False wit­ness: Judge tack­les mis­taken iden­ti­fi­ca­tions

Daily Local News (West Chester, PA) - - LOCAL NEWS - By Maryclaire Dale

PHILADEL­PHIA >> Talena John­son was sure she knew the man who shot her.

She was wrong, and Ge­orge Cortez was sent off to prison for life. His looka­like brother now ad­mits shoot­ing John­son and killing her friend out­side her north Philadel­phia child care busi­ness in 2011. Cortez spent five years in prison be­fore he was ex­on­er­ated this year.

U.S. Ap­peals Judge Theodore A. McKee calls sim­i­larly botched tri­als no fluke. Sci­en­tists now un­der­stand that eye­wit­ness iden­ti­fi­ca­tion can be com­pro­mised by stress, dark­ness, fad­ing mem­o­ries, lead­ing ques­tions, cross­ra­cial misiden­ti­fi­ca­tions and other fac­tors. As le­gal schol­ars ex­plore those pit­falls, McKee this fall formed a panel to pro­pose new trial rules for his three-state cir­cuit, af­ter hear­ing a case that makes him fear an in­no­cent man has been on death row since 1992.

“Just be­cause they (wit­nesses) are un­equiv­o­cal, doesn’t mean they’re right,” said McKee, who just fin­ished a term as chief judge of the 3rd U.S. Cir­cuit Court of Ap­peals in Philadel­phia. “The law has not kept up with the sci­ence.”

McKee wrote a damn­ing opin­ion in the death-row case in Au­gust, con­cur­ring with the 5-4 ma­jor­ity that granted a Philadel­phia man named James Den­nis a new trial in the 1991 tran­sit stop mur­der of a high school ju­nior killed for her $450 gold ear­rings.

The vic­tim’s friend iden­ti­fied Den­nis as the killer, but only af­ter po­lice work now deemed ques­tion­able. The teenage friend had been hes­i­tant about the match be­fore po­lice as­sured her she had done well. She then con­fi­dently iden­ti­fied Den­nis at trial.

Mean­while, po­lice waited two months to con­duct a lineup, and put four eye­wit­nesses in the same room for the ex­er­cise. And Den­nis — though four inches shorter and 50 pounds lighter than the sus­pect’s de­scrip­tion — was the only per­son to ap­pear in both the photo ar­ray and lineup.

That rep­e­ti­tion plays tricks on the brain, so­cial sci­en­tists con­clude. The In­no­cence Project has found that faulty eye­wit­ness iden­ti­fi­ca­tion played a role in three-quar­ters of 230 DNA ex­on­er­a­tion cases stud­ied in 2009, many of them in­volv­ing cross-racial mis­takes.

The trauma of see­ing some­one with a weapon — as John­son did — makes er­rors more likely, the stud­ies show. McKee be­lieves ju­rors should know that, through ei­ther jury in­struc­tions or ex­pert tes­ti­mony.

“I know con­vic­tions are im­por­tant to so­ci­ety, and to prose­cu­tors and to po­lice, but it is as im­por­tant that the con­vic­tion be for the per­son who did the crime,” he said.

Two work­ers who saw the shooter run by also iden­ti­fied Den­nis at trial, de­spite ini­tial state­ments that he merely looked like the sus­pect. And the jury never heard from six other wit­nesses who had not picked Den­nis in the ar­ray or lineup — only the three who had.

The Third Cir­cuit gave prose­cu­tors 90 days to retry Den­nis or set him free, echo­ing a sim­i­lar 2012 order from U.S. Dis­trict Judge Anita B. Brody.

Philadel­phia Dis­trict At­tor­ney Seth Wil­liams, who ap­pealed Brody’s order, has not an­nounced a de­ci­sion as the Nov. 21 dead­line nears. How­ever, through a spokesman, he noted that four dis­sent­ing judges said the ev­i­dence against Den­nis re­mains “strong.”

Tem­ple Univer­sity law pro­fes­sor Jules Epstein, who serves on McKee’s panel, said that most ju­rors don’t re­al­ize that mem­ory drops off sharply af­ter 24 hours. McKee doesn’t ex­pect the panel to find a panacea but hopes ju­ries will at least learn to think crit­i­cally.

“They usu­ally get it right. But if you’re the per­son they made a mis­take on, and you get ex­e­cuted, it doesn’t do a lot of good to say (that),” McKee said.

Ge­orge Cortez’s con­vic­tion rested largely on Talena John­son’s tes­ti­mony. De­fense lawyer Robert Gam­burg called her ac­count “com­pelling” be­cause she had “no ax to grind” in the dis­pute.

Owen Cortez, 31, went through with a ne­go­ti­ated plea last month to clear his brother’s name, even though Ge­orge Cortez, 36, had been killed in the in­terim. He was fa­tally shot weeks af­ter leav­ing prison in April. The case re­mains un­solved.

“At the end of the day, he’s an in­no­cent man,” Owen Cortez said at his plea hear­ing.

As­sis­tant Dis­trict At­tor­ney Kirk Han­drich said that ei­ther Cortez could have re­solved the mix-up years ago. In­ves­ti­ga­tors be­lieve Ge­orge Cortez hoped to win his case on al­ibi ev­i­dence with­out im­pli­cat­ing his brother in the death of Nafis Mur­ray, the man who had stopped to talk to John­son that night.

Bar­bara Mur­ray lis­tened to the grim de­tails of her son’s death a sec­ond time at the hear­ing. She had al­ready en­dured Ge­orge Cortez’s trial in 2012.

“I didn’t even know he had a brother,” she said qui­etly.

THE AS­SO­CI­ATED PRESS

U.S. Ap­peals Judge Theodore A. McKee speaks dur­ing an in­ter­view with The As­so­ci­ated Press in Philadel­phia. McKee hopes to re­duce the risk of wrong­ful con­vic­tions by ad­dress­ing prob­lems with eye­wit­ness iden­ti­fi­ca­tion.

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