Eyewitness testimony is the problem -- not juries

April 05, 2003|By Gregory Kane

LET'S MAKE a pre-emptive strike against nonsense, shall we? Let's head off at the pass all those folks who love to bash Baltimore jurors. Let's catch their dice before they even roll 'em.

On Wednesday, one of those maligned Baltimore juries couldn't reach a verdict in the matter of 20-year-old Perry Spain, the man charged with shooting 10-year-old Tevin Davis in the neck in July. The boy lived. His father, Rodney Harden, testified that Spain was the shooter.

Eleven jurors wanted to acquit Spain. A lone holdout voted to convict. This prompted what seemed like a confident response from Assistant State's Attorney Roger Harris, who vowed to retry the case. He'd better hope Harden is not his only witness, as he was in this trial.

Prosecutors must be a notoriously optimistic lot, relying as they do on eyewitness testimony and eyewitness identification to send defendants up the river. In an April 3 Sun story by reporter Allison Klein, Harris is quoted as saying that the case against Spain was "compromised" because Juan Wilson, a key witness, was killed in November -- a development the prosecutor called "catastrophic."

Wilson has been described as a drug dealer. He doesn't sound like the most reliable of witnesses to me. I suspect he wouldn't to jurors, either. But prosecutors put on a Pollyanna public facade about their cases. Yep, we could put old Osama bin Laden on the stand as a prosecution witness, they figure, and we'd have a rock-solid case.

Perhaps Harris convinced Harden, the justifiably aggrieved dad, of this nonsense. Harden believed that his testimony, combined with Wilson's, would, according to The Sun article, have made the case "airtight."

Let's try to keep some perspective. An "airtight" case against Spain would have included the eyewitness testimony of Harden and Wilson, bolstered by a handgun with Spain's prints on it, bullet fragments and shells found at the scene that ballistics test showed were linked to that gun found in Spain's possession, and possibly a positive gunshot residue test done on the defendant's hands.

All the state had was the testimony of Harden. And if it has been said once, it has been said a dozen times -- just not on the record by prosecutors: Eyewitness testimony and eyewitness identification are notoriously unreliable.

That includes -- in all due respect to a hurting father who wants to see the guy who shot his son get what's coming to him -- Harden. He's as prone to error and mistakes as any other eyewitness. Even had Wilson lived, his testimony combined with Harden's wouldn't necessarily have been more reliable or believable.

A New Jersey man suspected of the fatal shooting of an Orange policewoman a few years ago had eight people identify him as the shooter. All eight were mistaken. He wasn't the guy.

Before and during the Spain trial, the news was peppered with accounts of one Tyrone Beane, who had beaten several murder charges and faced another one. In the latter case, his sister was the main prosecution witness. Police and prosecutors moaned that they couldn't make the case because Beane's sister, Tyiashia Beane, couldn't be found.

What anyone in this town who knows anything about eyewitness testimony knows is that prosecutors, with one lone eyewitness, didn't have much of a case against Beane at all. What would have made the word of Tyiashia Beane gospel? It should come as no surprise, then, that Tyiashia Beane recanted her story and said police coerced her into telling it.

Tyiashia Beane, Rodney Harden, Juan Wilson -- there's no inherent reason for a jury to believe or disbelieve any of them. Any case that hinges on how a jury would receive that testimony is far from airtight.

Defense lawyers would love to bring in expert witnesses who could tell jurors about the errors made in eyewitness testimony and eyewitness identification. Judges refuse to allow it -- probably to the relief of prosecutors. But the jury in Circuit Judge Shirley Watts's courtroom Wednesday didn't need any experts. Apparently, 11 of them used their plain common sense and concluded that Harden's testimony, however sincere, was not convincing enough to send Spain to prison.

Here's wishing Baltimore prosecutors better luck next time in going after Spain. But none of us should be surprised -- or go on a rant about those nullifying Baltimore juries -- if the result is either the same or an acquittal.

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