It has become virtually a truism of criminal law (coined by Harvard Law School's Alan Dershowitz) that prosecutors and police teach their witnesses not only to sing, but also to compose. Some of those witnesses though, later have second thoughts and, after giving damning testimony against a defendant, recant.
Two perjury prosecutions scheduled to commence Monday in Hampden County Superior Court will test the ease with which police and prosecutors are able to retaliate against witnesses who come forward with the truth, having first been coerced to testify otherwise.
The prosecutions are being overseen by newly elected District Attorney Anthony Gulluni, who took over the case this past January from his predecessor Mark G. Mastroianni. The charges grow out of the recantations by two prosecution witnesses, Nathan Perez and Giselle Albelo, whose initial testimony proved essential in the December 2010 murder conviction of Charles Wilhite.
At that first trial Wilhite was found guilty for the October 2008 shooting murder of Alberto Rodriguez outside of the Pine Street Market in Springfield; he was sentenced to life in prison. But following a successful motion for retrial, Wilhite was found to be innocent in his second trial in 2013, having spent 40 months in prison.
Wilhite’s new trial motion was based primarily on an August 2011 affidavit and subsequent testimony at a hearing in which Perez swore that he had been pressured by the police to make a statement incriminating Wilhite and later, facing pending criminal charges of his own, “falsely testified that Charles Wilhite was involved in the shooting of Alberto Rodriguez,” despite Perez having “no personal knowledge of Charles Wilhite being involved in the shooting in any way.”
Perez and Albelo each initially testified (at different times – Perez at the trial; Albelo in front of the Grand Jury) to witnessing Wilhite’s co-defendant, market-owner Angel Hernandez, hand a gun to a dark-skinned man fitting the description of Wilhite, who then fired several shots into Rodriguez’ car at short range outside the market. Perez and Albelo’s testimonies were deemed crucial, by Superior Court trial judge Peter A. Velis, to the success of the prosecution. They had, for one thing, picked out Wilhite’s photograph during witness interviews conducted by Springfield Police homicide detectives Anthony Pioggia and Steven Tatro.
Both witnesses later recanted, however, claiming that Pioggia and Tatro had unduly pressured them to identify Wilhite as the shooter, using improper photo array techniques and incentives of immunity from prosecution.
Detectives Pioggia and Tatro had first visited the residence of Ms. Albelo (a 23 year old single mother at the time) nearly three weeks after the murder – they still had not identified a suspect in the shooting. Despite the fact that she was not a witness to the murder, and had not contacted the police about it (as several others, all of whom identified a Hispanic male running from the scene of the crime with a weapon, had done), Pioggia and Tatro brought her into the police station for an “interview.” Though they had available the necessary equipment to record this interview, they failed to do so. In her statement taken at this time, Albelo provided clearly fabricated details of the shooting, calling into question her reliability as a witness. Nonetheless, Pioggia and Tatro proceeded to present her with an eight photo array of possible suspects. Having been coached by the detectives, Albelo selected Wilhite’s photo.
Shortly after testifying for the prosecution in front of the Grand Jury that indicted Wilhite, Albelo recanted and said that she was not at the Pine Street Market at the time of the shooting. In an affidavit presented to the court, Albelo claimed, “At the time of this interview for a statement I was in fear and felt extreme pressure from police to provide certain details.”
With their principal witness having recanted, Detectives Pioggia and Tatro approached 19 year old Perez (he was just 17 when he witnessed Rodriguez’ shooting), who was, conveniently, at the time incarcerated at the Ludlow House of Corrections on probation violations. Perez swore, in his affidavit and again in his testimony at the hearing on Wilhite’s request for a new trial, that Detective Pioggia had threatened him with being charged for “accessory after the fact” for his picking up two bullet shells from the crime scene. According to Perez, the first time that detectives Pioggia and Tatro presented him with an array of suspect photographs, Perez failed to identify Wilhite. Afterwards, detective Pioggia presented Perez a single photo (that of Wilhite) and said, “You know him,” before labeling the photo “shooter.” As later laid out in court proceedings, when Perez initially refused to recognize Wilhite, Pioggia “informed Perez that as an accessory to murder, Perez could receive the same sentence as the perpetrator,” and then “suggested that Perez’s pending charges could be dropped.” Only then did Perez initial the photograph and adopt Pioggia’s theory of the case, that Wilhite was the murderer.
Judge Velis’ 17-page opinion on the motion for new trial, issued May 14, 2012, carefully wended its way through the thickets of fact and law that characterize one case among many, in what defense lawyers and criminal law experts see as an epidemic of wrongful convictions. Velis not only found Perez’ partial recantation credible, but he went even further: “I do not credit Detective Pioggia’s testimony that he never discussed with Perez the possibility of being charged as an accessory…” Nor, wrote the judge “do I credit [Pioggia’s] testimony that he never stated, ‘You know him,’ while pointing to the defendant’s photograph.” The judge found it “implausible that a detective with [Pioggia’s] training and experience” would not have communicated to the witness information as to what the detective believed the facts to be. “It strains credulity that Detective Pioggia never spoke to Perez” about such information that would have let the witness know what the detective expected to hear from the witness. Indeed, said the judge, “Pioggia would have had the motive to improperly intimate to Perez” certain information.
But, in dealing with the conduct of the detectives in questioning the witnesses, particularly Perez, the judge ducked the question of whether Detective Pioggia had engaged in intentional misconduct in his two interviews of Perez in the House of Corrections. “To be clear, there is no unequivocal, immutable evidence to suggest that the identification was the product of actual, objective coercion, and these findings are in no way meant to traduce Officer Pioggia.” In the same vein, the judge denied that the trial prosecutor, Stephen Spelman, had engaged in any threatening conduct toward Perez in order to get him to cooperate at trial.
In exercising his discretion to grant a new trial Judge Velis recognized that “justice may not have been done” in Wilhite’s first trial. Unfortunately, he stopped short of making sufficient findings and conclusions so as to assign blame and perhaps censure the police and prosecutorial conduct which brought about this miscarriage of justice in the first place. Ultimately, the police detectives and the prosecutor were given what appears to be a general absolution, despite judicial findings in seeming conflict, thus paving the way for more coerced testimony, and more wrongful convictions down the line in Springfield and elsewhere in The Commonwealth.
Wilhite was tried for a second time on January 7, 2013. The jury acquitted. As a result, the district attorney indicted both Perez and Albelo for perjury – perjury that was, according to them, the result of improper pressure put upon them. The perjury trials are scheduled to begin this coming Monday, March 23. Presumably Albelo and Perez will testify and explain to the juries precisely how and why it came about that they lied at the Grand Jury and at Wilhite’s first trial, respectively.
Meanwhile, Wilhite, upon being acquitted, filed a federal civil rights lawsuit against the two detectives – Anthony Pioggia and Steven Tatro – and the City of Springfield, alleging a violation of his civil rights by the two detectives. In his complaint, Wilhite’s attorney, Boston civil rights litigator Howard Friedman discloses a crucial fact not dealt with in Judge Velis’ opinion: “None of the identifications or witness interviews that led to evidence against Mr. Wilhite were audio or video recorded,” despite taking place in police stations equipped to do so.
It is time for either the state legislature or the Supreme Judicial Court of Massachusetts to require that all suspect and witness interviews be recorded so that there can be no doubt what was said by, and to, the interrogators. The high court already requires that custodial interviews be recorded, or else that juries be instructed that unrecorded confessions be treated with great skepticism. The Wilhite case makes clear that the same skepticism must be extended to witness interviews, especially when the witnesses are vulnerable to prosecutorial pressures. Students of the Commonwealth’s criminal justice system will be following the upcoming perjury trials with great interest, and concern.
Harvey Silverglate, a criminal defense and civil liberties lawyer, is “of counsel” to the Boston law firm of Zalkind, Duncan & Bernstein LLP. He is the author, most recently, of "Three Felonies a Day: How the Feds Target the Innocent" (Encounter Books).Timothy C. Moore is Silverglate’s paralegal.
