Seeing What Never Happened
E-mail By Melanie Lefkowitz
The police came in the middle of the night. Carolyn Modica and her fiance, Elfren Torres, were asleep. Modica had the flu and a high fever. It had been a difficult day -- Torres had witnessed a murder down the street from their Brooklyn home, and the couple had to dive behind trash cans in the midst of gunfire.
Now, six hours later, here were two detectives, yelling and banging at the door. "I said I had fever, could it wait until morning, but they said it couldn't wait, and we had to go," Carolyn Torres recalled recently. "We never went to an attorney, and we didn't know whether we were allowed to say we didn't want to go. To this day we don't know."
As it turned out, Modica and Torres were the only eyewitnesses who would link Sami Leka, then 35, to the fatal shooting of Rahman Ferati, 55, in 1988. Two other men later confessed to the crime and said Leka had no part in it. Still, Leka was convicted, largely on the strength of the couple's testimony. He spent 11 years in prison before his conviction was reversed last year.
According to court records and a recent interview with Carolyn Torres, she and her then-fiance were ill, sleep-deprived, pressured by the officers and anxious to go home when they chose Leka's mug shot. She was looking for an Albanian man, she said, and thought she recognized Leka's Balkan features among an array of otherwise Hispanic men. "I told the police that the foreign looking guy looked something like the man I had seen," Elfren Torres said in a 1998 affidavit. He said several officers surrounding him immediately confronted him. "They said they knew 'he was the guy' and that 'I knew he was the guy' and that I should 'cut the crap, do the right thing, be a stand-up guy, and make a positive identification,'" he said.
Carolyn Torres said she distinctly remembered the man's skin, eyes and what she called "D.A. hair" -- blowdried up and back in a 1950s style. The mug shot of Leka -- which was about 11 years old -- matched her recollection, she said. "They said, 'We're not supposed to tell you this, but you and your husband picked the same guy,'" she said. "And they said that Sami Leka had a record already for petty crime, so it made you feel like you picked the right person. That kind of cinched it, when they said yeah, he has a record. He's been in trouble before."
They'd been told they would be at the station house for an hour. The trip took seven, she said.
A few weeks later, they were called to identify Leka in a lineup. Carolyn Torres remembers that in person, Leka looked much skinnier than the man she'd seen the day of the shooting, who was wearing a leather jacket with shoulder pads. She pointed out a bulkier man in the lineup. "I said, 'I thought his build was more like that guy's,'" she said. "They said, 'That guy's a police officer.'"
The detectives involved in the case could not be found, but others who were at the trial said Torres and Modica seemed certain that Leka was the shooter. They even picked him in an impromptu in-court lineup, when the judge had Leka stand with several other Albanians from the gallery during a pretrial hearing, one lawyer said.
Carolyn Torres says she was certain -- until Leka's new lawyer, Stephen Murphy, came to see her a year later. That was the first time she learned about the contradictory testimony and she began to have some doubts.
Carolyn hadn't seen the actual shooting, only a man sitting in the passenger seat of a double-parked white car for a minute or so before the gunfire rang out. Her husband had looked up and seen a man he later identified as Leka standing on the sidewalk shooting downward. But other witnesses, including an off-duty police officer, said the car hadn't been idling but pulled up quickly and drove off immediately after the g unplay. It also later emerged that the man shooting downward was most likely the victim, shooting back at the man in the car. "It stressed me out so bad. I got sick over it," she said. "I could have been wrong. Because, look, I was really sick that day. Maybe something in the way he looked resembled that other guy."
So she did what she felt was right: She wrote a letter at Murphy's request, telling about her experiences with the police and asking that Leka be freed. He wasn't. Seven years passed, and Torres was again visited by a lawyer for Leka, Michael Sommer. Sommer asked her to write another letter. She did.
Torres didn't hear from Sommer again, so she assumed his efforts had worked and Leka was freed. But the case, and her role in it, still haunts her. "It was a terrible thing, and ever since then, my husband always said if he saw any crime, he would never get involved again, no matter how sure he was. He would never get involved again," she said. "With me, I can't say that. It's just a very spooky thing. I couldn't live with the possibility that I had been wrong."
Copyright (c) December 8, 2002, Newsday, Inc.
