Nine Years After

How long? At the moment, it’s almost nine years, the journey having begun in 2007.  Carlos Vega still sits on the Rock awaiting his future.

Mr. Vega was arrested in the Bronx on Sept. 30, 2007, accused of killing a man in a bodega. Now 33, he has been in jail for nearly nine years. Three trials have failed to yield a verdict. The first trial, more than four years after the murder, ended in a mistrial after the wife of a key witness became ill. The second ended in a hung jury, and the third also ended in a mistrial after a confrontation with a guard left Mr. Vega hospitalized.

In all, Mr. Vega’s case has come before the court 126 times as it has been shuffled among three defense lawyers, five prosecutors and 12 judges. Another hearing is scheduled for Monday.

That’s the “what,” even if in abbreviated version. But it’s not the “why.” If you don’t read the story carefully, you might think you know why, but you don’t.  Not really. That there were three mistrials along the way, each for a decidedly different reason, doesn’t answer much of anything.

The numbers seem wrong, 126 court appears, all those lawyers and judges. But aside from giving off an unpleasant scent, they explain nothing. Are they the cause of nine years delay or the consequences? Has Carlos Vega been the victim of the system or is he beating the system at its own game? Being in pre-conviction status for nine years sounds terrible, but it beats being convicted and serving a 25-year sentence for murder before being denied parole for the next 27 years.

The city’s criminal justice system is notorious for its tortoiselike pace, but Mr. Vega’s case is an extreme example of how much worse the problem is in the Bronx.

Is it? How? Why? There is no doubt that the Bronx has severe problems, but what makes this case an “extreme example” of them? Kalief Browder sat on the Rock for three years before his case was dismissed, but he never went to trial, never had a mistrial. Vega’s situation is very different. What does it mean?

The difference between observing what vaguely appears to be a reflection of systemic failure from a distance and understanding what went wrong and why is what distinguishes useful information from a painful story.  We need the former, but get the latter. The ability to describe facts and figures does little to advance understanding.

That the underlying homicide occurred isn’t in doubt. There’s a dead body in a bodega shooting, and the bullet didn’t fly by magic. But whether Vega was the shooter is the question to be tried.

In 2007, the city’s murder rate had been on the decline for 16 years, but a short period stretching from the night of Sept. 29 to dawn the following day was particularly deadly — three people were killed in unrelated shootings.

When three people are murdered in one night, the New York tabloids go wild, screaming “murder spree” and that the old crack days are back. NYPD brass tells its boots on the ground to close the case now, show the tabs they’re not completely incompetent and a total waste of money. The word “close” has special meaning to the police. It means arrest someone.

Around midnight, Robert Gaston, 34, was shopping for juice at the New Way bodega on Morris Park Avenue in the East Bronx when a gunman entered. According to an off-duty police officer who was shopping there, the man fired several shots at Mr. Gaston, left and returned to shoot him again.

Mr. Gaston, shot six times, including in the chest, fell near the door, between a cooler and a magazine rack. A store clerk grabbed the shooter, but he wrestled free and fled, a witness told the police.

There was the usual description, generic and unhelpful as it described half the Bronx.

About 30 minutes after the shooting, an officer “spotted a male Hispanic fitting the description of the perp,” according to a detective’s report.

The police stopped Mr. Vega on the corner of Taylor and Morris Park Avenues. A police sergeant approached Mr. Vega, the report said.

Right guy? Wrong guy. Good enough guy?

“Here’s my ID, officer,” Mr. Vega said.

Noticing a bulge in his pocket, officers tackled him, Mr. Vega said. They found a cellphone but no gun.

It’s not that the eagle-eyed detectives noticed a bulge when they first saw Vega, or when they first stopped him. Only after he was stopped did the bulge appear, and then the First Rule kicked in. That there was no gun didn’t matter. At that point, they had their guy. Now it was just a matter of building a case. And so, they did the “show up.”

Later, a police car drove past the spot where Mr. Vega was being detained. Inside was a teenage witness, who said she had watched from her upstairs apartment as the shooter fled. The witness, the detective’s report said, made “a positive identification.”

Later? When later? How long did the cops hold Vega on the street without probable cause, after he was cooperative about offering his ID, and had been tackled for the sudden appearance of a cellphone bulge that no one noticed before.

In 2007, the notion of a double blind, sequential eyewitness identification was still a pipe dream. The procedures in use ranged from bad to worse, and then there was the most notorious, the confirmatory show up. The witness was driven to the scene in an RMP with a cop who pointed to a guy in cuffs surrounded by cops, told they got the shooter and asked, “that’s the guy, right?” The detective, the only person in the car with the witness, then confirms that the ID was positive, while the witness is validated by being told they just took a killer off the street.

Why Carlos Vega would have murdered Robert Gaston is a mystery, but as prosecutors will tell you, motive is not an element of the crime of second degree intentional murder. They don’t have to prove a reason. He did it. That’s enough.

From this, the nine years began. Before you ponder how these facts and circumstances are sufficient to prove anything, know that the prisons are filled with people convicted on similar proof. Put on a decent show and this is all it takes to convict a guy for murder.

Vega’s first trial was in May, 2012, almost five years after his arrest. Was this the usual Bronx delays? Was there a reason? What reason could there be for taking five years to get to trial? Was it the defense, the prosecution, the court, a combination of unfortunate circumstances, married to the usual excuses? Who knows? There’s no information from which to reach any conclusions, particularly the assumed conclusion in the article.

But what is clear, circumstances notwithstanding, is that the people charged with moving the system forward didn’t do their job. Murder, unlike other crimes, isn’t subject to statutory speedy trial rules, and contrary to superficial appearances, there is nothing here to suggest a constitutional speedy trial issue, as the only prejudice is that Vega sits on the Rock. If he’s a murderer, then so what? That’s not law. That’s reality.

And so no one breaks a sweat over letting murder cases drag on forever. Each circumstance described is worthy of a lengthy discussion, because each reflects significant issues and failings of the system. There is likely an excuse for why the ultimate gatekeepers allowed this to go on for nine years, presumably involving acquiescence to requests, excuses, manipulation, two-month adjournments at a shot because it’s the Bronx.

At any time, a judge could have told the lawyers, “pick a jury on Monday or I’m cutting him loose, no excuses.” Did that happen? The article never says.


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6 thoughts on “Nine Years After

  1. Marc R

    Sometimes though, 12 judges is 12 judges. One judge gets a civil or family division assignment a week before calendar call so it’s continued a month. Then he shows up from jail and informs the judge he’s without counsel as he fired his previous counsel the week before; the ADA confirms the stipulation of counsel substitution with the PD Office is in the file. The PD never got the case assignment so the case is recalled a week later. The APD requests 90 days continuance to prepare for trial. Calendar call is set 85 days out. At the hearing the APD advises he needs to depose the third different evidence tech who wasn’t disclosed until the 17th Supplemental Discovery, filed 1017 days after arrest. Rinse and repeat 9 years.

    It’s an interesting thought that maybe it’s a ploy for time served in municipal jail. And to us lawyers, a night in county is something we could survive versus a state max facility. But nobody wants to sit in county for 9 years awaiting trial.

    Sometimes , as you say, it requires the judge to take charge. “Mr. Defendant, there will be no new last minute changes of counsel, the spiderwebs from your file literally clog my docket. Jury selection in 7 days.” Though what we call bold from a distance is what we call a 6th amendment violation when we are the final CDL on the case.

    1. SHG Post author

      That’s unlikely to have anything whatsoever to what happened here. Don’t impute your experience or assumptions to the Bronx or this case.

    1. SHG Post author

      It is not only sufficient for probable cause, but conviction. There’s a murder and an ID. That’s more than enough.

  2. TheHaywardFault

    Another day, another article on the prosaic bureaucratic evil that many unfortunate people face every day. No one person is at fault, so it’s nobody’s fault. Welcome to the bureaucracy.

    Not that I’m complaining about the article, mind you. I’m white and privileged and have never even been pulled over by a cop, much less seen the inside of a cell. It’s good to be reminded that for a lot of folks, things aren’t rosy. If you weren’t doing it (yes, I realize the source is the NYTimes, but they don’t do this nearly as often as you), I hesitate to say I would know about it at all. So I want to thank you. For repeatedly drawing my attention to the bland, routine injustice that happens so often in our “justice” system.

    1. SHG Post author

      Amy Bach wrote a wonderful book, Ordinary Injustice. Your last sentence says quite a bit, “bland, routine injustice.” We tend to focus on the extreme and outrageous, but most of it is banal and ordinary, which is why we really don’t see it constantly happening around us and take it for granted.

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