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Key defense witness in Jose Torres trial refuses to testify

Hearing testimony leads to two men charged with same murder

The Monroe County District Attorney’s Office apparently now believes that Angel Carrasquillo killed Miguel Cruz on July 4, 2001, but they are continuing to prosecute Jose Torres for the same crime.

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Jose Torres

Carrasquillo was indicted on a second-degree murder charge in the death of Cruz and arraigned Monday, the day before he was expected to testify for Jose Torres, who is on trial for allegedly killing Cruz.

Because of the indictment, Carrasquillo invoked his Fifth Amendment right to avoid incriminating himself and refused to testify. Instead, a court reporter read the testimony he gave at a hearing in May which led to Torres getting a new trial.

“I think what happened is that the DA thought that if, in fact, they indicted him that he wouldn’t testify at this trial, he’d invoke the Fifth Amendment, which he did,” said Carrasquillo’s attorney, Paul J. Vacca Jr.

Carrasquillo is sentenced to life without parole, so even if he is ultimately acquitted of the Cruz homicide he would never be freed.

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Angel Carrasquillo

“It is a very tangled and confusing case, very tangled,” Vacca said.

Torres was initially convicted of second-degree murder in 2002 for killing Cruz. Part of the evidence against Torres is a confession, which he now claims he was tricked into signing and which does not completely match other evidence.

On Wednesday, Torres’ attorney, David Abbatoy, also called Steven Rivera to testify. Rivera is Carrasquillo’s cousin and also in prison for murder. He testified that he saw Carrasquillo running from the scene of the murder.

In the written decision to grant a new trial for Torres, state Supreme Court Justice Francis A. Affronti wrote that “Rivera and Carrasquillo advanced a more accurate, comprehensive, and indeed, a more logical chain of events than those proposed by the defendant.”

Until Carrasquillo was indicted, the DA’s Office has steadfastly insisted that Torres was solely responsible for the death of Cruz, and that Carrasquillo had nothing to do with it.

In an email response to a request for comment about the indictment of Carrasquillo, Mary Wilmot, a spokesperson for the DA’s office, wrote: “Our theory has changed due to our ongoing investigation.”

Although the earlier testimony of Carrasquillo was read to the jury, Abbatoy said he would have preferred to have him testify in person.

“The final irony of it all is that the reason why Torres is denied the right to do that is because of the very maneuver that the prosecutor has engaged in by indicting Carrasquillo, a person that they claimed all along didn’t commit the crime. Now they believe he has committed the crime, yet they continue to prosecute Torres,” Abbatoy said.

David Abbatoy

David Abbatoy

And Abbatoy cannot tell the jury why Carrasquillo isn’t testifying.

“The law is clear that you can’t put before the jury essentially the fact that somebody has taken and invoked their Fifth Amendment privilege, so there’s really no way of presenting to them that somebody else has been accused of the crime and essentially won’t testify,” he said.

Abbatoy sought a mistrial, but it was denied by Affronti.

Attorney Michael P. Schiano, who represented Torres at his first trial, said he has never seen a case where two people were simultaneously accused of the same crime as has happened in this case.

“There’s not an allegation they were co-conspirators. This is just a way to prevent him from testifying in the Torres trial, which I think should bring up some questions,” Schiano said.

Attorney Mark A. Foti, chairman of the Monroe County Bar Association’s Criminal Law Section, said the indictment of Carrasquillo raises concerns about inconsistent positions being taken by the DA’s office.

“When they give inconsistent opinions like this it’s unclear to the public what evidence they should be relying on, or which statements from the District Attorney’s Office are based on the most reliable evidence,” Foti said.

The prosecution has the burden of proving their case beyond a reasonable doubt, he noted.

“How can either case be beyond a reasonable doubt if they believe that there’s evidence to support a completely contradictory theory?” Foti asked.