On June 10th, 1993, Henry Gomez was wounded, and Manny Quintero was killed in a drive-by shooting in Harlem. Alleged ex coke dealer turned NYPD cop AJ Melino and repeat wrongful conviction offender Detective Mark Tebbens joined forces with members of the Yellow Top crack gang to spin a tale that sent Pablo Fernandez away for almost 25 years in exchange for leniency.
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In the early nineties, the crack epidemic was in full swing, and violence between rival gangs, the Red Top Crew and the Yellow Top Crew, among others, gripped Harlem and other parts of the city. On June tenth, a slender light skined man in his forties with a gray ponytail rolled up to a building on West one thirty fifth Street and open fire, wounding fifteen year old Henry Gomez and killing eighteen year old Many Kintero. The case went cold for two years. Then two members of Yellow Top joint forces with a corrupt detective and officer team to bring a close to this case in exchange for leniency in their own cases. Officer A. J. Molino had been involved in dealing at some point himself. The detective was Mark Tabbin's, the same one responsible for Danny ring Kohn's ronfl conviction in the bungling of another Red Top Crew shooting in the Bronx, These members of Yellow Top made up a story that Pablo for and As had been hired by Red Top to carry out the June tenth shooting. Then Tabbans and Molino used misleading identification tactics to trick or coerce several teenage eye witnesses to build what they knew was a farcical case. The prosecution followed suit to turn Pablo, a stocky, darker skin two year old with short black hair, into this slender forty something light skin shooter with a gray ponytail. Pabo spent almost twenty five years behind bars, and it took nearly a decade and a half of pro bono work from legal giant Paul Weiss to win his freedom. This is Wrongful Conviction with Jason Flomer. Welcome back to Wrongful Conviction with Jason flam that's me. I'm your host, and today I want to introduce first the atturn any who spent thousands of hours pro bono on this case. So Dave Brown, thanks for being here on the show today, Thanks for having me Jason and with us, of course, is the person who endured this nightmare that you're about to hear about and lived to tell the story. So now it's my great privilege to introduce you to Pablo Fernandez. Pablo, thank you for being here with us today. And this story goes back to the early nineties. Pablo, you came from the Dominican Republic right, And you ended up as a teenager in Upper Manhattan at the height of the crack epidemic. What what was it like growing up in that crazy time that we've heard so much about. It was a way deeper about the day cry. Every day we walking in this dree to see the house in it bottled the crack of the flow. You see a lot of cracking people walking in the three like. Gunshots could be heard regularly around the clock, not just at nighttime in those days. And you had a police force that is out of control as well. And Dave take us back to the original crime and how this turned into this terribly flawed case and ultimately wonwerful conviction. The crime in question took place on June tenth. It was a drive by shooting where a car drives down undred thirty fIF street, stops, The gunman gets out for just a few seconds for the passenger side fire. Several shots kills Mann Kintaro, wounds Henry Gomez, jumps back in the car and the car drives away. A number of Fie witnesses saw that shooting. They called in to nine one one with descriptions. Some of them were interviewed by the police either that evening or in the days that followed, and they all described the shooter as having light skin, in his thirties or forties, tall, thin build, gray or salt and pepper hair pulled back in a ponytail. And Pablo looked nothing like that description. He was twenty years old, so he had short, dark hair, stock build, He had never worn his hair long, much less in a ponytail. And the case went cold, we believe because the police failed to follow up on leads. They sent officers who didn't speak Spanish to conduct interviews in the neighborhood around where the shooting took place, and they just came back and reported, well, we couldn't communicate with some of the witnesses because they spoke Spanish, um, and just we think there was no serious effort to really solve this time, so the case goes cold. Approximately two years later, NYPD officers engaged in a really brazen and corrupt scheme to manufacture evidence against Pablo, faced with the facts that he bore no resemblance to the shooter and there was never any physical or forensics or ballistic evidence that connected him to the crime, and there was absolutely no motive for him to committed the crime. But let me start with the police officers who were the primary architects of this. To falsely incriminate Pablo, NYPD officer Albert Molino, he went by a j who had ties to the drug trade himself from before he went to the police academy, and also Detective Mark Tebbans. Our audience might remember Mark Tabbans from another case that we covered recently, Danny Rink Cohn case, and of course all the corrupt tactics that he used to make that preposterous case stick as well. The corrupt and unconstitutional tactics that they used were not unique to them. I mean these were commonplace in MYPD homicide and serious felony investigations during the early mides, and the way they constructed this false case was based on perjured testimony. At the center of this corrupt investigation were two members of the Yellow Top Crew, who were rivals of the Red Top Crew. Now, in those days, of course, the crews were named after the colored caps of the crack files that they sold. Those Yellow Tops had two motives to give up seemingly useful but false information to the police. One was to help their own charges and the other was to try to inflict damage on their arrivals, the Red Top Crew, and these two individuals that worked with Malino and Tabins were Raymond Dilley Rivera and the leader of the Yellow Top Crew, whose name was Martin Chango Maheas now Maheis was known in the streets to be a crazy, violent drug dealer, and he was arrested in June charged with three counts of murder, one kind of attempted murder, and multiple drug conspiracy charges, and he was facing potential life in prison, so he decided that he would cooperate with the Manhattan DA's office and testify against other people to get a lighter sentence. He put away dozens of people who worked for him, and around that time, Rivera, who was one of the chief lieutenants in the Yellow Top Crew, came into the Benhanda DA's office and he confessed that he had committed more than five hundred felonies, including assaults, robberies, and attempted murder. He was never charged for any of those crimes. So somehow Melino and Tepens urged these two cooperators, Miheis and Rivera to say that they knew Pablo had been hired to do this shooting for the leader of the Red Top crew. They said that they saw Pablo being paid money to do the shooting about and one of them said that after the shooting he saw Pablo come back and meet with the person who had hired him to do the shooting and take out a shell casing and say this is the bullet that killed Cantaro. They said that they knew that Pablo war disguise like a wig or he painted his hair, and of course we would have also had to believe that he had a makeup artist on hand who could have changed his skin color. But you can't be stocky and pretend you're skinny. That doesn't work. None of this was true. And then early detective Tibbins and Officer Malino found two eyewitnesses who had seen the shooting. Now, when these kids saw the shooting, they were approximately thirteen years old, and both of them were cousins of Manicin Taro. One of them his name was Hickliffe Rosario and the others name was George Rosario, and both of them had reported seeing a light skin shooter, you know, long gray hair, thirties or forties do the killing. But they were pressured by Molino and Tebbans to falsely identify Pablo as the shooter, in part because the police just kept pointing to pictures of Pablo over and over and over, saying this shooter. The police officers lied to Hickliff and George Rosario and said, you know, even though he may not have been the shooter, he had something to do with the crime, so you should say that he did. And if you look at the picture from Pablo's lineup, they're six men and five of them are where white T shirts, and Pablo was put in completely different clothes to make it easier for the witnesses to falsely incriminate him. I think this is something they had done many times before. You would think that it would be incredibly difficult to frame an innocent person for murder. It almost seemed effortless for these corrupt police officers. And Pablo, what was it like going through this for you? Did you understand what was going on? And the beginning no, I thought I learned a little about a little. It was really back from me. I just have my song, my first baby to change that life that quick like that, that won one second, it's really huh they I mean the rack Asylum, you know about that dying Rack as Islands, the acquisition that I have something that I know that I'm not do my son everything I see my son in the coal it was it's it's impossible, I think for anyone who hasn't been through it to imagine what you went through. I mean, you're twenty years old, You're still a kid. Now you're thrust into a very adult situation that you didn't cause and you didn't create. And I want to just highlight one of them. The Innocence Project has led to charge along other organizations, to make videotaping of interrogations mandatory, but also the photo arrays, line up procedures, all of that, anything involving eye witnesses should also be videotaped. That's the only way we can clamp down on these type of practices. And they're not always as defarious as this one was, right, but if they're influencing the witness in any way, the jury must know about that. And that brings us to the trial, which was Janu And let me start just a few weeks before the trial begins. Actually, because it appears that Molino and Keven's they knew approaching the trial as was a week case. They had two cooperators obviously had motives to lie and fabricate evidence, and then you had these two teenagers who have been pressured to lie, and so it looks like they went out to try to bolster this case. And they found two more eyewitnesses and one of them, his name is Hayes's. Canela Cannella recants in the mid two thousand's, actually, as do the Rosarios, but Cannella, when he came forward, he said that he had been pressured by the police officers and they showed him a picture of Pablo, not even a photo array, just a single photograph of Pablo, saying this is the person who did the crime. And then they told him you don't have to testify in court about the fact that you saw this photo. So this witness is found two weeks before the trial, right it's now two and a half years since he saw the murder, and he testifies that he still recognizes Pablo, even though you know Pablo supposedly wearing a disguise at the time, and he says he's never seen any pictures of Pablo up until then, although of course just two weeks before trial started, he indeed was something pictures of problem, but that's all covered up. It's so bad because you can do nothing. You can say nothing. It's like if somebody pointing you and you can do nothing. Everything was lying problem. When the jury came back. What was that moment like when it told me that I'm guilty? Um Man, I thought I want to die. I feel my body like like I hold in a thousand pounds my back. I looking bad to see my family and all my family was prying. I was crying. I was prying. I can't hold it when you know that you he knowsing and they find you guilty or something that you want to confront doing if a year this, this is crazy. I lost my family with my song. I love everybody. This episode is underwritten by the A i G pro Bono Program. He I G is a leading global insurance company, and for over a decade, the A I G pro Bono Program has provided thousands of hours of free legal services and other support to nonprofit organizations and individuals most in need. More recently, the program added criminal and social justice reform as a key pillar of its mission. The case against Pablo really began fall apart just a few days after the trial, when the d A's office came to Publo's trial council and said, we've had to arrest Officer A. J. Malino because we discovered that he was under investigation by the New York State Troopers for dealing large amounts of cocaine to undercover cops a few years prior, right before he went into the police academy, and for some reason that investigation installed, but it was reopened during the trial. Malino was arrested right after the trial, but the d a's office never follows up to prosecute him, and after about five years the case is dismissed for failure to prosecute. Now, it's my theory that somebody who's dealing large amounts of drugs and it goes into the police academy does not stop after they've become a police officer. And we'll see what comes to lighten Pablo's civil case, but I think this was likely a corrupt officer through and through again. We know during this time there were other officers in up to Manhattan who were dealing drugs themselves, providing protection to drug dealers, robbing drug dealers and signed the drugs themselves, and you know, Molino certainly seems to fit that pattern. Yeah, And one would think that that would cause an immediate reopening of the case or retrial or something. But of course we know that it took the most twenty five years for this to be resolved and thousands of hours of pro bono legal work from you and your team at Paul Weiss. You know, it's one of the things that gives me hope, just the fact that there are people like you and firms like Paul Weiss and so many others that provide almost limitless resources of human talent to help someone like Pablo get out of what is almost impossible morass. Dave, you didn't get involved to two thousand five, but talk to us about this crazy appellate process. The next major event occurs in two thousand two. Hicklov and George Rosario both recanted their trial testimony and they met with a lawyer who was representing Pablo at the time, and they provided sworn testimony stating that Melino and others had pressured them to falsely identify Pablo as the shooter. The Hicklov stated that he was positive that Pablo had not shot Kintaro. George said that he never would have identified Pablo as the shooter if he had not been told by the police that Pablo was involved, and that he had been pressured to identify Pablo after being shown Pablo's picture again. The impellate courts did not consider this evidence enough to free public. The next year, in two thousand three, Henry Gomants, of the second victim of the shooting, he provided sworn testimony that Pablo was not the man who shot him and didn't look like the shooter. That is not enough either. Now, in two thousand five, my law firm got involved. One of the top law firms, not in the city, in the world comes in, you know, to the rescue. How did his case land on your radar? Now, we do a lot of pro bono work at Paul Wise, including criminal defense work, criminal justice reform work. But your question indicated, you know, why, of all of the thousands and thousands of criminal defendants in the New York State system, how do we get involved in Populo's case. Well, there was a Yale law student named Andrew Goldstein who, because of a program at the law school became aware of this case, and then he came to Paul Wise for our summer associate program, which lasts about eight to ten weeks. And when he came in, he said, can I get some support from Paul Wise to help me on Pablo's case? And and we said sure. We thought this was going to be something that we helped Andrew Goldstein with for a summer. Well, that summer lasted fourteen years. Andrew ended up coming to the firm as an associate where he worked on the case, and then he left us after about four or five years, and he became a prosecutor in the U. S. Attorney's Office in the Southern District, and he went on to work on Bob Mueller's team a few years ago and is now back in private practice. And just so overjoyed that the case that he brought in as a law student ended with such a great result, even though it took just such a long time for justice to be delivered. What did it mean to you when Dave and his team first got involved with your case and to have their support, And how did that feel the lawyer that I have it before uh Da even the thing came. They told me listen, you look, you got the best loyal United States, and maybe in the world, you got one of the best loyal And I was so happy, my family too, because you know, I wouldn't be in the best hang that I can be. That's that's the only way I came home. And I want to get to that, you know, the good part, your freedom. So let's go right back to that post conviction history. In two thousand five, Paul White took the case, and then there was another rectation in two thousand ten. Two thousand ten, Hans was Cannella Rekns and again that motion is denied. One of the reasons that the New York State judge said that this witness was not to be believed because he said, well, he was trying too hard to be convincing when he recanted, which is just such a ridiculous and bizarre thing to say. And with lost in all the state court appeals in the federal district court, and now we're going up to the federal appeals court, and we knew that if we lost, it was over. We would have only had the ability to appeal to the Supreme Court. And there was almost a zero chance that they would ever have taken this case. So this was really our last stopped and this is really the case. It shows you the value of perseverance. Well, it certainly does, because in February, the U. S. Court of Appeals for the Second District finally overturned the conviction, ruling that it was unconstitutional and citing the state courts denial as an quote unquote an unreasonable determination on the grounds that Cannela was and again him quota here trying too hard to be convincing end quote. So now the conviction is overturned, but the indictment still stands because there's no statute of limitations on murder, and the d A comes you with the deal, right to go free immediately if you plead guilty to manslaughter. But yet on the other hand, they could still retry you. You had twenty five to life, so parole was just around the corner. But there's no guarantee you there either, because who knows, Like if you wouldn't have admitted guilt, if you had refused the deal, you might still be sitting in prison today. I understand, but he's never passed from my mind to take any deal with him. From the beginning, I will fire for my freeing. So after all this year working in my k in the right to be free to brew my you know, say, I'm not gonna take nothing for these people, nothing, you know. At first, we on the defense team thought, there's no way that as Opicer is going to retry this case. Hickla Rosario has recanted, George Rosario has recanted, Hayes's Cannella has recanted. We learned that Rivera was a quadriplegic and gravely ill, not even able to speak. And then Maheas was a drug dealer who had served in signifficant amount of time in prison, and there was absolutely no case left. And so during the spring of the d a's office was making one disclosure after another to us. Has showed that the case was even worse than we had known. But we contacted Martin Maheias and he made some incredible disclosure to us. We told our investigator, you know, when I was cooperating with the police, I was supposed to go back to the Rikers Island after I testified or after I met with the d a's office, But Molino and Tabbins would take me all around the city. We would go to Dallas barbecue. We would get drunk. They would take me to visit girlfriends, take me shopping. I was drinking a lot at the time. I was drunk when I testified. I viewed Tebbins as a friend, basically indicating that he would have done anything to please the police. He also said the police had given him marijuana to sell in prison. I mean, this was just, you know, amazing to us. And we got similar disclosures from the Manhattan DIA's office about miheis in July of information to show that mahe has said, I'm not going to testify for you again. The police told me to lie in the trial. I'm not gonna testify again. So then we learned just some shocking information about Raymond Rivera. Raymond Rivera said that he saw Pablo two days before the murder and that he witnessed pub of being hired to shoot Kintaro. Now, at this time, according to what the d a's office disclosed to us, Rivera could not have been in Upper Manhattan witnessing Pablo or anybody else being paid to do this murder because during this time, Rivera was actually incarcerated in state prison more than three hundred miles away. From New York City, and that meant that his testimony was just outright perjury. He could not have been in New York, he could now have been in Manhattan. They were prison records, new York State records that showed that he was incarcerated at the time. And when these disclosures came out, the d a's office decided to stop fighting the case, and Pablo was first released on bail in August, and then in September of the d a's office asked the trial court to dismiss the case against Pablo. In September, two days before his birthday, Pablo walked out of Manhattan Criminal Court. Finally a freeman. The day that you've been waiting for for twenty five years has finally come. You're innocent. Your lawyers know you were innocent the whole time, your family do you're innocent the whole time. Now everyone knows, the court has said it. What was that moment like when you were finally declared actually innocent and set free? Wow? It was an amazing day. He was. It was he was my day every day. I was thinking in that day and I know that one day you're going to come. And that was the date. I was so happy that the trew came out and that I was re free. But in the same way, I feel a little bad. My father passed away when I was in jail two d and fourteen, and one of the things that I wanted is to see my family, my then my father. They see my freedom, they see me out or my father, and how a portunity to see me. He knows that I know from the beginning, I can show him, you know, my FREEO. I feel happy that I'm free, b in the same in the same time, I feel little. I don't know how to say, but I'm feeling my father, my my hall, that I can see him, that I can hold her no and show him no. I hear with you again. The good news is your home now. Um they're never going back. And Pablo, I have to ask how, I mean people out here in the free world trying to find love, going everywhere, looking on lyne on, here, on there, going out, and you found love from behind the walls of prison. I mean, you're a charming guy, but still that's amazing. Can you explain? We know he shad the folk outside before I get locked up. When I get Lato in jail, a friend of mine. He was my white Tania best friend brother. We see that we from the same area, and we started talking about people, and when I mentioned Litania, so he said, listen, my sister is Tanya Strengths. So the same day he called, so he sistered that I was here, and next day I got a visit Fontania. Since that day we together. That happened to thousands three Sina means one basis the all we call to see me. Yeah, and you two got married. She I mean, it's amazing. Really, she stuck by you the whole way. It's beautiful and it's just got to feel amazing. And I know I speak for so many others, all of us here a round for connection and everyone in your in your very wide circle. Now when I say that, we wish you to all the best that life has to offer. Any other news. Now I got a new soul. Now come out a great stuff. Congratulations to you both. So I mean, there's really nowhere left to go after that. So let's just end on a high note here and go straight to closing arguments, which is of course a segment on the show, my favorite segment. When I thank both of you, each of you for being here. And then I shut my microphone off, just kick back and listen as I hear whatever you want to say, whatever you want to talk about it. Let's start with David first and leave you Pablo for last. Thanks Jason. I just want to say that it was such an honor and the privilege to represent Pablo, to fight for him, to meet his family, his mother, his sisters, other members of his family, his wife Tanya, who is just such a lovely, impressive woman. I'm just so happy for Pablo Antania. But even though twenty four years in prison and fourteen fifteen years of their marriage, Pablo was incarcerated, now that they get a chance to be together and to have a child together, and they have two other children and this will be a third, and this is just really wonderful. As I said before, it's just so rewarding to do this type of work. I would urge every lawyer I know to try to get involved in criminal justice reform where it doesn't have to be an innocent case. But there's so much work that needs to be done around criminal justice reform, and especially if you are at a large firm like Paul Wise, there's so many resources that you can bring to bear. And there's so many wrongs that need to be righted, especially in the New York criminal justice system. There have been a lot of cases that NYPD has been involved in that had terrible, unjust tragic results. In these cases can also be a lot of fun. It is fun to be on the right side of his three and on the right side of justice, and it's energizing in the morning to get out and now that you're fighting for an innocent person, I want to say thank you. I feel so grateful for ord wise everybody they're working in the case. That's the only reason I know. They know I'm innocing. They do the best. Yes, they made my my dream through they made my freedom or my family happy. Now I enjoyed my song because then and everything because then I feel so happy for then grateful my family too, Like we kill like family, my family feel like there is my family. I feel like they're my family. And thank you for Grammy in the program to make that troop come out. You know, I know so many people like me innocently. They know how the opportunity that I have. It's Brayma, don't forget to give us a fantastic review. Wherever you get your podcasts, it really helps. And I'm a proud donor to the Innocence Project and I really hope you'll join me in supporting this very important cause and helping to prevent future wrongful convictions. Go to Innocence Project dot org to learn how to donate and get involved. I'd like to thank our production team, Connor Hall and Kevin Wardis. The music in the show is by three time OSCAR nominated composer Jay Ralph. Be sure to follow us on Instagram at Wrongful Conviction and on Facebook at Wrongful Conviction Podcast. Wrongful Conviction with Jason Flam is a production of Lava for Good Podcasts and association with Signal Company Number one