MISTAKEN IDENTIFICATION - (YOUR NAME HERE)

On October 8, 2013, at about 10:00 PM, near Wetherole Street in Queens County, two people were robbed at gunpoint.  The robbers were not caught.  On October 16, 2013, my client was arrested for this robbery after being identified by the victim as one of the perpetrators.  At his arraignment on charges of Robbery in the First Degree, the judge set bail so high that there was no realistic way he would be able to make bail.  My client was going to be in jail until the matter was resolved.  The judge's decision to set high bail was not unreasonable.  Robbery in the First Degree is a B violent felony in New York.  My client faced 25 years upon conviction.  My client even had a previous criminal history that would have made his minimum 10 years upon conviction.

My client maintained his innocence.  Not "they can't prove it" but actual innocence.

Imagine how such a claim would be received.  Prior felon, after being identified by a victim, says "he didn't do it".  Almost laughable right?  Can you imagine telling such a person to "tell it to the judge"?  Can you imagine asking me as his lawyer, "How can you represent this guy"?  Can you imagine me, as his lawyer, trying to explain that "he didn't do it" to a jury?  Realize that if he takes the witness stand to tell the jury (for what it is worth) that "he didn't do it" the prosecutor will more than likely be permitted to cross examine him about his prior (unpleasant) criminal history.

Imagine yourself as a juror listening to the testimony of a convicted felon telling you that while he might have "done it" in the past, "this time he didn't do it".  How receptive do you think you would be as a juror to this, if the only thing my client had going for him was his word that he "didn't do it" -- EVEN IF HE HAD NO PREVIOUS RECORD?

Because here's the thing.  My client must actually be one of the luckiest men on planet earth.  My convicted felon client who was arrested for a robbery he says he didn't commit, who was being held on enormous bail on Rikers Island with little hope for success at a trial absent a miracle, was actually incredibly, amazingly, miraculously lucky.

He was luckier than a lottery winner.  All a lottery winner wins is money.

You see, it just so happened that the date of the robbery in question (October 8, 2013) was my client's girlfriend's birthday.  In and of itself, this is but a small coincidence, but it represents the first step in a cascade of good luck for my client.

It was important that the date was my client's girlfriend's birthday because this fact became a way to piece together where my client was at the time of the robbery.  My client and his girlfriend remembered that they had gone to the movies the night of her birthday, and they even remembered which movie theatre.

This was a start but my client and/or his girlfriend claiming to remember having been in a dark movie theatre at the time of the robbery isn't particularly compelling.  Imagine yourself as a juror, how you might discount such testimony as desperate efforts to create an alibi.

But my client's luck did not run out yet.

My client and his girlfriend remembered the particular movie theatre because they went to the movie with another friend, WHO WAS A MANAGER OF THE MOVIE THEATRE.  This gave us another witness (who remembered going to the movies that night) but it also gave us something even more valuable.

This gave us quick and simple access to the surveillance video at the movie theater.  Businesses are often reluctant to just hand over or even agree to preserve surveillance video.  Having an employee sympathetic to our cause meant that we would have no issue about cooperation in preserving the surveillance video.

This led to our being able to secure the relevant portion of the surveillance video from the night in question and it led to our being able to isolate my client, his girlfriend, and the friend from the theater exiting the movie and walking past the front desk area at virtually the exact time the robbery in question was taking place.

Now the video itself was not perfect.  As usual, it was not a close up and it was not absolutely positively my client (even though we knew it to be him).

What was lucky about this video, however, was that we had the two people who were with him in the video who were able to point to the video and confirm their own presence in the video AND were able to produce the clothing that they were wearing (down to the shoes) in the video as further evidence.  Further, we were able to produce my client's clothing which was also rather distinctive.

And nicely across the top of this surveillance video of course was the time and date stamp.

So there it was.

My client was absolutely innocent.  It wasn't an issue of the Government not having enough evidence.  There is no doubt.  My client was absolutely not the person who robbed the victims in the the case.  He was a great distance from the location of the robbery at the exact time of the robbery.

Even though the victim identified him.  Even though he had previous criminal history.

Now of course this makes a nice neat story and it would be nice if it all played out in the course of a couple of days.  But it didn't.  In the real world, this sort of thing takes time to investigate.  Once investigated, decisions have to be made about whether it makes sense to present this to the district attorney up front.  Once it is decided to lay our cards on the table, meetings with the district attorney's office have to be arranged.  In this case I decided to lay it all out to the prosecutor.  I handed over the video tape.  I brought the witnesses (and clothing) to the prosecutor for them to interview in private at their leisure.

Once the prosecutor interviewed the witnesses and reviewed the tape, the prosecutor took time to consider the matter, as is their right and duty.  They conducted additional investigation on their own.  They are in no way obligated immediately to respond regardless of how compelling it may seem at first blush.  This is a serious matter.

Ultimately, the Queens District Attorney's Office, upon evaluation of the case and the alibi evidence we presented, dismissed the matter.

This situation was a nightmare for my client, but it is hard to point to a single bad actor in the story, in all fairness.  I doubt the victim identified my client out of some evil motive or out of randomness.  I fully believe that the victim believed that he was identifying the right person.  So however frustrating it is, as long as the victim took his actions seriously, you can't really be mad at him.

Once the victim identifies someone as the perpetrator of a terrible crime like an armed robbery, what are the police supposed to do if not arrest the person?  In a perfect world, perhaps the police hold off on a decision until further corroboration besides the eyewitness identification can be established, but that is unlikely to happen in the real world.  So the police don't really have a stake in it.  They make the arrest and hope the court "sorts it out".

What about the judge at the arraignment?  The judge set very high bail, condemning my client to remain in custody for the duration of the case.  But the judge had very serious charges to deal with and a defendant with a serious criminal history facing very substantial amounts of prison time.  You can't really blame the judge.

The Queens DA's Office took some time to investigate the case, but what else are they supposed to do?  They have every right to want to be certain of their position and to consider the evidence I presented to them.  And then they ultimately agreed to dismiss the case.  They did exactly the right thing.

As hard as it is to accept, there really is no villain in this story.  It is a sad story with no bad guy.

(In a different situation, one option might have been to seek a bail reduction once we had the alibi evidence presented to the prosecutor, and such an application might well have worked out to an earlier release of my client.  For reasons that are not relevant to this article, the option of seeking a bail review to get my client out even before the prosecutor made the final decision was unavailable to us.)

This case was by far and away the best alibi case I have ever encountered as a defense lawyer.  Most alibi cases are a disaster because at the time of the crime the person accused was often either alone at home or if not alone, with a loved one whose testimony will be considered suspicious.  "I was at home with my mom" is not generally perceived as a powerful defense.  I was successful in this case primarily because my client got so very incredibly amazingly lucky.

Had he simply spent his girlfriend's birthday alone at her apartment that night, you have to wonder what would have happened.  How do you think you, as a juror, would have responded to the girlfriend of a convicted felon testifying that "he was with me" that night in my apartment?  And what if it weren't even her birthday?  Wouldn't you wonder why she would remember that particular night as opposed any other?  Remember, as a juror, you would have already observed the victim point over to the defendant and say "that's the guy who robbed me.  I'll never forget his face."

Eyewitness identification cases are very very dangerous.  If you ever imagine that a single witness identification case is an "easy" case to win for a clever lawyer, think again.  Jurors want to believe eyewitnesses.  Jurors are often kept from learning about what science tells us about eyewitness identifications.  Science tells us that, despite what we all privately believe, human beings are terrible (actually worse than terrible) at making eyewitness identifications.  Science tells us that our memories are not "video tapes" we run back in our minds.  Our memories are constantly subject to influence and even change as a result of those influences over time.  We don't like to believe this.  We want to believe that our memories are like video recorders and that there are certain things we will "never forget" because it makes us more comfortable to believe this.  The alternative, of living in a universe where our memories are easily changeable and generally unreliable, is disturbing.  Yet it is what science tells us is the truth.

Until we accept this better, and learn to take precautions against wrongly influencing memories, and learn to be a bit more skeptical of reports of memories, cases like my client's will continue to plague us.

And if that continues, have a look at the criminal court complaint above.  There might just be a criminal court complaint like that in your future.  Just add your name where it says "Your name here" and hope for the best.