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Man, Exonerated After 18 Years in Prison, Can Pursue 1983 Suit

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By Casey C. Sullivan, Esq. on June 16, 2015 3:52 PM

Fernando Bermudez spent 18 years in prison for a murder he did not commit. After a prosecution which was suspect from the beginning -- one which included suggestive photo arrays, police coercion, and a failure to investigate other suspects -- it took Bermudez almost two decades to get his conviction overturned, despite every witness recanting their testimony.

Bermudez will now be able to go forward with a civil suit for damages stemming from his wrongful imprisonment, after the Second Circuit ruled on Monday that there were triable questions of fact as to whether the faulty investigation violated Bermudez's constitutional rights.

A Conviction That Never Seemed Right

Bermudez's sentence was questionable from the beginning. When Raymond Blount was shot after fighting with another teenager outside a Manhattan nightclub in 1991, Bermudez was identified from a photo array by a group of teens. However, the man Blount had been fighting with, Efraim Lopez, identified a completely separate individual as the murderer. But when Lopez struck a deal with the D.A., he agreed to identify Bermudez in exchange for not being charged. The shooter he originally identified was never investigated. Soon after Bermudez's conviction, witnesses began recanting their testimony.

Bermudez's case became a bit of a cause célèbre, as far as wrongful convictions go. His case made the front page of The New York Times, his photo was featured on the cover of a book on wrongful convictions, and Court TV aired an hour-long investigation into his conviction. Despite all that attention, it took Bermudez 11 different attempts to get a court to finally reexamine his case and exonerate him. He is one of the few prisoners to have their conviction overturned without relying DNA evidence to exonerate him.

Bermudez's 1983 Suit

After being exonerated, Bermudez filed a 1983 suit for damages stemming from his wrongful conviction and imprisonment. A district court tossed his suit on summary judgment, finding that the unconstitutionally suggested identification procedures and witness coercion, even taken as a given, did not violate Bermudez's due process rights. There was no proximate cause, since the Assistant D.A. separately decided what to use at trial.

The Second Circuit disagreed. Even if the ADA's decision to prosecute was independent, the detective's use of unconstitutional procedures could have misled the ADA into prosecuting. That's enough proximate cause to connect the faulty investigation to Bermudez's injuries.

Bermudez's claim of malicious prosecution, however, could not withstand summary judgment, since there was probable cause to charge him, based on the later recanted testimony. Where the prosecutor has probably cause for the criminal proceeding, there can be no claim of malicious prosecution.

Bermudez's 1983 suit will now return to district court, where he will get to follow it as a free man.

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