|
Tony Egbuna Ford |
|
Petition on his case |
Petizione sul suo caso |
||
|
CLAIM TWO THE TRIAL COURT DENIED MR. FORD'S DUE PROCESS RIGHT TO THE ASSISTANCE OF AN EYEWITNESS IDENTIFICATION EXPERT.
A. The Basis for the Claim As set forth in Claim One, Mr. Ford adequately demonstrated in his Motion for Appointment of Identification Expert that the reliability of the eyewitness testimony against him was "to be a significant factor at trial," Ake v. Oklahoma, 470 U.S. at 83. The trial court denied this motion under one or both of two misconceptions: (a) that an eyewitness expert was per se improper because testimony by such an expert would "invade the province of the jury," [SF Vol. I-B p. 20], or (b) that the testimony of such an expert in Mr. Ford's case would be insufficiently related to the particular facts of the identifications in his case to be admissible at trial. Id. As we have shown, neither rationale was a principled reason for denying the assistance of an expert in eyewitness identification. The prosecution did not oppose the motion on the basis that Mr. Ford's showing of the need for the assistance of such an expert was inadequate - nor could they have made such an argument in the face of the evidence against Mr. Ford or his articulated reasons for needing the assistance of this expert. In Claim One, Mr. Ford has also shown that the denial of this expert cannot be deemed harmless. An expert in eyewitness identification could have provided evidence concerning the likely unreliability of the Murillo's identifications that was not available from any other source. The evidence could not have been developed through cross-examination of the Murillo's or any other witness. The Murillo's not only denied that the trauma associated with the crime blunted their ability to identify the shooter, they asserted the opposite view - that the trauma somehow enhanced their memory. Moreover, they were completely unaware of the suggestiveness of the photo lineup in pointing toward Mr. Ford, the objective similarity of facial features and appearance of Mr. Ford and Victor Belton, the likelihood of their misidentifying the assailant because of racial differences, the added unreliability of identifications when a gun is used during the crime, the tendency of eyewitnesses who are certain of the accuracy of their identifications to be mistaken, and the effect of Lisa's seeing Mt. Ford's photograph in the newspaper on her subsequent identification of him in the photo spread. This information could only have come from an expert in eyewitness identification. Moreover, it is plain that this information could well have changed the outcome of the trial or sentencing, because even without it the prosecution and defense evidence was in equipoise. B. State Court Proceedings 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.
|