When the Weight of the Evidence Shifts

By BOB HERBERT

New York Times

January 4, 2005

Steven Cohen is a former federal prosecutor who has become all but obsessed with a case in New York in which he believes two men are serving long prison sentences for a murder they didn't commit.

A former New York City detective, Robert Addolorato, actually seems tormented by the case. He also believes the prisoners are innocent.

Neither of these men are soft on crime. But they insist that in this particular case, the authorities fouled up. Mr. Cohen was adamant. "They've got the wrong guys locked up for this murder," he said.

In the early morning hours of Nov. 23, 1990, two bouncers were shot at the old Palladium nightclub on East 14th Street in Manhattan. One of the bouncers died. A couple of hapless young guys, David Lemus and Olmado Hidalgo, who most likely did not know one another, who didn't even speak the same language (one spoke only English and the other only Spanish), and who insisted they were not at the club when the shooting occurred, were arrested, tried, convicted and sentenced to 25 years to life in prison.

The arrests had not been made immediately. Mr. Lemus was picked up nearly two months after the shooting, and Mr. Hidalgo nearly a year after. Prosecutors told a jury that the two men had gotten into an altercation with the bouncers, and had shot them after a "friend" of the defendants, Jose Figueroa, had unsuccessfully tried to mediate the dispute.

Mr. Cohen and Detective Addolorato had no particular interest in the Palladium matter. But in the course of their own investigation of a drug and extortion gang they essentially "solved" the Palladium case. (Mr. Lemus and Mr. Hidalgo were already in prison.) A gang member named Joey Pillot admitted that he and a buddy named Thomas Morales had been responsible for the murder, that Mr. Morales was the actual shooter, and that neither Mr. Lemus nor Mr. Hidalgo was involved.

A wealth of evidence has since been marshaled to support that account. Several witnesses have bolstered or corroborated Mr. Pillot's version of the shooting. The prosecution's theory about what happened that night suffered a severe blow when it was learned that Mr. Figueroa, the "friend" who was supposed to have been acting as a mediator, was nowhere near the Palladium when the shooting occurred. He was in prison.

A man who resembled Mr. Figueroa, Richard Feliciano, was at the scene. According to court papers filed by defense lawyers, Mr. Feliciano "has indicated that he was, in fact, the mediator, that he witnessed the shooting and that Morales, and not Mr. Lemus and Mr. Hidalgo, shot the bouncers."

Lawyers for Mr. Lemus and Mr. Hidalgo have pressed hard for a new trial, but have not been successful. Another appeal hearing will be held later this month.

The New York Times and other news outlets have run stories raising serious questions about the case and detailing new evidence that has emerged, including Joey Pillot's confession. The forewoman of the jury that convicted Mr. Lemus and Mr. Hidalgo has also reviewed the latest evidence. She now believes the two men were innocent. But prosecutors in the Manhattan district attorney's office continue to fight all efforts to have the convictions overturned.

In an article that appeared in July 2000, Jane Fritsch and David Rohde of The Times wrote: "It is difficult to overturn a conviction in New York, even in the face of powerful new evidence. Trial judges and state appeals courts have always been reluctant to reverse a jury's verdict, and in 1996, Congress sharply limited the rights of defendants to take their appeals to federal court."

While officials in the D.A.'s office continue to insist that Mr. Lemus and Mr. Hidalgo are guilty, there seems to be at least a little give in the foundation of their certainty. I talked about the case last week with James Kindler, the chief assistant district attorney. He said at one point, "We think that at least Morales - there's been some evidence that we had that Morales may have been involved, yes."

"In the shooting?" I said.

"In the shooting."

That did not mean, said Mr. Kindler, that Mr. Lemus and Mr. Hidalgo were innocent. He said they could all have been involved.

I then asked if the D.A.'s office had any evidence that linked Mr. Morales even remotely to the two men imprisoned for the murder.

"I believe not," said Mr. Kindler.