“Your honor, you just made yourself a witness!” exclaimed defense attorney Harold Baker in a Brooklyn courtroom in the summer of 2017.
After excusing the jury, Judge Neil Jon Firetog told Baker that he was holding him in contempt of court. “It’s either $1,000 per day or jail,” decreed Firetog.
“I’ll take jail,” Baker replied.
Firetog ordered the court officers to put handcuffs on Baker, then place him in a holding cell next to his client, Bryan Aponte. Baker, a former Brooklyn prosecutor, called another veteran courthouse lawyer who came and resolved the dispute, enabling Baker to complete the trial.
The jury deemed Aponte guilty of a high-profile 2015 murder in East Williamsburg, and Firetog sentenced Aponte, then 22, to 33 years-to-life. But last week, a four-judge appellate panel unanimously overturned the conviction, finding multiple problems with Judge Firetog’s handling of the trial.
“I was confident this one would be reversed,” Baker tells the Indypendent, adding that Firetog’s behavior was repeatedly “inappropriate.” As for why he chose jail instead of the fine, Baker explains that as a court-appointed 18B lawyer, “I was only getting $75 an hour, so I wasn’t going to pay a thousand bucks.”
That Baker was paid for the time he spent in Firetog’s jail only adds to the absurdity of the incident.
As the appellate ruling explains, at the trial Baker presented a “misidentification defense,” arguing that Aponte’s accomplice, Ryan Cruzado, fired the shots that killed Michael Matusiak, a 53-year-old metalworker, and severely injured a 13-year-old girl on her way to school. Although Cruzado pled guilty to the charge of hindering prosecution, he did not testify at Aponte’s trial.
At the trial, Baker says, Brooklyn ADA Howard Jackson sought to prevent any testimony regarding the physical similarities between Aponte and Cruzado. And Judge Firetog sided with the prosecution every time. At one point, Firetog advised the jury that there were no similarities between the two suspects, causing Baker to call Firetog a “witness” and sparking the fireworks.
The appellate judges found fault with numerous actions by Firetog during the trial, arguing that he appeared to be an “advocate” for the prosecution. According to the ruling, several times during Baker’s closing argument, Judge Firetog chimed in “objection sustained” despite the lack of “any actual objection being posited by the People.”
As Baker recalls, “Not only was Judge Firetog interrupting me, which was extremely frustrating—he was also making comments that were prejudicial to the jury and undermined my client’s right to a fair trial.”
As another defense lawyer who handled cases in Firetog’s courtroom says, “It was like going up against two prosecutors.” Although Firetog retired at the end of 2017, as the Indypendent has reported, the close ties between Brooklyn judges and prosecutors continue to hurt defendants.
The appellate judges ordered a new trial for Aponte. Given the prominence of the case—it played out during the 2017 primary race for Brooklyn district attorney, with the sentence announced less than two weeks before election day—it seems likely that Eric Gonzalez’s office will retry (rather than drop) the case.
Should there be a new trial, one hopes that the judge will at least try to remain neutral.