During the summer of 1991, Jose Garcia visited his wife’s family in Matanzas, Dominican Republic and on July 15 he went to La Union International Airport in Puerto Plata, Dominican Republic, to board a flight to return to his home in the Bronx.
But Garcia didn’t get off the ground. He was arrested for attempting to board a flight on false travel papers. Garcia, who did not have legal status in the United States, was jailed overnight and was bailed out the following afternoon by his wife, Ana Ortega. That night the couple attended a prayer service in Matanzas for the family member of a friend.
Sometime after midnight, however, Garcia received a telephone call informing him that Cesar Vasquez, an underling in Garcia’s drug selling business, had been murdered earlier that night in the Bronx.
He would later learn that a witness, Penny Denor Cameron, told police that a car pulled up in front of an apartment building at 2820 Bailey Avenue in the Bronx and three men got out. She heard five shots and came downstairs to find the body of Vasquez in the courtyard.
Garcia remained in the Dominican Republic until August 2, 1991, when he managed to get to the U.S., but was then arrested for entering the country illegally in California.
The investigation of Vasquez’s death stalled until police received a tip from Garcia’s girlfriend in the Bronx pointing to a rival drug dealer seeking revenge for an earlier killing. A detective went back to Cameron who went through mugshots and picked out a photo of Carlos Morillo
as the driver and a photo of Garcia as a passenger in the car.
Shortly thereafter Garcia was arrested in California, he was put in a lineup in New York and Denor identified him as one of the three men in the car.
Despite his alibi and although Cameron's identification was somewhat shaky—at one point she said the three men were black and wearing hoods and another time she said Garcia was wearing a flowered shirt—Garcia and Morillo were convicted on January 8, 1993 by a Bronx jury. Both were sentenced to serve 25 years to life prison.
The jury heard virtually nothing about his alibi. His defense attorney put on one witness, Vasquez’s sister, who said she had spoken by telephone from New York to Garcia in Matanzas the night of the murder. But the prosecution, in cross-examination, established that she had no personal knowledge that Garcia was in the Dominican Republican because she had not dialed the phone herself—someone else had dialed and handed her the telephone.
And even though the prosecution had been advised of Garcia’s contention that he was in jail in the Dominican Republic at the time of the murder, the prosecution failed to fully explore whether that was true.
For the next 14 years, Garcia fought to clear himself. The New York Appellate Division denied his direct appeal in 1995 and the following year the Court of Appeals denied his petition for leave to appeal. He then filed a write of error (coram nobis) to vacate the Appellate Division’s decision on the basis of ineffective assistance of appellate counsel. That was denied in 1998.
In 2000, Garcia filed a pro se motion to vacate his conviction, arguing ineffective assistance of counsel for failing to interview alibi witnesses and to obtain documentary support of his alibi. He attached papers documenting his stay in jail and statements of witnesses ready to testify to his presence in the Dominican Republic at the time of the murder and for some time after.
The Bronx Supreme Court summarily denied the motion on December 7, 2000 in a hand-written order. Leave to appeal was denied.
Garcia, still acting as his own lawyer, filed for a writ of habeas corpus federal court in April 2002, again arguing ineffective assistance of counsel. The Bronx District Attorney moved to dismiss the petition as untimely filed. The case was referred to U.S. Magistrate Kevin Fox who agreed with the prosecution and recommended to U.S. District Judge Lewis Kaplan in September 2004 that the petition be dismissed.
At the time Kaplan received the recommendation, he was familiar with Garcia’s trial counsel, because he was appearing before Kaplan in an unrelated immigration matter. In that case, Kaplan found that the lawyer’s performance was “grossly ineffective.” Judge Kaplan’s familiarity with the Garcia’s lawyer was probably the turning point in Garcia’s favor.
Kaplan sent the matter back to Magistrate Fox, ordered the Bronx District Attorney to respond on the merits and appointed habeas counsel for Garcia. On Feb. 16, 2005, Fox granted the request for an evidentiary hearing.
At the hearing, Garcia’s lawyer produced numerous documents proving that Garcia was in the Dominican Republic at the time of the murder. Seven witnesses testified that he was there and four witnesses provided sworn affidavits testifying to the same.
Garcia’s original trial lawyer said he didn’t try to document the alibi because he thought the prosecution case was weak and he didn’t need them.
Further, Garcia’s new habeas corpus lawyer showed that the Bronx District Attorney knew of Garcia’s alibi claim for almost a year before his trial began, but only contacted the U.S. Department of State to request the passport and tourist card that Garcia was carrying when he was arrested. Informed that those documents could not be found, the prosecution ended its inquiry, never seeking the jail documents—all of which were found by Garcia’s habeas counsel years later.
On December 21, 2006, Judge Kaplan concurred with the magistrate’s finding that Garcia’s trial lawyer had been ineffective and vacated Garcia’s conviction. On February 21, 2007, the charges against Garcia were dismissed and he was released from prison.
In 2010, the city of New York agreed to settle a wrongful conviction lawsuit brought by Garcia for $7.5 million. Garcia was then back in the Dominican Republic, where he had been deported under a 1999 deportation order stemming from an earlier drug arrest.
After Garcia was exonerated, lawyers from the New York law firm
of Shearman & Sterling agreed to work pro bono on Morillo's case with the Legal Aid Society.
The legal team created a video re-enactment of the crime which showed that it would have been difficult for Cameron to see details from four stories above the crime scene. They tracked down Cameron in New Jersey where she was dying of cancer. Cameron admitted she had lied about her identifications.
Cameron said that a detective pressured her into testifying knowing that she had not witnessed the crime because he thought her son had seen it and knew who did it. She said he showed her pictures of the suspects before she identified them.
In October 2011, Morillo's conviction was set aside and the charges were dismissed. He was released on November 2, 2011.
– Maurice Possley