Richard Rosario Appeal Nears Final Stage

Richard Rosario’s legal fight to prove his innocence is winding toward its flash point. The case, which we detailed in a June feature story, now centers on whether the emergence of multiple new alibi witnesses has produced enough evidence of possible innocence for a judge to vacate Rosario’s 1998 murder conviction or call for a new trial.

See Also: The Prisoner’s Daughter: What if your dad had been doing time for murder for as long as you’d known him?

In March, Rosario’s lawyers at the Exoneration Initiative filed an appeal in Bronx Supreme Court based on actual innocence. The Bronx District Attorney’s Office defended the convictions and declared that its own investigation “revealed no convincing evidence of defendant’s innocence.”

So, earlier this month, Rosario’s lawyers countered with their latest plea, the final written argument before the sides present their cases orally before a judge, who will then determine whether to grant or deny Rosario a final chance at exoneration.

“Richard Rosario’s case is a quintessential case study in wrongful convictions,” his attorneys from the Exoneration Initiative wrote. “Nothing in the prosecution’s response refutes Rosario’s motion, which outlines the genesis of the police investigation in which Rosario became a suspect, and highlights the detectives’ failure to adequately investigate the crime because of their tunnel vision once Rosario arose as a suspect on the thinnest of grounds.”

Richard Rosario was convicted of murder in 1998. Two eyewitnesses had identified him as the man who shot 17-year-old George Collazo on June 19, 1996, in the Bronx. Rosario has proclaimed his innocence since the day of his arrest. The most compelling evidence supporting his story: Nine witnesses have testified that Rosario was in Deltona, Florida, on and around the day of the crime.

Six of those witnesses lived in Florida at the time of the trial. Because of a communication about funding from the court, Rosario’s public defender did not send an investigator to speak with those witnesses. They did not testify until Rosario’s first appeal hearing in 2004.

The D.A.’s office suggested that the new witnesses were lying to protect Rosario or mistaken in their recollections. As we explained in August:

[The D.A.’s response to Rosario’s actual innocence motion] devoted a single paragraph to the point about the nine alibi witnesses. It did not need more space because the alibi witnesses were the basis of Rosario’s previous appeal, which failed. In that appeal, Rosario claimed that he had ineffective representation: because of an unexplained miscommunication, his public defender did not know that the trial judge approved funding to send an investigator to interview alibi witnesses in Florida. As a result, only two alibi witnesses testified at trial. The other seven testified at an appeal hearing in 2004. They remembered the specific date because two of Rosario’s friends, John Torres and Jeanine Seda, had a baby on June 20, 1996, the day after the murder.

In its response, the D.A.’s office stated that a State Supreme Court judge concluded the testimonies were not enough for him to vacate the conviction and that a federal appeals panel affirmed the lower court’s decision. “Thus defendant’s reliance on the very same evidence to support his renewed claim of actual innocence should be summarily rejected.”

“Indeed, the prosecution’s inability to reconcile Rosario’s new evidence with its flimsy case against him, despite its best efforts, only underscores his innocence and the dire need for relief or at the very least a hearing on his claims,” Rosario’s lawyers stated. “That a 440 court denied Rosario’s ineffective assistance claim based on the alibi does not, as the prosecution argues, diminish its factual power relative to his claim of innocence.”

Rosario’s appeal is rooted in the accumulation of evidence that the original jury did not hear. In addition to the alibi witnesses, there were police notes indicating that two eyewitnesses viewed photos at the precinct and did not pick out a shooter, as well as a Volusia County, Florida, police field report stating that at 2:42 a.m. on May 30, 1996, an officer questioned four men, including one named Richard Rosario, sitting in a car parked in front of a restaurant.

“The question therefore is not whether any single piece of evidence viewed in isolation establishes…Rosario’s innocence (as the prosecution argues) but whether taken as a whole, his innocence is clearly and convincingly established by the body of evidence unavailable at trial.”

The sides will argue their points in person at a hearing on October 1.