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Innocence, fabricated surveillance location, police and prosecutorial misconduct
The Jose Antonio Carmona, Jr., Story
By Jose Antonio Carmona, Jr.
Edited by Barbara Jean McAtlin, Justice: Denied StaffMy name is Jose Antonio Carmona, Jr. I am a Puerto Rican man from North Philadelphia. Nine years ago I became yet another victim of police corruption for which I am serving a sentence of life without parole plus 30 years for a nonviolent drug crime. I dislike the word "victim," but what else can I possibly call it?
I have become just one more casualty of the Philadelphia police who have found it to be increasingly easy to incarcerate those who are innocent based either on their past indiscretions or their socioeconomic condition. I was found guilty by a jury due to the perjured testimony of the officers who arrested me, framed me for a drug crime, and fabricated the location of their alleged "Confidential Location" in order to secure a conviction, and two prosecutors who withheld the exact location of the alleged surveillance post from the defense due to it having been classified as "confidential" until the last possible moment. I truly believe this was done with the intention of denying my defense attorney sufficient time and opportunity to conduct a full investigation into the allegations made against me by the arresting officers.
I bring these matters to your attention because I have information that must be considered as "new evidence." This new evidence adequately demonstrates that the police officers lied and also provides incontrovertible proof of my innocence. This case is not difficult to understand; the issue is complex only because it is something that has been incorporated by corrupt police officers to frame innocent people for no other reason than to make an arrest. The following details everything that happened to me.
On August 21, 1991, I went to my then-girlfriend's house, Maria, and asked her to accompany me to Atlantic City. As I stood outside and waited for her to come out of her home, I noticed two people sitting down several houses down on the opposite side of the street. Approximately five to ten minutes later, a uniformed officer approached me and asked me if I had a gun. At no time were there any actions on my part that would have justified this officer asking me this question. As I was being questioned by this officer, two other officers were conducting a search of the area where the people I had seen earlier had been sitting. They had left the area as soon as the police arrived. I did not move from or leave the area. There was no reason for me to fear the police -- or so I believed then -- because all I was doing was waiting for my girlfriend.
At the various locations where the officers were conducting their search, it is alleged that narcotics were found. As a result of the drugs found, several yards from where I was located, I was arrested and charged with possession with intent to deliver controlled substances, 72 grams of crack cocaine and 3 grams of heroin.
The important aspect of this is:
Officer Timothy King, the police officer who arrested me, testified at my preliminary hearing that he observed me alone making drug sales in an area hit hard enough by drug activity to be known as "The Badlands,'' for forty minutes. He also testified that after he knew where the drugs were located, he radioed his partners, directed them to me, and observed me being arrested on the EAST side of Orkney Street. The exact location of the alleged "confidential location" from where he was supposedly watching me was denied to the defense due to its "confidentiality."This is pure fabrication. I had just arrived. I had not been in the area for more than 10 minutes. Officer King, the officer who was allegedly observing me from his "confidential location," is the same officer who arrested me and placed the handcuffs on me. It would have been impossible for him to have been watching me and arresting me at the same time. I knew that officer King was lying because I was not selling drugs. I could only hope that the truth about officer King's alleged use of this fictional "confidential location" would be exposed to show that he was lying and trying to frame me for a crime I did not commit.
At my trial, the prosecutor made an "11th Hour Revelation" of the alleged "confidential location." The prosecutor produced photographs of the crime scene taken one week before the start of my trial, and a full eighteen months after my arrest, which depicted an "abandoned" house. Now, officer King decides to testify that he made his observations from this abandoned house and that he observed me being arrested on the WEST side of Orkney Street. This statement conveniently placed me right on top of the drugs. If you recall, officer King first said he had observed me being arrested on the "EAST" side of the street.
However, during the course of my trial, my ex-girlfriend, Maria Martinez, testified that she was aware of the location from where the officer was saying he had observed me. She told the court that this was not an "abandoned" house on August 21, 1991, and that this particular house had been occupied by an "elderly African American woman named Dorothy" at the time of my arrest. Nevertheless, the prosecutor manipulated the jury into believing that this was an abandoned house and not an occupied home.
Conclusively, the fact is that if this was an "occupied" home, then the officer's testimony was false. If the house was occupied, the officer could not have entered it without the owner's permission. No such permission was given, and, as later discovered, no such permission was ever sought.
The documented proof that was discovered after a trial that proved my innocence beyond any reasonable doubt, was that this was, in fact, an occupied home and that officer King had never been inside it, much less conducted any surveillance from the house as he testified to, prior to, during, and after, my arrest on August 21, 1991.
Prior to being sentenced, a private investigator was hired to find "Dorothy." At my sentencing hearing, we presented the testimony of Mrs. Dorothy "McCall" (nee Whitaker). Mrs. McCall testified that she did own and reside at the property in question for 17 years. She had moved from that home to a new residence in October, 1992. Also submitted for the court's consideration was an affidavit signed by Mrs. McCall and the private investigator, as well as a utility bill from the Philadelphia Gas Works Company that showed the home to be occupied at the time of my arrest.
The prosecutor, in her attempt to undermine the significance of Mrs. McCall's discovery, as well as the evidence presented in support of her testimony that she lived at 2955 North Orkney Street for 17 years, produced a document refereed to as a "visual inspection report" from the Water Revenue Bureau, a government agency, along with the testimony of its representative. This document is as worthless as the paper it's printed on.
The fact that Mr. Berry, my trial attorney, was ineffective in not requesting a continuance in order to ascertain the truthfulness of officer King's testimony, and to conduct his own investigation into the alleged occupancy with the assistance of an experienced investigator immediately upon being told by myself and Maria Martinez that this building was occupied on the day of my arrest, instead of waiting on my family to investigate for him, has resulted in my continued incarceration for the past nine years. My family easily found this new evidence and nobody in my family is a trained investigator.
The unavailability of this evidence at my trial can only be attributed to the prosecutor's intentional withholding, suppression, and late disclosure of the alleged "confidential location." The defense was unaware of exactly what officer King was going to testify to in terms of his alleged surveillance post due to this prosecutorial misconduct.
There can be no doubt that had the testimony of Mrs. McCall, along with the utility bills and other evidence, been presented to the jurors at my trial, there would have been a reasonable doubt as to my guilt. It would have effectively demonstrated that officer King perjured himself, and that the prosecutors knew of, or should have known of, the perjured testimony that was presented at my trial. It would have also amplified the fact that this case was manufactured one week before the start of my trial, after Mrs. McCoy had already moved from her home to her new residence, and after she had abandoned her home on Orkney Street four months earlier.
The fatal mistake made by the police, the agents who assisted in taking the misleading photographs of Mrs. McCoy's house, and the prosecutor who introduced them at my trial was that they never expected the testimony of Maria Martinez who identified the property in question and provided the name of the owner, Mrs. Dorothy McCoy. Clearly, had this information been available and presented to the jurors for their consideration during their deliberations that the alleged "confidential location" was not so confidential, or abandoned, and that the owner never gave officer King, or any officer, permission to use her home for surveillance purposes either prior to, during, or after, my arrest, there can be no doubt that the outcome of my trial would have been different. But, because of police and prosecutorial misconduct, and ineffective assistance of counsel, the jurors had only the testimony of Ms. Martinez. The alleged occupancy, was extremely deficient in light of the fabricated case made and presented against me.
After my direct appeal attorney failed me (that's another story) my family hired an attorney to prepare and file my post-conviction motion. As a result, I was granted a hearing, a rare occurrence. However, my attorney, Mr. Egan, failed to file a request for discovery, failed to subpoena utility company representatives as I requested he do prior to the hearing, and was not prepared to present any evidence or to cross-examine any witnesses, and, when it rains it pours, he was not versed in the law pertaining to the arguments raised in the incomplete motion he filed with the court.
Four months after my hearing, Mr. Egan filed the utility account statement (bill) from the PECO Energy Company without informing me, and the government filed its response to it. Mr. Egan failed to respond to the prosecutor's new position and latest classification of its surveillance post. I have only one question: Can the prosecutor have it both ways, vacant or very lightly used, when officer King's position, and hers, at my trial was that this was an abandoned house?
I received these documents eight months after my hearing. I immediately wrote to PECO's Regulatory Assessor, Mr. Hughes. Surprisingly Mr. Hughes responded to my query.
However, these revelations were of little concern to the late Judge Robert S. Gawthrop III, because, according to his observations, he did not care where officer King was located and, therefore, did not care if officer King lied to make a case against me. It took the judge a year to decide that he would deny my request for a new trial.
There is no doubt that the judge misconstrued, mischaracterized, and misunderstood the impact that this new evidence has on the prosecutor's case that was presented for his consideration. For Judge Gawthrop to say that there are no actual readings on both bills, and that Mrs. McCall may have lived there and may have not seen the police boggles the mind! I thought that the evidence had to prove my guilt beyond any reasonable doubt, but as you see, I'm being held to a sentence of life plus 30 years because this house was "either vacant or very lightly used," and because Mrs. McCall "may have lived there and she may never have seen the police." Is it me or is something terribly wrong with these statements? It is decisions such as this one that continue to cause many innocent men and women to spend many years of their lives in prison.
I began this synopsis by stating that the police are framing many innocent men and women for crimes based on their past indiscretions or their socioeconomic condition. I fell into both categories. My socioeconomic condition was not terribly great and I had a couple of convictions for drugs related to a habit that I've been free from since 1988. Due to the fact that I had been convicted previously on drug charges, my credibility wasn't worth anything in a court of law. Police officers such as officer King know this when they frame someone, and they justify their actions by saying, "Well, if he/she wasn't doing anything then, they would eventually commit a crime, and we're just taking them off the street before they do." I have heard this, and you've probably heard it also.
In any event, I will not sandbag you as the prosecutor obviously sandbagged me with the alleged "confidential location." Why? Because if you investigate everything I claim and the new evidence, you're going to find out anyway. Right? So I'll just lay it all out for you, the whole truth, and just hope that you will assist me in hopefully gaining my freedom. Here goes:
This case was initially a state matter. The state prosecutor, a cross-designated Special United States Attorney, testified prior to the start of my trial that my case was identified for federal adoption immediately, only the facts show otherwise. It was only after I wrote the Philadelphia Inquirer a letter in which I claimed innocence, and indirectly said that I was framed that my case was identified for federal adoption. I must have really pissed off someone in the DA's office.
The day after my letter was printed, I was taken to City Hall where I met my newly appointed attorney. I was represented by a public defender prior to this time. This attorney told me that he read my letter in the newspaper. I did not know it had been printed. He told me that he had a "deal" from the prosecutor's office. The deal was for me to plead guilty and accept a 5- to 15-year state sentence. If I refused to accept this deal, I was going to be indicted by the federal government where I'd face a sentence of life without parole. No negotiation; take it or leave it. I refused to plead guilty to a crime I did not commit and insisted on a trial. I am now fairly sure that I was federally prosecuted -- persecuted -- for having exercised my right to the First Amendment to our Constitution.
The deal offered by the DA/ASUSA was a sham. His intention was to get me to cop-out in the state, and then federally indict me anyway. I guess it was going to be punishment for having said "I'm innocent" in the lnquirer. He said so in so many words prior to the start of my trial. Had I accepted this so-called "deal," I would never have been able to make the claim of actual innocence as I now do. But it was not easy getting here. I've paid with nine years of my life for the decision I made.
I met with my public defender upon entering the federal system. The first thing he asked me was, "Are you crazy? Why didn't you accept the 5- to 15-years offered by the state prosecutor?" I told him that I'm not crazy, and the reason I didn't accept the deal offered is because I'm innocent. He told me that I didn't stand a snowball's chance in Hell of proving my innocence because:
#1 I'm Puerto Rican (this really did happen, I'm not trying to play the race card because I'm sure that an all white jury would find me innocent with the new evidence you've just seen)
#2 That the case involved drugs, and
#3 That a federal jury, unlike the one I would have had in the state court, would be composed of middle-class white and Amish people from the suburbs with no knowledge whatsoever of the inner-city, and that they'd never believe me when the government had three cops who were going to testify to seeing me selling the drugs found. Eventually only one cop, officer King, testified to this.
My public defender tried to convince me that it would be in my best interest to allow him to have my case sent back to the state court under the condition that I'd plead guilty and accept the 5- to-15 years offered previously. I asked him, "Why would I take it now when I didn't take it then?" I also told him that it still did not change the fact that I'm innocent. I asked him to ask for the exact location of the "confidential location" officer King had testified about at my preliminary hearing. He told me that it was confidential and that it could not be disclosed. I told him that it was officer King who had arrested me and that he was not in any "confidential location." He told that that didn't matter.
We had anticipated that this would happen, and we knew that if the above offer was made, I was going to be set up to be indicted at a later time. Knowing that this public defender was not going to help me prove my innocence, I made the strategic decision to cop-out in the federal system, a plea that was subsequently withdrawn. Why cop-out in the federal system where I faced a sentence of life without parole plus 30 years, when I was offered a 5- to 15-year sentence in the state? To delay my trial.
We knew that the court would be compelled to allow the withdrawal due to the long sentence I faced. What happened to me prior to withdrawing my plea you may, or may not, find unbelievable, that's another story also. If I had to do it all over again, I would not change a thing. My credibility was never an issue. It still isn't. What is of major importance now is the credibility and trustworthiness of the government's only eyewitness, officer Timothy King.
The Bible says that we should be as shrewd as the snake. I played their game, and because of my strategic decision, I was accused by the prosecutor and Judge Gawthrop of manipulating the system. I am guilty of this, but they manipulated it first by framing me for a crime I didn't commit, and then by persecuting me because I had the audacity to claim innocence in a public forum -- the Philadelphia Inquirer.
There were many other violations in this case, both procedural and constitutional. A reading of the case demonstrates that the inequities and prejudice came from the police, the prosecutors, and the judge. The facts discovered after my trial and presented to you here, do not comply with the testimony or evidence that was presented against me at my trial. Had these facts been properly investigated, the only result would have been an acquittal. This case effectively illustrates that it is time to look at the realities of our criminal justice system which only punishes the poor and minorities of Philadelphia, and our country as a whole, with impunity.
As you read this, there are over two million people in prison. The only time one hears about injustice is when someone on Death Row is exonerated of the crime they were almost executed for. These people need all the help they can get! But, how about the other people who are in prison? Do you truly believe that the cops only frame people for murders? Do you truly believe that mistakes are made only in death penalty cases? My case shows you otherwise.
If even one percent of the people in our country's prisons are innocent, that would mean that we could have 20,000 innocent men and women currently serving long sentences because most of this nation's prisoners are nonviolent drug offenders. They're only in prison because of Americas "War on Drugs." I won't even go into the AEDPA (Antiterrorism Effective Death Penalty Act). I regard it as an insult to American jurisprudence. At least a death penalty inmate has an attorney to represent him throughout his appeals and habeas motions -- not so with the rest of us.
I could go on but now you know the whole story. Before I end my story, I'd like to mention that my elderly mother, Bany, has been a great asset to me these last nine years. Last year she was even able to get the deed to 2955 North Orkney Street that shows that Mrs. McCall and her late husband Joseph did own this property for many years. Why couldn't Mr. Berry do this?
Finally, I just want to say that there are many organizations out there that claim to assist prisoners. Most do not. Those that do will only assist you if you are on death row. Even then, you better have some blood (biological evidence) to test, because if you don't, you're on your own.
I will appreciate any consideration you can give this matter.
© Justice Denied
