X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A murderer’s confession to a priest 12 years ago, shortly after two other men were wrongly convicted in the killing, led federal Judge Denny Chin on Tuesday to order the release of one of the imprisoned men. Chin, of the U.S. District Court for the Southern District of New York, released Jose Morales, who has been behind bars along with co-defendant Ruben Montalvo ever since the pair were convicted in the 1987 murder of Jose Antonio Rivera near Kelly Park in the South Bronx. Morales has been in prison despite the fact that confessed murderer Jesus Fornes told a priest, two lawyers, and the members of the defendants’ families that he and two others killed Rivera. After Morales and Montalvo were convicted, Fornes, who was 17 years old at the time, asked Father Joseph Towle to come to his apartment, where he confessed his involvement in the killing. Chin’s ruling came in Morales v. Portuondo, 97 Civ. 2559. The decision will be published Monday. Towle, a “street priest” in the Hunt’s Point Section of the South Bronx, told Fornes that “if he had the courage and heart to do it, that he should go to the court and that he should acknowledge that he was responsible and the others were not.” Towle then granted Fornes absolution and offered him a “pardon in the name of God for the things that he had done wrong.” Fornes later told his story to Anthony J. Servino, a lawyer who was preparing to represent Morales on his appeal. And Fornes met with Legal Aid Society attorney Stanley Cohen, telling Cohen his conscience was bothering him, and that he was coming forward after trial because he did not expect Morales and Montalvo to be convicted. But at a hearing on Servino’s motion to set aside the verdict based on new evidence, a motion joined in by Montalvo, Fornes followed Cohen’s advice and invoked his Fifth Amendment right not to give evidence against himself. In prison on sentences of 15 years to life, Morales and Montalvo have fought for years to earn their release, with a break in the case emerging only after Montalvo began a correspondence with Towle. HABEAS SOUGHT Montalvo filed a petition for a writ of habeas corpus that is still pending before federal Judge Robert W. Sweet, also of the Southern District of New York. Morales’s petition before Judge Chin claims that the trial court improperly excluded hearsay evidence, two statements made by Fornes implicating himself. The first statement was to Mr. Montalvo’s mother, Maria Montalvo, prior to meeting with Servino. The second statement, “I did the crime, I will do the time,” was made to Servino in Bronx Supreme Court, and overheard by Mr. Morales’ sister, Maria Morales-Fowler. The petition was at first denied by Judge Chin. But Morales’s new attorneys, Randa D. Maher and Jeffrey Pittell, appealed the decision to the 2nd U.S. Circuit Court of Appeals, which remanded the case to Chin to supplement the record. As part of the appeal, Randa Maher included an affidavit from Towle. CONFESSION OR NOT? On the remand from the 2nd Circuit, a hearing was conducted last week before Judge Chin. Towle testified that he originally considered his “heart-to-heart” talk with Fornes a confession, in part because it ended with him absolving Fornes for his sin. However, the priest said that, after living for 12 years with the knowledge that two innocent youths were sent to prison, he reconsidered his position and now believed that his talk with Fornes at the youth’s house was not a sacramental confession. In a written opinion Tuesday, Chin first found that the statements by Fornes to Montalvo and Servino, although hearsay, “met the requirements of the exception [to the hearsay rule] for declarations against penal interest.” And while the statements that Fornes made to Towle and Cohen do not qualify as declarations against penal interest, and both were communicated in confidence, Judge Chin said both statements met the “residual” exception to the hearsay rule. They did so, Chin said, because they were “vital” to Morales’ defense, because Fornes was an unavailable witness — then because he invoked the Fifth Amendment and now because he has himself been murdered — and, finally, because “the statements bear sufficient indicia of reliability.” PRIEST-PENITENT PRIVILEGE Judge Chin then turned to New York’s priest-penitent privilege, codified in CPLR Section 4505, which forbids a minister, priest, or other member of the clergy from disclosing, at trial, a confession or confidence made to them in their capacity as a spiritual adviser. Chin said Towle had sought an opinion on his ability to testify about Fornes’ “confession” from the Archdiocese. The judge said, “I am in no position to second-guess Father Towle or the Archdiocese in this respect.” “Second, even assuming Fornes’ statements were covered by Section 4505, Fornes waived the privilege,” he said. Chin went on to rule that Fornes’ statements to Stanley Cohen, although usually inadmissible under the attorney-client privilege, even after death, should have been admitted. Under Supreme Court case law, he said, “a defendant in a criminal case may nonetheless be entitled to introduce the evidence if its exclusion would render his trial fundamentally unfair.” Fornes was merely repeating to Cohen information he had shared with three other people, Chin said, adding that “Fornes has been deceased for some four years now, while two apparently innocent men have spent nearly 13 years in prison for a crime that he committed. Under these remarkable circumstances, the attorney-client privilege must not stand in the way of the truth.” ‘INCREDIBLY THIN’ CASE In his opinion, Chin said he was granting the petition for a writ of habeas corpus. But he said he wanted the parties before the court for a midday hearing to discuss the issue of whether he should grant an unconditional writ, barring the reprosecution of Morales, or a conditional writ, which would order Bronx County District Attorney Robert Johnson to retry Morales within a specified period of time or release him for good. But when Chin took the bench for the hearing, he said he was unsure whether he had the authority under the 2nd Circuit’s remand of the case to grant any writ at all, and whether the case must first be returned to the 2nd Circuit. Bronx County Assistant District Attorneys Cheryl D. Harris and Allen P.W. Caren argued against bail while the appeal was still pending, saying evidence at the trial supported the conviction. But Chin said the evidence was “incredibly thin.” In his written opinion, Chin said that at the 1988 trial, “only one witness placed Morales at the scene of the crime,” while Morales testified to his own innocence, and five other witnesses placed him blocks away from the murder scene. The judge added that a sixth witness said Morales and Montalvo were not at the scene. Speaking from the bench later, Chin said, “I don’t know what the jury was thinking. When you look at all the evidence, I cannot imagine why the jury would convict.” As for Montalvo’s petition before Judge Sweet, Chin said he would be “delighted” to have the case transferred to his court.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.