Tony Egbuna Ford, housed on death row, Polunsky Unit, Livingston, Texas

TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN PURSUING THE DEFENSE MOTION FOR APPOINTMENT OF A DEFENSE EYEWITNESS IDENTIFICATION EXPERT.

Trial counsel rightfully believed that the prosecution's case rested entirely on the identification of Mr. Ford by Myra and Lisa Murillo. Mr. Ford consistently told counsel that he was not in the Murillo's house and that he did not have anything to do with what happened there, and he so testified at trial. Helping the jury understand that the Murillo's identifications of Mr. Ford were mistaken was the key to defending Mr. Ford.

For these reasons, counsel knew that an eyewitness expert was critical to helping the jury understand the unreliability of the Murillo's identifications. Accordingly, they moved for the appointment of such an expert and made a constitutionally adequate showing of the need for such an expert in their motion. However, when the motion was heard pre-trial, the prosecution opposed the motion on the grounds that the defense had made an inadequate showing that the eyewitness expert's ultimate testimony would be admissible under Texas law. Counsel failed to meet this objection - even though they could have done so easily with reasonable effort. Because of this, the trial court denied the motion for appointment of an eyewitness expert, and the enormous risk that the Murillo's identifications were mistaken went unexplained.

But for this error by defense counsel, the defense would have been permitted the assistance of an eyewitness expert and would have been able to present the expert's testimony, tailored to the circumstances of the Murillo's identifications. With that testimony, it is reasonably likely that Mr. Ford would not have been convicted of capital murder or sentenced to death.

When two black men, brandishing guns, broke in to Myra Concepcion Murillo's home the night of December 18, 1991, she and her two daughters, Myra Magdalena and Lisa Marie, were forced into a bedroom and told to get on their knees. [SF Vol. IX p. 62]. One of the assailants began hitting her son with a gun. Id. When one of the assailants ordered Lisa at gunpoint to "get the fuck" into the bedroom, she was so afraid she would be shot that she wet her pants. [SF Vol. IX p. 111]. After Lisa kneeled down in the bedroom, one of the assailants kicked her. [SF Vol. p. 112]. Myra was "very terrified." [SF Vol. IX p. 83]. By this time, the sisters were "screaming and praying," [SF Vol. p. 64], and the assailant later identified as Mr. Ford was constantly yelling at them to "shut the fuck up." Id. Within moments, the person identified as Mr. Ford shot their brother and began systematically shooting everyone else. The person identified as Mr. Ford was wearing a long wool trench coat and a black knit Raiders cap, pulled down far enough to come "[p]retty close" to covering his eyebrows. [SF Vol. IX p. 61].

Myra and Lisa identified Mr. Ford at trial as the man who shot and killed Armando during the robbery of their mother's home. [SF Vol. IX pp. 60-61, 113]. Their testimony was the result of pretrial identifications of Mr. Ford. Myra identified Mr. Ford from a photo spread the police showed her on December 19, 1991, at 4:10 pm. [SF Vol. I-C pp. 25-26]. In that spread Mr. Ford's photo was labeled and placed as number five. See Exhibit 1, attached hereto. At the time the photo spread was shown to Myra, Lisa was in the hospital being treated for a gunshot wound suffered in the attack. Lisa was released a few hours thereafter, but she did not go to the police department to view the photo spread until December 27, 1991. [SF Vol. I-C p. 42]. Between the time she was released from the hospital and December 27, when she saw the photo spread, Lisa saw "the photographs of the people they had arrested," including Mr. Ford, in the local newspaper. [SF Vol. I-C pp. 51-52]. Lisa was presented the same photo spread on December 27, 1991 that Myra had seen eight days earlier, [SF Vol. I-C pp. 6, 11], and she, too, picked out Mr. Ford's photograph, number five in the spread. [SF Vol. I-C pp. 43-44].^¹

When Myra and Lisa Murillo testified that Tony Ford was the man who shot and killed their brother and attempted to kill their mother and both of them, they were absolutely certain of the accuracy of their identifications. Both testified that they had "no doubt" that Mr. Ford was present in their mother's house and was the shooter. [SF Vol. IX pp. 100, 113]. Myra explained why she was so certain that Mr. Ford was the person who killed her brother:

[F]or some reason - this may sound crazy, but I felt like I was protected, like spiritually. And ninety-nine percent, I felt that I wasn't going to die. And that one percent, I just knew I was going to have to hang on because these two men were not going to get away with what they did.

And therefore I did want to look at him, and which I did have time. And I will never forget a face like his.

On July 6, 1992, Mr. Ford's attorneys filed a Motion for Appointment of Identification Expert. See Exhibit 2. After noting that "[t]he only evidence of probative value linking Accused to this crime is the identifications made by ... Lisa Marie Murillo and Myra Magdalena Murillo," the motion set out particularized reasons that the defense needed an expert in eyewitness identification:

The witnesses were under a great deal of stress when the offense took place. In addition, they were unable to view the perpetrators for an extended period of time. Juries often view eyewitness accounts of events as un-fallible [sic] and necessarily accurate. In fact, experts in the field of eyewitness testimony know that misidentifications are sometimes made, particularly in stressful situations where strangers are viewed for a relatively short period of time. Accused knows that such a misidentification was made in this case.

At a pretrial motions hearing April 2, 1993, the prosecutor opposed the motion, arguing,

I don't have the cite in front of me, but there's a case directly on point that said the court did not have to allow the testimony of an expert who was brought in from a university to testify to the jury that in general eyewitnesses are the least reliable, on and on and on, unless he was referring specifically to the witness who testified. I don't have the case in front of me today, but I will provide the Court a copy of that.

[SF Vol. I-B p. 20]. The court asked if the concern expressed in this case was that the use of such an expert was "tantamount to ... invading the province of the jury," and the State's attorney responded, "in essence that's what the court felt[,] that this is a fact issue that the jury needs to decide, whether or not that testimony was reliable or not, her memory was credible or not." Id. The court held the motion in abeyance and directed the prosecutor to bring him the case. The defense filed nothing more, and there is no further mention of the motion in the record. Thereafter on May 14, 1993, the court denied the motion without further comment or explanation. See Exhibit 3.

At trial, the critical factual matter for the jury to resolve was whether the Murillo's identification of Mr. Ford was reliable. No other evidence connected Mr. Ford directly to the crime. In a search of Tony Ford's home after the crime, "nothing at all" relating to the crime was found. [SF Vol. IX p. 230]. By contrast, some of the property taken from the Murillo's house was located at Van and Victor Belton's home. [SF Vol. IX p. 229-230]. The only physical evidence linking Mr. Ford to the crime was inconclusive. Three wool fibers found on Armando Murillo's shirt were determined to be similar in color, size, and appearance to the wool fibers from Mr. Ford's long wool trench coat. The state's expert testified that the fibers "could" have come from the coat. [SF Vol. pp. 336-337].^² This coat also had a small stain on the inside of a pocket too small to type or test. The forensic examiner identified this stain as blood, but acknowledged that it was "consistent" with someone cutting a finger and putting his hand in the coat. [SF Vol. pp. 329-330].^³ Moreover, Mr. Ford testified he loaned the coat to Victor Belton shortly before the crime, so that Victor could conceal his gun under the coat. [SF Vol. IX pp. 295-296]. Finally, Mr. Ford denied under oath that he went into the Murillo's premises and even after cross examination and conviction held fast that he was not the shooter and that the person who committed the murder was Victor Belton. See SF Vol. IX p. 259-297, Vol. X pp. 62-68.

To show how the Murillo's could well have mistakenly identified Mr. Ford, the defense introduced the booking photograph of Victor Belton from December 19, 1991. [SF Vol. IX p. 228]. See Exhibit 5 (booking photo of Victor Belton).^⁴ Victor Belton had been arrested at his parents' house, along with his brother Van, in the early morning hours of December 19, 1991. [SF Vol. IX pp. 226-227]. Van was charged with the crimes that occurred at the Murillo's house, and Victor, with assaulting the officers who were attempting to arrest Van and who had arrested their father for hindering the arrest of Van. See Exhibit 7 (police report concerning Victor Belton). The defense also introduced the booking sheets for Mr. Ford and Victor Belton, [SF Vol. IX p. 258]. See Exhibits 8 and 9. The sheets showed that as of December 19, 1991, both were 5'8" tall. Victor Belton weighed 156 pounds, while Mr. Ford weighed 150 pounds. Mr. Ford was 18 years, 6 months old; Mr. Belton was 17 years, 8 months old - only 10 months younger than Mr. Ford.

In an attempt to counter this evidence, the prosecution introduced photographs of a lineup that included Victor Belton, but not Tony Ford, that was put together on March 1, 1993 - some 14? months after the crime. See Exhibit 10. El Paso Police Department Detective Lilia Lowe, the case agent for the Murillo case, testified that Myra Murillo was shown the lineup on March 1, 1993, and that she did not identify anyone as being involved in the offense that killed her brother. [SF Vol. IX p. 242]. Detective Lowe also testified that even though Victor Belton's and Tony Ford's weights were similar, Belton's build was different, [SF Vol. IX p. 244] - he was in her view "huskier than Tony Ford, wider." Id.

The closing guilt phase arguments by counsel reflected the centrality of the Murillo's identifications. The prosecutor put it concisely:

And really it comes down to, was it Tony Ford? Who do you believe in this case? That's the key. You are the judges of the credibility of the witnesses. Do you believe Tony Ford or do you believe Lisa and Myra Murillo?

Do they know who tried to exterminate their family on December 18^th of 1991? And again, I would submit to you that they would never forget his face, never.

The defense argued the unreliability of the identifications extensively, arguing what their expert should have been able to explain through scientifically-grounded testimony. First, the defense argued that the stress of the crime would have made it difficult for the Murillo's to remember:

Every time it is brought to your attention about how horrible it must have been for the witnesses to be there, consider the difficulty of remembering events, of identifying individuals, when you're under that sort of stress.

[SF Vol. IX p. 381]. Next, the defense argued that the stress associated with this "very traumatic event," coupled with the great similarity in appearance and stature of Victor Belton and Tony Ford, made a mistaken identification much more likely:

I am not suggesting to you that either Lisa Murillo or Myra Murillo were lying to you. I submit to you they were not. What I submit to you is they were mistaken. These were two young ladies involved in a very traumatic event, who are mistaken about the identification of the individual who committed this crime.

Lisa Murillo was so frightened she wet her pants. Now, I don't say that as criticism of Lisa Murillo. I would submit that most people or many people in that situation would have done the very same thing.

But what it shows is how frightened she was, how frightening an event it was and how difficult therefore to make a positive identification.

Now they did get a look at the individual who did at least some of the shooting. They did get a look at him. The question is how good a look did they get?

I submit to you that due to all these factors, the fear, the concern, they did not get a good enough look at the individual who did the shooting to come in here and prove to you beyond a reasonable doubt who it was.

These are the pictures of Tony Ford and Victor Belton. As you can see, their heads are shaped exactly alike. Their skin color is exactly alike. Their hair is cut in such a fashion, exactly alike.

I'm not telling you they're twins, but I'm telling you that during the course of a very traumatic event, a mistake can be made, and I submit to you that's what happened. A mistake has been made here.

These are two young men, approximately the same age, approximately the same color, same shape of head, same shape of ears, same haircut, same height - exactly the same height - a difference in weight of, I think, only six pounds.

to you that it was Victor Belton and not Tony Ford who committed this offense," [SF Vol. IX p.

What else is it about Victor Belton which should suggest to you that he was the one who committed the offense, and not Tony Ford?

First off, when you look at the similarities, extremely similar head shape, ear shape, color of skin, size, height and weight, all of that is similar.

When Van Belton was arrested at this house, Victor Belton was arrested there, too. And Victor Belton fought with the police. Did Tony Ford fight or run when he was arrested? No, he did not. Victor Belton.

Was any of the evidence taken from Dale Douglas found in the search of Tony Ford's house? No, no evidence was seized. Was evidence seized in Victor Belton's house? Yes, a watch and a box.

Was ammunition found in the house of Tony Ford? No. Were .22 caliber bullets found in the house of Victor Belton? Yes.

All of these things come together, ladies and gentlemen, to prove to you that it was Victor Belton and not Tony Ford who committed this offense.

Defense counsel argued in their Motion for Appointment of Identification Expert that the denial of such an expert "would violate Accused's United States and State of Texas constitutional rights." Exhibit 2, at p. 3.

Under the Due Process Clause of the Fourteenth Amendment, the defense made an adequate showing of Mr. Ford's entitlement to an eyewitness identification expert. In Ake v. Oklahoma, 470 U.S. 68 (1985), the Court articulated the showing that must be made to entitle an indigent defendant to the assistance of a mental health expert:

[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.

Id. at 83. In Rey v. State, 897 S.W.2d 333 (Tex.Crim.App. 1995), the Court of Criminal Appeals recognized that the right to expert assistance articulated in Ake is not confined to psychiatrists:

Most courts that have considered the application of Ake have held that where an indigent defendant established a substantial need for an expert, without which the fundamental fairness of his trial will be called into question, Ake requires the appointment of an expert regardless of his field of expertise.

Mr. Ford's Motion for Appointment of Identification Expert met this test. He alleged that the "only probative evidence" against him was the eyewitness identifications, that juries often "view eyewitness accounts of events as un-fallible [sic] and necessarily accurate," and that eyewitness experts can show that "misidentifications are sometimes made" under the very conditions in which the Murillo's made their identifications of the shooter in this case: "in stressful situations where strangers are viewed for a relatively short period of time." Exhibit 2. Certainly much more could have been said about the need for an eyewitness expert in Mr. Ford's defense - e.g.,

See generally Exhibit 11 (discussed infra). However, enough was shown without these references to demonstrate that eyewitness testimony would be "a significant factor at trial, " Ake, 470 U.S. at 83, and that "without [that expert assistance] the fundamental fairness of [Mr. Ford's] trial will be called into question," Rey, 897 S.W.2d at 338.

In opposing this motion, the prosecution did not draw into question whether the defense showing was adequate under Ake. Instead, the prosecution argued,

[T]here's a case directly on point that said the court did not have to allow the testimony of an expert who was brought in from a university to testify to the jury that in general eyewitnesses are the least reliable, on and on and on, unless he was referring specifically to the witness who testified.

[SF Vol. I-B p. 20]. The case the prosecution was referring to was Pierce v. State, 777 S.W.2d 399 (Tex.Crim.App. 1989), cert. denied, 496 U.S. 912 (1990). However, that case had nothing to do with whether an indigent capital defendant was entitled to the assistance of an expert at the outset. It focused solely on whether expert testimony - of an eyewitness expert in that case - was admissible. It did not hold that such testimony was inadmissible in all cases. See 777 S.W.2d at 416 n.5 ("we do not hold that expert testimony eyewitnesses should be excluded in all cases") (emphasis in original). It held only that, to be admissible, the testimony had to apply specifically to the particular circumstances of the identification in that case. Id. at 415-416. Accord Jordan v. State, 928 S.W.2d 550 (Tex.Crim.App. 1996) ("the question is whether the [eyewitness identification] expert's testimony took into account enough of the pertinent facts to be of assistance to the trier of fact on a fact in issue") (emphasis in original). Even if the Pierce test were applicable to the distinct question of whether expert assistance is available at all, Mr. Ford's attorneys met the test in their motion. They showed that the expert testimony they sought would be tied to the particular facts of the Murillo's identifications.

Misled by the prosecution's argument opposing Mr. Ford's motion, the trial court was inclined to deny the motion because such an expert's testimony was "tantamount to ... invading the province of the jury." [SF Vol. I-B p. 20]. Nevertheless, the court permitted the parties to provide further authority before it decided the motion.

Inexplicably, the defense made no response to the prosecution's misplaced argument - on the spot at the hearing or thereafter. As demonstrated, the prosecution's argument and the misguidance of the trial court could have been readily countered. However, the defense did nothing, and the motion was denied. See Exhibit 3. Counsel's omissions amounted to deficient performance. Their failure to counter the prosecution and show the trial court that there was no principled basis upon which to deny their motion for an identification expert was unreasonable. See Strickland v. Washington, 466 U.S. 668, 688 (1984) ("[i]n any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances").

Mr. Ford was prejudiced by his attorneys' deficient performance. Had Mr. Ford had the assistance of an expert in eyewitness identification, his expert would have been able to demonstrate, on the basis of settled, well-documented scientific research, that the Murillo's identifications were likely mistaken. Through the expert, the defense could have presented the following evidence:

1. The expert would have undertaken an empirical study, using well-established scientific techniques, to determine whether the photo array shown to Myra and Lisa Murillo was suggestive. Such a study was recently undertaken by Dr. Roy Malpass, the expert with whom this Court authorized counsel to work in connection with the present proceeding. To test whether the array used to identify Mr. Ford was non-suggestive, study participants of similar age and ethnicity to the Murillo sisters - 40 Hispanic college-age students - were given a verbal description of Mr. Ford, then asked to view the array shown the Murillo's. Exhibit 11 (report of Dr. Malpass, November 14, 2001), at 2-3. If a photo array is not suggestive, one would expect each of the six persons depicted in a six-photo array to be identified 1/6, or 16.67% of the time. Exhibit 11, at 3. This is not what happened with Mr. Ford's array. Instead, "[w]hen the participants were given the verbal description [of Mr. Ford], 22 of 39 participants (56.4%)^⁵ chose the photo of Mr. Ford, in position 5" - a "rate of choosing ... more than 3 times the choice rate expected in a six person lineup if chance factors alone determine the participants' choices." Id. Dr. Malpass concluded:

The 56.4% identification rate is a statistically reliable departure from chance expectation of 16.67%. We are more than 99% certain that the rate at which Mr. Ford was chosen excludes the level of chance expectation (16.67%), and we are very confident that the observed rate of identification is larger than would be expected if only chance factors determined participants lineup choices. It is likely that some systematic process is occurring to direct choices to Mr. Ford. The photospread is biased towards Mr. Ford, and this preference for Mr. Ford's photograph violates the principle that the suspect should not stand out from the other persons (fillers) in a lineup.

2. The expert would also have undertaken an empirical study designed "to determine the degree to which Ford and Belton [we]re similar in appearance, and whether it is possible that they could [have] be[en] mistaken for each other." Exhibit 11, at 5. To conduct this study, Dr. Malpass worked with a different set of 80 Hispanic college-age students. Exhibit 11, at 4. Each participant was shown a pair of photographs, Mr. Ford and Victor Belton, and also Mr. Ford and Victor Belton each paired separately with each of the other five persons depicted in Mr. Ford's photo array and with five additional filler photos taken from the El Paso police department mug-shot database. Thus a total of 21 pairs of photographs were displayed to each study participant. Exhibit 11, at 5. Participants were asked to rate the similarity of two faces in each pair on a scale ranging from 1 (not similar) to 7 (very similar). Id. Dr. Malpass explained the results of this study:

[O]f all the face photo pairs in this study, the Ford and Belton pair is rated as the most similar, and significantly more similar than the next most similar pair. Belton is more similar to Ford than any of the fillers used in the Ford lineup, in some cases by a considerable margin.

3. Because the Murillo's were Latino and the suspects were black, the risk of a mistaken identification was exponentially higher. In a study based in El Paso, for example, involving the cross-racial identification of a black suspect by Latino eyewitnesses, the results revealed that 67% of the time, when the Latino witness identified a black suspect, the witness was mistaken. By contrast, when Latino witnesses identified Latino suspects, they were mistaken only 29% of the time. Exhibit 11, at 6. Numerous other studies of this phenomenon have confirmed this extraordinarily high likelihood of mistake in cross-racial identifications. Id. at 5-6.

4. The presence of a weapon that is used in a threatening manner reduces, by "a small but consistent" factor, Exhibit 11, at 6, the probability that an identification is accurate.

5. The Murillo's unwavering certainty that their identifications were accurate did not mean that they were accurate. Research has established that eyewitness certainty is not correlated with the accuracy of the identification. Among subjects who are highly certain of their identifications, the error rate is 50%. Exhibit 11, at 6-7.

6. The exposure of an eyewitness to a photograph of the suspect before he or she views the suspect's photograph as part of a photo spread produces a process called "proactive inhibition." This process increases the likelihood that the eyewitness will identify the same suspect in the photo spread even if the identification is erroneous. Lisa Murillo's identification was tainted in this manner, because she saw Mr. Ford's photograph in the local newspaper, identified as a suspect in her family's case, before she viewed the photo spread that included Mr. Ford.^⁶

Given the arguments that defense counsel made to the jury at the close of the guilt phase, there is no question that this evidence would have substantially aided the defense. Counsel argued many of the conclusions that would have been the subject of an expert's testimony. However, counsel had no evidence with which to persuade the jury of the great risk of mistaken identification produced by (a) the objectively similar appearance between Mr. Ford and Victor Belton, (b) the use of a weapon against the Murillo's, (c) the intense trauma of the incident, and (d) the exposure of Lisa to a photograph of Mr. Ford prior to her viewing of the photo spread. Moreover, without expert testimony, counsel could not argue that the photo lineup itself was biased toward picking Mr. Ford, or that there was an even greater likelihood of mistaken identification due to the differences in race of the assailants and the Murillo's. Nor could counsel counter the most powerful argument by the prosecution - the intense confidence that the Murillo's had in the accuracy of the identifications. With expert testimony, there is at least a reasonable likelihood, see Strickland v. Washington, 466 U.S. at 694, that the outcome of the trial and sentencing would have been different.

This claim was presented among the claims numbered 1-5 in the Amended Original Application for Writ of Habeas Corpus in the state courts. The state courts rejected the claim on the merits.

1Lisa's identification of Mr. Ford as the shooter was thrown into doubt by her admission on cross-examination that she never saw which intruder did the shooting. Just before the shooting started she buried her head in a pillow and kept it buried through the remainder of the incident. [SF Vol IX, 125-126].

2In her lab report, this witness was even more equivocal. She reported that "[t]he three dark gray wool fibers were similar in color to some wool fibers in the overcoat and could have originated in the coat or any wool garment of a gray/purple color." Exhibit 4 (emphasis supplied).

3This witness overstated in her testimony the conclusions she had written in her lab report. In the lab report, whether this stain was even blood was in doubt: "The coat was treated with luminol reagent, resulting in a positive presumptive reaction for blood. Subsequent analysis using Takiyama, a confirmation test for blood, indicated no detectable blood present." Exhibit 4 emphasis supplied). Thus, this witness's testimony failed to link Mr. Ford's coat to the crime at all.

4Compare this to the booking photo of Mr. Ford, Exhibit 6. The similarity is striking.

5One participant made no choice of anyone. Exhibit 11, at 9.

6By inadvertence, Dr. Malpass was not asked to address this question. However, it is clear that he would come to the same conclusion if asked. See Jordan v. State, 928 S.W.2d 550, 552 (Tex.Crim.App. 1996) (noting this phenomenon, as recounted in the proffered testimony of an eyewitness expert in that case).

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