Why Brockton man acquitted of murder is still in jail and what he's trying to do about it

BOSTON — Seven years ago, a jury found Brockton's Jaime Resende not guilty of murder. He's still behind bars. Now he and his supporters wait for the state's Appeals Court to decide whether he'll go free.

In 2015, a jury found Resende not guilty in the 2006 murder of Brockton's Nelson Pina during an attempted robbery of cash and drugs. However, the Cape Verdean man is still in prison on 2010 convictions for armed home invasion and armed assault with intent to rob from the same incident.

Resende's attorney, Mary R. LaCivita, told a three-justice panel on Thursday, April 7, that the only evidence linking Resende to the crimes is the testimony of Vernon Newberry, whom she said changed his story eight times.

"These charges all rise and fall on the underlying murder charge," LaCivita told the panel.

Resende doesn't recall where he was the night of Nov. 16, 2006, into the morning of the 17th, LaCivita said last week. Police picked him up 10 months later and, according to LaCivita, before trial he was never questioned by Brockton Police, State Police or prosecutors. Resende denies being at the scene or even near it.

Resende was tried twice, and both times his lawyers argued nothing ties him to the crime except Newberry's testimony.

"There is no forensic evidence," Resende's attorney told jurors in the second trial, according to a transcript. "No fingerprints. No DNA. No blood evidence. Nothing. Nothing at all but the frantic finger-pointing of a convicted criminal, Vernon Newberry, who sees a convenient fall guy and decides to save his own skin."

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Russell Eonas, assistant district attorney for the commonwealth, argued last Thursday that the case has been handled properly, as evidenced by a 2017 ruling by the state's highest court upholding both of Resende's remaining convictions.

More than a dozen supporters of Resende came to the John Adams Courthouse in downtown Boston for the hearing.

"We're definitely hopeful," Ellie Teixeira, a cousin of Resende, said afterward. "The commonwealth was not prepared. (Eonas) did not have answers for it."

The three-judge panel is expected to announce a decision within two months, LaCivita said. If that ruling goes against Resende, she said the Innocence Project, a nonprofit that aims to free people it considers to have been wrongfully convicted, has already agreed to take up his case.

"I believe he's going to get out," LaCivita said after the hearing.

The Enterprise has reached out to Pina's family via the district attorney's office.

The crime, according to the prosecution

Here are the facts of the case as recounted by the Supreme Judicial Court in its 2017 ruling against Resende.

Prosecutors argued — and a 2010 jury agreed — that Resende came up with a plan to rob Pina of drugs and cash. In this telling, Resende recruited Newberry (spelled "Newbury" in some state documents) to rob Pina at his 405 Plain St. home. Newberry then brought his cousin, Kenston Scott, in on the scheme.

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The state argued that Resende, Newberry, Scott and two other men met at the Brockton home of one of Newberry's cousins the night of Nov. 16, 2006, to smoke pot and plan the heist. In this telling, the group went to Pina's home in three cars.

Scott faked car trouble, popping the hood and putting on his hazard lights, then walked up to Pina's door. Julia Codling, Pina's girlfriend, answered the door but didn't open it. Pina, prosecutors said, got his dog from the basement, then opened the door and let Scott have a cordless phone.

As Scott walked back to the car, another man in the car said, "He's here," and Scott turned back to the house. The girlfriend said she heard a scuffle at the front door followed by four gunshots. She called 911.

Prosecutors say Resende drove away. Scott, wounded, left the scene, abandoning the car he came in.

When police arrived, they found Pina dead on the floor near the door. Police said they found projectiles from two different guns in the entryway. In the basement, police allegedly found $48,000 in cash, two containers with small amounts of marijuana and a ledger prosecutors said they believed recorded drug deals.

In 2010, a jury convicted Scott and Resende of murder and a judge sentenced both of them to life without parole. Newberry's testimony, for which prosecutors gave him immunity, played a key role. Resende was also sentenced to 18-20 years for armed assault with intent to rob. The court, at that time, dismissed Resende's conviction for armed home invasion, saying it was duplicative of that of felony murder.

Resende appealed his convictions and won a new trial. The commonwealth brought its case as premeditated and felony-murder as a joint venture, based on three underlying felonies: armed home invasion, attempted armed robbery and attempted unarmed robbery.

In that second trial, held in 2015, a jury found Resende not guilty.

Asked why the second jury found Resende not guilty of murder when the first had not, LaCivita said that in the first trial, her client was being tried alongside Scott, the shooter. Also, although the state's evidence was largely the same in the second trial, it was not allowed to include testimony from Scott implicating Resende. The first jury had been allowed to hear that testimony.

The crime, according to Resende

The June 2021 filing by Resende's lawyer describes the events of Nov. 16-17, 2006, similarly to the state's account — with the major difference of Resende not being involved.

In this telling, Resende's name didn't come up until the third time police interviewed Newberry. He told State Police that he knew Resende only from buying pot from him.

"After the State Police showed Newberry photos of Resende and continued to inquire about Resende, Newberry realized he could implicate Resende to his own benefit," the defense's brief states. "And so Newberry did just that: he implicated Resende (an innocent man) in exchange for a deal with the Commonwealth for immunity where he would not be charged for his involvement in the Nelson Pina murder."

But the state rejects the idea that only Newberry's testimony ties Resende to the killing. Police cited phone records that show a phone belonging to Newberry called a phone belonging to Resende before and after the killing.

"He doesn't recall getting calls from him," LaCivita said Tuesday. "His phone records and Newberry's were from different companies. You can't tell if the calls went through."

Arguments at the Appeals Court

On Thursday, April 7, each side had 15 minutes to make its case before Associate Justices Gregory I. Massing, Mary Thomas Sullivan and Sookyoung Shin.

The detailed legal arguments on both sides can be viewed here for Resende and here for the Commonwealth.

Resende's side argues that Resende wasn't allowed to raise "double jeopardy" claims during his appeal. The June 2021 document further argued that the state violated Resende's constitutional rights by keeping prior "joint venture" convictions from his first trial. "Joint venture" is a legal concept in which defendants may be found guilty if they knowingly took part in the crime and did so with intent. Further, the filing argued that the trial court should have vacated the convictions for armed home invasion and armed assault with intent to rob after the second trial.

The commonwealth counters that the SJC considered and rejected the "double jeopardy" argument. It also argues that in the second trial, the state did not retry Resende for armed home invasion and armed assault with intent to rob, so he can't have been acquitted of them.

On April 7, LaCivita said Resende's former defense attorney, Jonathan Shapiro, provided ineffective counsel. She was quick to add that Shapiro has a long and respected history of practicing law.

"We don't make this claim lightly," LaCivita told the judges.

The Enterprise left a voice mail for Shapiro, who is well-regarded in legal circles for his work as a defense and civil rights lawyer. Perhaps most famously, Shapiro represented Muhammad Ali at the Supreme Court when the boxer successfully appealed his conviction for draft dodging.

Judge Mary Sullivan threw cold water on the "ineffective counsel" argument, saying that "anything approaching strategic choices" being made by a defendant's lawyer is considered "effective counsel."

At the end of the hearing, Sullivan thanked both sides.

"The case is well-argued by everyone," she said.

Resende waits

Meanwhile, Resende remains behind bars at the state prison in Shirley. He's serving 20 to 22 years on the armed home invasion count, and 18 to 20 on the armed assault with intent to rob count. Those are concurrent, meaning he's serving time for both of them at once.

Teixeira, his cousin, said the family has been hopeful since day one, and that she believes there are many other people in prison who should be released on grounds similar those of her cousin. She encouraged Brockton residents to pay attention to the upcoming election for Plymouth County District Attorney, and to think hard about which candidate to vote for. In that election, District Attorney Timothy Cruz (R) will face a challenge from Brockton attorney Rahsaan Hall (D.)

[Editor's note: This story has been updated to reflect that Resende was never questioned by police, according to his lawyer.]

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This article originally appeared on The Enterprise: Brockton: Jaime Resende found not guilty of murder but still in jail