In March, Richard Rosario filed a motion to vacate his murder conviction. The appeal was based on “actual innocence,” which essentially means that Rosario sought to prove that new evidence showed that he was innocent beyond a reasonable doubt. Rosario, whose case we detailed in a feature story earlier this month, has claimed that he was in Florida on the day 17-year-old Jorge Collazo was shot and killed in the Bronx in 1996. His motion included testimonies from seven people and newly discovered police documents that supported his alibi.
A Bronx Supreme Court judge gave the Bronx District Attorney’s Office 90 days to investigate Rosario’s claims and determine whether it would defend the conviction. Those 90 days came to an end last week. And at a hearing on Thursday, the D.A.’s office declared that it opposed Rosario’s motion and would fight his appeal.
See also our June feature story: The Prisoner’s Daughter: What if your dad had been doing time for murder for as long as you’d known him?
This outcome wasn’t a shock to Rosario and his legal team. Bronx D.A. Robert Johnson has defended the conviction for more than a decade.
This actual innocence motion was Rosario second appeal attempt. He had previously attempted to get his conviction reversed based on claims of inadequate defense representation.
In 2002, his appeal attorneys had discovered that Rosario’s public defender had mistakenly believed that a judge had rejected funding to send an investigator to Florida to interview potential alibi witnesses. Rosario had given the public defender a list of 13 possible witnesses who, he said, could back his story about being in Florida in June 1996. A judge approved the funding to interview those witnesses. Because of the public defender’s error, only two alibi witnesses testified.
The prosecution had two eye witnesses who identified Rosario as the shooter, and the prosecutor argued that the two eye witnesses were more credible than the two alibi witnesses.
The Bronx D.A.’s office fought Rosario’s appeal. It argued that the public defender’s error did not make the trial unfair.
In a hearing in 2004, six additional witnesses testified to seeing Rosario in Florida on and around the day of the murder, June 19, 1996. Most of them were able to recall that specific date because Rosario’s friends John Torres and Jeanine Seda had their first child born the next day, June 20.
But a Bronx Supreme Court judge ruled against Rosario, and then two federal judges upheld the ruling. One federal judge, though dissented, and argued for a new trial for Rosario.
“There exists too much alibi evidence that was not presented to the jury and too little evidence of guilt, to now have any confidence in the jury’s verdict,” Judge Chester Straub wrote. “Because the prosecution’s case hinged so much on discrediting Rosario’s alibi defense, these additional witnesses could have made all the difference in the world.”
Rosario appealed to the U.S. Supreme Court but the justices did not pick up the case. About a year after Rosario’s first appeal failed, the Exoneration Initiative, a non-profit that reviews potential wrongful convictions, began working on his case.
As we explained in the feature:
[Rosario’s actual innocence] appeal includes the testimony from alibi witnesses along with other facts that didn’t make it into Rosario’s original trial. Police notes, for instance, indicate that two eyewitnesses viewed photos at the precinct and did not pick out a shooter. Three people, whose names police redacted, had provided statements suggesting that Jorge Collazo, the murder victim, had slapped his ex-girlfriend at her workplace two weeks before he was killed, and that “this girl has some [guys] coming for him.” The trial jury had not known Collazo had been carrying a gun when he was murdered.
Additionally, a Volusia County, Florida, police field report indicated that at 2:42 a.m. on May 30, 1996, an officer questioned four men sitting in a car parked in front of a restaurant. Among the four were John Torres and Richard Rosario.
More recently, Rosario’s attorneys added documents showing the results of polygraph tests taken by Rosario and three of his witnesses. All four passed.
The D.A.’s office now has until August 20 to explain their reasoning for opposing Rosario’s motion.
From there, Rosario’s legal team, led by Glenn Garber and Rebecca Freedman, hopes for a hearing to argue the case. Based on the current timeline, that hearing would probably happen this fall, says Freedman.
Next: the text of Rosario’s motion to vacate based on actual innocence.
Send story tips to the author, Albert Samaha