Running Updates on the April 10-11 Evidentiary Hearing Note: These are informal running updates to keep people informed and are not official reports of the DWSC. April 9, afternoon: commitee members are wrapping up things and getting ready to travel to Plattsburgh, NY (far upstate NY) for the April 10-11 hearing. Some members are planning to travel on April 10th and will only attend the second day of the hearing. April 9, Wednesday afternoon: Judge Lawliss will hear oral argument from the lawyer representing the documentary company that wants to videotape or audiotape or take still photos of the evidentiary hearing. Although nothing is guaranteed, it is a good sign that the judge will consider the issue. The most likely possibilities are that he will allow it, that he will allow nothing, or that he will allow some type of taping for the witnesses who appear on their own (and not under pressure of a subpoena) April 9, Wednesday evening: the committee members who are attending both days of the hearing arrive safely and unpack, before getting a good night's sleep before the Thursday morning 9am oral argument. April 10, Thursday morning: Judge Lawliss rules that no videotaping or still photography is allowed. He also rules, after much thought, that he will allow audiotaping but only if a witness agrees that it is ok with the witness. David's lawyers take no position on the issue and the prosecution is willing to go along with whatever the judge decides. April 10, Thursday: We started with a request to uncuff David's hands, which are shackled to his waist. The judge permits only his right hand to be unshackled, so that he can write notes to his lawyers. It takes a few minutes to unshackle his hands so they can unlatch his right hand. David's lawyers' opening statement is that he hopes the judge will determine that despite the witnesses' troubled backgrounds, they are credible and a mistake was made. Particularly where the only two prosecution witnesses are not very solid now: one now takes back his testimony and the other was hundreds of feet away at the time of the murder and could easily be mistaken. The prosecutor's opening statement is that he is just as curious as anyone else in the room to find out if there is new evidence. But, the goal is weigh and find out exactly what the new evidence is. The first witness is one of the most important. He took back his trial testimony and explained quite a few things: that he lied when he said he saw David commit the murder, in fact he did not see anything so has no idea whether David did it or not, he lied in order to get a transfer to somewhere closer to home and early parole (both of which he actually did get in exchange for his testimony), and he got around to fingering David because a sergeant questioning him egged him on and when the witness first guessed that maybe they wanted him to say an African-American man did it, the sergeant said "Wasn't it an Oriental person?" and other questions that helped him concoct the story that an Asian man stabbed someone in the back of the neck using the handle of a soup ladle. The only picture that the sergeant showed him was David's so the witness said yup, it was that guy, even though he did not know who did it. The DA spent a good deal of time on the witness's lengthy criminal record, asking why he did not come forward earlier, and pointing out that the agreement for early parole was only made by one sergeant and was never put in writing. There are tons of other details, but these were the key ones. I thought it was very touching when he explained that the reason he was testifying was "To make what I did wrong, right." He said he was "nervous, scared" about being there and he did look nervous and a little scared of admitting he lied in the past. The second witness of the day was the only one of the three on Thursday to allow audiotaping. He was extremely articulate and explained that he was in the courtyard, someone told him that Gutierrez was going to injure someone as payback so to watch out, that he turned around right after it happened and he saw Gutierrez was the only one next to the falling victim and then walked with his hands hidden against his body into a crowd of friends. He said it was common knowledge among everybody in the prison except the administration that David was innocent. And most heard that Gutierrez was the one that did it. He explained that in jailhouse culture, anyone who divulges info that extends the prison sentence of a fellow prisoner is blacklisted and can be physially attacked at any time. (The DA tried to ask questions to make this seem unbelievable, but I don't think it worked.) He said he was willing to talk only after reading in the NYTimes (oh the power of the NYTimes) that yes, Gutierrez was confirmed dead. He said in jailhouse culture, divulging info about someone who died is not a heinous thing to do because nobody is going to do additional time as a result. (The DA acted like this was completely not believable.) Again, tons of great details and these are only some of the highlights. The third witness of the day actually saw what happened, knew an attack was going to happen, and saw Gutierrez did it. The witness needed a Spanish interpreter who spoke very softly so it was honestly very hard for the audience to hear what was being said. This witness also explained that he only was willing to talk when he heard from Gutierrez's cousin that yes Gutierrez had died. Even though the entire prison population know who did it, nobody was going to talk while Gutierrez was alive. The DA tried to ask why he would come forward now and not beforehand. Also, he pointed out that the witness was convicted of a stabbing yet to this day still proclaims his innocence. (I think the DA is trying to suggest this guy lies about his own guilt, so why trust his comments about David's guilt -- we'll see if the judge buys this theory.) That was it for Day One. Apologies for any errors in this unofficial stream of consciousness update. Also, it is not comprehensive -- tons of details came out that aren't in these highlights. I think the judge is taking the hearing very seriously, letting people ask as many questions as they want, and paying close attention the entire time. Impossible to read his mind about what he is thinking, other than that he is paying attention. April 10, Thursday night: HEY! See http://www.pressrepublican.com/Archive/2003/04_2003/041120031.htm http://www.pressrepublican.com/Archive/2003/04_2003/04092003ll.htm for a news article and column about the case! We got a copy off the web on Thursday night and it ran in Friday's local paper. Also, the local NBC station had news coverage of us on their local news program at 6pm and 11pm! April 11, Friday night: the two days of the hearing are over. There were nine witnesses in total (three on April 10, six on April 11) that testified various things. Taken together, they testified that: the fellow inmate who said he saw David commit the crime was lying because he did not see anything. Also, several people saw the real killer or heard the real killer confess later on that he did the crime. Two witnesses (on top of the 9 who appeared in court) have been deported and were unavailable. The lawyers for David told the court that they wanted some time to see if they could arrange to make those two witnesses available in some way to the court. That's where we left off. A much more extensive report will be up soon, after we catch up on some sleep! There were about 20-30 supporters from the local community, several articles in the local newspaper, and brief TV reports on the local NBC news at 6pm and 11pm! We definitely got lots of support and coverage. The coverage was very sympathetic to David's fight for justice! April 11, Friday night: The DWSC is calling a news conference for 11am on Monday April 14th to provide a full report to the media! It will be held in Chinatown, NYC! See the front page of the freedavidwong.org web site for details. April 12, Saturday: Searching the web, it looks like the newspaper story made it to the AP wire services and that Newsday in NYC printed a story about what happened upstate! April 12, Saturday: The local paper upstate has a newspaper article at http://www.pressrepublican.com/Archive/2003/04_2003/041220034.htm that discusses how the Code that prisoners never squeal on other prisoners is one of the big reasons why nobody stepped forward to testify that David was innocent, even though everyone in the prison knew he was not the one who was guilty. April 13, Sunday: Here is a longer summary of what happened on Friday, the second day of the evidentiary hearing. The first witness is the widow of the murder victim. David's lawyers are trying to show the judge that the victim had an ongoing dispute with the real killer, because they got into a fight when they had been at Rikers Island. The fight started over a dispute over people wanting to kick people off the prison phone so that they could monopolize the phone time. The widow testified that the victim was brought to Rikers Island in 1983 and once while she talked with him, she heard rumbling. (She tried to testify about how the victim explained that he had just gotten into an altercation with annoying Dominicans, but the judge struck that as hearsay -- the hearsay rule means that in several situations, a witness is not allowed to testify about what someone else said happened, because the witness did not see it happen and there is no opportunity for anyone to cross-examine the person who really saw what happened.) The victim's widow testified about how after the victim was killed, she tried to pursue a wrongful death lawsuit and received two telephone threats. (I wonder why anybody would threaten her despite David's conviction unless there was someone else out there who did not want to be uncovered as the real killer.) It was surprising to hear that even though she called the authorities regularly, nobody told her that David had been convicted for the murder. She did not find out until 12 years after David was convicted! The second witness of the day was a fellow inmate who talked with the real killer some time after the murder. The real killer told the witness that a black guy broke his leg in a prior fight so he "hit" him in prison and a Chinese guy is paying the price for the crime. The witness then explained why his testimony could not have been presented earlier (this is one of the legal requirements): he refused to be labeled a rat and would not do anything until he heard from other inmates that the real killer had died. He said "Mr. Wong is paying for something that he never did." There was a dispute that came up with the Spanish language interpreter. David's attorneys felt that she was not accurately interpreting some of his comments. The court took a break in the testimony and at the end of the day, the lawyers decided just to waive any further questions rather than wait for a new interpreter. The third witness was an inmate who saw what happened in the yard. He did not know who David was and had never seen David before in his life, but he did see the real killer and knew the real killer was a Latino. The witness spoke with the real killer before the murder happened -- the real killer was complaining that he ran into one person who attacked him at Rikers and a second person who stood by while he was being attacked. The witness defended the honor of the second person who was supposedly a bystander during the Rikers attack. Because the witness knew an attack was going to happen, he was watching the whole thing happen. When interviewed by police after the 1986 murder, he said that he absolutely knew that David was innocent, but he refused to say anything about what he saw. That is because you do not rat out a fellow inmate in prison. Nobody rats in prison or else your life is in danger. Not until 1995 did any of David's lawyers contact him and then he again said David was innocent. In 1995, he told David's lawyers that he knew who the killer was, but refused to identify the real killer by name. "People do not rat because it is a fact that they will put their own life in danger." The fourth witness gave very emotionally powerful testimony about how he was a fellow inmate who saw what happened. At one point, he emotionally explained that he was very moved by seeing David Wong in person for the first time, knowing that he was serving so many years for a crime he did not commit. He explained that "I committed a crime and did nineteen years. I see an individual spend seventeen years for nothing, and it bothers me." He was in the yard and saw what happened, and saw that the real killer was Latino, not Asian. Not until 1996 did he learn that David had been convicted of the murder. He found out from a radio story about the David Wong Support Commitee travelling upstate on one of David's appeal hearings. A highly respected inmate who was an ex-Black Panther prompted the witness to come out with the truth and do the right thing. The witness needed that prompting because in prison, he knew that being a snitch "is bad for your health. The code is that you don't tell on nobody or else you suffer the consequences." If he had been asked before 1996 to testify about what heppened, he would have refused to answer any questions about identifying the real killer. The judge asked whether he was only testifying in exchange for "protection" in jail from other inmates and the witness answered "absolutely not." On his way out of the courtroom, he nodded to David and said "good luck, brother." The fifth witness was a Latino man who seemed very hardened by jail and unfazed by the court proceedings. He knew David before the day of the killing because he actually punched David once when David was bugging him by tapping his shoulder every so often. The witness not only saw what happened, but the real killer confessed to him, too. He saw that the real killer was a Dominican man and saw David elsewhere in the yard walking away, not involved at all in the killing. (He was keeping his eye on David in case David tried to attack him in revenge for the punch.) When interviewed in 1986 by police, he told th investigators "you got the wrong man," but when asked to identify the real killer, he only said "I dunno." The real killer confronted the witness about what he might have said to the police, and said that sure he killed the victim but that he had a good reason for doing it. The witness said he did not care why the real killer attacked the victim, and said he would show his police statement to the real killer because he knew "the code" and he would not squeal on him. The witness explained that "I've been holding this in my chest for so long, so many years." Never told anyone who the real killer was until 2001, when the private investigator that the David Wong Support Committee hired explained that the real killer was dead. At that point, willing to talk because "I'm not really giving nobody up." He insisted that David was innocent and his testimony was true: "I not only swear on the Bible, I swear to my mother which is the only parent I got left that that man there is innocent of the charges." If he had been called to the 1987 trial, he would have refused to answer any questions. The sixth witness was a fellow inmate who saw what happened. He had met the victim before the day of the killing. He saw a Latino male inmate come from behind and stab the victim in the back of the neck. The witness did not know the identity of the real killer, but saw that he was Latino. Before the day of the killing, he had spoken with David a few times before. That day, he passed David's area on his way to standing what turned out to be right next to the victim. That's why he is sure David was not around -- David was still lingering behind in his own area. When he found out that David was charged, he told his shop supervisor that David was innocent. The shop supervisor said he would go ahead and convey that information to the appropriate people, but nothing came out of it. In 1998, he ran into David in prison and said he was willing to give an affidavit of what he saw, due to a moral obligation that he felt. The witness was certain without any doubt that David is innocent. There were only two Chinese inmates out of the thousands in prison at the time. Everybody knew David was innocent and, in fact, he joined other prisoners who signed a petition to the administration to let them know that David was innocent. If he had been called in 1987, he would have described what he saw, even though revealing the vague descriptions he had might have put him in some jeopardy. At the end of the day, David's lawyers asked the judge for a little time to see if two additional witnesses (who saw the real killer) could be brought to testify at some point. The two additional witnesses have each been deported and are outside the U.S. The judge said ok, he would recess the hearing and talk with David's lawyers soon about whether it made sense to have another day to hear those two people who are currently outside the U.S. There were about two dozen community supporters, many of whom stayed for both days of the hearing. Also, there were about eight supporters who came up from New York City along with a documentary crew of three people who were closely following the hearing. A local NBC reporter also attended some of the hearing and filed live reports from the courthouse about how it was going. And reporters from the local newspaper also watched the entire hearing. Thanks once again to all of our supporters!! Without your contributions, we never could have hired the private investigator who broke the case open. Without your support, we never would have put media attention and pressure on the case. The prosecutor told the representatives from the Chinese Consulate that he has a huge file of all the supporting letters that their office has received!! The David Wong Support Committee will have a press conference Monday morning at 11am in Chinatown, NYC! Tuesday, April 15: Cameras were not allowed in the courtroom, so we could not take a picture of David there. But we were able to catch David as they brought him from the courthouse to vans that would take him back to prison. Here is a photo of him being led by prison guards out of the courthouse (courtesy of Steve De Castro)! Please write him to give him your support!
Below are pictures of (1) some of the David Wong Support Committee members who made trip plus the legal team plus some of the local Plattsburgh supporters plus Chinese consulate observers, (2) the legal team plus Wayne Lum plus people from the Chinese consulate, and (3) the legal team! These pictures are courtesy of Steve De Castro!
To contact us, send us email at freedavid (at) freedavidwong (dot) org