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Exclusive: Leaked Police Interview Reveals Key Evidence That a Bronx Judge Has Barred in Upcoming Murder Trial

Brian Solano spent over two years on Rikers Island before a potentially exonerating NYPD video interview was disclosed to his defense attorney. But that video is now being excluded from his June trial.

Brian Solano
Simon Davis-Cohen

Exclusive: Leaked Police Interview Reveals Key Evidence That a Bronx Judge Has Barred in Upcoming Murder Trial

Brian Solano spent over two years on Rikers Island before a potentially exonerating NYPD video interview was disclosed to his defense attorney. But that video is now being excluded from his June trial.

Held for nearly three years on Rikers Island, 24-year-old Bronx man Brian Solano was set to go to trial on Monday on charges of second-degree murder in the December 2014 shooting death of Willie Lora. Lora was slain in the Bronx’s Mount Eden section and the trial of his alleged killer, Solano, was moved from Monday to June 25 because of a prosecutor’s medical issue. The case against Solano involves multiple allegations of prosecutor and police misconduct, including a videotaped NYPD interview of an alternate suspect that wasn’t disclosed to the defense until two years after it was recorded.

Prosecutors with the Bronx district attorney’s office did not disclose video of a key 2015 NYPD interview until April 2017. But the video, in which another man, Justis Colon, told cops that he possessed the murder weapon, was leaked to Solano’s private investigator Manuel Gomez and provided exclusively to The Appeal.

In the 2015 videotaped interview, two NYPD detectives interrogated Colon about a recent gun charge. He admitted to owning a black 9 mm gun for approximately eight to nine months prior to his arrest. Lora was murdered during this period, and ballistics tests conducted by the NYPD determined that Colon’s weapon, found about two miles from the crime scene in the Bronx, was indeed the one that was fired in the fatal shooting.

But prosecutors with the Bronx district attorney’s office did not formally offer to provide a copy of Colon’s videotaped interview to Solano’s defense counsel until a hearing on April 24, 2017 that was originally scheduled to be the start of his trial. Due process requires that disclosure of potentially exculpatory evidence material to guilt or innocence be made in sufficient time to permit the defendant to make effective use of that information at trial.

It is unclear whether the years-long delay occurred because police did not disclose the interview to the district attorney’s office or because prosecutors with the office did not disclose the footage to defense counsel. Thomas David Kapp, a former Bronx assistant district attorney who was initially assigned to the case, told The Appeal that he has no recollection of the police interview, which was recorded on Jan. 10, 2015, just prior to when the ballistics report regarding Colon’s weapon was disclosed to the defense.

“I don’t think it’s anything intentional,” said Kapp. “I can’t explain … I don’t remember hearing about a statement being taken. It’s possible the police never brought it to us. It’s all about relaying information and sometimes information chains break down, though I’m not saying that happened in this case.”

John Schoeffel, a staff attorney with New York’s Legal Aid Society, says that the DA office’s intentions are immaterial to its constitutional obligations; the delay, he says, presents a potential Brady violation because prosecutors are required by law to proactively seek out any materials in the state’s possession that could be favorable to the defense.

“The U.S. Supreme Court has held that prosecutors have an affirmative duty to learn about all Brady information within the knowledge of law enforcement agents in the case, and then to disclose it to the defense,” Schoeffel said in an email to The Appeal. “It’s not an excuse for a prosecutor to say ‘Only the police knew about this, I didn’t.’”

At the April 24, 2017 hearing, Assistant District Attorney Terry Gensler insisted that she told Solano’s defense attorney, Dawn Florio, about the interview “over the past couple of weeks.”

But at that same hearing, however, ADA Gensler requested that the defense be precluded from introducing evidence about Colon possessing the murder weapon at the time of the offense.

“The fact that this person indicated that he had had this gun during the time might mean many things,” Gensler told the court. “It could be a lie, it could be that he lent it to somebody else that lent it to the defendant, but it does not indicate that he was in fact there.” In her motion to exclude the issue of Colon’s gun, Gensler further argued that “gang members frequently share their weapons” and warned of a trial that would be “about the guilt or lack thereof of Justis Colon rather than Brian Solano.”

Solano’s attorney Florio countered that “someone else was arrested with the murder weapon” and that Colon “not only was arrested with the murder weapon but made a statement stating that it was his gun and that he had possessed that gun six to eight months prior to the arrest of himself with the gun and that was during that time period that this homicide had occurred.”

After the hearing, Solano’s private investigator Gomez interviewed Colon hundreds of miles from the Bronx at the Franklin Correctional Facility in Malone, New York. In a sworn affidavit provided to Gomez, Colon stated that a prosecutor with the Bronx district attorney’s office “tried to intimidate me and force me to switch my story that was on video to help the D.A [sic] win the case against Brian Sollano [sic] … I told her I’m not switching my story. She threatened me to link me to the case if I don’t help her out. I’m innocent I have nothing to do with that case. If I’m needed I will testify in court.”

At an Oct. 2, 2017 hearing, Gensler asked for and received a “cut slip” for Solano, authorizing his release but upholding his indictment. At the hearing, Gensler did not explain her rationale for requesting that Solano be freed, but did point to an unspecified subpoena meant to be served “on certain parties connected to the case.” Gomez says he believes that Gensler was referencing a subpoena “taped to his door” before Solano was actually discharged from prison. Solano’s attorney Florio, meanwhile, says that her client was freed because of prosecutors’ “witness problems.”

On October 24, the judge ruled that neither two police witnesses related to Colon’s gun case nor the NYPD’s 2015 interview of him could come in at trial. The judge said that in order to have allowed the videotape and the Colon-related witnesses into the trial, the defense would have had to demonstrate that Colon himself was the killer.

Soon afterward, Gomez says he handed over affidavits of two witnesses he interviewed who claimed detectives and prosecutors threatened them — and the case against Solano appeared to collapse. On November 6, Solano, who was just transferred to Downstate Correctional Facility in Fishkill, New York, was unexpectedly released. But the second-degree murder charges were not dropped and he still faces decades in prison.

“The CO came and he knocked on my cell, and he said pack up,” Solano told The Appeal“I thought they was playing a joke on me.” Solano walked out in his prison shirt and boots with just a Metro-North train ticket and $40 in hand.

Neither the Bronx district attorney’s office nor the NYPD have provided an official explanation for Solano’s release.

But just before Solano was freed, Gomez provided prosecutors with an affidavit from grand jury witness Noely Cistillo who claimed that an NYPD detective threatened that if she did not place herself at the crime scene, she would face 25 years to life in prison and only ever see her mother through a hole in the wall. “He was putting pressure on me to say that I was there, that I was involved, that I know who did it, when honestly I don’t know nothing about it,” Cistillo said in a Dec. 28, 2016 videotaped affidavit. “They kept telling me if I don’t tell the truth that I’m not going to see my mother…. And I just got scared, I was terrified. I didn’t know what to do, what to say, what to think.” Cistillo said she was held at the NYPD’s 44th Precinct in the Bronx for four to five hours while she was questioned; a few days later, she appeared before the grand jury where, she told Gomez in her affidavit, “they was putting words in my mouth.”

Brian Solano (seated) and Manuel Gomez review evidence in Solano’s case
Simon Davis-Cohen

Another witness named Alondra Alba Villar told Gomez that she was pressured by an NYPD detective and an ADA with the Bronx district attorney’s office to falsely implicate Solano in the Lora homicide. “I kept telling the Detective I don’t know I was high and I couldn’t see the face,” Villar said in an April 20, 2017 affidavit. “[The detective] just kept harassing me, to try to accuse somebody that I did not see.” Villar added that an ADA told her that if she did not cooperate with the state, “they was going make it a ‘hard way’ — that they was going to put me through court.”

Both Villar and Cistillo said that arresting officer Carlos Faulkner of the Bronx’s 44th Precinct was involved in the attempts to coerce them to make false statements in the case. Detective Faulkner is already the subject of an internal affairs investigation for his role in a botched 2012 manslaughter case in which the defendant, Enger Javier, was held at Rikers Island for a year despite evidence pointing to a different man as the killer. Faulker allegedly said that he didn’t investigate other suspects in the case because “we got the right Spic,” referring to Javier. The NYPD did not respond to The Appeal’s requests for comment regarding Faulkner.

“I just destroyed their entire case,” Gomez said of the affidavits he gave to Bronx prosecutors prior to Solano’s October 2017 release. “They realized they had no case.”

Solano’s saga is the latest in a series of cases in which prosecutors from the Bronx district attorney’s office and Bronx cops have been accused of misconduct. As The Appeal recently reported, two witnesses in the murder case against Robert Collazo, including the state’s only identifying witness, claimed an ADA pressured them to change their stories. And in the Javier case, his attorney claimed testimony from a key witness was coerced.

Both the Collazo and Solano cases also illustrate the failure of the Bronx district attorney’s office to fulfill DA Darcel Clark’s promises to limit case transfers between ADAs and expedite prosecutions to limit the time that defendants are held pre-trial.

Solano, for example, has appeared in the Bronx County Hall of Justice 32 times since entering his not guilty plea in December 2014 and his case has been handled by three separate ADAs. “Every court date, it was always an adjournment,” Solano told The Appeal“The DA would say they’re not ready [for trial]. I’ve been saying I was ready to go to trial since day one.”

When asked for comment, a spokesperson for the Bronx district attorney’s office said, “The original ADA left the office, as did the ADA to whom the case was reassigned, that is why a third ADA is handling the case.”

“It was bad,” Solano says of his time at Rikers. “I went through a lot. I got cut on my face, behind my ears. The correction officers [would say] ‘you’re a murderer,’ they were coming at me. Everything. ‘You going to do life, you never coming home.’”

More than three years after Lora’s murder, the judge in the case demanded that there be no further delays in the case. “I’m not going to embrace any excuses by either side on April 2nd,” Bronx Supreme Court Judge Steven Barrett said during a February 21 hearing. “The case is going to go to trial even if I have to do it myself without any attorneys.”

But when the trial was delayed again on April 2, Solano continued to insist on his innocence in the Lora murder and lamented, “The victim’s family still thinks I did it. So because of the DA, I’m in danger.”

Traffic Stop Begins Man’s Kafkaesque Journey Through A Texas County’s Bail System

Still from courtroom video in which a man was jailed for a trespassing charge

Traffic Stop Begins Man’s Kafkaesque Journey Through A Texas County’s Bail System

In February 2017, Mweze Kyungu was pulled over by Houston police officers in Harris County, Texas for a defective brake light and then arrested. “You kill people like me,” Kyungu told the arresting officers, “all you do is kill black people.”

Thus began a nearly year-long ordeal for Kyungu in Harris County’s criminal justice system, detailed in a recent complaint filed by his attorney Franklin Bynum with the Texas State Commission on Judicial Conduct. Bynum’s complaint alleges that a Harris County judge demonstrated bias against Kyungu and unlawfully raised his bail.

After the 2017 brake light stop, Kyungu made several court appearances. One was rescheduled because the court couldn’t find a Swahili translator; another, in January 2018, was moved because a translator was sick.

Then, on January 26, 2018, Kyungu was jailed after a court appearance over two minor charges: one for “interference with the duties of a public servant” in the course of the brake light stop as well as an unresolved trespassing charge from 2014 that surfaced as a result.

According to Bynum’s complaint, Harris County Criminal Court Judge Jean Spradling “apparently lost her patience” and “in open court, expressed anger that Mr. Kyungu insisted on a hearing and accused him of ‘faking’ not being able to speak English fluently.” Spradling then said that Kyungu was in contempt of court, revoked his previous bond, set a new one at $20,000, and he was taken into custody.

“Judge Spradling used bail to punish him,” Bynum told The Appeal, “because he wouldn’t plead guilty.”

The Appeal asked Judge Spradling for comment regarding the allegations in Bynum’s complaint. “I have not received confirmation from the State Commission on Judicial Conduct that any complaint has been filed,” an attorney representing the judge replied in an e-mail, “Assuming one was, the Texas Constitution and Government Code require the complaint to remain confidential until the Commission investigates it, finds that it has merit (assuming it does), and makes the matter public. These provisions protect the complainant and prevent dissemination of frivolous allegations against judicial officers. If a complaint has been filed, it is troubling that the complainant …would forward it to the press before it has been investigated by an impartial agency and in apparent violation of these provisions and their spirit.”

Bynum says that Spradling’s treatment of Kyungu is not unusual in Harris County. “Judges were using high bail amounts as de facto detention orders for people charged with these minor offenses,” said Bynum. “They used bail as an instrument of oppression.”

In Kyungu’s 2014 trespassing case, Harris County Magistrate Joe Licata set his bail at $500 and denied a personal bond — which would have meant he could have been released without paying cash up front. Personal bonds are supposed to prevent defendants from being jailed simply for inability to pay bail. In February, Licata and two other Harris County bail hearing officers were sanctioned by the Texas State Commission on Judicial Conduct for failing to offer personal bonds.

October 6, 2016. Arrestee charged with trespassing at a mall; Arrestee asked to read the bond before he signed it; Judge Licata: “Stop talking, and go on next door.”

August 23, 2016. Judge Licata to arrestee: “Going to deny your personal bond because you’re on probation and had a prior trespassing case just this month.”

Videos of Licata’s bail hearings show him denying personal bond in other trespassing cases. When one defendant asked for time to read the bond before he signed it, Licata told him, “Stop talking, and go on next door.”

When Kyungu was in court in 2017 for the brake light stop, the hearing officerdenied a personal bond in that case, too, after setting bail at $10,000.

By denying personal bonds and using bail as punishment, Harris County judges are engaging in “wealth-based pretrial detention,” according to Civil Rights Corps, a nonprofit organization dedicated to challenging systemic injustice in the American legal system. In 2016, Civil Rights Corps sued Harris County over such practices in federal court; in April 2017, a federal judge ruled that the county’s bail system violated constitutional rights.

One result of the court ruling is that anyone charged with a misdemeanor in Harris County who can’t afford bail is supposed to be offered a personal bond. Since the federal injunction against Harris County’s bail practices, nearly 9,000 people have been released who would otherwise have been detained, according to Civil Rights Corps attorney Elizabeth Rossi.

Nonetheless, when Judge Spradling raised Kyungu’s bail to $20,000 in 2018, he couldn’t pay. The judge accused Kyungu of “dilly dallying” and “playing stupid,” according to the complaint later filed by Bynum. She also claimed Kyungu had been late to court, which Bynum disputes. But even if he hadn’t been punctual, that’s not sufficient reason to set higher bail.

Spradling sent Kyungu to jail on Jan. 26, 2018, a Friday. The following Monday, Bynum filed a writ of habeas corpus and gained his release. “Judge Spradling spoke to a defendant who needed a translator, and for whom a competency motion had been previously filed, addressed him in a language that he did not fully understand,” Bynum wrote in his complaint, “and when she did not like his answers she threw him in jail, with no lawful basis.”

Despite the 2017 federal court ruling that declared Harris County bail practices unconstitutional, judges there continue to use bail as punishment. “What the whole system shows, and what this complaint shows, is either the judges don’t understand, or don’t care about, what it means to put someone in a jail cell,” Civil Rights Corps’ Rossi told The Appeal. “They wield the power to take away somebody’s liberty in a way that displays utter disrespect for the humanity of the person appearing before them.”

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‘You’re Breaking the Law As Soon as You Stop Walking’: How Colorado Cities Criminalize Homelessness

A man walks past the Denver Rescue Mission homeless shelter.
John Moore/Getty Images

‘You’re Breaking the Law As Soon as You Stop Walking’: How Colorado Cities Criminalize Homelessness

When Benjamin Dunning was homeless on the streets of Denver, Colorado for four and a half years, his number one priority was trying to stay out of sight.

“My biggest job … was to find someplace to hide where I wouldn’t have contact with the police, wouldn’t have contact with a security guard, wouldn’t have contact with Parks and Rec,” he said. For a while he had a regular spot to sleep where he was left alone — only to have a newly hired security guard find him one night and tell him he couldn’t sleep there anymore.

But security guards are one thing and police are another. “You do risk going to jail,” said Dunning, who now works with Denver Homeless Out Loud, an advocacy group.

That’s because sleeping outside is one of many activities deemed illegal in parts of Colorado. The state’s 76 largest cities have collectively passed 351 ordinances that target the homeless, from bans on camping to sitting or lying down in public to simply sharing food outside. Advocates say that’s how cities in Colorado have, for the most part, opted to deal with their homeless populations: by passing and enforcing ordinances that criminalize basic acts of life and wasting resources that could otherwise be spent on services, making life even harder for those without homes.

It’s illegal to stand still, it’s illegal to sit down, it’s illegal to lay down, it’s illegal to eat. You’re breaking the law as soon as you stop walking.Paul Boden, Executive Director of the Western Regional Advocacy Project

If someone is cited, they first face a fine and a court date. But most homeless people can’t afford to pay a fine and can’t make it to court. It’s a “cycle of criminalization,” said Nantiya Ruan, who leads the Homeless Advocacy Policy Project at the University of Denver. “People get a citation, they can’t pay it, they get a warrant for their arrest … then they spend anywhere from two to three days in jail. Then they can’t get a job because they have a criminal background.”

The ordinances could, on their face, apply to anyone. But that’s not how they’re enforced. “A high, high percentage of people who have gotten tickets under these ordinances are homeless,” Ruan said. For example, most of downtown Boulder has a smoking ban that should impact anyone who lights up a cigarette, and yet the vast majority of people given citations for smoking between 2015 and 2017 were homeless, according to Ruan’s team, which researches laws that target the homeless. Similarly, over half of all the trespass citations Denver issued between 2013 and 2014 were for homeless residents, even though homeless people represent just 0.6 percent of the population.

“Cops are only going to enforce [ordinances] against those guys and those people who are ‘the problem,’” Boden said. “Homeless people are not the only motherfuckers sitting on a sidewalk, but we’re the only ones going to jail for it.”

Colorado’s cities appear to be particularly vigorous in their enforcement. Video from 2016 showed Denver police officers taking blankets from people in freezing November weather. And it’s only intensifying. Ruan, whose team has done public records requests in the state, has found that citations and “move along” orders are increasing.

That may be because the state’s homeless population is increasing, due to a lack of investment in public housing, coupled with skyrocketing home prices. There are just under 11,000 homeless people in Colorado, nearly 4,000 of whom have nowhere to sleep at night. That’s up from about 2,300 homeless people in 2008, 1,800 of whom had no shelter. Existing shelters usually don’t have enough capacity to give everyone a bed, plus many people can’t comply with all of the rules regarding who’s allowed in and where. As of 2016, Boulder had only 280 shelter beds for its 440 homeless people.

“Cities have not been able to effectively support their homeless communities,” Dunning said, “so [instead] they try to scare them off.”

Criminalizing people’s attempts to survive outside, however, only makes it harder for them to get indoors. Landlords “do rent checks in ways that filter people out if you’ve got any [criminal] history,” Dunning pointed out. “It raises the bar that much higher.” It also makes finding a job or even accessing public benefits — such as subsidized housing or, in some places, food stamps — nearly impossible.

Criminalizing homeless people can also make them less likely to take advantage of the services that might be available. “When you give police officers the power to ticket and arrest and put people in jail … they’re no longer seen as someone providing services,” Ruan pointed out. “That’s what disrupts [homeless people] getting services.”

But the state’s homeless population and their allies aren’t letting the situation stand. For four years in a row, advocates have pushed for what’s been dubbed the Right to Rest Act in the state legislature, which would give homeless people the right to move freely in public spaces, eat and accept food, occupy a vehicle, and protect their personal property.

Boden’s organization was behind the original bill and has been aggressively lobbying for its passage. “We want to frame it as a social justice and a human rights issue for people’s ability to live with full protections in the local community of their choice,” Boden said. “No local communities should be able to pass ordinances that criminalize the presence of people they don’t like.”

And yet Colorado lawmakers have been slow to sign on. The bill had a hearing this month in the Colorado House of Representatives, but it again failed to get enough support to move out of committee. Most Republicans voted against it; only one Republican has ever voted in favor of it in the four years it’s been considered, Boden said.

“Instead of acknowledging their dignity and right to respect,” noted Darren O’Connor, one of the students who works on the Homeless Advocacy Policy Project, “our legislature voted out of fear of allowing people to be in public space.”

But the math is on the advocates’ side. Ruan’s team found that just six Colorado cities spent at least $5 million enforcing these ordinances over five years. “Criminalization pushes people down at the same time they’re trying to lift people up with services … and that money could be spent in a better way,” Ruan said.

The group’s calculation doesn’t even take into account the health impacts of these laws, which further drain resources. The lack of sleep due to a constant worry of being rudely awakened and hassled by police — not to mention the actual experience of being kicked awake by an officer — can quickly run someone down. Coupled with a poor diet of cheap food handouts and the effects of sleeping in the cold, that stress takes a heavy toll on the body. “Your immune system begins to break down so you get more colds, or if you’re susceptible of being diabetic, you’ll go diabetic,” Dunning said.

Some consequences are even more severe. One homeless man in the state who was woken up by police and told to move along went into an alley and was struck and killed by a truck, according to advocates. Some women have reported being raped when they were forced to leave well-lit or patrolled areas.

Even though the Right to Rest Act didn’t pass this year, momentum is building. “When we first introduced it, it was just us and service providers,” Dunning recalled. But now faith groups, business groups, and even some in law enforcement have backed the bill. “It just keeps growing and growing, and at some point, these guys won’t be able to get away with not supporting it.”

Boden agrees and says poor and homeless people will keep fighting. “We figure no meaningful civil rights legislation is easy or this would have been done already,” he said. “We’ll just keep coming back with it. If you know in your heart you’re fucking right, it doesn’t matter how many times they say no. The last thing they’re going to say is yes.”

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