So you think that eyewitness testimony is something you can rely on, do you?  So you feel that one individual identifying another individual as the one who did it is the best way of proving something this side of DNA?  Think again.  In late August, in the Harbor Court in Newport Beach, a man was released after spending two years in prison for two armed robberies he claims he did not commit.  Arthur Carmona was the prisoner, and he has maintained from the beginning that he was merely walking to a friend’s house when he was arrested by police officers in Costa Mesa who were investigating an armed robbery at a juice bar.  Mr. Carmona had the misfortune of being Hispanic, being found walking near the crime scene, and most importantly, being identified by several eyewitnesses, including employees and patrons of the juice bar along with pedestrians who were near the juice bar when it was robbed.  To make matters worse, Mr. Carmona was later identified by two employees at a Denny’s in Costa Mesa as the individual who had robbed them several days before the juice bar robbery. 


The defense has claimed throughout that these witnesses were all improperly influenced by police officers.  This is supported by the fact that after several witnesses told the police officers the robber was wearing a black Lakers cap, the police, upon finding a black Lakers cap at the residence of the get-away car driver, placed the hat on Mr. Carmona’s head before having witnesses view him in an attempt to identify him.  What makes matters worse is that several witnesses who did not initially identify Mr. Carmona as the culprit, suddenly said, “He’s the one”, after seeing him wearing the Lakers hat.  (I wonder what changed their minds.)


This case began to unravel when one of the Denny’s employees who identified Mr. Carmona recanted, indicating that she was “misled and tricked by authorities” into believing that Mr. Carmona was the perpetrator. 


Apparently, there is enough blame to go around here, as Mr. Carmona’s present attorneys excoriated the defense attorney who handled his trial, indicating that he was basically what we call “an empty chair” (as in someone who does absolutely nothing).  On the long list of things he failed to do, Mr. Carmona’s initial attorney did not call alibi witnesses who could have indicated where Mr. Carmona was when these robberies took place.  He also did not make proper motions which would have excluded evidence which was inadmissible due to police misconduct.  Lastly, he failed to put into evidence the fact that Mr. Carmona has a learning disability and that is why his answers to police officer questions were short and vague. 


Fortunately, the district attorney’s office has agreed not to re-try this case.  The district attorney’s office has indicated that “now with the recanting of identification witnesses, it is very unlikely that a second jury would convict Mr. Carmona.”  Of course the Orange County DA;s office did not release Mr. Carmona without getting something in return, as he was forced to agree to not bring a law suit against the police department, the county, etc., as a result of the two wasted years of his life spent behind bars.


For those of you who watch the television show “The Practice,” there was a wonderful episode a couple of years ago in which Eugene absolutely took apart an eyewitness with a withering cross-examination.  If you remember back to the movie, “My Cousin Vinnie,” Joe Peschi did a fine job in his own bumbling way of showing that a witness could not have seen what she testified she saw.


Unfortunately, these situations are the exceptions rather than the rule.  Most people on a jury appropriately think, “Why would someone from a juice bar or Denny’s lie and risk putting away someone without a previous criminal record?”  When people come in and give an eyewitness identification, it is very tempting to merely accept it, and it often provides powerful evidence that is difficult to refute. 


If any of you find yourself sitting on a jury any time soon, please remember that while eyewitness testimony may well be accurate, it often is not, either due to improperly suggestive police work, or merely people wanting to think their crime has been solved and with the best of intentions, identifying the wrong individual as having committed the crime.