IS ELMO RIVADENEIRA REALLY GUILTY?
A question that will be explored in this page. Every statement written in this page is supported by court transcripts and documents that were turned over at some point by the prosecution to the defense. Should any person question any statement made here I invite you to oppose it with evidence not opinion. Surely, the crimes involved here are of the worse kind, but equally as bad is to be wrongly accused and jailed for such crimes.
The New Jersey and New York city prosecutors’ misconduct in distorting and withholding exculpatory evidence of third-party guilt from a joint investigation with New York and the FBI prejudiced Elmo Rivadeneira resulting (or creating great doubt) in his conviction for the attack on Alexis T. A crime Elmo sits in prison for today in New Jersey.
It has been 10 years since Elmo's trial and conviction on the Alexis T. attack that occurred in 2005. This page quotes from a recent Habeas Corpus Petition filed on Elmo's behalf suing the state of New Jersey for Elmo's release.
The Prosecution's complete case against Elmo on the Alexis T. matter was predicated on a mixture of skin cells (DNA from a minimum of 2 people but as many as 3 to 4 people) swabbed from a stocking found on the ground and presumed to be the stocking worn by the man who attacked Alexis T. No human hair or saliva was found on the stocking. Alexis T. did not identify Elmo as the man who attacked her. The search of Elmo's home, storage, and vehicles failed to reveal any incriminating evidence that Elmo attacked Alexis T. Elmo's only defense raised at trial, via opening and closing arguments, was that he was not the man who attacked Alexis T. That skin cells on the outside of the stocking alone did not prove he attacked Alexis T. That the stocking, if anything, was possibly left at the scene by the true attacker. Elmo was known to wear stockings over his head from time to time when working on cars in his Kearny, New Jersey garage.
Now, the prosecution's inexplicable misconduct in distorting and withholding third-party guilt evidence, DNA reports and information that supported Elmo's trial defense and invalidated the prosecution's complete case, precipitated the jury's adverse factual findings that Elmo was the man who attacked Alexis T based on skin cell DNA evidence alone.
Stripped to its essence, the prosecution's case was that the skin cells on the stocking proved Elmo was the man who attacked Alexis T. However, the evidence withheld and distorted by the prosecution clearly contradicted this notion, for three reasons:
First, the evidence which the prosecution distorted and withheld from Elmo's defense proved that a six foot white male with blue eyes had left Elmo's disconnected cell phone, with Elmo's DNA at another attack, the H .T. New York attack, that was similar and linked to the Alexis T. attack on trial (Elmo is 5'7" tall, Hispanic male, with brown eyes). The Prosecution soon after Elmo's arrest incorrectly informed Elmo and the public that Elmo matched the description of the H.T. attacker and that Elmo's blood was found on the cell phone left at the scene of the H.T. attack. Withholding the reports that clearly proved that Elmo's blood was not on the cell phone and that Elmo did not match the description of the H.T. attacker.
Second, the evidence which the prosecution distorted and withheld by extension precluded evidence from Elmo's trial that proved that enclosed in the cell phone left at the H.T. attack was a SIM card that was linked to another similar attack, the N.W. New Jersey attack. N.W. identified Alex Cancinos, a prosecution witness against Elmo at the Alexis T. trial, as her attacker. A fact that the jury never got to hear. N.W. also identified the same white male with blue eyes that H.T. Identified Dean Crawford, as her second attacker. N.W. was attacked by two men. The FBI showed N.W. a photo of Elmo and N.W. did not identify Elmo as any of her attackers. The prosecution unbelievably, with no evidence, managed to get Elmo indicted on this attack, later dismissing the case after convicting him on the Alexis T. matter. Alex Cancinos was arrested and indicted on the N.W. attack and later the case was dismissed for his testimony against Elmo on a letter he burned and claimed Elmo mailed him from jail. (Now, it is worth commenting here that this part of the case about a bizarre mailed letter and the later destruction of it, will be further discussed later in this page. Not to mention the fact that at the time of the trial the stocking and a number of other key pieces of evidence were lost by the prosecution and never presented to the jury.
Third, the DNA evidence distorted and withheld by the prosecution proved that in another case, the K.R. New York attack, that was similar and connected by the FBI via modus operandi to the Alexis T. attack, excluded Elmo as being the Alexis T. attacker. The FBI and investigation team believed that the same man who attacked Alexis T. also attacked K.R. The man who attacked K.R. used his scarf to blind fold K.R. K.R. managed to hold on to the scarf. DNA testing on the scarf revealed that Elmo's DNA was not on the scarf, another man's DNA was. However, the prosecution prior to the Alexis T. trial informed Elmo's defense that Elmo's DNA was on the scarf.
While the prosecution introduced various testimony highlighting general connections between Elmo and the Alexis T. attack, and testimony from Alex Cancinos on a bizarre letter, when scrutinized, the prosecution's case withers in face of the withheld evidence. Had the prosecution not withheld and distorted this third-party guilt evidence the jury would have been obliged to return verdicts of not guilty.
SUPPORTING FACTS AND ANALYSIS
The prosecution's misconduct when the prosecution withheld and distorted evidence from the H.T., and N.W. attacks deprived Elmo of a meaningful opportunity to present a complete defense and due process.
It is important to understand that Elmo's arrest and indictment on the Alexis T. attack was predicated on a joint investigation between New Jersey, New York City, and the FBI. In short, between 2003 and 2005 a number of attacks occurred in New Jersey and New York that the authorities believed were committed by the same person due to the modus operandi of the attacks. However, the authorities were only able to physically link three of the attacks to each other: the N.W., H.T., and Alexis T. attacks.
The physical connections are as follows:
In July, 2004, N.W. was attacked and her SIM card, among other items, were taken. On September 15, 2004, H.T. was attacked and N.W.'s SIM card was discovered enclosed in a cell phone dropped during the H.T. attack. On May 17, 2005, Alexis T. was attacked and DNA swabbed from a stocking found on the ground of the location Alexis T. was ultimately released could not be excluded as matching the DNA profile extracted from the cell phone left at the H.T. attack. Thus, this created a conclusive physical link that these three attacks were related to one another.
The attacks stopped, the last attack occurring in August of 2005. The cases became cold. These unsolved crimes remained the focus of a joint investigation between Hudson County, New Jersey, New York City, and the FBI authorities. These three agencies did not simply share information but intimately worked on each other's cases and together followed up on leads. Over 100 reports documented the joint investigation of these unsolved attacks. Including the joint cooperation of the New Jersey and New York prosecution offices. It was during these joint investigations that Elmo became a suspect and which ultimately led to Elmo's arrest. A year after the last attack occurred, Hudson County, New Jersey detectives while investigating the New York H.T. attack decided to investigate the cell phone that was dropped in the H.T. attack further.
Originally, New York investigators concluded that the owner of the cell phone could not be discovered through the cell phone identification numbers and it sat for two years in police storage. New Jersey retained the cell phone from New York on September 22, 2006, and eventually transported the phone to the FBI office in Newark, New Jersey where further investigation revealed that the cell phone belonged to Lauren Teicher, an ex-girlfriend of Elmo. Teicher informed the FBI that she had purchased the cell phone for Elmo sometime in 2002. On September 28, 2006, New Jersey, New York, and the FBI authorities arrested Elmo in Hudson County, New Jersey on a warrant from New York. While awaiting extradition Elmo consented to DNA testing. In accord with the DNA reports Elmo's DNA was found to match the DNA that was discovered on the cell phone and the stocking. Soon after, Elmo was charged on the Alexis T. matter and extradition to New York was paused. The New Jersey prosecution introduced testimony regarding the H.T. and N.W. attacks to the grand jury to obtain an indictment against Elmo on the Alexis T. attack.
Elmo's Trial Attorney during the discovery phase requested that all exculpatory evidence on the H.T. and N.W. attacks be disclosed. The New Jersey prosecutor via documents and filings informed the defense that Elmo's blood was found on the cell phone discovered at the H.T. attack, that Elmo matched the description provided by H.T. of her attacker, that N.W.'s SIM card was enclosed in Elmo's disconnected cell phone discovered in the H.T. attack, and that N.W. identified Alex Cancinos as one of the men who attacked her. A friend and co-worker of Elmo.
Now, it was under this understanding of the evidence that Elmo prepared for the Alexis T. trial, believing that the evidence flowing from the H.T. and N.W. attacks were inculpatory to his defense. It was not until Elmo was convicted and extradited to New York that he learned that the prosecution had misled him and his attorney. Elmo did not even come close to match the description of the man who attacked H.T., H.T. provided only one description of her attacker, six-foot white male with blue eyes, and even identified a white male with blue eyes as her attacker, Dean Crawford. The blood on the cell phone did not belong to Elmo but the victim H.T. The prosecution withheld the DNA notes that clearly stated that the blood on the cell phone belonged to the victim H.T., and that Elmo's skin cells were embedded in the speaker and keyboard of the cell phone. NOW, on its face, the difference between blood and skin cells may not seem significant. However, in Elmo's case it made a world of a difference. When considering the fact that the cell phone was Elmo's in 2002, and that it had been disconnected early 2003, the fact that Elmo's skin cells could be scraped from the speaker and keyboard of his old cell phone proved nothing. Blood on the other hand would have proven very suspicious since H.T. and her attacker fought during the attempted abduction and the phone was left at the scene.
Which brings Elmo here. The withholding and distorting of DNA reports and information did not only deprive Elmo of third-party guilt evidence which would have supported Elmo's sole defense but it completely altered Elmo's trial preparation and defense. If the jury had heard evidence that a six-foot white male with blue eyes had left Elmo's DNA at the H.T. attack, that the state's witness Alex Cancinos was identified as working with this six foot white male with blue eyes in the N.W. attack, attacks that were physically linked to the Alexis T. attack, there is a reasonable probability that the jury would have returned a more favorable verdict on Elmo's behalf.
Now, once Elmo learned of this evidence he filed a post-conviction relief application in the state trial court and it was subsequently denied with no evidentiary hearing. Elmo appealed, and the appellate court affirmed. The New Jersey Supreme Court denied certification. However, the state Appellate Court incorporated inaccurate assumptions and selected pieces of evidence not supported by the record in making factual determinations on the strength of the prosecution's case against Elmo, and failed to properly consider all relevant evidence disclosed in Elmo's petition before making factual and legal conclusions. Instead, the State Court in a vacuum focused on the Alexis T. attack disregarding the third-party guilt evidence. Thus, the State Court effectively failed to properly consider Elmo's petition that he was denied his constitutional right to have a meaningful opportunity to present a complete defense and due process when the prosecution withheld and distorted relevant and material third-party guilt evidence from a joint investigation with New York and the FBI. The state Court's reasoning that the withheld evidence did not challenge the prosecution's DNA case defies all logic and is objectively unreasonable. The presentation of DNA evidence did not close the book on Elmo's case as the State Court indicated in its reasoning. Although it may be that a rational jury can convict based solely on DNA evidence, it is another thing to say that after the introduction of DNA evidence, no amount of prejudice will deny Elmo a fair trial. In any event, the State Court's Understanding of the DNA testimony was flawed. The State Court held that the stocking held Elmo's DNA on the inside and Alexis T.'s DNA on the outside. Holding that the DNA evidence was compelling and uncontested by the withheld third-party guilt evidence.
This mischaracterization of the DNA testimony was unreasonable in light of the facts testified by the prosecution's experts and the complete trial record. The State prosecution's experts testified that the stocking when examined was dirty and soiled in card board debris, had a mixture of DNA from skin cells on both sides from a minimum of two people but as many as three to four people. The prosecution's expert testified that female-DNA was not conclusively found on the stocking, testifying that there was more DNA contributed to the outside of the stocking compared to the inside of the stocking, which held an equal amount of DNA. Testifying that Alexis T. 's DNA profile, although not a match, could not be excluded from either side of the stocking's mixtures of DNA. The prosecution's expert testified that the statistical probabilities that it was possibly Alexis T.'s DNA on the stocking was not high under DNA standards. Elmo's DNA, although not a match, could also not be excluded from the mixture of DNA from the inside of the stocking. Regarding the outside of the stocking, Elmo's DNA was a match within a reasonable degree of scientific certainty.
In other words, the prosecution's expert testified that Elmo's DNA was conclusively on the outside of the stocking, and that Alexis T.'s DNA was not conclusively on either side of the stocking. No human hair or saliva was found on the stocking. No one can testify how or when Elmo's skin cells got on the stocking. Although Elmo was known to wear stockings over his head for work.
The state Appellate Court also mischaracterized Elmo's connection to the location Alexis T. was released. Elmo had no connection to that location and the complete trial record supports that conclusion. The state Appellate Court also mischaracterized the extent of the joint investigation, and the fact that the evidence was withheld and distorted by the prosecution and its team. Elmo's claims were supported by the record and credible government documents but ignored by the state Courts. The state Appellate Court chose to rely on unsubstantiated statements made into the record by the prosecution and its own misunderstanding of the DNA testimony.
The prosecution's withholding and distorting of evidence did not stop at the H.T. and N.W. attacks. The K.R. attack, could not be physically linked to the Alexis T. attack. However, the FBI crime analyst concluded that the same person who attacked Alexis T. also attacked K.R. The K.R. attack was also investigated jointly with the Alexis T., H.T. and N.W. attacks. During the Alexis T. discovery phase the defense also requested exculpatory evidence be disclosed on the K.R. attack. The prosecution via reports and communications informed the defense that Elmo's DNA was found on the scarf that was used to blindfold K.R. (the scarf belongs to K.R.'s attacker which he left with K.R. when he released her). It was under this understanding of the evidence that Elmo prepared for the Alexis T. trial, believing that the evidence flowing from the K.R. attack was inculpatory to his defense. It was not until Elmo was convicted and extradited to New York that he learned that the prosecution had misled him and his attorney. Elmo's DNA was not on the scarf another man's DNA profile was. Should the jury had heard that the investigating team including the FBI crime analyst believed that the same man who attacked K.R. also attacked Alexis T. and that Elmo's DNA was not on the attacker's scarf that the attacker had used to blind fold K.R. A scarf that was not found on the ground but was left with the victim K.R. which she turned over to the police soon after her attack the jury would have found Elmo's defense more credible that his DNA was left at the Alexis T. scene by the true attacker.
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