Back in action: On-going: Valentino Dixon: New York; Supreme legal analyst Jeffrey Toobin (one of my favourites HL) notes that "everything went wrong" in the Dixon case - including a terribly flawed eyewitness identification process..."By now we know the weaknesses of eyewitness identifications from old-fashioned lineups and photo arrays. According to a 2014 report from the National Academy of Sciences, the best way to conduct lineups (with photos or in person) is “double-blind”—that is, when neither the administrator nor the eyewitness knows who the suspect is. This reduces the chance for the police to offer non-verbal, or more explicit, clues about who the suspect is. This dubious photo array, certainly, should have been the basis for strong defense testimony during Dixon’s trial, but his attorney called no witnesses at all—which is astonishing, considering how many people were present when Jackson was killed. Dixon’s lawyer could have called a parade of witnesses who said they were at the scene and didn’t know who did the shooting—and that alone could have provided the jury with reasonable doubt. And this was especially true because the prosecution produced no motive and no physical evidence linking Dixon to the crime."

PASSAGE OF THE DAY: "The story of Dixon’s conviction and 27-year incarceration reads almost like a checklist of some of the major flaws in our system. Eyewitness misidentification: check. Prosecutorial blindness: check. Inadequate defense: check. Dixon was unfortunate, to put it mildly, in that all of these defects converged in his single case, but he was by no means unusual in suffering because of any one of them." 

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STORY: "Valentino Dixon's Case: Everything Went Wrong," by Jeffrey Toobin, published by Golf Digest on December 7, 2018. (Jeffrey  Toobin is a Golf Digest contributor and the chief legal analyst for CNN);

GIST: "The most extraordinary thing about the saga of Valentino Dixon is that it is not extraordinary at all. It is, of course, unusual and wonderful that Dixon developed his gift for sketching golf courses in prison—and that his talent drew the meticulous attention of Golf Digest’s Max Adler—but the specifics of the case look all too familiar. Dixon’s prosecution represents a textbook study in everything that can go wrong in the criminal-justice system—and, all too often, does. The story of Dixon’s conviction and 27-year incarceration reads almost like a checklist of some of the major flaws in our system. Eyewitness misidentification: check. Prosecutorial blindness: check. Inadequate defense: check. Dixon was unfortunate, to put it mildly, in that all of these defects converged in his single case, but he was by no means unusual in suffering because of any one of them. According to the National Registry of Exonerations, exposing these kinds of errors (and plenty of others) has freed more than 800 prisoners since 2013. The murder of Torriano Jackson on a hot August night in 1991 would have been difficult to solve in the best of circumstances. A crowd of 70 or so people had gathered. There was a brawl. The grappling turned to shooting. More than two dozen shots. Shell casings from three different guns on the ground. A dead body. Who did it?  Police seized on Dixon as a suspect, and why not? He was out on bail after pleading guilty to a weapons charge. So hours after the shooting, the police arrested him. Three eyewitnesses said Dixon did it. Case closed, right? But the weaknesses in the case—huge ones—quickly became apparent. LaMarr Scott told the local media and then the police that he had committed the murder, not Dixon. Scott even offered to take a polygraph, but the criminal-justice personnel turned him down. They had their man: Dixon. In time, Scott would recant his confession, but his words alone established more than reasonable doubt about Dixon’s guilt. What should have happened? By now we know the weaknesses of eyewitness identifications from old-fashioned lineups and photo arrays. According to a 2014 report from the National Academy of Sciences, the best way to conduct lineups (with photos or in person) is “double-blind”—that is, when neither the administrator nor the eyewitness knows who the suspect is. This reduces the chance for the police to offer non-verbal, or more explicit, clues about who the suspect is. This dubious photo array, certainly, should have been the basis for strong defense testimony during Dixon’s trial, but his attorney called no witnesses at all—which is astonishing, considering how many people were present when Jackson was killed. Dixon’s lawyer could have called a parade of witnesses who said they were at the scene and didn’t know who did the shooting—and that alone could have provided the jury with reasonable doubt. And this was especially true because the prosecution produced no motive and no physical evidence linking Dixon to the crime. Above all, though, the responsibility for miscarriages of justice falls on police and prosecutors—who failed abysmally in Dixon’s case. Scott’s confession should have been the tipoff that something was wrong with the case against Dixon, but law enforcement doubled down and—this is rare—charged two witnesses, who backed Scott’s confession, with perjury. The charges made the pair nearly useless as defense witnesses, which might well have been the real justification for prosecuting them in the first place. The way the case unfolded gives every indication that law enforcement made up its collective mind from moments after the shooting and then tried to shoehorn all of the evidence into a believable narrative of Dixon’s guilt. This sort of bullheadedness, the refusal to test one’s own assumptions and conclusions, is a cancer in our system. And it’s impossible to look at the story of Valentino Dixon without seeing the unending theme of American justice—and that’s race. Dixon is African-American, and virtually every other person involved in the case was white, and that includes the police chief, prosecutor, trial judge, defense attorney and all 12 members of the jury that convicted him. Dixon recently retained lawyers, and they plan to bring two civil cases against the city of Buffalo and the state based on New York’s Unjust Imprisonment Act; juries in these cases have awarded more than $1 million for each year of wrongful imprisonment. Still, Valentino Dixon’s case will always be a reminder of what happens to a black man facing a white man’s rigged system of justice—that, alas, turns out to be par for the course."

The entire story can be read at:

https://www.golfdigest.com/story/valentino-dixons-case-everything-went-wrong

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See earlier post of this Blog  - October 5, 2014) - at the link below on the need to take a scientific approach to eyewitness identification: "Eye-witness identification: Time Magazine goes "Behind the messy science of police lineups," after a National Academy of Science report " recommends sweeping changes as to how police department conduct lineups as researchers remain at odds."

STORY: "Behind the messy science of police lineups,"  by reporter Josh Sanburn, published by Time Magazine  on October 3, 2014.

SUB-HEADING: "A National Academy of Sciences report  recommends sweeping changes as to how police department  conduct lineups as researchers remain at odds."

SUB-HEADING:  "In 1984, Thomas Haynesworth—an 18-year-old resident of Richmond, Va.—was accused of rape by five women, one of whom had identified Haynesworth by spotting him on the street. Later, four other victims picked his face out of a police lineup. That was the man who raped them, they said. One of them even told the jury, “He had a face I couldn’t forget. Haynesworth was convicted in three of the attacks and sentenced to 74 years in prison. But he was innocent."

GIST:  "According to the Innocence Project, eyewitness misidentification has been a factor in 72% of convictions that have been overturned by DNA testing. The National Registry of Exonerations, which works in conjunction with the University of Michigan, traces 507 of the 1,434 exonerations back to mistaken witness identification. But according to researchers, many police departments don’t know the underlying problems associated with troublesome lineups, don’t have the resources to conduct better ones, or are confused as to the best way to go about them. On Thursday, the National Academy of Sciences, a non-profit organization of experts and academics around the U.S., released the first comprehensive report to review decades of literature on lineups while offering sweeping recommendations on how they should be conducted, including ensuring that those administering them are not aware of the suspect’s identity, developing standard instructions for witnesses so as to not bias their pick, videotaping the ID process and recording confidence statements from witnesses at the time of an identification. “Eyewitnesses that lead to erroneous convictions are very disturbing,” says Tom Albright, a professor at the Salk Institute for Biological Studies, who co-chaired the committee. “It’s bad for society if the bad guys go free, and it undermines the criminal justice system, which is a serious long-term problem potentially.”".........The NAS recommendations steer clear of the back-and-forth entirely. But most lineups researchers praised the report’s findings overall, including Wells. “This is a huge shot in the arm,” Wells ( Gary Wells, an Iowa State University professor who has been the leading researcher on lineups for years) says. “It’s a ringing endorsement of the science. And now we have the task of bridging the gap between the science and the legal system.”"

The entire story can be found at: "

http://time.com/3461043/police-lineups-eyewitness-science/

The National Academy of Science release: "A new report from the National Research Council recommends best practices that law enforcement agencies and courts should follow to improve the likelihood that eyewitness identifications used in criminal cases will be accurate. Science has provided an increasingly clear picture of the inherent limits in human visual perception and memory that can lead to errors, as well as the ways unintentional cues during law enforcement processes can compromise eyewitness identifications, the report says. “Human visual perception and memory are changeable, the ability to recognize individuals is imperfect, and policies governing law enforcement procedures are not standard -- and any of these limitations can produce mistaken identifications with serious consequences,” said Thomas Albright, director of the Vision Center Laboratory at the Salk Institute for Biological Studies and co-chair of the committee that wrote the report.  The report focuses on identifications of strangers rather than of family members or others well-known to the witness. Problems with eyewitness identifications have long been documented, and many of the cases in which DNA evidence later exonerated an innocent person involved at least one mistaken eyewitness. Research in recent decades has revealed many factors that can lead to such mistaken identifications, the report says. Conditions during the commission of the crime such as dim lighting, brief viewing times, stress, or the presence of a visually distracting element such as a gun or knife can influence people’s perceptions. Gaps in sensory input are filled by expectations that are based on an individual’s prior experiences with the world, which can bias perceptions. Studies also have shown that eyewitnesses are more likely to make mistakes when making an identification among people of another race rather than when making an identification of a person from the eyewitness’s own race. In addition, memory is often an unfaithful record of what was perceived through sight; people’s memories are continuously evolving. As memories are processed, encoded, stored, and retrieved, many factors can compromise their fidelity to actual events. Although the individual may be unaware of it, memories are forgotten, reconstructed, updated, and distorted."
http://smithforensic.blogspot.com/2014/10/eye-witness-identification-time.html

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Read National Registry of Exonerations entry  - by masterful scribe Maurice Possley - at the link below: "At about 1 a.m. on August 10, 1991, nearly 100 people were hanging out at the intersection of East Delevan and Bailey Avenues near Louie’s Texas Red Hots in Buffalo, New York, when a fistfight broke out.

Two brothers, 17-year-old Torriano Jackson and 20-year-old Aaron Jackson, were atop 19-year-old Mario Jarmon, kicking and punching him, when someone yelled, “Watch out, he’s got a gun!” As people scattered, more than two dozen gunshots rang out.

When the shooting stopped and people began to return to the intersection, Torriano Jackson was dead. Aaron Jackson and Jarmon were wounded. A bystander, 17-year-old John Sullivan, suffered a graze wound on his leg.

Police collected 27 nine-millimeter shell casings, one .22 caliber casing, one .32 caliber casing, and two guns—a .32-caliber pistol and a .22-caliber pistol.

Not long after, police said an anonymous caller said the shooting was the culmination of a feud over a girl named Heather Smith, who had dated one of the Jackson brothers and 21-year-old Valentino Dixon.

Sullivan, who was a friend of Torriano Jackson, viewed a photographic lineup and identified the gunman as someone he knew as “Tino.” Sullivan said he saw the gunman stand over Torriano Jackson and fire at least five shots at the prone and already wounded Jackson.

Less than 10 hours after the shooting, police arrested Dixon at Jarmon’s house, just a couple of blocks away from the shooting.

Dixon was subsequently identified in photographic lineups by Sullivan, Aaron Jackson, and a bystander, Emile Adams. Dixon was charged with the murder of Torriano Jackson, the attempted murder of Aaron Jackson, the assault of Sullivan, and criminal possession of a weapon.

At the time, Dixon was out on bail awaiting sentencing after he pled guilty in June 1991 to two drive-by shootings—one in April 1990 that injured no one, and another in November 1990 that left one man slightly wounded.

Police interviewed Mario Jarmon at the hospital. He said Torriano Jackson shot him. Two other witnesses, including Dixon’s half-brother, Leonard Brown, said the gunman was 19-year-old Lamarr Scott.

Three days later, a Buffalo television station reported that someone else had confessed on videotape to being the gunman. The station did not identify him, but police quickly learned the man was Scott. At the time, police believed that Dixon was a drug dealer and that Scott worked as his bodyguard. Detectives interviewed Scott, who said that he shot the Jackson brothers after they began shooting at his friend Jarmon. Scott offered to take a polygraph test. That offer was rejected and police discounted Scott’s confession.

Witnesses described the gunman as six feet tall and more than 170 pounds (some said the gunman was heavy-set). Scott was just over six feet tall and about 200 pounds. Dixon was 5 feet, 7 inches tall and about 130 pounds.

Police interviewed Heather Smith, who said that she was a close friend of Aaron Jackson. Asked about Dixon, Smith said, “I never heard of him.”

The Erie County District Attorney’s Office presented evidence to a grand jury. Among the witnesses called were Scott, Jarmon, and Brown. Scott recanted his earlier confession and implicated Dixon as the gunman. Brown and Jarmon, however, told the grand jury that Scott was the gunman.

As a result, Jarmon and Brown were charged with perjury.

In August 1991, Dixon was sentenced to 3 1/3 to 10 years in prison for the two shootings to which he previously pled guilty.

Dixon went to trial in June 1992 in Erie County Supreme Court. The prosecution’s evidence consisted largely of the testimony of Sullivan, Aaron Jackson, and Adams—all of whom identified Dixon as the gunman—although the physical descriptions they gave right after the shooting fit Scott, not Dixon.

Sullivan, who was facing a rape charge at the time of the trial, admitted that he was a friend of Torriano Jackson and that the shooting occurred after he had spent the day drinking beer, snorting cocaine, and smoking marijuana. He estimated that he was 100 to 150 yards away when he saw Dixon firing his weapon.

Adams testified he saw two people walking toward the brawl involving the Jackson brothers and Jarmon. He said Dixon was the shooter, although he admitted that at the time, he said the gunman was “heavyset” and that Dixon was not heavyset.

Aaron Jackson testified that just before the shots were fired, he and Torriano had Jarmon on the pavement and were beating him. He first told police that he didn’t know who the gunman was. When he was shown a photographic array that included Dixon, he said he couldn’t be sure if Dixon was the gunman because “it happened so fast.” At the trial, however, Jackson identified Dixon as the gunman. Confronted with his prior statements, he said, “My memory gets better with time.”

On June 12, 1992, the jury convicted Dixon of second-degree murder, attempted murder, assault, and criminal possession of a weapon. He was sentenced to 38 1/3 years to life in prison.

Later that year, Jarmon and Brown were convicted of perjury. Jarmon was sentenced to 2½ to seven years in prison. Brown was sentenced to 2½ to five years in prison.

In April 1995, the Appellate Division of the New York Supreme Court upheld Dixon’s convictions on appeal.

In 2003, Dixon moved for new trial. The motion said that Adams had recanted his identification of Dixon as the gunman, saying the police threatened to charge him with perjury unless he falsely identified Dixon. The motion also cited Scott’s admission that he was the gunman as well as the testimony of Michael Bland, who initially told police he didn’t see who had the gun, but now claimed it was Scott.

The motion said three other witnesses had been located who identified Scott as the gunman. One of those witnesses said that after the shooting, Scott came to her home to hide and admitted that he was the gunman.

In July 2004, the Buffalo News published an in-depth investigation of the case. Scott confessed to the newspaper that he was the gunman. Scott said that he and Dixon had driven to Jarmon’s home and they walked to the intersection to hang out. When they saw the fight between the Jacksons and Jarmon, Scott said he went back to Jarmon’s home, retrieved the TEC-9, and came back. He said he got the gun for self-defense and that Torriano Jackson opened fire at him, so he shot back.

“I shot back in self-defense, yes,” Scott told the newspaper. “After that, I ran down the street, and I threw the gun. I went home. That was it….Because (Torriano Jackson)…opened fire on us, I emptied the clip.” Scott was in prison by then. In November 1993, he had robbed a group of teenagers and shot one in the face, leaving him a quadriplegic. Scott was convicted of attempted murder and sentenced to 25 to 50 years in prison.

A month later, in August 2004, Dixon’s motion for a new trial was denied. He was denied permission to appeal.

In September 2004, after Dixon’s family gathered more than 800 signatures on a petition asking for a new trial, Erie County District Attorney Frank Clark said his office would review the case to determine if a miscarriage of justice had occurred. Nothing came of the review.

In 2005, Dixon filed a federal petition for a writ of habeas corpus. More witnesses had come forward saying either that Scott was the gunman or that Dixon was not the gunman. The results of two polygraph examinations also were filed. The examiner said Dixon was truthful when he denied being the gunman or telling Scott to falsely confess to the shooting. Antoine Shannon, Dixon’s half-brother, was found to be truthful when he said Scott was the gunman.

The petition was denied in 2009.

In July 2012, Golf Digest magazine published an article that showcased Dixon’s pastel pencil sketches of golf courses. Dixon, who had dropped out of Buffalo Academy for the Visual and Performing Arts to pursue drug dealing, said he had never played a round of golf, but hoped one day to do so.

In 2017, Dixon applied for a gubernatorial pardon, but no action was ever taken on the request.

In May 2018, Dixon’s attorney, Donald Thompson, filed another post-conviction petition seeking a new trial. By that time, Dixon was the subject of two investigative reports that asserted he was innocent. The Golf Channel had followed up the Golf Digest article with a program highlighting the statements of witnesses who said that Scott was the gunman. In addition, students from the Georgetown University Law’s Prisons and Justice Initiative, under the direction of Professor Martin Tankleff, who was exonerated in 2008 of a murder he did not commit, reinvestigated Dixon’s case and created a video documentary containing interviews with more witnesses who said Dixon was not the gunman.

Not long after, Erie County District Attorney John Flynn agreed that the office’s conviction integrity unit would review the case. After interviewing 30 witnesses, including 12 who either identified Scott as the gunman or said Dixon was not the gunman, as well as Scott, who continued to assert he was the gunman, the prosecution agreed that Dixon’s conviction should be vacated.

On September 19, 2018, Scott pled guilty to manslaughter in return for a sentence that would run concurrently with the 25 to 50 year sentence he was serving. That same day, Dixon’s convictions for second-degree murder, attempted murder, and assault were vacated and the prosecution dismissed the charges. The conviction for criminal possession of a weapon remained intact because the TEC-9 that Scott said he used in the shooting belonged to Dixon.

Dixon was then released from prison more than 27 years after his arrest in 1991.

http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5379

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher; The Charles Smith Blog;