Eyewitness Flaws Spell Retrial of Robbery Case

     MANHATTAN (CN) – The government must retry one of the counts against a man convicted of armed robbery, the 2nd Circuit ruled, citing the unreliability of eyewitness evidence.
     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 has served 19 years in prison based primarily on testimony by Mrs. Sykes connecting him to the robbery.
     “Mrs. Sykes observed the perpetrator’s eyes during a period of five to seven minutes, in a highly stressful situation,” according to the latest decision on the case from the 2nd Circuit.
     “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 continues. “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.”
     The Fourth Judicial Department of New York’s Appellate Division reversed Young’s conviction in 1998 after finding that his lineup was tainted because his arrest lacked 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 her testimony.
     Under habeas review, a federal magistrate disagreed with the state court’s Wade analysis and vacated Young’s convictions.
     In October 2012, a divided three-judge panel of the 2nd Circuit upheld the magistrate’s ruling, 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.
     The federal appeals court noted Tuesday that “no clear majority” favored a rehearing en banc.
     Concurring in the denial, Judge Barrington Parker noted that this development marks a “victory in name alone” for Young, who will continue to serve a 15 to life sentence on other charges.
     The effect of the decision might, however, be significant for federal habeas relief, according to the opinion, which was joined by Judge Peter Hall.
     “At one end of the spectrum, there are respected jurists who believe that habeas is essentially an artifact that should be limited almost to the point of nonexistence and might not even be available in cases of actual innocence,” Parker wrote, citing Justice Antonin Scalia’s dissent in the Troy Davis case.
     In 2009, the Supreme Court delayed Davis’ execution after seven of the nine witnesses against him recanted their testimony, rejecting Scalia’s argument that that Constitution does not demand habeas review in cases of “actual innocence.”
     Two years later, Davis exhausted his appeals, and he was killed by lethal injection.
     “There are others, such as I, who believe that habeas review is an essential component of federalism; that it is not discretionary; and that it is in fact required of us by the Constitution and by the oath we take to defend it,” Parker wrote.
     He added that the “robust and growing body of high-quality scientific studies addressing problems surrounding eyewitness identifications” could help trial judges.
     “The opinion thus aims to point the bench and bar to the existence of the studies and to go no further,” Parker wrote.
     “Moreover, nothing in the opinion mandates district court judges to consider, let alone adopt or rely on any of the social science research we cited,” he added. “They are free to draw on or reject any of the information ‘to the extent they deem it helpful.'”
     Three judges said they would have granted the rehearing.
     “It seems curious, to say the least, that, at the same time we do not compel the presentation of such expert opinions to federal juries that actually see and hear in-court identifications, we would ourselves rely extensively on such opinions to conclude that an in-court identification by an eyewitness whom we have never seen or heard necessarily lacked an independent basis,” Judge Reena Raggi wrote, joined by Judges Jose Cabranes and Debra Ann Livingston.
     Other evidence of Young’s guilt includes his past burglaries and testimony that he was found with binoculars with the name “Sykes” and other items stolen from the victims, according to the dissent.
     Parker said, however, that this assertion came from a “questionable witness” and would be “insufficient for convention beyond a reasonable doubt for robbery.”
     In a separate dissent, Judge Cabranes charged that the panel’s decision “is inconsistent with not one but several precedents of the Supreme Court.” (Emphasis in original.)
     Those precedents, he specified, were 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.
     “The result will be great confusion in the habeas jurisprudence of this circuit and in that of other courts that may be misled in following the panel’s lead,” Cabranes wrote. “And absent review by a higher authority, we will have to live with the baleful consequences of this unfortunate decision for many years to come.”
     Young’s lawyer John Blume, a professor with Cornell University’s Death Penalty Project, said the fear of a “baleful” precedent is misplaced.
     “This case is going to have no effect on anything other than Rudolph Young’s case itself,” Blume said.
     Young’s other robbery conviction makes it uncertain whether his release date will be altered at all, he added, noting also that the social science cited by the panel is hardly novel.
     “We’ve known for 50 to 60 years that eyewitness evidence is inherently problematic,” Blume said.
     The Monroe County District Attorney’s office did not reply to a request for comment, and it has not announced whether it will seek Supreme Court review.
     Lawyers for Young and the Innocence Project were not immediately available for comment.

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