Man Wrongfully Convicted of Attempted Murder Sues City, Bronx DA for $28M

By James Fanelli on May 3, 2013 6:10am 

 Bronx District Attorney Robert Johnson is accused in a lawsuit of ignoring prosecutorial misconduct in his office.
Bronx District Attorney Robert Johnson is accused in a lawsuit of ignoring prosecutorial misconduct in his office.
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Amy Sussman/Getty Images

CONCOURSE — A young Bronx man spent seven years in prison for a shooting he didn't commit — all because an NYPD detective and a prosecutor didn't reveal their key witness had serious doubts in identifying him as the triggerman, a new lawsuit charges.

A jury declared Darren Felix guilty of shooting a father of five outside a McDonald's on East 167th Street in the Bronx in 2004.

The attempted murder conviction was largely based on the testimony of Sara Torres, a then 15-year-old who worked at the fast-food joint and saw the shooting. 

But the defense team — and the jury — never heard about the reservations Torres had when she picked Felix out of a photo lineup, nor did they learn how during a break in the trial she tearfully insisted to a Bronx prosecutor that Felix wasn't the shooter, the lawsuit says.

A judge ultimately sentenced Felix, then 20, to up to 25 years behind bars. He served seven years, but in 2010 his Legal Aid Society lawyer persuaded the Bronx District Attorney's Office to reexamine the case and ask a judge to throw out the verdict.

On Wednesday Felix filed a $28 million lawsuit against the city in Bronx Civil Supreme Court, claiming the detective "poisoned" Torres' eyewitness account.

The lawsuit also accuses Bronx DA Robert Johnson of repeatedly giving a pass to prosecutors in his office who skirt constitutional laws, and that his "deliberate indifference" to his subordinates' behavior led to misconduct during the Felix trial.

Felix's lawyer, Joel Rudin, declined to discuss the case with DNAinfo New York, but he says in the lawsuit, "While the Bronx District Attorney ultimately agreed to vacate [the] conviction based upon newly discovered evidence ... [Felix] would not have been convicted at all but for the police and the trial prosecutor's misconduct."

On the night of July 23, 2003, Kantari Baragi, then 40, was shot and seriously wounded after an altercation in the McDonald's spilled onto the street. Shortly after the gunfire, cops swarmed the surrounding blocks and arrested Felix, then 19, who matched the description of a suspect who was black and was wearing a white t-shirt and jeans.

Years later, and long after Felix's conviction, prosecutors would say that the real shooter was Justo Hechavarria, a teen who bore a strong resemblance to Felix. 

Shortly after being taken into custody, Felix was identified by a witness and Baragi as the shooter, although they only viewed him in a single-person lineup without other suspects, the lawsuit says.

A week later police interviewed Torres, who said she knew the shooter by face because he was a frequent McDonald's customer and always ordered iced tea, the lawsuit said.

After scanning a photo lineup that included Felix and five other men, she told Det. Jose Morales that Felix "looked like" the shooter, according to the lawsuit. She then responded "yes" when Morales asked if she was sure he was the shooter. 

In a breach of NYPD rules, the detective only recorded her "sure" response, not her initial "looked like" answer, in his report, according to the lawsuit.

Morales then told Torres she had picked the right photo — another legal no-no, according the lawsuit.

He "knew that he was required by the NYPD to refrain from making any statement to an eyewitness, during or following a photo identification procedure, that might suggest to the eyewitness who to select or to reinforce the eyewitness's level of certainty," the lawsuit says. 

Felix remained in custody until the start of his trial in November 2004. Two weeks into the proceedings, Torres came to testify and spotted Felix being escorted into the court.

She "immediately recognized that he was not the man who had committed the shooting" and alerted the trial prosecutor, Mary Jo Blanchard, the lawsuit says. Blanchard allegedly told Torres that she was mistaken, that criminal defendants change their appearance and that the plaintiff was the shooter.

On the stand, Torres responded "no" when asked if she saw the shooter in the courtroom. Shortly after the response, Blanchard took a recess to have a private talk with Torres. During the huddle, the teen welled with tears as she insisted Felix didn't commit the crime, according to the lawsuit.

Blanchard still coerced Torres to get back on the stand, the lawsuit says. The teen then testified that she could not remember what the shooter looked like. She kept silent about her belief in Felix's innocence.

Felix was convicted of attempted murder, assault and criminal possession of a weapon, but his Legal Aid lawyer, Elizabeth Sack Felber, continued to investigate, eventually learning of Torres' doubts.

The Bronx DA's office re-examined the case after Felber submitted a report that revealed new witnesses and highlighted the alleged police and prosecutor misconduct.

In 2010, after corroborating the findings, the prosecutors who reviewed the case asked a judge to toss the verdict. The prosecutors said new evidence pinned the shooting on Hechavarria, who had fled the state after the incident, according to court records.

Steven Reed, a Bronx DA spokesman, declined to discuss the lawsuit. He said the DA's office investigated Blanchard's alleged misconduct but found no basis for disciplinary action.

Reed said no arrest or charges were ever made against Hechavarria because the new evidence came to light five years after the shooting, putting any action past the statute of limitations.

A spokesperson for the city Law Department said it would review the lawsuit once it had been officially served a copy.

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