At about 6:30 p.m. on August 18, 1975, four youths attempted to rob a group of young men in Fort Greene Park in Brooklyn, New York. When one of the intended victims, Jesus Cordero, swung a bat at the robbers and missed, one of the robbers fired a single gunshot and struck Cordero.
Five days later, on August 23, Cordero died. By that time, two of the men with Cordero, Pasquale Nieves and Felix Torres, had viewed police mug shots and identified 21-year-old Robert Escalera as the gunman.
On September 3, police showed Nieves and Torres a photographic lineup in an attempt to identify Escalera’s companions, but no identification was made. On September 28, police showed them another photographic lineup and included Escalera’s photograph. Nieves and Torres again selected Escalera.
That same day, Escalera was arrested and brought to a police station where Nieves and Torres viewed him through a one-way mirror. Both again said Escalera was the gunman and Torres said he recalled that on several occasions Escalera had visited the hotdog stand where Torres worked a year or two earlier.
Escalera went on trial in Kings County Superior Court in August 1976. Nieves and Torres identified him as the gunman, despite a defense contention that the identification procedure was suggestive and flawed.
Escalera’s lawyer claimed that the first time Nieves and Torres viewed photographs—before Cordero died—they had viewed photos together, with no police officer present, and that Torres picked Escalera because he recognized him from the hotdog stand and Nieves went along with his selection. The trial judge ruled that the identification through the one-way mirror was suggestive, but the earlier identification was proper.
Escalera testified that he had met a friend at a bus stop at 5:30 p.m. on the day of the shooting. He said he went home to shower and eat dinner from 6 p.m. to 6:30 p.m. and then was with the friend afterward. The friend testified and confirmed that he was with Escalera during that time.
Escalera’s lawyer sought to call Escalera’s brother, Peter, to testify that Escalera was home showering and eating dinner. The prosecution objected because the lawyer had failed to list Peter Escalera on his list of alibi witnesses. The prosecution asked for a recess to interview Peter, but the judge on his own simply barred Peter from testifying. The jury convicted Escalera of murder and he was sentenced to 15 years to life in prison.
After Escalera’s appeal was rejected by the New York Appellate Division, he filed a federal petition for a writ of habeas corpus. A U.S. District Judge rejected the petition, but in August 1987, the U.S. Court of Appeals for the 2nd Circuit reversed and ordered a new trial for Escalera. The court ruled that the alibi witness should have been allowed to testify. “There is simply nothing more material to Escalera’s guilt or innocence than evidence of his whereabouts during the thirty minutes immediately preceding the crime,” the court declared.
The court also ruled that the identifications by Nieves and Torres had not been shown to be reliable and ordered the trial court to hold a hearing to determine reliability.
In December 1988, Escalera was released on bond pending a new trial. By that time, Nieves and Torres had fled after being accused of a crime in 1987. The trial judge conducted a hearing on the reliability question, using the transcripts of Nieves and Torres from the 1976 trial. The judge found that the initial unsupervised joint identification of Escalera by Nieves and Torres was improper and barred it from a retrial. The judge also ruled that the trial transcripts of Nieves and Torres could be used at Escalera’s retrial.
Escalera’s attorneys filed a motion opposing that decision, arguing that since the first identification, which was unsupervised, had been barred, all identifications after that were tainted and should be barred.
On June 4, 1990, shortly before the judge was to rule on that motion, the Kings County District Attorney’s office dismissed the case.
Escalera filed a lawsuit with the New York Court of Claims, but was unsuccessful.
– Maurice Possley