“Mistaken eyewitness identification is the primary cause of wrongful convictions in the U.S. – about 70 percent by most estimates,” said Gary Wells, a professor of psychology at Iowa State University who has made a career of studying human memory. “There’s no other single factor that quite comes close to that. We think of eyewitness certainty as a pretty good indicator of accuracy, and if you do everything right in the initial lineup, you can count on the confidence of the witness as a pretty good predictor of what’s right or wrong. But unfortunately, things can really break down early on.” For all her ability to point out Braseel in the courtroom, Hill couldn’t give a consistent account of how she picked him out as her attacker. She testified at a preliminary hearing about six weeks after the killing that the sheriff and the chief deputy came to her sister’s home a day or two after she returned from the hospital. They sat at the kitchen table, showed her a photo lineup, and “once I seen the picture I knowed him. … None of (the others) look like him.” At the trial, 22 months after the killing, Hill swore she’d gone to the jail for the lineup. “I’m not sure if I looked at (the photos) at my sister’s or not,” she testified. “I did go to the jail and look at them. … I had been heavily medicated. I wasn’t at myself at that time real good. … I knowed exactly what I was telling them. I knowed what I was doing.” Cleek, the chief deputy, insists officers went to visit Hill immediately after she left the hospital but didn’t try to show her a lineup because she was still in too much of a daze. “I did not present the photo lineup to her then because I did not feel she was up to it,” he said. “I was the one who sat two inches away from Becky Hill (later) when she poked her finger on that photo of Adam Braseel. To me, she was certain. That lineup, introduced as an exhibit at trial, consists of eight color mug shots – four on top, four on the bottom – with Braseel’s on the bottom near the center. Five of the men in the photos have bangs or bushy hair. Four appear to be at least middle-aged or older. Three have beards. Only Braseel’s and another photo show close-cropped hair. Not everyone pictured has red hair. Grundy County authorities didn’t record Hill’s identification, on audio or video. The only record of the process to make its way into the court file consists of an undated report prepared under the name of Myers, the sheriff. “She told me that she could not positively identify the car but that she would never forget the person’s face that assaulted her,” the sheriff wrote. “When she saw his picture she began to cry. She told me that she knew that this would not bring Malcolm back but that she would never forget Adam Brazeel’s (sic) face when he assaulted her.” Myers didn’t respond to repeated efforts to reach him for this story. Defense lawyers made no objection to the lineup. “Frankly, I’m appalled at what I’m hearing,” said Wells, the eyewitness expert, who has no ties to Braseel’s defense. “I hesitate to criticize law enforcement in a case like this, because they often have small staffs and because it’s easy to hindsight people. But there needs to be some kind of clear, documented identification process. There should be filler (photos) of people who look like the suspect. The person conducting the lineup should be someone other than the case detective, someone who doesn’t even know which photo is the suspect’s so that they can’t unconsciously influence the witness. You shouldn’t be able to look at the lineup and tell which person is the suspect. When that doesn’t happen, it’s up to defense attorneys to hold law enforcement to account.” The official photo lineup with Hill didn’t take place until Jan. 16 – nine days after the killing and a week after her son, who was still living with her, had already identified Braseel’s photo in a process that raised further questions. That identification rated only a pair of sentences in the sheriff’s report. But at trial, Myers admitted things hadn’t gone as planned. The sheriff testified he’d been clipping out mug shots on a desk in an unsecured trailer outside the jail to paste into a lineup when Braden burst in unannounced.
“All of those photos was on the desk … and when he sat down he pointed at the picture and told me that that picture was the one that had did it,” Myers testified. “When he did that, I picked all those photos up in my hand, and I handed ‘em to him and I told him that I wanted him to make sure that he had picked out the right photo.” The sheriff said he couldn’t remember how the photos were arranged on the desk, how many lay face-up or how many face-down. Braden swore he saw Braseel’s photo first, then the others. “He showed me the first photo and I identified him,” the son testified. “He come up and asked me, yes, ‘Is this the man who done it?’ … He showed me three or four. … I couldn’t tell you how many (photos). There was a stack.” Experts say that’s one of the worst possible ways to conduct a photo lineup. “People want to believe the human memory is like a camera, but it’s more like an Etch-A-Sketch,” said Wells, the psychology professor. “Memory is malleable. Every time you remember an event, you reshape it in your mind. Once a witness identifies a suspect, then he becomes their memory. When they think back to the crime, they see his face. Their recollection is tainted, and there’s no way to get that back.” No one at the trial ever asked Hill or Braden whether they’d talked about his making the identification first. “It’s ridiculous,” said William J. Bevil, a retired Brevard County, Fla., homicide detective who worked on the Braseel case as a private investigator during the initial appeals process. “That kind of lineup would never fly anywhere else in the country. Her son goes back home and lives with her. Don’t you think he’s going to say, ‘Hey, Mom, guess what? I picked the guy out.’ Right away, they have messed this case up. It’s garbage in, garbage out.” Hill died in 2011, and Braden couldn’t be reached for this story. A knock at his door in Tracy City drew no answer. Defense lawyers had the right to challenge Hill’s and Braden’s identifications as tainted and try to keep the jury from hearing that testimony......... Jurors deliberated for a total of about three hours before finding Braseel guilty of first-degree murder in Burrows’ death, attempted first-degree murder in the beating of Hill and especially aggravated robbery. Circuit Judge Buddy Perry pronounced the sentence – life in prison. At least one member of the jury says she’s had second thoughts from the moment the foreman read the verdict. “It was wrong,” said Cindy Henley, who insists she argued against conviction but gave into pressure from her fellow jurors. “I don’t remember anybody else in the jury room questioning anything. I think most of them just wanted to go home. But I will never forget the look on that man’s face. I still feel guilty about that.” A review by the state Court of Criminal Appeals upheld the overall conviction and rejected the idea the photo lineups had violated Braseel’s rights. Next came the post-conviction process, when inmates get the chance to argue at the local court level for new trials based on due process violations or newly discovered evidence. A hearing on Braseel’s petition, argued by Knoxville attorney Doug Trant, reached the court docket on Nov. 17, 2015, eight years after Braseel’s conviction. A new judge, Justin Angel, five years out of law school and elected to the bench just a year before, presided this time. Trant’s argument rested primarily on the problematic nature of Hill’s and Braden’s identifications, on additional witnesses supporting Braseel’s alibi – including Jake Baum, who’d been on active duty with the Army during the trial – and on testimony pointing to other potential suspects in Burrows’ death. Trant argued Braseel’s lawyers failed him by not objecting and by not driving those points home with jurors. “Those are such important issues that certainly the defense counsel should have run with it,” Trant said. “I think they just didn’t see it.” The judge issued his decision on Christmas Day. “Identification alone is all that ties the petitioner to the crimes,” Angel wrote. Based on “clear and convincing evidence … The petitioner is entitled to a new jury trial. Braseel came home from prison, released on bond as he waited for a new trial that never came. He worked a construction job while living with his mother and sister, who’d moved back to Pelham since the trial. “I was a free man – justly free – for 10 months,” he said. “I thought it was all over with. It’s a beautiful thing to have your physical freedom, especially after it’s been taken away from you once. I take a lot less things for granted now.” That freedom didn’t last. Prosecutors appealed the judge’s decision as unfounded. The state Court of Criminal Appeals agreed. Neither of Braseel’s original lawyers testified at the post-conviction hearing. Without hearing from the attorneys, any ruling on their effectiveness amounted to guesswork, the court ruled. “A defendant in a criminal case is not entitled to perfect representation, only constitutionally adequate representation,” Judge Timothy Easter wrote. “These witnesses had a substantial and prolonged opportunity to observe the offender amid adequate lighting and from close distances. The witnesses expressed certainty . … No probability exists that the result of the trial would have been different (had the defense objected to the identifications).” That decision sent Braseel back to the prison cell where he sits today at the Bledsoe County Correctional Complex in Pikeville, Tenn. His appeals at the state level ran out in March when the Tennessee Supreme Court declined to hear his case.........Braseel’s latest attorney, Alex Little, hopes to file a petition in federal court by the end of the month. Just persuading a judge to hear that plea won’t be easy, as such hearings typically deal only with death-penalty cases or clear questions of constitutional rights."

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