A gunman’s conviction within the homicide of a 2-year-old boy is about to be reviewed by the US Supreme Court — with out essential prosecution proof that Bronx District Attorney Darcel Clark refused to introduce, The Post has realized.
Clark “withheld consent” for ex-Bronx Assistant District Attorney Adam Oustatcher to submit a 33-page transient to the excessive court docket, though tragic tot David Pacheco Jr.’s mother needed the paperwork filed, the now-former prosecutor wrote in authorized papers.
Clark’s transfer got here regardless of imprisoned killer Darrell Hemphill granting his consent to the submitting and Clark agreeing to let eight teams of out of doors advocates file submissions on Hemphill’s behalf, Oustatcher wrote.
They embrace the National Association of Criminal Defense Lawyers, the Innocence Project, the American Civil Liberties Union, the Constitutional Accountability Center and a bunch of legislation professors, on-line court docket information present.
In a one-sentence ruling forward of oral arguments set for Tuesday, the Supreme Court final week denied Oustatcher’s movement for consideration of his “friend of the court” transient, with out rationalization.
In his movement, Oustatcher stated that authorized papers filed by each Hemphill’s legal professionals and Clark’s workplace “omit extensive and significant portions of [Hemphill’s] trial to such a degree as to not provide a fair and accurate record of the underlying proceedings.”
In his proposed transient, Oustatcher — the lead prosecutor in the course of the 2015 trial — cited proof of a “carefully orchestrated fraud” led by Hemphill to border one other man, Nicholas Morris, for opening hearth following a fistfight close to Harrison and West Tremont avenues on Easter Sunday 2006.
Pacheco was struck as his mom, Joanne Sanabria, drove him and a minivan full of children in matching outfits on their option to church and a household dinner, and the toddler died in her arms in a taxicab because it raced to a close-by hospital.
The prices in opposition to Morris led to a 2008 mistrial and a subsequent plea discount in a case overseen by then-Bronx DA Robert Johnson, who’s now a Bronx Supreme Court Justice.
Oustatcher, who started re-investigating Pacheco’s slaying in 2012, described that prosecution as “horribly botched” and Justice, “a testament to gross professional incompetence marred by questionable eyewitness identifications not subjected to any scrutiny, critical witnesses not interviewed, and a shocking refusal to test crucial DNA evidence.”
In his enchantment, Hemphill, 43, contends that his Sixth Amendment proper to confront his accuser was violated when prosecutors launched Morris’ responsible plea as proof at his trial with out calling Morris to the witness stand.
Morris — who admitted possessing a .357 Magnum revolver, and never the 9 mm pistol used to kill — Pacheco — was barred from re-entering the US following a visit to Barbados.
Sanabria requested Oustatcher to argue in opposition to Hemphill’s enchantment however Clark’s workplace opposed his intervention in a June 24 e mail, Oustatcher wrote in his movement.
During a July 16 teleconference, Clark’s deputy basic counsel, Gina Mignola, cited a state rule that bars legal professionals from representing shoppers in issues associated to work they did earlier for the federal government, Oustatcher wrote.
But even after Oustatcher stated there was no “attorney-client relationship” between him and Pacheco’s mother, Clark’s workplace “continued to withhold its consent without further explanation,” in keeping with his movement.
In a ready assertion, a Clark spokeswoman stated Monday, “We are not commenting on our filings or anything else, as we will be arguing the case before the court tomorrow.”
A court docket system spokesman additionally stated, “As this can be a pending matter, it might be inappropriate for [Johnson] to remark. “
Oustatcher declined to remark and stated Sanabria additionally didn’t need to focus on the case.