You’d think this was a post about the figurative blink of an eye; a lament about the need for speed in the criminal justice system and the rush to judgment. That’s another post, but that’s not this. This is about the recently concluded trial of Ricardo Woods, an Ohio man, who was convicted of the murder of David Chandler because Chandler’s identification of Woods was admitted into evidence at the trial.
You guessed it: the identification was Chandler blinking his eyes in a hospital bed. Chandler then died and wasn’t available at trial, so the prosecution sought to enter the video of his interview at the trial. The video is here, courtesy the Kentucky Post:
If you watched the video then you know that he’s heavily medicated, intubated and frightfully inconsistent with his blinking. If you didn’t watch it, then well, I just summarized it for you. Here’s another account of the video:
In the video, police had to repeat some questions when Chandler failed to respond or when the number of times he blinked appeared unclear. But Chandler blinked his eyes hard three times when police asked him if the photo of Woods was the photo of his shooter. He again blinked three times when they asked him if he was sure. The defense argued that Chandler’s condition and drugs used to treat him could have affected his ability to understand and respond during the police interview.
Given the problems with misidentification in recent years, lots of states have adopted the best practices model, wherein they don’t do photo arrays anymore and they show witnesses a sequences of photos, to minimize comparison between the pictures and choosing “the closest one”. Courts have also repeatedly held that a one-on-one identification is per se suggestive, because, well, it suggests to the witness that the only person he/she is being asked about is indeed the perpetrator.
Apparently that memo hasn’t reached Ohio yet:
Woods’ lawyer also argued that showing Chandler only one photo — that of Woods — instead of presenting a lineup of photos was ‘‘suggestive.’’ Jackson said the case against Woods was about misidentification and ‘‘a misguided investigation.’’
There’s a dying man, medicated, who can’t speak, who sometimes blinks and sometimes doesn’t, who is shown one photo of the defendant while surrounded by police officers in a hospital bed. Can it get any worse? Yes, yes it can:
A jailhouse informant testified that Woods told him he shot at Chandler because he caught him buying drugs from someone else while still owing Woods money for drugs. The defense argued that the informant, who faced armed robbery charges, was trying to use testimony against Woods to get a lighter sentence for himself. The defense also said Chandler had stolen drugs from dealers, was considered a police ‘‘snitch’’ and had many enemies.
A jailhouse snitch. That paragon of virtue and honesty. The classic “good samaritan”.
I’m rather curious as to how the judge and the prosecution got around Crawford v. Washington, which states that testimonial statements aren’t admissible unless there’s an opportunity to cross-examine. A testimonial statement – as best as I can understand it, is a statement made to law enforcement for the purposes of future prosecution or identification of a perpetrator and not for some other reason, like medical or to dissipate an immediate emergency.
There is the forfeiture by wrongdoing doctrine, but that cannot apply to an identification in a murder where the defendant is on trial for that murder. Perhaps they reasoned that it was not a “statement” but that seems hardly plausible. It’s clear that he’s identifying the defendant and the defendant has no opportunity to challenge that identification.
But I suppose that’s what passes for justice these days. In the blink of an eye.
I’d rather just listen to my favorite Doctor and never blink at all: