On March 6, 1997, 47-year-old Younis Duopo, a livery taxi driver, was shot in the neck from behind by one of two customers in his vehicle near Fordham University in the Bronx, New York. Duopo survived and said his attackers were two black men.
Police recovered shell casings and a wallet from the floor of the cab by the front passenger seat. The wallet contained out-of-date photo identification cards for Francisco Poventud. Police showed Duopo a photographic lineup and he selected a picture of Poventud. However, police soon learned that Poventud was incarcerated and could not possibly have committed the crime.
Police then presented a photographic lineup containing Francisco Poventud’s brother, 26-year-old Michael “Marcos” Poventud—who looked nothing like Francisco. After seeing Marcos’ photograph four different times, Duopo identified Marcos as the gunman.
Seventeen days after the shooting, police arrested three Hispanic men for robbing a different livery cab in the Bronx and recovered a gun. The gun was matched to the shell casings in Duopo’s cab. Duopo was shown photographs of two of the Hispanic men, but he ruled both out as suspects.
Two months later, Duopo met with a police sketch artist and they collaborated to create a sketch of Poventud’s partner in the crime. A detective showed the sketch to several of Marcos Poventud’s family members and one referred the officer to the home of 20-year-old Robert Maldonado. The detective went to Maldonado’s home and concluded that Maldonado looked like the sketch. He brought Maldonado to a police station where Duopo picked him out of both a photographic and a live lineup.
Maldonado and Poventud were charged with attempted murder, assault, attempted robbery and illegal use of a weapon. They went on trial together in Bronx County Supreme Court in April 1998.
Duopo identified Poventud as the gunman and Maldonado as his accomplice. On cross-examination, however, Duopo was shown a photograph of Maldonado’s brother and twice identified the brother as Poventud’s accomplice. In an attempt to rehabilitate Duopo’s testimony, the prosecution was allowed to introduce the composite sketch into evidence.
Poventud and Maldonado testified and denied that they were involved in the crime.
On April 29, 1998, Poventud and Maldonado were convicted by a jury. Poventud was sentenced to 10 to 20 years in prison. Maldonado was sentenced to 8 to 16 years in prison.
In 2002, the New York Court of Appeals reversed Maldonado’s conviction and ordered a new trial. The court held that the sketch was unreliable and should not have been admitted in evidence. The court said that “courts and juries have no way to determine reliably whether a witness helped generate a depiction that mirrors the offender or one that in reality looks nothing like the offender.”
While preparing for retrial, Maldonado’s attorney, Julia Kuan, discovered that the prosecution had failed to disclose to the defense that Duopo had initially identified Poventud’s incarcerated brother Francisco as the gunman. In December 2004, Maldonado went on trial a second time and Kuan was able to discredit Duopo’s testimony with the new information. Maldonado was acquitted and released.
Poventud, who had lost his appeal, then sought to vacate his conviction based on the evidence discovered by Kuan. In 2005, Kuan persuaded a Bronx County Supreme Court Judge to vacate Poventud’s conviction and order a new trial. Poventud accepted the prosecution’s offer to plead guilty to attempted robbery and he was immediately released.
Both men filed federal lawsuits for violations of their civil rights. Maldonado’s was settled out of court for an undisclosed amount. Poventud sought to withdraw his guilty plea, but gave up that attempt when he became ill. Poventud’s federal lawsuit was dismissed because of his guilty plea, but in April 2013, the Second Circuit U.S. Court of Appeals reinstated the lawsuit. It was still pending in January 2014.
– Maurice Possley