On the afternoon of January 26, 1994, Ricardo Martinez was fatally shot after he stopped his car to put in a can of oil on Park Avenue in East Harlem in New York City. He and his wife, Roxana, were on their way to deliver $2,000 worth of crack cocaine. Roxanna remained in the car, listening to music on headphones while her husband was working under the hood.
Roxanna told police that her husband suddenly opened the driver’s side door and said, “They killed me,” and then collapsed. She said she heard one gunshot but did not see who fired the gun.
Four days later, however, Roxanna told police that two men attacked her husband and identified them as 20-year-old Christian Patinos and 23-year-old Juan Carlos Pichardo, both residents of New York City whom she knew from the neighborhood.
She said she was able to see both of them when, as they fled, Pichardo fell in the snow and Patinos fired a shot at her. She said that she got out of the car and chased them, but they escaped. She said that when she returned to her car, she found a bystander, Benito Ortiz, comforting her dying husband.
Patinos and Pichardo were arrested and charged with murder. At the time, Pichardo was free on bond after being arrested January 5, 1994, on a charge of selling a $20 bag of cocaine to an undercover police officer in the Bronx.
The two men were tried separately, and Pichardo went on trial first before a jury in New York Supreme Court.
Roxanna described seeing both men and her futile attempt to chase them. Pichardo’s attorney suggested in cross-examination that she fabricated this story after being granted immunity for her testimony before a grand jury because she feared prosecution for selling drugs. The prosecution then argued that Roxanna received immunity because she was afraid of retaliation. Pichardo’s attorney failed to cross-examine Roxanna about her earlier statement that she didn’t see the shooting.
Jeffrey Atlas, the judge presiding over the trial, frequently chastised Pichardo’s lawyer for courtroom blunders.
According to an account of the case published in the New York Times, the judge at one point pulled the lawyer aside to criticize him for failing to object to an improper question by the prosecution. “I’m dealing with a homicide,” the judge declared. “If the jury convicts this man, I have to sentence him and I would like to do that with a clear conscience.”
Ortiz testified that as he was passing by the parking lot where the shooting occurred, he saw two men walk into the lot and heard shots. He said he saw one man firing at Ricardo Martinez, then fall in the snow as he fled before limping to a waiting car. Evidence was presented that Patinos’ nickname was “El Cojo,” which means a person who limps.
Pichardo’s attorney put on an alibi defense, calling members of Pichardo’s family who testified that he was home with the flu at the time of the shooting.
After the last of the alibi witnesses left the courtroom, Atlas asked the lawyer to call his next witness. The lawyer turned to Pichardo and asked, “You want to testify?”
That was the first time the subject had come up between Pichardo and his lawyer.
Pichardo decided to take the witness stand and denied involvement in the murder. But by taking the stand, the prosecution had an opportunity to question him about incriminating statements police said he made. Although Pichardo denied making the statements, his credibility suffered.
Pichardo’s lawyer complained to Judge Atlas that he thought the prosecution could not use these statements. Atlas later told the lawyer that any criminal attorney would have known the statements were admissible.
During rebuttal, the prosecution called a detective who said that Pichardo had made the incriminating statements.
During a day and a half of deliberations, the jurors asked to hear the testimony of Pichardo and the detective again—a request that was rejected by Judge Atlas.
In October 1994, the jury convicted Pichardo of second-degree murder and he was sentenced to 20 years to life in prison. Not long after, Pichardo agreed to plead guilty the drug charge because the sentence—one to three years in prison—ran concurrently with the sentence for his murder conviction.
Several months later, Patinos was convicted of murder and was sentenced to 20 years to life in prison.
When Patinos’ case was assigned to the Frances Gallagher at the Legal Aid Society, Gallagher, who already had been working on Pichardo’s appeal, noticed that the prosecution had disclosed evidence that was favorable to Pichardo in the Patinos case, but not in the Pichardo case.
Gallagher discovered that another witness, Joe Smalls, told police on the day of the shooting that he saw a Hispanic male about five feet, two inches tall cross Park Avenue alone and shoot four or five times at Ricardo Martinez. Patinos was five feet, five inches tall and Pichardo was five feet, eleven inches tall.
Gallagher also discovered that the police reports disclosed to the defense in the Patinos case contained the name of a witness named Itzalia Alvarez, who told police she only saw one gunman firing four or five shots.
A motion for a new trial for Pichardo was filed in June 1998. A hearing was held where Ortiz, Alvarez, and Smalls testified. On March 7, 2000, Justice Jeffrey Atlas granted the motion and ordered a new trial.
Atlas ruled that Pichardo’s defense attorney at trial had failed to hire an investigator, failed to interview potential witnesses, failed to request a jury instruction for the use of an alibi, was ineffective in cross-examination and put Pichardo on the witness stand without realizing he could be cross-examined about allegedly incriminating statements police claimed he made.
Atlas said that the defense attorney had failed to cross-examine Ortiz about his description of the gunman as five feet, five inches—a height matching that of Patinos and six inches shorter than that of Pichardo.
What Atlas found “most appalling” was the lawyer’s failure to hire an investigator and his failure to conduct any investigation at all, except to interview Pichardo’s family members.
Pichardo went on trial for a second time in the summer of 2000. Bolstered by the new witnesses as well as ballistics evidence showing that all the shots were fired by one gun, Pichardo was acquitted by a jury on June 15, 2000 and he was released from prison.
Pichardo then began battling to erase the drug conviction, which the prosecution was attempting to use to deport him to the Dominican Republic, his native country. Pichardo argued that he would not have pled guilty had he not been facing a sentence of 20 years to life for the murder. In 2004, the conviction was vacated and the case was dismissed.
Pichardo filed a claim with the New York Court of Claims and received a $200,000 settlement.
– Maurice Possley