Star Witness Describes Death Threat

The key witness in the Mitchell Dubey murder case shocked the courtroom Monday when he said he does know after all who killed Dubey — and that he had changed his story on the stand last week because ​“I was scared for my life.”

The surprise development appeared to change the course of the murder trial taking place in Judge Jon C. Blue’s fourth-floor courtroom at state Superior Court on Church Street.

There, a 12-person jury has been weighing the fate of Tashaun Fair, 20, of Newhallville. Fair is accused of fatally shooting Dubey, a popular downtown bike mechanic, during a robbery in Dubey’s Newhallville home on March 24, 2011. Fair has maintained his innocence in the crime.

The witness, who goes by the nickname ​“Paulio,” is key to the case because his testimony is the only evidence placing Fair at the scene of the crime. In a videotaped interview played in court Friday, Paulio told police he served as a lookout to the robbery, saw Fair go into the house with a mask and a silver gun, heard one gunshot, then saw Fair flee. His testimony is crucial to the case because state recovered no weapon or DNA evidence, and Dubey’s friends were unable to ID the killer, who was covering most of his face.

During the six days of the trial, Paulio’s erratic behavior has thrown both sides for a loop. First, he failed to show up in court last week. Then, after cops dragged him into court, he denied knowing anything about the crime and said he ​“made up” the tale he told police. His recantation sent the state scrambling for Plan B: Relying on a videotaped interview instead of live testimony.

Paulio sat through the 2‑hour video Friday. Then, as authorities were transporting him by van from court to 1 Union Ave. police lockup, Paulio tried to jump out of the van, he admitted in court Monday. One of the detectives grabbed him and put him back in the van, he said. Paulio then spent the weekend in lockup at 1 Union Ave., so that he would be separated from Fair, who is being held at the Whalley Avenue jail. The judge ordered no contact with defense or prosecution attorneys over the weekend.

Surprise!

Paulio returned Monday morning to court wearing jeans, Nike sneakers, a large Champion sweatshirt — and this time, leg shackles. The state approached him expecting no cooperation.

“You really do not want to be here in the courtroom,” right? asked prosecutor Jack P. Doyle.

To the contrary, Paulio said: ​“I’m all right.”

Paulio proceeded to surprise the room by cooperating with the state. He explained his previous reluctance to testify this way: He was afraid to ​“snitch” on Fair because somebody had threatened him.

Paulio said someone threatened that ​“if I testify against him, I’m going to get killed.”

Paulio said he was reluctant to ID Fair as the killer because ​“I was scared for my life.”

“You were scared because you gave false information to police?” asked public defender Tom Ullmann, who’s representing Fair along with his co-counsel, Abra Rice.

“I ain’t give false information. I gave true,” Paulio replied.

The reversal revived the state’s case. It sent Ullmann scrambling to change his game plan.

“This took me by surprise,” Ullmann later told the judge.

Paulio later elaborated on what he called a death threat.

“You did not want to testify in this case, is that correct?” Doyle asked him.

“I didn’t mind. I just got threatened,” he said.

He said he was threatened in the last few months, after he got out of jail. The threat came from ​“people on the streets — his friends,” he said, gesturing with his eyebrows towards Fair.

Before Paulio’s reversal Monday, his claim that he lied to police and has no info that Fair did the murder was a huge gift to the defense.

After Paulio’s reversal, Ullmann pulled together his own Plan B. Ullmann tried three main avenues of approach: Impeach Paulio by highlighting inconsistencies in his testimony. Probe whether Paulio got a deal with the state in return for testifying. And further his theory that Paulio actually did the murder.

Inconsistencies

In his cross-examination, Ullmann noted that Paulio changed his story over the course of several interviews with police: First Paulio told cops he wasn’t at the scene and didn’t know anything about the crime. Then he later said he was there and served as a lookout.

“You denied being a lookout” and ​“you gave your girlfriend Jasmin as an alibi,” in an early conversation with police, Ullmann said.

Paulio maintained that he was always truthful with cops.

“I wasn’t at the scene. I was down the street at the corner,” Paulio clarified.

Ullmann also asked Paulio about a statement he allegedly gave to police that directly conflicts eyewitnesses’ accounts: Paulio allegedly told police he saw a ​“fat, white man” get out of a car and go into 29 Bassett St., Dubey’s home about half an hour before the murder. Dubey’s four friends directly refuted that fact.

“I never said I saw a fat white guy,” Paulio replied. ​“I never said that.”

“So are police making this up?” Ullmann asked.

Judge Blue intervened and called the question out of line.

Paulio also denied being served a subpoena to show up in court: ​“Nobody gave me no subpoena. … If I’d a got it, I’d have came.”

Despite the contradictions, Paulio maintained a tone of earnestness through most of his testimony.

No ​“Deal”

Ullmann also explored whether Paulio got a ​“deal” with the state in return for testifying — a fact which, if revealed, could prove consequential. Just last week, a judge set free four murder convicts after a defense attorney revealed that the state failed to disclose a deal it had struck with a key witness.

Ullmann noted that on Jan. 10 of this year, Paulio was sentenced to two years in prison, followed by three years of parole. The sentencing took place after Paulio spoke to police in August 2012 and implicated Fair in the murder.

Ullmann noted that the state agreed to nolle four other cases, including burglary and violation of a protective order, and let Paulio plead to just one charge, third-degree larceny.

Ullmann asked Paulio if he got a lesser sentence because he was cooperating with police in the Dubey murder case.

“There wasn’t no deal,” Paulio replied.

“They told me that was getting thrown out, period.”

Brian Leslie, a prosecutor who handled Paulio’s case in state Superior Court on Elm Street, testified later Monday that the state did not give Paulio any special treatment in his other cases because of Paulio’s cooperation in the Dubey murder case.

Ullmann also noted that Paulio was testifying under immunity from state and federal prosecution, meaning that he would not be accountable for any crime he confessed to during his testimony.

Wrong Guy?

Ullmann also sought to gather evidence for his theory that Paulio, not Fair, actually carried out the robbery and killed Dubey.

In a coup for the defense, Ullmann found a way to get the jury to hear about two FBI reports that allegedly implicate Paulio in the crime. Ullmann asked Paulio if detectives told him about one FBI report that implicates Paulio in a burglary at Dubey’s home a week before the murder; and another report that states that FBI informants told the FBI that Paulio shot Dubey.

Paulio said detectives didn’t tell him about either report.

Ullmann also referenced remarks cops made in a videotaped interview with Paulio. In the video, they claimed they had witnesses who were ready to say that Paulio did the Bassett Street crime; they threatened him with decades in jail if he didn’t come forward as a witness.

“Weren’t you implicated as a shooter in this case yourself?” Ullmann asked Paulio in court Monday.

“No,” Paulio replied.

Ullmann also sought to get Paulio to talk about a video he allegedly posted on Facebook.

“Do you have a rap song about gangs and shooting, where you kind of pretend shooting people?” Ullmann asked.

Judge Blue cut off the line of questioning. He said it wasn’t relevant.

“If someone became a suspect in this case just because they had a violent [video] on their Facebook page, the line would be a mile long,” Blue told Ullmann. And even if the rap song showed Paulio had ​“violent propensities,” that wouldn’t necessarily mean he isn’t truthful, Blue argued.

Ullmann confessed he had not been prepared for Paulio’s change of heart: ​“This took me by surprise, obviously, this morning.”

Outside of the presence of the jury, Judge Blue later noted Paulio’s appearance for the record: He is a dark-skinned African-American of ​“slight” build. And he doesn’t have freckles. The description is important because it doesn’t match the general description Dubey’s friends gave police: They described seeing a heavyset man with light skin and freckles. (Whether Fair has freckles has been the subject of much discussion: The defense argues that he doesn’t; the prosecutor put on the stand a top cop who claims he does.)

Paulio stepped down from the stand at 12:30, after about two hours of testimony, interrupted by breaks. 

Ullmann then had to decide which witnesses and evidence he plans to bring before the court, in light of Paulio’s morning bombshell.

“How Innocent People Get Convicted”

The state rested its case at 2:19 p.m. In his turn to put on evidence, Ullmann asked the judge to discard Paulio’s testimony entirely.

“The key witness in the case did a 180,” Ullmann said. ​“There is no foundation for the reliability of his testimony.”

Ullmann said the witness had numerous inconsistencies, including denying even being subpoenaed, despite evidence to the contrary.

“His testimony is all over the place,” Ullmann told the judge.

“There comes a point where, when the whole state’s case relies on a witness such as this” — a witness ​“so unreliable, so untrustworthy,” and so disregarding of state law that he failed to show up in court and even tried to escape a prisoner transport van — that the entire testimony should not be used as evidence in the trial, Ullmann argued.

“This is how innocent people get convicted,” Ullmann said.

Judge Blue denied Ullmann’s request. In this case, ​“I have to look at the evidence in the light most favorable to the state,” he replied. He said Ullmann has ​“good fodder for your closing statement,” but the jurors should be permitted to analyze Paulio’s testimony and make their own conclusions about its veracity.

No DNA Evidence

Ullmann then brought forward an expert to show that there’s no DNA evidence linking Fair to the crime. Jillian Echard, a forensic examiner at the state forensic lab, analyzed DNA swabs from the interior and exterior handles of the front door, through which the killer entered Dubey’s home. The swabs showed some male DNA, but none that matched Fair’s DNA, she testified.

In cross-examination, Doyle countered that the lack of DNA evidence doesn’t clear Fair in the crime: He elicited from Echard the fact if the perpetrator didn’t touch the door handle, he wouldn’t leave any DNA on it.

Court resumes Tuesday morning.

Previous Independent stories on the case:
• Video Reveals Police Powers Of Persuasion
• Top Cop Testifies He Never Forgot That Face
• The Sketch Doesn’t Match
• 2 Families, 2 Worlds — & A Quest For Justice
• Does Tashaun Fair Have Freckles?
• State Seeks Informant’s Name; Feds Seek To Hide It
• Defense Attorney Files Speedy Trial Motion In Mitch Dubey Murder Case
• Freckles, FBI Reports Spark ​“Innocent” Claim
• Supporters Emerge For Dubey Murder Suspect
• Dubey’s Killer Allegedly Panicked, Shot