Chicago Criminal Defense Attorney

“Judges cautioned against reliance on overstated ballistics testimony”

From Grits for Breakfast:
Recently, thanks to contributions from readers, Grits purchased a copy of the brand spanking new third edition of the “Reference Manual on Scientific Evidence” produced by the Federal Judicial Center and the National Research Council of the National Academies of Science – the first update of the manual in more than a decade . . . .
As with other comparative forensic techniques from fingerprints to bitemarks to microscopic hair examination, essentially, all ballistics experts are really saying is “After looking at them closely, I think these two things look alike.” It strikes this writer that it’s quite a big leap from “reasonable scientific certainty” to “more likely than not.” Basically it’s the leap from “beyond a reasonable doubt” to having “substantial doubt.” I wonder how many past convictions hinged on testimony where experts used phrases like “reasonable scientific certainty” or “to the exclusion of all other firearms in the world”? And I wonder how many times those experts were simply wrong?
October 20, 2011 | Permalink

Murder conviction reversed because of lapse in time

By Pat Milhizer
Law Bulletin staff writer

In a case that features the longest time lapse between a crime and witness identification in Illinois, a state appeals panel reversed a man’s murder conviction Tuesday mainly because the eyewitnesses didn’t identify the alleged gunman until more than 30 years after the shooting.

“The Appellate Court took the standard of evidence and held it dear,” said Thomas C. Brandstrader, a sole practitioner who represented the defendant. “They held it to what it should be, and that’s beyond a reasonable doubt.”

In 1971, Flores Sanchez was killed and Gilberto Cruz was wounded by gunshots that were fired in a Chicago bar.

Police identified Luis Vega as a suspect, but a detective couldn’t find him at home.Vega also didn’t report to work on the Monday after the shooting.

The cold case got warm in 2004, when authorities found Vega in New York after he applied for retirement benefits. An agent with the Social Security Administration who reviewed the application noticed that Vega had an outstanding arrest warrant.

A Chicago police detective went to New York and reported that Vega said his memory of 1971 was “fuzzy.” The detective said he asked Vega if he killed Sanchez, and Vegareplied that if he did, he didn’t remember doing it.

Vega was arrested in 2005 and brought back to Chicago, where he opted for a bench trial. The prosecution presented two witnesses with a photo of Vega that was taken in 1961, a decade before the crime.

Both Cruz and the bartender who saw the shooting identified Vega as the killer from the photo. But neither of the witnesses testified that they identified Vega as the shooter in 1971.

A New York detective testified and said at the time of arrest Vega said he “understood what was happening and had made peace with God,” according to the appellate opinion.

Cook County Circuit Judge Kenneth J. Wadas found Vega guilty, saying the two eyewitnesses and the New York detective were credible. The judge also found thatVega was “spontaneous” in his statements to the New York detective, which constituted a confession.

Because Illinois had indeterminate sentencing at the time of the crime, Wadas sentenced Vega to between 14 and 20 years for murder and six and 18 years for attempted murder.

Vega appealed, contending that he wasn’t proved guilty beyond a reasonable doubt because the witness identifications were unreliable. He also argued that the state’s circumstantial evidence failed to connect him to the shooting.

The 1st District Appellate Court agreed and reversed the murder conviction in a 12-page unpublished order written by Justice Mary Jane Theis. Justices Joy V. Cunningham and Themis N. Karnezis concurred.

The panel held that even though the length of time between a crime and an identification doesn’t necessarily render the identification untrustworthy, it does affect the weight that should be given to the identification. In the 1972 decision in Neil v. Biggers, the U.S. Supreme Court held that a lapse of seven months would be “a seriously negative factor in most cases.”

“Thus, a 34-year lapse in time must be weighed and considered exponentially less reliable,” Theis wrote.

It is also “highly significant” that neither Cruz nor the bartender testified that they gave a description of Vega to police in 1971, the panel ruled.

The prosecution maintained that the fact that Chicago police initially began looking forVega indicates that Cruz and the bartender must have identified Vega as the shooter. But it would have constituted inadmissible hearsay if the Chicago detective who started the investigation in 1971 was allowed to testify that his interview with a witness led to the warrant being issued, the panel held.

The panel also pointed out that the two witnesses didn’t testify about the level of certainty that they had with their identification of Vega.

And neither witness identified Vega in court, the panel noted. Instead, they relied on a photo that was taken 10 years before the crime.

The panel also noted that there was no physical evidence linking Vega to the shooting. Furthermore, Vega’s statement that he had “made peace with God” didn’t qualify as a confession, the panel ruled.

As for Vega’s decision to leave Chicago, the panel cited case law stating that “flight alone is not necessarily indicative of criminal activity. … It must be considered in connection with all of the other evidence.”

The state was represented by former prosecutor James E. Fitzgerald and Assistant State’s Attorneys Samuel Shim and Michele I. Lavin. The office will ask the Illinois Supreme Court to hear the case.

For the defense, Brandstrader was assisted by attorney Augustus F. Moss.

The case is People v. Luis Vega, No. 1-08-1532.