Excerpt
This story has been updated to include a recent decision by the U.S. Court of Appeals for the Second Circuit in the case of a Queens woman who says she was illegally held as a material witness in 2008.
The 20-year-old document – labeled the Hotel Custody log by the Brooklyn District Attorney’s office – is not easy to decipher. It contains a list of New York City hotels beside columns labeled “Date In” and “Date Out.” There are names of individual prosecutors and the units they worked for at the district attorney’s office.
A spokesman for the district attorney’s office, asked to explain the document, refused to say anything. And a judge recently placed the document under seal at the request of lawyers for the city.
Ruddy Quezada and his lawyers, however, are pretty sure they have figured the document out, and that it – in particular the third line from the bottom – holds a key to Quezada’s freedom after more than 20 years behind bars for a murder he insists he didn’t commit.
Quezada’s lawyers assert that the document is a record of witnesses in criminal trials held in hotel rooms by the district attorney in the winter of 1993. Some of the witnesses were prisoners released to testify and held overnight in custody. Others were witnesses who were fearful for their safety.
But some on the list were held under what are known in the criminal justice system as material witness orders, men and women who were deemed “uncooperative,” arrested by detectives and not freed until they agreed to testify.
Most specifically, Quezada’s lawyers say that on March 11, 1993, a man named Sixto Salcedo was checked into the Holiday Inn Crowne Plaza. Salcedo, they say, was released the following day, after he agreed to do what prosecutors wanted: testify that he had seen Ruddy Quezada shoot dead a man named Jose Rosado on the streets of Brooklyn.
Salcedo did testify, and Quezada was convicted. But a lot has happened since – Salcedo has recanted his testimony, another man has confessed to the murder, and Quezada has asked a federal judge to free him from prison. And much of what happens next could turn on what took place at the Crowne Plaza that night 20 years ago.
Salcedo now says in sworn testimony that he never saw Quezada shoot anyone, and that he only agreed to say otherwise after he had been arrested on a material witness order, threatened by detectives and held overnight in one of the hotels used by the district attorney’s office.
“I’m not trying to justify myself,” Salcedo said in the sworn statement, “I’m just trying to have a clear conscience, since I regret the harm that I have caused.”
For some defense lawyers in New York, the Quezada case is just one example of a wider abuse of material witness orders.
The orders are meant to help prosecutors compel testimony from problematic witnesses in criminal cases. But the orders, which must be signed by judges, are supposed to be used only in extraordinary circumstances, as a kind of last resort, often when prosecutors fear a potential witness might flee instead of testifying.
Prosecutors are required to honor basic protocols aimed at protecting the rights of such witnesses: once detained, they are to be brought directly before a judge and provided with a lawyer. A hearing is then supposed to be held to explore the reasons behind a witness’ reluctance to testify: Is it fear? Possible complicity in the crime? Or are witnesses being intimidated into testifying falsely?
Determining much about the use of material witness orders is not easy. Court administrators in New York State are able to say that prosecutors continue to seek them and judges continue to grant them, but can’t say definitively how often the orders are issued or whether prosecutors abide by the law in executing them.
A spokesman for the Queens District Attorney said prosecutors in the office always take such witnesses before a judge. But the city’s other four district attorneys told ProPublica they would not answer questions about how material witness orders are handled by their offices.
But the Quezada case is not the only one dealing with the possible abuse of material witness orders to have surfaced in recent years. Some defense lawyers say they are concerned about how often local prosecutors might have disregarded the safeguards meant to protect the witnesses.
A lawyer for a Queens woman who says she was illegally held as a material witness in 2008 is now pressing to hold prosecutors accountable, seeking to find them personally liable. She scored a considerable victory in her effort this week when a three-judge panel on the U.S. Court of Appeals for the Second Circuit held that prosecutors in the case were not entitled to “absolute immunity” from her lawsuit, and ordered the case to be reconsidered by a district court.
"A material witness warrant secures a witness’s presence at a trial or grand jury proceeding," Judge Gerard E. Lynch of the Second Circuit wrote in an opinion made public Friday. "It does not authorize a person’s arrest and prolonged detention for purposes of investigative interrogation by the police or a prosecutor."
Another lawyer, Joel Rudin, has asked a federal judge in Brooklyn to force the Brooklyn District Attorney to turn over its records concerning the detention of witnesses in hotels over the years. Rudin, who is suing the city over a wrongful conviction that was achieved in part by the abuse of a material witness order, already has won rare access to some material.
Rudin said some witnesses held in hotels were formally classified as prisoners; they may have been inmates brought to court to testify in a criminal trial. But scores of others on the logs he has seen were likely innocent men and women who were being detained under material witness orders, he said.
“If they were not happening in Brooklyn, we would associate such practices with a police state,” Rudin said in court documents filed in May.
The Brooklyn District Attorney declined to respond to Rudin’s allegations.
Controversy arose around federal prosecutors’ deployment of material witness orders after 9/11, when it came to light that they had used the warrants to detain large numbers of people to provide information about terror cases.
But the use of these orders at the state-level remains largely unexamined. In New Jersey, legislators adopted reforms to the state’s material witness statute two decades ago, prompted by a case in which a man was held in jail to testify against a defendant who hadn’t even been charged with a crime yet.
The reforms came after a state commission surveyed the laws on material witness orders across the country.
“Some states had some protections for witnesses, some had none, but no state had a comprehensive set of protections,” said John Cannel, a member of the New Jersey Law Revision Commission, an arm of the state legislature.
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