July 20, 2004

Lawyers Want New Hearing for 2 Convicted in 1990 Murder

avid Lemus and Olmado Hidalgo have spent 12 years in jail for the murder of a nightclub bouncer named Marcus Peterson and the attempted murder of another man on Nov. 23, 1990.

Now they are hoping that another man's prison record can help set them free.

On Friday, their lawyers - a trio of former federal prosecutors - requested a new hearing in State Supreme Court, citing crucial evidence that they were only recently able to obtain and that they believe would prove that their clients are innocent.

Most significant, lawyers for Mr. Lemus and Mr. Hidalgo, who are serving sentences of 25 years to life, said that three witnesses who testified for the prosecution at trial had misidentified a heavyset man who was reportedly with Mr. Lemus and Mr. Hidalgo when the bouncers were shot at the Palladium on East 14th Street.

All three people identified the man - who had acted as a mediator between the bouncers and the murderers during an argument earlier in the night - as Jose Figueroa.

But prison records cited in the court documents filed Friday show that Mr. Figueroa was in jail on the night of the shooting.

"A number of the witnesses who misidentified Figueroa also identified our clients," said Daniel J. Horwitz, Mr. Hidalgo's lawyer and a former Manhattan prosecutor. "It raises real questions about the identification of the actual shooters."

Another important piece of evidence, obtained by defense attorneys in the past two years, was first unearthed in 2000 during a long-running federal investigation of a Bronx gang, C&C. That year, Richard Feliciano, a former gang member, told the authorities that he was in fact the mediator and that Mr. Lemus and Mr. Hidalgo did not shoot the bouncers. Mr. Feliciano said that another man did the shooting - Thomas Morales, a member of C&C, who has also gone by the names James Rodriguez and "Spanky."

Several other witnesses, interviewed by the authorities during the C&C inquiry, backed up Mr. Feliciano's testimony. Some of the sources were C&C gang members associated with Mr. Morales, people who may have had an incentive to turn on one of their own in the hopes of gaining leniency. But at least two of the sources interviewed by the authorities appear to be more credible, defense lawyers say.

One, Heriberto Troche, is Mr. Morales's half brother. Interviewed twice by the authorities in 2003, Mr. Troche said he saw Mr. Morales go out that night and that several days later, Mr. Morales confessed to the murder. According to Mr. Troche's interview with the police, "Morales got into an argument with the bouncers and shot them" after not being allowed to re-enter the club that night.

Mr. Troche's ex-wife, Danila Troche Sanchez, who works for the United States Border Patrol, also spoke to the police. She said that Mr. Troche told her in late 1990 or early 1991 that Mr. Morales had shot and killed someone at a club.

An investigative report completed in late 2002 by the New York Police Department - just before Mr. Morales was released from prison for separate gang-related crimes - also concluded that Mr. Morales took part in the murder at the Palladium.

Efforts to reach Mr. Morales yesterday through his former lawyer were unsuccessful. That lawyer, Richard Verchick, agreed that Mr. Lemus and Mr. Hidalgo are innocent. The district attorney "knows that the guys upstate are not guilty, but he doesn't let them go,'' he said. "I don't know why.''

Summaries of interviews completed by the authorities were given to lawyers in March 2004 by the Manhattan district attorney's office, which has been collecting new evidence for several years. Sherry Hunter, a spokeswoman for the office, said prosecutors are still working on the case.

But lawyers for the defendants said yesterday that they demanded a new hearing because the district attorney's office had been moving too slowly and withholding evidence.

It took more than a year for summaries of interviews with witnesses to makes their way to the defense, despite several requests, the defense lawyers said. Several interviews still have not been released.

Even without them, lawyers said that the evidence that has come to light since 2000 fits with earlier testimony from other sources. In December 1992, Bernardo Rodriguez, a police informant and C&C gang member, told police detectives that he had seen the Palladium shooting and that it was carried out by C&C members. He reported that the gunmen were Joseph Pillot, a C&C gang member, and Mr. Morales.

Two years later, Mr. Pillot told the authorities in two separate interviews that he and Mr. Morales were responsible for the crime, according to court documents. He said that they had fired at the security staff after being denied access to the club. (Mr. Pillot claimed that his gun jammed but that Mr. Morales's did not.)

Mr. Pillot testified at a hearing in 1996 that he had taken part in the killing, and his lawyer, John Wilson, said he believes that his client stands by his testimony.

Several other C&C sources told the authorities in 2003 that Mr. Morales said he had killed Mr. Peterson.

Even with the evidence at hand, it is not clear whether Mr. Lemus and Mr. Hidalgo will ever receive a new hearing. Two previous attempts have failed, in 1996 and in 2001.

Gordon Mehler, Mr. Lemus's lawyer, said the Palladium case has been difficult because there is no DNA evidence. But Mr. Mehler and other lawyers for the two men say that they are confident that the logjam will be broken because this time, the credibility of important eyewitnesses has been shattered.

"I was a prosecutor for 13 years, so when someone has been tried and convicted, saying they're innocent, I'm skeptical," Mr. Mehler said. "But I must say that this case is one where there is powerful evidence that these two individuals who have been in prison for 12 years are innocent."

Update - July 22, 2005