-
Joseph
Abbitt
1995
2009
North Carolina
Trial
Rape
No
Life
Male
Black
No
● Alibi witnesses included employer stating he worked that week, and his brother who said at the time of the crime he no longer lived near on victim’s street.
No
- DNA excluded
- Eyewitness
- Forensic Evidence
No prosecution analyst testified. DNA exclusion presented by the defense and by stipulation
2
Yes ●Initial non-identification
Second victim initially did not provide Abbitt’s name to police, and then only told sister that attacker “reminded” her of man who lived down street. And first victim initially identified man at bus stop, who police did not arrest. “When did the name Joseph Abbott come up? At the police station? A. No. Q. When? A. When I was at my sister’s, I told her that man reminded me of the man that used to go out with my mom.” Second victim also said she was “blindfolded” during the attack, though added that she did see him briefly, explaining only “I guess he took it off.”
NR
-
Habib Warith
Abdal
1982
1999
New York
Trial
Rape
No
Male
Black
No
● Called five alibi witnesses. ● Argued that hair samples did not match defendant.
Yes
● Defendant testified that he was working on the day of the crime and worshipping at a mosque in the evening. ● He did not know how to drive. ● He testified, “No, I did not” rape the victim.
- Eyewitness
- Forensic Evidence
(2) Claimed hair exclusion would be impossible
Though “the hairs — hair samples were distinctively different,” where, for example, “the hair taken from Mr. Jenkins had a different medulla, which is the center part of the hair,” there was no exclusion, because “[i]t’s not unusual to have different hairs come from the same person,” and speculating that there is a statistical possibility that other unexamined hairs could be similar: “The study shows it would not be unusual to have to look at 4,500 strands of hair from the head in order to get a match with any one particular hair. And, from the pubic hair, one may have to look at as much as 800 hairs, and it can be from the same person. That gives an idea of how much a hair can vary just within one single person.” That testimony, if reliance on that study were appropriate, would suggest a statistical basis not to rely on the forensic method of hair comparison, which is based on selected exemplar hairs rather than on review of hundreds of hairs from a given person. See Part II.B.2. for a discussion of this case.
- Cross Racial Identification
- Victim
Yes ● Suggestive remarks ● Live “line-up” consisting only of Abdal and a white man ● Abdal only person repeated in various procedures ● Det. showed victim single photo of Abdal
“And the more pressure they put on, the less I would listen to them and the longer I took in making an identification…”
Yes ●Initial non-identification ●Discrepancies in description – Victim told police the man could be between 25 and 40. However, Abdal had a grey beard and was 43 years old. She described an attacker who was between 5’8” and 5’10” which was just a few inches taller than her. However, Abdal was 6’4”
Victim described “pressure” police placed on her to identify Abdal “I then chose one man that looked closest to my description that I had in my head that I knew of the assailant” She told police “there were two differences still” when looking at him in person
FederalHabeas
- Motion for DNA Testing
- Suggestive Eyewitness Identification
People v. Jenkins, No. 82‐1320‐001 (N.Y. App. Ct., January 25, 1989)
Jenkins v. Scully, 1992 WL 32342 (W.D.N.Y. 1992)
Jenkins v. Scully, 1992 WL 205685 (W.D.N.Y. 1992)
Jenkins v. Scully, 1993 WL 124698 (W.D.N.Y. 1993)
-
Christopher
Abernathy
1987
2015
Illinois
Trial
Rape and Murder
No
Life without parole
Male
White
No
Yes
● Raped victim while she was walking home ● stabbed with pocket knife
Written and signed confession statement
IW
Appeal
- Coerced Confession
- Jury Instructions
- Prosecutorial Misconduct
- Sentencing — Noncapital
- State Law Evidence Claim
People v. Abernathy, 545 N.E.2d 201 (Ill App. 3d 1989)
-
Kenneth
Adams
1978
1996
Non-Cold Hit
Illinois
Trial
Rape and Murder
No
Male
Black
Yes
● Defendant’s mother said he was sleeping at home at the time of the crime.
- Eyewitness
- Forensic Evidence
- Informant
(5) Hair match; Invalid use of serology
The hairs looked “[J]ust like if you dropped two dollar bills and you see two dollar bills on the floor. You see two one dollar bills. It’s obvious.” See Part II.B.2. for a discussion of this case. Adams’s blood exhibited an “H reaction” similar to the A type blood found in samples from the victim. “I believe the population is less than two percent of the people that have that” type of clumping due to an “H reaction.” No empirical data supported such a statistic. In addition, serological retesting by Edward T. Blake, an independent forensic scientist, established that the original testimony had been incorrect and that co-defendant Dennis Williams in fact was a type A non-secretor.
- Intraracial Identificaiton
- Non-victim
Yes ● Suggestive line-up ● Shown only three photos in addition to three photos of defendants
Witness recalled seeing “Maybe three pictures” in addition to those of the three defendants
Yes ●Initial non-identification ● Did not i.d. until offered relocation
Q. When did you and the State’s Attorney decide that these people were the ones you saw? A. I decided that when I was going to be relocated. He added, “That’s when I decided to identify them”
IW, J
● Jailhouse informant testified that shortly after Williams and Rainge were arrested, he overheard them talking in the Cook County Jail about how they had killed a man and "taken" sex from a woman. ● Paula Gray, later also charged, had falsely confessed and implicated Adams, Rainge and Williams
Jailhouse informant testified: “Dennis Williams said he’s glad he took care of the guy and he was tellint Una don’t worry about nothing because they’re gone. They’ll never find the pistol, you know.” And that “they didn’t really shouldn’t have took it from the lady, you know.”
Appeal
- Bruton
- Ineffective Assistance of Counsel
- Jackson Claim
- Jury Instructions
- Prosecutorial Misconduct
- Sentencing — Noncapital
- State Law Evidence Claim
People v. Rainge. 445 N.E.2d 535 (Ill. App. 1 Dist. 1983)
Illinois v. Rainge, 467 U.S. 1219 (1984)
-
Clemente
Aguirre
2006
2018
Cold Hit
Florida
Trial
Murder
Yes
Male
Hispanic
No
-
Gilbert
Alejandro
1990
1994
Texas
Trial
Rape
No
Male
Hispanic
No
● Defendant’s mother testified that he was home at the time of the crime.
No
- Eyewitness
- Forensic Evidence
- Error
- Invalid
- Not Disclosed
(6) Claimed DNA could only have come from defendant
The analyst concluded there was a DNA match, where banding patterns “could only have originated from him,” without offering a random match probability. In fact, the analyst did not disclose that at best only partial testing had been conducted; subsequent DNA testing excluded Alejandro. See Part II.C. for discussion of this case.
- Intraracial Identificaiton
- Victim
Yes – acquaintance, BUT ● Suggestive remarks – not told suspect might not be in linc-up and victim testified she was instead told that they had caught him ● Suggestive line-up
Victim described that all of the others in the lineup were “fatter than him” Victim was told that the suspect was named Gilbert Alejandro: Q. Did they give you the name of the person that they thought had done this? A. Yes. Q. What name did they give you? A. Gilberto Alejandro. Q. They told you that before you ever saw him in the police station through this mirror, didn’t they? A. Yes. “Well, I was working and they brought me from my work. Well, the police went over there and they told me they have already catch the man. I said, “Are you sure it’s that man?” They say, “Yes.” So then they brought me to the city police and they went and showed me him.”
Yes ●Could not see attacker’s face
Q: Did the person come in front of you or in behind you? A: I don’t know. I couldn’t see. I couldn’t see anything.
NR
-
Richard
Alexander
1998
2001
Non-Cold Hit
Indiana
2 Trials
Rape
No
Male
Black
No
● No defense witnesses called, but attorney asserted in openings that “this is a case of misidentification” and noting that forensic evidence excluded defendant in other crimes.
No
- DNA excluded
- Eyewitness
- Forensic Evidence
The analyst testified that “none of the DNA was consistent with Richard Alexander.” Hairs compared exhibited similarities and differences from Alexander, so were not deemed a match.
- Cross Racial Identification
- Victim
4
- Composite drawing
- Lineup
- Photo array
Yes ● Suggestive line-up – only person with short sleeves ● He was repeated in photo array and line-up ● Eyewitness not told attacker might not be in line-up ● Multiple witnesses viewed lineup at same time
A. To the best of my recollection, she had asked me something to the effect of would you consent to coming to the lineup to try to identify your attacker. Q. Did you believe that that person may be there at the lineup? A. I figured that being logical. Obviously, there would have been something to persuade the police that there might have been someone in that lineup that might have been the person “Were all of these witnesses in the same room? A. Yes.” [7 witnesses / victims present with 8 police] One victim “had gotten emotional” during line-up, with others present. “Do you remember, the first time the line-up came out was Richard Alexander the only person who had a cut-off t-shirt? A. I believe he was.”
Yes ● Witness could not see attacker’s face ● Discrepancies in description, including tattoo, skin complexion ● Initial non-identification, in which one eyewitness had picked out two other individuals (as did a non-victim eyewitness who did not testify at trial) and one identified noone ● Initially uncertain
One victim initially told police “he looked similar, but she was not positive it was him,” when viewing photo array, She had seen only the attacker’s silhouette. Second victim unable to make identification from photo array and did not see attacker’s face. A third victim, at the line-up stated that “his build looked like the person she was attacked by…” Fourth eyewitness selected two other people from photo arrays: “Q. And these photo arrays, you picked out number three the first time [not Alexander]… A. Yes”
NR
-
Donovan
Allen
2002
2015
Washington
2 Trials
Murder
Life without parole
Male
White
Yes
During 14-hour overnight interrogation, defendant stated “I probably did it” after being given “voice stress tests” and told he had failed. In tape-recorded statement, stated that he choked victim with telephone cord, hit her with rifle twice until stock shattered. He stated that he washed blood off from gun in shower.
But – medical examiner testified that victim was struck in head four times before being strangled and no blood was found in shower.
Post-conviction expert stated that the confession contained “many of the indicia of unreliability that are commonly seen in false confessions. There are errors in the confession narrative (facts which do not ‘fit’ the objectively knowable evidence), false fed facts (facts which support an early police theory of the case which was not borne out by the evidence), and there is a lack of corroboration (no proceeds of the robbery, no metal cash box, no bloody clothes).”
Audio-taped statement
Jailhouse informants (two)
-
Marvin
Anderson
1982
2002
Cold Hit
Virginia
Trial
Rape
No
Male
Black
No
● Defendant’s mother and her neighbor both saw defendant washing car at the time of the crime. ● Defendant’s girlfriend testified she was with him on the night of the crime.
No
- Eyewitness
- Forensic Evidence
Due to the phenomenon of masking and quantification, “there would be no one eliminated” by the serological results.
- Cross Racial Identification
- Victim
- Composite drawing
- Lineup
- Photo array
Yes ● Suggestive line-up – the photo of Anderson was the only color photo and the only one with an employee number ● Not told that the attacker might not be in the array
Detective: Q. Now isn’t it true that that photograph was an employee identification photograph from Kings Dominion? A. Uh, it was a one-on-one photograph of the I.D. card, yes, sir. A. Yes, sir. Now isn’t it true that that photograph had either a social security number or some type of employee number on the face of it and that made it completely different from the other photographs, sir? A. Yes, sir. Q. Now just before the line-up or during the line-up, had you told, uh, Miss Gardner anything? A. Did I tell her anything? Q. Yes, sir. A. I asked her to go in and look at the seven people in the room to see if she could identify the man that committed the crime. Q. So did you tell her that the suspect had been arrested? A. We asked her to go in and look at the people in the line-up to see if she could pick out the suspect.
No ●Discrepancy in description, including facial hair and height
NR
-
Randolph
Arledge
1984
2013
Cold Hit
Texas
Trial
Murder
No
Male
White
No
- Forensic Evidence
- Informant
Fingerprint was not useful for comparison or analysis: “It was more a combination of smudge and with maybe one or two lines of the finger being visible.”
IW
FederalHabeas
- Ineffective Assistance of Counsel
- Jury Selection
- State Law Evidence Claim
Arledge v. State, 687 S.W.2d 55 (Ct. Ap. TX 1985)
-
Herman
Atkins
1988
2000
California
Trial
Rape
No
Male
Black
No
● Defendant’s wife testified in support of alibi.
Yes
- Eyewitness
- Forensic Evidence
(1) Masking; destruction of evidence
The victim and Atkins were both A secretors, PGM 2+1+, and the vaginal swab exhibited type A, PGM 2+1+. The analyst testified that “the activity that I detected could have come from the victim herself, or it could have come from a combination of individuals with those blood types.” The analyst then, however, testified that the combination of people who are A secretors and are PGM type 2+1+ “comes out to about 6.1 percent of the general [white] population” and about 4.4 percent of black people. See Part II.A.1 for an extended discussion of this case.
- Cross Racial Identification
- Victim
3
- Composite drawing
- Photo array
- Showup
Yes ● Show-up – wanted poster with defendant’s photo shown to victim and eyewitness, repeated in photo array, and then in-court i.d. with one victim
Yes ● Initially uncertain -victim, when shown his photo in wanted poster, was not “100% sure” ● Discrepancy – victim described attacker as skinny and bony, which he was not, with additional discrepancies as to hair length, facial hair, skin color, and shoe size (she said he had huge size 13 feet – he has size 10 ½); another eyewitness described attacker as having a lot of gums showing, which he did not have
One described him as a “lighter shade” and “tall and thin” with short hair “close to the scalp” and said his shoe size “was a 13. I know it was a very large size because we didn’t carry very many of the larger sizes.”
NR
-
William
Avery
2005
2003
Non-Cold Hit
Wisconsin
Trial
Murder
No
Male
White
No
Yes
None: no details. He stated: “I am responsible. I just don’t remember how.” ● Avery testified that he "didn’t hurt that woman and I don’t know who had hurt that woman." And they were "trying to ask me give him some details to that murder; where that woman’s clothes was…"
“He then tells the detectives that he knows he’s responsible for [the victim’s] death, and refuses or doesn’t say anything more to the police.”
Written and signed confession statement
J
NR
-
Steven
Avery
1986
2010
Cold Hit
Wisconsin
Trial
Rape
No
Male
White
No
● 13 witnesses saw defendant pouring concrete at his father’s house at the time of the crime.
Yes
● Defendant testified that he was at his father’s house at the time of the crime. ● When asked if he attacked the victim, he testified “No.”
- Eyewitness
- Forensic Evidence
The analyst testified, using unreliable and vague terminology that was accepted in the field, that the defendants’ and the questioned hairs were “consistent.”
- Intraracial Identificaiton
- Victim
- Composite drawing
- Lineup
- Photo array
Yes ● Repeated photo – he was the only person repeated in photo and line line-ups ● Suggestive line-up – defendant was the shortest in line-up ● Suggestive remarks – victim told she had identified the suspect and of his prior criminal record
Sheriff testified before trial, “I believe she was informed that the person we had arrested would be in the lineup” but at trial stated victim may have been told that after making the identification Victim – “Q. When he showed you the photo lineup, you assumed he had a suspect in mind, isn’t that right? A. I believe so. Q. And you assumed that his picture was included with those photos, isn’t that correct? A. Yes, I assumed that, yes.
No ●Discrepancy – eye color
“Q. Did your attacker have brown eyes? A. No, he had brown eyes – No, he had blue eyes. I originally said brown eyes to Judy Dvorak. When I picked ou the photo in my hospital robe as I handed it to the Sheriff, I commented, ‘He’s got blue eyes, I was mistaken.”
State Post Conviction
- Brady
- Fourth Amendment
- Ineffective Assistance of Counsel
- Jackson Claim
- Jury Instructions
- State Court Newly Discovered Evidence Claim
- Suggestive Eyewitness Identification
State v. Avery, 414 N.W.2d 319 (Wis.App. 1987)
State v. Avery, 416 N.W.2d 297 (Wis. 1987)
Avery v. Wisconsin, 485 U.S. 937 (1988)
State v. Avery, 570 N.W.2d 573 (Wis. App. 1997)
State v. Avery, 576 N.W.2d 280 (Wis. 1997) (table)
-
David
Ayers
2000
2011
Ohio
Trial
Murder
No
Life
Male
Black
No
J
FederalHabeas
- Brady
- Coerced Confession
- Jackson Claim
- Prosecutorial Misconduct
- Sentencing — Noncapital
- Sixth Amendment Right to Counsel
- State Law Evidence Claim
State v. Ayers, 2002 WL 31031675 (Ohio App. 8 Dist.,2002)
State v. Ayers 782 N.E.2d 78 (Ohio 2003)
Ayers v. Bradshaw, 2007 WL 2840399 (N.D.Ohio Sep 27, 2007)
Ayers v. Hudson, 623 F.3d 301 (6th Cir.(Ohio) Oct 05, 2010)
-
James
Bain
1974
2009
Florida
Trial
Rape
No
Life
Male
Black
No
● Defendant’s sister testified in support of alibi.
Missing portion of transcript
- Eyewitness
- Forensic Evidence
(2) Failure to exclude
The analyst testified that despite the lack of A blood group substances in the three separate stains tested, that he could not exclude the defendant, who was an AB secretor, hypothesizing that perhaps the defendant was only a “weak” A secretor, although blood tests of the defendant did not reveal him as such a “weak” A secretor.
- Cross Racial Identification
- Victim
Yes (acquaintance) ● Suggestive remarks – victim later said in a deposition that he had been asked to “pick out Jimmie Bain.” ● Suggestive line-up – others in array did not have the very bushy eyebrows that victim described
“Q. Did the police department show you a bunch of pictures? A. Yes, sir. … Q. How did they show them to you? . . . A. Yeah. I looked – he asked me can I pick out Jimmie Bains. Q. Can you pick out who? A. Jimmie Bain. And I picked him out. Q. All right. Now the man that you picked out – he said can you pick out Jimmie Bains and you picked him out. A. Yes, sir.”
No ●Discrepancy – facial hair
“He got a moustache, a beard, and the moustache – because he got thick sideburns” “Q. Could you be mistaken, now? A. Yes, sir.”
State Post Conviction
Bain v. State, 320 So.2d 57 (Fla. App. 2 Dist. 1975)
Bain v. State, 793 So.2d 940 (Fla. App. 2 Dist. 2001)
Bain v. State, 963 So.2d 913 (Fla. App. 2 Dist. 2007)
-
Bennett
Barbour
1978
2012
Cold Hit
Virginia
Trial
Rape
No
Male
Black
No
Three witnesses corroborated alibi
- Eyewitness
- Forensic Evidence
Hair and serology excluded defendant.
- Cross Racial Identification
- Victim
NR
-
Steven
Barnes
1989
2009
New York
Trial
Rape and Murder
No
Male
White
No
- Eyewitness
- Forensic Evidence
- Informant
The analyst testified that the serology was non-probative, where the blood group substances observed were consistent with the victim and defendant was a non-secretor. The tire treads did not match defendant’s vehicle. Hairs were compared and found to be “similar.” Soil was compared and found “similar.” The “impression and weave patterns” on jeans were found “similar.” Such terminology was vague.
- Intraracial Identificaiton
- Non-victim
Yes ● Defendant’s photo was the only one repeated in two arrays
Second line-up, conducted three years later before grand jury, did not contain photo of second person identified in first array; “Number five is not in here” and defendant’s photo was only one repeated in the two arrays.
Yes ● Initial non-identification – eyewitness identified two photos, including Barnes and a filler, in the first array
Q. . . . And did you tell the Oneida County Sheriff’s Deputy who showed you this photograph that you had doubt as to whether it was number five or number four who was the person that you saw on Mohawk Street? A. I picked out number four and number five because there was a doubt.
J
● Jailhouse informant, as the appellate court described, recounted a conversation in which defendant, informant and another inmate were discussing “some girls”, defendant said “You mean the one I killed” and then said “I mean the one I am accused of killing.”
In addition to the “the one I killed” comment, informant said that the defendant also mentioned the victim’s name.
Appeal
- Jackson Claim
- State Law Evidence Claim
- Suggestive Eyewitness Identification
People v. Barnes, 473 N.E.2d 45 (N.Y. 1984)
People v. Barnes, 162 A.D.2d 1039 (N.Y.A.D. 4 Dept. 1990)
-
William
Barnhouse
1992
2017
Indiana
Trial
Rape
No
Male
White
No
Mentally Ill
- Eyewitness
- Forensic Evidence
Hair comparison described as a certain "match"
Show up was conducted especially suggestively with defendant standing next to three squad cars and police shining flashlights in his face
-
Jonathan
Barr
1991
2011
Cold Hit
Illinois
Trial
Rape and Murder
No
Male
Black
Yes
- DNA excluded
- Forensic Evidence
- Informant
CD
State Post Conviction
People v. Barr &
Taylor, Nos. 1-05-3505 &
1-05-3699, (Ill. App. Aug. 28, 2007).
-
Chester
Bauer
1983
1997
Montana
Trial
Rape
No
Male
White
No
● Mother, father, and wife all testified that defendant was at home at the time of the crime
Yes
● When asked if he was at the scene of the crime, defendant testified, “No, I was not.”
- Eyewitness
- Forensic Evidence
- Other
1), (2), (5) Masking; false probability; hair match
The analyst provided a 7.5% figure, including invalid division of the population statistic in half for males. The serology testimony was also invalid in its limitation of the population to O secretors, ignoring masking and non-quantification. The victim and Bauer were both O secretors. Thus, absent quantification, the victim’s O substances could have masked any material from the semen donor and 100% of the male population could have been the donor. Regarding hairs, the analyst provided unsupported statistics which were then multiplied as if the hairs represented independent events: “To have them both match, it would be the multiplication of both factors so as an approximately using that 1 out of 100, you come out with a number like 1 chance in 10000.” See Part II.B.1 for a discussion of this case.
- Intraracial Identificaiton
- Victim
4
No. Tape recorded line-up Victim identified him at line-up; another witness was an acquaintance, one did not testify, and the last saw him at a bar on the day of the crime and weeks later and identified him in-court
No ●Discrepancy in descriptions – hair color
Q. In your statement on January 26 you stated that the individual’s hair was medium brown and now you stated “dishwater blond”. What color would it be accurately described as? A. Right now, what I see now? Q. No. A. I would say dishwater blond. Q. Was there any reason you had called it medium brown on that particular day? A. I was pretty upset and pretty confused at the time.
Appeal
- Jury Selection
- State Law Evidence Claim
- Suggestive Eyewitness Identification
State v. Bauer, 683 P.2d 946 (Mont. 1984)
-
Antonio
Beaver
1997
2007
Cold Hit
Michigan
Trial
Robbery
No
Male
Black
No
● Fingerprint of defendant did not match murderer’s
No
- Eyewitness
- Forensic Evidence
The defendant was excluded based on analysis of latent fingerprints. No prosecution analyst testified; the defense called the analyst.
- Cross Racial Identification
- Victim
- Composite drawing
- Lineup
- Mug shots
Yes ● Suggestive line-up – only person in lineup with problem with teeth that victim described ● Victim not told attacker might not be in line-up
Officer’s testimony: Q. And when you contacted [the victim], what, if anything, did you tell her with regards to viewing the lineup? A. Just that we had a suspect and we wanted her to look at the suspect in a lineup and see if she can identify him and if he was the same guy that robbed her. Q. Okay. Now there’s also — two people in this lineup have on baseball hats; right? A. I don’t know; let me see it . . . A. In the photo, they do, yes. Q. Well, does this photo reflect the lineup? A. Yes. Q. And the two people that have on baseball hats just so happen to be the two people that aren’t police officers; right? A. Right. Q. And the description that you had of the robber was of a person wearing a baseball hat; right? A. Right. Q. Yeah. Only one person in that lineup has anything wrong with their teeth; correct? A. Correct.
No ●Discrepancies in description – gap in teeth, facial hair, height, weight, age
Victim – “I was about 90 percent sure but I wanted to be a hundred percent so I was a hundred percent positive after I looked –” . . . “I was a hundred percent certain.” Defense closings: “She told the police that the person that robbed her was 21 years old. We know that Mr. Beaver is 31 years old.” “She told the police the person that robbed her was five ten. We know that Mr. Beaver is four inches taller than that. He is six two. “She told the police that the person that robbed her had medium skin. Mr. Beaver has dark skin tone.” “She told the police that the person that robbed her had a gap in his teeth similar to David Letterman’s. Mr. Beaver’s front teeth are broken. That is not the same as having a gap.”
State Post Conviction
- State Law Evidence Claim
- Suggestive Eyewitness Identification
State v. Beaver, 963 S.W.2d 474 (Mo. App. E.D.,1998)
Beaver v. State, 34 S.W.3d 852 (Mo. App. E.D. 2000)
-
Richard
Beranek
1990
2018
Wisconsin
Trial
Rape
Male
No
- Eyewitness
- Forensic Evidence
Examiner testified that inability to make a match was “extremely rare.” “I have never not been able to differentiate between two Caucasian head hairs.”
His supervisor, FBI Agent Michael Malone, also examined the two hairs. “He concurred with me that the two hairs match.”
During closings, the prosecutor called the hairs “absolutely identical,” an “incredible phenomenon.”
-
Gene
Bibbins
1987
2003
Cold Hit
Louisiana
Trial
Rape
No
Life
Male
Black
No
Missing transcript of defense case
No
- Eyewitness
- Forensic Evidence
- Not Disclosed
- Valid (Non-probative)
The analyst claimed state lab analysis of latent fingerprints were not identifiable and one could not reach a conclusion when in fact they excluded the defendant. See Part II.F.2 for a discussion of this case.
- Intraracial Identificaiton
- Victim
Yes ● Show-up – but properly conducted shortly after the incident. However, prior to show-up, police took victim Bibbins’ apartment, and she exclaimed “That’s it, that’s it,” upon seeing a radio that she said was the one stolen from her. Fifth Circuit ruled in a post-conviction civil suit that “where the victim was shown the proceeds of the crime ante making a positive identification. The strong admonition against the use of showups, coupled with the fact that [the victim] was shown the proceeds of the crime, leads this court to believe that the Fifth Circuit would find the identification in this case to be “unnecessarily suggestive.” Gary Wells concluded post-exoneration that “A show-up procedure in which the victim is shown “proceeds” from the crime has the counter-intuitive result of being highly suggestive. It often leads victims to incorrectly assume that the police apprehended the true perpetrator.”
Officer described placing Bibbins in a squad car, driving to the victim’s building, the victim walked “eight, ten feet” from the car, and “I took my flashlight and shined it through the window and the victim id’d him.”
No ●Discrepancy in descriptions – he had short cropped hair the day of the assault, while victim described an attacker with curly hair
Q. Does he look different now? A. Yes. Q. How does he look different? A. His hair has grown and he doesn’t have an earring and those same clothes on. Q. When you described the assailant — assailant’s hair, you never told the police that he had a jeri-curl? Did you tell that to the police? A. No, sir. Another suspect present when police elicited description testified victim told police that the assailant “had long, curly hair” Post-exoneration expert Dr. Gary Wells concluded “the probability of [the victim] giving such a detailed description of her attacker, matching an innocent man in nearly every respect, was “astronomically low.” Bibbins hopes to have Dr. Wells testify that the defendants must have fabricated the evidence by first apprehending Bibbins, and then later putting in their reports that [the victim’s] description of her attacker exactly matched him.”
NR
-
Phillip
Bivens
1980
2010
Cold Hit
Mississippi
Guilty Plea
Rape and Murder
No
Life
Male
Black
No
Yes
● Went with Ruffin and Dixon to lady’s house to get money; they forced way in through front door ● Says victim was raped ● “I seen Bobby Ray, I mean Larry cut her throat” using a long knife or butcher knife
Video recording of part of interrogation
NR
-
Michael
Blair
1994
2008
Texas
Trial
Rape and Murder
Yes
Male
Asian
No
● Two roommates and the ex-girlfriend of one of the roommates all testified that defendant was asleep at the apartment the night of the crime. ● Witnesses testified about another individual at the park and had a history of sexually abusing boys.
Yes
● When asked if he was at the scene of the crime, defendant replied, “No, sir.” ● When asked if he killed the victim, defendant replied, “No, sir.”
- Eyewitness
- Forensic Evidence
(5) Claimed hairs were unusual and fibers of a type never before seen
The analyst testified that the victim had unusual hairs: “the interesting thing about Ashley’s hair, when you look at her standard, is that she has microovoid bodies. These are very small air inclusions that are smaller than a true ovoid body. Ovoid bodies are mostly found in cattle hair and they’re much larger, but Ashley, thoughout her standard or known head hairs, has these microstructures.” He linked the characteristics of the hair to the commission of an assault, claiming he observed evidence that “the hair has been crushed or particle filamant or frayed ends. The other end of this hair has a similar appearance indicating that this hair piece has been subjected to some sort of blunt force.” The hairs found at the crime scene included hairs he identified as Michael Blair’s. Using side by side photos for jury, the analyst explained “I’ve never seen a Caucasian or Mongoloid hair that was opaque like that. Q. That’s in seven years or more of looking at hair under a microscope about 85 to 90 percent of your day? A. That’s right.” The analyst added, “I haven’t seen a hair like that before. Not a human hair.” The analyst also identified a fiber in Blair’s car as being from the victim’s “sleep rabbit” toy, stating that “This is a fiber seldom encountered in forensic work.”
- Cross Racial Identification
- Non-victim
3
- Composite drawing
- Photo array
Yes ● Eyewitness not told attacker might not be in photo-array
Eyewitness testified – “He just said, I’m going to place a photograph of some certain–you know, had pictures of people, and I want you to study it carefully, and show me the person that–that you think you saw you’re talking about.”
No ● All eyewitnesses had seen media images of Blair prior to line-up
For example, one eyewitness learned that police had arrested someone, and “saw the – his picture in the newspaper the next morning” prior to viewing lineup
NR
-
Floyd
Bledsoe
2000
2015
Kansas
Murder
Life
Male
White
No
Order not disclosed to the defense that DNA testing not be conducted prior to trial
Exoneree's brother, one of the actual culprits, falsely inculpated him after initially confessing three times
-
Kirk
Bloodsworth
1985
1993
Cold Hit
Maryland
2 Trials
Murder
Yes
Male
White
No
● Hair and fingerprints from the crime scene did not match defendant’s ● Family members and friends testified they who saw defendant for various parts of the time when the crime was committed.
Yes
● Defendant testified that he was either home with his wife’s family or with friends all day ● When asked about the bloody rock that was used to assault the victim, defendant testified, “I don’t know nothing of that.”
- Eyewitness
- Forensic Evidence
- Informant
- Valid (Excluded) (Non-probative)
The analyst concluded, in comparing shoe prints to the defendants’ shoes, “I was unable to determine general wear, size of the shoe, or I was unable to find any specific identifying features.” A latent print in the case excluded Bloodsworth.
- Intraracial Identificaiton
- Non-victim
5
- Composite drawing
- Lineup
- Photo array
Yes ● Suggestive line-up – only three of the six photos in array were similar to descriptions. Defendant was only man in array whose hair matched composite image. ● Eyewitness not told attacker might not be in line-up
Q. Okay. Now, in the photographs that they showed you, some of those photographs did not have a mustache; isn’t that correct?
Q. The last time we were here and we talked, I asked you about the color of the man’s hair; is that right? You remember we talked about color? [. . .] A. Yes. Q. [. . .] You told me that the person did not have red hair; isn’t that right? A. Right.
IW
● Cooperating witness recounted statements by Bloodsworth, that while not admissions, contained allegedly non-public information about the crime
‘I didn’t think anything of it then, and he started talking about this little girl and her clothes, and some guy that was with him that was supposed to have done it and some rock. It was bloody and all this kind of stuff.’ The prosecution contended that the information about the rape was non-public. However, police also conceded that the rock was sitting in the interview room before Bloodsworth was interrogated and that it was only removed after Bloodsworth had entered the room.
Appeal
- Brady
- Jackson Claim
- Prosecutorial Misconduct
- State Court Newly Discovered Evidence Claim
- State Law Evidence Claim
Bloodsworth v. State, 512 A.2d 1056 (Md. 1986)
Bloodsworth v. State, 543 A.2d 382 (Md. App. 1988)
Bloodsworth v. State, 548 A.2d 128 (Md. App. 1988)
-
Donte
Booker
1987
2005
Cold Hit
Ohio
Trial
Rape
No
Male
Black
No
Yes
- Eyewitness
- Forensic Evidence
- Cross Racial Identification
- Victim
Appeal
- Jackson Claim
- Prosecutorial Misconduct
State v. Booker, 1988 WL 86417 (Ohio App. 8 Dist 1988)
State v. Booker, 533 N.E.2d 1060 (Ohio 1988)
-
Orlando
Boquete
1983
2006
Florida
Trial
Rape
No
Male
Hispanic
No
● Cousin testified that he was watching TV with defendant all night the night of the crime.
Yes
● Defendant testified that police officers fed him information about the crime. Defendant said “Because what was I going to do, because in his time, they would have taken me to the electric chair? And I told [the officer] to take me wherever he wanted to, because I had no idea of what they were talking about.” ● “I know I’m not guilty. That’s why I’m here. What else can I tell you? My record, my life, I’ve never been a delinquent in my life.”
- Eyewitness
- Forensic Evidence
(1), (2) Masking, Failure to exclude
The victim and Bosquete were both O nonsecretors. Two spots on victim’s panties had type A substances, while two other spots had no blood group substances. The analyst did not exclude based on the A blood group substances. Instead the analyst testified: “The only conclusion I could draw is that the — the stains where no blood group factors were found, that is, on the pajama top and two areas or two cut areas of the pair of panties, are consistent at least in that no blood group factors were found and Mr. Bosquette is a non-secretor…” The analyst testified that 20% of the population is a non-secretor. However, those stains could have come exclusively from the victim and thus no conclusion could be made regarding the donor population.
- Cross Racial Identification
- Victim
Yes ● Line-up – and defendant was only person with bald head ● Eyewitness told suspect was in group
A. He asked me if — if — that they had quite a few Cubans at the Tom Thumb standing in the parking lot and asked me if I would care to ride around there to see if I can describe, you know, identify or describe or whatever the two guys that were in my apartment. Q. They didn’t say to you they had somebody that matched the description? A. They said something about matching the description, also. Q. Okay. When you got to the — to the Tom Thumb parking lot, did any of the other people in the parking lot have a shaved head? A. No, sir. Q. Did you tell Miss Curr at the — at her apartment that you found somebody that met the description she gave? A. I don’t remember exactly what I said at that time, but I do remember that — telling her we have some some suspects. Q. That matched the description? A. Yes, sir.
No ● Discrepancy in descriptions – facial hair
Q. Well, today, you’re saying that you — indelibly remember this — this face (indicating), can never forget it. You describe the eyes and everything and he has a big, black moustache right in the middle of it and set off with no hair around it. And in a deposition, under oath, closer to the time of the offense, you didn’t remember. I’m just asking you if maybe your recollection has been refreshed since that time. A. No, it hasn’t been refreshed.
NR
-
Ted
Bradford
1996
2001
Washington
Trial
Rape
No
Male
White
No
● Coworker testified he was at work, wife testified about picking him up from work that day
Yes
Yes
● Rape was between 9 and 10am on Sept. 29. ● Entered through basement window ● Victim was short, had light-colored hair, not fully clothed ● Assault in area in downstairs not a room ● Victim was turned away from attacker during assault, cuffed behind back, and nylon stocking covered culprit’s face BUT ● Inconsistencies included that he entered through window on the east side of house. ● That no one else was in the house (there was a baby).
“Q. Did you ever feed him any information regarding that sexual assault…? A. Not in reference to the sexual assault… Q. Did you tell the defendant how the handcuffs were used? A. No, I did not. Q. Did you tell the defendant anything about the placement of the victim’s body during the sexual assault? A. No, I did not. Q. Did you tell the defendant that there was a nylon stocking covering the head and face of the perpetrator? A. No, I did not.”
In closing arguments: “Only the man who was there would know that the victim was turned away during the entire time of the attack. That the man was wearing a white nylon. That handcuffs were utilized, that entry was made through the basement window…” These were “details that only the man who was there would know.” “Now, out of fairness to the record, Detective [] testified that he did mention handcuffs… But he did not say how the handcuffs were used.”
Audio recording of part of interrogation
Appeal
- Coerced Confession
- Miranda
- Sentencing — Noncapital
- Sixth Amendment Right to Counsel
- State Law Evidence Claim
State v. Bradford, 95 Wash.App. 935, 978 P.2d 534 (1999)
-
Marcellius
Bradford
1988
2010
Non-Cold Hit
Illinois
Guilty Plea
Rape and Murder
No
Male
Black
Yes
Yes
● Victim was hit with a brick – then changed in the statements to a piece of concrete ● Victim was kicked BUT ● Testified victim found inside car when found outside. ● Did not initially name Saunders, then did at trial; also named other persons never located.
Here is an excerpt of the trial testimony.
Guilty plea case – Bradford himself testified in co-defendants’ trials
At Larry Ollins’ trial: “So, when Marcellius Bradford told you Larry Ollins did that, it fits the evidence. And you know he was telling the truth.” He described crime scene footprints and noted that they are “more evidence to show you that Marcellius Bradford accurately truly described to you what happened that day.”
Written signed statement
CD
NR
-
Mark
Bravo
1990
1994
California
Trial
Rape
No
Male
Hispanic
No
● Four witnesses testified that defendant was in meetings with them at the time of the crime. ● Three witnesses testified that the victim told them that she was attacked by someone other than defendant.
Yes
● When asked if he raped the victim, defendant answered “No, I didn’t.”
- Eyewitness
- Forensic Evidence
(3) False probability
The analyst testified that 3 percent of the population is PGM 2–1+, but then falsely divided that population statistic in half, supposedly eliminating females, and claiming that 1.5 percent of men could be the donor. The Analyst was asked “Q. So it would be more than likely that one and a half percent of the population of males in L.A. county, he fits in that group; is that correct?” and answered “A. Could have donated that sample, that’s correct.”
- Intraracial Identificaiton
- Victim
No – but victim acquainted with defendant
Bravo was a nurse at the hospital where victim was a psychiatric patient, because she had manic-depressive disorder.
Yes ●Initial non identification, by victim who was a psychiatric patient
Q. Did she give a physical description, as well as she could? A. Yes, Really vague about the physical description. Q. By what she indicated to you, did you have any problem figuring out who she was talking about? A. No. She was pretty adamant and pretty clear that it was Bravo, the supervisor, R.N. supervisor from unit 208. She was definitely clear on that. Victim admitted that she changed her story, “for fear because of the friendship the workers at the unit had.” She had initially said that the person who assaulted her was a patient, or a man from the street, and told a worker and the D.A. that she had the wrong person in jail.
FederalHabeas
- Ineffective Assistance of Counsel
- Jackson Claim
- Jury Misconduct
- Prosecutorial Misconduct
- State Law Evidence Claim
People v. Bravo, 23 Cal.Rptr.2d 48 (Cal. App. 2 Dist. 1993) (ordered not published)
-
Kennedy
Brewer
1995
2008
Non-Cold Hit
Mississippi
Trial
Rape and Murder
Yes
Male
Black
No
● Defense pointed to lack of fluids, hairs, or fiber that connects defendan twith the attacker, and that scent tracking dogs failed to pick up the defendant’s scent near body.
No
-6
The analyst concluded that Brewer’s teeth in fact left the marks: “Within reasonable medical certainty, the teeth of Kenneth—un, Mr. Kennedy Brewer inflicted the patterns described on the body” of the victim, and explaining that reasonable medical certainty means “yes, he did” leave the marks.
State Post Conviction
- Brady
- Cumulative Error
- Fourth Amendment
- Improper Capital Sentencing Instructions
- Jackson Claim
- Jury Instructions
- Jury Selection
- Motion for DNA Testing
- Prosecutorial Misconduct
- State Law Evidence Claim
Brewer v. State, 725 S.2d 106 (Miss. 1998)
Brewer v. Mississippi, 526 U.S. 1027 (Mem) (1999)
Brewer v. State, 819 So.2d 1165 (Miss. 2000)
Brewer v. State, 819 So.2d 1169 (Miss. 2002)
-
Jonny
Briscoe
1983
2006
Cold Hit
Missouri
Trial
Rape
No
Male
Black
No
● Defendant’s stepfather and nephew both testified that they watched a baseball game on television with the defendant and saw him go to bed ● Defendant’s mother testified that defendant was in bed when she got home at night and was still in bed when she got up early the next morning.
No
- Eyewitness
- Forensic Evidence
The analyst testified that hairs exhibit “similar microscopic characteristics and could have come from the same source.”
- Cross Racial Identification
- Victim
Yes ● Suggestive line-up – only person at line-up with only four people wearing prison jumpsuit , and only person repeated from photo array
Q. Okay. And three of the men [at the four-person lineup] have on pants and regular street clothes; is that correct? A. That is correct. Q. Okay. However, Johnny Brisco has a jumpsuit on with pants over it; is that correct? A. That is correct. Q. Now when you viewed that lineup in the city the photos that you were shown, Johnny Brisco is the only person who was in the lineup who was also in this group of photos; is he not? A. Yes. Q. Okay. So there is only one man whose photo you were shown who also appeared in this lineup? A. Yes.
No ● Discrepancy in description – victim did not describe prominent facial hair and gold tooth
Appeal
- Double Jeopardy
- State Law Evidence Claim
State v. Briscoe, 672 S.W.2d 370 (Mo. App. E.D. 1984)
-
Dale
Brison
1992
1994
Pennsylvania
Trial
Rape
No
Male
Black
No
● Defendant’s mother testified defendant was at home at time of crime. Other siblings testified he has at home that day.
Yes
When asked if he committed the crime, he answered, “No, I didn’t.”
- Eyewitness
- Forensic Evidence
- Cross Racial Identification
- Victim
No ● Victim saw defendant on the street without police present – although, police did not follow up with any line-up procedure
Victim had “seen him on the streets of Oxford” before, prior to the assault. A few days after the assault, she then saw “the same guy that attacked me” in a group on the street near her apartment.
No Victim recalled seeing attacker’s face clearly and for 20 minutes.
Appeal
- Brady
- Jackson Claim
- Motion for DNA Testing
Commonwealth v. Brison, 618 A.2d 420 (PA. Super. 1992
-
Jimmy Ray
Bromgard
1987
2002
Montana
Trial
Rape
No
Male
White
No
● Victim described assailant as wearing brown pants. Defendant’s mother and stepfather testified that defendant did not nor has ever owned brown pants ● Defendant’s mother testified that defendant had returned home by the time the crime was committed
Yes
When asked if he raped victim and whether he had ever been at the scene of the crime, defendant testified “No.”
- Eyewitness
- Forensic Evidence
- Other
(4) Hair match testimony with false probabilities
“The hair from the blanket on the left matches all the characteristics of the known pubic hair from James Bromgard on the right and they almost look like one hair.” The analyst then made up probabilities and multiplied them in an invalid fashion, testifying: “Well there are actually two mutually exclusive events because they come from different areas of the body and their characteristics are not necessarily the same. So if you find both head and pubic hair there you have one chance in a hundred for the head hair matching a particular individual and one chance in a hundred for the pubic hair. If you find both it’s a multiplying effect, it would be one chance in 10,000, it’s the same as two dice, if you throw one dice with a one, one chance out of six; if you throw another dice with a one, it’s one chance out of six, you multiply the odds together. You do the same in this case so it’s one times one hundred, times one, times one hundred, and you get one in 10,000.”
- Intraracial Identificaiton
- Victim
Yes ● Victim not told attacker might not be in line-up, and believed attacker was to be in line-up
Q. In respect to it, hadn’t they also told you that they had a suspect in that lineup and they wanted to see if she could pick it out? A. Yes. Q. So you knew there was a suspect, someone that she was perhaps to pick out from that lineup, is that correct? A. Yes.
Yes ●Initially uncertain of identification ● Discrepancies in description
Q. And if we were to quit using percentages, would you say that you are, how would you describe how sure you are [about identification]? A. I am not too sure. Q. And he was standing then with his back to the door [where the light was]? A. Yes. Q. And yet you could see him clearly? A. No. Q. You could not see him clearly? A. Not too clearly. Q. You couldn’t make out what his face looked like or anything at that time? A. Sort of. Q. Just sort of? A. Yeah.
State Post Conviction
- Ineffective Assistance of Counsel
- Jackson Claim
- Jury Misconduct
State v. Bromgard, 862 P.2d 1140 (Mont. 1993)
State v. Bromgard, 901 P.2d 611 (Mont. 1995)
State v. Bromgard, 948 P.2d 182 (Mont. 1997)
-
Danny
Brown
1982
2001
Cold Hit
Ohio
Trial
Rape and Murder
No
Life
Male
Black
No
● A series of friends and relatives testified that defendant was across town with friends, at a store, and then at home, when victim was killed. ● Owner of the house that defendant was cleaning, verified that he came over to use phone around 7:30 p.m.
Yes
When asked why the victim’s 3-year old child identified him as the assailant, defendant testified, “I can only say I don’t know what is in [the victim’s child’s] heart, you know, [he] is a child, you don’t know what could have motivated him to say what he could have said, but I know for sure that [he] is mistaken.”
- Eyewitness
- Forensic Evidence
The analyst testified that the latent print from the victim’s apartment did not match either the victim or the defendant.
- Intraracial Identificaiton
- Non-victim
Yes – Acquaintance – son of victim had met Brown because he had briefly dated victim However, photo array contained only three other individuals on back side (four were on each side) A show-up was then conducted at the police station. Police said this was done because defendant’s alibi witnesses had insisted that a mistake must have been made. Officer described that “a decision was made to allow this –one-on-one, I will call it,” although the two alibi witnesses were present in the room.
No – Although inconsistent on whether there was a second man, an accomplice.
Q. Now, did you ever tell [Detective Marx] that you saw the other man standing in the living room with Danny? A. (Witness nodded affirmatively.) Q. Huh? A. Yes. Q. Did you ever tell him that the guy was standing there while Danny was choking your mom? A. Yes. . . . Q. Now you also told everybody here today that there was nobody with Danny; that he was all by himself. You said that, didn’t you? A. Yes. Q. So it’s got to be wrong somewhere, doesn’t it? A. (Witness nodded affirmatively.) Q. So when you looked at whatever you saw, did you just see for a second? A. Yes. Q. Or a long time? A. See for a second. Q. For a second? You peeked? A. Yes. Q. And you ran back upstairs? A. Yes. Q. So is it true or is it fair to say, Jeffery, that whatever you were looking at, you didn’t look at it very long at all, you just looked at it a real short time? A. Yes.
State Post Conviction
- Ineffective Assistance of Counsel
- Jackson Claim
- Jury Misconduct
State v. Brown, 1983 WL 6945 (Ohio App. 6 Dist. 1983
State v. Brown, 660 N.E.2d 1173 (Ohio 1996)
-
Dennis
Brown
1985
2004
Louisiana
Trial
Rape
No
Life
Male
Black
Yes
Learning difficulties
● Witness testified that defendant was watching television at her house at the time of the crime ● Another witness testified that she saw the defendant at the first witness’s house at the time of the crime ● Defendant’s father testified that defendant came home after leaving the first witness’s house
Yes
“I wouldn’t do nothing like that. . . . I was raised better than that.” When asked how he felt towards the victim, defendant testified, “I feel sorry for her, what somebody else did, because I didn’t do it.”
- Confession
- Eyewitness
- Forensic Evidence
Yes
(1) Masking
Victim and Brown were both O secretors. Stains also type O. The analyst testified “I detected the presence of ‘H’ antigens [on the victim’s panties] and that indicates Type-O. And this is the only antigen which I detected, which indicates that it came from either a Type-O secretor or a nonsecretor.” The analyst told the jury that 46.5% of the population could have been the donor. Absent quantification, that statistic regarding a subset of the population was irrelevant and misleading. The relevant statistic was that 100 percent of the population could have been the semen donor.
- Cross Racial Identification
- Victim
- Composite drawing
- Lineup
- Photo array
Yes ● Victim not told attacker might not be in line-up She identified Brown, who was a volunteer filler.
Q. What was the status of Mr. Brown at that time [of the line-up]? A. At that time he was a volunteer fill-in. Victim was told to say “if she recognized anybody in the line-up” and was asked at the line-up, “Is there anybody in the line-up that you recognize.”
No – But at one point testified that she only saw attacker’s face briefly when “his mask dropped off”
● Victim was wearing dark blue jeans or slacks ● Victim was watching television on her couch ● Couch was tan/beige/brown ● Rapist grabbed victim’s left arm ● Facts about style/interior of home BUT ● Stated entered through window when attacker entered through the door Brown had a learning disability.
“Q: Lieutenant Cauzabon, you understand this is a very serious case? A: Yes. Q: Did you give any of this information to Dennis Brown? A: No, I did not. That’s the first contact I had with him, sir. Q: To your knowledge, did anyone else give him any of that information? A: Not to my knowledge.” “Q: Sergeant Montgomery, this is a very serious case. You know that. A: Yes, sir. Q: You’re stating under oath you did not know what the victim had on that night, is that correct? You did not know the color of the couch? A: No, sir. Q: You did not know which arm she was grabbed by? A: No sir, I did not. Q: And that the defendant confessed to the rape of Diane Talley, correct? A: Yes. Q: And he gave you specifics as to that rape? A: Yes, sir. Q: And he told you about the house? A: Yes, sir. Q: And he told you what color the couch was? A: Yes, sir. Q: And he told you how he committed the rape? A: Yes, sir. . . .”
“And the things that were presented to the police by Mr. Brown were the ways that he made entry into the house, the fact that he grabbed the victim by her left arm, a description of the couch, a description of the house itself, a description of how the victim was dressed that night, things that only someone who was there would have known. Not things that are going to be printed there in the newspaper that he could have read about, but only things that a person who would have been there would have known.”
NR
-
Keith
Brown
1993
1999
Cold Hit
North Carolina
Guilty Plea
Rape
No
Male
Black
No
Yes
● Two page confession statement described entering the front door of a “big 2 story white house,” the address of the house, and two “old ladies” present. ● Describing taking a black change purse. ● But in his own statement, he did not describe a rape, rather hitting the women and running away. ● A longer set of notes prepared by police included very different and apparently more accurate details, including entering the rear of the house, assaulting a woman with a hammer and a wooden chair, and raping her and an 8 year-old girl.
Written signed statement
NR
-
Leon
Brown
1984
2014
Cold Hit
North Carolina
Trial
Rape and Murder
Yes
Male
Black
Yes
Intellectually Disabled
Yes
● Victim was raped, vaginally and anally ● Victim choked with panties balled up in a knot in her mouth (consistent with what medical examiner found) ● Victim left in ditch near woods and across bean field ● Victim’s clothes had been balled up and thrown into the woods BUT Excluded by fingerprints found on beer cans
Officer described telling Brown “I wanted to go over it because it was his statement, it was not mine… I read each line… I stopped at least 20 times and paused an asked him if that was correct, if that was right…”
“We know that the stick was broken in [the victim’s] neck because we found part of the stick still remaining in her throat, wrapped in the panties.” “The lawyer stood up here and argued to you that the officers, by some sort of foul means, pulled this confession out of these two defendants. Is that what their evidence is? Their evidence is that they never made a statement of any kind and that the officer just sat down and made up these statements… Now, come on folks. They must think you were born yesterday to swallow something like that."
Written signed statement
IW
Appeal
State v. McCollum, 364 S.E.2d 112 (NC 1988)
State v. Brown, 436 S.E.2d 163 (NC 1993)
State v. Brown, 436 S.E.2d 163 (NC 1993)
-
Nathan
Brown
1997
2014
Cold Hit
Louisiana
Trial
Rape
No
Male
Black
No
- Cross Racial Identification
- Victim
Appeal
- Ineffective Assistance of Counsel
- Jackson Claim
- Jury Selection
- Sentencing
State v. Brown, 760 So.2d 340 (LA 2000)
State v. Brown, 742 So.2d 105199-172 (La.App. 5 Cir. 9/28/99)
-
Patrick
Brown
2002
2010
Cold Hit
Pennsylvania
Trial
Murder
No
Male
Black
No
- DNA excluded
- Eyewitness
- Forensic Evidence
DNA from crime scene excluded defendant
- Cross Racial Identification
- Victim
Yes ● One of two eyewitnesses stated that defendant was not the culprit
Appeal
- Ineffective Assistance of Counsel
Com. v. Brown, 963 A.2d 466 (Pa. 2009)
Com. v. Brown, 959 A.2d 958 (Pa.Super. Jun 30, 2008)
-
Roy
Brown
1992
2007
Non-Cold Hit
Arizona
2 Trials
Murder
No
Male
White
No
● Bite mark analysis showed that bite marks on victim was inconsistent with defendant’s teeth ● Several witnesses told police that they were with defendant the night of the murder
No
- Forensic Evidence
- Informant
- Other
(2) Invalid failure to exclude
At least four bite marks “entirely consistent” but noted also an “apparent inconsistency.” Rather than exclude, the analyst called this an “explainable consistency” citing to curvature of the thigh surface that the mark appeared upon. In addition, the inconsistency was gross and apparent; Brown had two incisors removed years before and only possessed two incisors, while the marks showed four incisors. The state also did not disclose that Dr. Levine, chief odontologist for NY State Police office, found the marks inconsistent and excluded Brown. See Part II.D. for a discussion of this case.
J
● No non-public facts in statement, just a bare admission
“A. Well, I asked him, I said, Kip, you crazy mother fucker, did you actually do it or did you do her; and he said, yeah, I got the bitch or the whore and shedeserved it, something along those lines.”
State Post Conviction
People v. Brown, 195 A.D.2d 967 (N.Y.A.D. 4 Dept. 1993)
People v. Brown, 624 N.E.2d 1035 (N.Y. 1993) (Table)
People v. Brown, 663 N.E.2d 1258 (N.Y. 1995) (Table)
People v. Brown, 711 N.E.2d 647 (N.Y. 1999) (Table)
People v. Brown, 2007 WL 584520 (N.Y.A.D. 1 Dept., 2007)
-
Knolly
Brown Jr.
2009
2016
North Carolina
Guilty Plea
Rape
Male
Black
No
- Eyewitness
- Forensic Evidence
-
Malcolm
Bryant
1999
2016
Maryland
Murder
Life
Male
Black
No
- Composite drawing
- Photo array
-
David
Bryson
1983
2003
Oklahoma
Trial
Rape
No
Male
White
No
● Witness testified that defendant attended his class, far from the crime scene, beginning about 30 minutes after completion of the crime, and that defendant’s behavior and appearance was in all respects normal ● Defendant’s father and mother both testified that defendant was at home at the time of the crime
Yes
When asked if he kidnapped, raped, and sodomized victim, defendant testified “No.”
- Eyewitness
- Forensic Evidence
(2) Failure to exclude, (4) non-numerical probability statement.
The analyst testified that as to the hair comparison, “it would be impossible not to be able to distinguish hairs from two different individuals.” As to serology, although A blood group substances were found, which were inconsistent with the victim and defendant, yet the analyst did not exclude. DNA testing was not conducted at the time of trial, because the analyst had represented that the relevant evidence had been destroyed.
2
- Composite drawing
- Photo array
Yes ● Suggestive remarks – told person identified was in custody ● Eyewitness not told attacker might not be in line-up
"Q: Do you remember making the following statements?…’Did you know they had a person in custody when you got the phone call to inquire about the photographs? Answer: Yes.’ Do you remember making that? A: I don’t remember what I said. Q: Okay, and then the next question. ‘How did you know that? Answer: Because they told me.’ Do you remember making that answer in response to that question? A: Well, I just don’t remember…"
No ● Discrepancies in description – facial hair and glasses
"Q: So there was no distinct mustache? It was just as if a man had let his beard grow without a razor touching it for two or three days? A: That’s what it appeared to me. Q: Now during this time, you were not wearing your contacts were you? A: No, I wasn’t.
Appeal
- Cruel and Unusual
- Jury Instructions
- Prosecutorial Misconduct
- State Law Evidence Claim
- Suggestive Eyewitness Identification
Bryson v. State, 711 P.2d 932 (Okl.Cr.,1985)
Bryson v. Oklahoma, 476 U.S. 1121 (1986)
-
Ronnie
Bullock
1984
1994
Illinois
Trial
Rape
No
Male
Black
No
● Two witness testified to seeing defendant at his home, away from the crime scene at the time of the crime
No
- Intraracial Identificaiton
- Victim
2
Yes ● Suggestive line-up – defendant was only person with markings on face
Q. Now, of the men that were in that lineup, only one individual had any distinctive markings on his face whatsoever, isn’t that correct? A. Yes, sir. Q. Wouldn’t you say the most distinctive aspect of the description that had been provided by Deanna Lynch were the bumps that she described on the man’s face? A. Yes, sir.
No ● Discrepancies in description – whether he had pock marks or scars on face
Q. But you couldn’t remember whether the man had any facial hair, could you? A. No. “Q. You didn’t tell the police officer that you – That the man that attacked you had pot marks, scars, scratches on his face? A. I didn’t say pot marks, I said bumps.” Also told police that he had “line on his forehead”
FederalHabeas
- Brady
- Fourth Amendment
- Ineffective Assistance of Appellate Counsel
- Jury Instructions
- Prosecutorial Misconduct
- Sentencing — Noncapital
- Sixth Amendment Right to Counsel
- State Law Evidence Claim
- Suggestive Eyewitness Identification
- Willfull Destruction of Material Evidence
People v. Bullock, 507 N.E.2d 44 (1987)
People v. Bullock, 515 N.E.2d 115 (Oct. 7, 1987)
U.S., ex rel Bullock v. Roth, 1991 WL 127582 (N.D.Ill. 1991)
U.S., ex rel. Bullock v. Gramley, 1992 WL 206281 (N.D.Ill 1992)
-
Harold
Buntin
1986
2005
Indiana
Trial
Rape
No
Male
Black
No
- Eyewitness
- Forensic Evidence
No transcript could be obtained, however, according to a Statement of Facts obtained by the Innocence Project, the analyst provided invalid serology testimony failing to account for the problem of masking and non-quantification.
- Cross Racial Identification
- Victim
NR
-
Victor
Burnette
1979
2009
Virginia
Trial
Rape
No
Male
White
No
● Defendant’s grandmother testified about his whereabouts the day of the crime; he lived at her house.
Yes
He testified about his whereabouts the day of the crime and denied committed the crime, stating “No, sir” and that he never knew that a woman lived in the boarding house where the crime took place.
- Eyewitness
- Forensic Evidence
(1) Masking
The analyst testified that one of the hairs was “consistent” with the defendant and “could have” come from him. The analyst also observed blood group substances entirely consistent with the victim, yet claimed that as a non-secretor, the defendant was “any one of 88 percent” of the population that could have been a contributor.
- Intraracial Identificaiton
- Victim
No ● Show-up – but conducted shortly after the incident
No ● Discrepancies in description – facial hair and glasses
Described attacker as “About five eight, 160 pounds, long blond hair, blue jeans, mustache, beard.” Victim testified, however, that attacker had “curly” hair and she was “unclear” on whether he had a beard or not. Defendant wore glasses, without which he could not see well due to eye injury. He wore a beard and did not have curly hair. Defendant was 5’8” but weighed only 140 pounds.
NR
-
A B
Butler
1983
2000
Texas
Trial
Rape
No
Male
Black
No
- Cross Racial Identification
- Victim
State Post Conviction
- Ineffective Assistance of Appellate Counsel
Ex parte Butler, 884 S.W.2d 782 (Tex. Crim. App. 1994)
-
Kevin
Byrd
1985
1997
Texas
Trial
Rape
No
Life
Male
Black
No
● As defense counsel explained in the opening statement, “Members of the jury, we intend to show — it’s not often a person can have someone else who can say where they were at a certain time — we intend to show through witnesses, who will be his father, his stepmother and a friend of his.” Each of those family members described seeing him asleep on the cough the morning of the crime.
Yes
“Q. Did you assault [the victim], sexually assault her? A. No, I did not. Q. Do you know her? A. No, I do not.”
- Eyewitness
- Forensic Evidence
(1) Possible masking and degradation
Byrd is a nonsecretor. Since no antigens were detected in stain, the analyst simply assumed both the victim and “the semen donor would also be a non-secretor.” The analyst then testified that 15-20% of the population are non-secretors. In fact, no donor could be eliminated. No determination had been made as to the victim’s secretor status. Further, the sample could have lacked antigens not because the contributors were non-secretors, but due to degradation. See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases. Hair comparison excluded the defendant.
- Intraracial Identificaiton
- Victim
Yes ● Victim saw defendant at grocery store without police present. This not followed by a line-up or any other identification procedure to test whether the defendant was the attacker or the same person the victim saw at the grocery store (earlier photo array without D resulted in no i.d.)
No ● Discrepancy in description – wrong race
Q. Read for the jury this particular statement on to the end, please. A. “The man that assaulted me was a white male, but he had an unusual color of skin. It was a honey brown color, but he was not black.”
Appeal
- Ineffective Assistance of Appellate Counsel
- Ineffective Assistance of Counsel
- State Law Evidence Claim
Byrd v. Texas, 1986 Tex. App. LEXIS 7527 (1986)
Ex Parte Kevin James Byrd, No. 424823‐A.
-
Dean
Cage
1996
2008
Illinois
Bench Trial
Rape
No
Male
Black
No
● The defendant’s fiancé testified that she was with him and that he was asleep until late the morning of the crime.
Yes
“Q: Now, on November the 14, 1994, did you ever come into contact with [the victim] at approximately 7000 South Wabach? A: No, sir. Q: On November 14th of 1994, did you ever punch [the victim] in her eye? A: No, sir.”
- Cross Racial Identification
- Victim
Yes ● Irregular i.d. conducted at defendant’s workplace ● Single voice i.d. (a voice show-up) conducted at the police station
No ● Discrepancies in description – facial hair, skin. Cage had distinctive scars on his face, under his left eye, which the victim had never described.
Described “a mustache and rough skin” which Cage did not have when arrested a few days after incident
NR
-
Leonard
Callace
1987
1992
New York
Trial
Rape
No
Male
White
No
- Eyewitness
- Forensic Evidence
Analyst testified that the ABO type observed was consistent with the defendant
- Intraracial Identificaiton
- Victim
State Post Conviction
- Jackson Claim
- Motion for DNA Testing
- Sentencing — Noncapital
- Suggestive Eyewitness Identification
People v. Callace, 143 A.D.2d 1027 (N.Y. App. Div. 2 Dept. 1988)
People v. Callace, 573 N.Y.S.2d 137 (N.Y. Co. Ct. 1991)
-
Ronjon
Cameron
2003
2015
Massachusetts
Trial
Rape
Male
White
No
Yes
- Eyewitness
- Forensic Evidence
Analyst claimed DNA test produced results from two males and one profile did not exclude defendant. In fact, it was a single profile that excluded the defendant.
-
David
Camm
2002
2013
Cold Hit
Indiana
3 Trials
Murder
No
Male
White
No
- DNA excluded
- Forensic Evidence
- Informant
J, CD
Appeal
- Brady
- Due Process
- Jackson Claim
- Jury Selection
- State Law Evidence Claim
Camm v. State, 812 N.E.2d 1127 2004 WL 1775156 (IN 2004)
Camm v. State, 908 N.E.2d 215 (IN 2004)
-
Anthony
Capozzi
1987
2007
Cold Hit
New York
Trial
Rape
No
Male
White
No
● Defense argued innocence, with counsel saying in the opening statement: “He’s a victim of it absolutely without question, mistaken identity."
No
- Intraracial Identificaiton
- Victim
4
Yes ● Suggestive line-ups – defendant was the only person without facial hair and the shortest in lineup, and in second lineup, only one with short cropped hair
Yes ● Initial nonidentification ● Initially uncertain of i.d. – victim “unsure" and identified a filler initially – one victim could not see attacker’s face ● Discrepancies – included facial hair, weight, age, acne and failure to mention prominent scar on forehead
One victim “just saw the outline of his body” and not his face Q: Did you feel that, whether you were rushed or not, that you had to put a number down? A: Yes I did. Q: As I understand it, you put a number down on the sheet supplied to you by the police officer conducting the lineup. A: Yes I did. Q: What else did you put down? A: I put down I was unsure." Q: And you observed at the time, did you not, that Anthony, the person that you saw in the lineup and the person that you pointed to and picked out in the second lineup, was heavier or fatter I think is the word you used, fatter than the person who did this thing to you in December of 1983, right? A: Yes.
Appeal
- Jackson Claim
- Jury Instructions
- State Law Evidence Claim
- Suggestive Eyewitness Identification
People v. Capozzi, 152 A.D.2d 985 (N.Y.App.Div. 4 Dept., 1989)
-
Anthony
Caravella
1984
2010
Florida
Trial
Rape and Murder
No
Life
Male
White
Yes
Intellectually Disabled
No
- Confession
- Forensic Evidence
Yes
(1) Masking
Hairs from clothing of victim excluded the defendant. Serologist observed only antigens consistent with the type of the victim. However, the analyst then testified that persons with B or AB types inconsistent with the victim’s type could be excluded "to a degree," amounting to "around ten percent of the population."
● Victim had an English accent ● Victim hit over the head with a chair, strangled with wire, stabbed with a steak knife, and raped ● Victim’s clothes partially pulled off, with her bra pulled up above breasts. BUT ● Said hit victim over head with Pepsi bottle when she was raped, strangled, and stabbed ● Called victim a “girl.” but she was 58 yrs. old. ● Initial statement did not mention victim fighting back or chair and was incorrect on timing ● Each of the statements varied in its details and interviews supplied defendant with photos of evidence and the crime scene, as well as asking leading questions that supplied key details
During recording questioning, law enforcement asked, "Did you ever find out any of the details about this homicide from anyone at all?," and defendant answered, "No." An officer noted that "I saw there were certain discrepancies" in one of the statements, "but I also knew that there were some things that were accurate."
Four statements were recorded, one statement was not
NR
Caravella v. State, 485 So.2d 833 (Fla.App. 4 Dist., March 26, 1986)
-
Terry
Chalmers
1987
1995
New York
Trial
Rape
No
Male
Black
No
No
- Cross Racial Identification
- Victim
Yes ● Suggestive remarks – detective told victim she had identified the same person in each procedure ● Defendant repeated in four separate procedures ● Suggestive line-up – defendant was the only one wearing a bright shirt
Q. After you viewed that [second] lineup do you remember Detective Rondina or one of the detectives telling you that you picked out the same person all along in the three prior photographic procedures, the three prior identification procedures? A. At the moment that I identified him, no. It was after when I was sitting down and talking to them that, yes, he told me that.
Yes ● Initially uncertain of i.d. ● Initial nonidentification – victim initially picked defendant and one other person
Q: As I understand it, you put a number down on the sheet supplied to you by the police officer conducting the lineup. A: Yes I did. Q: What else did you put down? A: I put down I was unsure." "Q: And you observed at the time, did you not, that Anthony, the person that you saw in the lineup and the person that you pointed to and picked out in the second lineup, was heavier or fatter I think is the word you used, fatter than the person who did this thing to you in December of 1983, right? A: Yes."
Appeal
- Jackson Claim
- Suggestive Eyewitness Identification
People v. Chalmers, 163 A.D.2d 528 (N.Y. App. Div. 2 Dept. 1990)
People v. Chalmers, 571 N.E.2d 89 (N.Y. 1991)
-
Anthony
Chaparro
2003
2014
New Jersey
Trial
Rape
No
Life
Male
Hispanic
No
● Testimony from employer and family member
- Composite drawing
- Photo array
Yes ● defendant was about twice the age of culprit described and much taller and heavier
State Post Conviction
- Cumulative Error
- Due Process
- Ineffective Assistance of Counsel
- Prosecutorial Misconduct
- Sentencing
- State Law Evidence Claim
State v. Chaparro, No. A–6255–03 (App. Div. April 10, 2006)
State v. Chaparro, 2013 WL 827979 (NJ App. Ct. 2003).
-
Clyde
Charles
1982
1999
Non-Cold Hit
Louisiana
Trial
Rape
No
Life
Male
Black
No
● A series of alibi witness testified, in addition to the defendant. A neighbor said that on the day of the crime early in the morning, defendant came to her house to ask for a ride. His brother said he was drinking with him until closing time. A friend from work described how the defendant came to ask for a ride around 2am and stayed for 3 hours.
Yes
“Q: Clyde Charles, did you rape [the victim]? A: No, sir, I did not.”
- Eyewitness
- Forensic Evidence
The analyst found hairs “similar,” explaining “If the two do match, then the probabilities are that the hair could have come or did come from the same individual, however, it is not an absolute science, since you can find people whose hair is the same.”
- Cross Racial Identification
- Victim
Yes ● Show-up conducted shortly after incident ● But – prior to show-up described how suspect was wearing clothes just as the victim described
We went into the room and asked her if she could identify or make a positive ID in the suspect that we had, and she was, ….she was brought up there in a wheelchair to the emergency room door exit and she identified the subject right there
No ● Discrepancy in description – facial hair (Charles had facial hair)
Q: What about facial hair? A: No facial hair. Q: Do you remember that or are you just guessing about that? A: He had no facial hair. Q: At all? A: That’s right.
FederalHabeas
- Coerced Confession
- Fourth Amendment
- Jury Selection
- Prosecutorial Misconduct
- State Law Evidence Claim
- Suggestive Eyewitness Identification
- Wade Counsel at Lineup Claim
State v. Charles, 511 So.2d 1164 (La. App. 1 Cir. 1987)
State v. Charles, 515 So.2d 1107 (La. 1987)
Charles v. Butler, 498 U.S. 957 (1990)
-
Ulysses Rodriguez
Charles
1984
2001
Massachusetts
Trial
Rape
No
Male
Black
No
● Witnesses described how he was at home when the crime took place, and it was a memorable evening, when a birthday party took place.
No
- Eyewitness
- Forensic Evidence
- Error
- Not Disclosed
- Valid (Non-probative)
Acid phosphatase was detected, but no semen, and the results were consistent with the victim’s type O. It was highly relevant that no semen was observed, because while the victim was Type O, Charles was a Type B secretor. The error was one of testing or failure to disclose presence of spermatozoa. When Cellmark performed typing of the same crime scene evidence years later, they readily observed sperm under the microscope. See Part II.F.2. for a discussion of this case.
- Cross Racial Identification
- Victim
3
Yes ● Victim not told attacker might not be in line-up ● Suggestive remarks – told to keep looking when identified another photo
One victim said that the side view of Charles “looks like him,” but “they told me to continue, to keep looking,” and “I did pick out another photo.” She then “ran out of the room.” The detective then told her to come back in, and told her “Look at the picture again,” and this time she identified Charles
Yes ● Initial (or subsequent) non-identifications by all three victims Possible discrepancy in description – described “dark” skin, “scraggly hair and accent, did not describe gold tooth (victims said they did not see his teeth)
First victim: Q: And you were asked whether you could identify anybody in that lineup, weren’t you? A: Yes. Q: And you said no didn’t you? A: That’s because I was scared…Q: You didn’t identify anybody in that room, did you? A: Not in that room. Second victim noted she did not identify defendant in photo array, stating “I just couldn’t tell.” Third victim said she was 99 percent sure at the time of the photo array, but said “I’m not” sure. Neither second nor third victim could not identify him in the live line-up. The third explained, “It was three years later.”
Appeal
- Ineffective Assistance of Counsel
- Jury Instructions
- Prosecutorial Misconduct
- State Law Evidence Claim
- Suggestive Eyewitness Identification
- Willfull Destruction of Material Evidence
Commonwealth v. Rodriguez U. Charles, 489 N.E.2d 679 (Mass. 1986)
-
Charles
Chatman
1981
2008
Cold Hit
Texas
Trial
Rape
No
Male
Black
No
● No testimony in support of alibi, aside from the defendant’s own testimony.
Yes
“Q: Did you rape that woman that night in her house like she says? A: No sir I didn’t and that’s the honest truth.”
- Eyewitness
- Forensic Evidence
Chatman was a Type O secretor and consistent with that, H substances were detected on the rape kit evidence. The victim was a Type A (though apparently no test was conducted to assess the victim’s secretor status).
- Cross Racial Identification
- Victim
Yes ● Victim not told attacker might not be in line-up
Victim described “admonition to look carefully at the features” but to ignore any facial hair Officer recalled telling victim “to look through the photographs, all six photographs, from the first one to the last one, if there was anyone that could have possibly been the assailant to so advise me.”
No ● Discrepancy in description – did not mention missing teeth Did not mention that had seen attacker previously in the neighborhood
Victim got “a good glance” at attacker but said she did not notice his teeth.
NR
-
Robert
Clark
1982
2005
Cold Hit
Georgia
Trial
Rape
No
Life
Male
Black
No
● Witness testified that she had seen another man, Tony Arnold (who matched the victim’s initial description of her attacker), driving the victim’s car shortly after the rape occurred. Defense attorney had earlier stated during cross-examination of one of the arresting officers, that Tony Arnold’s social security card had been found in the car.
No
- Eyewitness
- Forensic Evidence
The analyst testified that the questioned hair did not match either the victim or the defendant.
- Intraracial Identificaiton
- Victim
Yes ● Suggestive remarks ● Suggestive line-up – and only person repeated from array to line-up ● Victim told attacker would be in line-up
Did he tell you he thought the picture would be there of the person who had done this to you?’ Your answer: ‘Well, he told me the person he had got a line on was someone…had saw him drive my car or something.
Yes ● Discrepancy in description – height and weight, described attacker as 5’7”, where Clark is over 6’1” ● Initial non-id and initially uncertain – initially picked the mug shot of another man, and when first saw Clark’s photo was not certain
Q: So your statement at the time that you looked at the photo lineup was only that he looked very much like the person, isn’t that true? A: Yes.
NR
-
Allen
Coco
1993
2006
Louisiana
Trial
Rape
No
Life
Male
Black
No
Yes
“Q: Sir, what do you know about the attack that was committed on [the victim]? What do you know about that? A: Nothing, really.”
- Eyewitness
- Forensic Evidence
No semen was detected in the rape kit evidence; instead blood stains from the scene were analyzed, and they exhibited the same substances as Coco.
- Cross Racial Identification
- Victim
- Composite drawing
- Photo array
Yes ● Victim not told attacker might not be in line-up
Officer recalled “I told her if she happens to spot the subject in question that these were possibilities, to point to the subject and handed her the lineup.”
Yes ● Initially uncertain ● Discrepancies in descriptions, including tattoos, hair, facial hair ● victim also had PTSD, flashbacks
“Q: Ma’am, you said that when you picked him out in the lineup, he didn’t look the same or–he didn’t look the same. Is that what you said earlier? A: I said that he was more clean-cut than he looked in the lineup.”
NR
State v. Coco, 731 So.2d 555 (La. App. 3 Cir. 1998)
-
Timothy
Cole
1986
2009
Non-Cold Hit
Texas
Trial
Rape
No
Male
Black
No
● Four friends testified that the defendant was studying for a biology lab at home earlier in the evening, and that they were with him at a small party at the defendant’s apartment the night of the crime.
Yes
Defendant described how he was at home the entire night of the crime, studying and then drinking with friends. “Q. Tim, are you the man who raped [the victim]? A. No, sir, I am not
- Eyewitness
- Forensic Evidence
Hairs described as “similar” and fingerprint excluded defendant
- Cross Racial Identification
- Victim
Yes ● Suggestive line-up – Cole’s was the only color photo while the other five photos in the array were black-and-white. Cole was also the only person in the photos who was looking at the camera; the other five fillers were facing to the side. ● Not told that culprit might not be in photo array or line-up ● Cole repeated from photo array to line-up
Victim testified at trial that when first presented with the photo array, "They asked me if I could pick him out of there, if any of them were him.” She assumed at the line-up as well that officers believed they ahd a suspect in the line-up. The police had called and “they said they had found a suspect.”
Yes ● Initially uncertain ● Disrepancies in description included height and failure to note scarring across back
When first shown the photo array, the victim was not positive, until prompted by detectives: “I said, I think that is him.” Q. And what did they reply after you said that? A. They said: ‘Are you positive?’ and I said: ‘Yes, I am positive that is him.’”
Appeal
- Jury Instructions
- State Law Evidence Claim
Cole v. State, 735 S.W.2d 686 (Tex. App.‐Amarillo,1987)
Cole v. State, 839 S.W.2d 798 (Tex. Crim. App. 1990)
-
Nevest
Coleman
1997
2017
Cold Hit
Illinois
Trial
Rape and Murder
No
Life without parole
Male
Black
No
Yes
-
Ronald
Cotton
1985
1995
Cold Hit
North Carolina
2 Trials
Rape
No
Life
Male
Black
No
● Nine witnesses testified that defendant was home at the time of the crime. ● As evidence supporting third party guilt, witness testified that man fitting description of perpetrator worked across the street from the gym where victim worked.
Yes
He testified only in his second trial, for which I was unable to obtain a transcript. He describes testifying in an interview with Frontline: https://www.pbs.org/wgbh/pages/fron tline/shows/dna/interviews/cotton.html
- Eyewitness
- Forensic Evidence
The analyst described a B substance foreign to the victim, while the defendant had an O type. The boyfriend of the victim was "AB" and the analyst explained that the AB substances could have come from the boyfriend: "I really dont have anything to incriminate or to eliminate Mr. Cotton." The analyst excluded the defendant from having left A-type stains in second case.
- Cross Racial Identification
- Victim
Victim later recounted that “When I picked him out in the physical lineup and I walked out of the room, they looked at me and said, ‘That’s the same guy,’ I mean, ‘That’s the one you picked out in the photo.’ For me that was a huge amount of relief.”
Yes ● Initial nonidentification (one victim at line-up could not decide between two people and second victim could not identify) ● Discrepancies in description – composite looked unlike defendant, and also scars not mentioned
And at the conclusion of that first time through at that lineup, isn’t it true that you told Detective Gauldin, quote, ‘It is between #4 and #5’? A: Yes, I told him that for certain reasons
Appeal
State v. Cotton, 351 S.E.2d 277 (N.C. 1987), State v. Cotton, 394 S.E.2d 456 (N.C. App. 1990)
State v. Cotton, 407 S.E.2d 514 (N.C. 1991)
-
Sedrick
Courtney
1996
2012
Oklahoma
Trial
Robbery
No
Male
Black
No
● Testimony of sister and cousins
Yes
- Eyewitness
- Forensic Evidence
(5) Hair match
Analyst testified that the hairs at the scene were not only similar but had an "unusual" characteristic – a hair was short bleached and red – that the defendant’s hairs had. DNA tests were not conducted due to a conclusion that the sample was insufficient.
Yes ● Stated "it was then" uncertain whether that was the jacket she had seen Sedrick wearing before, but "the more I think about it, I know it is." Could not see much of culprits face due to ski mask covering face almost up to eyes
Stated "it was then" uncertain whether that was the jacket she had seen Sedrick wearing before, but "the more I think about it, I know it is."
NR
-
Uriah
Courtney
2006
2013
Cold Hit
California
Trial
Rape
No
Male
White
No
● Testimony of co-workers
- Eyewitness
- Forensic Evidence
DNA testing was inconclusive
- Cross Racial Identification
- Victim
2
Yes ● One victim unsure and could not make identification
Appeal
- Jury Selection
- Sentencing — Noncapital
People v. Courtney, 2008 WL 5050627 (Ct. App. 4 Dist. Nov. 26, 2008)
-
Stephan
Cowans
1998
2004
Massachusetts
Trial
Armed Assault
No
Male
Black
No
● Three witnesses testified that perpetrator had close-cut hair cut, which defendant did not have at the time of the crime.
No
- Eyewitness
- Forensic Evidence
(2) Failure to exclude
See Part II.E. for a discussion of this case. The evidence was presented to the jury in a misleading manner and Boston Police auditors reached the unanimous conclusion that Officer LeBlanc realized prior to trial that Cowans was excluded but nevertheless did not present that fact in his trial testimony.
- Cross Racial Identification
- Victim
4
No – But Cowans was repeated from the photo array to the line-up And members of line-up were in their mid-to-late twenties, while witnesses described a shooter aged 19- 20 or so.
Yes ● Initially uncertain – several witnesses uncertain about identification
Victim when viewing photo array could not make identification; “I stated that I believed that was the person who shot me but I’d like to see him in person.” Several eyewitnesses did not make an identification during the photo array, or the lineup
Appeal
- Jackson Claim
- Jury Instructions
- State Law Evidence Claim
Commonwealth v. Cowans, 756 N.E.2d 622 (Mass. App. Ct. 2001)
-
Roy
Criner
1990
2000
Texas
Trial
Rape
No
Male
White
No
● Witness testified that defendant was at work site with him the entire day and did not leave until well after the crime occurred.
No
- Forensic Evidence
- Informant
(1) Masking
H blood group substances detected, fully consistent with victim, if she was a secretor, which could not be determined, and also with Criner. The analyst testified that 44% of the population are O secretors and could have been the donor. If the victim was a secretor, however, the H substances could have originated solely from her. See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases. Hairs compared excluded defendant.
IW
● Non-public facts allegedly provided by 3 co-workers and friends cooperating as witnesses with the police ● Those facts included that the victim’s grandmother lived in a trailer in New Caney, Texas and that the murder weapon was a screwdriver
“He changed his story and said he took the girl to her grandmother’s house” and that “he took the girl to her grandmother’s house trailer, in New Caney.” The victim “has 11 puncture wounds to her neck. He said he poked her with a screwdriver.”
Appeal
Criner v. State, 816 S.W.2d 137 (Ct. App. Tex. 1991)
Criner v. State, 860 S.W.2d 84 (Ct. Crim App Tex. 1992)
Criner v. State, 868 S.W.2d 29 (Ct. Crim. App. Tex. 1994)
-
McKinley
Cromedy
1994
1999
New Jersey
2 Trials
Rape
No
Male
Black
No
● Defense argued mistaken identification
No
- Eyewitness
- Forensic Evidence
- Valid (Excluded) (Non-probative)
Analyst testified that latent prints excluded Cromedy. Analyst correctly explained masking where the victim was an A secretor and Cromedy was an A non-secretor and the specimens had A and H antigens. “Q. So, what you are basically saying is that the underpants, the panties, and vaginal swab, the source of the blood groups A H could have been either from the victim or from the attacker? A. Correct.”
- Cross Racial Identification
- Victim
Yes ● Show-up ● Suggestive remarks
Victim saw man she recognized as attacker on street and called police. Police then asked her to come to the station, saying, “we think we have who you described to us, canyou come down and ID him.” Victim then viewed Cromedy in a holding cell with police officers in uniform.
Yes ● Discrepancies in description – gap in teeth ● Initial nonidentification
Victim did not identify Cromedy’s photo when looking at mug shots. “Q: Do you know whether or not she looked at McKinley Cromedy’s picture when she looked through those numbers of slides? A: Yes she did.”
NR
State v. Cromedy, 727 A.2d 457 (N.J. 1999)
-
Alan
Crotzer
1982
2006
Non-Cold Hit
Florida
Trial
Rape
No
Male
Black
No
● Palm print did not match defendant but another person ● Four witnesses testified that defendant was with them at the time of the crime.
Yes
“Q: You have been in here as various people have been identified as victims of the crimes with which you are charged. Do you know any of these people? A: No sir. Q: Have you ever seen any of these people before other than proceedings surrounding these charges? A: No sir.”
- Eyewitness
- Forensic Evidence
(1), (2) Masking; false probability
Victim and Crotzer were both O secretors and were PGM 1. Swabs also exhibited blood group substances consistent with Type O, PGM 1. The analyst testified, “I can only say it was either from a nonsecretor or person of ABO Type O secretor PGM Type 1” which constitute “38.4 percent of the total population.” Dividing that figure by two, she testifies that only “approximately nineteen percent” of males could have contributed. Not only was that division false, but more fundamental, where the substances found were entirely consistent with the victim, they could all have originated from the victim. Any male could have been the donor. See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases. Analyst testified that hair “could have” originated from defendant.
- Cross Racial Identification
- Victim
5
Yes ● Show-up – one victim could not identify him in photo array, so was given single photo – and still could not pick him out. Another victim did identify him after being shown photo that two other victims had selected. ● Victim not told attacker might not be in line-up
The detective asked “if any of the individuals he was showing looked at all familiar” One victim said “I believe I was [shown a single photo of Crotzger] Q. “You believe you were but you did not pick him out? A. That’s correct.” Additional victim testified that she “had seen one [photograph of Crotzer” that [two other victims[ had signed.” “Q. You only identified it after you say [the two other victims] sign it; is that right? A. Yes, yes.” One of the other two who identified the photo of Crotzer similarly identified it only after his wife, also a victim, had identified it and signed the back of the photo.
Yes ● Initial nonidentification ● Discrepancy in description – complexion
One victim described the attacker with the gun (identified as Crotzer” as light complected, which he was not. One victim did not identify from two different photo arrays, testifying “they just didn’t look positively enough for me to say definitely it is the person” – she then identified him at the preliminary hearing, where he was. Another similarly could not identify him from the photo array, and was then shown a single photograph of Crotzer, but could not pick him out. He did identify him at trial, stating, “There is a little difference between a picture and flesh.” Additional victim could not identify from photo arrays. She did then identify his photo, but only after being shown the photo that two other victims has selected and signed.
Appeal
Crotzer v. Florida Dept. of Law Enforcement, 763 So.2d 324 (Fla.App. 2 Dist. 2000)
-
Rolando
Cruz
1985
1995
Non-Cold Hit
Illinois
3 Trials
Rape and Murder
Yes
Male
Hispanic
No
● Defendant’s sister testified that defendant was babysitting her children at the time of the crime.
No
- Confession
- Forensic Evidence
- Informant
Yes
- Not Disclosed
- Valid (Excluded)
Latent fingerprints sufficient for comparison were all found to exclude defendant and co-defendant. It later came to light that boot print evidence, concerning the fact that the print did not in fact match a co-defendant, was not disclosed to the defense.
● Victim’s nose was broken (in taped confession) In statement Cruz gave describing a “vision”: ● the victim’s head was bashed from behind ● the victim’s head formed an imprint in the mud; ● the victim had been raped anally
Q: During that period of time, from the first time that you made contact with Rolando Cruz, up until the time that he has gone through and related the vision to both you and Detective Kurzawa, had you or Detective Kurzawa every related any of the facts that he put in the vision to you? A (Vosburgh): No. We wanted to keep all of those off of the street; any knowledge about the crime scene, we wanted to keep that to ourselves.
And he [Cruz] tells him in this vision, she was anally assaulted. There’s no way to know that information. He knows it because he was there… Who knows that is somebody who was standing right there when that stomping was occurring, and she was being hit, and she was smashed right on the spot. That’s who knows that. But it came to him (Cruz) in a vision.
Audio recording of part of interrogation
IW, J
● Three jailhouse informants each claimed to have overheard admissions of varying detail. ● Non-incarcerated cooperating witness also claimed to have overheard admissions. ● Cruz was also reported to have confessed and implicated codefendant Hernandez.
Non-incarcerated cooperating witness testified: “He told me he wasn’t involved at all with the girl getting killed,” but that “he was there” – and that the body was dumped “off a road, yeah. He didn’t have to tell me because I already read about it,” and he admitted “I already knew that from the news. I knew what road and everything.” First jailhouse informant testified Cruz said he “kind of killed” a girl in Aurora, that “something” had happened and he had left something “stashed” there. Second jailhouse informant claimed that Cruz had confessed to abducting a victim with his codefendants, taking her to a drug dealer’s house in Aurora, overhearing Hernandez sexually assaulting her, the victim fell down wooden stairs, and then they killed her Third jailhouse informant, who testified at the second trial, said that defendant admitted that he, Hernandez and “someone named Dugan” burglarized a home, found a young girl inside, took her in the back seat of a car to a lightly wooded area, raped her, and then killed her outside the car by hitting her on the head with a crowbar.
NR
- Bruton
- Prosecutorial Misconduct
- Bruton
- Prosecutorial Misconduct
- State Law Evidence Claim
People v. Cruz, 521 N.E.2d 18 (Ill. 1988)
Illinois v. Cruz, 488 U.S. 869 (1988)
People v. Cruz, 1992 WL 356036 (Ill. Dec. 4, 1992)
People v. Cruz, 643 N.E.2d 636 (Ill. 1994)
-
CalvinWayne
Cunningham
1981
2011
Virginia
Trial
Rape
No
Male
Black
No
- Eyewitness
- Forensic Evidence
Analyst described hair as "similar" but not "consistent"
- Cross Racial Identification
- Victim
NR
-
Charles
Dabbs
1984
1991
New York
Trial
Rape
No
Male
Black
No
● Missing transcript of defense case
No
- Eyewitness
- Forensic Evidence
(1), (2) Failure to exclude; Masking; no elimination testing
The victim was an AB non-secretor and Dabbs an O secretor. No blood type was detected on vaginal slides, but this was entirely consistent with the victim as a non-secretor or with degradation. There was no testimony, however, that this could be due to masking. See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases. The B substances on pants belonging to sister of victim excluded Dabbs and were foreign to the victim. Yet the analyst testified that he drew no conclusion from that finding where Dabbs could have been a contributor to the stain. This exclusion was explained by the State with testimony that the sister had a boyfriend; however, no elimination testing was done on the sister or boyfriend to test that theory.
- Intraracial Identificaiton
- Victim
No ● Discrepancies in description – hair in cornrows, had no missing teeth
“What is it about the smile that you recall? A. He has some teeth missing.”
Appeal
People v. Dabbs, 141 A.D.2d 664 (N.Y. App. Div. 2 Dept. 1988)
People v. Dabbs, 543 N.Y.S.2d 405 (N.Y. 1989) (Table)
-
Dwayne
Dail
1990
2007
Cold Hit
North Carolina
Trial
Rape
No
Life
Male
White
No
● Missing transcript of defense case
Yes
Missing portion of trial transcript
- Eyewitness
- Forensic Evidence
- Valid (Excluded) (Non-probative)
The victim and Dail were both nonsecretors. The analyst testified that “When I analyzed the semen that I found, I did not detect any ABO type. That would be what you would expect if you had two nonsecretors. However, it’s also possible that there was not enough semen present and I did not pick up any ABO type.” Hair comparison excluded the defendant.
- Cross Racial Identification
- Victim
Yes ● Show-up – no line-up conducted; sole i.d. procedure conducted by State was in court
Defense lawyer argued in closings that “this girl cannot even identify this man and has not prior to sitting in this courtroom, actually identified this man. Never pointed him out to anyone ever.” Prosecutor argued in closings, “We have another prior eyewitness identification on the 16th of October, 1987, as I argued, which was seeing him on the street, which I would say is much stronger than the police line-up type of thing.”
No – although testimony of victim not obtained
NR
-
Richard
Danziger
1990
2002
Non-Cold Hit
Texas
Trial
Rape
No
Life
Male
White
No
● Defendant was the only witness in support of the alibi.
Yes
“Q: Had you ever met [the victim]? A: No. That’s a public fact. You can go through all my records or whatever. I never even met the girl.”
- Forensic Evidence
- Informant
- Other
(1) Masking
Victim is PGM 1+1+, Danziger is PGM 1+2+. A small quantity of semen and the type PGM 1+ was identified which was consistent with the victim and also with Danziger. When asked “Could any other type O secretor with a 1+ PGM partial subtype have been that donor?” the analyst answered, “Yes.” However, because the 1+ detected could have solely originated from the victim, the donor could have been any type. See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases. The analyst testified that questioned hairs were “consistent” with the defendant.
CD
● Non-public facts included in co-defendant Chris Ochoa’s false confession – see false confession Appendix.
Prosecutor argued, “look at the explicit details of the crime. I don’t know if you caught some of these things. When Chris was talking about how they bound and gagged [the victim], when they took her to the arcade area, how her shirt was taken from her legs where it had been used as ligament and thrown off on Richard. Remember where her shirt was found? Right in that doorway by the arcade. And remember they said that she was carried into the bathroom after she had been shot in the head, and her tie that had been used to bound her up was taken off by Richard so he could perform oral sex on her dying body. Where was the tie found? In the bathroom. Now, are you to believe the police sat and coached him on all those details so once again we could convict an innocent man. Is that what you are to believe? That’s what the defense is asserting.”
NR
Danziger v. State, No. 3‐90‐086‐CR (Tex. App. 3 Dist. Austin 1991)
-
Willie
Davidson
1981
2005
Virginia
Trial
Rape
No
Male
White
No
● Defendant’s mother and brother testified that defendant was asleep at the time of the crime. ● Witnesses testified that, on the night of the crime, defendant took asthma medication that puts him into a deep sleep.
Yes
“Q: How do you look upon that lady? A: Like a mother or grandmother… Q: Would you ever harm her? A: No sir. Q: Did you harm her in the early morning hours of November 24, 1980? A: No sir, I wouldn’t dream of it.”
- Eyewitness
- Forensic Evidence
(1) Masking
The victim was an O secretor and Davidson was a nonsecretor. The analyst was asked “Q. Assuming that on this tissue was fluid from the woman’s body and she’s a type O secretor, what percentage of the male population would be eliminated in determining the identity of the man who emitted the seminal fluid you found?” and answered, “A. About 42 percent of the population.” (The analyst also had stated the figure was 58%, all except the 38% who are O secretors and the 20% who are non-secretors). No donor could in fact be eliminated where H substances found were entirely consistent with the victim. See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases. The analyst testified that questioned hairs were “consistent” with the defenant.
Yes – though acquaintance of victim ● Show-up – had stocking placed over his head by police in front of victim ● Suggestive remarks
Victim acknowledged that Davidson had a stocking “over his face the night he was at the detective bureau.” Davidson was asked – “You are positive are you not, that the detective kept pulling down a woman’s stocking over your face and asking Miss [], is this it, is that it? A: Yes” The detective denied saying “is this it,” but acknowledged pulling the stocking over Davidson’s head in front of the victim – “I just pulled it down and she looked at him.”
Yes ● Initially uncertain ● Could not see attacker’s face since he was wearing stocking mask
Attacker was wearing a “stocking cap” over his face Did not initially provide police with the name Willie Davidson, explaining, “In fact, I didn’t hardly know what I was doing anyway because I just didn’t know.”
NR
-
Cody
Davis
2006
2007
Cold Hit
Florida
Trial
Robbery
No
Male
White
No
● Defense lawyer argued that “they got the wrong person” and that neither eyewitness was credible.
No
- Intraracial Identificaiton
- Victim
2
Yes ● Suggestive line-up – only three others in 30 photos shown in arrays had tattoo on neck
Yes ● Initial nonidentification – at line-up said he looked the closest to the attacker ● Discrepancy in description – wrong location of tattoo
Described “an individual roughly 5- 8, 5-10, sort hair, kind of bald, like a crewcut, and he had a tattoo on his neck…” The tattoo was on the right side of his neck, and was “like a prison tattoo” was “all dark” and looked like “Chinese characters” His tattoo said “Cody” and was on the left side, not the right side of his neck. Defendant at trial was “a lot thicker” and had “shorter hair” at time of incident Agreed that when show photo array, said that Davis looked “the closest” to the person who committed the crime
NR
-
Dewey
Davis
1987
1995
West Virginia
Trial
Rape
No
Male
White
No
● Four witnesses testified that defendant was drunk and nonfunctional on the night of the crime.
Yes
“A: …[The victim] has been aroundme drunk, sober, and whatever all through her life and she’s also been respected. Q: Can you think of any reason then why she would say in open court, point to you and say you are the man that sat and watched her while she was raped, and begged you for help, and you said, “No, I can’t help you. I ain’t your uncle”? A: I can’t figure why she said that.”
- Eyewitness
- Forensic Evidence
(1), (2) Masking and Degradation used to Ignore Exclusion
The victim and Davis were both O secretors and were both PGM 2+1+. The stain analyzed exhibited A blood group substances, inconsistent with both the victim and Davis. The analyst testified: “The A could possibly be a false positive and be due to bacterial contamination because of the condition of the evidence when it was submitted, not so much the way it was submitted, but because of the condition the materials were in and the stains deposited on them.” The analyst not only failed to exclude Davis, but then testified that putting to one side the A, the perp would have to be an O secretor, PGM 2+1+. “What I am saying is that it would be approximately 7 to 8 percent of the general population of West Virginia, and half of that would be approximately three and a half percent of the male population of West Virginia.” However, that O PGM 2+1+ material could have come solely from the victim.
- Intraracial Identificaiton
- Victim
Appeal
- Jackson Claim
- Sentencing — Noncapital
- State Law Evidence Claim
State v. Davis, 388 S.E.2d 508 (W.Va. 1989)
-
Donya
Davis
2007
2014
Michigan
2 Trials
Rape
No
Male
Black
No
- DNA excluded
- Eyewitness
- Forensic Evidence
- Intraracial Identificaiton
- Victim
Appeal
- Double Jeopardy
- Ineffective Assistance of Counsel
People v. Davis, 2009 WL 2343155 (Mich. App. Ct. 2009)
People v. Davis, 777 N.W.2d 170 (Mich. 2010)
-
Gerald
Davis
1987
2010
West Virginia
Trial
Rape
No
Male
White
No
● Defendant testified that he and his father were out drinking and did not come back until 11:00 (victim claimed she went over to defendant’s trailer at 8:30)
Yes
“Q: Mr. Davis, during the evening hours of February 18th and the morning hours of February 19th, did you at any time attempt to have sexual intercourse with [the victim]? A: No, sir. I did not. Q: Did you attempt to remove her clothes forcibly? A: No, sir. Q: Did you attempt to detain her against her will for the purpose of having sexual relations with her? A: No, sir. Q: Did you hit or threaten her in any way? A: No. Q: Did you touch her or hold her in any way? A: No, sir. Q: During the entirety of the visit, you never touched this woman? A: No, sir. I did not.”
- Eyewitness
- Forensic Evidence
(1), (2) Masking and Degradation used to Ignore Exclusion
See above; though the victim and Davis were both O secretors and A substances were found, no exclusion was reported. The analyst testified: “There was an indication of an A blood type. When I have an indication of any blood types, they are reported out…. You can have different factors that can cause contamination in stains. One of the most prevalent factors that we encounter are bacterial contamination. Bacterial contamination can give you what is called false positives and give you blood types separate and aside from what you’re truly identifying…” See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of this case.
- Intraracial Identificaiton
- Victim
Appeal
- Jackson Claim
- Jury Instructions
- Prosecutorial Misconduct
- Sentencing — Noncapital
- State Law Evidence Claim
State v. Davis, 376 S.E.2d 563 (W.Va. 1988)
-
Jeramie
Davis
2008
2013
Cold Hit
Washington
Trial
Murder
No
Male
White
No
● Defendant’s sister and other witnesses
- DNA excluded
- Forensic Evidence
- Other
Appeal
- Due Process
- Jury Selection
- State Law Evidence Claim
State v. Davis, 151 Wash.App. 1047 (Court App 2009)
-
Larry
Davis
1993
2010
Washington
Trial
Rape
No
Male
White
No
Yes
- Intraracial Identificaiton
- Victim
Yes ● Defendants were only individual repeated from photos to live lineup
Yes ● Victim told policy culprits were blindfolded and she could only see hair color
NR
-
Ricky
Davis
2005
2020
Cold Hit
California
Trial
Murder
Male
White
Yes
“Q: Okay. You turn on the light. And what do you see then? A: Most horrible thing I have– that I have ever seen in my life. Somebody was dead on my mother’s bed.” “You can’t imagine what it is like to be falsely accused. And this Crazy Lady comes out of your past 20 years later, straight from a mental institution, and starts accusing you of this horrible crime. And what I really want was some type of understanding. I have no understanding still to this day.” “And actually [the detective] said that it was just a passerbyer who did this crime and probably would never be solved.” “I discussed how convenient, after 14 years the hair clutched in the lady’s hands, which would exonerate me, suddenly came up missing when Detective Fitzgerald chose to go over the evidence and both envelopes were empty.” “Q: You have a bad temper, Ricky? A: Hmm, you know, really to be perfectly honest with you, my whole life I have been really calm and mellow and easygoing and laid back. The last two and a half years I have been going through this crazy madness. I realized that yeah, you know what? I really am an angry, bitter person. I really am really angry and really bitter, especially all the things that have been done to me in the last two years, eight months.”
- Forensic Evidence
- Informant
Bloodstains by front door , doorstep, and blood on a washcloth were PGM 1+ and “different from the victim.” Serologist testified he couldn’t exclude Davis.
DNA: Davis was the source of blood by doorstep to a reasonable degree of scientific certainty; admitted the blood stain was dried and could have been older.
Incentivized witness
Witness testified that she bit the victim at some point. Daughter of victim testified about a dream that matches the IW testimony. “Autumn’s dream matches Connie’s confession in so many aspects that it’s got to make your head spin.” Prosecution also included expert about repression of trauma and dreams.
“Back in 1985, what was your relationship with the defendant, Ricky Davis? A: He was my boyfriend.” “I bit her and uh, she– we went to the floor. And Ricky told me to get the fuck out of there. So I went back outside.” “I heard gurgling . . . Then I didn’t hear anything.” “After a little bit, um, Ricky called me into the house. And we moved Jane’s body to the bed.” “Well, when I was making my statements, I was high [on methamphetamine].”
“It was important because you really get the sense of how little information she was trying to give about the murder. And you say, you know, the defense is going to say: She’s inconsistent, she is doing this, she is doing that. She didn’t want to implicate herself in a murder. She’s trying to figure out what these guys know and how she can get out of it.” “I think the defense is going to talk a lot about leading questions. And if there weren’t leading questions in that interview, there wouldn’t even be a statement.”
-
Frederick Renee
Daye
1984
1994
Non-Cold Hit
California
Trial
Rape
No
Life
Male
Black
No
● Defendant’s fiancée and another witness testified to seeing defendant away from scene of the crime. ● Mother of David Pringle, the other man charged with the crime, testified to her son’s acquaintance with Eddie Smallwood, who matched the eyewitness’ descriptions of the second attacker. ● Cousin of David Pringle testified that shortly after the attack, Eddie Smallwood offered to sell her two rings that were similar to the rings stolen from the victim.
No
- Eyewitness
- Forensic Evidence
(1) Masking
Both the victim and Daye were Type O secretors. The analyst “found the presence of O secretions” on the victim’s pant legs,” and concluded that “[i]t is likely that it is not a mixture of semen and vaginal secretions. It is likely it’s just semen.” Finally, the analyst concluded that the stains “would be consistent with Mr. Daye’s blood type.” However, the blood group substances in those stains could have entirely originated with the victim, where the stains could have been a mixture, and thus no donor could be excluded. See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases. Analyst testified that latent print excluded defendant.
- Cross Racial Identification
- Victim
2
Yes ● Suggestive line-up – only one photo had dark complexion or the hair described ● Victim not told attacker might not be in line-up
“He told me he was going to show me about five pictures, and if there was any man in any of the pictures that looked similar or like the man that was there, that attacked me.” Victim testified that only the defendant’s photo, “one” photo in array had combed back, shiny hair she had described
Yes ● Discrepancies in description – hair, facial hair, could not recall height, weight
Described hair that was combed back straight, and facial hair (but could not recall if it was a full beard or not)
FederalHabeas
- Fourth Amendment
- Jackson Claim
- Jury Instructions
- Jury Selection
- Sentencing — Noncapital
- State Court Newly Discovered Evidence Claim
- State Law Evidence Claim
- Suggestive Eyewitness Identification
People v. Daye, 223 Cal.Rptr. 569, 580 (Cal. App. 4 Dist. 1986) (ordered not published)
-
James
Dean
1989
2009
Non-Cold Hit
Nebraska
Guilty Plea
Murder
No
Male
White
No
- Confession
- Forensic Evidence
- Informant
Yes
(1) Masking
Fingerprint and hair comparison excluded defendant. Analyst testified in Joseph White’s trial that serology was consistent with two co-defendants, without providing any statistics or explaining that those findings were also entirely consistent with the victim and none could be excluded.
● Described layout of victim’s apartment ● Described rape and strangulation of victim ● Described hearing a sound like a bone breaking, and autopsy concluded that the victim’s left arm was broken BUT Inconsistent descriptions of Joseph White and described memory problems and inability to recall details before speaking to law enforcement No records of mental evaluation at time of interrogations or trial obtained, but at trial described difficulty distinguishing between dreams and reality.
Guilty Plea – No trial. But testified in Joseph White trial
CD
● Non-public facts described in false confession Appendix concerning other “Beatrice Six” defendants Shelden, Taylor and Winslow
Appeal
- Guilty Plea
- Ineffective Assistance of Counsel
- Jury Instructions
State v. Dean, 464 N.W.2d 782 (Neb. 1991)
-
Wilton
Dedge
1982
2004
Florida
2 Trials
Rape
No
Male
White
No
Yes
“Q: Did you enter [the victim’s] home and rape her? A: No sir.”
- Eyewitness
- Forensic Evidence
- Informant
- Other
(5) Hair match
The analyst in comparing questioned hairs with those of Dedge testified that “it would not be a million white people” who would possess such hairs. The analyst also testified that “[o]ut of all the pubic hairs that I have examined in the laboratory, I have never found two samples, two known samples to match in their microscopic characteristics.” See Part II.B.2 for a discussion of this case.
- Intraracial Identificaiton
- Victim
Victim was acquainted with Dedge’s brother.
No ● Discrepancies in description – height, weight, victim initially described person much larger and a foot taller than Dedge
In taped interview with police, victim described attacker as “about six” feet tall, and initially described attacker as about 200 pounds, later 160 pounds, and “big, muscular.” Dedge was 5’5” and 125 pounds
J
● Non-public details included location of rape, type of bike, reported bragging that established an alibi, reported bragging about the victim’s inconsistent descriptionshe
Informant claimed that defendant “said, I just raped and cut some old hog.” And that he had “the fastest bike made for the United States,” and “the bitch had give a description to the police that he was, I believe he said six foot tall and a couple hundred points or something like that which he said, look at me, I’m only give foot six and a hundred thirty-five points.” And that later that day, at a biker’s bar in New Smyrna, “he had danced with some biker’s old lady, and the biker got mad, they got into a fight which caused a ruckus, and the police came and made a police report, and that further established his alibi as to not being in Brevard at all that day.” “So when they testified about him being there at work, as far as they knew they were telling the truth because when he did return back to work, he didn’t — no one seen him come back in, either, he just eased his way back into the thick, and it was about quitting time, anyhow, the end of the day.” “And he told me tha the had the trip between New Smyrna and Sharpes down pat where he could make it in fifteen minutes.” “[H]e cracked the throttle all the way open there and he said in a very short time the cable started bounding real bad, and the cable snapped. And he said he knew he was going way over a hundred and sixty miles an hour at that time.” And that he had his trial reversed over dog-scent testimony, and “he was confident he would win his new trial.”
Appeal
- Motion for DNA Testing
- Sentencing — Noncapital
- State Court Newly Discovered Evidence Claim
- State Law Evidence Claim
Dedge v. State, 442 So.2d 429 (Fla. App. 5 Dist.1983)
Dedge v. State, 479 So.2d 882 (Fla. App. 5 Dist.1985)
Dedge v. State, 723 So.2d 322 (Fla. App. 5 Dist.1998)
-
Jeff
Deskovic
1990
2006
Cold Hit
New York
Trial
Rape and Murder
No
Male
White
Yes
Treated for Mentall Illness prior to trial
● Counsel asserted that the jury did not have enough evidence to convict beyond a reasonable doubt.
No
- Confession
- DNA excluded
- Forensic Evidence
Yes
DNA testing had excluded Deskovic.
● Gatorade bottle used to hit victim ● Locations of “three distinct crime scenes” ● Victim was carrying a camera and location where it was found ● Victim received blow to the head ● The victim was dragged and her bra ripped off
Asked, “…had you in any way affirmatively related to Jeffrey the knowledge that you had gleaned from the results of the autopsy?” the detective responded “No, I did not.” When asked on redirect, “did you yourself relate to any of those students any of the observations that you had made of the various scenes that you had seen…” the Detective replied, “No, I didn’t. they were given no information at all.”
The defendant knew “certain intimate details that only the true killer would know.” The detectives “did not disclose any of their observations or any of the evidence they recovered from Jeffrey nor for that matter, to anyone else they interviewed.”
Audio recording of part of interrogation
FederalHabeas
- Coerced Confession
- Due Process
- Fifth Amendment
- Sixth Amendment
- State Law Evidence Claim
People v. Deskovic, 201 A.D.2d 579 (N.Y. App. Div. 2 Dept. 1994)
People v. Deskovic, 640 N.E.2d 152 (N.Y.1994)
Deskovic v. Mann, No. 97 Civ. 3023(BSJ), 1997 WL 811524 (S.D.N.Y. 1997)
Deskovic v. Mann, 210 F.3d 354 (2d Cir. 2000)
Deskovic v. Mann, 531 U.S. 1088 (2001)
-
Robert
Dewey
1996
2012
Cold Hit
Colorado
Trial
Murder
No
Life
Male
White
No
- DNA excluded
- Forensic Evidence
NR
-
Garry
Diamond
1977
2013
Virginia
Bench Trial
Rape
No
Male
White
No
● Brother, friend, and boat rental owner testified they were fishing day of crime
Yes
2
Yes ● Shown photos more than once after non-identification
Yes ● Initial non-identification; victim said son was wrong to pick defendants photo from mug shots, and after not identifying his photo twice, identified him at a preliminary hearing in the courtrooom
NR
-
Luis
Diaz
1980
2005
Florida
Trial
Rape
No
Life
Male
Hispanic
No
● Counsel argued that the defendant was the wrong man.
No
- Eyewitness
- Forensic Evidence
- Other
(1) Masking
The victim and Diaz were both A secretors and the vaginal washings had A and H blood group substances. The analyst testified that 10 percent of the population, B and AB secretors, could not have been the donor and that 90% of world’s population could be donor. While this testimony was not very probative, it was not accurate. Where the substances could have entirely originated from the victim due to masking, 100%, not 90%, could have been the donor. See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases.
- Cross Racial Identification
- Victim
8
Yes ● Suggestive line-up – photo array consisted of a driver’s license of Diaz but mug shots of others ● Suggestive remarks – officer twice told one victim to look a second time at array with Diaz’ photo in it; when she still was not certain, they brought him for a live line-up, and he was the only person repeated from arrays to lineup; she was also told that another victim identified Diaz. Another was told Diaz’ name and that he had been arrested before the live line-up. Victims also saw images of Diaz on television after his arrest. ● Victim(s) not told attacker might not be in line-up Brady – lawsuit alleged that police did not disclose nonid and suggestive lineup and remarks
Police told one victim “that they were holding a man in custody and they had a few men in the lineup that they would like me to view.” One victim was told “Do you want to look at it again” and was shown the line-up repeatedly until identified Diaz. Another victim was told Diaz’ name and that he had been arrested; she was upset that she had not identified Diaz at the lineup, and was told not to worry and that she would have another chance; she viewed a video line-up several times before identifying Diaz. Defense lawyer commented on the photo array, that “It happens that one of the photographs is radically different than the other five that sticks out like a sore thumb.” Detectives drew attention to that photograph, telling one victim that it was an “old photograph” when she asked “why this was different from the rest because the others looked like typical mug shots . . . and the other one did look noticeable different….” That victim was also told that “there were other girls and they think this was all connected.” She also agreed she was told that police “had a person in mind” when called to look at the photos. Another described in her deposition that she was uncertain at the line-up and was told by officers “that was ridiculous.”
Yes ● Discrepancies in descriptions- hair color, weight, height, facial hair ● Initial non identifications ● Initially uncertain ● Non-identifications – 23 women, all assaulted by the “Bird Road Rapist,” were brought for lineups, five identified D, others identified other persons, and 9 identified none
For example, one victim said she had a “clear picture” of the attacker at trial, while earlier had told police she had only a “fuzzy” recollection and had said she was “not positive” at the lineup. She agreed that she had been uncertain, but that “over a year later, [her] mind has cleared up, and [she] has a sharper picture of the man…” One victim initially identified another man in line-up, explaining she did so because she “wanted to get out of the room.” Diaz was 5’3” and weighed 134 pounds, had no facial hair, and spoke very few words of English. Victim’s descriptions varied and many did not remotely resemble Diaz. For example, one described a man that was “six foot two” and 220 pounds, with a mustache. Others described an attacker who was 5’9” or 5’10”. One described him as a “white male.” Others described a man who spoke fluent English, or with a “moderate Latin accent,” one said the attacker “had no accent.”
State Post Conviction
- State Court Newly Discovered Evidence Claim
- State Law Evidence Claim
Diaz v. State, 409 So.2d 68 (Dist. Crt. App. Fla. 1982)
Diaz v. State, 686 So.2d 679 (Dis. Ct. App. Fla. 1996)
-
William
Dillon
1981
2008
Florida
Trial
Murder
No
Life
Male
White
No
● Two witnesses testified that defendant spent the night at their apartment on the night of the murder.
Yes
Defendant described his whereabouts the night of the murder, and when asked if he murdered the victim, he explained “No, sir, I did not.”
- Intraracial Identificaiton
- Non-victim
Yes ● No identification procedures conducted following composite or pretrial.
Yes ● Discrepancies in description – hair, facial hair – moustache ● Initially uncertain – witness half-blind
Eyewitness testified "I’m not a thousand percent sure. Are you?" Eyewitness described “medium” thick moustache, which Dillon did not have, and hair that was “much shorter.” Also described man as six foot or six foot one, where Dillon is six foot four inches. Also stated at trial that composite was not accurate, and that mustache was not right shape and should not have been black. Eyewitness also noted “I am half-blind, legally,” but added that he was able to get a look at the assailant through his good eye.
CI, J
● Jailhouse informant provided detailed description of crime and claimed Dillon had re-enacted the crime in the jail dining hall, although no other inmates witnessed this. ● Defendant’s ex-girlfriend also provided account of seeing him at crime-scene
Jailhouse informant testified, "He said he was at a party, him and his girlfriend, and he was drinking and they all got drunk and they went down to a beach…" he asked a guy for a cigarette "that’s when he said he punched him, sucker-punched him." "[T]hey got on the ground, they rolled, he got up into and upright position and he grabbed the guy and starting punching him in the face." “[H]e motioned with his hand, with his left hand, that is, held him either on his throat or his chest and punched him" The victim was "an older fellow." ●But he described that the defendant admitted committing crime at a different beach, many miles from where the crime took place.
NR
-
Bobby Ray
Dixon
1980
2010
Cold Hit
Mississippi
Guilty Plea
Rape and Murder
No
Life
Male
Black
No
Intellectually Disabled
Yes
● Three culprits knocked on door; victim came to door, one went behind the house through back door and let = other two in; ● Victim raped by other two culprits ● One cut her across the throat and the other cut her on the stomach ● Took officers to shack where the culprits allegedly went after murder and found a pair of pants and a sweatshirt in a plastic bag BUT ● Testified that he testified differently on different occasions concerning the details, including who cut the victim’s throat. He testified at Ruffin’s trial that was forced to confess: ““To tell you the truth, you said that I was there and which you wouldn’t let me bring the word out..” And “my mind comes and goes, and I don’t like to see nobody took away for nothing they ain’t done.”
Video recording of part of interrogation
NR
-
John
Dixon
1991
2001
New Jersey
Guilty Plea
Rape
No
Male
Black
No
● Guilty plea – no trial, but did assert alibi in motion to revoke plea.
No ● But repeated photo in two photo arrays
Yes ● Discrepancies in description – facial hair ● Initially uncertain
Victim stated that Dixon "bears a strong likeness" to the attacker but had "slightly different facial hair”
NR
-
Alejandro
Dominguez
1990
2002
Illinois
Trial
Rape
No
Male
Hispanic
Yes
● Three witnesses testified that defendant was not at the scene of the crime.
Yes
“Q: Did you see [the victim] on September 19, 1989 A: No.”
- Eyewitness
- Forensic Evidence
(1) Masking
The victim was a B secretor and Dominguez was an O secretor. Two stains had B and H antigens, consistent with the victim. The analyst testified that Dominquez could not be eliminated and that type O secretors are 36 percent of the population. Due to masking, none in the population could be eliminated. For another stain, the testimony was valid, where having detected only H antigens, the victim could be eliminated but Dominguez could not. See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases.
- Cross Racial Identification
- Victim
- Mug shots
- Photo array
- Showup
Yes ● Show-up ● Suggestive remarks Brady – “the criminal prosecutor testified that he was never told about any showup used in [victim’s] identification of Dominguez.”
Police told the victim, “Watch the one sitting on the chair. Tell me if that is the one that hit you.” The building security guard “had gotten him to come downstairs. I walked by when he was in the security office. I walked by and identified him.”
No ● Discrepancies in description – height and pierced ear
Victim described the rapist as about 5’8” with curly black hair and a “diamond studded earring.”
NR
-
Thomas
Doswell
1986
2005
Pennsylvania
Trial
Rape
No
Male
Black
No
● Three witnesses testified that defendant was asleep on the night of the crime.
Yes
“As God is my witness, I did not rape that woman.”
- Eyewitness
- Forensic Evidence
The analyst accurately described that all substances observed were consistent with the victim.
- Cross Racial Identification
- Victim
2
Yes ● Suggestive Line-up – his was only photo marked with an “R” ● Victim not told attacker might not be in line-up. Brady – victim later alleged that detective pressured her to identify Doswell. She stated in affidavit that “[t]he only reason I picked [Doswell] out in the courtroom is because Detective [] told me to and I was afraid of him.”
The detective “asked if she could identify the individual who committed the assaults…” “Out of all those photographs there was only one photograph with an R on it? A. Right. Q. That happens to be the one you picked? A. Right. Q. That didn’t affect your determination was to who it might be, did it? A. No. Q. How about the fact that of all the photographs here, none of the individuals displayed any portion of their body besides the head? A. When I was shown these pictures I seen numbers and looked at the faces only…”
Yes ● Initial nonidentification ● Discrepancies in description – facial hair, bruises on face, neck brace
Defendant had “a Fu Manchu type of mustache” when arrested, unlike the attacker, who had “a full beard.” He had no cuts on face, where the victim had “hit him on the side of the head.” He had brown eyes, unlike the dark black eyes the victim described: “His eyes are different from the eyes you saw that day; is that correct ma’am? Yes.”
NR
Com. v. Doswell, 558 A.2d 531 (Table) (Pa. 1989)
-
Gary
Dotson
1979
1989
Illinois
Trial
Rape
No
Male
White
No
Missing transcript of defense case
- Eyewitness
- Forensic Evidence
(1), (2) Masking, Failure to Exclude
The victim and Dotson were both B secretors. B blood group substances were identified on the victim’s panties and the analyst testified that the donor was a B secretor. However, due to masking, those substances could have entirely originated with the victim and any male could have been the donor. The analyst also did not exclude Dotson despite finding in another stain A antigens foreign both to the victim and Dotson, explaining “The A stain – – I can’t say the A stain, I can’t say that blood is A, I can’t say that blood is B, all I can say is that material was blood, and a mixture of – – it could be perspiation [sic], could be other body fluids in combination of B and H activity” and that those A substances could have come from “lots of materials; dust, wood, leather, certain kinds of clothes, different cloth materials, detergents in materials…” The analyst testified that questioned hairs were “consistent” with the defenant.
No transcript – victim later recanted her identification and admitted she fabricated the crime report
State Post Conviction
- Jackson Claim
- Prosecutorial Misconduct
- Sentencing — Noncapital
- State Court Newly Discovered Evidence Claim
People v. Dotson, 424 N.E.2d 1319 (Ill. App. 1981)
People v. Dotson, 516 N.E.2d 718 (Ill. App. 1987)
People v. Dotson, 522 N.E.2d 1249 (Ill. App. 1988)
-
Cornelius
Dupree
1980
2011
Texas
Trial
Rape
No
Male
Black
No
No
- Cross Racial Identification
- Victim
2
FederalHabeas
Dupree v. Quarterman, 2006 WL 3091598 (N.D.Tex. 2006)
-
Timothy
Durham
1993
1997
Oklahoma
Trial
Rape
No
Male
White
No
● A large number of witnesses testified that defendant was in Dallas all weekend when the rape was committed in Tulsa. ● Defense presented a number of credit card receipts bearing the defendant’s signature for purchases made at stores in Dallas throughout the weekend.
No
- Eyewitness
- Forensic Evidence
(4), (5) Hair frequency and unique characteristic testimony
The analyst testified that both Durham’s and the questioned hairs possessed a supposedly rare characteristic in which the hairs would not curl. The analyst had not seen this “in Caucasoid hairs. Typically in Mongoloid hairs, their hairs are typically very round and extremely difficult to mounted,” and adding “I haven’t” ever seen that occur in Caucasoid hair. The analyst also assigned a percentage to the reddish hue observed in the hairs, stating “I have seen it in less than 5 percent of the hairs that I examined. These particular hairs were especially light. I have not found any pubic hairs as light as these before.” See Part II.B.1 for a discussion of the hair comparison aspect of the case and II.C. regarding error in the laboratory analysis concerning the DNA testing.
- Intraracial Identificaiton
- Victim
Yes ● Initial nonidentification at hearing ● Discrepancies in description – described pock marks and scarring on face of attacker – although at trial modified this to describe a “rough” complexion
Durham had a beard at preliminary hearing, at which the victim was unable to identify him.
NR
-
Douglas
Echols
1987
2002
Georgia
Trial
Rape
No
Male
Black
No
● Witness testified to seeing both defendants away from the crime scene at the time the crime occurred.
Yes
“Q: Did you commit the crimes you’re charged with? A: No sir.”
- Eyewitness
- Forensic Evidence
Spermatozoa detected but no further analysis conducted.
- Intraracial Identificaiton
- Victim
No ● Show-up – but properly conducted shortly after the incident
Appeal
-
James
Edwards
1996
2012
Cold Hit
Illinois
Trial
Murder
No
Life
Male
Black
No
- Confession
- DNA excluded
- Forensic Evidence
Yes
● Victim beaten to death at his store ● Over $1,000 was taken from store, in bag with checks and receipts. ● Victim beaten with 3.5 foot long mahogany/oak stick to beat the victim ● During struggle, threw stick out the car window ● Victim’s car taken, it broke down, and it was left in Chicago BUT ● No black bag described found at scene. Said he used gloves or socks to cover fingers during robbery, but fingerprints not matching Edwards found at scene. No evidence victim had left keys in front door.
“Q. Were you providing him details that you knew? A. No, I wasn’t…. it would … show that … it was him if he’s giving me the details.” “During the course of this conversation, did you have to drag details out of him? A. No.”
Missing Openings and Closings
Video recording of part of interrogation and written signed statement
Appeal
- Coerced Confession
- Ineffective Assistance of Counsel
- Jury Instructions
- Jury Selection
- Miranda
- Prosecutorial Misconduct
- State Law Evidence Claim
People v. Edwards, 754 N.E.2d 1288 (Ill. 2001)
People v. Edwards, 789 N.E.2d 942 (Ill.App. 2 Dist., March 08, 2001)
People v. Edwards, 712 N.E.2d 820 (Ill. 1999)
People v. Edwards, 704 N.E.2d 982 (Ill.App. 2 Dist. 1998)
-
Clarence
Elkins
1999
2005
Non-Cold Hit
Ohio
Trial
Rape and Murder
No
Life
Male
White
No
● Eight witnesses testified seeing defendant at a bar away from the crime scene at various points in the night while the crime was being committed. ● Defendant’s wife testified that defendant came home after being out at the bar.
Yes
“Q: Clarence, the early morning hours of June 7th, 1998 in Barberton, did you kill your mother-in-law? A: No, I did not. Q: Were you even there in Barberton at that time? A: No, I was not. Q: Did you hit Brooke? A: No, I did not. Q: Did you attempt to rape Brooke? A: No, I did not. Q: While all that was happening, where were you? A: Well, I was in bed if this happened, I don’t know what time it happened, but I was in bed after I come home from the bars? Q: And you didn’t leave your house? A: Absolutely not. Q: Are you innocent of these charges? A: Yes, I am innocent.”
- DNA excluded
- Eyewitness
- Forensic Evidence
A defense witness testified that mitochondrial DNA excluded Elkins. No latent prints were compared; all were deemed insufficient for comparison.
- Intraracial Identificaiton
- Victim
No – victim eyewitness was an Acquaintance – no identification procedures used
No No description was provided to police. However, six year-old victim did not initially say that “Uncle Clarence” did it, but only after speaking to her mother and father and an officer, did she identify him. She saw the attacker’s face only briefly, “only once,” which was “when he punched me.”
State Post Conviction
- Ineffective Assistance of Counsel
- Jackson Claim
- Prosecutorial Misconduct
- State Court Newly Discovered Evidence Claim
- State Law Evidence Claim
State v. Elkins, 2000 WL 1420285 (Ohio App. 9 Dist. 2000)
State v. Elkins, 2003 WL 22015409 (Ohio App. 9 Dist. 2003)
-
Lonnie
Erby
1986
2003
Cold Hit
Missouri
Trial
Rape
No
Male
Black
Yes
● Defendant’s girlfriend testified that defendant was with her during the times of two of the attacks. This testimony was corroborated by her daughter. ● Defendant’s sister testified to dropping off clothes for defendant at his home around the time of fourth attack. ● Clerk at a Rent-a-Center testified that, based on receipts, defendant and his girlfriend were at the store at the time of the first attack.
No
- Eyewitness
- Forensic Evidence
(1) Masking
The victim and Erby were both O secretors. The analyst testified that “the victim had intercourse with someone who was either a type O secretor, in which case the H antigen came both from the victim and the suspect or the victim and the male or the person she had intercourse with was a non-secretor and everything came from her. We know that it could not have been a type A person or a type B person because neither of those antigens were present, therefore, she had intercourse with either an O secretor or a non-secretor.” See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases.
- Intraracial Identificaiton
- Victim
4
Yes ● Show-up ● Suggestive line-up ● Suggestive remarks ● Victims not told attacker might not be in line-up
First victim was also told that the man she identified in the line-up was the same that she had identified in the photo array. Second victim noted, “Was this the one man, one picture you picked out, was he the only man who had a beard or moustache? A. Yes, sir.” Third victim was shown a photo of Erby from the St. Louis Post Dispatch prior to viewing the line-up. “They said, ‘can you identify this man from the paper,’ and I looked at it.” Fourth victim testified: “Sixth district came and picked me up from the house. And they told me that they needed me down to the station to identify the man because they believe that they have him.” They told her that they had arrested someone.
Yes ● Initial nonidentification ● Discrepancy in description – facial hair, hair
One victim did not initially identify Erby, explaining, “I didn’t recognize him, I was scared,” so was asked to “go take a second look” at the line-up. In police report, one victim described a moustache, but no beard – at trial she testified that he had a “little beard.” Two other victims described no facial hair in their testimony. An officer said one had mentioned a beard. One victim described “short” hair, while another described longer hair and another described a medium afro.
State Post Conviction
- Ineffective Assistance of Counsel
- Sentencing — Noncapital
State v. Erby, 735 S.W.2d 148 (Mo. App. 1987)
Erby v. State, 796 S.W.2d 927 (Mo. App. 1990)
Erby v. State, 829 S.W.2d 488 (Mo. App. 1992)
-
Jerry Lee
Evans
1987
2009
Texas
Trial
Rape
No
Life
Male
Black
No
● No witnesses called except for exoneree
Yes
“I’m under oath and I’m saying that I did not [commit the rape].”
2
Yes ● Suggestive remarks – officer provided victim information concerning suspect and told her they had a suspect. According to Dallas County D.A., Dallas police officers "were leading and encouraging" victim to pick defendant and were "enthusiastically encouraging" after identification.
At trial the victim testified that the officer “said that was the man that – he said, ‘Yes, that is the person that we have been looking at as a possible suspect.” The officer told the victim at or just after the i.d. procedure "that [the defendant] had one previous arrest for something — for carrying a weapon and that wasn’t necessarily the weapon, but he also had on spiked bracelets or something like that.” The victim described the attacker as having a black gove with metallooking spikes on it. At grand jury, the victim recalled the officer having told her, "they looked up and found that he had been charged once for wearing or carrying a weapon and the weapon was spiked knuckles."
Yes ● Discrepancies in description – facial hair ● Initial nonidentification and initially uncertain – eyewitness could not identify defendant from photo array
Eyewitness testified that "His hair is a little bit different" and "he looks a lot lighter skinned" than in photo from array. She testified that "he looks different today than he did then" and “he looks different today than he did that night.” The attacker had different facial hair. The victim said he had “some facial hair” but not amounting to a beard. The victim "was a little hesitant at first because his hair was different than it was the night that I happened and there was one picture that had hair similar to it and I said,"This guy’s hair is like it, but his face doesn’t look like it." The defendant testified that he has had a mustache and a small amount of hair on his chin, but he never had facial hair on the sides of his face.
NR
-
Michael
Evans
1977
2003
Illinois
2 Trials
Rape
No
Male
Black
Yes
Missing the defense case portion of trial transcript
No
- Cross Racial Identification
- Non-victim
Yes ● Suggestive remarks – Eyewitness said in deposition in civil rights case brought postconviction that police suggested names to her and that she was “ quite sure” police mentioned the name Michael Evans to her during interviews and before she identified him. She also said that police detained her for ten hours pressuring her to name names. ● Brady – eyewitness had received a $1,250 cash payment from the Illinois Law Enforcement Commission for alleged relocation expenses when she named Michael Evans; new trial was granted when this was uncovered.
Yes ● Discrepancies in description – eyewitness said she lied about description initially – discrepancies included hair, shape of face, shape of nose, glasses, skin color, age. She was not wearing glasses at the time and did not see well without them. ● Initial nonidentification – prepared composite and did not identify Evans or Terry to police, although at trial said knew well who Evans and Terry were
“You were misleading the artist in describing the person to the artist, if you are telling the truth now? A. Yes, sir, I am telling the truth now and I was misleading the artist” She described second person she saw, later identified as Evans, as “medium brown complected,” and with “very black eyebrows” that “almost looked like they were painted,” and “slim build,” between 19 and 25 years old, and with a small moustache. Evans was 17 years old.
IW
● Eyewitness considered also as a paid informant, in that she had come forward to claim $5,000 reward, and a new trial was granted when it came to light that she was granted money by the prosecutor, ostensibly for relocation.
See Eyewitness entry for information concerning crime scene provided by eyewitness. The Chicago Tribune reported that the victim’s “ mother told polices [that the victim] left the house at 6:30 p.m., but by the time she testified at the 1977 trial, she said [the victim] left at 8 p.m. In 2002 the Tribune contacted the slain girl’s parents. Both said the mother changed her testimony to make it agree with an account given by the witness, raising questions about the integrity of the case.”
Appeal
- Brady
- Jackson Claim
- Jury Instructions
- Prosecutorial Misconduct
People v. Evans, 399 N.E.2d 1333 (Ill. App. 1979)
-
Charles Irvin
Fain
1983
2001
Idaho
Trial
Rape and Murder
Yes
Male
White
No
● Defendant’s father and mother testified that, at the time of the murder, the defendant lived at their house, which was located in a different state than the one in which the murder occurred.
Yes
“Q: Are you guilty of any of these offenses charged? A: No sir, I did not do any of them.”
- Forensic Evidence
- Informant
(5), (6) Invalid individualization using shoe print, hair unique characteristic testimony
The analyst testified that the shoe wear pattern was unique to the defendant, stating “I found, therefore, that the shoe which made this impression, and this left shoe had sustained wear in the same area. To a – – a shoe print examiner, this would indicate that the individual who walked with these shoes has the same walking gait.” Though explaining that hair examination is subjective, the analyst noted a bifurcated medulla, testified that this gave “the sample uniqueness” explaining “It’s not often seen in hair samples. The bifurcated medulla, for instance, is not – – it’s not a characteristics that is very common, so that’s – – that’s the reason why I remember this particular characteristic.” See Part II.E. for a discussion of this case. Serology was described as inconclusive.
- Intraracial Identificaiton
- Non-victim
IW, J
● Non-public details in admissions recounted by two jailhouse informants ● One described Fain recounting where he drove with the victim, that he drowned her in water, that he raped her and a “golf ball sized lump” on her forehead consistent with photographs of her body ● A second informant chiefly accounted for the lack of forensic evidence, claiming that the defendant bragged about cleaning out his car carefully. Prosecutor emphasized that there were two informants – “Not one, but two persons, and I believe the old rule is that in the mouth of two or three witnesses shall everything be established. This defendant committed those crimes."
First informant testified: “Fain come and started talking about the young girls… and then he went into – well, this case. About picking [the victim] up on Greenleaf, making a U-turn on Seventh. Going over to Fairview, out to Twelfth, and then to a pumping station; and he says, ‘Oh, I guess I shouldn’t have told you that.” He said that he was “molesting her,” and “This time when she got away, she tripped and fell and she hit her head, her forehead. He said, ‘A know come up on her about the size of a golf ball.’ He wasn’t satisfied and finished with what he was going, so he went back and got his satisfaction. Then he took her and put her in the ditch. He carried her to a ditch and held her head under water.” “When his back was turned and he walked away, I fished these two maps out of the toilet and put them in my pants.” Second informant testified that “Mr. Fain had stated that the detectives were going about his case all wrong, and that he had cleaned his car out numerous times, and he cleaned it out so good that they would not be able to detect anything in his automobile.” And “he had caught the girl, and had placed her in some water which he did not say; and then he had left…”
State Post Conviction
- Improper Capital Sentencing Instructions
- State Law Evidence Claim
- Willfull Destruction of Material Evidence
State v. Fain, 774 P.2d 252 (Idaho 1989)
Idaho v. Fain, 493 U.S. 917 (1989)
State v. Fain, 809 P.2d 1149 (Idaho 1991)
Fain v. Idaho, 504 U.S. 987 (1992)
-
Scott
Fappiano
1984
2006
New York
Trial
Rape
No
Male
White
No
No
- Eyewitness
- Forensic Evidence
Fappiano was an O secretor and cigarettes and a white towel recovered from scene exhibited A and H blood group substances.
- Intraracial Identificaiton
- Victim
2
- Lineup
- Mug shots
- Photo array
Defense lawyer argued that “The only person who stands out in that picture, and primarily because of height, is Mr. Fappiano.You could see he’s inches below the two people who sit next to him. I mean really inches.”
Yes ● Non-identification by third eyewitness, who did not testify at trial
Appeal
- Brady
- Jackson Claim
- Sentencing — Noncapital
- State Court Newly Discovered Evidence Claim
- Suggestive Eyewitness Identification
People v. Fappiano, 512 N.Y.S.2d 301 (N.Y. Sup. 1987)
People v. Fappiano, 139 A.D.2d 524 (N.Y. App. Div. 2 Dept. 1988)
People v. Fappiano, 529 N.E.2d 182 (N.Y. 1988) (Table)
-
Joseph
Fears
1984
2009
Cold Hit
Ohio
Trial
Rape
No
Male
Black
No
● Two alibi witnesses testified.
No
- Intraracial Identificaiton
- Victim
3
No – victim was an Acquaintance
No ● Discrepancies in description – facial hair, hair, one witness’ inability to provide any description
One described a mustache, while another a goatee. One described a short afro, while another described hair that was slicked down. A third eyewitness said, “I couldn’t describe something from that night. It was almost a year ago.”
Appeal
- Jackson Claim
- Prosecutorial Misconduct
- State Court Newly Discovered Evidence Claim
-
Lewis
Fogle
1982
2015
Pennsylvania
Trial
Murder
Life without parole
Male
White
No
Jailhouse informants (five)
-
Wiley
Fountain
1986
2003
Texas
Trial
Rape
No
Male
Black
No
● Defendant’s cousin testified that defendant was asleep at the time of the crime.
Yes
“Q: Did you rape [the victim]? A: No, sir, I didn’t.”
- Eyewitness
- Forensic Evidence
Analysts testified that blood and saliva tests were inconclusive
- Intraracial Identificaiton
- Victim
Yes ● Suggestive line-up – defendant only person with cap and jogging suit like victim had described attacker wearing
“Q. And it didn’t help at all that he had those clothes on that looked kind of like what you described earlier, did it? A. Yes. Q. It did help, didn’t it? A. Yes. Q. And he was the only one that was dressed that way in those photographs, wasn’t he? A. Yes.”
No ● Discrepancies in description – facial hair, moustache
One victim affirmatively told police that he did not have any facial hair. “Q. And you’re telling this jury that the person that attacked you kissed you on the neck and then kissed both your breasts for about five minutes, and you were not able to tell anybody that he had facial hair, that is, a mustache? In fact, you told them just the opposite, didn’t you? You told them he didn’t have facial hair? A. Yes.” Later at the parole hearing, she for the first time said that “it looked like he had a mustache, but I couldn’t tell if it was a mustache or just a shadow on his face.”
Appeal
- Ineffective Assistance of Counsel
- Jury Selection
- Suggestive Eyewitness Identification
Fountain v. State, No. 05‐86‐00941‐CR (Tex. App. Dallas 1987)
-
Joseph
Frey
1994
2013
Cold Hit
Wisconsin
Trial
Rape
No
Male
White
No
- DNA excluded
- Eyewitness
- Forensic Evidence
- Informant
Yes ● Suggestive line-up – defendant only person repeated in lineups
Yes ● Even after four lineups, victim uncertain and could not "positively identify" Frey
J
Appeal
- Jury Instructions
- Jury Selection
- Sentencing — Noncapital
- State Law Evidence Claim
- Willfull Destruction of Material Evidence
State v. Frey, 551 N.W.2d 869 (Ct App. Wisc 1996)
-
Dennis
Fritz
1988
1999
Cold Hit
Oklahoma
Trial
Murder
No
Life
Male
White
No
Yes
“Q: Dennis, did you kill [the victim]? A: No, I did not. I did not kill [the victim], and I don’t know anything about the death of [the victim] whatsoever. I’ve been locked up over in that county jail for 11 months on circumstantial evidence, and I’m the kind of person that I’ve never taken a life. I’ve never thought about taking a life. I’ve never wanted to rape a woman. I’ve never had any thoughts of this kind of activity in my life.”
- Forensic Evidence
- Informant
(1), (5) Masking; hair match testimony
Though lack of blood group substances found could have been due to degradation, or due to masking if the victim was a non-secretor, the analyst testified that only a non-secretor could have been the donor. “Q: Okay. If the victim was a non-secretor, and the donor was a non-secretor, and their body fluids were mixed on the swab, what would you expect to find? A: No antigen activity.” See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases.The analyst testified that a total of 11 pubic hairs and 2 head hairs were “consistent” with Fritz’s hairs. “There’s generally three main results can be considered, but there’s actually five or more ways of reporting hair examinations. One is that hairs are consistent microscopically and could have the same source. This means that they match if you want it in one word.” The analyst testified that there was an increased significance to finding that both pubic hairs and head hairs matched.
CD, J
● Non-public facts including jailhouse informant testifying he had confessed, and that he and co-defendant cleaned away blood, and beer cans, explaining lack of forensic evidence. ● On co-defendant Ron Williamson’s reported false confession, which also included non-public details, see False Confessions Appendix.
“I looked at him, and you could see tears coming down his eyes, and he said we didn’t mean to hurt her. We didn’t mean to hurt her. He goes, what do you think my daughter would think of me as a murderer.” And he testified that defendant described “him and Ron washing blood” from the murder scene. He denied that the officer disclosed any case details – “No, he didn’t tell me nothing about the case”
FederalHabeas
- Brady
- Cumulative Error
- Ineffective Assistance of Appellate Counsel
- Ineffective Assistance of Counsel
- Jackson Claim
- Jury Instructions
- Jury Selection
- Prosecutorial Misconduct
- Sentencing — Noncapital
- State Law Evidence Claim
Fritz v. State, 811 P.2d 1353 (Okla. Crim. App. 1991)
Fritz v. Champion, 66 F.3d 338 (10th Cir. 1995)
Fritz v. Champion, 519 U.S. 1119 (1997)
-
Larry
Fuller
1981
2007
Texas
Rape
No
Male
Black
No
● Defendant’s live-in girlfriend testified that she did not hear him leave their water-bed at any time between one-thirty and seven o’clock when the crime occurred. ● Victim could not describe defendant’s facial hair.
No
- Eyewitness
- Forensic Evidence
(1), (2) Masking, failure to exclude
The victim was an O nonsecretor and Fuller an AB nonsecretor. The rape kit sample exhibited substances consistent with a Type O. “A. The individual who left the seminal fluid could have been a nonsecretor, which is consistent with Mr. Fuller, yes.Q. And that’s twenty percent of the population? A. That’s correct.” The analyst never explained that Fuller was excluded, as was the victim, since neither secretes any blood group substances in their body fluids.
- Cross Racial Identification
- Victim
Yes ● Suggestive Remarks ● Defendant’s photo only one repeated in two arrays ● Victim not told attacker might not be in line-up
Officer told victim that second photo had been taken the morning of the identification, that it was taken at Fuller’s house, and that he had previously been imprisoned for armed robbery. The victim described that the officer “just asked me to look at the pictures.”
Yes ● Initially uncertain ● Discrepancies in description – facial hair, age
Initially told officer that the photo looked a lot like the attacker, but “I said that I felt funny identifying somebody from an old picture, and I would like to see a more current picture.” Victim testified “I had told the police that I didn’t remember any facial hair.” She blocked out the goatee in the photo with her finger and then identified him. Described attacker as “somewhere in his 20’s,” while Fuller was 32.
NR
-
Darryl
Fulton
1997
2017
Illinois
Trial
Rape and Murder
Life without parole
Male
Black
No
Yes
-
Richard
Gagnon
2008
2015
Cold Hit
South Carolina
Murder
No
Life without parole
Male
White
No
- DNA excluded
- Forensic Evidence
- Informant
DNA excluded defendant, but serology on shoe matched that of victim
J
“He never said he shot them." “He said, ‘I did it.’”
Appeal
- State Court Newly Discovered Evidence Claim
- State Court Newly Discovered Evidence Claim
State v. Gagnon, No. 06-GS-26-0594 (SC 2003)
-
Cifizzari
Gary
1984
2019
Cold Hit
Massachusetts
Trial
Murder
Life without parole
Male
White
Yes
“Q: Did you do anything to hurt your Aunt Connie? A: I don’t understand that question. [Defense]: I can’t hear you, sir. A: No I didn’t. Q: Did you do anything to hurt your Aunt Connie? A: No I didn’t. I didn’t kill my aunt.”
“Forensic odontologist stated the opinion that a mold of Cifizzari’s teeth matched the tracing of the bite mark on the victim: “”I do believe that they are the same.”” Later using a slide projector of a phootograph of the model and the bitemark, stating “”the teeth on this yellow model of Gary Cifizzari’s upper jaw did make those marks within a reasonable degree of dental certainty.”” He also answered that “”there is a comparison within a reasonable degree of medical certainty that Gary Cifizzari’s upper jaw made the bite mark.”” And “the teeth of Gary Cifizzari were the teeth that inflicted both bitemarks, one on the leg and one on the stomach.”
-
Donald Eugene
Gates
1982
2009
Cold Hit
District of Columbia
Trial
Rape and Murder
No
Male
Black
No
- Forensic Evidence
- Informant
No transcript could be obtained.
J
● Non-public facts - appellate decision described how – “A paid informant told police that a man, identified before and at trial as the appellant, had told the informant that: he had tried to rob “a young, pretty white girl;” she resisted, so he raped her; after reflection on the consequences of his actions, he shot her and left her in a park.”
The Government’s brief described his testimony as follows – "Smith knew appellant’s first and last names and recalled having a specific conversation with him near the end of June, 1981, during the mornings hours, at the park at 25th and Pennsylvania Avenue. Appellant was ‘a little high’ because the men had all been drinking. Appellate told Smith during this conversation that ‘he went on a hell of a caper a couple [of] days ago. The caper consisted [of] robbing a pretty white girl. All he had was intentions to rob her, but she resisted. And after she resisted, he raped her. And they after it dawned on him what he had done, he shot her.’ Appellant told smith that the crime occurred in a park and that he had left the victim ‘cut and dry.’"
Appeal
- Brady
- Jackson Claim
- Prosecutorial Misconduct
- State Law Evidence Claim
Gates v. U.S., 481 A.2d 120 (D.C. 1984), Gates v. United States, 470 U.S. 1058 (1985)
-
James
Giles
1983
2007
Non-Cold Hit
Texas
Trial
Rape
No
Male
Black
No
● Defendant’s wife testified that her husband went to bed with her and stayed in bed all night. ● Victim’s description of assailant did not match defendant in height, age, facial hair, clothes, or watch.
Yes
“Q: Are you guilty? A. No, I am not guilty.”
- Eyewitness
- Forensic Evidence
There was only a defense analyst, who presented the evidence excluding the defendant.
- Cross Racial Identification
- Victim
Yes ● Victim not told attacker might not be in line-up ● Multiple eyewitnesses present at array
Victim testified, “after I had identified it and said, ‘This is definitely him,’ my husband said, ‘I stumbled on that picture, too.’” Officer said only “Do you recognize any of these men?”
No ● Discrepancies in description – age, two prominent gold teeth that the victim did not describe, facial hair
Defense lawyer pointed out in closings, “Now, what is unusual to me is that he has got two gold teeth, two prominent gold teeth. No mention of that.” Victim testified that attacker had no prominent mustache or other facial hair.
NR
Giles v. State, No. 05‐83‐00702‐CR (Tex. App. Dallas, November 7, 1984)
-
Larry
Gillard
1982
2009
Cold Hit
Illinois
Trial
Rape
No
Male
Black
No
Yes
- Eyewitness
- Forensic Evidence
(3) Incorrect frequency provided
Analyst testified that defendant was within 4.4% of the population that could have contributed to sample
- Cross Racial Identification
- Victim
FederalHabeas
- Due Process
- Ineffective Assistance of Counsel
- Schlup
U.S. ex rel. Gillard v. Gramley,, 1991 WL 86110 (N.D.Ill., May 17, 1991)
Gillard v. Gramley 962 F.2d 10 (7th Cir. 1992).
-
Bruce
Godschalk
1987
2002
Pennsylvania
Trial
Rape
No
Male
White
No
● Defendant’s mother testified that if defendant had gone out she would have heard him and their dog would have barked ● Defense challenged defendant’s confession and the lack of physical evidence to support it. ● Defense also presented a stipulation that serology excluded the defendant. ● Defense also argued that the attacker had a mustache and defendant did not at the time.
Yes
“Q: Can you indicate to the panel of jurors why it was that you would give such a [confession]? A: I was under a great deal of pressure, and I did. . . . Q: What do you mean by that? A: They were questioning me, they started out right away just questioning me, right? — and I was under pressure, and — Q: You mean from the time they got you in the car, or what? A: Yes. I was nervous and — what would you like me to — Q: Just what happened. A: They started questioning me down at the station and I was quite upset, and I was denying it most of the time, and I thought they would let me go. And so — Q: What would you have to do if they would let you go? What did you think? A: I was answering the questions for them. Q: You thought they would let you go? A: Yes, I did. . . . Q: To what end? What was your purpose in making such statements? A: I don’t know why I did it. Most of them were just guesses. Because they had asked me the questions, I was guessing. They were giving me multiple-choice questions.”
- Confession
- Eyewitness
- Forensic Evidence
- Informant
Yes
The sides stipulated as to the forensic analysis.
- Intraracial Identificaiton
- Victim
3
Yes ● Discrepancies in description – facial hair ● Initial non-identification
One victim looked at photo array three times before making an identification, first saying “His eyes are looking up, but he’s awfully damn close,” the second time saying, “Number four… I’m really getting — I’ve got very strong feelings about number four,” and the third time saying, “Yes, I’m sure, number four.” Godschalk wore a mustache at the time, while the victims described the attacker as clean-shaven.
First victim: ● Wearing a tampon, which her attacker removed and threw on the floor of her room. ● Had a bedside lamp on ● Reading a magazine before being assaulted ● Attacker entered through a window ● Victim was a brunette BUT – initially said he entered through a kitchen window; the apartment had no kitchen window Second victim – ● Assaulted in her bedroom ● A pillow from victim’s don’s bedroom was used during attack ● Victim was blonde ● Rape occurred on the floor ● Attacker fled after victim said someone was returning home
Detective described that a crucial nonpublic fact as to the first rape, that the victim had a tampon, was volunteered by Godschalk before the recording was made. Similarly, as to the second rape, he stated that Godschalk had admitted before being taped a series of facts that the Detective was clear had not been made public, including facts such as that a pillow from the victim’s son’s bedroom was used during the assault.
“Well, if he were guessing, he was guessing pretty darn good.” It was a “mathematical impossibility” that Mr. Godschalk could have guessed correctly on so many nonpublic facts regarding how the crime was committed.
Audio recording of part of interrogation
J
● Non-public details concerning eyewitnesses’ failure to identify defendant and rapist not ejaculating in one assault.
Jailhouse informant claimed that defendant had admitted that the victims “couldn’t identify him and stuff, because they didn’t get a good look at him, only in a mirror, right? And one time he was mentioning about how he didn’t finish the job in the one, you know, and this is a little embarrassing, and that the lady said – (objection) . . She was saying something like, ‘My boyfriend was coming home.’ And he said — he told me that he got scared and left.”
FederalHabeas
Commonwealth . Godschalk, 560 A.2d 826 (Pa. Super 1989)
Commonwealth v. Godschalk, 564 A.2d 915 (Pa. 1989) (Table)
Commonwealth v. Godschalk, 679 A.2d 1295 (Pa. Super 1996)
-
Juan Carlos
Gonzales-Barboza
1994
2017
Kentucky
Guilty Plea
Rape
No
Male
Hispanic
No
-
Angel
Gonzalez
1995
2015
Illinois
Trial
Rape
No
Male
Hispanic
No
Yes
- Cross Racial Identification
- Victim
Yes ● Show-up – conducted with defendant placed in handcuffs while victim in patrol car
● Statement described where and how assault occurred in "the area of Belvidere Park" ● Assault began in car and then on ground near "evergreen trees" BUT – statement Gonzalez wrote in Spanish did not resemble statement translated into English
Prosecutor argued that confession statement had “numerous consistencies,” including where and how the assault occurred in “the area of Belvidere Park,” with the assault beginning in a car, and then on the ground near “these evergreen trees,” matching what victim had described.
Written and signed confession statement; only video of Miranda warnings being administered
State Post Conviction
-
Hector
Gonzalez
1996
2002
New York
Trial
Murder
No
Male
Hispanic
No
● Fingerprint on knife did not match defendant’s.
No
- Eyewitness
- Forensic Evidence
While the direct examination provided incomplete information, the valid statistic regarding the included population was first provided during cross-examination.
- Intraracial Identificaiton
- Non-victim
Yes ● Victim not told attacker might not be in line-up ● Show-up properly conducted immediately following the incident and in its vicinity
Officer recounted instructions to eyewitnesses: “As they come to view the lineup, I explained to them there’s going to be six individuals sitting on the other side of the one-way glass. If they recognize anybody, to tell me what number and under what circumstance”
State Post Conviction
- Ineffective Assistance of Appellate Counsel
- Ineffective Assistance of Counsel
- Jackson Claim
- State Law Evidence Claim
State v. Gonzalez, 265 A.D.2d 341 (N.Y. App. Div. 2 Dept. 1999)
State v. Gonzalez, 270 A.D.2d 358 (N.Y. App. Div. 2 Dept. 2000)
Gonzalrz v. Duncan, No. 00‐CV‐1857(FB), 2001 WL 726985 (E.D.N.Y. June 22, 2001)
-
Kathy
Gonzalez
1990
2009
Non-Cold Hit
Nebraska
Guilty Plea
Murder
No
Female
Hispanic
No
- Forensic Evidence
- Informant
(1) Masking
Fingerprint and hair comparison excluded defendant. Analyst testified in Joseph White’s trial that serology was consistent with two co-defendants, without providing any statistics or explaining that those findings were also entirely consistent with the victim and none could be excluded.
CD
● Non-public facts including in false confession Appendix concerning other “Beatrice Six” defendants Shelden, Taylor and Winslow.
NR
-
Donald Wayne
Good
1984
2004
Texas
Trial
Rape
No
Life
Male
White
No
● The only witness in support of the alibi was the defendant.
Yes
No transcript obtained of second trial at which he testified.
- Eyewitness
- Forensic Evidence
(1) Masking; failure to provide percentage
Good was an O secretor. A blanket exhibited H substances consistent with an O type while the swab tested exhibited blood groups A and H. As to the swab, the analyst stated, “you cannot put the percentage on that because it can easily be a mixture of the vaginal secretions plus the seminal fluid.” However, as to the blanket, which could also be a mixture, the analyst included Good and stated that “one-third of the Caucasian male population” are O secretors. See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases.
- Cross Racial Identification
- Victim
2
Yes ● Suggestive line-up – As Fifth Circuit found in summary judgment ruling, Good had shown that the line-up was “fabricated,” where the officer “stated he planned to frame Good for failing to cooperate” and to “fix” the photo array by underexposing his photo to darken it and make it better match the composite, as well as hide a tattoo and scar on his face.
As the Fifth Circuit described, the plaintiff argued that the detective “proceeded to take several pictures of Good. He repeatedly altered the light settings on the camera with each picture in an effort to make Good’s photograph better match the “dark tan” skin tone of the suspect in the police sketch”
Yes ● Discrepancies in description, skin tone, facial scar and tattoo ● Initial nonidentification (by second eyewitness)
Appeal
Good v. State, 723 S.W.2d 734 (Tx. Cr. App. 1986)
-
Bruce Dallas
Goodman
1986
2004
Utah
Trial
Rape and Murder
No
Male
White
No
● Three witnesses saw the defendant at a warehouse, working, the day of the crime. Defense presented receipt from a Radio Shack located 12 hours away from location of crime.
Yes
“Q: I’m sorry. The night of November 29th and early morning of November 30th, were you in [victim’s] company? A: No. I haven’t seen [the victim] since the 25th of November. Q: Specifically, did you cause her death by a beating . . .? A: I did not.”
- Eyewitness
- Forensic Evidence
- Informant
The analyst testified that A blood group substances were identified that were foreign to the victim and Goodman was an A secretor. Crime scene hairs were found to be dissimilar to both Goodman and the victim.
IW
Appeal
State v. Goodman, 763 P.2d 786 (Utah 1988)
-
Michael
Googe
2008
2015
Guilty Plea
Male
White
-
Andrew
Gossett
2000
2007
Texas
Trial
Rape
No
Male
White
No
● Defense questions accuracy of eyewitness testimony.
No
- Intraracial Identificaiton
- Victim
Yes ● Show-up – prosecutor showed single photo to victim
No ● Discrepancies in description – height and weight. Victim did describe prominent scar, which Gossett had.
State Post Conviction
Gossett v. State, 2001 WL 997400 (Tex.App.‐Corpus Christi, April 12, 2001)
-
Anthony
Gray
1991
1999
Non-Cold Hit
Maryland
Trial
Rape and Murder
No
Life
Male
Black
No
Intellectually Disabled
Yes
● Based on court file, news reports and conversations with Gray’s lawyers and former prosecutors involved in the case, Gray “had given a detailed confession.” Attorney Grievance Comm’n v. Kent, 653 A.2d 909, 917 (Md. 1995). He had offered details including a description of how and where the murder took place while he stood watch. ● His statements also contained certain inconsistencies with crime scene evidence. See Todd Richissin, “Trying to Right an Injustice; Murder: A Defense Attorney and Calvert County State’s Attorney Say a Man Has Been Wrongly Imprisoned for the Past Seven Years,” Baltimore Sun, February 6, 1999, 1A.
NR
-
David A
Gray
1978
1999
Illinois
Trial
Rape
No
Male
Black
No
● Defendant’s parents, defendant’s girlfriend, and defendant’s girlfriend’s mother all testified that defendant was with them at the time of the crime. ● Witness testified that defendant was at work during the time that the attacker visited the victim the week before the crime.
No
- Eyewitness
- Forensic Evidence
- Informant
(2) Failure to exclude
The analyst did not perform secretor testing on the defendant, which would shed light on whether his blood group substances could have been observed in the sample. Although the questioned hair from crime scene had a central medulla, while defendant’s hair did not, despite this difference the analyst found the results “inconclusive. I felt that there were enough— that there was a balance between similarities and dissimilarities that, when you reach a point, you just have to give up on it…”
- Cross Racial Identification
- Intraracial Identificaiton
- Non-victim
- Victim
2
Yes ● Non-identification by one eyewitness
J
● Non-public facts including explanation for lack of forensic evidence, the ripped telephone, the unusual “wine-colored” shoes the perpetrator wore – prosecutor argued that was “a fact that would have been unknown to any person, other than police officers, members of the State's Attorney's Office. . . “
He testified “once inside the house, his friend raped the lady, and he said that after he raped her, he went into the kitchen, and got a knife out of the drawer, and, after that, he said that he stabbed the lady a lot of times.” They then “went through the purse and found the checks,” and then left. He “had some gloves or somethin’ on his hands,” explaining why no fingerprints were found. “Q. Okay, did he say anything about a telephone? A. Oh, yes. He jerked—one of them jerked the phone off the wall. Q. Okay, did he tell you what the color of the shoes he had on? A. Wine colored. Prosecutor testified “That only fact that I told him, prior to him telling my anything, was that it was a rape case.”
FederalHabeas
- Ineffective Assistance of Appellate Counsel
- Jackson Claim
- Jury Selection
- Prosecutorial Misconduct
- Sentencing — Noncapital
- Sixth Amendment Right to Counsel
- State Law Evidence Claim
People v. Gray, 399 N.E.2d 206 (Ill. App. 1979)
Gray v. Greer, 707 F.2d 965 (7th Cir. 1983)
Gray v. Greer, 778 F.2d 350 (7th Cir 1985)
Greer v. Gray, 478 U.S. 1017 (1986)
Gray v. Greer, 800 F.2d 644 (7th Cir. 11986)
Gray v. Greer, 878 F.2d 384 (Table) (7th Cir. 1989)
Gray v. Greer, 493 U.S. 980 (1989)
-
Paula
Gray
1978
2002
Cold Hit
Illinois
Trial
Rape and Murder
No
Female
Black
Yes
Intellectually Disabled
Yes
“Q: The story that you told before the Grand Jury, where did that story come from? A: The State had made me tell a lie. . . . Q: Now, directing your attention to the deceased parties, did you at any time see these parties while they were alive? A: No. Q: Are you aware of any of the circumstances–what if any of the circumstances are you aware of that caused their death? A: None.”
- Confession
- Eyewitness
- Forensic Evidence
Yes
(2) Invalid use of serology
See Adams case above on the testimony concerning a supposedly unusual agglutination phenomenon. The analyst here testified: “Q. And could you please tell the ladies and gentlemen of these two juries what if any determination you were able to make as result of your test. A. That it contained Group A blood and also had distinct characteristic of showing up slight agglutination in the O well which would indicate person had H substance found in his blood.” The analyst testified that questioned hairs were dissimilar to Gray’s.
- Intraracial Identificaiton
- Non-victim
No – eyewitness Acquainted with defendant
Yes ● Initial nonidentification – did not make an identification until offered police assistance and relocation
● Location of crime scene ● Where cars were parked ● There were two victims ● One victim was kept at the bottom of the stairs in the abandoned house ● The second victim was shot twice in the head from a very close range ● The first victim was taken to a field and shot twice in the head and once in the back
“[S]he had taken us into the building and somewhat described the events that took place, you know, prior to the two victims being killed. . . . After we were in the apartment and she kind of ran the think down to use she took us across the street to a creek and showed us where the second victim was found.” She said Dennis Williams “held the gun in his hand, he reached down… He took the gun and put it right next to her head and fired two shots into her head.” As for the second victim, “They walked him across Cannon Lane out into the field down by Deer Creek… She told me that he handed the gun to Willie Rainge… and Willie Rainge fired one shot into the man’s back.”
“Paula Gray made a statement to certain members of the police department and to certain members of the State Attorney’s office and to a duly constituted Grand Jury. The Defense has alleged that this was a State induced statement. The difficulty with this is that the statement that she related to you and its content fits like a hand into a glove all the other evidence that the State had adduced.”
FederalHabeas
- Ineffective Assistance of Counsel
- Jackson Claim
- Motion for DNA Testing
- Sentencing — Noncapital
-
Anthony
Green
1988
2001
Non-Cold Hit
Ohio
Trial
Rape
No
Male
Black
No
● The defendant was the only witness to discuss his alibi.
Yes
Defendant made general assertions of innocence and denied committing the rape.
- Eyewitness
- Forensic Evidence
(1) Masking, (5) invalid non-numerical probability statement
The analyst testified that the hair characteristics “eliminated a large percentage of the population.” As described in Part II.B, there is no statistical basis for hair comparison. The victim and Green were both B secretors and the stain tested exhibited B and H antigens. The analyst concluded that the donor was a secretor and the “ABO type of the donor of this seminal fluid was type B,” and that B secretors are approximately 16% of population. “Q. So if we understand you correctly, sir, that 84 percent of the population, male population would be unable to deposit that seminal fluid on State’s Exhibit 1? A. That is correct.” However, those substances could entirely have originated from the victim and the donor could have been any type. See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases.
- Cross Racial Identification
- Victim
Yes ● Suggestive line-up – only photo with identifying information ● Suggestive remarks – told victim that they had a suspect and that his name was Tony ● Repetition of only the defendant’s photo ● Victim not told attacker might not be in line-up
Victim testified that the Officer “told me his name was Tony.” The assailant had said his name was Tony. Officer recalled “we told her we had some photographs that we had possibly the suspect in this situation.”
Yes ● Initially uncertain of identification
No identification was made when first viewing the photo array; “I wasn’t sure and I didn’t want to be sure either.”
Appeal
- Ineffective Assistance of Counsel
- Jury Instructions
- Prosecutorial Misconduct
- State Law Evidence Claim
- Suggestive Eyewitness Identification
Ohio v. Green, 585 N.E.2d 990 (Ohio App. 8 Dist. 1990)
-
Edward
Green
1989
1990
District of Columbia
Trial
Rape
No
Male
Black
No
- Eyewitness
- Forensic Evidence
Serology included Green, but before sentencing DNA testing excluded him and the conviction was reversed
- Cross Racial Identification
- Victim
2
NR
-
Kevin Lee
Green
1980
1996
Cold Hit
California
Trial
Murder
No
Male
White
No
● Worker at the fast food restaurant testified to seeing defendant at the fast food. ● Prosecution witness police officer testified that the take out food on defendant’s kitchen counter was still warm, which supports defendant’s alibi that he was out getting take out when crime occurred.
Yes
“Q: Again referring — this is September 30th — you did not inflict the injury to [the victim]? A: No, I didn’t.”
- Intraracial Identificaiton
- Victim
No – eyewitness Acquainted with defendant (her husband)
Yes ● Initial nonidentification – had told police she lost all memory of what transpired
“Q: And you lost your memory; is that correct? A: Yes.”
NR
-
Michael Anthony
Green
1983
2010
Cold Hit
Texas
Trial
Rape
No
Male
Black
No
- Cross Racial Identification
- Victim
NR
-
William
Gregory
1993
2000
Kentucky
Trial
Rape
No
Male
Black
No
Missing trial transcript of defense case
- Eyewitness
- Forensic Evidence
(4), (5) Invalid claim of unique characteristic and probability
The analyst testified that Gregory’s hair and the questioned hairs shared a set of rare characteristics. The analyst testified: “A. I told you, there is no statistics on this. I can tell you this is the first time I have ever had a negroid origin hair that has not had a medulla in it. Q. What percentage of people have ovoid bodies in them?A. This is probably the first time I have ever seen an ovoid body in a human hair. I have seen them in cattle hair before.” The analyst also testified that the ovoid bodies were “an unusual characteristic” and that the hairs “more than likely” belonged to defendant. The analyst also testified that five hairs found in the pantyhose mask came from an African American and matched Gregory’s, but failed to disclose that at least one of the two additional hairs didn’t match his. See Part II.B.2 and Part II.F.1 for discussion of this case.
- Cross Racial Identification
- Victim
2
Yes ● No transcript exists, but arrest report and judicial opinion describe a Show-up, conducted after second victim failed to identify defendant in photo array.
Yes ● Initial nonidentification – records describe that both victims initially failed to pick defendant from a photo array. One victim could not see attacker’s face, as he wore a stocking mask. ●Discrepancies in the description, including as to facial hair, eye color, height and hair length
NR
-
Sam
Hadaway
1996
2018
Cold Hit
Wisconsin
Guilty Plea
Rape and Murder
Male
Black
No
-
Byron
Halsey
1988
2007
Cold Hit
New Jersey
Trial
Rape and Murder
No
Life
Male
Black
No
Intellectually Disabled
● Bartender and police officer testified that defendant was at a bar away from the scene at the time of the crime.
No
- Confession
- Forensic Evidence
Yes
On cross-examination, the analyst for the first time admitted that one cannot rule out any secretor or nonsecretor: “Q. That sort of takes in the whole population; doesn’t it. A. That’s exactly right.”
● Two children were killed ● Panties placed in one victim’s mouth. ● Nails and blue cloth hammered into one victim’s head with a brick ● Scissors used in assault ● Red wire used in assault ● Semen in one victim’s mouth
“…[H]e blurted out my kids are dead. At that time there was only one child when it was initially found.” “Lieutenant Lynch again was telling him that, you know, you’re the one that wants to give us a truthful statement. You’re not being truthful with us. Then he finally did tell us what he used to drive the nails into [the victim’s] head. Q. At any time was it suggested to the defendant what the answer should be? A. No.” “Well, the scissors that were found at the scene were little scissors and we subsequently used a unit of measurement which most people could be familiar with, which would be a Kool filter king cigarette. But his initial time I would say he had it about a foot, he had the scissors about the size of the foot… We again said, you know, Byron, you’re already – I mean he’s already gone through everything, telling us exactly what has occurred and yet he starts playing a game with us… We said, Byron, you know the scissors weren’t that long or words to that effect. He was grinning… Then he brought it smaller. . . Then he made – then we used the Kool filter cigarette as a unit of measurement and that’s what he said the size of the scissors were.”
“And, ladies and gentlemen, think to yourself, detectives – [defense counsel] suggests that the detectives fed it to the defendant, suggested things. They’re doing to suggest two different times which he committed the murders? … Ladies and gentlemen, this defendant, whatever he said was written down.”
Signed written statement
State Post Conviction
- Ineffective Assistance of Counsel
- Motion for DNA Testing
State v. Halsey, 748 A.2d 634 (N.J. Super A.D. 2000)
State v. Halsey, 758 A.2d 650 (N.J. 2000) (Table)
-
Dennis
Halstead
1986
2005
New York
Trial
Rape and Murder
No
Male
White
No
● Witness testified that defendant was working at her house at the time of the crime.
Yes
“Q: Dennis, did you ever see or meet or have the opportunity to be in the company of [the victim]? A: Never. Q: Did you know her or even hear of her prior to the day she disappeared? A: No. Q: On November 10th, 1984, Dennis, were you involved in any way with the abduction, rape and murder of [the victim[? A: Absolutely not.”
- Forensic Evidence
- Informant
The analyst testified that the hairs were “microscopically alike” and fingerprints excluded Halstead.
J, CD
● Non-public details by both jailhouse informant and codefendant, as well as additional witness ● See also Restivo
“He told he his case is a rape and a murder but he didn’t kill them.” “He told me he and two of his friends, a guy named Dennis and a guy named John were out in his brother’s van that night, out by some kind of roller skating rink.” “He didn’t tell me how she got into the van, but after he told me she was in the van that Dennis grabbed the girl and John and they started forcing her to have sex and while John was — John was holding her, Dennis fucked her and then John went, then John didn’t really want to rape the girl and his friend said, ‘What are you, a pussy?” and he told me he fucker her but he told me right after that he didn’t kill the girl.” “That John Kogut, that he strangled her after with a scarf. And then, I asked him what did they do with the body? He told me they dumped the girl by some railroad tracks.” And he said the victim’s name. Additional witness testified that defendant had confessed with details to him.
Appeal
- Bruton
- Jackson Claim
- Sixth Amendment Right to Counsel
People v. Halstead, 180 A.D.2d 818 (N.Y. App. Div. 2 Dept. 1992)
People v. Halstead, 602 N.E.2d 237 (N.Y. 1992)
-
James
Harden
1995
2011
Cold Hit
Illinois
Bench Trial
Rape and Murder
No
Male
Black
Yes
- DNA excluded
- Forensic Evidence
- Informant
CD
Appeal
People v. Harden et al., 738 N.E.2d 231 (Ill. App. Ct. 1998)
People v. Harden, 707 N.E.2d 1242 (Ill. 1999)
People v. Harden, 749 N.E.2d 980 (Ill ,2001)
People v. Harden, 853 N.E. 2d 430 (Ill. App. Ct. 2003)
Harden v. Illinois 535 U.S. 1025 (2002).
-
Dion
Harrell
1992
2016
New Jersey
Trial
Rape
Male
Black
- Eyewitness
- Forensic Evidence
Serology was not probative, since it matched the victim and could not exclude any male contributor
-
William
Harris
1987
1995
West Virginia
Trial
Rape
No
Male
Black
Yes
● Defendant’s girlfriend and her parents testified that defendant was at their house the day of the crime.
Yes
“Q: I would like to ask you if you did that violent, vicious crime? A. No, I didn’t.”
- Eyewitness
- Forensic Evidence
(1), (3) Masking; false probability
Victim and Harris both O secretors, PGM 1+. Swabs were type O, PGM 1+. But the analyst testified, “[All characteristics identified] were consistent with the blood characteristics identified from Mr. Harris’ known blood. There were no inconsistencies identified. Q. She could not have deposited that seminal fluid; is that correct? A. That’s correct.” “And when you combine those percentages, it would be approximately 11.8 percent of a given population could have those three blood characteristics, the three blood characteristics being an O, a 1+, and a secretor.” “Taking in conclusion, it would be approximately 5.9 percent or 5.9 percent of that given population being the combination if they were males.” The testimony ignored masking and falsely divided the Invalid statistic in half. See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases and Part II.A.3 describing such invalid division.
- Intraracial Identificaiton
- Victim
Yes ● Victim not told attacker might not be in line-up ● Suggestive line-up – others had mustaches
“Was there a time that a officer . . . asked you if you knew a person named William Harris? A. Yes. . . . Q. Did they ask you whether that was the man who assaulted you? A. Yes. Q. And what did you tell them? A. No.” [This is referring to the son of the defendant] Harris only person repeated from year-book photo array to in-person line-up. “Well, of course she knew what the procedure was about, that it was to look at these men for the purpose of seeing if any of the men could be the person involved. And so there wasn’t a lot in the way of instructions given at that moment. She was just asked to stand and look at these men.” “Q. So you were trying to match the other people in the lineup with Mr. Harris – – A. (Interposing) That’s correct, yes sir. Q. (Continuing) – – As opposed to any description that might have been previously given by the victim? A. Exactly, yes, sir.”
Yes ● Initially uncertain of identification ● Discrepancy in description – described person 5’7” or so and 165 to 175 lbs, but he was 6’ and 185 lbs, and victim could not describe attacker well or prepare a composite
Officer testified – “She had told me that the best that she could recall was that the individual was black, he was a male, she estimated his height to be about five foot eight; and also she had said he probably weighed approximately 160 pounds; and that, you know what he was wearing; and that he had short, what they call short-cropped, Afro-type hair-do“ Victim testified: “And you never told the deputy that the assailant was five foot seven? A. No.” “Q. Did you–do you recall testifying in what’s been referred to as the, as a, at a previous hearing in this matter on January 10th of 1986? A. Yeah. Q. And do you recall at that time answering questions to the effect that your assailant was approximately five foot eight? A. No, I don’t remember that particular question. Q. And you were–do you recall how that, how that worked or what transpired when you were down there trying to draw up the composite? A. I just couldn’t do it. Q. And why was that? A. I don’t know, I just couldn’t do it. Q. Was it because you didn’t, weren’t able to identify enough characterisitcs, facial characteristics to draw up the composite? A. I don’t know the reason for it, but I just, I just didn’t do it.
NR
-
Clarence
Harrison
1987
2004
Georgia
Trial
Rape
No
Life
Male
Black
No
● Witnesses testified defendant periodically came and went to their house throughout the night that the crime took place.
Yes
“Q: Mr. Harrison, did you rape [the victim]? A: No, I didn’t. Q: Do you know who did? A: No. Q: Do you have any knowledge whatsoever of this crime? A: No more than, you know, what Iheard, what Kenney said and what people said on the street, you know. Q: Have you ever harmed her in any way? A: No, I haven’t.”
- Eyewitness
- Forensic Evidence
(1) Masking
The victim was an A secretor and Harrison was an O secretor. The swabs exhibited A and O antigens. The analyst testified: “The only group of the society that could be definitely eliminated would be type B secretors and type AB secretors.” “That would eliminate approximately 22 percent — I think that’s right, about 22 percent of the population.” “Considering that Mr. Harrison is a type O secretor, he would fall within that group of the population who could not be eliminated as a semen donor.” See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases. Hair comparison excluded the defendant.
- Intraracial Identificaiton
- Victim
2
- Composite drawing
- Photo array
- Showup
Yes ● Show-up – showed second eyewitness composite prepared by the first ● Victim not told attacker might not be in line-up ● Suggestive line-up
Victim asked “if the photograph of the person who committed the crime against her’s photograph was among the six.” Second victim showed Harrison’s photo first – “Q: Did he show you this picture before he showed you the other pictures or after he showed you the other ones? A: He showed me this picture first. Q: Showed you this picture first.” She saw the composite, “a big old picture” on the detective’s wall when viewing photo array.
Yes ● Discrepancy in description – facial hair, mustache and goatee ● One witness unsure
Attacker “was cleanshaven,” but most people in photo array had mustaches or beards. Second victim wavered between saying he had a mustache and no beard, and both. She said “well, it might have been” a mustache, and added “Like I said, I forget faces too quick.” She added that “I am not one hundred percent sure.”
Appeal
- Jackson Claim
- Sentencing — Noncapital
- State Law Evidence Claim
Harrison v. State, 370 S.E.2d 7 (Ga. App. 1988)
In re Harrison, 489 U.S. 1009 (1989)
-
Keith
Harward
1983
2016
Non-Cold Hit
Virginia
2 Trials
Rape and Murder
No
Life without parole
Male
White
No
Yes
Overstated testimony concerning bite mark evidence and concealed serology that excluded
-
Nathaniel
Hatchett
1998
2008
Michigan
Bench Trial
Rape
No
Male
Black
Yes
● Three witnesses testified that defendant was with them at the time of the crime.
No
- Confession
- DNA excluded
- Eyewitness
- Forensic Evidence
Yes
DNA testing excluded Hatchett. Serology testimony correctly explained the problem of masking. Analyst who conducted hair comparison stated that the hair at the crime scene was “consistent” with Hatchett’s (though no comparison with the victim’s hair was conducted).
- Cross Racial Identification
- Victim
Yes ● Show-up –in-court, no identification procedure conducted previous to that
No – but no details of description provided and victim did not get good look at attacker
Victim briefly saw attacker initially and “saw him a couple of times while he was driving,” but “He threatened me not to to look at him or he would kill me.” At trial, victim described only a black man who wore a hood. The description police received was of a “tall black male wearing dark clothing and reported to have a polo-type sweater shirt or jacket and dark baggy pants.”
● Victim was a white woman ● Victim was forced into her car ● Victim had infant car seat in back seat ● Told victim not to look and raped victim ● Implied he had a gun ● Told victim it was her “lucky day” ● Left victim on service drive near expressway ● Described victim’s pubic hair BUT denied taking victim’s pursue or contents, whereas victim described assailant taking contents of purse
Q. Did you ever supply the Defendant with details, specific details of the offense so that he would be able to recite them back to you when and if he decided to give you a statement about his knowledge and involvement with these crimes? A. I didn’t. Q. You say you didn’t, so I will ask the next question: Did you hear anyone else or see anyone else provide him with the kind of details that he eventually later gave you demonstrating his knowledge and involvement in this crime? A. No. As a matter of fact, as lead investigator I was the only one privy to such details at this point.
The Defendant not only confessed generally to kidnapping, raping and stealing [the victim’s] car but also gave very specific facts regarding the crimes charged here. He gave specificity as to the day, time, circumstances, right down to [the victim’s] purse being stolen, and the car seat for the baby that was in the back of the car, and also to ordering the victim not to look at him during the course of the incident so that she wouldn’t be able to identify him later.
Audio recording of part of interrogation
FederalHabeas
- Jackson Claim
- State Law Evidence Claim
- Suggestive Eyewitness Identification
People v. Hatchett, 2000 WL 33419396 (Mich.App. 2000)
Hatchett v. Withrow, 185 F.Supp.2d 753 (E.D.Mich. 2002)
-
Travis
Hayes
1998
2007
Non-Cold Hit
Louisiana
Trial
Murder
No
Life
Male
Black
Yes
No
- Confession
- DNA excluded
- Eyewitness
- Forensic Evidence
Yes
Testimony by defense witness that DNA testing excluded defendant.
2
Yes ● Eyewitnesses not told attacker might not be in line-up ● Show-up – eyewitness presented with the two suspects at scene – and then again in “line-up” or with just the two suspects again at the police station (see Mathews).
“Q. Now Lieutenant, are you aware whether or not the two Defendants were placed together for purposes of identification prior to that? A. Yes. Q. And who was that done with? A. That was done with Lieutenant [], with the two witnesses, as well as the two Defendants. Q. So, the two Defendants were together in that identification procedure? A. Right, it was for a clarification purpose, because there was – – to make sure we had the person that was picked out as being the shooter and the other person as being not picked out.”
No – witnesses did not describe him with any detail; one called him “the short guy” for example.
None; he simply agreed he was present as a getaway driver
Audio recording of part of interrogation
Appeal
- Jackson Claim
- Sixth Amendment Right to Counsel
- State Law Evidence Claim
State v. Hayes, 806 So.2d 816 (La.App. 5 Cir.,2001)
State v. Hayes, 827 So.2d 1169 (La. 2002)
State v. Hayes, 843 So.2d 1119 (La. 2003)
-
Thomas
Haynesworth
1984
2009
Cold Hit
Virginia
Trial
Rape
No
Male
Black
No
- Cross Racial Identification
- Victim
5
NR
-
Chad
Heins
1996
2007
Florida
Trial
Murder
No
Life
Male
White
No
● Three witnesses testified that victim’s husband (who was also the defendant’s brother) made inculpatory statements suggesting he was responsible for his wife’s murder.
Yes
“Q: Chad did you have anything to do with the death of [the victim]? A: No sir. Q: Did you kill [the victim]? A: No sir. Q: Did you attempt to have any type of sexual relationship with her on April 17, 1994? A: No sir.”
- Forensic Evidence
- Informant
- Other
(3) Incorrect frequency provided
The analyst failed to provide the relevant statistic for population included by DQ Alpha type. See Part II.C. for discussion of this case. Hair comparison excluded the defendant.
J
● Non-public details in admissions allegedly overheard by two jailhouse informants
Prosecutor argued, “What rings true about what [the informants] didn’t get any deal or compensation from testifying? The words they claimed he used. Remember, they didn’t know whether it was Jeremy’s wife that got killed, what did they tell you this defendant said. I killed my brother’s old lady… neither one of them knew anything about the facts of this defendant’s case…”
NR
-
Eugene
Henton
1984
2006
Texas
Guilty Plea
Rape
No
Male
Black
Yes
NR
-
Alejandro
Hernandez
1985
1995
Non-Cold Hit
Illinois
Trial
Rape and Murder
Yes
Male
Hispanic
No
● Five witnesses all testified working with victim at the time of the crime. ● Three witnesses all testified that another man confessed he was responsible for the crime in question.
No
- Confession
- Forensic Evidence
- Informant
Yes
- Not Disclosed
- Valid (Excluded)
The analyst testified that latent fingerprints excluded defendant and co-defendants. Boot print evidence that excluded a co-defendant, see Cruz, was not disclosed to the defense.
● He and his accomplices drove to the scene in a dark green, late model Ford ● Abducted girl’s lip was bleeding ● Victim was blindfolded, hit with a bat and kicked on head ● Victim was dragged on ground BUT gave incorrect description of a light and described an appliance being stolen from the house when nothing had been stolen. Apparently at his first trial, which was not obtained, a defense expert conducted an examination and found that he was “dull-normal”
“He proceeded to state that … on a certain day in February he was referring to a burglary. He was invited, had been planning with two other named individuals for some time a home located in Naperville, not too far off Route 65, a short ways from Aurora… They proceeded to the scene in a late model Lincoln Continental… Q. Did he describe the color of that car at all to you? A. Dark green…” “He described the little girl as, obviously, frightened. Her lip was bleeding and she was pleading that she wanted to go home.”
“And what did he say about her was that she had a cut lip. And you heard the testimony of Dr. Cleveland that, in fact, Jeanine had a laceration that was through the upper lip, which is just right there. Now, where does that detail come from? Alex Hernandez…” “Where’s that detail come from…where does he get that kind of detail if it doesn’t come from the fact he knows about her.”
CD, J
● Non-public details in codefendant Cruz’ reported and false confession, see False Confessions Appendix. ● Non-public details in jailhouse informant’s statements
One informant admitted he had heard “rumors at the jail.” He then said – “A: I asked if he had – if he was involved in it. Q: And what did he tell you? A: Yeah, he was.” Non-public facts included: The murder occurred in an abandoned place. The victim was blindfolded and hit, then was dragged out of the house by her ankles, hit with a bat, dumped and stomped on the back of the head. The informant said defendant described an unusual night-light at the crime scene, “it was a nightlight on the black post that goes up and has four glass pieces, one on each side.”
Appeal
People v. Hernandez, 521 N.E.2d 25 (Ill. 1998)
Illinois v. Hernandez, 488 U.S. 869 (1988)
-
Anthony
Hicks
1991
1997
Wisconsin
Trial
Rape
No
Male
Black
No
● Defense presented alibi witnesses but they were unable to account for defendant’s whereabouts from about 7:00-8:10 , the time in which the crime occurred.
No
- Eyewitness
- Forensic Evidence
Analyst who conducted hair comparison stated that the hair at the crime scene was “consistent” with the defendant. Analyst testified that the latent print excluded the defendant.
- Cross Racial Identification
- Victim
Yes ● Suggestive lineup – Hicks was only very dark complected person in lineup ● Victim not told attacker might not be in line-up, and instead was told that a suspect had been detained for her to identify
Officer testified “I told her — there was someone in custody” when telling victim to come to police station to view line-up. Victim testified that police said “something to that effect” that they had a potential suspect, and that as a result she was “hoping that there would be someone” when she viewed the line-up.
Yes ● Discrepancies in description – facial hair – mustache, scarring above eyes, cleft chin; victim initially said would not necessarily be able to identify her attacker ● Initially uncertain
Victim said that Hicks “looked brighter and had a cleft in his chin” than the attacker, following the line-up. Police report noted that the victim appeared “hesitant for just a moment before she marked the witness identification form.” Victim testimony: “A: He fit the description. He was the man. Q: But you never saw his eyes, you never saw the mustache. A: Yes, I guess that’s correct.” “Q. Now when looking at the assailant, did you notice any scars above the eyes? A. No.” Defendant had such scars as well as a mustache, which the victim did not observe.
NR
-
Larry
Holdren
1984
2000
West Virginia
Trial
Rape
No
Male
White
No
● Missing testimony from defense case, but apparently family members testified he was at home at the time of the crime.
No
- Eyewitness
- Forensic Evidence
Testing for seminal fluid inconclusive or negative.
- Intraracial Identificaiton
- Victim
2
Yes ● Suggestive lineup – 3 of 5 photos were wrong hair color, other photo was D’s twin but a wrinkled photo; defendant’s photo was repeated in two separate photo arrays
The Judge commented – “This is not a very good photo array… I do think that this — that there is a suggestive aspect of the photo array.”
Yes ● Discrepancies in description –hair ● Initially uncertain (the second witness)
Victim said attacker “had dirty blond hair” that was “longer than it is right now.” Officer testified that Holdren had hair that was “brown” or hair that “could be” black. Victim had described attacker as “cleancut” while Holdren had a beard and mustache. Second eyewitness was not certain andtestified “When I picked that photograph out, I believe I said that is similar to him or a good likeness or resembles him or however I said it”
FederalHabeas
- Double Jeopardy
- Ineffective Assistance of Counsel
- Jackson Claim
- Jury Instructions
- Prosecutorial Misconduct
- State Law Evidence Claim
- Suggestive Eyewitness Identification
- Willfull Destruction of Material Evidence
Holdren v. Legursky, 16 F.3d 57 (4th Cir. 1994)
Holdren v. Trent, 513 U.S. 831 (1994)
-
Jeffrey
Holemon
1988
1999
Alabama
Trial
Rape
No
Life
Male
White
No
NR
-
Dana
Holland
1997
2003
Non-Cold Hit
Illinois
Trial
Rape and Murder
No
Male
Black
No
● Defense argued that another man – who was wearing the same cloth and hair style as the defendant – was the actual perpetrator.
Yes
“Q: Were you ever — did you ever participate in any of the events that [the victim] testified to here in court this afternoon? A: No, I didn’t. Q: Did you have anything whatsoever to do with the incident that [the victim] testified to? A: No, I didn’t.”
- Eyewitness
- Forensic Evidence
There was no testimony by an analyst at trial, however, the analyst submitted a report claiming that the material was insufficient for DNA testing, which it was not even at the time,
- Intraracial Identificaiton
- Victim
2
Yes ● Suggestive lineup – defendant was only person wearing prison pants ● Victim not told attacker might not be in line-up ● Suggestive remarks ● Show-up in second case, conducted properly, shortly after incident
Victim had been told “if there was anybody arrested matching the description she gave on the original report, that she would be asked to view a lineup.” Officer then told victim prior to lineup that they had a suspect who was arrested and who had her identification. Officer noted that at the lineup “I believe Mr. Holland was wearing a full prison uniform,” although he claimed that a table blocked some of that from view.
Yes ● Initial non-identification
“A. They asked me is this the man that raped me. Q. And when they asked you that, what did you say? A. I hesitated and then I said no.” She then “started to cry some more” and “I identified the defendant.”
NR
-
Daryl
Holloway
1993
2016
Wisconsin
Trial
Rape
Male
Black
No
- Eyewitness
- Forensic Evidence
Serology excluded
Three of the five individuals in the photo array did not match description
-
Edward
Honaker
1985
1994
Non-Cold Hit
Virginia
Trial
Rape
No
Life
Male
White
No
● Defense argued that defendant had a vasectomy and was incapable of producing sperm; sperm was found during the physical examination of the victim after the rape. ● Three witnesses accounted for defendant’s whereabouts during the time the crime occurred.
Yes
“Q: Have you any explanation for the court, or for the jury, why they would look you in the eye, be so absolutely positive you are the person that perpetrated these crimes? A: No, sir, I don’t offer an explanation to it. I know there is no question in my mind that they both feel that I am the one that did it. It’s a mistake. I didn’t do it. I am not the one that did that to her.”
- Eyewitness
- Forensic Evidence
(5) Hair match
“One of the Caucasian head hairs found on the shorts was consistent with the head hairs reportedly from the defendant. That means the hair either originated from him or from another person of the exact same race who had the same color, the same physical visual characteristics and the same microscopic characteristics. It is unlikely that that hair would match anyone other than the defendant; but it is possible.”
- Intraracial Identificaiton
- Victim
2
- Composite drawing
- Photo array
Yes ● Suggestive lineup ● Suggestive remarks ● Hypnotized victim and her boyfriend ● Victim not told attacker might not be in line-up Brady – suppressed that hypnosis had been conducted and statement that victim did not get good look at attacker
Victim testified “I believe they called me at work and told me he had come up with a suspect.” Victim and boyfriend were asked to pick him out together in crowded courtroom at a preliminary hearing.
No ● Discrepancies in description –missing teeth and scar
Honaker displayed in court how he had “a scar that runs from here to here where I had a gallbladder operation” which the victim did not describe. He was also missing “all except two” of his teeth, which victims did not describe.
NR
-
Darryl
Howard
1995
2016
Cold Hit
North Carolina
Trial
Murder
Male
Black
No
-
Darryl
Hunt
1985
2004
Cold Hit
North Carolina
Trial
Murder
No
Life
Male
Black
No
● Three witnesses testified to being with defendant the entire night that the crime occurred. ● Two witnesses testified to seeing another man around the crime scene with blood stains on his shirt. One witness testified that this other man had intimidated her; another witness testified that he exposed himself to her.
Yes
“Q: Mr. Hunt, did you have anything to do with the rape or murder of [the victim]? A: No, I didn’t. Q: Do you have any knowledge about who did it? A: No.”
- Eyewitness
- Forensic Evidence
- Informant
“In this particular case, what I obtained from the analysis of the vaginal swab was type O. That is the same blood type as Deborah Sykes. Therefore, I have no opinion as to what the type of the semen was and it in no way includes or excludes any individual.”
- Cross Racial Identification
- Non-victim
3
- Composite drawing
- Lineup
- Photo array
Yes ● Suggestive line-up – defendant was one of two persons in 5 person array with no facial hair and braids
“Q. Do any of the three people with facial hair have their hair in braids or pigtails? A. No Sir. Q. So there are two people in there who don’t have facial hair but who do have pigtails? A. Correct.Q. Is Mr. Hunt one of those two people? a. Yes, he is.” Hunt was the only person repeated from the photo array to the line-up.
Yes ● Initial non-identification – initially identified person who was in jail at time of murder ● Discrepancies in description – whether attacker had braids or jheri curls, height, weight
When viewed photo array, witness told police he was “not positive he was the person.” Second witness identified person initially who was in jail at time of murder. First witness described hair in “pigtails” and braids, while a third described “a straighttype jheri curl” and testified “No, it was not in corn rows or braids.” Third eyewitness thought Hunt’s photo in the newspaper “resembled” the man he saw, but identified him only in a lineup. He added that the composites prepared by the other witnesses “didn’t resemble anyone I’d seen.”
IW
● Several informants provided statements to police during the investigation and identified Hunt and testified at trial. ● One was a paid informant who ultimately identified Hunt in a line-up, after having identified another man, and he who gave inconsistent descriptions of the man he saw near the crime scene ● Hunts girlfriend recanted before trial, but in one account to police claimed Hunt had confessed to her
Paid informant testified that he saw Hunt “sitting across her stomach and he was hitting her like this, beating on her right across her stomach hitting her like this.” The victim was “struggling” and “didn’t have anything on waist down.” He says Hunt ran away and “she dropped her head and she rolled over on her back.” The victim had “dark hair” and “very light skin” and was wearing “white sneakers,” a “light-like blouse” and “dark clothes.”
FederalHabeas
- Actual Innocence
- Brady
- Jury Instructions
- Prosecutorial Misconduct
- State Law Evidence Claim
- Suggestive Eyewitness Identification
- Wade Counsel at Lineup Claim
- Jury Instructions
- Prosecutorial Misconduct
- State Law Evidence Claim
- Suggestive Eyewitness Identification
- Wade Counsel at Lineup Claim
State v. Hunt, 378 S.E.2d 754 (N.C. 1989)
State v. Hunt, 426 S.E.2d 714 (N.C. 1993)
State v. Hunt, 431 S.E.2d 32 (N.C. 1993)
State v. Hunt, 457 S.E.2d 276 (N.C. 1994)
State v. Hunt, 454 S.E.2d 243 (N.C. 1995)
Hunt v. McDade, 205 F.3d 1333 (4th Cir. 2000)
Hunt v. McDade, 531 U.S. 945 (2000)
-
Kenneth
Ireland
1989
2009
Cold Hit
Connecticut
Trial
Rape and Murder
No
Male
White
Yes
- Forensic Evidence
- Informant
(3) Incorrect frequency provided
Fingerprints and hair excluded defendant. Serology was said to come from non-secretor, but due to masking and non-quantification, analyst presented incorrect statistic claiming to include defendant in 20% of the population that could have contributed to the sample
IW
Appeal
- Jury Instructions
- State Law Evidence Claim
State v. Ireland, 590 A.2d 106 (Conn. 1991)
-
Teddy
Isbell
2003
2015
North Carolina
Guilty Plea
Robbery
Male
Black
No
Yes
-
Dwayne
Jackson
2003
2011
Nevada
Trial
Robbery
No
Life
Male
Black
No
NR
-
Raymond
Jackson
1984
2012
Texas
Trial
Rape
No
Male
Black
No
Yes
- Eyewitness
- Forensic Evidence
Latent fingerprints excluded the defendant and co-defendant.
- Cross Racial Identification
- Victim
NR
-
Willie
Jackson
1989
2006
Non-Cold Hit
Louisiana
Trial
Rape
No
Male
Black
No
● Defendant lives in Nachtez, which was at least a three-hour drive away from the town where the crime took place. Defendant does not own a car and three witnesses testified that defendant was in Nachtez on the night of the crime. ● Although victim claimed to have seen the perpetrator at the bar earlier in the night, bartender testified that he never saw defendant in his bar.
No
- Eyewitness
- Forensic Evidence
(6) Individualized bite testimony
Regarding the bite mark, the analyst testified, “My conclusion is that Mr. Jackson is the person who bit this lady.” Analyst who conducted hair comparison stated that the hair at the crime scene was “similar” with the defendant.
- Intraracial Identificaiton
- Victim
No ● Discrepancies in description – facial hair, hair
“You did tell the police officer that the man who attacked you had short hair?” A. “Yes, he wore his hair close cut, not short. He wore his hair about so long from his head. … It was freshly cut.” Q. “Are you absolutely positive about the length of his hair?” A. “Yes, it was not long.”
FederalHabeas
- Ineffective Assistance of Counsel
- Sentencing — Noncapital
- State Court Newly Discovered Evidence Claim
State v. Jackson, 570 So.2d 227 (La.App. 5 Cir.,1990)
State v. Jackson, 597 So.2d 1032 (La. 1992)
Jackson v. Day, 1996 WL 225021 (E.D.La. 1996)
Jackson v. Day, 121 F.3d 705 (5th Cir. 1997)
Jackson v. Day, 523 U.S. 1006 (1997) (Mem.)
-
Henry
James
1982
2011
Louisiana
Trial
Rape
No
Life
Male
Black
No
Yes
- Eyewitness
- Forensic Evidence
- Cross Racial Identification
- Victim
NR
-
Lesly
Jean
1982
2001
North Carolina
Trial
Rape
No
Male
Black
No
Missing transcript for defense case
Yes
Missing transcript for defense case
- Eyewitness
- Forensic Evidence
Victim was an O secretor, but stains exhibited type B blood group substances, which were consistent with the defendant’s type.
- Cross Racial Identification
- Victim
2
Yes ● Hypnotized victim Brady – did not disclose use of hypnosis
FederalHabeas
- Brady
- Due Process
- Jackson Claim
- Sixth Amendment Right to Counsel
- State Law Evidence Claim
- Suggestive Eyewitness Identification
State v. Jean, 311 S.E.2d 266 (N.C. 1984)
State v. Jean, 332 S.E.2d 487 (N.C. 1985)
Jean v. Rice, 945 F.2d 82 (4th Cir. 1991)
-
Jerry Lee
Jenkins
1987
2013
Cold Hit
Maryland
Trial
Rape
No
Life
Male
White
No
- Eyewitness
- Forensic Evidence
Yes ● Initial non-identification, said defendant "looked like" culprit
NR
-
Paul
Jenkins
1995
2018
Cold Hit
Montana
Trial
Murder
Male
White
No
-
Verneal
Jimerson
1985
1996
Non-Cold Hit
Illinois
Trial
Rape and Murder
Yes
Male
Black
No
● Defendant’s wife testified that she was with the defendant throughout the night when the murder occurred.
Yes
“Q: Now, I’m going to ask you Verneal, were you involved in this horrendous crime? A: No, I wasn’t.”
- Eyewitness
- Forensic Evidence
- Informant
- Bullet comparison
- Hair
- Serology
(2) Invalid failure to exclude
The victim was Type O as was Jimerson. Yet though the stain had A and O antigens, the analyst did not exclude Jimerson: “Q. So when we say that the defendant could not be excluded, that is based simply on the proposition that he has O, and O grouping blood was found on the smear? A. O blood group substance was found, yes, on the swab. Q. And that would represent possibly 47 percent of the population, is that not correct? A. Approximately, yes.” Regarding laboratory error, see Adams.
- Intraracial Identificaiton
- Non-victim
Yes ● Suggestive line-up – see Adams
Yes ● Initial non-identification, see Adams
CD, J
● Non-public details in codefendant Paula Gray’s reported and false confession see False Confessions Appendix. ● Non-public details in jailhouse informant’s statements
Jailhouse informant testified: “He was saying that the guy that kept running off with his mouth, they say they’re glad they took care of him…” “[H]e was telling Tuna don’t worry about nothing because they’re gone. They’ll never find the pistol, you know.” And “that they was gonna get somebody to take care of the lady that seen them in the neighborhood the day they got arrested.”
State Post Conviction
- Fabrication of Evidence
- Improper Capital Sentencing Instructions
- Ineffective Assistance of Appellate Counsel
- Ineffective Assistance of Counsel
- Jackson Claim
- State Law Evidence Claim
People v. Jimerson, 535 N.E.2d 889 (Ill. 1989)
Jimerson v. Illinois, 497 U.S. 1031 (1990)
Jimerson v. Illinois, 497 U.S. 1050 (1990)
People v. Jimerson, 166 Ill.2d 211 (Ill. 1995)
-
Albert K
Johnson
1992
2002
Cold Hit
California
Trial
Rape
No
Male
Black
No
- Cross Racial Identification
- Victim
FederalHabeas
- Ineffective Assistance of Counsel
- Jury Instructions
- Sentencing — Noncapital
People v. Johnson, 31 Cal.App.4th 1041 (Cal. App. 1 Dist. 1995)
-
Andrew
Johnson
1989
2013
Wyoming
Trial
Rape
No
Life
Male
Black
No
- Eyewitness
- Forensic Evidence
Analyst testified that Johnson was within five percent of the population that could have contributed to the sample
NR
-
Anthony
Johnson
1986
2010
Non-Cold Hit
Louisiana
Trial
Murder
No
Life
Male
Black
No
Inmate testified that he spoke to the culprit in prison, who bragged about how he killed the victim and how "There was this guy that was in jail with him," who was innocent, but "he wgoing to let him take, let him, just let him ride."
Yes
- Eyewitness
- Forensic Evidence
- Other
(6) Statement that hairs came from defendant
Analyst that conducted hair comparison testified: “I would state that in all probability they came from the same individual.” On re-direct, analyst described a 90% certainty that the hairs came from the defendant. Serology identified bloog enzyme groupings consistent with those of the defendant.
No custodial confession, but claimed made detailed inculpatory remark admitting: ● Victim was stabbed with a "pick and fork" ● Victim murdered in her bedroom
I asked him, “Done what to her?” and he said, “I wouldn’t have killed her like that,” and I said, “What do you mean killed her like that?” and he said, “With the pick and fork,” and at this point I told him, I said, “How did you know the weapons that was used to kill her with?” and he hesitated and then he said, “Well, I just figured that’s what it was because she slept with them under her pillow all the time,” and at this point I come back with, “How did you know she was in the bedroom?” and at that point he stated he did not want to talk to us any more, he wanted to talk to an attorney. That ended the conversation with him.”
"Q. Did at any time anyone tell him of the facts and circumstances of the killing, how the killing took place? A. No, we didn’t."
The recorded portion consisted of a statement in which defendant insisted on his innocence
State Post Conviction
- Brady
- Ineffective Assistance of Counsel
- Motion for DNA Testing
State v. Johnson 23 So.3d 878 (La. 2009)
State v. Johnson 23 So.3d 876 (La. 2009)
State v. Johnson 18 So.3d 1268 (La. 2009
State v. Johnson 504 So.2d 875 (La. 1987)
State v. Johnson 971 So.2d 1124 (La.App. 1 Cir. 2007)
-
Arthur
Johnson
1993
2008
Cold Hit
Michigan
Trial
Rape
No
Male
Black
No
- Intraracial Identificaiton
- Victim
NR
-
Calvin Crawford
Johnson
1983
1999
Georgia
Trial
Rape
No
Life
Male
Black
No
● Defendant’s girlfriend and his girlfriend’s mother testified that defendant was asleep at his girlfriend’s house the night of the first attack. ● Defendant’s mother testified that defendant was asleep at her house the night of the second attack.
Yes
“Q: Did you rape [the victims]? A: No, sir. Q: Have you told the truth today, Calvin? A: Yes, sir.”
- Eyewitness
- Forensic Evidence
(1) Masking
The victim was an A secretor and Johnson an O secretor. Vaginal swabs had A and H blood group substances. The analyst told the jury that the donor group is 44% who are O secretors + 20% who are non-secretors + however many are A secretors (analyst never said), leaving out the B and AB secretors. Yet 100% could have been the donor where the substances found were consistent with the victim’s. See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases.
- Cross Racial Identification
- Victim
4
Yes ● Discrepancies in description – facial hair, hair ● Initially nonidentification – two victims picked fillers in line-up
Second victim “couldn’t say for sure” whether attacker had facial hair but told police that it was not abeard. A third victim described “some” facial hair. The Fourth said “I don’t remember a beard.” She testified that at the lineup “I picked the wrong one, and I knew it.” She explained “I just wanted to get this thing over with” and “I wanted to get out of there.” Third victim did not identify him in photo array, but did in lineup. Fourth victim did identify him in photo array, but identified filler in lineup, and then identified him in court, explaining, “I am a little more relaxed today, though.”
State Post Conviction
- Jury Instructions
- Sentencing — Noncapital
- State Law Evidence Claim
-
Larry
Johnson
1984
2002
Missouri
Trial
Rape
No
Male
Black
No
● Defense argued mistaken identity and challenged victim’s identification
No
- Eyewitness
- Forensic Evidence
Testified only that he found spermatozoa.
- Cross Racial Identification
- Victim
- Composite drawing
- Lineup
- Mug shots
- Photo array
Yes ● Suggestive remarks – redrawing of composite
Prosecutor requested four weeks before trial that the composite be redrawn to add a mustache – police artist explained “One is a face without a mustache and one is a face with a mustached penciled in.”
No ● Discrepancies in description – facial hair, hair ● Voice nonidentification
Victim described attacker to the officers as having a “clean shaven pudgey face” Yet he had a ‘mustache, light beard” when arrested the day following the incident. “Did you identify any of the voices of being the voice of the person who attacked you that night? A. I really couldn’t concentrate on their voices. No, I did not identify them.”
Appeal
Missouri v. Johnson, 722 S.W.2d 62 (Mo. 1986)
-
Richard
Johnson
1992
1996
Illinois
Bench Trial
Rape
No
Male
Black
No
● Defense argued that fingerprints on knife did not match defendant’s. ● Defense argued mistaken identity and emphasized that the victim’s description of the attacker did not match defendant.
No
- Eyewitness
- Forensic Evidence
Analyst testified that latent fingerprints excluded the defendant.
- Cross Racial Identification
- Victim
Yes ● Suggestive remarks – told victim that police had detained attacker and to come to see if she could identify him
“He said you need to come in for a lineup, we think we have him.” While viewing photo array, victim was silent and looking at the photo of the defendant. The detective broke the silence and asked, “Is there something about that one and I said yes, I think it’s him.”
Yes ● Discrepancies in description – facial hair, mustache and weight ● Initially uncertain – told police “I think that’s him”when viewed photo array but “from a picture it was hard to tell.”
Victim testified “I said he weighted I think around 170, 175” “I said he was heavier than I originally estimated.” Did not describe mustache or scars on his face. “And if you had noticed that he had a mustache, you would have told the police about the mustache, right? A. Yes.” “Did you notice that scar when this person was attacking you? A. No.” “When you were looking at this picture for five minutes, you weren’t sure that that was the guy, right?” A. “No, not absolutely.” Initially told one officer attacker had a dark complexion, and then told a different officer that he had a medium complexion. Victim recalled being “not absolutely” sure when viewing photo array.
NR
-
Rickey
Johnson
1983
2008
Cold Hit
Louisiana
Trial
Rape
No
Life
Male
Black
No
● Defendant’s mother, brother, and then girlfriend all testified that, on the night of the murder, the defendant was at home because he had an abscessed tooth that caused him a lot of pain.
No
- Eyewitness
- Forensic Evidence
Only on cross-examination did the analyst testify what the included population was, 35-40 percent of the black male population.
- Intraracial Identificaiton
- Victim
Yes ● Only 3 photos included in array (Subsequent line-up was suppressed where defendant was not advised of right to attorney)
No ● Discrepancies in description – did not described gold tooth, weight
Victim described attacker as “medium build” but agreed that defendant had a small build. Victim did not describe prominent gold tooth.
Appeal
- Motion for DNA Testing
- Other Sixth Amendment claim
- Prosecutorial Misconduct
State v. Johnson, 443 So. 2d 766 (La. App. 3 Cir. 1983)
-
David Allen
Jones
1995
2004
Cold Hit
California
Trial
Rape and Murder
No
Male
White
No
Intellectually Disabled
● Missing transcript of defense case
- Confession
- Eyewitness
- Forensic Evidence
Yes
Jones was Type O and testing of all of the rape kits exhibited Type A material
- Intraracial Identificaiton
- Victim
No – eyewitness Acquainted with defendant
No – though vague description provided
● Location of one crime BUT He denied taking one victim’s clothes off, describes giving that victim money, and being taken to location by the victim
Use of leading questions apparent from recording: “You remember yesterday we showed you that picture” and that it was “by the water fountain” and “you remember that gate we showed you right there,” finally eliciting only a response from Jones that was transcribed as “This right here (Untranslatable).” “Q. So you got behind her? David Jones: Yeah. Q. And you put your arm over her shoulders like this? David Jones: Yeah. Q. And then you put — so your elbow — so her neck and her face is facing your elbow” David Jones: Yeah.” “Q. What kind of clothes did she have on? David Jones: I think it was black — brown (untranslatable) color. I forgot what color. It was kind of dark — light colors or something. Q. Light colors? David Jones: Yeah. Q. Tan? David Jones: Something like that. But I didn’t pay no attention to what the color was.”
Transcript could not be obtained. At suppression hearing, prosecutor argued he was “volunteering information that probably the detectives wouldn’t have known about but for the actual suspect telling them that information.”
Audio recording of part of interrogation
NR
-
Joe
Jones
1985
1992
Cold Hit
Kansas
Trial
Rape
No
Life
Male
Black
No
● Employee at store testified that defendant was a regular customer at the Kwick Shop and was at the store eating sandwiches for some time the night of the crime.
No
- Cross Racial Identification
- Victim
3
Yes ● Suggestive remarks – told they had a suspect who might be in the group ● Victim not told attacker might not be in line-up ● Show-up at preliminary hearing
“And this person you saw that you now have identified as the person who did this to you, he was heading down towards the courtroom where you were heading, right? A. Yes. Q. And you knew at the time that the police had somebody in custody? A. Yes. Q. They had a person who had been charged with the offense of assualting you? A. Yes. Q. And you knew that it was time for your hearing and that’s the time that you saw Joe Jones, right? A. Yes. Q. You were expecting to see the person who was accused of assaulting you at that time? A. Yes.” When provided photo array, victim told – “And I explained to her that we had a possible suspect, and that he might be in this group.” Officer asked victim to look again after choosing a filler in photo array – “Do you recall that after your response to him, he asked you again, look at them, even after you told him that that’s the one, or you’re pretty darn sure. He had you look at them again, didn’t he? A. Yes. Q. And you looked at them again, didn’t you? A. Yeah. Q. Those six photographs, right. And you picked the same photo again, didn’t you? A. Well it was the one I picked first, yeah.”
Yes ● Initial nonidentification
Victim identified a filler in the photo array – “And once you put the folder out in front of her, what happened? A. She looked it over very careful, and then picked out picture No. 3. Q. And whose picture was that? A. That was not the suspect. I don’t recall whose name it was.“ “Q. What did she say when she picked out or how did she pick out No. 3? A. She pointed to the picture. Q. And said? A. And I, well, she said, ‘That’s the one.’ And I asked her if she was sure. Q. And she said, ‘Pretty darn sure’? A. Yes, sir.”
Appeal
- Brady
- Sixth Amendment Right to Counsel
- State Court Newly Discovered Evidence Claim
Kansas v. Jones, 771 P.2d 73 (Kan. 1989)
-
Ronald
Jones
1989
1999
Illinois
Trial
Rape and Murder
Yes
Male
Black
No
● Defense argued that defendant signed confession in order to stop police from abusing him.
Yes
Defendant testified that he was beaten during interrogation: “[The officer] asked me, he said, are you going to tell me what I want to know or not. I said, I don’t know what to tell you. So, he swung me upside my head with the black object.” Q: Did you kill [the victim]? A. No, I did not. Q. Why did you tell [the police officers interrogating you] that you did? A. Because it seemed like the only way he was going to stop beating me.”
- Confession
- Eyewitness
- Forensic Evidence
Yes
(1) Masking
Jones was an O nonsecretor. Vaginal swabs exhibited A antigens and the victim was a Type A secretor. The analyst testified that the relevant percentage was the percent of nonsecretors added to the percent of A secretors. In fact, no donors could be excluded. See Part II.A.1 for a description of the problem of masking and non-quantification and discussion of similar cases.
2
No because Acquainted, and no evidence of suggestion in line-up used for victim in prior case
● Location of crime scene in abandoned hotel ● Location of blood stains ● Victim was stabbed ● Described victim’s appearance BUT He claimed victim was a prostitute who had propositioned him and pulled a knife on him.
“We went into the Crest. We went in through the back door. We went into the first floor and he showed us the room – he showed us the room that they went in to have the sex and also showed us where the struggle took place and where she was actually stabbed. And while we were in there he said that he also remembered stabbing her more than once and showed us also the same window, that they came in was a window that he had jumped out of.”
“We claim, and the evidence shows, that his statement is not the truth. His statement is not the way it happened.” “The Defendant says he was taken back to the Crest Hotel because they were showing him what happened. If they were showing him what happened, why isn’t it in here? If that was the reason for taking him back there, why weren’t there details about what room it was in and where the blood was or anything like that? . . . He knew about the Crest Motel, Hotel. He testified he knew the area. They knew he knew the area, so why are they going to show him something he already knows about?”
Written and signed confession statement
Appeal
- Coerced Confession
- Fourth Amendment
- Improper Capital Sentencing Instructions
- Jackson Claim
- Jury Instructions
- Prosecutorial Misconduct
- State Law Evidence Claim
People v. Jones, 620 N.E.2d 325 (Ill. 1993)
Jones v. Illinois, 511 U.S. 1012 (1994)
-
Clifford
Jones
1981
2016
New York
Trial
Rape and Murder
Male
Black
No
-
Kenneth
Kagonyera
2001
2011
Cold Hit
North Carolina
Guilty Plea
Murder
No
Male
Black
No
- Confession
- DNA excluded
- Eyewitness
- Forensic Evidence
- Informant
Yes
- Concealed
- Valid (Excluded)
DNA test results that excluded all of the co-defendants was not turned over
● Drove car and van to victim’s house, in group armed with two guns ● Four people were inside, including an two men, a girl and an old man ● Shotgun was fired BUT DNA did not match any of the defendants.
Written and signed confession statement
CD
Appeal
State v. Kagonyera, 588 S.E.2d 584 (N.C.App. 2003)
State v. Kagonyera, 599 S.E.2d 908 (N.C. 2004).
-
Entre Nax
Karage
1997
2005
Cold Hit
Texas
Trial
Murder
No
Life
Male
Asian
No
● Missing trial transcript portion with defense case
No
- DNA excluded
- Forensic Evidence
Analyst described an “absolute exclusion.”
Appeal
Karage v. State, 1999 WL 454638 (Tex. App.‐San Antonio, 1999)
-
Erik
Kelley
1996
2018
Cold Hit
New Jersey
Trial
Murder
No
Male
Black
Yes
-
William
Kelly
1990
1993
Non-Cold Hit
Pennsylvania
Guilty Plea
Murder
No
Male
White
No
Intellectually Disabled
Yes
● Provided “somewhat detailed account of the murder” ● Admitted presence at Dinger’s Café/Bar with victim shorter before her death ● Drive with victim to landfill ● Hit victim with a plank. ● Dragged victim to location (which he identified) where body was found, and covered body ● Confessed to raping victim vaginally But told police he did not ejaculate (in fact perpetrator did ejaculate)
NR
-
John
Kogut
1986
2005
New York
Trial
Rape and Murder
No
Male
White
No
● Friends described that he was a birthday party the evening the murder took place. Defendant also described his whereabouts the night of the crime.
Yes
“Q: Now, on November 10th or at any time, did you ever pull a girl into a van and help anybody rape her? A: No, I didn’t. Q: Have you ever killed anyone? A: No, I haven’t. Q: Did you kill [the victim]? A: No, I didn’t.
- Confession
- Forensic Evidence
- Informant
Yes
(4) Invalid statement of hair probability
“I’m saying that in this particular instance that the questioned hair could have originated from the scalp of Theresa Fusco, with a high degree of probability.” No empirical data supports such a statement regarding probability.
● Description of victim ● Description of victim’s death by strangling; autopsy confirmed that victim had been killed by a ligature tightened around her throat ● Location of body, which had been hidden in the corner of a cemetery ● Location of victim’s ring, pendant, and cracked heart locket. ● Color of pants, jacket, blankets found at crime scene BUT stated jewelry removed from crime scene, which was not accurate
A detective stated Kogut “described [the victim] to me at fifteen to sixteen years old, dark hair, medium long hair. She was wearing a blue denim jacket. He thought maybe a dark top and dark pants. And that she had on white hightop sneakers.” Kogut “observed, or he noticed, that she had jewelry on. And he said, on particular item looked like, it appeared to be a heard on a chain. He said there were other charms, but he doesn’t recall what they were like. It looked like a portion of it was broken off.” Detective described Kogut as admitting to burying the victim “in a shallow grave” in a cemetery, and specifically “in the corner of the cemetery.” “He was accurate with the description of the clothing, other than the – well, in his own mind, other than the blouse. He wasn’t sure.” The detective described that blankets from the crime scene were immediately removed for lab analysis and none photographed them at the crime scene.
“[H]e pointed to the exact spot where the body of [the victim] had been…” “So if you believe the defendant, you have to disbelieve… [s]even detectives and police officers…” “Also ask yourselves, if the police wanted to falsely incriminate the defendant, if they wanted to make up a confession, to frame an innocent man, couldn’t they have done a better job? I suggest to you that what’s in that statement is what the defendant said. It’s not Detective Volpe’s words.” “He described that broken heart. Now sure the police knew at the time they interviewed him about that broken heart. . . But they also knew about that unicorn that they found. Why isn’t that in the statement if they made it up, to jive with everything they knew? I suggest it’s not there because the defendant didn’t recall that. But he recalled that double heart.”
Video recording of part of interrogation
J
● Non-public details included identities of co-defendants and that crime occurred in van
“He said he was driving around in the van, him and Dennis and John. They were fucked up, and they did something fucked up.”
Appeal
- Coerced Confession
- Prosecutorial Misconduct
People v. Kogut, 176 A.D.2d 757 (N.Y. App. Div. 2 Dept. 1991)
People v. Kogut, 588 N.E.2d 766 (N.Y. 1992) (Table)
-
Paul D
Kordonowy
1990
2003
Montana
Trial
Rape
No
Male
White
No
● Witnesses described that at the time the crime occurred, defendant was miles away and his car was disabled.
Yes
Missing transcript for defense case
(2), (4) Invalid hair probability; failure to exclude based on unsupported selective degradation theory
The analyst testified that unknown hairs “match” Kordonowy’s, that for each there is a 1 in 100 probability of a match. The analyst then multiplied that made-up number, claiming that hairs from different parts of the body are “independent events,” and multiplied that figure to arrive at a 1 in 10,000 probability of a match. Kordonowy and the victim were both O secretors but A secretions found on swabs. Kordonowy should thus have been excluded. However, the analyst testified when asked “Q. Is there anything else that could be responsible for the presence of the A secretion?” that, “A. Yes, in this case there was a large amount of bacteria, which I noted, and it has been reported that a large amount of bacteria can give you an A Substance reading in your analysis because your ABO substances are sugars, and bacteria also produce sugars.” No such phenomenon regarding selective degradation exists. See Part I.A.2 for a discussion of this case.
- Intraracial Identificaiton
- Victim
Appeal
- Jackson Claim
- State Law Evidence Claim
State v. Kordonowy, 823 P.2d 854 (Mont. 1991)
-
Kerry
Kotler
1982
1992
New York
Trial
Rape
No
Male
White
No
- Eyewitness
- Forensic Evidence
Serology could not exclude Kotler
- Intraracial Identificaiton
- Victim
No transcript. But – apparent Brady issues – “police reports stated that the victim did not actually positively identify the defendant’s picture but described him only as a “look alike.” Furthermore, as recorded in police reports, the victim’s description of the defendant was inaccurate for age, height, and weight. The defense was never informed about those reports.” Edward Connors, et al., U.S. Dep’t of Justice, Convicted By Juries, Exonerated By Science: Case Studies In The Use Of DNA Evidence To Establish Innocence After Trial 18 (1996)
Appeal
People v. Kotler,, 118 A.D.2d 592 (N.Y. App. Div. 2 Dept. 1986)
People v. Kotler, 494 N.E.2d 123 (N.Y. 1986)
-
Ray
Krone
1992
2002
Cold Hit
Arizona
2 Trials
Rape and Murder
Yes
Male
White
No
● The exoneree was the only witness testifying in support of the alibi
Yes
Missing transcript for defense case
- DNA excluded
- Forensic Evidence
(1), (6) Invalid individualization as to bite marks; masking
The analyst testified: “A. My opinion is that the teeth that are represented to me as being Ray Krone’s teeth did cause the injury patterns that we call bite marks. Q. And how certain are you of your opinion? A. I’m certain. It’s a very good match.” Claims that bite mark comparison “has all the veracit