After midnight on August 19, 2012, Enger Javier was standing in the McDonald’s parking lot where he hung out every weekend, talking with his friends and enjoying the Latin music that was pumping out of the souped-up cars congregated there. The fast-food eatery was a popular late-night hangout spot for young people in the Claremont section of the Bronx, a neighborhood where household income is less than half the citywide median and gang violence is common. The Trinitarios, Javier’s gang, were engaged in a bitter feud with another crew called Dominicans Don’t Play. On the night of the 19th, a former DDP member was stabbed to death following a scuffle, and Javier was arrested for the killing.
Three and a half years later, he was standing outside the same McDonald’s, on Webster Avenue, wearing a necktie and dressy blue shirt, a court-ordered GPS bracelet around his ankle. Standing next to him were the mother and sister of Hansell Arias, the 19-year-old victim. Javier has steadfastly maintained his innocence since the stabbing, and his legal team arranged the meeting to give the media a firsthand look at one of the more extraordinary particulars of his case: even the Arias family is advocating for charges against Javier to be dropped.
Lisania Arias, Hansell’s sister, shook Javier’s hand. “I don’t understand the criminal justice system. Right now, we are very mad. Very mad as a family. Both families are mad,” she told a Bronx News 12 television reporter who documented the scene.
Like Lisania, Javier and his lawyers believe that the Bronx District Attorney’s office got the wrong man when it charged him with manslaughter, gang assault, and possession of a weapon in 2012, citing DNA evidence, surveillance video, and statements from multiple eyewitness. The real killer is still at large, they say. “I knew in my mind I was innocent, you know?” Javier said outside the McDonald’s earlier this month. “I was waiting for this day.”
He’d been waiting a long time. For two years after Arias was murdered, Javier was imprisoned in Rikers Island, a time he spent studying the details of his own case. In 2014, he was granted bail after DNA samples from Arias’ fingernails were tested and found not to match his own. He has been on house arrest since then, legally prohibited from leaving the Bronx. He spends nearly all of his time inside the ground-floor Bronx apartment he shares with his mother, out of fear that Trinitarios or DDP members might have interpreted his attempts at clearing his name as acts of snitching.
The NYPD, the Bronx DA, “they didn’t do the investigation right,” the soft-spoken Javier said this month, sitting at a coffee table in the apartment where he’s been holed up. “They wanted to blame it on me.”
He’d been in Rikers once before, on a weapon charge, but his more recent stay was different. “The last time I was in jail, I knew why I was in jail. I knew I was guilty,” he said. “But this time—imagine being in jail, being charged for something you didn’t do. You would go crazy, thinking about it every day, you know?”
Enger Javier, left, with his mother and attorney
Javier’s defense attorney, David Cohen, filed a motion to dismiss the case against his client on Friday. Included in the motion is testimony from five eyewitnesses who allege that they saw a different allegedly high-ranking Trinitarios member stab Arias, and that Javier was not involved. Their claims may be supported by surveillance video obtained from the scene by police, which shows a large crowd chasing Arias down Webster Avenue moments before his death. Javier appears in the video, but he is not among the murderous crowd. As the mob runs by, he casually stands on the sidewalk, holding a soda. Speaking in court on Friday, Bronx assistant district attorney John Morabito said that he took the claims in the motion “extremely seriously.”
If the motion is successful, Javier’s case will be remarkable in the sense that it is remarkable whenever justice comes to an apparently innocent person who has fallen afoul of the courts. But the years he spent inside Rikers before even facing a jury are anything but. In America, 450,000 people are in jail awaiting trial at any given time. Many of them are there because they are too poor to afford bail. Kalief Browder, the charismatic teenager who took his own life last year, spent over three years inside—two of which were in solitary confinement, with all the horrors that treatment entails—without being convicted of a crime. (He was accused of stealing a backpack.) The average pretrial detention term is much shorter than that, but any length of time in prison without a conviction, on so large a scale, would seem a glaring violation of the presumption of innocence. Some of those incarcerated people may be guilty of the crimes with which they are charged; even they deserve to be tried before they are jailed. Others, like Javier, may be innocent.
The case against Javier consists of two statements from witnesses who positively identified him as the killer, according to police reports presented to the defense as discovery evidence. John Scola, an attorney who plans to represent Javier in a civil suit against the city, argues that both of those statements are suspect.
The first, from a lineup administration report filed by NYPD detective Carlos Faulkner on August 19, shows a witness who seems far from positive about Javier’s role in the evening’s events. The witness, whose name is redacted, indicated that she recognized Javier from Webster Avenue, but was uncertain about who he was. “Out of all six guys number 3 looks like he was with the other guys. I don’t know where I remember him. Not sure,” she is recorded as saying. If the witness gave any more definitive statement than that, it is not in Detective Faulkner’s report.
The second statement was given by Jansel Paula, a friend of Javier’s who’d traveled with him to the McDonald’s that night, and who was also initially detained for the murder. During interrogations, Paula told police that he’d seen his friend stabbing Arias, but now, he claims that the statement was untrue, the product of coercive questioning.
[There was a video here]
A portion of Jansel Paula’s new statement
Last month, Paula gave a new video-recorded statement to Manuel Gomez, a private investigator hired to work on Javier’s behalf. In it, Paula alleges that he was taken into police custody for three days and pressured by Detective Faulkner to name Javier as the killer. He claims that he was deprived of food and told that he’d go to jail for 20 years if he didn’t put the blame on his friend—claims he later reiterated in an interview with ABC 7.
“[Faulkner] would say a lot of things,” Paula said in the 2015 statement. “It was like, if I don’t say who did it, I’m going to be over there, and I’m never going to be with my family or nothing. Pressured me and pressured me and pressured me for three days.”
Javier’s attorneys also claim that the surveillance video showing Javier on the sidewalk was improperly withheld from them for years before the Bronx DA released it in December 2015. Police reports indicate that officers were able to find pertinent video when canvasing the scene immediately after the killing in 2012, but in court, prosecutors later alleged repeatedly that no such video was found.
“Three years later, they turned over the video, which clearly shows that Enger Javier was not involved in the stabbing,” David Cohen said outside the courtroom Friday afternoon. “I do believe that they were deliberately withheld,” he added. Cohen believes the videos were likely withheld by police, not prosecutors. The Bronx DA and the NYPD declined to comment on this story.
Morabito said Friday that his office would conduct an investigation into the defense’s claims before Javier’s next appearance later this month. For now, after three years of waiting, Enger Javier has to wait some more. He said that the experience has made him turn his back on the gang life, and that he’d like to get out of the Bronx and go to college when the ordeal his over. He wants to be a lawyer.