False witness: Judge tackles mistaken identifications

By Maryclaire Dale
Associated Press

PHILADELPHIA (AP) — Talena Johnson was sure she knew the man who shot her.

She was wrong, and George Cortez was sent off to prison for life. His lookalike brother now admits shooting Johnson and killing her friend outside her north Philadelphia child care business in 2011. Cortez spent five years in prison before he was exonerated this year.

U.S. Appeals Judge Theodore A. McKee calls similarly botched trials no fluke. Scientists now understand that eyewitness identification can be compromised by stress, darkness, fading memories, leading questions, cross-racial misidentifications and other factors.

As legal scholars explore those pitfalls, McKee this fall formed a panel to propose new trial rules for his three-state circuit, after hearing a case that makes him fear an innocent man has been on death row since 1992.

“Just because they (witnesses) are unequivocal, doesn’t mean they’re right,” said McKee, who just finished a term as chief judge of the 3rd U.S. Circuit Court of Appeals in Philadelphia. “The law has not kept up with the science.”

McKee wrote a damning opinion in the death-row case in August, concurring with the 5-4 majority that granted a Philadelphia man named James Dennis a new trial in the 1991 transit stop murder of a high school junior killed for her $450 gold earrings.

The victim’s friend identified Dennis as the killer, but only after police work now deemed questionable. The teenage friend had been hesitant about the match before police assured her she had done well. She then confidently identified Dennis at trial.

Meanwhile, police waited two months to conduct a lineup, and put four eyewitnesses in the same room for the exercise. And Dennis — though four inches shorter and 50 pounds lighter than the suspect’s description — was the only person to appear in both the photo array and lineup.

That repetition plays tricks on the brain, social scientists conclude. The Innocence Project has found that faulty eyewitness identification played a role in three-quarters of 230 DNA exoneration cases studied in 2009, many of them involving cross-racial mistakes.

The trauma of seeing someone with a weapon — as Johnson did — makes errors more likely, the studies show. McKee believes jurors should know that, through either jury instructions or expert testimony.

“I know convictions are important to society, and to prosecutors and to police, but it is as important that the conviction be for the person who did the crime,” he said.

Two workers who saw the shooter run by also identified Dennis at trial, despite initial statements that he merely looked like the suspect. And the jury never heard from six other witnesses who had not picked Dennis in the array or lineup — only the three who had. The Third Circuit gave prosecutors 90 days to retry Dennis or set him free, echoing a similar 2012 order from U.S. District Judge Anita B. Brody.

Philadelphia District Attorney Seth Williams, who appealed Brody’s order, has not announced a decision as the Nov. 21 deadline nears. However, through a spokesman, he noted that four dissenting judges said the evidence against Dennis remains “strong.”

Temple University law professor Jules Epstein, who serves on McKee’s panel, said that most jurors don’t realize that memory drops off sharply after 24 hours. McKee doesn’t expect the panel to find a panacea but hopes juries will at least learn to think critically.

“They usually get it right. But if you’re the person they made a mistake on, and you get executed, it doesn’t do a lot of good to say (that),” McKee said.

George Cortez’s conviction rested largely on Talena Johnson’s testimony. Defense lawyer Robert Gamburg called her account “compelling” because she had “no ax to grind” in the dispute.

Owen Cortez, 31, went through with a negotiated plea last month to clear his brother’s name, even though George Cortez, 36, had been killed in the interim. He was fatally shot weeks after leaving prison in April. The case remains unsolved.

“At the end of the day, he’s an innocent man,” Owen Cortez said at his plea hearing.

Assistant District Attorney Kirk Handrich said that either Cortez could have resolved the mix-up years ago. Investigators believe George Cortez hoped to win his case on alibi evidence without implicating his brother in the death of Nafis Murray, the man who had stopped to talk to Johnson that night.

Barbara Murray listened to the grim details of her son’s death a second time at the hearing. She had already endured George Cortez’s trial in 2012.

“I didn’t even know he had a brother,” she said quietly.