Yvonne Abraham wrote a compelling column in the Globe telling how Angel Ecchavia has just been granted a new trial after 21 years in prison for the first degree murder of a drug dealer in “the city of sin.” Ecchavia, like every other guy in prison, proclaimed his innocence. She writes: “No physical evidence linked him to the crime. He refused a plea deal, certain the truth would protect him.” She does not tell us what the deal was. I assume it might have been life in prison on a plea to second degree murder with a chance of parole after 15 years. Probably the best reason he went to trial is at age 27 he figured had to gamble that he could beat the charges.
The evidence was that six men were waiting in Isidoro Rogriguez’s apartment to buy drugs while Isidoro and his brother Daniel were out; two armed men went to an apartment where they held the six hostage, when Isidoro and Daniel returned they tied up Isidoro and threw him to the floor, and then took Daniel to the bathroom and murdered him. Isidoro identified Ecchavia as one of those men.
In her advocacy for Ecchavia Abraham makes the following assertions: “Isidoro tentatively identified a man named Mariano Bonifacio as one of the attackers, picking two different pictures of him from photo arrays. . . . Nor did prosecutors tell Echavarria’s lawyers about the possibility of another suspect, though the defense lawyer asked. It’s unclear, incredibly enough, whether police ever bothered to tell the DA about Bonifacio.” Reading that I thought “Pretty bad,” especially since it happened in 1994 at a time when this information was routinely given to defense counsel.
I went to the Supreme Judicial Court (SJC) decision of Commonwealth v. Echavaria on the matter and read the facts. Part of them stated: “Shortly after the killing [Isodoro] had picked out a person, who was not one of the men, from a photographic array, saying that he looked like one of them.” It is clear from that Abraham is incorrect. The police told the DA and the DA told Echavaria’s lawyers about the Banafacio matter since it was part of the trial record on appeal.
Abraham goes on to do a job on the defense counsel as being somewhat of a hack and incompetent. The SJC noted, “Isidoro was subjected to one and one-half days of intense cross-examination. Although he certainly exhibited the failings pointed out now by the defendant, and these were made evident to the jury as well and emphasized by counsel in his cross-examination and in his closing argument,. . . “ which presents him in a different light.
Abraham twisting the facts in her column does not speak well for her candor.
The Echavaria decision has a similar fact situation to that of the Taveres and Hernandez cases. In that case there were no witnesses to the murder of Daniel Rodriguez. The two armed men brought the other men in the apartment into other rooms where they were bound. Daniel was left behind. Daniel was then taken into the bathroom where he was “shot twice in the head, apparently at close range and through a pillow that had been used to muffle the noise of the shots.” No one knew who fired the shots or any circumstances relating to what happened prior to the shooting.
The court noted that although no one saw the shooting the evidence was sufficient to support the inference that one of the two men did the shooting and it was part of a joint venture. The jury had to find “that the defendants together actively participated in the commission of the crime or crimes charged, sharing the same mental state or intent. . . .” (My emphasis.)
That is pretty much the instruction given in the Taveres and Hernandez cases. The problem is in Taveres we learned that more is required. The jury can certainly find the person who pulled the trigger had the intent to bring about the victim’s death. But what about the other person or persons present; what was his or their intent?
The Taveres decision states the defendant who did not do the shooting: “may have had different mental states or levels of culpability with respect to the act.” It said because Taveres did not do the shooting “the evidence of the [Taveres] intention was open to a number of different interpretations.”
Would not that be the case in every joint enterprise where there is no evidence about what happened at the actually killing; that is, no evidence as to who pulled the trigger? The Taveres decision said: “(1) the judge did not explain to the jury during her instruction on joint venture that the codefendants could be convicted of different offenses; and (2) the evidence relating to the defendant would have supported an instruction on involuntary manslaughter, . . . “ I do not know if that was done in the Hernandez case but it seems it should have been.
Two guys A and B hold up C. Walking away one turns, shoots and murders C. There is no evidence as to who pulled the trigger. We know the mental state of the one firing the gun. How can we say the other had the same mental state? Without more does not it come down to guessing? Should juries be able to guess?
If A and B planned not to shoot C. But A double crossed B and shot C. B should not be held to the same culpability as A.
The Taveres case makes it clear that the words in the jury instructions “shared the same mental state or intent” are not enough in these joint venture cases. The jury must be better informed. The instructions should be less boilerplate and more designed to fit the facts. That is the way it should be.