Sample Case - Mistaken Identification Defense in Queens

By Don Murray, partner in Shalley and Murray   

My client's girlfriend arrived in my office telling me that her boyfriend was charged with an armed robbery in Queens.  She swore to me that he didn't do it.  In reviewing the paperwork, I could see that the victim identified her boyfriend in a lineup.  Her boyfriend had a record.  

I know what you are thinking.  This doesn't bode well.  

But I accepted the case and we began our own investigation, trying to piece together where my new client might have been the night of the robbery.  Below is the key piece of evidence in the case.  Keeping in mind that the robbery occurred between 10:00 PM and 10:05 PM on October 8, 2013, have a look at the video below.

The surveillance video we discovered was from a movie theater about 15 miles away from the location of the robbery, about 8 minutes after the robbery occurred.  The video shows my client and his girlfriend walking out of a movie theater. (This video is used with permission of my client and his girlfriend.)

If you are concerned that the picture is blurry and insufficient to identify a particular person, please be aware that we presented my client's girlfriend to the district attorney for interview, and we were able to produce all of the clothing that they were wearing.  We presented everything we had to the District Attorney's office and made every witness available to them.

To their credit, the District Attorney's Office in question took this quite seriously, investigated the matter diligently, and ultimately the prosecutors were fully satisfied that the wrong man had indeed been accused.  They dismissed the case against our client.

WHAT TO TAKE AWAY FROM THIS

My client faced going to a trial where the victim eye witness was going to get on the witness stand and swear under oath that he was never going to forget the face of the person who robbed him and that my client was him.  

If this video didn't exist, and all you knew was that the defendant claimed to have been at the movies with his girlfriend, how seriously would you have taken that claim of innocence, especially if you got wind that my client had a record?  He was picked out of a lineup.  He was arrested.  And the only thing the defense has to offer is the testimony of the defendant who can only say that he thinks he was at the movies with his girlfriend.  Do you even want to hear from his girlfriend?  Or do you think the girlfriend will just say anything to try to save her boyfriend?  Do you smile at the prosecutor during the cross examination of the girlfriend, when he mocks her ability to remember the particular night in question?  And what if, for some reason, the defendant doesn't even testify himself?  

New criminal defense lawyers tend to believe that "ID cases" like this are great cases where the defense really has a chance, unlike many other sorts of cases.  Personally, I find ID cases like this to be highly dangerous cases because I think people seem to have a built in desire to want to credit victim eyewitness testimony.  I totally understand this desire.  You feel sorry for anyone who is a victim of a crime, and it is extremely satisfying to feel like the person responsible for an often violent offense has been identified and will be held accountable.  The story of the victim who never forgets the face of the attacker is a compelling and satisfying story.  It is familiar and easy.

But is it true in any given case?  That is the tricky part.

This is scary stuff.  Dealing with cases like this really makes you wonder how many of the many people who get convicted every year based on single witness identification are actually innocent.

Well all I can say is that I am glad we were able to locate the evidence and the witnesses necessary to end this case before it got to the point of a trial. 

Sometimes the sweetest victory comes from the battle not fought.