Defense lawyers' brief

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March 9, 2011 10:59 AM

IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Appellant, Respondent on Review, v. SAMUEL ADAM LAWSON, Defendant-Respondent Petitioner on Review. BRIEF OF AMICUS CURIAE OREGON CRIMINAL DEFENSE ASSOCIATION IN SUPPORT OF THE DEFENDANT LAWSON’S PETITION FOR REVIEW In support of petition to review the decision of the Court of Appeals NOTICE: Amici will seek leave to file on the merits if review is allowed. DANIEL CASEY, OSB 952277 PO Box 82818 Portland OR 97282 503 774-3283 [email protected] Attorney for Petitioner Samuel Adam Lawson BRONSON D. JAMES #033499 JDL Attorneys, LLP 610 S.W. Broadway, Ste 405 Portland, OR 97204 [email protected] Phone: (503) 808-9008 Attorney for Amicus Curiae OCDLA JOHN KROGER, OSB 077207, Attorney General MARY WILLIAMS, OSB 911241, Solicitor General 1162 Court St. NE Salem, Oregon 97301 [email protected] .us Phone: (503) 378-4400 Attorneys for State of Oregon Douglas County Circuit Court Case No. 03CR1469FE Appellate No. CA 132640 SC S059234

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i TABLE OF CONTENTS STATEMENT OF THE AMICUS’S INTEREST ...............................................1 ARGUMENT ................................................................................................1 I. Classen does not ensure the court’s role as gatekeeper.......................3

II. Classen misallocated the burden of proof. The burden is on the proponent of the evidence to establish that it is reliable. ...........................7 III. The excluded exculpatory evidence was significant. ..........................9 REASONS FOR GRANTING REVIEW ..........................................................13 CONCLUSION ..................................................................................................14

TABLE OF AUTHORITIES CASES Manson v. Brathwaite, 432 US 98 (1977) ..................................................1, 8, 13 Snow v. OSP, 308 Or 259, 780 P2d 215 (1989) ...................................................5 State v. Brewton, 238 Or 590, 395 P2d 874 (1964) .............................................2 State v. Classen, 285 Or 221, 590 P2d 1198 (1979) ................1, 2, 3, 7, 8, 13, 14 State v. Henderson, 937 A.2d 988 (App. Div.), certif. granted and denied, 950 A.2d 907, 08 (2008), remanded 2009 N.J. LEXIS 45 (2009)...................8 State v. Lawson, 239 Or App 363, 244 P3d 860 (2010) ...................................... 1 State v. Lyon, 304 Or 221, 744 P2d 231 (1987) ...................................................5 State v. Salas-Juarez, 349 Or 419, 245 P3d 113 (2010) ....................................12 State v. Southard, 347 Or 127, 218 P3d 104 (2009) ............................................5

ii OTHER AUTHORITIES Brewer, Neil and Burkel, Anne, Effects of Testimonial Inconsistencies and Eyewitness Confidence on Mock-Juror Judgments, 26 Law and Human Behavior 353 (2002) .........................................................................................4 Cutler, B, Penrod, S, and Stave, T, Juror Decision-Making in Eyewitness Identification Cases, 12 Law and Human Behavior 41 (1988) ........................4 Wells, Gary, and Quinlivan, Deah, Suggestive Eyewitness Identification Procedures: Why the U.S. Supreme Court Needs to Revisit Manson v. Braithwaite, 33 Law and Human Behavior 1 (2009)........................................4

STATEMENT OF THE AMICUS’S INTEREST Amicus the Oregon Criminal Defense Lawyers Association is a non-profit, educational organization dedicated to protecting constitutional rights and due process; providing scholarship in the area of legal representation in criminal, juvenile, and mental commitment proceeding; and promoting public awareness as to the function and duties of the criminal defense function in general. It has 1243 members. It intends to present a position as to the correct rule of law. ARGUMENT In this case, State v. Lawson, 239 Or App 363, 244 P3d 860 (2010), the Court of Appeals applied the rule from State v. Classen, 285 Or 221, 590 P2d 1198 (1979), which adopted the analysis from Manson v. Brathwaite, 432 US 98 (1977). In reaching its conclusion, the Court of Appeals majority misapplied the rule. However, it is the position of the OCDLA that the Classen rule is deeply flawed, even when correctly applied, and should be abandoned by this court. The two-step Classen analysis determines if an identification was obtained in a suggestive manner, and if it was, provides a way to admit the identification anyway if the eyewitness had an “independent source” for the identification. As other amici explain in this case explain, the legal term,

2 “independent source,” is not based in scientific research; any identification is “a reconstruction that includes all prior information.” Once an eyewitness has been subjected to a suggestive process, that process cannot be un-done. OCDLA joins the psychologist-experts in calling for a fundamental re-thinking of the Classen rule, focusing particularly on the second step. OCDLA submits that the solution described by the Special Master in New Jersey, as described by amicus The Innocence Project, is a solution this court should adopt as appropriate to Oregon. The court, as the gatekeeper, must keep unreliable evidence from the jury. The Classen rule fails to do this. Given what we know now about the factors involved in an eyewitness identification, the burden of proof must be placed on the proponent of the identification to show that the evidence is reliable. The state has the burden of proof to show that any custodial statement taken from the defendant was voluntary, it should have a similar burden to show that any eyewitness identification was obtained in a non-suggestive manner. State v. Brewton, 238 Or 590, 395 P2d 874 (1964) (burden on the state to show the voluntariness of a confession). If the process was suggestive, the identification cannot be reliable.

3 I. Classen does not ensure the court’s role as gatekeeper.

Classen requires the court to be a gatekeeper of identification evidence, but does not require enough. It permits the court to decide that, although the identification was unduly suggestive, there was an independent basis, and then hands the issue over to the jury to determine whether or not to rely on the identification. The Court of Appeals majority made much of the testimony of the expert witness, Dr. Daniel Reisberg, who testified that the identification was unreliable. The majority also noted the vigorous argument to the jury by defense counsel that the identification was unreliable, and the instruction to the jury about considering various factors regarding the reliability of an eyewitness identifications. 239 Or App 371-73. But all of that was not germane to the problem at hand. The Court of Appeals majority authorized the jury to make a determination that is not one for a jury to make. Extensive research shows that juries find the testimony of confident purported eyewitnesses to be exceptionally persuasive, notwithstanding that the witness’s confidence was misplaced, and the identification was obviously (in the view of experts) flawed. Numerous studies show that eyewitness confidence is the single most important factor shaping jurors' assessment of an identification. Moreover, in a number of studies, jurors, after hearing a witness

4 express his/her confidence, largely ignore other considerations, including other information indicating that the witness had little-or-no opportunity to view the person now being confidently identified. One study adds the worrisome point that witness confidence has a strong effect on jurors' judgments, regardless of whether the witness gave consistent or inconsistent testimony (i.e., different responses to the prosecutor on direct and to the defense attorney on crossexamination). In this fashion, witness confidence destroys the impact of cross-examination, or the testimony of experts, or a jury instruction urging the jurors to use care when evaluating eyewitness testimony. See, e.g., Brewer, Neil and Burkel, Anne, Effects of Testimonial Inconsistencies and Eyewitness Confidence on Mock-Juror Judgments, 26 Law and Human Behavior 353 (2002); Cutler, B, Penrod, S, and Stave, T, Juror Decision-Making in Eyewitness Identification Cases, 12 Law and Human Behavior 41 (1988), and see generally Wells, Gary, and Quinlivan, Deah, Suggestive Eyewitness Identification Procedures: Why the U.S. Supreme Court Needs to Revisit Manson v. Braithwaite, 33 Law and Human Behavior 1 (2009), available at: http://www.psychology.iastate.edu/faculty/gwells/Wells_articles_pdf/Manson_a rticle_in_LHB_Wells.pdf (last viewed 3/6/11). The court has always had the job of excluding from the jury’s consideration evidence that is not reliable and therefore not relevant, or which is

5 marginally reliable and relevant, but unfair to present. For example, this court had recently determined that, without physical findings, a diagnosis of “child sex abuse” -- while marginally relevant and not “bad science” -- is not to be heard by a jury because its probative value is greatly outweighed by its unfair prejudice. State v. Southard, 347 Or 127, 140, 218 P3d 104 (2009). The diagnosis is scientific evidence which "possesses the increased potential to influence the trier of fact as a scientific assertion, the scientific principles on which the diagnosis rests must meet a minimum level of scientific validity for the diagnosis to be admissible.” Southard, 347 Or 132 (internal quotations omitted). The polygraph provides another example of evidence that has some reliability and can sometimes be used in the criminal justice system, but cannot be heard by a jury. See e.g., State v. Lyon, 304 Or 221, 744 P2d 231 (1987) (polygraph evidence not admissible before a jury); Snow v. OSP, 308 Or 259, 780 P2d 215 (1989) (polygraph evidence admissible in Department of Corrections disciplinary proceedings if the prisoner consents). The majority was mistaken when it stated “a jury is usually in no worse position that a judge acting in a gatekeeper’s capacity to determine the effect, if any, of improperly suggestive police techniques on the accuracy of eyewitness identification testimony.” 239 Or App 363. Judges are gatekeepers when expertise is required to evaluate particular kinds of evidence. A jury is not in a

6 position to evaluate the reliability of an identification, just as it cannot evaluate the reliability of a diagnosis of “child sex abuse” without physical findings. In this case, the identification evidence was unreliable, and it was the court’s role as gatekeeper to remove this highly persuasive, highly unreliable evidence from the jury’s consideration. Under these circumstances, it was not relevant that the witness in this case thought that the defendant was in her trailer after the shooting.1 If, arguendo, it was marginally relevant, its relevance was greatly outweighed by its unfair prejudice to the defendant. Despite the vigorous cross-examination of Sherl despite the testimony of Dr.

Reisberg, despite the jury instruction, the jury was persuaded by Sherl identification. We can logically infer that the jury relied on Sherl identification

because there was very little other evidence to connect this defendant to the shooting. The evidence against the defendant was Sherl “identification” had

of him as the shooter, and evidence that the bullet that killed Noris

Even her belief that she saw anyone in her trailer after the shooting may not have been accurate. It is possible the shooter did not enter the trailer, and Sherl confused the entry of the first responders with an entry by the shooter. This is supported by her testimony that the shooter entered to steal the vehicle, and was seeking the keys. However, both the sets of keys were later found, one in Sherl’s purse in the trailer and the other in the truck’s center console -- two places where one would expect vehicle-owners to keep the keys. See App Br 29, 11/2/05 Tr 98.

1

7 been fired from a rifle similar to the rifle that had just been stolen from the defendant’s unlockable pickup. Other state’s evidence included a blood smear/print that could have been from one of defendant’s shoes, or could have been from one of the shoes of a first responder, or could have been from something other than a shoe. App Br 5, 24. The state’s claimed motive for this ruthless sniping murder was that the defendant, that morning, thought the tent was abandoned, and he was in it when the discovered him.

Or, possibly, that he wanted to steal their truck, although both sets of keys were in obvious places and the truck was not moved. There was no fingerprint or DNA of the defendant’s at the scene, or physical evidence from the scene with the defendant. App Br 26-27. The defendant’s only prior conviction was a DUII. He served honorably in the military, and has been employed virtually all his life. Numerous friends and co-workers testified to his even temper and nonviolent nature. As we note below, there was evidence the defendant was not permitted to offer that there had been other unexplained shootings in the area, occurring after the defendant was incarcerated. II. Classen misallocated the burden of proof. The burden is on the proponent of the evidence to establish that it is reliable.

Under Classen, an eyewitness identification is assumed to be lay testimony. If the opponent challenges the identification, the opponent can call an expert witness. That is what occurred here, with a defense challenge pretrial,

8 a court ruling that the jury could hear Sherl identification, and a defense

challenge before the jury. The burden was on the defendant to show the identification was unreliable, and to show this to a jury. The OCDLA submits that this formulation misunderstands the nature of the evidence. In this case the state submitted Sherl identification, which

it necessarily propounded as being reliable. The determination that the identification is reliable is a scientific conclusion. Classen stands the rule of admissibility on its head. It was the state’s burden to show that its eyewitness identification was reliable. Once the defense challenged Sherl identification, it became the state obligation to call an expert witness and put on the foundation for reliable scientific evidence. The Classen rule misallocates the burden of proof. The state was the plaintiff, it was the proponent of the evidence, and it was required to have the burden of proof to show its evidence was reliable. Placing the burden on the state is precisely the approach taken by the New Jersey Supreme Court’s Special Master, in the pending case, State v. Henderson, 937 A.2d 988 (App. Div.), certif. granted and denied, 950 A.2d 907, 08 (2008), remanded 2009 N.J. LEXIS 45 (2009). New Jersey’s rule, like Oregon’s, is based on Manson v. Brathwaite, 432 U.S. 98 (1977). The

9 Innocence Project, which was deeply involved in the Henderson case, will describe this case, and the Special Master’s report, in its amicus brief. Judge Sercombe, in dissent, comes close to this argument when he suggests that once the court has concluded that the procedure was suggestive, the prosecution must bear the burden of proof by clear and convincing evidence “in order to overcome the taint of prior suggestive procedures in all cases.” 239 Or App 363 n12. The OCDLA believes that it is more straightforward to simply put the burden of proof on the proponent of the evidence to establish that it is reliable. If the identification was unreliable, it must be excluded from the fact-finders’ consideration. Under this proposed rule, not every eyewitness identification would require expert testimony, but once an identification is challenged by an opposing party, the proponent would have to establish that the identification was reliable. III. The excluded exculpatory evidence was significant.

The Court of Appeals declined to address a number of issues raised in defendant/appellant’s brief, including the trial court’s refusal to allow defense counsel to review documents involving a double murder that occurred near the crime scene, under similar circumstances, after the defendant was incarcerated; and its refusal to admit evidence of another shootings near the crime scene,

10 under similar circumstances, after the defendant was incarcerated. The defendant re-raised these issues in his petition for review. The OCDLA asks the court to consider these issues as well, to continue to flesh out the law on when evidence supporting the defense theory of “third party guilt” is admissible. As noted, the evidence against the defendant was principally Sherl questionable identification of him as the shooter, and evidence that the fatal bullet had been fired from a rifle similar to the rifle that had just been stolen from the defendant’s unlockable pickup with such sparse evidence from the prosecution, evidence of possible third party guilt was particularly important. In this case there were two incidents the defendant wished to describe. First, defense counsel were not allowed even to examine records of an incident in Lane County, which occurred while the defendant was incarcerated, which trial defense counsel described as follows (from information in the media): “On or about July 1, 2005, Steven Haugen and Jennette Bauman, both from Oakridge, Oregon, were shot and killed in a campground near Camper’s Flat, not far from Hills Creek Reservoir and also located in the Willamette National Forest [where the were shot]. There appear to be striking

similarities between the shootings at Camper’s Flat and the shootings

11 [defendant] is charged with having committed at Briggs Camp.” App Br 42-43. The two areas were about 14 miles apart, and connected by back roads. Haugen and Bauman were a respectable couple in their mid-50s with no apparent enemies, no criminal histories, and they had a dog with them at the time. The were a respectable couple, aged 46 and 51, with no apparent enemies, no criminal histories, and they had a dog with them at the time of the shooting. App Br 43, n18, 44. The defendant was entitled to have his counsel review these records, and was entitled to have the jury learn of the similarities. The Court of Appeals reported that it had reviewed the records and found nothing exculpatory. 349 Or 387. While amicus has not seen the records, it is difficult to imagine what in the records could negate the remarkable similarities between the Lane County crime, as reported in the media, and the murder. Second, the defendant was entitled to have the jury learn of yet another similar incident, occurring near Hemlock Lake, after the defendant was incarcerated. On November 28, 2003, someone shot at a couple in their 20's, about 15 miles from Briggs Camp, near Hemlock Lake in the Umpqua National Forest, about 1:30 in the afternoon. The person shot at them six times with, a high-powered rifle, from across the lake. The couple, the Browns, were college students with no apparent enemies. Mr. Brown saw a man with a rifle, and a

12 large older American pickup. Neither of the Browns was shot. Nobody has been charged with this shooting. App Br 53-54. We observe that there was other physical evidence that someone else committed the crimes. There were unidentified fingerprints, unidentified

male DNA, and unidentified tire tracks found at the crime scene at Briggs Camp; there was evidence of a white car near Briggs Camp immediately before, but not after, the shootings, and there were Noris tape about hearing a car drive off. App Br 24, 26-27. This court has very recently issued an opinion discussing the defendant’s right to present evidence that a third party could have been responsible for the crime at issue. State v. Salas-Juarez, 349 Or 419, 245 P3d 113 (2010). There, a number of witnesses -- apparently not directly in the line of danger -- saw the defendant stab the victim, and the defendant had a motive to stab the victim. The state argued the evidence of a third party’s earlier statement expressing generic violent anger, was irrelevant. Nevertheless, this court held that the jury had to hear it. In our case, we submit the case against the defendant is weaker, and the third-party evidence is stronger, than in the Salas-Juarez case. This court should take review and address this issue, as well. statements on the 911

13 REASONS FOR GRANTING REVIEW As noted, eyewitness identification is highly persuasive to juries. The petition for review sets out the reason this case is an appropriate vehicle to address that important issue, as well as the third-party guilt issues. OCDLA concurs that the jury issues, if not mooted by the resolution of the other issues, as also appropriately raised, and this case is a vehicle to address the rules about judge/jury contact, and informing counsel regarding jury communications or questions. Amicus The Innocence Project will describe the number of wrongful convictions which have resulted from mistaken eyewitness identification, under the same rule, taken from Manson v. Brathwaite, 432 U.S. 98 (1997), which has been widely adopted around the country. Amici College and University Professors will describe in some detail the flaws in the Classen template. In sum, the eyewitness issue has profound state-wide (indeed, nationwide) implications, involving the prevention of convictions of the innocent. The other issues are important for the development of Oregon law.

14 CONCLUSION For these reasons, the Supreme Court should grant review, and should reconsider the rule in State v. Classen. It should also consider and address the scope of admissibility of evidence of third party guilt, and the jury issues if not mooted. OCDLA will seek leave to file an amicus on the merits should review be allowed.

Respectfully submitted, /s/ Bronson James ____________________________ Bronson D James, OSB 033499 JDL Attorneys LLP 610 SW Broadway Ste 405 Portland OR 97204 503-808-9008 [email protected] Attorney for the Amicus Curiae Oregon Criminal Defense Lawyers’ Association

15 CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(2)(d) Brief length I certify that (1) this brief complies with the word-­‐count limitation in ORAP 5.05(2)(b) and (2) the word-­‐count of this brief (as described in ORAP 5.05(2)(a)) is 3021 words. Type size I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(4)(f). NOTICE OF FILING AND PROOF OF SERVICE I certify that I directed the original Brief of Amicus Curiae OCDLA in Support of Granting Review to be filed with the Appellate Court Administrator, Appellate Courts Records Section, 1163 State Street, Salem, Oregon 97301, on March 9, 2011, by electronic filing. I further certify that, a copy of Brief of Amicus Curiae OCDLA in Support of Granting Review was eServed pursuant to ORAP 16.45 (regarding electronic service on registered eFilers) on Mary H. Williams, #911241, Solicitor General, attorney for Respondent, on March 9, 2011. I further certify that, a copy of Brief of Amicus Curiae OCDLA in Support of Granting Review was eServed pursuant to ORAP 16.45 (regarding electronic service on registered eFilers) on Dan Casey, #952277, attorney for Petitioner, on March 9, 2011. Respectfully submitted, /s/ Bronson James _________________________________ BRONSON D. JAMES OSB #033499 JDL ATTORNEYS LLP Attorney for Amicus Curiae OCDLA

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