This case isn't quite as simple as the title may suggest, yet the title is accurate. What we have here is a man who was rightfully convicted by his
own guilty plea to an attempted robbery charge, following his attempted murder conviction being overturned. I bring this nugget to share because it's
an odd duck and for more than one reason.....
MANHATTAN (CN) - New York City must face claims that it concealed evidence from a Bronx man who pleaded guilty to attempted robbery after
his attempted murder conviction was thrown out, the 2nd Circuit ruled in a rare en banc decision.
An attorney for Michael "Marcos" Poventud said that her client is "elated" about the opportunity to pursue his allegations.
Wait.. he's guilty, right? Said so right there at the open...so what allegations does HE have to pursue? Well... This is where we get into
interesting territory. It's not trailblazing, as the end of the story notes, but it's certainly not daily fare, either...as the En Banc decision
indicates. (En Banc, in simple terms, means the whole Circuit Court of appeals comes together to sit and review a case as a group. Appellate courts
usually review cases in panels of Judges out of the overall court...not all of them at once)
The charges stemmed from the March 6, 1997, robbery and shooting of livery cab driver Younis Duopo.
Police found a wallet on the floor of the cab that had two ID cards for Poventud's brother Francisco, and Duopo told investigators that the man
pictured in the photos matched his shooter.
Uh Oh... Sounds pretty clear. Robber came, robber shot the victim with a buddy, dropped ID in the process and made off into the night to be busted
later. There is even a photo line-up and indentification! So...What's the deal? Indeed...it's a pretty big deal. That Photo-Lineup part? Oh...That
is THE deal here...and they seemed to follow the old adage "If at first you don't succeed, try and try again!".
Police arranged four photo lineups including Poventud, who said he was playing video games at a friend's house on the night of the robbery,
and Duopo fingered Poventud only on the last attempt.
Police disclosed Duopo's failed attempts at identifying Poventud before trial, but they did not preserve the photo array in which Duopo picked out
his brother Francisco.
Source: Courthouse News
Yeah..That's a major problem. Lemmie see here... 4 lineups in photo packs. He fails 3 and hits gold on #4...but no one can know what #4 looked like
or why 3 failed to that last success...because no one remembered to preserve that step? Uhh... Really???
The 2nd Circuit appears to feel much the same here and there is quite a bit more to the story. The most important part is...his accomplice rode a full
acquittal and his own conviction had been overturned on the attempted murder. He was sitting in prison and offered a choice....... He could plead
guilty to a lesser felony in what amounts to what the article calls a 'Hobsons
' scenario, or he could sit in prison and rot while the prosecutors pursued a lengthy appeal process, despite his overturned conviction.
Freedom by the next day ...or years more in maximum security? He took the guilty plea to be released ...and the 2nd Circuit basically stated that his
guilty plea doesn't negate the failure to follow due process here in preservation of what convicted him.
So, what do you know? Even a guilty man...where guilt is acknowledged by the deciding court to be accepted on face value for legal purposes...can
chase down and seek remedy from those who may well have violated his rights. I'll be interested to see how this one turns out, eh?