13 Alibis - Ep. 3: This is The Guy

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After my trip to Florida, I couldn't help but think that if Richard Rosario was truly innocent, how fast the ripple effect of that injustice is. It means George Colazzo's family never saw justice, that the real killer could still be walking the streets, that Rosario was denied his freedom and taken from his family.
I went to a small school. I'm sorry.
And we had father-daughter dances, and that wasn't fun. Not being able to go and not being able to tell people why you couldn't go.
So it was hard. And it was astounding to me how certain and credible all of those alibi witnesses appeared to be about Rosario's innocence.
The cop. There's no way he can't be in New York and Florida at the same time.
The pastor.

I'm 100% sure. Yeah, he was here.
The federal corrections officer. Yes, he was here in Florida.

Yes, no doubt. Is it true that detectives never called any of those witnesses? And if not, why not? I'm Dan Slepian, and this is 13 Alibis.
Here's what I learned about the police investigation into George Colazzo's murder. It was basically a group effort, which, by the way, is how it works in nearly every NYPD homicide investigation.
But there's only one lead detective, and in this case, it was a guy named Gary Whitaker. I reached Whitaker by phone.
He's retired now, and he said he didn't remember much about the case, and he declined my request for a recorded interview. But on the night Rosario turned himself in, Detective Whitaker was not the one who took Rosario's statement.
That was a different detective named Erwin Silverman. So I find him and tell him what I'm working on.
I'm on my way to Yonkers, New York on this gloomy, rainy day to speak with Erwin Silverman, who's retired now. Apparently his nickname is Silky, and he's agreed to see me.
He asks that we meet at his synagogue. It's about 15 miles north of New York City.
Silky. You're a member here.
Yes, I am. Silky is 81 years old now, but you'd never know it.
He's built like a tank, short and stocky, and it looks like he's been lifting weights forever. He's bald, and he actually looks a little bit like Kojak.
He's wearing a T-shirt with an enormous graphic of an owl from his neck all the way to his belly button. You've got a big owl staring at me.
It's going to scare me. I'm anxious to hear what he has to say, so I get right to it.
We're here to talk about the Richard Rosario case. Correct.
How much of the case do you remember? What do you remember about it? There's a lot I don't remember, and I was not really involved in that much of the case. Silky was a cop with the NYPD for 41 years, most of that time as a detective in the Bronx.
He tells me he played a minor role in the Rosario investigation, but it was an important one. He was the one who took the statement where Richard Rosario gave the names, numbers, and addresses of 13 alibi witnesses saying he was in a different state.
This is the statement that Richard Rosario gave the night he turned himself in. You took that statement from him? Yes.
I point to his signature to make sure there's no confusion. This is your handwriting, right? Right.
Is that your handwriting? That's it. When you read that statement, what do you make of it? It's a denial statement.
He claims he was not involved. He claimed he wasn't around at the time.
And then what do you do with that when it's done? It's put into the file. So when he gives you that statement of 13 alibi witnesses, is it your responsibility to follow up on it? No, I know it's not.
Whose responsibility is that? It's the responsibility of the lead detective, and I guess then eventually these reports go to the DA for prosecution. What was done or what should have done, I really don't recall that, you know.
I show silky clips of the alibi witnesses telling me no one ever came to speak with them. Nobody.
No one from NYPD called me just to confirm if what he was saying was true. Now, did the cop testify? Two out of the 13 testified.
Two. But no one spoke with all these other alibi witnesses.
Silky looked surprised, his face somewhere between, did I screw up?

And someone should have definitely followed up.

Do you take any responsibility saying to the lead detective,

hey, by the way, I put something in the folder. The guy said he had 13 alibi witnesses.

Did anybody call them?

I most likely did that.

I says, here, I took the statement.

I may have said, I would suggest that you have all these people interviewed.

Would it be upsetting to you if they didn't do that? Sure. Why not? With that information that I got that night, I would assume that those people would have been spoken to.
As we know now, detectives never spoke with any of those people. And here's the very detective who interviewed Rosario and took down that list of alibi witnesses, explicitly telling me someone should have followed up with them.
If that didn't happen, I'd feel things were left out. And Silky wasn't the only former detective I found who worked on the case.
I spoke with Charles Kruger. On the night of the murder, back at the precinct, he was the one who showed those books of mugshots to the main eyewitness, Michael Sanchez.
Kruger's retired now. We spoke in his dining room.
He says he needs to refresh his memory, so I show him some of the police reports and Richard Rosario's list of alibi witnesses. We have people, I, Dean, I'm saying he definitely did the shooting.

Then, you know. and Richard Rosario's list of alibi witnesses.
We have people, I, Dean, I'm saying he definitely did the shooting.

Then, you know, it's irrelevant.

He can say anything he wants.

I mean, you know, we have eyewitnesses.

I think a lot of people would be surprised about that.

The onus is not on the detectives to investigate these claims that he gave that first night.

Well, we're out to, you know, we have witnesses.

Once someone picks them out, they pick them out. I take out

my laptop and show him my interviews with the

alibi witnesses to see what he'd say about them.

Like Margarita Torres,

the pastor's wife. That's how

I know that he's innocent.

Because he is innocent. He was here.

They seem credible. If he

was in Florida, then he couldn't have done it.

He shouldn't be in prison. What is someone to do

other than what he did, in terms of turning himself in and saying, this is is where I was in a different state and here's the people to talk to? I don't know if he could have done anything else. I mean, barely whoever's first attorney was did a lousy job.
That's actually a good point. What about Rosario's trial attorney? His name is Steven Kaiser and he didn't want to speak with me, even though Rosario asked him to.
So I reach out to someone else who can help fill me in on the history of this case. His office is just a few blocks from NBC headquarters.
So I've been a lawyer for 30 years. Chip Lowenson is a white-collar defense lawyer who's been working on Richard Rosario's case for years, for free.
We meet in a conference room with floor-to-ceiling windows overlooking the city. Chip strikes me as one of those genuinely nice guys that everybody likes.
He focuses on stuff like insider trading and market manipulation, not cases like Richard Rosario's. Chip explains that he first met Rosario about five years after Rosario was already convicted and in prison.
A former classmate from law school asked Chip if he would take a look at the case. To Chip, it seemed like a slam dunk.
I thought once I read into the case, and I still think, clear-cut, obvious case that Richard Rosario did not get a fair trial because he didn't have

effective assistance of counsel. Basically, Chip believes Rosario got a raw deal.
Here's why.

Rosario had no money and was assigned a court-appointed attorney, a woman named Joyce

Hartsfield. She had the case for about a year before she moved on for personal reasons.

Rosario was then assigned a new attorney, Stephen Kaiser, who I mentioned earlier. And Chip says both attorneys screwed up.
The trial lawyers who represented Richard just messed up. The first lawyer applied to the court to get expenses paid for a defense investigator to go to Florida.
That petition was granted,

and then she didn't do anything for a year. So the court actually granted Rosario's attorney the money to send an investigator to Florida.
But here's the screw-up. Neither Rosario's first lawyer or the second lawyer, the one who would try the case, ever followed through to hire an investigator.
Translation, no one fully investigated Rosario's alibi. Not the police, not even his own defense attorneys.
What it meant was that the alibi defense, which was a powerful alibi defense, not just from one person or one piece of evidence, but a puzzle that when you put it together, it's just an unmistakable picture that shows he was in Florida on the date of the murder. It was just a mix-up, a misunderstanding.
And I'm thinking, even if there was a mix-up about paying for an investigator to go to Florida, couldn't someone just have called the witnesses? Yes, a mix-up, but I found them. I spoke with them on the phone.
Right. I called them on the phone, and they told me their story before I went to Florida.
He could have done that, too. He could have done that.
Right. And he didn't.
I was dumbfounded. It all seems like it should have been so simple.
I feel like I'm missing something. You're not missing anything.
It's a colossal injustice. One thing is becoming a little more clear to me now.
Why Rosario seems so angry about his case. I'm still upset that I have to deal with these prison guards.
I'm still upset that I have to deal with real murderers and, you know, rapists and people that, you know, that are guilty of crimes they committed. And I have to deal with this day in and day out.
And yes, I'm angry about it. Six years after his conviction, Rosario won a rare legal victory, a new hearing before a judge.
Chip represented him and called seven alibi witnesses to testify, including the people I interviewed in Florida. But the judge wasn't swayed.
He found that Rosario's additional alibi witnesses were questionable and not as persuasive as the two who testified at his trial and were discounted by the jury, and that in spite of the misunderstanding or mistake made by Rosario's attorneys, they both represented him with integrity in a thoroughly professional, competent, and dedicated fashion. Most of all, the judge wrote the people's case was strong and Rosario's conviction was amply supported by the evidence.
The motion was denied. Why didn't the judge believe the alibi witnesses? It's, um, it's, it's inexplicable to me.
I think it's awful, but I think the judge got it wrong. I wanted to ask the judge about his decision, but he passed away many years ago.

As compelling as Rosario's case may seem,

it's just another example on a long list of how difficult it is to overturn a verdict

once you've been convicted of a crime.

Sometimes, it seems, no matter how much evidence you might have. Rosario's alibi witnesses have been telling the same story for years.
But what about the eyewitnesses, the only evidence that convicted Rosario? The detectives, the prosecutors, and a jury all believed them. Now I wanted to speak with them.
It took a lot of work to track them down. The names Michael Sanchez and Robert Davis are just about as common as John Smith.
But eventually, I find a possible address for Robert Davis. Not in the Bronx, where George Colazzo was murdered, but a different borough of New York City.

We're here in Brooklyn to look for Robert Davis.

He lives over here in this building right next to Coney Island.

We have no idea if he's home or if he even still lives here.

So we're just going to go and knock on his door.

If he's home, see if he'll talk to us.

Remember, the official theory of the crime was that George Colazzo's murder was the result of a random altercation among strangers.

The gunman followed Colazzo and his friend Michael Sanchez down a side street. Reports show Robert Davis was standing about 10 feet away from where Colazzo was shot.
The building is a public housing high-rise. The halls are dimly lit, and there's a faint smell of urine in the creaky elevator.
It turns out Davis still lives here.

He's home and allows me to record our interview. So he's going to ask me the question? Yeah, yeah.
Davis says he was on the job that day, outside the building where he worked, when he saw three men. The victim, his friend Michael Sanchez, and the shooter.
I'm cleaning in the streets and everything. I see three gentlemen coming towards me.
And two of them are having words, changing words. One of them say, you're not going to do this no more, you know.
So in my mind, I'm thinking it's over a girl. All of a sudden, when I hear the shot, bang, and look up, the kid falls down to the ground.
Davis tells me he immediately ran over to help

and tried to get information from the victim's friend, Michael Sanchez.

Do you know this person?

Do you know the person that got shot?

Do you know the person that shot him?

He answered yes.

I said, well, wait here.

Wait a second.

Did he just say Michael Sanchez, the victim's friend, knew the shooter?

He knew the shooter.

I said, do you know that person that did it?

He said, yeah. But I read the police reports, and Sanchez never told police he knew the shooter.
Maybe Davis is just wrong. After all, it has been 20 years.
But he seems to remember a lot of details. Went and got the police in Amelance, and that was in the cop's cane.
Detectives brought Davis to the 43rd precinct in the Bronx, where he was shown

books of mugshots of young Hispanic men. But he couldn't identify anyone.
So Davis went back to work. Then within a couple of hours, the other eyewitness, Michael Sanchez, picked out Rosario's mugshot.
So detectives showed up at Davis's job later that night. This time, he says, they only had a handful of pictures with them.

It's like they had like maybe

two to three pictures

and maybe just came out of shape, which one? Which picture? Like show on me, you know? So I just pointed out the guy, I suppose that's done. They said, yeah, that's the guy.
As I pointed out, they said, yeah, that's the guy. So I thought I did my job.
Davis tells me he didn't doubt Rosario's guilt then, and he does not doubt it now. He makes it very clear to me that he believes Rosario is guilty.
Like I said, I still feel like I got the man. So I'm curious what Davis would make of all those alibi witnesses in Florida.
I make it clear I'm not looking to sway him in any way. And I just want to emphasize for you, we are not trying to get you to say he's innocent.
I'm not here to prove his innocence. I'm here to find the truth.
That's all I care about. I show him my interviews with the alibi witnesses.
I'm a deputy sheriff. I mean, on June 19th, he was in my house.
We were talking. He has a reaction before he's even through hearing the first witness.
Not a single phone call. Not a single phone call.
That's kind of messed up. He really is an innocent person.
He's really messed up. And after he's done watching the rest, his mood seems to change.
It really hurts my conscience now to see that if I did lock up an innocent person, that's kind of bad. You know, especially if the cops lied or BS'd me.
How did the cops lie? What did they say to you? Well, they said, if this really wasn't the man, they're just bringing up anybody's picture to me. But that's not the cops saying it, it's you saying it.
No, they showed me a picture and I said, yes, it was him. You know, they do different things.
Maybe trying to convince me to say, this is the guy. Maybe I did make a mistake, maybe, in that.
You know, maybe that wasn't really the guy. The only people that say he did do it are you and this other guy, Mike.
Right. That's it.
And the cops saying that he did it. Well, the cops aren't saying it.
They are. They said he was the guy.
They did say that. The cops didn't tell me that.
This is what I'm trying to tell you. Because I know they said that he was the guy.
You know, they said you got the guy. They did say that.
The cops did tell me that. This is what I'm trying to tell

you. Because I know they said that he was the guy.
You know, they said you got the right, thank you very much. And that was it.
From the beginning, in police reports, in his testimony, Davis has been consistent. He said over and over again, he's certain Richard Rosario pulled that trigger.
Back at my office, I take another look at Robert Davis' testimony from Rosario's trial. He testified detectives actually showed him more than 75 pictures, not just two or three like he told me.
And I double-checked. It's not documented anywhere that Davis has ever said that Michael Sanchez told him he knew the shooter.
So what should I make of Robert Davis? Once again, I call on former detective Bobby Adelorado to get his opinion. I play him my interview with Davis.
Bobby is immediately skeptical. I think now it's 20 years since the incident occurred, right? And he appears to me as somebody who's very pliable.
I think you can probably get this guy to say anything. And we don't know if it's true.
But if it's exactly the way he's saying it, there's a police procedure problem. You don't show a witness two pictures, three pictures.
There's a system in place to show six photographs. It's Detective 101.
The way that I took it was that cops said, confirm that's the guy. Yeah.
That's what I got from that. I got from that that he's saying once he picked who he picked, the cops confirmed to him,

yes, you got the right guy. Is there a problem with that? Yeah.
I would never tell somebody, yeah, you got the right guy. Why? What's the problem with doing that? Because you're influencing him at that point.
You're confirming to him that this is, you've already convicted him at that point. Yes, you got the right guy.
Yes, this is the guy who did it. You're telling him this is the murderer.
Even though the lead detective, Gary Whitaker, didn't want to be recorded,

he did tell me he would never show a witness, just a few photos, and everything was done by the book. I also called the NYPD, and they declined to speak about the case.
The only other evidence against Rosario is the person who first pointed to his picture hours after the crime,

the victim's friend, Michael Sanchez.

I was having trouble finding Sanchez.

And now I'm really starting to wonder, if Rosario is innocent, what really happened here?

It's time to learn more about the victim, George Colazzo.

And doing that will launch me on a brand new trail.

He was scared. He knew something was going to happen to him.

That's next time

on 13 Alibis.

13 Alibis

is a production of NBC News

and Dateline NBC.

It's produced and edited by Robert Allen

and Grant Irving.

Our music is by Nolan Schneider. If you deserve.
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Call now at 855-952-5252 or visit

LemonLawHelp.com. Don't wait.
Get the help you need today. Paid spokesperson.
Every case is

different. Results vary.
Courtesy of Roger Kiernos, Knight Law Group, LLP.