| In the early morning of April 19, 2008, 20-year-old Jake Gerard was shot and killed in front of the AfterSet, an illegal after-hours bar in Milwaukee, Wisconsin. A .380-caliber bullet was recovered from his chest.
Witnesses led police to three men—Jose Luis Suares, Jean Montanez, and Luis Correa—who were involved in an altercation at the club prior to the shooting, and they told police that the shooter was 19-year-old Gabriel Lugo, who was arrested on May 5, 2008, and charged with first-degree reckless homicide.
Lugo’s trial in Milwaukee County Circuit Court began on May 4, 2009. The state’s case was built around the testimony of Suares, Correa, and Montanez.
Suares had been charged with a related crime in the shooting and agreed to testify in exchange for the state dismissing that charge. He testified that on April 18, he and Montanez ran into Correa at another bar, Club International. They stayed until closing and then planned to go to the AfterSet. Suares said he drove the other two men to the AfterSet in his Dodge Charger.
Suares said that as he and the others approached the club, a bouncer named Ramon Trinidad approached and pointed a gun at Correa, accusing him of a robbery, and denying them entry. The men left, Suares said. He said he and Montanez went back to Suares’s car and smoked some marijuana. Correa was across the street. Suares testified that at some later point, Trinidad came up to the car and said the men could enter the club. Suares said he declined the offer. He said they remained in the car, but about 10 minutes later, they heard gunshots and saw two people shooting toward the front of the club. One of the men was Correa, Suares said. The other was Lugo. Suares said he did not know Lugo and he could not explain how Lugo showed up at the club.
Correa testified that it was Suares who had the strained relationship with Trinidad. Correa had also pled guilty to a weapons charge related to the shooting, but his sentencing was delayed until the completion of Lugo’s trial.
After Suares argued with Trinidad, Correa testified, Suares, Correa, and Montanez stayed in the Charger. He said they didn’t hang around near the club, but rather drove off. Correa said he used Suares’s phone to call Lugo. (Suares testified he didn’t have his phone that night.) Correa testified that Suares drove to Correa’s house so Correa could grab his gun, which he said was a 9 mm pistol. Correa said he “whistled” and Lugo came out on his balcony. Correa said he told Lugo what had happened at the club, and Lugo ran back inside and returned with a .380-caliber pistol in the pouch of his hoodie.
Correa testified they drove back to the AfterSet, parking in the same spot from where they left. Correa said he left his gun in the car when they got out. As they approached the club, a fight broke out in front. He said he heard someone yell, “There go the dudes from the white Charger.” Correa said Trinidad fired first, shooting three or four times. They ran to the car and jumped in. As they drove off, Correa said, Lugo grabbed the .380 and asked Correa if he could shoot. Correa said yes, and Lugo fired seven or eight times. Correa said he tried to fire his weapon but the gun jammed. Correa testified that the men then drove to Correa’s house.
Several parts of Correa’s testimony conflicted with his police statements. He had previously said that Lugo had been with the others at Club International. He had also said that Lugo came to the AfterSet on his own.
Montanez testified that he was with Correa and Suares prior to going to the AfterSet, but that he traveled to the club in his own car, a black Lexus. He agreed with Correa that Trinidad’s problems were with Suares. Montanez testified that the three men went to Suares’s car to smoke marijuana, and Suares accused Correa of stealing some of his drugs. Correa said they could go to Lugo’s house and get some more. But nobody whistled for Lugo to come down, Montanez testified. Instead, Correa went inside, and he and Lugo returned to Suares’s car a few minutes later and they drove back to the AfterSet. (In his statement to police, Montanez had not mentioned going to pick up Lugo.)
Montanez said the men were about 15 feet away from the front of the club when the door opened and there was a commotion. The four men ran for Suares’s car, which was locked. Montanez said he then heard gunshots and realized they were coming from Lugo and Correa. Later, Montanez testified that he could not see much in the dark, but he saw Correa’s gun break.
After the shooting, Montanez testified, he and Suares ran to his Lexus and drove away. Under this account, it wasn’t clear what happened to Suares’s Charger.
Lugo did not testify.
On May 8, 2009, the jury convicted Lugo of first-degree reckless homicide. He was later sentenced to 30 years in prison.
Lugo’s initial appeals were denied.
On March 16, 2021, Lugo, now represented by Rex Anderegg, filed a motion for a new trial, based on an affidavit from Correa, which recanted his trial testimony, and a separate affidavit from Trinidad, who had not testified.
In Correa’s affidavit, dated December 12, 2013 and made to a private investigator working for Lugo, he said that the shooting happened after Trinidad refused to let the men enter the club. They never left to get Lugo. Suares was upset about how Trinidad treated him. “When we were inside the car, [Suares] said, ‘You know what,’ I’m going to this show this motherfucker that I ain’t ‘Bitch.’”
Correa said Suares came up with the idea to blame Lugo, and he and Montanez went along with the plan. Correa said that Suares gave him $5,000 and an ounce of cocaine to ensure his cooperation. “At the time, I was broke and had no money, so out of fear of being blamed for shooting at the crowd and pure greed, with no hesitation I took [Suares] up on the offer,” Correa said.
Correa said he and Suares were housed together in the Milwaukee jail prior to the trial, and the two men shared information so that their trial testimony would better align.
In his affidavit, dated December 22, 2020, Trinidad said: “I was the target of that shooting, the shooting that ended up killing Jake Gerard. For the reasons stated below, I know that the shooters were Luis Correa and Joel Ortiz, and that Gabriel Lugo was not there.”
He said he had seen Suares, Correa, and Montanez earlier that evening, and had argued with Suares, pushing him against the wall and flashing a weapon. Trinidad said he saw all three men in the Charger when Suares drove past the AfterSet and then park nearby just before the shooting. “I then saw three figures walking toward me. It was then when gunshots started ringing out from the area of the Charger,” Trinidad said.
Trinidad had been charged with a weapons violation related to the shooting, but the charges were later dismissed. He said that as preparation for his own case, he received the discovery from the Lugo case and learned that Lugo had been convicted.
In 2010 or 2011, Trinidad served as a cooperating witness in a separate murder investigation. He said that he told the detectives working that murder that he had information about Lugo’s case and his wrongful conviction. “The detectives remembered the case, but were not interested in hearing anything about it. [A detective] told me to just focus on what they wanted to talk about. Under the circumstances, I did not try to press the matter any further.” He made several attempts to bring this information to Lugo’s attorneys.
On May 5, 2023, several months after an evidentiary hearing, Judge Glenn H. Yamahiro vacated Lugo’s conviction. He said: “I think there is ample evidence upon which Mr. Lugo has met his burden, that these statements are credible, that they should be received into evidence if there is another trial, and that there is a strong likelihood of a different result. Frankly, in this case, I believe there is substantial likelihood of actual innocence here.”
Judge Yamahiro said that Correa, who had disavowed his recantation, had little credibility as a witness, but that Trinidad provided a clearer, more credible view of the events.
He said: “Frankly, Mr. Trinidad’s survival on the street for this period of time, given the amount of criminal activity that he is engaged in, is consistent with his testimony regarding the fact that he knew that these people were angry when he put them out of this party. He knew it was in his best interest to keep an eye on them, because he correctly surmised that there was a good likelihood that they were going to return to the scene and try to kill them with gunfire. Mr. Correa’s recantation is consistent with logic that essentially [Suares] was upset that he had been roughed up and put out of the party, and the statement that he was quoted on that he grabbed his .38 pistol and showed Mr. Trinidad that he ain’t a bitch is consistent with the other facts that took place here. Frankly, there are a number of inconsistencies between Mr. [Suares] and Mr. Correa that undermines their credibility. They did not even agree as to how Mr. Lugo got—supposedly got back to this scene.”
Lugo was released from jail on June 14, 2023. The state dismissed the charge on October 4, 2023.
After his exoneration, Lugo filed a claim for state compensation. While Wisconsin’s statutory maximum payment is $25,000, Anderegg asked the Wisconsin Claims Board to approve $25,000 in compensation, $77,482 in attorney fees, and also recommend that the state legislature approve an additional payment of $750,000.
“Mr. Lugo has also suffered emotional damages that are more difficult to quantify,” the claim said. “Mr. Lugo did not merely lose 15 years of his life; he lost what most would regard as 15 of the most prime years of one’s life: ages 19 to 34. These are the years when Lugo should have met someone, fallen in love, got married, bought his first house, and raised a family. He should have been able to enjoy the intimacy and physical connection with loved ones—a wife, his son, his children, his parents, his siblings, etc. He lost all the meaningful pleasures that life has to offer such as, for example, simply taking his father and son to a baseball game to see his favorite team—‘Los Cerveceros’ (The Milwaukee Brewers)—play.”
Later, the petition said, “What is especially noteworthy about this case is that in 2011, when Lugo had served just two years in prison on his wrongful conviction, the State received compelling evidence of his innocence and did nothing, not even sharing that information with Lugo. Lugo posits that one appropriate measure of a just society is how it treats those whom the government harms most severely. Mr. Lugo spent 15 years of his life wrongfully incarcerated for a crime he did not commit. He lost important years of his life, precious time that he can never get back.”
– Mireille Albilleh, Sophia Andersen, Lindsay Hertzberg, Zephyr Sun, and David Luna
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