Criminal appellate lawyers can tell you how difficult it is to get a conviction reversed, even under the best of circumstances.  Questionable police testimony is routinely accepted to overrule motions to suppress searches or statements, violations of evidentiary rules are disregarded under the rubric of “harmless error,” and courts regularly indulge in fictions, such as that jurors always abide by curative instructions.  It’s rare to see a case get reversed at all, much less to see a court reverse a decision when it really didn’t have to.  But that’s what happened not once, but twice last week.  I’ll talk about one today, and the other, involving the rape shield statute,  tomorrow.

First up is the 8th District’s decision in State v. Bradley.  Bradley had been convicted of robbery solely on the basis of a somewhat questionable identification by the victim.  She could provide only a general physical description of her assailant, and looked through a mug book to no avail.  She viewed the video taken from a nearby gas station, and ID’d a man as the possible perpetrator, based only on the fact that he “generally matched” her earlier description.  The police managed to get a picture of Bradley from the BMV, and a month later the victim picked his picture out of a photo array.

I’ve written about the perils of mistaken eyewitness identification before, but hell, so has everybody else; it’s almost universally recognized that misidentification is the single greatest cause of wrongful convictions.  Bradley would have been another one, except that his lawyer was smart enough to file a motion to appoint an expert on eyewitness identification. 

The trial court denied the motion on the basis that the local rule allowed appointment of experts only for indigent defendants accused of aggravated murder or murder.  That’s true, but in Ake v. Oklahoma the US Supreme Court reversed a murder conviction because the defendant had been denied a court-appointed psychiatrist, and in State v. Mason the Ohio Supreme Court acknowledged that “[Ake] now is generally recognized to support the proposition that due process may require that a criminal defendant be provided other types of expert assistance when necessary to present an adequate defense.”  Mason held that a defendant was entitled

to obtain expert assistance at state expense only where the trial court finds, in the exercise of a sound discretion, that the defendant has made a particularized showing (1) of a reasonable probability that the requested expert would aid in his defense, and (2) that denial of the requested expert assistance would result in an unfair trial.

The Bradley court relied upon that and State v. Sargent, a 1st District case where the court had also reversed a conviction because of the trial court’s refusal to appoint an expert on eyewitness identification.

Bradley’s certainly a defense-friendly decision, and a courageous one; it would have been easy to affirm and file the case under “Abuse of Discretion – Not.”  Whether it’s the correct decision is a closer call.  As can be seen from the quote from Mason, appointing of experts isn’t favored.  (The Mason court in fact affirmed the refusal to appoint experts.)  The facts in Sargent are more favorable to the defendant than in Bradley:  the victim there had been robbed at gunpoint by two people, and the police scanned the area and found Sargent walking alone.  They grabbed him and took him back to scene and stuck him in front of one car’s headlights; the victim, unsurprisingly, identified him.  The police also found a gun in the area, and got a fingerprint off it, which didn’t match Sargent’s.  And while Bradley clearly met Mason’s first criteria, there’s no discussion of why the denial of an expert resulted in an unfair trial.  (Although the majority’s reasoning on that score might be gleaned from its mentioning that the jury twice reported an inability to reach a verdict, and produced one only after being given the Howard charge.)

Bradley shouldn’t be read as requiring the appointment of an expert in all cases where eyewitness identification testimony is at issue; the absence of any evidence corroborating the identification is going to be the trigger.  Still, Bradley’s an important decision, and indicates a growing recognition on the appellate bench of the problem with eyewitness identifications.  At the very least, filing a motion for appointment with a copy of Bradley attached could make the trial court more aware of that problem, too, and more receptive to allowing the defense more leeway in pressing that issue in voir dire and during trial, and may prod him into giving a Telfaire instruction as well.