Summary of the May 16th Evidentiary Hearing

On Friday, May 16, 2003, the judge in Plattsburgh, New York (near the Canadian border) held the third and final day of the evidentiary hearing to decide whether David would be given a new trial. The highlight of David’s motion is new evidence that proves that he did not commit the murder! The judge held the first two days of the hearing on April 10 and 11, where nine witnesses testified about the identity of the real killer, that David was innocent, and that the key witness for the prosecution lied on the stand in order to get out of jail early. That witness did not see who the killer was, but in 1988, he identified David as the supposed killer.

On the third and final day of the evidentiary hearing, there were about two dozen supporters in the audience: some drove up 300 miles from New York City and others were local people who are convinced of David’s innocence after hearing a DWSC presentation and watching the evidentiary hearing. Thanks to the efforts of David’s team, a video teleconference was set up so that someone in the Dominican Republic could provide testimony. It would have been impossible for him to get a visa to come to the United States to testify live, so the judge allowed him to testify by video. The witness (the tenth overall for the evidentiary hearing) testified that while he was a prisoner, he also worked as a peer counselor. In 1991, while in prison, one of the people he counseled was the real killer. After several months of counseling, the real killer confessed to the killing. He asked whether the witness remembered a murder that happened in Clinton prison where a Chinese guy was doing the time, and the witness said yes. He said that he was the one who did it. The counselor asked how he felt about it and he said that he felt bad for the Chinese guy and that when he got out of prison, he would try to find a way to help him, but that he was not willing to do the time for the murder himself.

David’s team asked the witness to explain why he did not come forward earlier (which would justify our claim that it is new evidence). The witness explained that in prison, if you tell the authorities on somebody, you are labeled a snitch and you could be attacked by anybody else. He was willing to come forward now, because he was safely in the Dominican Republic.

The DA tried to attack the witness’s credibility by suggesting that it would be unbelievable for someone to come up to another person and confess to a murder. The witness, however, calmly explained that they knew each other for several months before he confessed, he was acting as a peer counselor, and that he was telling the truth. The DA tried to pin the witness down into getting the date that the real killer died wrong, and the record was unclear about what the witness thought (he spoke English with a Dominican accent).

Next, the judge asked both sides for closing argument. David’s team put ten witnesses on the stand and the DA did not present any new witnesses. The DA was resting his case on the testimony that was presented at the 1988 trial.

To our disappointment, in his closing argument the DA vehemently opposed David’s request for a new trial (even though he has a duty to see that justice is done in the courts). Some of the DA’s main points were that the testimony was not new evidence and that even if the jury in 1988 had the evidence, it probably would have convicted David anyway.

First, the DA argued that the testimony was not new because it was inconceivable that prisoners would be afraid to snitch on other inmates when everybody knew that David was innocent. The DA pointed out that the inmate that testified in 1988 that David supposedly was the killer was never physically attacked in prison.

Second, the DA argued that even if the jury heard the evidence, they still would have convicted David. For this, he relied on the prison guard’s testimony of seeing a commotion and after bringing up his binoculars, tracking the hooded killer until other guards could apprehend him. He also argued that the inmate who lied about seeing David was not believable -- he might be lying now in order to get a free ride to testify in court and who knows maybe even “booze money” and he might have been telling the truth way back in 1988. He said that all the other inmates who saw the real killer were not believable because they were prisoners, they try to help out other prisoners, they talk in prison and had an opportunity to create a scheme to free David, and they might have seen an easy way to free David by blaming a dead man for the murder. The DA also pointed out inconsistencies about what inmates said about the real killer, such as whether the killer wore green socks or socks of some other color, whether he used a knife or a brick, whether he wore a sweatshirt or a sweater, and whether he had his hood up or down.

David’s lawyers then presented their closing argument. They emphasized that prison records prove that the real killer and the victim stayed at Rikers Island around the time that the real killer’s leg was permanently injured by the real killer. That the description of the real killer is backed by an inmate standing next to the victim, one ten feet away, one fifteen feet away, one fifty feet away, and two others in the prison yard. Also, confirmed by confessions that the real killer made about a week after the killing, one year after the killing, and five years after the killing. All of that evidence outweighs the scant evidence against David: no weapon was found, no blood stains were found on David, no fingerprints, and no motive. The prosecution was based solely on the inmate who admitted that he made it all up and the prison guard who was over 300 feet away, was not using binoculars at the moment of the killing, had to track the killer as he walked through lines with hundreds of inmates dressed alike, and said that the killer was not holding anything (but David was holding a Chinese newspaper that day). Also, the guard’s testimony had contradictions: whether the killer had gloves or not and whether it was hard for him to identify the killer or he thought the killer was white. David had no motive to kill the victim, who had just arrived a few days before in 1987, when David barely spoke English. In contrast, there is ample evidence of why the real killer murdered the victim: it was payback for how the victim took part in an attack on the killer that gave him a permanent limp.

David’s lawyers said there was no way the inmates could have gotten together to make their story: some were friends of the real killer, some were friends of the victim, and some were not aligned with either. They were also of all different races.

David’s lawyers emphasized that the evidence was new, because all of the inmates testified about how snitching is detrimental to your health in prison. David’s lawyers also said that previous motions for a new trial were based on vague testimony that David was innocent. This motion is different: the evidence now identifies the real killer’s name! In their briefs, they also point out how we now have a witness admitting his testiomony was a lie, the killer’s motive, and the widow of the victim testified about how the victim had problems with Latinos, not a Chinese immigrant, in Rikers Island.

Finally, David’s lawyers pointed out other cases where judges have granted a new trial because a new witness identifies the real killer. And that in deciding whether evidence is new, courts take a practical view of how tough it is to obtain evidence. Here, the realities of prison made it impossible to get someone to snitch on the real killer. David’s lawyers asked the judge to overturn the conviction and give David a new trial.

The judge thanked everyone for their professional conduct during the hearing and said he needed time to review the testimony of all the witnesses at the hearing, and also at the 1987 trial, before he could issue a decision about whether he would grant David a new trial.

The case is being closely followed by the local media and by newspapers in the Chinatown community. Please support us! For more information, visit www.freedavidwong.org!

Pictures from outside the courthouse on May 16th


NYC and Plattsburgh supporters


NYC supporters, David's lawyers, and Nancy Frederick from Plattsburgh

To contact us, send us email at freedavid (at) freedavidwong (dot) org