 David Colon (right) with his attorney, Russell Ainsworth (Photo: Brandon Ison)
One witness, Efrain Sanchez, who looked out a second floor window after hearing the gunshots, told police the gunman was “Spanish,” and wore short brown pants, a white shirt and a hat.
In an ambulance to the hospital, a paramedic said that Velez said the gunman was “Malo.” Velez was wearing an oxygen mask at the time.
At the hospital, Dr. Peter Hull treated Velez in the emergency room. Hull would later testify that Velez very clearly said the shooter was named “Marlow” and was a member of the Gangster Disciples street gang. Velez died of his injuries.
Detective George Figueroa later testified that he knew 20-year-old David Colon was a member of the Gangster Disciples and had the nickname of “Malo.” The day after the shooting, Detective Reynaldo Guevara showed Sanchez a photographic lineup containing four photographs, including that of Colon. Guevara reported that Sanchez selected Colon as the gunman.
Colon learned that he was wanted for questioning and left the city. He would later say that he knew he hadn’t done anything wrong, but knew that some people who got arrested and put in jail never came back out. He used a fake name to buy a bus ticket to New York and stayed with his grandmother.
He returned on September 7, 1991 and was arrested the following day. Sanchez came to the police station where, under the direction of Guevara, Sanchez viewed a live lineup and identified Colon as the gunman.
Guevara and his partner, Ernest Halvorsen, also brought in Sanchez’s son, Julio, who had been riding on a bicycle along with Velez at the time of the shooting. Julio said Velez was riding very fast and that he fell behind. Julio said he put his head down to pedal faster to try to catch up, and, when he looked up, a man on a bicycle rode up next to Velez and pointed a gun at Velez’s head. Julio said Velez threw himself to the ground with the bicycle between his legs. The first shot missed and hit a first floor window of the building where Julio and his father lived. Then the gunman shot three more times at Velez as he was lying in the street before riding off.
Julio said he only saw the right side of the gunman’s cheek. He said he had not seen the man before. Julio said Velez was unable to say who shot him because he could barely speak.
Julio would later say he particularly remembered being brought in on September 8, 1991 because it was his 16th birthday. He said he was outside his home when police drove up and demanded that he come with them. Julio said he was intoxicated from drinking beer and smoking marijuana. At the police station, Julio said he was given books of photographs of gang members. When he did not identify anyone, detectives gave him several pictures of what appeared to be the same person at different ages and wearing different clothing. The detectives, who he later said were Guevara and Halvorsen, left the room.
They later returned and asked him to keep trying to identify the gunman. Julio later said, “I realized at that point I was tired of being in there because I felt I didn’t do nothing wrong; that they were to point the person out in the picture that they had, so I pointed the person out.”
He added, “I felt pressured by the police officers to pick him out because they kept bringing that same picture or the picture of the same guy in the bundle of pictures. I put it together that, okay, that the majority of the pictures is the same guy. That’s who they just want me to pick.”
So Julio said he identified that person as the gunman. The detectives then told him they needed him to identify the gunman in a lineup. So Julio did just that. The man in the photos and the man he picked out of the lineup was Colon. Julio then was allowed to go home.
Colon was charged with first-degree murder.
In September 1993, Colon went to trial in Cook County Circuit Court. Prior to the trial, Efrain Sanchez gave a statement to a defense investigator saying that he had identified someone he did not know and that he was no longer convinced that person [Colon] was the gunman because the shooter was skinny and Colon was heavyset.
During his direct examination, Efrain identified Colon as the gunman. During cross-examination, when asked about the recantation, Efrain said he had been offered drugs by the defense investigator to change his statement. He recanted the recantation.
Detective Figueroa testified that he knew Colon to be a member of the Gangster Disciples street gang, and that he had the nickname “Malo.” Figueroa testified that he only knew one Malo who was a member of the gang, and that members of the same gang do not use the same nickname.
Guevara testified and denied directing Efrain to pick Colon. Julio Sanchez was not called to testify.
Colon did not testify. Two Gangster Disciples members, Raymond Graciano and Joel Valentin, testified that there were other members of the same gang as Colon who also used the nickname “Malo.” Graciano testified that gang members were known to use multiple nicknames and to change their nicknames.
On July 28, 1993, the jury convicted Colon of first-degree murder. He was sentenced to 50 years in prison.
The First District Illinois Appellate Court upheld the conviction and sentence in June 1997. Colon, acting without a lawyer, filed a post-conviction petition, but it was dismissed. In March 1998, the Appellate Court reinstated the petition.
Ultimately, Colon filed an amended petition for post-conviction relief in 2008. By then, a growing body of evidence pointed to an extensive array of misconduct by Guevara and Halvorsen and other detectives.
In February 2004, Juan Johnson, whose 30-year prison sentence for a murder conviction had been vacated in 2002, was acquitted at a retrial. A federal jury later awarded Johnson $21 million in damages from the city based on evidence that the original three eyewitnesses recanted their testimony and revealed that they were coerced by Guevara to identify Johnson.
In October 2011, Jacques Rivera was exonerated of a murder. He later filed a federal civil rights lawsuit accusing Guevara and other officers of burying evidence and pressuring the witness to falsely identify him as the triggerman. In 2018, a jury awarded Rivera $17.175 million.
In 2016, the murder convictions of Jose Montanez and Armando Serrano were vacated and the charges were dismissed. Both had been convicted on false testimony that had been coerced by Guevara.
In April 2017, Roberto Almodovar and William Negron were exonerated after evidence showed that Guevara had improperly influenced witnesses to identify them as the shooter and driver in a drive-by shooting that killed two people and wounded a third.
On August 27, 2017, Colon was released from prison on parole. He had spent more than 24 years in prison since the date of his conviction.
In November 2017, Jose Maysonet became the seventh person to be exonerated based on misconduct by Guevara. Maysonet, who was serving a sentence of life in prison without parole, falsely confessed after a 17-hour interrogation punctuated by beatings and torture by Guevara.
In December 2017, Gabriel Solache and Arturo Deleon-Reyes, who claimed that Guevara had beaten them into confessing to a murder they didn’t commit, had their murder convictions vacated and the charges dismissed.
In April 2019, attorney Russell Ainsworth from the Exoneration Project at the University of Chicago Law School, filed another petition on behalf of Colon, who had changed his last name to Lugo.
The petition noted that in 1993, not long after Colon had been convicted, Efrain recanted his identification again. And Efrain recanted that identification again in 2007 as well as in a deposition in 2008. He said that he was told by detectives to pick Colon. He said he did so because police told him Colon had committed the crime. He said he understood this to mean that the police had evidence that Colon was the gunman and they simply wanted him to identify Colon.
Julio first recanted his identification in 1998 and again in 2007. He also testified in a 2008 deposition that he was told to pick Colon.
An evidentiary hearing was held over several dates in October and November 2021. On July 8, 2022, Cook County Circuit Court Judge Sophia Atcherson vacated Colon’s conviction and ordered a new trial.
"Based on Julio and Efrain 's statements, it is...clear that Guevara engaged in improper investigation techniques with both Julio and Efrain," Judge Atcherson ruled. "In addition, the fact that Efrain was told who to pick during both the photo array and the lineup
identification procedures is an egregious instance of improper identification techniques."
The judge also declared, “It is now undisputed that former Detective Guevara, motivated by a desire to close cases regardless of whether he had found the actual perpetrator, engaged in multiple and repeated instances of police misconduct which took various forms,” Judge Atcherson ruled. “He had a pattern of coercing people to make false eyewitness identifications that implicated random men for murder…from 1988 through 1997, which includes the time of Colon’s allegations.”
“If even a fraction of the allegations included in this evidence had been presented prior to trial, it is more likely than not that Guevara’s credibility would have been destroyed, and any eyewitness identification would have been called into question,” Judge Atcherson ruled. “No DNA evidence or other physical evidence was uncovered linking Colon to the offense. Therefore, Colon has made a substantial showing of an actual innocence claim based on Guevara’s pattern and practice of police misconduct.”
Judge Atcherson noted that Guevara had been asked numerous questions about the Colon case during a deposition in May 2021, but that he refused to answer them, invoking his Fifth Amendment protection against self-incrimination.
“This court draws the adverse inference that Guevara did, in fact, improperly influence, manipulate, and pressure Julio and Efrain to identify Colon as the shooter even though both told Guevara that they did not see the shooter well enough to make an identification,” Judge Atcherson declared. “Nonetheless, Guevara coerced them to identify Colon from a photo array and a lineup. Guevara unilaterally decided that Colon would be charged with Velez’s murder without any evidence to support his decision.”
Others who had been exonerated by that time included Thomas Sierra, Ariel Gomez, Ricardo Rodriguez, Robert Bouto, Geraldo Iglesias, Demetrius Johnson, Reynaldo Munoz, and Daniel Rodriguez.
On July 12, 2022, the prosecution agreed to vacate and dismiss the murder conviction of Jose Cruz, who claimed he had been wrongly convicted of murder based on misconduct by Guevara. On July 21, 2022, the Cook County State’s Attorney’s office abruptly asked that the convictions of four other men be dismissed: Eruby Abrego, Jeremiah Cain, and brothers Juan and Rosendo Hernandez.
On August 9, 2022, the Cook County State’s Attorney’s office agreed to dismiss the convictions of seven more defendants who presented evidence that they were victims of Guevara’s misconduct, including Colon’s.
In March 2023, Colon filed a federal civil rights lawsuit (under the name Lugo) against the city of Chicago and Guevara seeking compensation for his wrongful conviction. Colon also was granted a certificate of innocence.
– Maurice Possley
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