Supreme Court overturns conviction in tot’s Easter killing



The Supreme Court on Thursday threw out the murder conviction of a Bronx man in the stray-bullet shooting of a 2-year-old boy on his way to church and a family dinner on Easter Sunday in 2006.

In an 8-1 decision, the high court ruled that Darrell Hemphill’s Sixth Amendment right to confront his accuser was violated when prosecutors were allowed to introduce a statement from a witness without calling him to the stand at trial.

“The trial court’s admission of unconfronted testimonial hearsay over Hemphill’s objection, on the view that it was reasonably necessary to correct Hemphill’s misleading argument, violated that fundamental guarantee,” Justice Sonia Sotomayor wrote for the majority.

The reversal also came after Bronx District Attorney Darcel Clark “withheld consent” for former Assistant District Attorney Adam Oustatcher to submit a 33-page brief to the justices, even though tragic tot David Pacheco Jr.’s mom wanted the paperwork filed.

Darrell Hemphill mugshot
Hemphill, right, was accused of shooting and killing 2-year-old David Pacheco Jr. with a stray bullet.
Robert Kalfus/Freelance/NY Post

“There’s an old saying that bad facts make bad law and that’s what happened here,” Oustatcher told The Post.

“By failing to bring to the Court’s attention the evidence adduced and facts established at trial, the Bronx County District Attorney’s Office essentially sealed the case’s fate…and lost an appeal that should have been won.”

Hemphill contends that the witness whose statement was used against him, Nicholas Morris, is the gunman who opened fire and shot Pacheco as he rode in a minivan with his kin near Harrison and West Tremont avenues.

Bronx District Attorney Darcel Clark
Bronx District Attorney Darcel Clark “withheld consent” for former Assistant District Attorney Adam Oustatcher to submit a 33-page brief to the justices, despite a request by Pacheco’s mother.
Pacific Press/LightRocket via Getty Images

Morris was initially charged with killing the tot and illegal possession of a 9 mm pistol, but that case ended in a mistrial in 2008.

Morris later copped a plea to criminal possession of a .357 revolver, but not the gun that was used to kill Pacheco.

Although Morris was unavailable to testify at Hemphill’s trial — after getting barred from re-entering the US following a trip to Barbados — the presiding judge ruled that the defense “opened the door” to admitting his statement by arguing that he was the real triggerman.

The Supreme Court’s ruling sends the case back to New York’s highest court, the Court of Appeals, to decide whether Hemphill would have been convicted without that evidence.

A spokesperson for the Bronx DA’s Office said, “We cannot comment as the case is still being litigated.”

Stanford University law professor Jeffrey Fisher, a constitutional law expert who represented Hemphill before the Supreme Court, told the Associated Press that “our position is that Hemphill’s conviction must be reversed and he’s entitled to a new trial.”


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