Lawyer for Pedro Hernandez Says Bronx DA’s Office Is Still Withholding Key Evidence

Bronx District Attorney Darcel Clark (at podium) (Bronx District Attorney’s Office / Facebook)

When Bronx District Attorney Darcel Clark announced last September that gun possession and assault charges would be dropped against teenager Pedro Hernandez, who had spent 12 months on Rikers Island, she pledged her office would investigate what went wrong, and that the investigation would “go wherever the evidence leads.”

A lot had gone wrong in the case against the then-17-year-old Hernandez, who was held in connection to a 2015 shooting: Detectives had allegedly beaten witnesses until they agreed to sign false affidavits implicating Hernandez, and the prosecution had promised further charges against Hernandez to justify a $250,000 bail. But those promised charges never materialized in later proceedings, and prosecutors’ further claims that Hernandez was an active gang member and involved in a check forgery scheme also went unsubstantiated.

Such instances of police and prosecutorial misconduct rarely see the light of day because defendants overwhelmingly accept plea deals, giving in to pressure from the daily horrors of life in jail and the possibility of longer sentences if they take a case to trial. But Hernandez refused to take a plea — he insisted on his innocence while his family hired a private investigator to look into the case. The investigator, Manuel Gomez, filmed witnesses as they recanted their statements and eventually uncovered widespread witness intimidation in the Bronx’s 42nd Precinct.

While detained on Rikers, Hernandez graduated from high school and received a full scholarship to college. His case drew headlines and high-profile support, in part because it echoed that of Kalief Browder, a teen who spent three years on Rikers on charges that were eventually dropped, and killed himself two years later.

But while supporters celebrated Hernandez’s release, the Bronx DA refused to drop a robbery charge against him relating to a stolen cell phone. Hernandez’s trial on that charge is scheduled to start today.

On the eve of trial, however, Hernandez’s lawyer is claiming that the Bronx district attorney’s office is still withholding potentially exculpatory evidence in the case, and proceeding in precisely the same manner it did before. In a motion filed by Hernandez’s lawyer Alex Spiro in Bronx Supreme Court late last month, Spiro alleges that the Bronx DA is still shirking its Brady responsibilities, which dictate that prosecutors must hand over any and all evidence that might be favorable to the defendant.

“Since the inception of this case, the Bronx District Attorney’s Office has demonstrated a disturbing lack of candor with the Defense and this Court, and has presumed Mr. Hernandez’s guilt regardless of what the evidence shows,” Spiro’s memo reads.

In early November, Hernandez’s lawyers asked the Bronx DA to hand over all remaining Brady materials that could impact the case against Hernandez, including the results of its own internal investigation into both police and prosecutorial misconduct (the prosecutor on the original case, ADA David Slott, has been transferred to the appeals division while the investigation plays out).

In late 2017, according to court filings, Hernandez’s defense attorneys uncovered that witnesses had given conflicting accounts of the robbery to the district attorney, information the DA was required to hand over to the defense but had failed to deliver. In December, a judge again “reminded” the Bronx DA of its obligation to hand over any relevant evidence to the defense. Finally, in late January 2018, the DA informed Hernandez’s lawyers of some potentially exculpatory information: The complainant witness in the case had tried calling his allegedly stolen phone shortly after the robbery, and a female voice had answered it.

Because the voice obviously didn’t match that of Hernandez, his lawyers argued that this evidence should have been turned over to the defense far earlier, and that it strongly suggests the DA is still invested in withholding evidence that might clear Hernandez of the robbery charge. “By the District Attorney’s own calculations,” the motion reads, “the People sat on this information in violation of its Brady obligations for approximately 778 days.” While it was eventually turned over, that means Hernandez’s defense team lost more than two years during which they could have investigated this lead, years in which he might have pleaded guilty, unaware of this information.

The fact that the DA had been sitting on testimony that could have cleared Hernandez of this charge points to systemic problems involving the treatment of exculpatory evidence at the Bronx district attorney’s office, something that even DA Clark has alluded to in recent statements, where she has called on outside law enforcement officials to look into the practices of her own office.

“My Office’s Public Integrity Bureau delved into the allegations surrounding the Pedro Hernandez case,” Clark said in a press release in November. “Because the investigation has broadened, we saw the need for additional law enforcement resources and the Acting U.S. Attorney for the Southern District of New York, Joon H. Kim, has agreed to assist my office in this investigation.”

But none of the results of the investigation into the 42nd Precinct, or the Bronx district attorney’s office, have been made available to Hernandez’s lawyer, even though this information could undercut the integrity of the government’s case. Given the lack of cooperation from the DA’s office, Spiro expects the hearing to be adjourned today (Hernandez also has a pending civil lawsuit against the city).

In a November 22 response to Spiro’s allegations of Brady violations, Assistant District Attorney Burim Namani wrote that any information on alleged misconduct could be found in lawsuits filed by Hernandez and others against the city, and by “googling Shaun King’s name, Pedro Hernandez’s name, Detective David Terrell’s name, Private Investigator Manuel Gomez’s name, Assistant District Attorney David Slott’s name, reporter Sarah Wallace’s name, the 42 Pct., and/or the title of Shaun King’s articles.” At the end of the letter, the ADA wrote,“People are fully aware of their constitutional discovery obligations, including their continuing obligations under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, and will continue to faithfully discharge those obligations.”

By refusing to take a plea deal, Pedro Hernandez exposed systemic police and prosecutorial misconduct, where evidence was fabricated to justify the arrests of young men of color. Over the next few weeks, we’ll find out just how seriously this particular district attorney’s office takes its constitutional obligations, and whether Pedro Hernandez will not only have beaten a series of bogus charges, but finally brought some measure of accountability to a system rife with abuses.