EXCLUSIVE: Documents Reveal Bronx DA’s Office Is Still Withholding Key Evidence In Prosecution of Bronx Teen

The Appeal has learned that the Bronx district attorney’s office is allegedly withholding key evidence in a last-ditch effort to prosecute Pedro Hernandez, a Bronx teenager who spent 12 months at Rikers unable to make bail and became a national figure in the bail reform movement. Last year, Bronx prosecutors dropped their shooting charges against the teenager and announced an investigation into numerous allegations of misconduct in the case. But prosecutors have continued to prosecute Hernandez for a nearly three-year-old cell phone robbery allegation, which has received far less press attention.

A Bronx district attorney’s office document, reviewed by The Appeal, reveals that the supposed victim of that robbery, Stephone Garcia, was arrested roughly an hour after the encounter for unlawful assembly, a misdemeanor charge one can face for preparing to engage in or engaging in violent group conduct. Bronx prosecutors later declined to prosecute Garcia. But according to court documents and Pedro Hernandez’s private investigator Manuel Gomez, they never turned over their records, revealing this decision, to Hernandez’s defense. Hernandez’s defense independently obtained a redacted version of the document in which The Appeal found Garcia’s name, according to court records. This potentially exculpatory revelation could complicate the prosecution’s narrative of the robbery. Prosecutors are required to turn over any evidence that might help the defense.

Garcia’s arrest right after the alleged robbery and the Bronx DA’s subsequent decision not to prosecute is “clearly favorable evidence” that “should have been disclosed right off the bat,” according to Bennett L. Gershman, a professor at the Elisabeth Haub School of Law at Pace University and a former Manhattan prosecutor. “If someone is arrested by the police and now turns out to be a victim and the charge is dismissed,” Gershman said in a phone interview, “one has to ask, ‘Does that make this person more likely to want to cooperate, to help himself out of the arrest?’”

Bronx prosecutors declined to explain to The Appeal why they did not turn over this information. They also declined to respond to questions about the possibility that Garcia told authorities false information about Hernandez to avoid prosecution. Witnesses involved in Hernandez’s previous cases have alleged that a Bronx prosecutor and New York Police Department officers coerced them into falsely incriminating Hernandez.

In this ongoing case, Hernandez, then 15, and his sister Ivanyele, then 17, are accused of stealing Garcia’s cell phone and remote car alarm, and threatening him with a knife and assaulting him, on Nov. 6, 2015. The charges, totalling five felonies and three misdemeanors associated with the alleged robbery and fight, were originally brought in family court. But the case was transferred to Bronx Supreme Court in July 2017, at the height of the media coverage surrounding Hernandez’s 2015 shooting charges that were dropped.

Camera footage, provided to The Appeal by Gomez, also raises questions about the prosecution’s narrative that paints Hernandez as a powerful gang member who forcibly stole Garcia’s cell phone and car alarm and threatened him with a knife. The video appears to show a brief street fight, not a robbery, involving the Hernandez siblings and Garcia. In the parts of the video in which the Hernandez siblings appear to be visible, at least, no cell phone and remote car alarm robbery can be seen, and Pedro Hernandez is not wielding a knife.

At a court hearing last week, Bronx Supreme Court judge Steven Barrett complained about the “unnecessary motions” filed by Hernandez’s defense to obtain exculpatory evidence, known as Brady material, from prosecutors. But Barrett also warned Bronx prosecutors that they must follow the law and turn over any other evidence they have. “I would not want to learn later on there was something that should have been turned over,” Barrett said at the hearing. “I would hate to find that out. If that’s the case, there’ll be hell to pay.”

Barrett did not respond to The Appeal’s email inquiring what this “hell” would entail.

According to Gershman, Barrett could choose to hold the Bronx assistant district attorneys involved in this case in contempt, a penalty that could have serious professional or even criminal consequences. Though Gershman has not seen New York prosecutors held in contempt for Brady material violations in recent years, he argues more judges are becoming concerned about this issue. He notes that last year, for example, New York State’s chief judge, Janet DiFiore, issued a memo directing all judges overseeing criminal matters to order prosecutors to turn over exculpatory evidence before trial.

This withheld evidence comes on the heels of Bronx prosecutors also failing to provide the defense with the “cut slips” of two witnesses who were arrested but let go after their “recollection of the alleged robbery did not match the District Attorney’s distorted narrative,” according to court motions filed by Hernandez’s defense attorney Alex Spiro. The defense attorney obtained this witness information independently in December 2017, according to court records. Spiro declined to comment on the case ahead of trial.

On top of this evidence that the Bronx district attorney’s office failed to turn over, prosecutors also took considerable time to divulge important facts that would seemingly help Hernandez’s defense.

According to the prosecution, in September or October 2017, for example, shortly after Hernandez’s other charges were dropped, Bronx prosecutors offered to provide alternative housing to Garcia, which he refused. Hernandez’s defense didn’t learn about this until December 2017.

The Bronx district attorney’s office has also refused to hand over any information about the findings of an ongoing investigation of alleged misconduct among its employees and officers in the NYPD precinct that investigated Hernandez. The office announced its inquiry after the dismissal of Hernandez’s previous 2015 shooting cases. As The Appeal has previously reported, Hernandez’s defense argues that the findings of the investigation need to be turned over because they would cast doubts on the motivations of NYPD officers and prosecutors, who have led numerous investigations into Hernandez over the last three years.

At least one of those Bronx prosecutors, now under investigation for the dismissed Hernandez shooting cases, is involved in this robbery case. Bronx Assistant District Attorney David Slott, who has been accused of helping coerce witnesses in numerous cases, including Hernandez’s 2015 shooting charges, was involved in the robbery case through the summer of 2017, according to court documents.

The 2015 robbery case “is clear retaliation by the police department and prosecutor David Slott,” said Gomez, Hernandez’s private investigator. “He’s absolutely innocent.”

Hernandez’s defense has repeatedly petitioned Justice Barrett to intervene and to compel the prosecution to turn over information about the findings of the Bronx district attorney’s office’s internal probe. But Barrett has said that judges only compel prosecutors to fulfill their obligation to hand over potentially exculpatory Brady evidence in the “rarest of instances,” according to court minutes.

Barrett did not respond to The Appeal’s emailed request to elaborate on what would constitute such a rare instance.

As The Appeal has revealed in numerous stories over the last few months, Bronx prosecutors have withheld exculpatory evidence from other defendants for years and been accused of intimidating witnesses, causing people to spend years in Rikers and undergo lengthy ordeals in court.

“It’s bizarre and a troubling case,” said Gershman, the law professor and former prosecutor. “You have to think something is going on here beneath the surface.”

If you are a current or former Bronx district attorney’s office employee, please contact us to share leads or your perspective on these issues. Reporter George Joseph can be reached on the secure messaging app Signal at 929-282-2471 or by email at gmjoseph@protonmail.com. Reporter Simon Davis-Cohen can be reached by email at s.davis.cohen@protonmail.com.