Armed Robbery Retrial Spurs SCOTUS Dissent

     WASHINGTON (CN) – Plans to retry a man convicted of armed robbery based on unreliable eyewitness evidence drew protest from a couple of Supreme Court justices Tuesday.
     In March 1991, a man broke into the Rochester, N.Y., house of Lisa and William Sykes, wearing a scarf around his face, a blanket around his body, and wielding a sledgehammer and an ax.
     Rudoph Young was later convicted of the crime, based primarily on testimony by Mrs. Sykes who claimed to have seen her attacker’s eyes for five to seven minutes.
     An appellate panel in New York reversed the conviction in 1998, however, after finding that the lineup was tainted because police arrested Sykes without probable cause.
     To retry the case, prosecutors had to convince the court that Mrs. Sykes’ identification was independently reliable enough to overcome the taint of the lineup, under the standard set by the Supreme Court decision in U.S. v. Wade.
     A state court ruled that it was, and Young subsequently retried and convicted again on the testimony of Mrs. Sykes.
     Under habeas review, a federal magistrate disagreed with the state court’s Wade analysis and vacated Young’s convictions.
     A divided three-judge panel of the 2nd Circuit upheld the magistrate’s ruling in October 2012, but it ordered further proceedings allowing the Rochester district attorney to retry the case without identification by Mrs. Sykes.
     That decision relied, in part, on scientific studies casting doubt on eyewitness evidence, prepared by the Innocence Project, a nonprofit group devoted to exonerating the wrongly convicted.
     When the federal appeals court refused to rehear the case en banc this past April, several judges defended the court’s research regarding the unreliability of eyewitness identifications.
     Here, Mrs. Sykes’ observation of the perpetrator occurred “in a highly stressful situation,” Judge Barrington Parker wrote for the concurring judges.
     “Mrs. Sykes’s opportunity to view the perpetrator was so limited that after the crime she could not assist police in preparing a sketch of the perpetrator,” the 13-page opinion continued. “When initially shown a photograph array, which included Mr. Young, neither Mrs. nor Mr. Sykes selected him. It was only in the unconstitutional police lineup, in which Mr. Young was the only person whose photo was also included in the earlier array, that Mrs. Sykes – but not Mr. Sykes – selected Mr. Young.”
     Parker added that the development marks a “victory in name alone” for Young, who will continue to serve a 15 to life sentence on other charges.
     Dissenting judges complained of inconsistency with the Supreme Court decisions in United States v. Wade and Harrington v. Richter.
     The latter decision made it more difficult to gain appellate review under the Antiterrorism and Effective Death Penalty Act (AEDPA).
     Citing these very factors, Supreme Court Justices Samuel Alito and Antonin Scalia dissented Tuesday when their colleagues refused to review Young’s case.
     “In the first place, the Second Circuit relied on its own precedent to determine that the first Wade factor favored respondent – a choice that AEDPA clearly forecloses,” Alito wrote.
     Though the appellate judges in New York had defended their use of social science studies as “reinforcing” rather than controlling their opinion, Alito said the lower court’s “conclusion must have been ‘compelled’ by the only other authority on which the court relied: its own prec­edent” – a reliance that AEDPA “flatly prohibits.”
     “More fundamentally, the Second Circuit’s disagreement is not with the New York Court of Appeals; it is with us,” Alito added. “Mrs. Sykes unquestionably had a substantial opportunity to observe the burglar. We held in Wade that ‘the prior opportunity to observe the alleged criminal act’ favors finding that an independent source exists. The Second Circuit held, to the contrary, that such an opportunity does not suggest the existence of an independent source in the circumstances of this case. Wade simply does not leave that option on the table.
     “The Second Circuit’s decision creates loopholes in both Pinholster and Wade. In my view, the importance of this issue warrants review at this time. I respectfully dissent from the denial of certiorari.”

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