 Darvin Castro Santos, right, with Richard Davis, the legal director of Innocence Project New Orleans (Photo: INPO)
A few minutes later, three other men entered the diner and joined the first man. One of the men, who appeared to be the leader and was wearing a dark baseball cap, asked the other men what they wanted. He ordered hamburgers for the group and then asked Jaber about cashing a check. When Amani’s father, 51-year-old Baker Jaber, the restaurant’s owner, came out front to help with the transaction, two of the men took out guns and one of them said, “This is an armed robbery. Don’t move.”
Amani Jaber fled to the back of the diner, with two of the assailants in pursuit. They caught up with her and bound her hands with a zip tie. Meanwhile, the other robbers demanded money from Baker Jaber, binding his hands with a zip tie and forcing him to open the diner’s safe in the back office. He was blind in one eye and struggled with the lock. When the safe was opened, the robbers emptied approximately $7,000 into a plastic shopping bag.
Four customers entered the diner while the robbers and the Jabers were in back. Not seeing any staff, one of the customers, a 62-year-old retired FBI agent named John Fleming, went to find a server. He heard the commotion in the office and knocked on the door. Two of the robbers, including the one with the dark ball cap, came out of the office. The men bound Fleming’s hands with a zip tie, ordered him to the ground, and then went back into the office, where Baker Jaber was held.
Fleming got up and ran to the front of the diner, yelling to his friends. One of the robbers knocked Fleming to the ground, and then two of the robbers ran out the front door and got into a Dodge Durango with Texas plates and sped off. Another patron saw the tag number – TRF 014 – and wrote it in the dirt. The two other robbers fled out the back, either leaving or forgetting to take the bag containing the money.
The St. Bernard Parish Sheriff’s Office investigated the robbery, part of which was recorded on the diner’s video surveillance system. They found two ball caps at the back of the diner. One had a camouflage pattern; the other, the longhorn symbol of the University of Texas. Deputies never dusted the diner for fingerprints, but they secured the coffee cup and honeybun for further testing. They also took the zip ties and plastic bag into evidence and entered the Durango’s license plate into a database, which reported the vehicle as stolen.
More than a month later, on August 28, 2009, police officers in the small town of Natalia, Texas, near San Antonio, stopped a Durango for following too closely. They ran the plate and learned the vehicle matched that of an SUV used in a robbery. They arrested the driver, Selvin Rodriguez, and his passenger, 20-year-old Darvin Castro Santos.
Rodriguez and Castro Santos were initially charged with unauthorized use of a motor vehicle and held in the Medina County Jail. Officials in Medina County sent booking photos of the men to St. Bernard Parish, where they were compared against video footage from the diner. Lieutenant Richard Mendel, the lead detective in the case, would later testify that it was his opinion that Castro Santos was the man wearing the dark-colored cap. Both men were extradited to Louisiana, each facing two counts of armed robbery.
On the same day as the arrest in Texas, Mendel presented Amani Jaber with two photo arrays, one with a picture of Rodriguez and the other with Castro Santos. She selected Rodriguez but said she wasn’t 100 percent certain. She made no pretrial identification of Castro Santos. Amani’s father was never shown a photo array and made no pretrial identifications.
More than three weeks later, on September 22, 2009, Mendel showed Fleming the photo arrays. He identified Rodriguez as the man who jumped on him and Castro Santos as the man who pointed a gun at his face. He also believed that the hat Castro Santos was wearing at the time of his arrest in Texas was the same hat worn by the robber with the gun.
Rodriguez entered a guilty plea on April 26, 2011, but his sentencing was delayed until after Castro Santos’s trial, which began on January 18, 2012, in St. Bernard Parish District Court.
Both Rodriguez and Castrol Santos were Honduran. Prior to trial, Castro Santos’s attorney filed a motion to exclude any reference to his client’s immigration status. A hearing was set, then delayed, and then the prosecution asked to move consideration of all pre-trial motions to the day of trial. The defense didn’t object to that consolidation, and the judge never ruled on the motion to exclude.
During jury selection, Castro Santos’s nationality, his English proficiency, and his immigration status became central issues.
“If the evidence shows or it comes out that the defendant is not a United States citizen and may be here illegally, would any of you hold that against him?” Assistant District Attorney Glenn Diaz asked. Later, he continued, “And again, the fact that he may be here, that he’s not like us, born here or raised here, you're not going to hold that against him; is that correct?”
According to the state’s case, Castro Santos had spoken to the Jabers in English during the robbery. At trial, he required the use of a translator, which Diaz suggested might be a ruse, asking jurors not to prejudge Castro Santos if “he claims not to speak English or has a difficult time with it.”
Joshua Gordon, Castro Santos’s attorney, said: “Mr. Darvin Castro is an illegal alien. I’m not going to beat around the bush. If you go to any Home Depot, you’re probably going to see a lot of them, short and stocky.” Later, he would tell prospective jurors, “Does everybody understand that, even if found not guilty, he’s not going to be released onto the street? He will be put in federal custody because of his immigration status. Does everybody realize that?”
Both Amani and Baker Jaber identified Castro Santos and testified that he was the robber wearing the dark ball cap. Amani Baker said Castro Santos had conversed with his accomplices in English, ordered the hamburgers in English, and then announced the robbery in English. Both father and daughter said they had made a pre-trial identification of Castro Santos, although Mendel testified that neither had done so.
When asked about Mendel’s conflicting testimony, Baker Jaber insisted he had looked at photos after the arrest and told the detective that Castro Santos was the man who put a gun to his head. ‘‘I seen [sic] it over and over. It’s him. It’s him. The guy is him.’’
Fleming’s courtroom testimony was the clearest identification of Castro Santos, but under cross-examination he said it was possible that he had seen a photo of Castro Santos either on television or in the newspaper before he made his initial identification. Fleming also testified that the ball cap that Castro Santos was wearing at the time of his arrest was the same hat worn by the robber with the gun.
Castro Santos testified through a translator that he was on a construction site in Houston, Texas, the day before the robbery. He said he finished working at 5 p.m., then cashed a check, wired some money, and went to his apartment. He said that on Saturday, at the time of the robbery, he was still in the Houston area, helping some co-workers with chores.
His attorneys had his work records and an affidavit authenticating them, but they never obtained a ruling allowing the records to be admitted into evidence.
During cross-examination, Diaz questioned Castro Santos about his immigration status and illegal entry into the United States, asking, “So you have no respect for our laws?”
Rodriguez testified for the defense. He acknowledged his own role in the robbery, and said he had committed the crime with three other men: Raul, Eldon, and Rene. He said the four men had left Houston the day before the robbery, spent the night in Laurel, Mississippi, then headed back toward New Orleans the next day.
Rodriguez said that he had entered the diner first, then called Rene after confirming that the diner cashed checks. He said Rene pointed a gun at Baker Jaber and Fleming and tied up both men. Rodriguez said he remembered that his hands were shaking badly, forcing Rene to zip tie Fleming’s hands.
Forensic testing of the honeybun confirmed Rodriguez’s presence at the diner. Rodriguez said he told police about Rene’s involvement in the robbery and that Castro Santos wasn’t involved. Mendel testified there had been no mention of “Rene” prior to the trial.
On cross-examination, Diaz asked Rodriguez whether he was an “illegal alien.” Rodriguez said he was. Later, Diaz asked, “To live here illegally means you live a lie every day of your life while you’re here, correct?”
Rodriguez responded, “Yes, because I have no papers.”
In closing arguments, Diaz again referred to Castro Santos’s immigrant status. “Don’t let him go to be deported and come right back and do it again,” he said.
At the time of the trial, Louisiana allowed non-unanimous verdicts. On January 20, 2012, the jury voted 11-1 to convict Castro Santos of two counts of armed robbery. He was sentenced on January 24, 2012 to 50 years in prison. Rodriguez was also sentenced that day to 40 years in prison.
Castro Santos appealed, arguing that the witness identifications were unreliable because the circumstances of the robbery created a “substantial likelihood of misidentification.” He also argued that because the money was left behind, there was no armed robbery. Louisiana’s Fourth Circuit Court of Appeal denied his appeal in 2013.
On August 19, 2016, Castro Santos’s attorneys with the Innocence Project New Orleans filed a motion for post-conviction relief and for DNA testing of the shopping bag and the zip ties used to bind Baker Jaber and Fleming.
The motion said that Gordon failed to have these items tested before trial and provided ineffective representation in numerous ways. It also said that Castro Santos had been convicted in part on mistaken cross-racial identification. (The Jabers are black; Fleming is white.)
The motion noted Gordon’s failure to get the work records introduced and to locate witnesses that could support Castro Santos’s alibi.
Prosecutors had discounted Rodriguez’s description of the trip he and the accomplices took from Houston to Mississippi and then to St. Bernard Parish, saying that it made no sense. But the sheriff’s office had subpoenaed Rodriguez’s phone records, which supported that testimony. Gordon had these records but never used them, the motion said. The phone records would have also established whom Rodriguez communicated with before, during, and after the robbery. Gordon also failed to get the records from Castro Santos’s cellphone, which had been placed into evidence at the time of his arrest.
The motion also said Gordon had been ineffective for failing to prevent the jury from hearing about Castro Santos’s immigration status, for not objecting when Diaz made inflammatory statements, and for making his own anti-immigrant remarks in closing arguments and during jury selection.
Judge Kim Cooper Jones approved DNA testing for the three items in 2017 and 2018. On November 16, 2020, Castro Santos’s attorneys – Charell Arnold and Richard Davis – supplemented their motion for relief and said that DNA testing had excluded Castro Santos as a contributor to genetic material found on the zip ties and the plastic bag.
The new filing also identified the man Rodriguez and Castro Santos called “Rene” and said he was the lead robber who pointed a gun at Baker and Fleming and tied up both men with zip ties. His DNA was not available to compare with the genetic material on the zip ties or the plastic bag. (Rene’s full name is not being used to protect Castro Santos from retaliation.)
Rodriguez had testified that he called Rene at a number with a 615 area code just before the robbery. Rodriguez also dialed the same number with his one allowed phone call after he was arrested, and his cellphone continued to receive calls from that number after he was in jail. A forensic phone expert analyzed the use of the 615 number during the time of the robbery and said its path tracked the phone used by Rodriguez.
During the trial, Diaz had suggested that Rene and the other accomplices named by the men didn’t exist. “Where do they live? What’s their address,” he asked, telling jurors that the men never mentioned Rene until they took the witness stand.
That statement was based on Mendel’s trial testimony contradicting Rodriguez that Rene’s name came up in police interviews with Castro Santos and Rodriguez. But Mendel’s testimony was incorrect. Castro Santos’s initial attorney, who was replaced by Gordon, said that Castro Santos and Rodriguez met with Mendel in 2010 and told him the names of the other men on the surveillance video. Rodriguez’s attorney said the same thing.
The supplementary motion also expanded on the claims of ineffective assistance of counsel. Members of Castro Santos’s legal team traveled to Texas and located the men he worked with on Friday and did chores with on the day of the robbery.
They also located people who knew Rene and said he was “the leader of a gang that committed robberies and other crimes.”
Separately, Rene is said to have confessed his involvement in the robbery to a man named Roberto Leon, who was in the St. Bernard Parish Jail with Rodriguez and Castro Santos. After his release, Leon contacted Rene, who said that he and a man named “Charlie” planned the robbery and Castro Santos had nothing to do with it.
In addition, the supplement said that the conviction was based on juror bias. According to an interview with the lone juror who voted to acquit, the jury was at a critical point in deliberations, evaluating the testimony of Rodriguez and Castro Santos, when one juror said that “she worked with Spanish people and that they lie.”
The motion said, “This case is a perfect illustration of the harm that allowing non-unanimous verdicts causes: an innocent man from a vulnerable minority was convicted at a proceeding infused with xenophobia because the vote of one of the jurors could be ignored.”
On Aug 2, 2021, District Attorney Perry Nicosia moved to vacate Castro Santos’s conviction and dismiss his case.
In a statement, Nicosia said that both Diaz – who unsuccessfully challenged Nicosia for district attorney in 2014 – and Gordon committed errors at trial that were likely to lead to a new trial. He did not mention the DNA evidence, but said that new alibi evidence established that Santos was in Texas at the time of the crime, and that “justice required that Darvin Castro Santos’s conviction be vacated.”
– Ken Otterbourg
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