Tainted identifications lead to new trial

Yesterday, the Oregon Court of Appeals threw out the first-degree robbery, burglary and other assorted convictions of Jose Delatorre-Vargas on the ground that the police used suggestive procedures when seeking to have two of the crime victims identify the perpetrator.

In December of 2006, two pharmacy employees were robbed at gunpoint of cash and narcotic medications by two masked gunmen. Obviously, only vague physical descriptions of their assailants could be given to the police. One of the victims, however, noted that one of the robbers had a very distinct "high-pitched" voice.

In February 0f 2007 police had a suspect in custody who was being questioned in connection with different robberies in a different county. SHAZAM!!! the light bulb in the detective's head went off. This guy, Mr. Delatorre-Vargas, also had a high pitched voice...Hmmm.

Taking a recording of Mr. Delatorre-Vargas' interrogation to one of the victims in the pharmacy robbery, the detective played what he characterized as "an innocuous portion" thereof for him... "Bingo!" according to the victim the police had their high-pitched man.

The detective then procured five black and white photos. One photo was of the Mr. Delatorre-Vargas; described as a Hispanic man with a mustache. The other four photos were of unknown persons - none of whom looked anything like Mr. Delatorre-Vargas, and none of whom had facial hair. The result was predictable. Mr. Delatorre-Vargas' photo was picked.

The Oregon Court of Appeals easily held under prior Oregon Supreme Court case law that both the voice and photo identification were unduly suggestive and needlessly departed from regular police practices to ensure against just such suggestiveness. (How it made it past the trial level is a darn good question.)

Ideally, a witness should be presented a range of similar choices in a completely neutral and unsuggestive manner. Here, in contrast, one photo stood out remarkably from the others - that of Mr. Delatorre-Vargas. The officer only played one voice, again that of Mr. Delatorre-Vargas. When questioned by the trial court, the detective could give no reason for this lapse in procedure.

Of note in the decision to lawyers however was a footnote in the case that remarked that even though the professed "certainty" of an eyewitness' identification of a suspect as the perpetrator has been repeatedly demonstrated to bear no rational relation to the actual accuracy of that identification - Oregon courts (including this one) still consider this factor in judging the "legal" reliability of an eyewitness identification.

Seems like someone on the Court of Appeals is trying to send a message to criminal defense attorneys to keep pushing for a reworking of Oregon's eyewitness identification laws and rules.


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