Defense Closing Argument in 7-11 Armed Robbery, Misidentification Defense

Case Highlight: Eyewitness Misidentification Nearly Ruined His Life. An Innocent Teen Cleared.  Our client, a 17-year-old, faced serious armed robbery charges and was tried as an adult based on two eyewitness identifications. No gun was recovered, no fingerprints linked him to the crime, and the identifications were based on brief, stressful glimpses weeks earlier. We retained an expert witness to expose the flaws in the eyewitness testimony. After careful deliberation, the jury returned an 11-1 not guilty vote, and the prosecution subsequently dropped all charges.

May it please this honorable court, ladies and gentlemen of the jury, first off, I'd like to thank you for your service. There's no doubt in my mind that having twelve jurors is the best system for preventing unjust prosecution and miscarriages of justice. [The defendant] has waited nine long months for his day in court wondering whether his indefinite future is going to be spent on a hard dirty mattress in a steel cell in the company of murderers -- murderers and -- and rapists for a crime that he did not commit.

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Now, before I get started on the evidence, first off, I wanted to touch on the fact that [the defendant] did not testify. And some of you very well might be wondering why didn't he testify? Well, I'm sure that everyone is familiar with the Fifth Amendment. Why does it exist? Why did the founders put it into the Bill of Rights? They put it in there for exactly situations like this. [The defendant] has just turned seventeen years old. He was in the tenth grade when this occurred. [Prosecution attorney] is a veteran prosecutor, a professional trial attorney, a skilled cross-examiner. His job requires that he be good at even making innocent people confused and confounded and looking guilty. [The defendant] had nothing to gain by testifying. So he and I, we talked it over, and we made a decision mong ourselves that I would speak for him to make it a bit more of a fair fight for him.

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And, anyway, why would he testify when the Commonwealth has failed so miserably to prove their case? In my opening statements I said that you would see no physical evidence. And I was proven absolutely correct. There is no physical evidence in this case. No fingerprints tying him to the 7-Eleven, there was no gun recovered, there was no mask recovered. There is absolutely no physical evidence. And you'll remember you've -- you heard the two clerks, [prosecution witness 1] and [prosecution witness 2], they both testified that [prosecution witness 2] had wiped down the front window of that 7-Eleven with Windex -- this was a trick of the trade to -- to provide a better surface for getting fingerprints. And it very well may have been successful. They were able to get six fingerprints from off of that -- that front window. Six that were of sufficient quality that they could match them to other fingerprints. And none of them were proven to match [the defendant].

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And you heard from [expert witness]. She was the -- the female detective who interrogated [the defendant] when he was brought in. And she said she was confident that [the defendant] was the one who committed the armed robbery of the 7-Eleven involving a gun, a violent crime involving a gun and a ski mask, and yet she doesn't pursue a search warrant? And -- and why didn't she take that obvious step? Was it incompetence? Is it because she's not confident in her case? Nobody really knows why she didn't take that obvious step.

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I ask you to take into consideration [the defendant]'s demeanor with the police. [Police officer] He was the officer -- the first officer in uniform to testify. He stated that [the defendant] was cooperative and calm until he started being frisked. Any ordinary citizen would exhibit precisely that behavior. When he's brought in to be interrogated by [expert witness], from the very beginning he consistently maintains his innocence. He says, I didn't rob nothing. I didn't rob anybody. And he says it repeatedly. And keep in mind this is a sixteen year old without his mother present being interrogated by a veteran detective skilled at eliciting confessions.

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Now, I ask you to take into consideration the testimony of his mother, [family member]. I'll concede, she does not provide an air tight alibi. She was very honest on the stand. She doesn't remember precisely what she was doing on the evening on March 6th, and I think that would be a tall order from -- for anybody. I don't think anyone that far back can remember exactly what they were doing on the evening of March 6th. But what she does remember and what's backed up by the school records that were admitted into evidence is that [the defendant] was sick. He had excused absences from school on the 5th, which was the Monday, and the 6th when the crime allegedly occurred, and he was out of school on the Wednesday and Thursday as well. His mother testified that he was sick then as well. His mother testified that she typically goes to bed around eleven o'clock. The crime occurred at 10:45. Is that an airtight alibi? No. But his mother was very honest, and I ask that you take that into consideration.

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Really the only evidence of any substance that the Commonwealth has, as the Commonwealth stated, are the two clerks who were in the 7-Eleven that evening. So let's talk about them. First we had -- [prosecution witness 2] testified. She testified that she was at the end of a 3:00 to 11:00 shift. It's 10:45. She's tired. There's a guy who comes in flashing a gun. Obviously, she's scared. She gets a five second glimpse at his face from her own testimony. He's wearing clothes that are baggy enough that she couldn't give any real description of body weight and body type. A five second glimpse of a partially obscured face. And it's six weeks later that she sees [the defendant] walking down the street and points him out. A five second glimpse and six weeks. And also doesn't it seem like an awfully big coincidence that [prosecution witness 2] for four months resided one block away from [the defendant]? Isn't it very possible -- [prosecution witness 2] testified that she walks to work. She walks around the neighborhood. Isn't it possible that she has crossed paths with [the defendant] before? That she unconsciously stored away his face. How many times have you seen a face that is familiar? You're just not sure quite where it's from.

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And then you have [prosecution witness 1]. And his identification has all of the same problems as [prosecution witness 2]'s. Most notably a six week delay between the robbery and when he's making an identification. [prosecution witness 1] testified that he got about a ten to fifteen second glimpse from an angle at the face of whoever committed this robbery. Again, a partially obscured face for ten to fifteen seconds. And it's six weeks later that he's brought in to the detective's office. And this is where his identification -- where -- it -- it really shows that [prosecution witness 1] cannot identify this robber. He's shown six photos. In his testimony he stated he looked at those photos for about ten to fifteen minutes. Six photos for ten to fifteen minutes. He said he looked at each photo about four times. That is not recognition. That's someone searching for who looks the most similar to the robber. If he could recognize the robber it would not have taken ten to fifteen minutes. And even after that he can't pick out one photo. He picks out two of six. He picked out thirty-three percent of the photos that were provided to him. And then three weeks later at the preliminary hearing in lower court, [the defendant] is sitting at the desk in a detention center uniform in shackles and handcuffs, and then he asserts one hundred percent certainty that [the defendant] is the robber. And, mind you, at that point he also knew for the first time that [the defendant] is the one who [prosecution witness 2] had identified. Now, I don't think we need an expert to tell us that memory doesn't get better over time. He didn't know who the robber was when he was brought in on April 20th, and three weeks later, he said that he did.

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I'm also asking that you take into consideration the testimony of [expert witness 2]. He testified that there is a consistent finding that whites are poorer at distinguishing black faces. He said that it's consistently around a ten percent reduction in the reliability of an identification. He said the smallest reduction in the reliability that he saw in any of the studies that he consulted was nine percent. Ten percent -- a ten percent reduction in the reliability of an identification that was already made from a partially obscured face after six weeks, that is meaningful. And [expert witness 2] also testified that effect can be exacerbated by a long delay and stress. Precisely what we see here. A six week delay and the stress -- certainly stress, having a gun pointed into your face.

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Now, there are certainly victims here. The people at that 7-Eleven -- and I'm not -- I'm not trying to assert that what they're doing is malicious. They are mistaken in their identification, but I don't think it's malicious, that they are out to get [the defendant]. They don't know him. So they are victims. They are -- they're hard working people. They don't deserve to have a gun pointed in the face, scared to death, traumatized for life, but there is another victim here. And that victim is [the defendant]. He's a victim because he's been charged by the Commonwealth when they haven't fully and competently done their job. You know, the Commonwealth Attorney, he would love to consider this case solved. Close it and move on. You can't do that. You can't do that at the expense of [the defendant]. You can't let them close their case and victimize [the defendant]. And in my -- in the voir dire I had stated and everyone had agreed that the prosecution bears the burden of proving this case. And they have failed. Their evidence has come and gone and they have failed. And why has it failed? They need to prove their case beyond a reasonable doubt. Beyond a reasonable doubt is built on hard and irrefutable facts. It's not built on possibles and not sures, six week delays, five second glimpses. You cannot guess [the defendant] into prison.

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In just a moment you're going to go back there and -- and deliberate. And you're going to have to come to a unanimous verdict. And each and every one of you individually is going to need to make your own decision. Your decision, whether to send [the defendant] to prison or whether to set him free, any one of you can stand up and stop him from being sent away. In other words, [the defendant] is the personal responsibility of each and every one of you. You are charged with writing the final end of this story for [the defendant]. And I'm asking that you make it a happy one. I'm asking that you make it the right onw. I'm asking that you find him not guilty on all of the charges.