There was a video of the defendant chasing down a guy with a gun.  That would be pretty good evidence in a gang-related murder trial of intent, and, as it turned out, it was enough for the prosecutor, defense lawyer, judge and jury.  Except for one detail.  From the  NYLJ (paywall):

The video depicts [defendant Tony] Canales, gun in hand, briskly approaching a man while his prey stumbles on a curb, gets up and runs off camera with the defendant in pursuit. However, the man being pursued—a member of the Crips gang—was not the victim, who at that point was alive and observing the events as a bystander.

Ruling on the post-trial motion, Brooklyn Supreme Court Judge Joel Goldberg ripped the lawyers, when he

overturned a gang-related murder conviction in a case where the court described the prosecutor’s conduct as “grossly negligent” at best, characterized the defense case as “feeble,” and suggested if this was not an instance of prosecutorial misrepresentation, it was certainly one of ineffective assistance of counsel.

Apparently, the only person in the courtroom who figured out that the video had nothing to do with the defendant chasing the dead man, but someone entirely different, was the defendant.  And his lawyer, Alan Stutman, failed to pay attention.  He couldn’t remember whether he showed the video to his client before trial, nor recall whether he had a discussion about it with the defendant.

The defendant, Mr. Canales, said that he saw the video for the first time at trial, was baffled by references to it and told his counsel that the man in the video was not the victim, but to no avail.

Indeed, it wasn’t just “references,” but reliance.

No one identified the deceased in the video, no one who witnessed the shooting testified and a girl who the prosecutor [Lawrence J. Fredella] said had picked Mr. Canales out of a lineup as the person who shot the deceased did not testify. According to the court, Mr. Fredella did not show the video to witnesses, or even view it himself before the grand jury presentation.

Mr. Stutman, the court-appointed defense counsel, erroneously conceded in his summation that the video depicted the deceased, leaving him with “no choice other than to make the feeble argument that chasing the deceased was not inconsistent with the defendant having previously accidentally shot him,” the court said.

While the judge’s characterization of both the prosecution and defense is overwhelmingly warranted, notably missing in his ire is any self-reflection.  Who admitted this video into evidence without proper foundation? Who allowed a video to be played before a jury that depicted the defendant chasing someone other than the deceased?

In his decision, Judge Goldberg notes:

Immediately after the Court called for the jury to be brought to the courtroom to view the video, the defendant requested to speak (T. at 234). The defendant told the Court, “That is not the victim. He made his closing argument yesterday that the guy I’m chasing is the victim. The guy that in front of me is not the victim … I know who Antonio Bruce is, not the kid on the floor tumbling”.

The Court responded by telling the defense that, “If he’s requesting to reopen the case and if he wants to testify, he can testify. I would consider that, but as far as doing anything about it, I can’t do anything about it now.”

Offering the defendant the option of reopening the trial and testifying is the functional equivalent of putting a gun to his head and offering him the opportunity to pull the trigger.  While Canales raised one point, and a point that was both critical and, as the court specifically noted, neglected by everyone else in the room, the defendant was not asking for the opportunity to offer up everything he had ever done as a gang member to the prosecution. 

This often comes as a surprise to non-lawyers, but you don’t get to testify only about the stuff you want to reveal.  All the nasty, ugly stuff comes out with it, and more often than not, defendants aren’t particularly good witnesses, which may have something to do with their failure to attend witness class in the police academy.  Not surprisingly, the defendant passed on the opportunity:

The Court additionally stated for the record that, “The summations were yesterday. The defendant didn’t say anything about this yesterday. He didn’t say anything about this, this morning. He didn’t say anything about it until we got the note….”

The defendant, after consulting with defense counsel, did not take the opportunity to testify.

After all, it’s the defendant’s fault that he didn’t salvage the collective error of everyone in the courtroom and instead, told his lawyer thinking that he would know what to do. 

The confluence of failures in this case goes beyond shocking, beyond outrageous.  Nobody, but nobody, paid the slightest bit of attention to what was happening before their eyes, with everyone taking for granted that the video showed what the prosecution says it showed, despite the fact that the prosecutor’s file was replete with information that should have cued him in to the fact that it was the wrong guy.

Video has become our darling, the ability to see what before was only talked about, and when it came from the defendant’s side, dismissed.  But this adoration of video doesn’t mean everyone skips over the basic details, such as who and what the video actually shows.  That everyone simply assumed the video to show the crime is utterly mind-boggling.  And that no one took the responsibility, which was shared among everyone in the courtroom, for establishing the foundation, the relevance and materiality of the video, smears them all. What an utter disaster, and a blight on the notion that our legal system can be trusted with people’s lives.

And no, the fact that the murder conviction was dismissed on the subsequent §440.10 motion doesn’t mean “no harm, no foul.”  This is as foul as they come.