PUBLISHER'S NOTE: "WORDS TO HEED: FROM OUR POST ON KEVIN COOPER'S APPLICATION FOR POST-CONVICTION DNA TESTING; CALIFORNIA: (Applicable wherever a state resists DNA testing): "Blogger/extraordinaire Jeff Gamso's blunt, unequivocal, unforgettable message to the powers that be in California: "JUST TEST THE FUCKING DNA." (Oh yes, Gamso raises, as he does in many of his posts, an important philosophical question: This post is headed: "What is truth, said jesting Pilate."...Says Gamso: "So what's the harm? What, exactly, are they scared of? Don't we want the truth?")
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The Institute issued an updated report on January 13, 2020, stating that Fabián and an unknown person were contributors to the semen stain. Torres Rivera was again excluded. "
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PASSAGE THREE OF THE DAY: "In November 17, 2020, Superior Court Judge Edgar Figueroa Vázquez reversed Torres Rivera’s convictions. On December 14, 2020, the Public Prosecutor's Office requested the dismissal of the charges. Yami Juarbe, the Carolina District Attorney, in tears, asked Torres Rivera for forgiveness in the name of the people of Puerto Rico. Superior Court Judge Jorge Reyna dismissed the charges. Compensation from the state was unlikely for Torres Rivera because Puerto Rico was bankrupt, and all civil suits against the government were suspended.
GIST: At around midnight on the evening of August 31, 1990, a 20-year-old woman, E.B.R, returned home from a musical rehearsal in the city of Carolina, Puerto Rico. It was dark because the power was out. After parking her car in the carport, E.B.R. got out and went to close the gates. Three men masked with T-shirts appeared, one of them with a gun, and forced her back into the car.
One of the men tried to start the car but was prevented by an automatic cutoff device. The men demanded that E.B.R. start the car, but she told them it was broken.
The men told E.B.R. they were being pursued, and they needed a car to escape. They said that if she started the car, they would drop her off somewhere and return the car to her. E.B.R. started the car, and the attackers then threw her into the backseat of the car.
The defendants drove to a mangrove swamp near the Muñiz Air Force Base in Carolina. They removed their masks, pulled E.B.R. out of the car, and all three of them raped and sodomized her.
The attack was interrupted by the approach of a patrol vehicle driven by a police officer, Pedro Pagán, and the attackers fled.
Pagán took E.B.R. to the police station. E.B.R. described one of the attackers as approximately 23 years old, having shoulder-length black hair, a thin black mustache, and wearing white shorts. She described another as approximately 22 years old, having dark hair, a small, thin mustache, and wearing light-colored pants. She said the third attacker was always behind her, and she couldn’t describe him.
A sexual assault kit was taken. Serological analysis, but not DNA testing, was done. Semen was found on denim shorts worn by E.B.R.
The case was assigned to Officer Carmen Quiñones, of the Sexual Crimes Unit of the Criminal Investigation Corps.
Frustrated after a month and a half had passed without any apparent progress in the police investigation, E.B.R.’s brother-in-law began canvassing the neighborhood himself. The brother-in-law told Quiñones that neighbors named three men as having participated in the attack: “Fabian,” “José Armando,” and “David.”
Based on this information, Quiñones arrested Fabián Rivera Rivera and his cousin, José Armando Torres Rivera. Torres Rivera was 17, with a 6th-grade education and no criminal record.
Quiñones and Officer Edwin Vázquez put Torres Rivera, who was being represented by Julián Parrilla, in a lineup with four other men on October 16, 1990. What happened at the lineup was disputed. Witnesses would later claim that the police required each participant in the lineup to state their name. Quiñones would later deny this. This was an issue because Torres Rivera’s name was known to E.B.R. through her brother-in-law. E.B.R. identified Torres Rivera as the leader of the attackers.
The serological profile was never compared to Torres Rivera.
The state moved to try Torres Rivera as an adult. While this motion was being litigated, Fabián and a man named Gilberto Ruiz Matos approached Parilla in Carolina Superior Court and told him they committed the attack and that Torres Rivera was not involved. Instead, they named another man, José Cruz (also known as José Cruz Rivera), as the third attacker.
The court ruled that Torres Rivera could be tried as an adult, and Torres Rivera was charged with rape, kidnapping, robbery, sodomy, and a weapons violation.
The jury trial began on March 11, 1991, in Carolina Superior Court. Cruz Esteves and Marisol Rivera were the prosecutors.
E.B.R. testified and identified Torres Rivera. She admitted that her brother-in-law had told her the names “Fabian,” “José Armando,” and “David” prior to the lineup.
The defense tried to cast doubt on the identification by calling an employee of the Puerto Rico Electric Power Authority to testify that the area of the attack had been without power since Hurricane Hugo a year earlier.
Three witnesses testified about the lineup, saying that participants had been ordered to say their names: Víctor Dipiní, an investigator at the Legal Aid Society of Puerto Rico, Jorge De Jesús Dávila, who had been used as a filler in the lineup, and Torres Rivera’s father, José Torres Rodríguez.
Quiñones testified that the lineup took only six minutes, that E.B.R, quickly identified Torres Rivera, and that it was E.B.R., not the police, who asked the participants to speak.
The defense called Fabián as a witness so he could testify about what he had told Parrilla regarding the perpetrators. Fabián testified outside the presence of the jury and invoked his constitutional right against self-incrimination. As a result, he was declared an unavailable witness, and Parrilla took the stand. He testified that Fabián and Ruiz Matos told him Torres Rivera was not involved in the attack and named Cruz as the third attacker.
Torres Rivera mounted an alibi defense, presenting testimony by a cousin (not Fabián) that on the night of the attack he was at a birthday party and then went to sleep at his mother’s house at 9:30 p.m.
No serological evidence was presented.
On May 31, 1991, the jury found Torres Rivera guilty on all charges. He was sentenced to 99 years for kidnapping, 50 years for rape, 50 years for robbery, 20 years for sodomy, and five years for the gun violation. All sentences were to be served consecutively, resulting in a 224-year sentence. The sentence was essentially a life term because Torres Rivera would not be eligible for parole until after 111 years in prison.
After Torres Rivera’s trial, Fabián pled guilty. No one else was charged in the attack.
Torres Rivera, represented by Cándida Valdespino Zapata and Rebecca Viera Trenche, appealed, arguing that his attorney had been given insufficient time to prepare for trial and that the lineup procedure had been flawed. The Supreme Court of Puerto Rico upheld the conviction in 1994.
Due to the nature of the crime, Torres Rivera was subjected to extreme security measures and assaults by corrections officers and other people in prison.
In 2016, Torres Rivera wrote to Iris Rosario Nieves of the Legal Aid Society of Puerto Rico seeking to challenge his 224-year sentence under the 2010 United States Supreme Court decision Graham v. Florida, which barred juveniles from being sentenced to life in prison for crimes other than homicide. She took the case.
Rosario Nieves moved for resentencing in 2016. The motion was granted, rendering Torres Rivera eligible for parole.
Rosario Nieves also investigated the case more broadly.
In 2015, Puerto Rico had passed a law, the Post-Sentence DNA Analysis Act, allowing people convicted of crimes to request post-conviction DNA testing. Rosario Nieves contacted the Puerto Rico Institute of Forensic Sciences about what evidence had been preserved. On May 15, 2016, the Institute responded that the sexual assault kit had not been preserved, but that they had sent other evidence to the police on November 13, 1990.
On November 3, 2016, the police responded to Rosario Nieves that they had possession of the denim shorts, a shirt, and a bra. The shirt and bra had never been subject to any biological testing.
On February 14, 2017, Rosario Nieves filed a motion to require the police to transfer the items of clothing to the Institute to determine whether testing was possible.
Later in 2017, Torres Rivera went before the Parole Board. The Board denied parole because Torres Rivera insisted on his innocence and refused to show remorse for the crime.
The Carolina Superior Court denied the motion for the evidence to be transferred to the laboratory. It interpreted the 2015 law as being valid for only one year and ruled that it had therefore expired. In a written statement, Puerto Rico’s Justice Secretary, Wanda Vázquez (who would later become Governor), wrote that the legislature’s intent to create only a one-time one-year window for requesting post-conviction DNA testing was clear. By that time, the law had enabled the reexamination of six convictions and led to three exonerations, and 49 U.S. states had laws allowing post-conviction DNA testing without expiration dates.
Torres Rivera appealed, but the Court of Appeal affirmed the Superior Court ruling. He appealed again to the Supreme Court of Puerto Rico, but the Supreme Court declined to hear the case. Torres Rivera filed a first motion for reconsideration.
On January 14, 2018, reporter Benjamín Torres Gotay published a front-page story in the newspaper El Nuevo Día about the one-year interpretation. Gotay reported that Fabián, who by this time was about to complete his sentence, had written a letter again asserting Torres Rivera’s innocence and stating his willingness to testify to that.
On February 7, 2018, the legislature amended the law to make clear that it was valid indefinitely. During the debate, one legislator said that the amendment could be applied retroactively to Torres Rivera’s case.
Torres Rivera filed a second motion for reconsideration with the Supreme Court of Puerto Rico. Despite the amendment to the law, on February 27, 2018, the Court denied Torres Rivera’s second motion for reconsideration. The court ruled that his motion “lacks a ‘detailed justification’ of how the DNA analysis creates a ‘reasonable probability’ of changing Mr. Torres Rivera's conviction.”
Justice Luis Estrella Martínez dissented. He wrote that the majority decision left Torres Rivera “trapped in an incoherent and unfair reasoning, in which he cannot use the transfer mechanism expressly provided in our legal system, given that the State does not allow him access to the evidence that possibly substantiates his innocence.”
In March 2018, with the Post-Sentence DNA Analysis Act now amended, Rosario Nieves went back to the Carolina Superior Court and again filed a motion to transfer the evidence from the police to the Institute for Forensic Science.
This time the court agreed. On June 1, 2018, the Carolina Superior Court ordered the transfer of the shorts, shirt, and bra to the Institute. The Institute began DNA testing in October 2018.
Meanwhile, Torres Rivera appealed the denial of his parole to the Court of Appeals, which scheduled a hearing for January 23, 2019. The day before the hearing, on January 22, the Parole Board informed the court “that it had reevaluated Mr. Torres, certifying that it had granted him the privilege of parole.” Torres Rivera was released after serving 28 ½ years in prison.
The Institute of Forensic Science issued a report on July 31, 2019. The report stated that a sperm fraction had been found and that there was more than one contributor. Torres Rivera was excluded as a contributor.
The Institute issued an updated report on January 13, 2020, stating that Fabián and an unknown person were contributors to the semen stain. Torres Rivera was again excluded.
Rosario Nieves urged the Institute to search the unidentified DNA profile in available DNA databases to identify the other two attackers. The Institute refused, stating that DNA database searches were only permitted in unsolved cases. On September 11, 2020, Rosario Nieves filed a motion to compel the Institute to conduct the search.
The motion noted that Cruz had been convicted in 2004 of sexual assault for a crime in Caparra Terrace, a neighborhood in San Juan. In 2014, he had been convicted and sentenced to 13 years in prison in Florida for statutory rape. Therefore, Cruz was certainly in Puerto Rico’s DNA database.
But the unidentified DNA profile was never compared to any other person, including the two named suspects.
On November 17, 2020, Superior Court Judge Edgar Figueroa Vázquez reversed Torres Rivera’s convictions.
On December 14, 2020, the Public Prosecutor's Office requested the dismissal of the charges. Yami Juarbe, the Carolina District Attorney, in tears, asked Torres Rivera for forgiveness in the name of the people of Puerto Rico. Superior Court Judge Jorge Reyna dismissed the charges.
Compensation from the state was unlikely for Torres Rivera because Puerto Rico was bankrupt, and all civil suits against the government were suspended.
On December 13, 2021, Torres Rivera filed a federal civil suit in the United States District Court for Puerto Rico against E.B.R., Esteves and Rivera, Quiñones and Vázquez, and other prosecutors and police officers. The suit alleged that Quiñones had claimed that she had gotten Torres Rivera’s name from a confidential tip, when in fact it was E.B.R.’s brother-in-law. It said that when the defense requested discovery of the identity and source of the confidential tip, Esteves and Rivera had misled the court by claiming that Torres Rivera’s name had come from an investigative conclusion by Quiñones. It further alleged that Quiñones had taken a Polaroid photograph of Torres Rivera and shown it to E.B.R. prior to the lineup. The suit claimed that even with the photograph, E.B.R. had been unable to identify Torres Rivera, which had led to the officers’ order to the lineup participants to state their names.
Torres Rivera died six days after the suit was filed, on December 19, 2021, just over a year after being exonerated. On May 27, 2022, Torres Rivera’s sole heir moved to dismiss the case, and on June 1, 2022, the court dismissed the case.
— Simon Cole
Posting Date: 08-13-2025
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PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog.
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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