who might have cleared up the confusion by explaining that Pedro, not Diomedes, was known as Freddy. Diomedes was convicted by a jury of attempted murder, burglary, attempted robbery, assault, and firearms charges in Bronx County Supreme Court on December 1, 1998. He was sentenced to 14-18 years in prison.
In 2001 new pro bono attorneys for Diomedes interviewed witnesses that his original attorney had failed to contact. These witnesses were willing to testify that Diomedes was not Freddy, provide him with an alibi, and implicate Pedro. While gathering evidence they met with another brother of Diomedes, Felix, who brought Pedro with him. Pedro signed a written confession and then immediately fled to Boston. He was located in Boston but refused to cooperate with prosecutors and then fled to Puerto Rico. Diomedes filed a motion for a new trial based on ineffective assistance of counsel which was granted by the Bronx County Supreme Court. He was released on January 28, 2003 and prosecutors formally dropped all charges against him on January 30, 2003.
— Michael S. Perry