When The First 18 Doesn’t Count

Judge John Cataldo did something that never happens.  Almost never.  In the absence of DNA evidence, some sort of hard proof to hang his hat on, Judge Cataldo nonetheless  tossed Fernando Bermudez’s murder conviction after five prosecution witnesses recanted, saying they were coerced and manipulated into fingering Bermudez for the murder of 16 year old Raymond Blount.

Cataldo found that there was no evidence connecting Bermudez with the murder and dismissed the case.  It came on the 11th try, and after Bermudez served 18 years in Sing Sing.  While Mark Dwyer, chief assistant district attorney in Manhattan, says his office is pondering whether to appeal, they won’t.  Eighteen years is enough, and they don’t like being on the losing side twice in the same case, and they really hate being the appellant, where all the presumptions cut against you.

So time to throw a party?  Speeches about the bravery of Judge Cataldo and impropriety of the prosecution?  Not just yet.

Bermudez has some unfinished business to do.  Twenty-seven months of it, to be precise.

While he was a bit preoccupied with the murder case, Bermudez also had a federal drug case. In the relative scheme of things, it wasn’t likely his most pressing concern at the time, and he copped a plea.  This is the way these things typically go.  When there’s a big fight and a small fight, just get the small fight off your plate so that you can concentrate on the big one.  And so he did.

But after serving 18 years on the now-dismissed murder case, he still has an unserved sentence of 27 months.  No, he gets no credit for the time spent in state custody.  Yes, it would make sense in the grander scheme if he did, but he doesn’t.  That’s just the way prison time works.  That’s the nature of dual sovereigns: Each gets his due, for better or worse.

After his release on the murder, White Plains District Judge Kenneth Karas allowed Bermudez to go free on bail until June 30, 2010

to give his lawyers time to  try and convince the federal Bureau of Prisons that Bermudez has long since served the 27 months in prison as part of the 18 years he wrongly served.
There are a host of ways in which Fernando Bermudez’s situation can be righted.  The United States Attorney’s office can acquiesce in a resentence.  The judge can change the sentence, nunc pro tunc.  The Bureau of Prisons can recalculate his sentence with credit for the time in Ossining.  Each of these fixes requires the “kindness” of the government, as Bermudez has no right under the law to demand that his 18 lost years be applied to cover his 27 months still owed.

Of course, no one thinks that it would be right for Bermudez to now be compelled to serve an additional 27 months, after serving 18 years for a murder he didn’t commit.  That Judge Karas released Bermudez clearly shows that he doesn’t think so.  On the other hand, if the newspaper report is correct, Judge Karas wants the defense and the Bureau of Prisons to work it out.  This is another way of saying that he’s not going to take responsibility for fixing the problem.  Notably, there’s no mention of the United States Attorney’s office fixing the problem.  The spotlight is on the defense and BOP to straighten out this mess.

The system is crafted in such a way as to assume that it works, and works properly.  There aren’t many backdoors built into the system to allow for screw-ups and breakdowns, like the guy who spends 18 years in prison for a murder he didn’t commit.  Since that’s not supposed to happen in the first place, there’s no reason why there should be any procedure to compensate for problems that arise out of situations that should never happen.  To have a process to fix such a mess would be acknowledgment of a failed system.  Congress would never admit to owning such a broken system.

The only question remaining, after the New York District Attorney’s time to appeal runs out after 30 days, will be whether any of the players in this saga will take the responsibility of making sure that Bermudez doesn’t go back to prison to serve another 27 months.  The BOP is a monstrous bureaucracy, and monstrous bureaucracies have no heart.  Will someone deep within the bowels of BOP be bold enough to do the right thing?  And if not, what will the judge and United States Attorney do about it?  Without the acquiescence of someone on the government side, the defense can do nothing.

Everyone knows what the right thing to do is.  Who will take the responsibility to do it?

2 thoughts on “When The First 18 Doesn’t Count

  1. Thomas R. Griffith

    Sir, the NY Times article doesn’t mention the name of the person that originally prosecuted the case or the name of the prosecutor(s) that fought it 11 times? Is this info. known? Thanks.

  2. Sam

    There’s another solution you haven’t mentioned. Pres. Obama can commute the prison sentence. This would seem like exactly the sort of case that the pardon power was designed for, although it hasn’t functioned that way for a very long time. But however unlikely a commutation seems, it’s no more unlikely than the USAO being reasonable, much less BOP, which (as you suggest) is a waste of time in my view.

Comments are closed.