Earlier this week, a judge in the Bronx ruled in the case of Edward Garry, who has served more than twenty years in prison for the murder, in 1995, of a retired N.Y.P.D. detective. The judge’s opinion ran sixty-one pages, but it was five words that mattered most: “a new trial is ordered.”
In the fall, I wrote about mounting problems in the case against Garry, who is now forty-two years old and an inmate at Sing Sing Correctional Facility, in Ossining, New York. Garry has always maintained his innocence, and new evidence suggested that he didn’t commit the murder. Even one of the detectives who helped convict him, Peter Forcelli, has come to believe that Garry had nothing to do with the crime, and that his own police work helped to put the wrong man in prison.
The order for a new trial was a major break for Garry and his lawyers, who have spent years fighting his conviction in court. But Garry’s parents said that, when they spoke to their son this week, he remained frustrated—he had hoped that the judge would grant him a full exoneration, with no chance of being retried for the crime. “Is he excited over it? Hell, no, because it’s not what he really wanted,” his father, Edward Garry, Sr., said.
Instead, Garry is procedurally back where he was in 1995: the indictment against him still stands, but he hasn’t been convicted. At this point, the Bronx District Attorney’s office, which obtained Garry’s original conviction, has three options: it could consent to drop the charges against him; appeal the judge’s decision by arguing that it is legally flawed; or choose to retry Garry for the murder. In a statement, the Bronx District Attorney, Darcel D. Clark, initially told me that the office was considering only the latter two courses of action. (Later, the office clarified that it was weighing every option.) Clark did not seem swayed by the evidence that Garry had presented. Her office “thoroughly reinvestigated the case,” Clark said. “Notably, the court strongly rejected the defendant’s claim that he is actually innocent of the murder.”
The “strongly rejected” is overstating it. The burden for proving innocence after a conviction is high, and a preponderance of conflicting evidence will not legally suffice. In his decision, Justice Michael A. Gross, of the Bronx Supreme Court, wrote that, while the “defendant has presented conflicting evidence which casts doubt on his guilt, he has not proved that he is innocent.” But Gross also found that the Bronx District Attorney’s office had violated Garry’s due-process rights by not handing over evidence about another suspect prior to Garry’s trial. “This evidence of possible third-party culpability was exculpatory in nature, and would have been material to the outcome of the trial,” Gross wrote.
So why has the D.A.’s office dug its heels in on this case? Its fierce opposition to clearing Garry’s name illustrates a difficulty inherent in seeking justice for wrongful convictions: the offices that seek convictions are, years later, the same ones tasked with fairly assessing whether they might have been wrong.
District attorneys’ offices aren’t like other political offices in this respect. Presidents and governors often make their mark by reversing predecessors’ initiatives. (Donald Trump, for instance, is undoing a slew of Barack Obama’s executive orders.) But a district attorney has an interest in upholding the work of those who held her office before her. One reason for this is logistical: a decision in the justice system must have some finality, because it would be impossible to relitigate every case. The adversarial trial system, which rewards prosecutors for convictions, also makes it tough for district attorneys to think of defendants as possibly innocent. And prosecutors enjoy a great deal of discretion with little oversight; a wrongful conviction, particularly one caused by a prosecutor’s error or misconduct, could suggest that they have too much discretion.
Still, if Clark’s office decides to pursue another trial against Garry, it may have a tough time proving its case. To start with, juries in the Bronx are now more likely to side with the defense than with the prosecution, a shift from the mid-nineteen-nineties, when Garry was tried. The prosecution’s case remains close to what it was originally. After the murder, which took place as part of a holdup gone wrong at a bodega on Laconia Avenue, two bystanders who were present at the time of the robbery picked Garry out from books of mug shots. They said, with varying degrees of certainty, that he was the man who’d killed the retired detective, whose name was Oswald Potter. There is no physical evidence connecting Garry to the crime.
The defense case, meanwhile, has become stronger and stronger over the years. Three men have now confessed to taking part in the robbery, and all three have said that there was a fourth man involved and that he was not Garry. (Police always knew there was more than one perpetrator, but arrested only Garry at the time.)
Furthermore, Garry’s lawyers, Rebecca Freedman and Glenn Garber, of the Exoneration Initiative, have found old police reports suggesting that a man named Steven Martinez was considered as a suspect in the case prior to Garry’s trial. In 1996, an informant told Forcelli, the detective, that the previous summer he had seen a flustered Martinez waving a gun and saying, “I just shot some guy on Laconia Avenue.” Forcelli requested a fingerprint comparison between Martinez and the crime scene (it came back negative), alerted his superiors at the police department, and twice spoke to the prosecutor on Garry’s case about Martinez. Yet the prosecutor did not pass on the Martinez information to Garry’s defense lawyer before the original trial. Prosecutors are required to disclose evidence they have that is favorable to the defendant and material; Gross found in his decision that this was both, and that, therefore, Garry’s rights had been violated.
Martinez makes for a viable alternative suspect: he looked a lot like Garry; records show that he was in the Bronx around the time the murder happened; and one of the confessed robbery participants has identified Martinez, in a photograph, as being the man who shot Potter. Still, there are holes in the Martinez theory. The gun that Forcelli’s informant said Martinez was waving was not the type that was used to kill Potter, and the informant’s story of Martinez’s account is layered with hearsay—as Gross pointed out in his decision. Martinez has not been arrested for Potter’s murder. Last year, in a conversation from prison, he told me that he was not involved in it. Even so, the very existence of Martinez, along with the other evidence, could be enough for a jury in a second trial to find reasonable doubt that Garry was the murderer.
I visited Garry at Sing Sing last year, and it was clear to me that the numerous delays in his case were taking a toll. He was polite, but rarely made eye contact. He’d stopped eating with other prisoners, had given up on exercising, and slept from 4 A.M. to noon.
He was angry about being convicted, of course, and about losing so much of his life to prison. But he was perhaps angrier that it was taking so long to correct that wrong. He’d formally appealed his case four times. The hearings in this fifth effort began two and a half years ago, with months passing between court dates. Last year, a new conviction-integrity unit within Clark’s office began looking at Garry’s case, which could have sped things along. But the unit still hasn’t come to a public conclusion, and some of its efforts have seemed repetitive, with lawyers reinterviewing witnesses who’d already testified in front of their colleagues. Forcelli, for instance, testified in the case in 2014, 2015, and this fall. He’s been separately questioned, twice, by the conviction-integrity unit’s lawyers.
Garry’s future is now again in the hands of the District Attorney. His lawyers plan to ask for bail, so that Garry can wait outside of prison while Clark decides what to do next. “He’s tired,” Garry’s father said of his son. “He’s worn out. They’ve beaten him down in prison.” Of the prosecutors, he said they were blind to the “damage” they’d done to Garry and his family. “Will he be able to be normal again? He’s been in the cage for twenty-three years. I don’t think so.”