Rare Ruling to Let Man Who Pleaded Guilty Sue

     MANHATTAN (CN) - New York City must face claims that it concealed evidence from a Bronx man who pleaded guilty to attempted robbery after his attempted murder conviction was thrown out, the 2nd Circuit ruled in a rare en banc decision.     
     An attorney for Michael "Marcos" Poventud said that her client is "elated" about the opportunity to pursue his allegations.
     "He's been fighting for justice since his arrest back in 1997," lawyer Julia Kuan said in a phone interview. "So this news means that he can finally have his trial where he can show how the police violated his constitutional rights, and how they damaged his life. "
     The charges stemmed from the March 6, 1997, robbery and shooting of livery cab driver Younis Duopo.
     Police found a wallet on the floor of the cab that had two ID cards for Poventud's brother Francisco, and Duopo told investigators that the man pictured in the photos matched his shooter.
     When police later learned that their suspect had been incarcerated at the time of the crime, suspicion turned to Poventud.
     Police arranged four photo lineups including Poventud, who said he was playing video games at a friend's house on the night of the robbery, and Duopo fingered Poventud only on the last attempt.
     Police disclosed Duopo's failed attempts at identifying Poventud before trial, but they did not preserve the photo array in which Duopo picked out his brother Francisco.
     After five days of deliberations, a jury convicted Poventud and a co-defendant, Robert Maldonado, of attempted murder and other charges.
     Poventud was sentenced to 10 to 20 years, but he caught a break when the retrial of his co-defendant revealed Duopo's earlier misidentification of Francisco Poventud.
     Kuan said that she had been serving as Maldonado's lead attorney when she noticed the discrepancy and later won that co-defendant's acquittal. The jury had been so convinced of Maldonado's innocence on a second try that each took turns hugging him after delivering the verdict, she said.
     Maldonado later filed civil rights claims that were settled for $2.5 million, she said.
     Based on the new evidence, Kuan said she took up Poventud's cause and successfully challenged his conviction under Brady v. Maryland, the landmark Supreme Court ruling obligating prosecutors to hand over exculpatory evidence.
     When prosecutors threatened to pursue a lengthy appeals process, Poventud opted to win his immediate release from prison by taking the "Hobson's choice" of pleading guilty to the lesser charge of third-degree attempted robbery, she said.
     In 2007, Poventud sued New York City, the police officer and prosecutors for civil rights violations. A federal judge tossed that lawsuit by citing Heck v. Humphrey, a Supreme Court decision barring certain civil actions that challenge state or federal criminal convictions.
     After overturning that decision last year, the 2nd Circuit granted city lawyers another crack at an appeal before en banc panel of all 13 active judges.
     When originally reporting on that decision, the Wall Street Journal published an investigation reviewing the case's voluminous record, and it reported that an en banc panel had not been convened since December 2011.
     The paper also quoted Poventud as stating that he "desperately" wanted out prison when he pleaded guilty, lives on $697 a month, receives treatment for cancer and suffers from post-traumatic stress disorder for being sexually abused behind bars.
     Kuan said that Poventud's cancer is now in remission.
     On Thursday, a 9-4 majority gave Poventud the green light to pursue his civil suit.
     Writing for the majority, Judge Richard Wesley crafted a legalistic determination that Poventud's guilty plea does not undermine his civil rights claims.
     "Unlike malicious prosecutions, many violations of constitutional rights, even during the criminal process, may be remedied without impugning the validity of a conviction," the majority opinion states.
     Judges Robert Katzmann, Guido Calabresi, Rosemary Pooler, Robert Sack, Peter Hall Gerard Lynch, Raymond Lohier and Susan Carney joined the opinion.
     Standing out among those majority judges, Lynch penned a passionate concurring opinion about limitations of human knowledge and tragedies borne out of the U.S. plea-bargaining system.
     "Perhaps the police manipulation of the evidence led to an innocent man's conviction, but perhaps it unfairly strengthened the case against the real robber," Lynch wrote.
     Lynch compared Poventud's choice to that of John Proctor of Arthur Miller's drama "The Crucible," "who goes to the gallows rather than accept an offer that would let him go free in exchange for a false confession."
     "It is difficult to expect such heroism of mere mortals," the judge added. "Proctor, though based on a historical figure, is after all a fictional character, and even he first signed the false confession before having a change of heart. Poventud did what I suspect most ordinary human beings would do in his situation, even if they were innocent."
     The dissenting judges see a guilty plea as "not just a legal truth, but an existential one," Lynch added.
     Indeed, dissenting Judge Dennis Jacobs wrote that Poventud's 2006 plea "conclusively confirmed the jury's key findings of fact: that Duopo's ultimate identification of Marcos Poventud was sound and that Poventud's trial testimony (and that of his friends) was false." (Parentheses in original.)
     In a blistering conclusion, Jacobs wrote that the majority's ruling means that those "fairly convicted of serious crimes will seek and receive damages for being deprived of a better opportunity for perjury, while people who are actually innocent and exonerated based on new evidence have no cause of action for damages - not to mention the victims of crime such as Mr. Duopo, shot in the neck while on the job."
     Judges Jose Cabranes, Reena Raggi and Debra Ann Livingston joined Jacobs in that opinion.
     Judge Denny Chin concurred in part and dissented in part.
     Meanwhile, Kuan insists that her client still feels "humiliated" and "haunted" by pleading guilty, which she called "the only decision that he could make to save his life."
     Mordecai Newman, senior counsel for the city, said in a statement "we are reviewing the decision and considering our options."
     Kuan doubted the prospects for a future Supreme Court battle, stating that the case is not "cert-worthy."
     "The 2nd Circuit did not decide anything that was really new," she said. "They decided that his claim is not inconsistent with his guilty plea."
     It effectively means that questions of Poventud's guilt or innocence will be "irrelevant" to any future trial.
     "Even a guilty person is entitled to a fair trial," she added.