Anatomy of Murder - Wolf in Uniform Clothing (Kimberly Cassas Rivera)

Episode Date: February 7, 2023

A police officer’s death… with the smoking gun lying in her hand. Death by suicide or was it murder? Proving the answer would be much more complicated than anyone thought. For episode information and photos, please visit https://anatomyofmurder.com/ Can’t get enough AoM? Find us on social media!Instagram: @aom_podcast | @audiochuckTwitter: @AOM_podcast | @audiochuckFacebook: /listenAOMpod | /audiochuckllc

There was this dichotomy with him that was hard to explain. He was hailed as a hero. He was given a medal by the mayor of New York, and he had friends who were cops, but he had never been a police officer. The investigation revealed that he liked associating with and hanging out with police officers and even pretending to be one.

I'm Scott Weinberger, investigative journalist and former deputy sheriff. I'm Anasiga Nicolazzi, former New York City homicide prosecutor and host of Investigation Discovery's True Conviction. And this is Anatomy of Murph. There are five manners of death. Natural, accident, suicide, homicide, and undetermined. And when you hear the facts of a crime, you may think it's pretty obvious which category it falls under. But sometimes those lines are blurred. And for today's case, it's not so much about investigating homicide.

It's about investigating if it's a homicide. Our interviewee today is former chief of Brooklyn's Homicide Bureau, my mentor and friend, Ken Taub. I've sat in on some of Ken's cases when I was a reporter here in New York City for NBC and for CBS. I've seen him in the courtroom. The general way he handles family members or the victim, whether it's in the hallways between proceedings or on the stand. And then he could just flip a switch to a razor-sharp focus on his cross-examinations. And of course, I am so thankful he passed the baton on to my partner here on AOM

so she can carve out a path at the DA's office for herself. It all began with a 911 call from a neighbor who had called to report an argument. That 911 call came in on January 13, 1996, and it was just days after a major snowstorm hit New York City. He was an older gentleman, a widower, who lived alone in his house. And he called 911 in response to the arguing he heard going on between what he described as a man and a woman. He said to the nine-woman operator, again, before any shot went off, that he thought the female was going to, I think his words were, do something to herself,

clearly implying that he thought she was going to kill herself. And then while he was still on the phone, a gunshot was fired. The victim was found by police upon arrival. They found the victim lying on the street up against a curb, and she was bleeding from her head with a semi-automatic pistol still in her hand. She had a single gunshot wound to the head. It was not the front of the head and not quite the back,

but closer to the back than the front. But it was a single gunshot wound at close range. And it wasn't before long that officers realized that the deceased was one of their own. Her name was Kimberly Casas Rivera. The deceased was employed by the New York City Police Department working at the 6-8 precinct. This was a woman who had a joy for life. And it wasn't just when they saw her aiding people in her precinct, but she was often seen actually walking the stray animals

who would be brought to the precinct. And that always says to me, Scott, you know, so much about someone. You know, their love for animals very often translates into the type of person that they are. Let's take a sidestep for a moment and talk about Kimberly's funeral. A funeral for a police officer is no small thing. Even though this is not considered a line of duty death, most agencies fully honor their sworn members of the department

with what's referred to as a level two funeral. Level one being a line of duty death. And so when we talk about these police funerals, I'll just paint the picture for you and what I have seen in going to them. And I'll never forget the first one that I went to. It was in Brooklyn for a police officer who had died during the line of duty. And we were not even near the block. I mean, we were blocks away and it was just a sea of blue as far as you could see. The officers, they're not milling

about, they're not joking. I mean, they were basically standing at attention. And I just remember as I drove by, like the solemnity was so clear in their faces, their pain, like really taking in that, you know, they are all family, that you could just see that they felt it. And I'm talking thousands and thousands of men and women in their dress blues. I mean, it just, it's the type of thing that makes your spine shiver the moment you're there. The police department turns out for the death of active duty police officers, whether they were on duty or not. And the funerals are displays of that support and trauma that the whole department endures whenever one of their members dies. Obviously, her funeral would happen a couple of days later. So first, police needed to investigate her death.

And while detectives arrived and began to process the scene, along with crime scene technicians, two other important things to note about who is at the crime scene. First, a decision was made early on to reach out to the Kings County District Attorney's Office. The gun that killed her was her own, not her service weapon, but another. I was made aware of it soon after. I certainly recall going out to the precinct the night it happened. Is it every case that we as prosecutors would report to the actual scenes of homicides? No. There was always certain cases that we would show up for if there was a need to have us there for some piece of evidence, some certain type of cases. And the police officer

was for sure one of those. Again, because it's so many people involved, if there was legal work to be done, we would be there on the scene. And more importantly, police had an eyewitness to this alleged death by suicide. Kimberly's estranged husband, John Rivera, who was with their eight-month-old son. At the time of the shooting, their son was strapped in his car seat and the vehicle was parked just up the curb. John told police that she was distraught and before he could stop her, she put a gun to her head and pulled the trigger. A couple things about this gun.

The gun was found in Kimberly's hand, and the gun was registered to Kim also. Her estranged husband, John Rivera, was at the scene and described to the police how he had been there to drop off their eight-month-old boy in common and how Kim had been distraught over their pending divorce. An argument had ensued in which she drew a gun and put it to her head and shot and that he attempted to stop her from doing that, but was unsuccessful. There's two things we need to look at here. Any factors that would lead to a death by suicide, such things as depression, mental health issues, stressors, any prior potential suicidal thoughts. But you also have to look at the other person in the room, the only witness, Kimberly's husband, John. Every officer is entitled to own whatever weapons additionally they see fit to own

with the one proviso that they must inform the New York City Police Department what they own. And the gun that was found in Kimberly Cassis' hand that night was in fact on her card. In fact, her fingers were still strapped around the handle. And let's make a note of that because it will become important later on. So, you know, Scott, obviously just on its face of what we've talked about so far, it's certainly on its face would point to, hey, is this death by suicide? It seems like it could be a straightforward death by suicide, but so many steps are left to make a real determination. Interviews, witnesses besides the husband if they exist, victimology, forensics, autopsy. Some witnesses interviewed during a canvas described some sort of verbal

argument going on before the shot got fired. And obviously we need to touch upon the marriage. Kimberly and John met as members of a motorcycle group. They went on a trip to South Carolina with the group. And somehow, to the surprise of her mom and sister, had married John Rivera on that trip. And it was not something that they had any inkling of whatsoever beforehand. Now, understand, I had no idea of the family makeup beforehand, but it seemed as though Kim realized that this wedding had been a mistake from the onset.

It kind of reminds me of the people who go to Las Vegas, and they go to a chapel at night and get married, and by the next morning they realize, you know, what did we do? I don't know if that was their original intention intention or maybe they did have plans for the future. What also took them aback is that when she came back, she not only told them that she was married, but she didn't move in with her new husband. She moved right back in to where she'd been living, which was with her mother and sister, while John, the new husband, maintained a separate residence. She chose never to live with him. She did not need him for financial support.

She had a good job. Her sister and mother had jobs. John Rivera had a basement apartment as his residence, and it was outside of that apartment where the incident occurred. But one other thing from the trip was evident. Kimberly didn't come back with just a new husband. She also soon learned that on that trip is when she became pregnant. So now she was attached to him and nine months later bore the child.

John told investigators that since the baby, the relationship began to fall apart and they broke up. He says that she is so distraught at the breakup of their marriage. And I believe that I've also read that he alleged that she had suffered depression since she'd had her son. And so all of those factors could contribute to this death. And detectives in no way just assumed, hey, this is going to be a death by suicide. In fact, they thought the opposite. They were quite suspicious about some of the circumstances. And was this maybe a crime instead? And the first thing that they noted and that made them suspicious was the placement of that gun. For me, this was the first big red flag. I talked about the fact that the gun was still in a firm

grip in her hand. And according to her husband, she was standing when she put the gun to her head and pulled the trigger. Think about a gun. Someone pulls the trigger. Well, I think we all know, even if it's just from seeing it in the movies or on TV, that there's what's called this kickback, you know, that there's the way the arm moves from the force of that projectile emitting from the gun. And so if you're shooting your own body and if you fall to the ground, well, common sense says that that gun may likely no longer be in your hand when you fall. But as Scott noted, it was firmly in Kim's hand.

The ability to maintain a grip on a gun is impossible. She was dead instantaneously from the bullet to the head, and her ability to hold a gun would have been completely impacted by the nature of the wound immediately. So police arrive, and they quickly take Kim to the hospital and start to analyze, you know, what they have at the scene to try to figure out what's what. But remember, her husband, John Rivera, was there. So they speak to him very quickly, but then they take him to the precinct where they can sit him down and speak to him in

more depth. Well, he's there not just on his own, but with his attorney who wouldn't allow him to say much at all. The detectives were also interested in whether her husband would agree to have his hand swabbed in what we call a GSR or a gunshot residue test, which detects the presence of distinctive chemicals that are deposited on a person's skin or clothing when a weapon is fired. Gunshot residue tests of living persons are not particularly informative. And in fact, the New York City Police Department, despite having a world-class laboratory, never performed gunshot residue tests because the presence of gunshot residue doesn't necessarily indicate that the person discharged the gun. They may have just been present and close by. Yeah, it's my experience that gunshot residue tests, for the most part,

are considered reliable, but it's not without problems. You know, the residue can easily be washed off of someone's hands or even simply brushed off your clothing. But here's where the reliability just goes out the window. The most effective test must be conducted within four to six hours of the shooting. Otherwise, it really does become pretty unreliable. Except that this was a police officer's case they were investigating the death of, and that might have prompted them to ask him, but the lawyer prohibited it, and the defendant wasn't allowed to say anything one way or the other about it by his lawyer.

Even if John Rivera had gone forward with a gunshot residue test and it showed there was residue, it could have easily been explained away. In this situation where the story was he was attempting to stop her from shooting herself, he would have, of necessity, his hands would have been near hers when the gun discharged, and therefore he could have innocently wound up with gunshot residue. Put in the fact that John quickly lawyered up and refused the test, added to their suspicion. But the biggest warning sign actually came from the medical examiner's office during the autopsy. That I contacted Dr. Jonathan Arden, who was the chief of the Brooklyn medical examiner's office, and I was extremely grateful that he was the one that chose to do the autopsy himself that morning because he was and is as good a forensic pathologist

as you could possibly want. And John had quite a reputation for being an out-of-the-box thinker and an exceptional medical examiner. He honestly is an icon in the industry, if you will. He is someone who has testified all throughout the United States, whether it's high profile or cases that were very complicated and needed an expert's eye. And we talk about thinking outside of the box. He always, there's this knack of analyzing things much deeper, but yet in a very easily digestible way that he was great, not just from his insight,

but the way that he could explain that to us as prosecutors, the police, but also to jurors on the stand. He wanted to know more. The nature of the wound and its location towards the back of the head were not the most common locations for somebody killing themselves. Normally in self-inflicted gunshot wounds, the persons either place the weapon in their mouth or place the barrel up against their own temple. And this was neither of those two. And again, a lot of this comes down to common sense, at least to make police question you.

Even now as you're listening, picture this. If someone had a gun in their own hand, and this is an easy thing to see for yourselves, and they were to take it and place it behind their own head, it's clear to see what an unnatural position that is, when you'd have to perhaps take the safety off, but definitely be able to exert enough force to pull the trigger. It's just an awkward position, so that is why it is rarely found in self-inflicted wounds. So it was not completely inconsistent with suicide,

to say the least. He was not ruling it out. He said it was certainly in a small minority of gunshot wounds that turned out to be suicidal. And the shape of the wound is what gave investigators a particular interest in this case. The first thing he mentioned was the nature of the wound, and he described it as a keyhole wound. In other words, round with a small slat at the bottom, almost like a key,

which is not normally consistent in a wound being self-inflicted. The second thing, and the most prominent thing that he discovered upon autopsy, You know, we've mentioned gunshot residue, we've talked about how we don't do the test for that. But in Kim Rivera and Cassis's case, there was a distinct gunshot residue on her right thumb, around the knuckle of that thumb, and it was black in color. It was very obvious that there had been a substantial discharge from a weapon. And in fact, ultimately, it came back as consistent with gunshot residue. They just couldn't understand why that what appeared to be gunpowder had caked up by her thumb. And so here's where a prosecutor is working hand in hand with investigators and even the

medical examiner as they try to together figure out what's what. It was my idea that we test fire the gun multiple times using exactly the same brand and type of ammunition as was found in the gun. Ken actually recommended that they do white glove testing, and that's exactly what it sounds like. The operator who's doing the test put on a white glove, a cotton glove that absorbs gunshot residue, to put it on the hand of the operator while he fired it so that we could see, in fact, in multiple firings, whether the soot would wind up in the place where it wound up on Kim's thumb. In none of the 20 shots was there any noticeable gunshot residue. In a lab, forensic technicians were able to determine that a black smudge was not caused by gunfire.

And so when the medical examiner put all the pieces together, along with the autopsy, the examination that he conducted, a new report came back, and the report now listed that was not Kim that ended her own life. This, in fact, was murder and not death by suicide. We'll be right back. And again, he's the only other person out there with her. And we know that the marriage wasn't all rosy. They're living in separate places. They're actually going through a divorce proceeding. So for sure, we're going to start by looking at him.

You know, for all accounts, you may be thinking he's somebody who has some type of tremendous criminal background. Somebody who may be looked at not only as somebody who could be involved in the death of his wife, but may have committed a bunch of crimes as well. But actually, it's the opposite. Rivera worked as a bus driver for the New York City MTA. His bus route took him through the streets of Brooklyn. In fact, it was something he did at work one day

that had people calling him a hero. I mean, he was on the cover of the Daily News, which is a very big local paper in New York City, because as a bus driver, he'd basically gotten off his bus when he saw flames coming out of a hero. I mean, he was on the cover of the Daily News, which is a very big local paper in New York City, because as a bus driver, he'd basically gotten off his bus when he saw flames coming out of a building, ran inside, and he was responsible for saving lives. And he was hailed appropriately as a hero. He was given a medal by the mayor of New York at the time, and his picture was on the front page of the New York Daily News getting that medal. And so it's not the person that necessarily on his face that you would now be looking at or think would be looked at for taking a life.

As it turns out, in a lot of these situations, there was a lot more to learn about Rivera. He was known for something else. He had a temper. And the best evidence of that is over the course of the time between that heroism and the time of the homicide, he had lost his job as a bus driver, apparently due to violent outbursts on his part that were inappropriate. And he had demoted to a bus cleaner and his job was to sweep them up. And he lost that job as well because of his temper and arguments with colleagues and wound up being fired by the MTA. There was this dichotomy to John that was hard to explain.

And here was something else that I found interesting, is that he had an obsession with police officers. I mean, this is the guy that you would really call a police buff. He had never been a police officer. He liked associating with and hanging out with police officers, weightlifting and bodybuilding. And he had friends who were cops. And that wasn't the part that I found so odd, but it was that he went so much further. The investigation revealed that he had gone as far as to own a full dress NYPD police uniform, which he was photographed wearing at a national police convention in Washington, D.C. one year before this incident. He also created fake badges and he got caught with them. It's deep. Look, we don't know any of that world. And this was my only exposure to it. But it struck me as pretty intense that he

would go as far as to have a custom made perfectly fitting uniform, and then go down to Washington and pretend to be a cop. Again, I'm just putting this together as total guesswork. But then I was thinking about this whirlwind romance between him and Kimberly. And if we know that he is a guy whose eyes light up with, you know, anyone wearing that badge. So he meets this woman who now he's obviously into motorcycles because they're on a motorcycle trip. And she's also a police officer. And by all accounts, she's this, you know, lovely person on top of it. You can just see that relationship going from zero to 60, at least on his part, potentially. But, you know, detectives interviewed Kimberly's family to get their impressions of her marriage, as well as a better sense of her state of mind at the time of her death.

You know, a very important part of trying to answer the question, was this death by suicide or was it murder? And the family told investigators it was very contrary to what her husband was saying. Their family said, no, she's not distraught. You know, they got married, they shouldn't have, and she's going through this divorce and moving on. So again, it doesn't equal murder, but it is painting a very different picture than what he's saying.

So if he's saying things that aren't accurate, you have to start to really question why. Detectives wanted to dig deeper into the weapon Kimberly was holding when she died. They had confirmed that Kimberly had filled out what's called a 10 card at police headquarters, which is a card that goes on file documenting which guns each member of the department have in their possession, including their on-duty firearm. It confirmed that the weapon was officially registered to her.

And so there's this really interesting backstory here, and that is that John Rivera was also into weightlifting and going to the gym, and a couple of the guys that he befriended there happened to be, no shock here to you, police officers. One of them left the department and became a firefighter. And as such, he could no longer carry a handgun,

and so he surrendered his gun to his father, who was a retired police officer. Tragically, that friend of John Rivera died on a motorcycle accident on the Brooklyn Queens Expressway. And John Rivera then apparently at some point went and asked for that gun, to which the retired officer is like, hey, I can't give this to you. You know, you don't have the permit to have this firearm, and that's illegal. John initiated another conversation with this officer and told him that he was now married

to an active New York City Police Department employee, and could he give that gun to her, to his wife, John's wife, Kimberly? And the officer said he chose to do that and that they actually met at City Hall. He transferred the gun to Kim and Kim subsequently recorded it on her 10 car. And so it really becomes kind of strange. Now, they say that Kim said she wanted it, but you do start to think this question mark, if he wanted it, was this just another way of John Rivera getting that gun? So John Rivera did a workaround.

He went to Kimberly and said, I want this weapon and I need you to go on the record for it to be able to possess it. And just on that, you start to say, well, wait a second. Could it be that he had been thinking about this for a while and even almost had pre-planned this? Hey, if the gun is hers on paper, then it might go towards she took her own life. Or is it one of those things that, you know, life can be stranger than fiction and it really was exactly what it seemed and they aren't ever going to be able to prove it? Coincidentally, was that same gun. I just thought it was an interesting thing that that was the gun because obviously they had more than that one in the house. It's the way this investigator was able to unravel and peel the onion on the travels of this weapon, that it went from a member of the department who had retired and went to somebody else, then John Rivera wanted

it, and then his wife took custody of it because that was the only way to get it done. But his intention seemed to be all along to get possession of that weapon. And that would be the weapon in her hand on the day she died. And that information that investigators were able to hand Ken would be so important. If this goes to trial, how important that would be. I look at it as like the ball of string. And can you unravel the string? And do you end up at John Rivera?

Well, certainly this piece, it is leading in that direction. But to Ken and investigators, things were starting to look very likely that it was John that certainly had the means to kill his wife, Kim. But then they needed to start asking other questions. Did he have the motive or even a history of violence? Detectives were beginning to paint a picture of a marriage that was not only unhappy, but getting violent. In fact, months before her death, Kimberly had filed an order of protection, which required him to stay away from both Kimberly and their eight-month-old son. When we hear order of protection, most of us know what that is, or at least have some idea.

But, you know, you can get them a couple different ways. It's not always in a criminal proceeding. You can also get it in a civil proceeding. And basically the purpose is just this. It is to limit the interactions between people. And, you know, it's not like you have to prove beyond a reasonable doubt that anyone is threatening you or that anyone has been violent towards you. But you do have to apply to a judge, and a judge does have to determine that there is some evidence of discord or problems that they think it is safer for the parties or at least one of them to legally be

told to either stay away from each other or to at least not engage in the prohibited behavior. But in September of 1995, about four months before the death, this happened to Kimberly. She had been walking her dog and her son in a park nearby with a girlfriend of hers when John stormed up, was angry that he wasn't able to see his son because I guess they couldn't get the third party available all the

time. And he basically violated an order of protection by approaching her at all. And then in a nasty argumentative way, confronted her, which was witnessed by this friend and threatened her as well, such that she had him arrested for violating that order of protection. Yeah, it's interesting, Anastasia, that clearly Kimberly knew exactly what constitutes a violation of an order of protection. It's something that every uniformed member of any department anywhere in the country is well familiar with. But here he did it in a very public way.

But now he had to appear in court for breaking that order of protection. And the case was still pending in criminal court at the time of Kimberly's murder. So I think all of us can put two and two together now and figure out John's motive would be for killing Kimberly. Could he have been so angry when she got the order of protection, which was preventing him from not only seeing her, but seeing his son? But could this make him snap? You could certainly see how the ante is being upped. And remember, they knew that he had a temper that had gone so far that he had recently lost his job.

These are different things that could be igniting a tinderbox, but it didn't stop there. As it turns out, the attorney that Kimberly had hired to help her prepare divorce proceedings was someone that John Rivera knew. And in what's considered a very unorthodox move, he reached out directly to Kimberly's attorney, but it wasn't about trying to reconcile the relationship between husband and wife. He was so angry that she was considering doing this and threatened to kill Kim.

And his threats didn't just stop to Kim herself and her lawyer. In addition, there was a conversation he had with a fellow worker that he was angry at his wife and that he wished she were dead. It wasn't taken seriously, as one can easily understand. People make threats all the time that they never follow through on. Investigators had enough information to execute a search warrant for John Rivera's apartment. They were looking for hard evidence, enough so they can get an arrest warrant for the man that they believed was responsible for Kimberly's murder. And in John's apartment was found the original box that the gun came in, the instruction manual that came with it, and an additional set of hand grips that fit that gun.

So while this gun may have been registered to Kim, it was John Rivera who appeared to have been in possession. But it was also intriguing that they couldn't find any evidence that would show that Kim had displayed any sort of issue with him having that gun even after they'd begun the divorce proceedings. So it did still have this bit of a question mark floating around it. Yeah, and with that question mark, they decided to go to Kimberly's apartment and to really do a search there. And they were looking for any further evidence of a volatile marriage. We recovered from Kim's apartment in her family house, an old-fashioned answering machine device with a cassette tape

that recorded incoming and outgoing calls. We're talking a back-in-the-day rectangular box that has a cassette tape. Many of you aren't even old enough to know what that is, but you've probably seen them, you know, in some black-and and white film. Well, for us, it was still in color. Took me like 15 times to do an out-corded message. And it would get messed up and you'd have to like hit erase. But that's exactly what the issue was. They found this tape recorder in her apartment, but because of the mechanism that it worked on, you know, it would just record over itself as it got to the end.

So the tape we recovered was a series of messages in which stuff had been recorded over, and it was very difficult to ascertain exactly what the beginning and end of each message was. But here, too, is where Ken got involved to see what he could make of the messages. Yeah, they take a real scientific scrub to determine not only if the messages were ever left, but even if they were erased at a certain time. Could forensic science recover them? Even the NYPD, as sophisticated and with all their resources, there's only so much that they can do within. And so now it was. It's like right out of the movies. Ken ends up in Quantico, Virginia,

because the FBI, they really do have those labs with all the different resources like you see on TV. And I was blown away by the effort that the FBI made in this case. And it was not a simple procedure by any means. They may have spent literally hundreds of hours doing the work to analyze it. Ultimately, I didn't get everything I wanted out of that tape. But Ken did receive one message that would prove incredibly beneficial in building that case against John Rivera. Which was the recording made by her machine a short time after the incident in the park

where John had confronted Kimberly. And he called threatening all kinds of things, just a stream of anger. It showed his anger at being contacted by the police immediately after that incident in the park. So Ken felt on the strength of the ME's reports, what they learned about Rivera's anger, and the evidence of the gun box which was found in John Rivera's apartment, he had enough now to go to trial. We charged him with both intentional murder and depraved murder. And I don't want to get too deep into the legal weeds or all of you will just honestly probably turn this off and so be so bored by my explanation. Including me.

Including you. I end up doing the rest of this podcast by myself and I won't do that to the rest of you all. So basically it's this, you know, intentional murder, you all know what it is. The intent to take someone's life. And that can be formed at the moment you, in this case, pull the trigger of the gun, that you want that person to die. And when they die, you have achieved your goal. Well, depraved, you don't have to actually intend their death, but the law holds your conduct, which is much more than reckless. I think that's termed as a gross deviation from a standard of conduct that we would expect from one another, that it is equal to intentional murder under the law. And the example that we always use is someone that has a loaded handgun, walks into a crowd,

and fires that gun. They don't necessarily intend to kill anyone in that crowd, but you can certainly understand and expect that that might be the result. So the law says it's so blameworthy that you are held to the same standard and also the same penalty. But we used to charge both of these counts hand in hand all the time. The reason we did so is that we didn't, as a practical matter, care which count

the jury found him guilty of because they were equally punishable and it didn't matter to us. And whichever made it easier for the jury found him guilty of, because they were equally punishable, and it didn't matter to us. And whichever made it easier for the jury to understand and convict is what we went along with. If we are alleging that John Rivera, right, and they were, that he killed his wife purposely, one, intentionally, well, then, yes,

he planned to kill her, or at least at that moment he was so angry that he intended to kill her, so he fired the gun intentionally and took her life. Or maybe he brings the gun he planned to kill her or at least at that moment he was so angry that he intended to kill her. So he fired the gun intentionally and took her life. Or maybe he brings the gun there not to kill her, but it's loaded and he just wants to scare her. He wants to threaten her. And again, she's a police officer. So he thinks if he has the weapon, it's going to do a better job. And they start to argue, maybe even start to tussle with that gun.

The gun now goes off and then she dies, right? Because it's being held near her head. He didn't actually intend to kill her, but that's what happened. And yet bringing a loaded gun to an argument and having it in your hand is so blameworthy under the law that it will equal the same level. So the jury could find,

ah, maybe he didn't mean to, but yes, he brought the gun, he used the gun. It's going to still be his fault. And based on all the evidence presented at trial, Ken gave us what he thought happened on that cold January night in 1996. I always envisioned that she came to pick him up in the absence of that third party and had already strapped him in the chair, and that John continued to engage her in the way that apparently he had demonstrated to others,

you know, this anger, this temper, these fits of rage, whether it was that he was angry at the continuing case or that he really wanted to get back with her, I don't know the answer to that, and I wouldn't even hesitate to guess. But I'm sure he was angry about that continuation of the case, and I'm sure that Kim must have said, I'm not dropping it. So the trial would last three to four weeks, and during deliberations,

one of the jurors got sick and needed to be hospitalized. Tuesday, the juror is released from the hospital, and we actually called the doctor from the hospital to testify that he was quite comfortable, despite her heart problems over the course of the last week, he was quite comfortable with her resuming deliberations. The juror was able to get back into deliberations, and they did render a verdict. John Rivera was guilty of depraved murder. John Rivera was sentenced to 23 years to life. Rivera appealed his case to the state and that was denied. But he didn't stop there.

Well, after his appeals had been unsuccessful in the state system, John Rivera's lawyers made a motion in federal court to set aside the conviction based upon the now clear issue in the law regarding the difference between depraved murder and intentional murder. And they argued that if he was guilty of any murder at all, he was guilty of intentional murder, and therefore the depraved murder could not stand. You'll normally think that after the trial and sentencing,

at least the legal proceedings are over, at least the story's done. But not at all here. You know, after he went through those appeals, there was going to be so much more to the story that was definitely going to cause all involved much more than angst. In the Second Circuit, a three-judge panel ruled that he had been, in essence, convicted of the wrong type of murder. And his conviction was overturned. In this huge surprise to all, John Rivera's conviction had been overturned now at the federal level. So Ken is being faced with having to try this case if he could even try it at all again.

And if he can't, that means that in his mind, a murderer is about to go free. And that is where they really started to scramble and see what, if anything, could be done. I didn't even think I'd have that chance. I think that under the law, we might not have been able to retry him at all for either type because a conviction for depraved is deemed to be an acquittal of intentional. And therefore, I had nothing left to try him on. So this would have mean he was set free. I'm sure lots of listeners are trying to figure out how did this happen?

Why did this happen? What I remember doing is calling the family and telling them. And then I had occasion to call Kim's attorney and who knew John Rivera separate and apart from her representation of Kim. She immediately said to me that she was going to close down her practice and leave New York State. I mean, that is talks a whole level of fear. And you have to wonder about Rivera, how he could instill that type of fear in this attorney. I mean, he was able to violate his order of protection against his wife very easily in public in front of one of her close friends. He wasn't bashful about making it known to everybody who stood in his way,

anybody that wanted to keep him in jail, that they could be a target. And, you know, obviously in this case, the fear was real. I'll never forget that because, you know, this was an attorney talking with a long established practice. And the family was distraught for more than just that reason. They were raising Kim's child and they were afraid that Rivera would seek parental

rights. I attempted to persuade them that it was not of grave concern to me that in my experience these things didn't happen. That she had the whole police department behind her to protect them if that turned out to be the case. Ken is obviously upset and figuring out what, if anything, can be done because, again, I

don't want to get into legal minutiae, but there was a chance they couldn't even try the case again because basically the intentional murder would be deemed an acquittal. So while they're trying to figure out what they can do, he actually goes to our then head of the Appeals Bureau, a man by the name of Lenny Joplin. I can tell you that he is one of the smartest human beings that I have ever met before. And he's just amazing on the law to see what, if anything, he could help figure out in this case. Just think about how rare this move is, trying to reverse a reversal. It's a lot of work that needs to go into it and a lot of hard legal minds

getting together and trying to do what they need to do to find out where and how in the law they can do it. And Lenny studied the issue and looked at it and understand that these habeas things involve the federal court applying New York law. And when they do so, they look back at all the decisions, including all the decisions that came after this case in which New York courts had dramatically restricted the use of depraved murder. And so the federal court is looking at this and Lenny decided on his own that he was going to write a brief asking the same three judges who had decided to overturn Rivera's conviction to reconsider their decision in light of arguments that he wanted to make now. But then the news that Ken, Kim's lawyer, and her family were hoping for, it happened. It actually happened.

Lenny called me with the great news that they had reversed themselves and issued a new decision upholding the conviction. The reversal of the reversal. I mean, what a big day for the prosecution and certainly for Kim's family. But that didn't end Ken's concerns. I mean, he still believed that Rivera was dangerous

and still had not taken responsibility for the crime. So Ken wanted to take extra steps to write the parole board on behalf of Kimberly's family to keep him in jail for years. And I can tell you, I used to sit there and watch him writing these over the years because it was so important to him based on everything he knew that the parole board knew what they were dealing with, what had happened, something they may not get if they didn't read it concisely in his letters. And that really just talks about his dedication to this case and as a prosecutor. By all accounts, Kimberly loved her life, loved her child, and was on a brand new journey to find love once again, cut short by a bullet

and a failed attempt to blame the true victim. When she was killed, it wasn't because of her badge. Kim was a young woman, a wife, a mother. And I really think it adds insult to injury that when he took her life by his hands, that Rivera also wanted their young son to believe that his mother took her own life. But then if we flip to the other side, the brighter side that I see in all this, it goes to Kim's family. Kim's sister had to reel not only from the loss of her sister, but that her life was effectively turned completely upside down. She ended up raising Kim's son, who had and has significant disabilities.

And look at how this woman's life completely changed. I always viewed her sister, Stephanie, as a victim here and basically forfeited her entire life, her work, her social life, her potential for marriage to become the parent of the son and never has spoken a word and will need care his entire life. But she, Kim's sister, always made it clear to Ken, no, no, no, no, no. All that, that piece is a blessing. That is the gift in all of this, that her son now lives with me. And that really talks about the other side, the best that humanity can bring and show. And I think that that will be Kim's legacy in her sister and hopefully that bright path for her son. Tune in next week for another new episode of Anatomy of Murder.

Anatomy of Murder is an AudioChuck original. Produced and created by Weinberger Media and Frosetti Media. Ashley Flowers and Sumit David are executive producers. So, what do you think, Chuck? Do you approve? No!