For years, he professed his innocence after a murder conviction. Now, he'll get a new trial.

PROVIDENCE – A judge overturned the murder conviction of a New Bedford man serving two consecutive life terms for a fatal shooting outside a club in 2012 after finding that the state relied on false or misleading DNA evidence at trial.

Superior Court Judge Luis M. Matos granted a new trial to Terrel Barros, 34, in the shooting death of Jamal Cruz and the wounding of Rokiem Henley on Aug. 26, 2012, outside Monet Lounge in Providence.

While Cara Lupino, the DNA expert for the state, concluded that the DNA found on the handgun excluded Barros from handling the weapon, the judge ruled "it appears that the prosecution specifically elicited the testimony to create a false impression that Barros’s DNA was on the gun.”

Lupino, who testified at trial that multiple people had handled the weapon, admitted during a post-conviction hearing that some of her trial testimony was incorrect, according to the ruling.

The case was prosecuted by Stacey Veroni Erickson and Peter Roklan, who are both now with the U.S. Attorney's Office.

“Not only did the prosecution fail to correct the evidence, but the prosecutor reinforced the testimony that insinuated that Barros’s DNA was on the gun during the state’s closing arguments ... The presentation of false and misleading evidence by the state was material because a reasonable likelihood exists that the evidence could have affected the judgment of the jury,” Matos said in the ruling Friday.

Robert Kando, who has represented Barros in seeking post-conviction relief since 2017, said Monday that he plans to seek his client’s release on bail after 11 years in prison. Barros is being held in maximum security at the Adult Correctional Institutions and has always professed his innocence.

Brian Hodge, a spokesman for the Attorney General’s Office, said prosecutors were still reviewing the decision and did not comment on whether the state would appeal.

A night of partying turns to tragedy

Testimony at Barros’s 2013 trial revealed that Henley and Cruz had traveled from Brockton, Massachusetts, hours before the shooting to attend a friend's birthday celebration at the Monet Lounge. They were seated in the VIP area, with bottles of Hennessy and Ciroc on hand.

Henley, who was shot in the leg, identified Barros as one of the two men with whom 38-year-old Cruz had argued inside the club shortly before closing, causing tensions that spilled out into the parking lot.

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While the police said Cruz nodded that Barros was the shooter as he told officers "I'm fading, I'm fading,” a lawyer for Barros insisted it was Stephen Bodden, Barros's companion, who shot the gun that night. The late Thomas Connors, who with Joseph Voccola represented Barros, told jurors that police found Bodden jamming the gun into the passenger side door after the shooting and that evidence would show Bodden's DNA, not Barros's, was on the gun.

In addition, there was evidence that Bodden told the police “It’s me. It’s all me. It’s all mine.” Barros tried to call Bodden as a witness at trial, but he invoked his Fifth Amendment right against self-incrimination.

Barros was found guilty on six counts, including the first-degree murder of Cruz. Superior Court Judge Robert D. Krause sentenced him to two consecutive life sentences plus three consecutive 10-year terms for the shootings of Cruz and Henley.

Bodden pleaded guilty to charges of carrying a pistol without a license and common law felony. He was sentenced to 10 years at the ACI, with four to serve, on the charge of carrying a pistol without a license, and a full term of five years on the common law charge.

Witnesses come forward after Bodden’s death

In overturning the conviction, Matos emphasized that the central question at trial was who committed the shooting: Barros or Bodden.

Kando presented statements by several of Bodden’s associates who identified him as the triggerman, but who also said they were too afraid of retribution to come forward until after his death in 2017.

Matos determined that most of those statements did not qualify as newly discovered evidence because they were known associates of Barros and Bodden who were questioned, or could have been, by defense lawyers before trial. But he ruled that was not the case with Bodden’s close cousin, Gloria Parajon.

According to Parajon, Bodden immediately confessed to her upon his release from the ACI and that she wasn’t surprised based on her knowledge of his character and reputation.

“Parajon failed to come forward, presumably due to her loyalty to her cousin. Critically, Bodden is now deceased. His reckless and violent life caught up to him when he was murdered in October of 2017. Unencumbered by the threat of Bodden’s presumed retaliation, his associates and family now freely profess his guilt,” Matos wrote.

Matos found that Parajon’s testimony, had it been heard at trial, “is of a kind that could change the verdict at a new trial since it offers new and exculpatory evidence.”

“Parajon would testify that Bodden admitted to being the shooter, the issue in this case, which would obviously be significant in light of the competing evidence that was presented at trial. The testimony would add to and give context to Bodden’s statement that, `It’s me. It’s all me. It’s all mine,’” the ruling states.

Judge also rules original counsel was ineffective

Matos ruled, too, that Barros’s Sixth Amendment right to effective assistance of counsel was violated when his defense lawyers failed to appeal the trial judge’s ruling regarding Cruz’s verbal statement to Providence police Detective Sean Maxwell.

Maxwell told jurors that he asked Cruz while he was in the back of the ambulance who shot him and he responded that "'it was the second person the police had showed him. The second guy.’”

Judge Krause found at trial that Cruz’s statements were not testimonial because they were elicited for the primary purpose of resolving an ongoing emergency and that Maxwell’s question was not investigative. The defense counsel stated that he chose not to appeal Krause’s ruling because he thought that the trial judge “made a sound ruling.”

Matos, however, found that more than 10 minutes had passed before Maxwell’s arrival on the scene – after the police had secured a handgun and detained Barros and Bodden. Another detective had already conducted a “show-up” in which Cruz had nodded at Barros.

Matos determined that Cruz’s purported statement to Maxwell was a testimonial statement and thus was subject to the Sixth Amendment’s Confrontation Clause.

Matos reasoned that “without the statement to Detective Maxwell, the state’s case is premised on the contradictory statements of who possessed the gun, the head nods, and is undercut by Bodden’s statement that the gun was his. Thus, there is certainly a reasonable probability that the outcome of Barros’s trial would have been different if defense counsel appealed the trial judge’s adverse ruling regarding Cruz’s verbal statement.”

Matos concluded that defense counsel’s failure to appeal such a decision amounted to ineffective assistance of counsel because it was “objectively unreasonable …. [and] prejudiced Barros, especially in light of the remainder of the conflicting evidence at trial.”

This article originally appeared on The Providence Journal: Terrel Barros, convicted of killing Jamal Cruz in 2012, gets new trial