Cleared of One ’95 Murder, 3 Men Have Conviction Vacated in a 2nd – NY Times

Amid a rash of murders of taxi drivers in New York City, the killing of Baithe Diop in 1995 still attracted attention. He was shot twice in his livery cab, left to die as his car rolled down a street in the Bronx, not stopping until it struck a trash hauling bin.

Conviction Vacated

Devon Ayers, Michael Cosme and Carlos Perez, from left, with their lawyers at a hearing at which their murder convictions were vacated. 
They were freed hours later but could face a retrial.

Michelle V. Agins/The New York Times
The Harlem dispatch service where Baithe Diop worked as a livery driver; he was robbed and killed in the Bronx in 1995.

Six people were tried; five were ultimately convicted. An article in New York magazine that focused on the investigation carried the headline, “How to Solve a Murder.”

But now, 15 years after the criminal trials, federal authorities have concluded that all five of those now imprisoned for the murder were innocent of the crime.

The United States attorney’s office in Manhattan, which conducted an exhaustive review of the case, reported its findings in June to the Bronx district attorney’s office, which had prosecuted the defendants over the course of two trials and defended their convictions on appeal.

The new findings suggest that there was a colossal breakdown in the criminal justice system. Robert T. Johnson, the Bronx district attorney since 1989, said through a spokesman on Thursday that his office had been notified of the new evidence discovered by federal prosecutors but had not yet been able “to resolve all of the questions that have been raised by this evidence.”

Mr. Ayers outside court after his release said he was “very pleasantly surprised.”

Paul Casteleiro, a lawyer for one defendant, Cathy Watkins, would not discuss the new findings but, like other lawyers in the case, said he would soon file papers asking that his client’s conviction be vacated based on newly discovered evidence and her actual innocence.

“It’s a mind-boggling case,” Mr. Casteleiro said. “She’s stone cold innocent.”

The murder of Mr. Diop, in January 1995, came at a time when cabdrivers were being attacked regularly in the city, with nearly 70 drivers killed in 1993 and 1994. Mr. Diop, a 43-year-old Senegalese immigrant, was working for New Harlem Car Service; on his last fare, he made a pickup at West 141st Street in Harlem and headed to the Bronx, where he was robbed and killed.

All of those arrested in Mr. Diop’s murder pleaded not guilty, but jurors in two separate trials returned convictions. In the first trial, four men were tried for the Diop murder and a second killing, two days earlier, that was said to be related: the execution-style shooting of Denise Raymond, a Federal Express executive, in her apartment.

Three men — Devon Ayers, Michael Cosme and Carlos Perez — were convicted of the Diop murder (a fourth, Israel Vasquez, was acquitted); all four men were convicted in the Raymond killing. Jurors accepted the theory advanced by prosecutors and the police that Mr. Diop’s murder was part of an elaborate plot to distract the police from the intended crime: the theft of $50,000 worth of cocaine from a passenger in Mr. Diop’s car.

In a second trial that focused only on the Diop murder, two more defendants — Ms. Watkins and Eric Glisson — were convicted. The defendants all received long prison sentences.

Then, in late May, federal prosecutors received a letter from Mr. Glisson at Sing Sing prison in Ossining, N.Y. Mr. Glisson again professed his innocence, saying he had been wrongfully imprisoned for the murder of a cabdriver in 1995 in the Soundview section of the Bronx.

He added that he had heard that the killing had been carried out by members of a Bronx narcotics gang called Sex Money and Murder, or S.M.M. He cited the names of several gang members.

Mr. Perez said he was going to try to “make up for lost time” with his son, also named Carlos, 25.

The letter had been addressed to a prosecutor who was no longer in the office, and was then redirected to John O’Malley, an investigator in the office’s violent crimes unit who had once been a homicide detective in the Bronx.

Mr. O’Malley immediately recalled that Mr. Glisson’s description of the crime matched a version of a confession that he had heard in 2003 — from two former S.M.M. members, Jose Rodriguez and Gilbert Vega, who had agreed at the time to cooperate with prosecutors against their former gang.

Mr. Rodriguez and Mr. Vega had independently told investigators, including Mr. O’Malley, that they were involved in an armed robbery of a livery driver in the Bronx in late 1994 or early 1995. They had said they believed they had killed the driver but had left the scene quickly and were uncertain. They recalled that they had just come from a woman’s apartment in Harlem and had gotten into a livery cab with an African driver to return to Soundview.

At some point during the ride, Mr. Rodriguez and Mr. Vega said they decided to rob the driver; when the driver argued and struggled, the men said they both shot him. Each man separately recalled jumping out of the moving livery car.

Mr. O’Malley went to Bronx homicide detectives in 2003 to try to corroborate the confession, but no records could be found of a homicide that matched. Because there was no proof of death and no identified victim, Mr. Rodriguez and Mr. Vega pleaded guilty to serious but lesser charges related to the taxi robbery.

Upon receiving the letter from Mr. Glisson in May, Mr. O’Malley phoned Mr. Vega and Mr. Rodriguez, and both reaffirmed their accounts of how they shot Mr. Diop. On June 15, Mr. O’Malley met with Mr. Glisson at Sing Sing.

He eventually prepared a detailed affidavit, which is dated Monday and has not been made public, presenting his findings in support of a potential motion by the defendants for a new trial.

“I believe the evidence is overwhelming that Vega and Rodriguez, acting alone, robbed and shot Baithe Diop on Jan. 19, 1995, causing his death,” he wrote.

The defendants who seem likely to benefit most quickly from the new findings are Ms. Watkins and Mr. Glisson, who were convicted solely in Mr. Diop’s murder. The other imprisoned defendants — Mr. Ayers, Mr. Cosme and Mr. Perez — were also convicted of the murder of Ms. Raymond, on which Mr. O’Malley’s investigation does not focus.

But the findings by Mr. O’Malley, who worked closely with a senior prosecutor, Margaret M. Garnett, would seem to raise serious questions about the convictions in Ms. Raymond’s killing because the Bronx prosecutor’s office relied on the same key witnesses and said the two murders were related.

“We certainly believe that a serious issue like this must be resolved as soon as possible,” Mr. Johnson, the Bronx district attorney, said through a spokesman about Mr. O’Malley’s findings. “Therefore, we are attempting to rapidly gather further information from our own files and those of the United States attorney.” The office of United States Attorney Preet Bharara declined to comment on Thursday.

Claudia Trupp, a lawyer for Mr. Perez, said he “has been consistent throughout our representation that he’s innocent of these crimes.”

Mr. Vasquez, the defendant acquitted of the Diop killing but convicted in the Raymond murder, had his conviction overturned by a state appeals court that said the theory of the case against him was “based on speculation unsupported by any credible evidence.”

Earl S. Ward and Julia Kuan, lawyers who are representing him in a civil-rights lawsuit, said in a joint statement, “It was in pursuing Israel Vasquez’s civil rights claims that it became obvious to us that everyone who was convicted in both of these crimes was innocent.”

As for Mr. Glisson, the inmate whose letter to federal prosecutors prompted the new review, he was “overjoyed” when Mr. O’Malley visited him at Sing Sing and told him of his findings, his lawyer Peter A. Cross said.

Mr. Cross said Mr. Glisson, describing the meeting, said Mr. O’Malley had “outright apologized,” and said, “We know you’re innocent and we’re going to do everything we can to get you out of jail.”

Jack Styczynski contributed reporting.

This article has been revised to reflect the following correction:

Correction: August 31, 2012

An article on Aug. 3 about recent findings by the United States attorney’s office in Manhattan that five people convicted in the 1995 murder of Baithe Diop, a livery cab driver, were innocent repeated an error from initial news reports of police statements about the number of times Mr. Diop was shot. It was twice, not five times..