Federal Court Finds Lawyer Ineffective For Failure to Call Expert on Effects of Blood Loss and Sedation on Witness's Memory

Just came across an interesting recent decision from the 2nd Circuit, in connection with a habeas claim from an old New York case.

Brentonol Moriah was walking along a Brooklyn street at 2:30a.m. one summer night in 1996, when he was held up with a full-length shotgun. Mr. Moriah turned over the contents of his pockets, at which point apparently some headlights flashed, and his assailant fired the shotgun into his thigh. Moriah proceeded to lose approximately half of his blood before receiving treatment. When police arrived, he was still conscious, but only able to say that he was robbed and shot by a black male wearing a "lemon-colored shirt." The assailant was listed as "unknown" and "unidentified" in police reports documenting the incident. Mr. Moriah then entered an 11-day coma.

When he came out of the coma, but while still heavily medicated, Mr. Moriah reported that the man who shot him was his neighbor, Derrick Bell. On that evidence alone, Mr. Bell was convicted of robbery and assault at trial, which was upheld on appeal.

On the habeas claim, however, the 2nd Circuit found that trial counsel's failure to consult a medical expert on the expected effects of heavy blood loss, heavy medication, and an 11-day coma on the reliability of Mr. Moriah's memory as a witness to the crime, rendered Mr. Bell's trial counsel constitutionally deficient.

In connection with Mr. Bell's habeas claim, he contacted a neuropsychologist to review the case:

Bell submitted the affidavit of Dr. Elkhonon Goldberg, a neuropsychologist ... who reviewed the police reports from the case, Moriah's grand jury and trial testimony, and the trial testimony and affidavit of Dr. Brewer. Dr. Goldberg opined that: "Mr. Moriah's testimony contains unequivocal evidence that he suffered from retrograde amnesia for the events predating the loss of consciousness"; the retrograde amnesia was exacerbated by such anxiolytic and amnestic medications as Dr. Brewer attested were likely administered to Moriah in the emergency room; false memories can be persistent and dominant, overriding true memories; and Moriah was unlikely to have regained full consciousness when he first named Bell. Accordingly, Dr. Goldberg concluded that Moriah's identification of Bell was unreliable.

On that basis, the 2nd Circuit overturned the conviction:

where the only evidence identifying a criminal defendant as the perpetrator is the testimony of a single witness, and where the memory of that witness is obviously impacted by medical trauma and prolonged impairment of consciousness, and where the all-important identification is unaccountably altered after the administration of medical drugs, the failure of defense counsel to consider consulting an expert to ascertain the possible effects of trauma and pharmaceuticals on the memory of the witness is constitutionally ineffective.

The text of the decision is available on Westlaw: Bell v. Miller, --- F.3d ----, 2007 WL 2469423 (2nd Cir. 2007).

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Violent Encounters, Cops, and the Frailty of Human Memory

We recently stumbled across a joint DOJ/FBI publication called Violent Encounters: A Study of Felonious Assaults on our Nation's Law Enforcement Officers (Aug. 2006), which purports to "offer insights that may help to improve safety-training techniques." One source of insight happens to be the same social science research on which reform advocates rely to show the fallibility of human memory in the eyewitness context.

Chapter 5 of this training manual is titled "Perception -- Its Role in the Violent Encounter." The chapter examines a collection actual violent encounters undergone by police officers, and chronicles a laundry list of cognitive errors that were associated with the events in the officers' memories. The chapter reads like a greatest-hits of factors tending to reduce the reliability of eyewitness memory, so it is of particular interest that this is coming from a law enforcement publication. Defense lawyers are repeatedly confronted with the critique that these effects have never been corroborated by real field studies, and are thus irrelevant to real-world scenarios -- as if the stressfulness of having a gun in one's face in real life would somehow invert the well-known detrimental effect of a weapon and stress on eyewitness memory in a lab setting. This publication serves as a definitive rebuttal of that critique, where both the FBI and DOJ are on record acknowledging the negative effects of the same factors on the memory of their own officers.

The chapter covers a range of topics, including (1) the reconstructive nature of memory; (2) the mutability of memory -- in particular as a result of improper questioning; (3) the effect of stress on perception and recall; (4) weapon-focus; (5) the tendency to overestimate the duration of a criminal incident; and (6) other perceptual distortions.

This publication is a substantial concession from the law enforcement community that the psychological phenomena that prosecutors routinely dismiss as academic curiosities have real world application, as defense attorneys have known and argued for years.

(All credit to Kate for this great catch.)

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Fear : Memory :: Oil : Water

In 1988 Jimmy Lee Page was identified as an attacker by a seven year-old boy recovering from 20 stab wounds on a hospital bed. Joe Howard, the young victim, "reacted dramatically" when he saw a photo of Mr. Page in a lineup from his hospital bed, with flowing tears and noticeable fear. Police placed great weight on the boy's immediate, visceral reaction to the image, and pursued criminal charges against Page.

But in the following months, now out of the hospital, young Joe Howard identified two other men as his attacker. Police insist that his first, emotionally charged response is the right one to follow. But leading eyewitness researcher Gary Wells chimed in with a different take:

Joe's emotional reaction was not "an indication of being right, it's an indication of believing you are right," said Gary Wells, an Iowa State University psychology professor who has studied the reliability of eyewitness identification for 30 years.

As we know from the research of Dr. Wells and others, the correlation between a witness's confidence and his accuracy is weak at best, and often entirely misleading.

Today, it's known that fear plays a key role in impeding the ability to form and process memories, Wells said.

"The natural tendency for all humans is fight or flight from fear. All of one's mental resources get devoted to survival, and forming a detailed memory of things around you does not help you survive," Wells said.

In other words, the natural fear response is not to "remember that face"; it is to survive. And the latter often stands in the way of the former.

And not only was the first ID contradicted by two subsequent IDs of other men -- it was revealed that the initial photo ID procedure included fourteen suspects, all of whom lived near the crime scene. The experts find this practice particular troubling, as we talked about recently in the context of the Duke rape case:

"They can't go wrong, can they? If the witness picks anybody, then they've got their man," Malpass said.

By contrast, a scientifically valid lineup would have packaged each suspect with photos of five "fillers," men who could not have committed the crime, Malpass and Wells said.

"The beauty of that is, if you've got a witness who really doesn't have a reasonable memory — if they are just going to pick somebody — five out of six times, they'll pick the filler, and you know immediately that they don't know what they're talking about," Wells said.

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