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Tony Egbuna Ford |
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Information packet |
Petizione sul suo caso |
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CLAIM FOUR MR. FORD WAS DENIED DUE PROCESS BY THE USE OF A SUGGESTIVE IDENTIFICATION PROCESS, DESIGNED TO PRODUCE AN IDENTIFICATION OF HIM RATHER THAN VICTOR BELTON.
A. The Basis for the Claim Because of the denial of an expert in eyewitness identification, Mr. Ford was also denied the ability to challenge the identification procedure as a denial of due process. Had Mr. Ford been provided such an expert, the expert could have established, by scientific field research, that the identification process was unduly biased against Mr. Ford. 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 whom this Court authorized counsel to work with 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%)1 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 person (fillers) in a lineup.
Exhibit 11, at 3. 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."
Exhibit 11, at 5. With this evidence, Mr. Ford likely could have succeeded in suppressing the Murillo's identification of him. He could have shown that the lineup was unduly suggestive - that it was constructed in such a manner that the Murillo's were highly likely to pick him out because he looked much more like the person they described as the shooter than anyone else depicted in the photo lineup. Further, he could have shown that the lineup created a substantial likelihood of misidentification, because he and Victor Belton looked much more like each other than he and anyone else in the photo lineup. Accordingly, Mr. Ford could have shown that his right to due process was violated. Neil v. Biggers, 409 U.S. 188 (1972). B. State Court Proceedings Mr. Ford attempted to gain the means to assert such a claim at trial and in state habeas corpus proceedings. Because he was improperly denied expert assistance, he was unable to make this claim. Solely though the fault of the state courts, Mr. Ford was unable to make this argument to the state courts. Circumstances thus exist that excuse Mr. Ford from the exhaustion requirement, 28 U.S.C. § 2254(b)(1)(B)(ii), and excuse any "default" in presenting the claim to the state courts.
1One participant made no choice of anyone. Exhibit 11, at 9. |