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Conn. high court upholds murder conviction

By Stephanie Reitz
Associated Press Writer / August 20, 2010

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HARTFORD, Conn.—A sharply divided Connecticut Supreme Court declined Friday to consider whether suspects have a right to defend themselves using research on why eyewitnesses sometimes mistakenly identify the wrong perpetrators.

Justices unanimously upheld a New Haven man's murder conviction in the 2005 shooting of another man and rejected his request for a new trial.

But four of the seven justices decided against delving deeper into J'Veil Outing's claim that he should have been able to present testimony on scientific studies about the unreliability of witness identifications.

Outing's attorneys wanted to have an expert testify on recent scientific research about why well-intentioned people sometimes mistakenly identify the wrong people as suspects.

The reasons include a tendency to focus on a perpetrator's weapon rather than his or her face, the weak correlation between a person's confidence and accuracy, the effects of stress and the way different descriptions of a crime or person seem to meld as witnesses discuss them.

A New Haven Superior Court judge had rejected Outing's request, saying jurors have enough common sense to understand those factors without an expert's testimony.

The four justices in the majority decision Friday on Outing's case said that it involved so many other factors more directly involved in the verdict -- such as recanted testimony and discredited claims of police pressure -- that it was "an improper case" in which to address the mistaken identity research.

They called it a "harmless error" at worst for the judge to have rejected the expert testimony, especially since a 25-year-old Connecticut Supreme Court ruling says it's not mandatory.

That opinion came to the chagrin of three justices, who called their colleagues' stance "indefensible," accused them of dodging a critical question and said relying on that old ruling was potentially unfair to defendants.

"I simply do not think it appropriate or wise to wait for the 'right' record to come before us before we act to correct this dangerously outmoded body of case law," Justice Flemming Norcott Jr. wrote.

Outing, 24, is serving a 50-year sentence after being convicted of fatally shooting Kevin Wright, also of New Haven. No scientific or ballistics evidence linked him to the killing, which was witnessed by two people who later identified Outing in photo lineups.

Both later recanted and said they felt pressured and persuaded by police, though the Supreme Court said a review of audiotapes contradicted those claims.

James Streeto, Outing's public defender, said he appreciated that the justices did so much research to digest what he called "a formidable body of science" around the issue of mistaken identifications. He still believes Outing deserved a new trial, though.

"Obviously we're disappointed in the outcome. Certainly it seems that the court gave our claims careful consideration, but certainly I do wish they'd gone the other way," he said.

A message left for the prosecutor was not immediately returned.

Some defense attorneys said the ruling reads like an invitation from the Supreme Court to bring a more clear-cut case through the appeals system so the issue can be revisited.

Indeed, the New England Innocence Project says it's tracking several pending Connecticut appeals that might return that issue to the state Supreme Court in the next year or two.

Old Lyme attorney Conrad Seifert, president of the Connecticut Criminal Defense Lawyers Association, said they hope that witness identification procedures will be updated soon either through the state Supreme Court, legislature or a U.S. Supreme Court case.

"I believe this is another example of where the law has not kept up with changes in technology," Seifert said.

Hartford-based defense attorney James Bergenn agreed, saying it's a long-standing topic of discussion among lawyers who've monitored the Outing case and similar appeals based on allegedly faulty identifications.

"The social science has been well ahead of the law," he said. "Criminal defense lawyers know it and most of the judges know it too, but you really want to have all the judges being sure that all of the juries are properly apprised."

Gary Wells, an Iowa State University psychology professor and national expert on police lineups and witness error, said that research has repeatedly shown that the average person doesn't understand the factors that go into mistaken identifications.

"The primary thing that drives a jury is, how certain is the witness. That's what matters to them," he said.

"It's so, so difficult because these witnesses don't really have a sense that they're wrong. These are genuine errors, and that's what tends to make them sort of indistinguishable from accurate identifications. It's very difficult for a jury to understand how something like that could be the case," he said.

New Jersey, Texas and several other states have been reviewing the validity of their standards on how witness identification is used in court and how research about its problems can be presented.

Nationally, more than 75 percent of convicted people later exonerated with DNA evidence who have been released since 1989 had been sent to prison based on witness misidentification, according to The Innocence Project. The New York-based center says witness mistakes are by far the most common element in wrongful convictions.

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