Fort Lauderdale-Miami Criminal Law Appeals: Flawed Eye Witness Testimony & Photo Line Ups
Given her objective role in a criminal law trial, it is appropriate that Lady Justice should be blindfolded. However, Lady Justice assumes that witnesses who swear in open court and point an accusing finger at the accused are certain before they put a person in jail, right? She also assumes that those eyewitnesses have not had their memories or their testimony tainted by flawed police practices, right? Here is a case which might tempt Lady Justice to lift up her blindfold and ask "What the ... is going on here?!?!?
Perhaps some are naive, but experienced criminal law lawyers know that the gleaming ideals of our criminal law justice system (i.e. little things like the presumption of innocence and proof beyond a reasonable doubt) are sometimes tarnished by the procedures utilized by the police not just to convict - but also to accuse. The area of evidence most prone to manipulation and mistake - eye witness identification. 
A perfect example of the flawed means by which our criminal justice system sometimes operates was seen recently in the Miami -Fort Lauderdale-Palm Beach criminal law case of Cody Davis. Mr. Davis had the unfortunate legal dilemma of being identified by 'eyewitnesses' positively identifying him as the man - with a distictive tattoo on his neck - who robbed a local pub in 2006. They were "certain", they told police as they identified him from the photo line up police had prepared to investigate potential suspects.
By way of background, after the pub was robbed in February 2006 employees of the pub reported that a gunman - a white male with short black hair and a tattoo on his neck - perpetrated the crime. One witness said the tattoo on the robber's neck looked like Chinese characters. Another witness said there was also a tattoo on the gunman's hand.
Later a police informant who knew Davis told police they should look at Davis as a suspect. This was convenient and easy to do since the police were already aware of Davis by virtue of his extensive prior arrest record. Police investigators promptly put together a photo lineup of mug shots that included Davis. Investigators showed it to the victimized bartender. Lo and Behold, she pointed to Davis, identifying him as the robber. Case closed quickly, conveniently and easily.
The trial closed just as quickly, conveniently and easily. At Davis' trial there was no physical evidence introduced, just the pub employees' eyewitness IDs of Davis. Although Davis' defense attorney says he attacked the discrepancies in the witnesses descriptions of the gunman, says he argued that Davis had no tattoo on his hand and also argued that the tattoo on Davis' neck didn't "look like" Chinese characters. Jurors convicted Davis of robbery and he was sentenced to prison. However, neither Davis nor his jury had all of the facts before them. That was not just unfortunate, it was an injustice. Davis did not commit the robbery.
Fortunately, by sheer coincidence, Davis' case had a unique twist. Months before, additional investigators had sent for DNA testing a gray ski mask. It had been found in an alley near the pub. It was not introduced at Davis' trial because none of the witnesses had stated the robber had worn a mask.
However, detectives subsequently requested that Cody Davis' DNA be compared to the DNA found in the ski mask. Fortunately for Davis, separate detectives were investigating the robbery of a general store that not only occurred on the same night as the pub robbery, but also occurred the same evening as the pub robbery. The general store robber had worn a mask.
Unbelievably, four months after Davis went to prison, the mask DNA results were obtained. Step 1 - Cody Davis' DNA was not on the mask. Step - 2, the Florida Department of Law Enforcement reported a DNA match from their database. The DNA on the ski mask matched that of Jeremy Prichard. Step - 3, when investigators examined Jeremy Pritchard's criminal background they found themselves looking at a prior booking photo - a photo of Pritchard with a distinctive tattoo ... on his neck. The tattoo says "No Fear" in jagged letters - letters that could easily be mistaken for Chinese lettering by excited and scared eyewitnesses. Step - 4, in an interview with Prichard he confessed to a string of robberies, ... including the pub robbery that landed Cody Davis in prison.
Step - 5, the next day prosecutors dropped the charges against Davis and the day after that he walked out of prison.
This case is of note for anyone charged with a crime. It illustrates that sometimes police only investigate as far as the most convenient suspect. It also illustrates the fact that police sometimes arrive at their most convenient suspect through very flawed, sometimes Constitutionally improper or even blatantly illegal methods. For example, in reviewing this case to determine how an innocent man could have been convicted based on such 'certain' eyewitness testimony, experienced criminal lawyers were shocked to discover that in the original photo line up Mr. Davis was the only one with a tattoo visible on his neck. According to Florida law the lineup was subject to a very vigorous legal challenge at the trial court level as totally and impermissibly suggestive. It is not yet known whether such a legal defense was pursued by the trial lawyer much less ruled on at the trial court level.
After Pritchard's confession, the sheriff's investigators made some new line ups for the pub robbery victims. This time everyone in the lineup had a tattoo on his neck. Not surprisingly, the same eyewitnesses who had previously been certain that Davis was the robber, this time they picked out Prichard as the robber.
The judicial systems' goal is to investigate within the bounds of the legal procedures specifically designed to both guide and limit police power. However, eye witness testimony is among the most subjective and inherently fallible types of evidence utilized in any criminal trial. Where these types of evidence continue to be subject to "back room" police tactics which unwittingly, or perhaps purposefully, taint the eyewitness identification then the sad story of Mr. Davis is likely to be repeated, without the happy ending. Mr. Davis is among the lucky ones. The mistakes in his case were discovered by sheer coincidence BEFORE he lost his entire future.
If you or a loved one have been charged or convicted of a crime and are not sure all of the evidence and police procedures used against you were allowed by the U.S. Constitution or have been thoroughly investigated by your lawyer I encourage you to contact me for a consultation. As in any criminal legal matter, especially with a pending charge or following a conviction, time is of the essence. I encourage you to call and schedule your detailed analysis and conference promptly. 1 877-LAW-FLA-4.
However, as a criminal law attorney who regularly defends accused persons in the communities of Miami - Fort Lauderdale - Palm Beach, I am perplexed by local reports indicating that, despite his educational training and background, local schoolteacher Orlando Dager seems to have remained blissfully ignorant of the powerful legal rights and protections granted to him pursuant to Florida and United States Constitutional law. 
For example, Mr. Dager's naivete is aptly illustrated by the following police allegations. The deputies allege that in what began as a routine traffic stop for operating his vehicle without lights, Orlando Dager voluntarily admitted to a major drug purchase in Miami and then, to make matters worse, consented to a search of his vehicle. He is alleged to have done all of these things 'voluntarily', despite the fact that the car he was in is alleged to have contained over 2000 grams of marijuana! Mr. Dager's stunning lack of knowledge or sophistication regarding the nature of the legal charges filed against him is further illustrated by the following statement he is alleged to have made at the scene:
As with most items in the "Made-off" portfolio, under careful scrutiny the statue's shining facade revealed only the lustre of bronze, not the glimmer of gold. 
Specifically, Fort Lauderdale criminal lawyers and Miami criminal defense attorneys have learned that the Broward County Sheriff's Office has been manufacturing crack cocaine since February of 2008. Thus, in a new twist on the old story of the guard dog caught chasing his own tail, the Broward County Sheriff's Office has announced that they are now in the business of manufacturing crack cocaine ... in order to better investigate and deter the manufacture of crack cocaine. 
Specifically, two members of an alleged criminal gang were convicted by a Palm Beach County jury on criminal charges of racketeering. The two men, both of Lake Worth (which is located in Palm Beach County), were indicted in June and proceeded to felony criminal trial as early as this week. They are now facing many, many years in prison. Fort Lauderdale criminal defense lawyers expect Fort Lauderdale Broward County gang crime cases to be pursued just as vigorously. 
