On an unusually warm November night in 2004, Josue Ortiz sat in an interrogation room at Buffalo Police Headquarters and confessed to killing two brothers inside their West Side apartment.
Ortiz, confronted with a possible life sentence and reportedly suffering from a severe mental illness, admitted his guilt again a year later as part of a plea deal that sent him to prison for up to 25 years.
Now, eight years later, four different law enforcement agencies have come forward with evidence they believe proves Ortiz is innocent.
“We believe he had zero role in this offense,” Assistant U.S. Attorney Joseph M. Tripi said recently in Buffalo federal court. “And he’s done about eight years in prison.”
Even more important, perhaps, Buffalo police, the law enforcement agency that interrogated Ortiz and made the case against him, also believes he was wrongfully convicted, according to sources close to the investigation.
So do the FBI and state police, according to sources.
“There’s a red herring in this case,” Tripi said in court. “There are no eyewitnesses and no physical evidence that tie Josue Ortiz to the scene, the robbery conspiracy or the murders.”
One law enforcement official remains skeptical of Ortiz’s innocence: District Attorney Frank A. Sedita III.
Sedita admits that he’s perplexed by the fact that Ortiz confessed to the murders of Miguel and Nelson Camacho, and on top of that, pleaded guilty more than a year later to two counts of first-degree manslaughter.
“My concern is he’s professed his guilt on multiple occasions,” he said.
The district attorney is reviewing the evidence compiled by the police agencies that investigated the Camacho murders, but is waiting for Ortiz’s lawyer to file a motion to vacate his client’s conviction before taking a position on whether to support or oppose that motion.
“I want to see what the factual allegations are,” Sedita said last week.
The first hint of Ortiz’s possible innocence surfaced last November, when a West Side gang leader and two others were charged in federal court with the Camacho murders, the same killings that have kept Ortiz behind bars since 2004.
At the time the new charges were filed against the three, prosecutors made no mention of Ortiz.
But that changed when Tripi returned to court and, in a lengthy statement to U.S. Magistrate Judge Jeremiah J. McCarthy, outlined why the federal government thinks Ortiz was wrongfully convicted.
Tripi believes Ortiz confessed, in part, because he suffers from a mental illness – he is reportedly being treated for schizophrenia in prison – and didn’t comprehend what he was signing at the time.
“Our evidence would be, your honor, that Josue Ortiz then pled guilty in order to avoid a 50-year to life sentence and now maintains his innocence and that he was wrongfully convicted,” Tripi added.
Two seen fleeing
The evidence Tripi spoke of was compiled by a federal task force that looked into the Camacho murders for more than a year and was made up of Buffalo police detectives, FBI agents and state police.
Chief among their findings is eyewitness testimony that two men were seen fleeing the apartment where the Camachos were murdered and that Ortiz, who is 6-foot-6 and weighed about 350 pounds at the time, was not among them.
“Our independent investigation confirms that,” Tripi told McCarthy. “We have numerous witnesses as to each defendant’s role, as to admissions by each defendant as to their conduct, and eyewitness testimony that will confirm the sizes and things of that nature of the people fleeing the scene.”
Among those eyewitnesses, Tripi said, is the brother of the victims.
“Additionally, the first person on the scene, the brother of the victims, knows Josue Ortiz and will say he was not one of the people running from the scene,” Tripi said.
Tripi’s task force believes the two men seen running from the murder scene were 7th Street Gang leader Efrain “Cheko” Hidalgo and Brandon Jonas. Investigators believe a third defendant, Misael “Bori” Montalvo, helped orchestrate the robbery.
All three are now charged with killing Nelson, 36, and Miguel Camacho, 25, as part of a robbery attempt on the evening of Nov. 11, 2004, inside their Niagara Street apartment.
“The federal authorities, along with local cooperation from the Buffalo Police, engaged in a meticulous and lengthy investigation determining, in effect, that Josue Ortiz had nothing to do with the murders of the Camacho brothers,” said John Nuchereno, Ortiz’s defense lawyer.
What prompted confession
Like Tripi, Nuchereno believes Ortiz’s confession was prompted by several factors, including his mental illness, his inability to understand English well and a deep-seated fear for his own life.
He pointed to one of Ortiz’s first encounters with Buffalo police, on the day before he confessed in 2004. He was standing on Hoyt Street, saw a police car, jumped inside and began yelling about a murder he knew about, Nuchereno said.
“He was clearly frightened,” the defense attorney said of Ortiz, whom he believes may have been threatened. “He was scared to death when he jumped inside that police car.”
Nuchereno is compiling Ortiz’s mental health records with an eye toward filing a motion in state court to vacate his conviction. The motion would be filed with Erie County Judge Michael L. D’Amico, the judge who sentenced Ortiz in 2006.
How D’Amico rules may depend, in part, on where Sedita ends up.
Sedita is unwilling at this point to comment on whether Ortiz is guilty or innocent and indicated that he’s waiting to see Nuchereno’s arguments for why his client’s conviction should be voided.
“I want to see what their allegations say,” he said of Nuchereno’s motion. “The ball is kind of in their court.”
Sedita said he’s working with Nuchereno in an effort to root out the truth and pointed to his support for Ortiz’s request that D’Amico be allowed to look at grand jury material used in the federal investigation of the Camacho murders.
DA says he didn’t know
He also expressed frustration not knowing about Tripi’s statement in federal court until just last week.
“The first time I found out about a bail hearing and Mr. Tripi’s proffer was when I sat down with Mr. Nuchereno,” Sedita said of his meeting with the defense attorney Thursday.
But sources close to the investigation said Tripi’s courtroom statements were made last fall and were based on information he had previously handed over to Sedita.
Investigators involved in the Safe Streets Task Force, the law enforcement group that looked into the Camacho murders, would not comment publicly on Ortiz’s guilt or innocence. But sources close to the investigation said they privately agree with everything Tripi told the judge last fall.
Task force members from each agency were in court that day in what one law enforcement official called a visible sign of their support.
The FBI, the lead agency in the investigation, stopped short of calling Ortiz innocent but expressed confidence that the witnesses and evidence it helped uncover are both new and important.
“The FBI and Safe Streets Task Force, while investigating other gang activity, discovered information that was not previously available to the district attorney,” said Christopher M. Piehota, special agent in charge of the FBI office in Buffalo.
Piehota said he believes the District Attorney’s Office was right to prosecute Ortiz in 2006, given Ortiz’s confession and the information prosecutors had at the time.
Nevertheless, he believes the new information uncovered by the FBI and others is extremely credible.
“I have a high level of confidence in my investigators,” Piehota said. “I think their work speaks for itself.”
Buffalo Police Commissioner Daniel Derenda and State Police officials declined to comment for this story.
Innocent people convicted
For most people, especially the uninitiated, it’s hard to imagine that anyone who confesses to a murder might be innocent.
But it happens, and experts in the field of false confessions and wrongful convictions will tell you it happens more often than you might think.
The Innocence Project, a national group dedicated to freeing the wrongfully convicted, has handled 258 cases of individuals exonerated because of DNA evidence. Of those, 25 percent involved a false confession.
The data is even more startling in murder cases, where two-thirds of the project’s DNA-cleared cases involved a false confession.
Does all of this mean Josue Ortiz is innocent?
No, but experts in the field say he fits the profile.
“There’s a link between mental illness and false confessions,” said Steven Drizin, legal director for the Center on Wrongful Convictions at Northwestern University. “Some people with mental illnesses are very susceptible to suggestion or have difficulty standing up to the rigors of interrogation.”
Ortiz’s mental health is expected to be the focus of his lawyer’s efforts to free him. It also is among the explanations federal prosecutors give for why he might have confessed to the Camacho murders.
In 2004, shortly after his arrest, Ortiz was evaluated by several mental health professionals. Two found him incompetent to stand trial. Two others later found him fit.
One of the psychologists who found him competent testified at a hearing a few months later and repeated her determination that Ortiz could stand trial.
“However, she acknowledged that every time she spoke with Ortiz, he denied participation in the murders,” Tripi told the court.
Mentally ill prone to confess
The mentally ill are more prone to false confessions because of the interrogation tactics police use, said Drizin, who has written extensively on the subject.
Those tactics, which can range from displays of sympathy and understanding to unending allegations of guilt, can often leave a suspect feeling powerless to end the interview unless he confesses, he said.
Ortiz also spoke Spanish, not English, another common trait among suspects who falsely confess to crimes.
“There are immigrants from Central American countries who confess because they’re afraid of the police,” said Richard Leo, a law professor at the University of San Francisco and an expert on false confessions.
For Leo and Drizin, the most telling aspect of the Ortiz case is the fact that four different law enforcement agencies now think he’s innocent.
“I do think that is extraordinary,” Leo said. “I also think it’s extraordinary that the FBI believes he’s innocent because they tend to be very conservative.”
Even more important, Drizin said, is the role of the Buffalo police, the agency that interrogated Ortiz, in this newfound effort to free Ortiz.
“The fact that the Buffalo Police Department, which is partly responsible for the false confession, is willing to own up to that early on in the process speaks volumes to their commitment to justice,” he said.
Avoiding false confessions
Leo and Drizin want people to ask how society can avoid false confessions in the future.
For them, the ultimate answer is the audio or video recording of all interrogations, a practice not commonly used by law enforcement agencies here.
“The process that produced the statement is more important than the statement itself,” Leo said. “If the interrogation wasn’t recorded, we don’t know how the sausage was made.”
Tripi and others have been careful not to criticize how police handled the 2004 murder investigation, insisting instead that new evidence has come to light that suggests someone else killed the Camachos.
“It appears as though it’s a detailed statement,” the prosecutor said of Ortiz’s written confession. “However, without getting into a lot of detail regarding Mr. Ortiz’s statement, there are many details in there that are patently incorrect when compared to the crime scene.”
“But,” added Tripi, “someone who didn’t have that knowledge of the case, such as the detectives that night, may not have known that.”
Toward the end of Tripi’s statement, Judge McCarthy asked if anything was being done to get Ortiz out of prison.
“Let me ask you,” he said. “Are you aware of, have any proceedings been commenced in state court to undo his ... ?”
Tripi answered by referring to a federal court order authorizing him to turn over information to Sedita.
“We’re hopeful,” Tripi said, “that the District Attorney’s Office comes to a determination without further litigation in terms of the innocence of Mr. Ortiz.”