Bar News - October 14, 2011
High Court to Hear NH Eyewitness ID Case
By: Kristen Senz
On Nov. 2, a New Hampshire criminal case will be argued before the US Supreme Court. It’s been more than 30 years since a New Hampshire attorney argued a criminal appeal at the US Supreme Court and about as long since the US Supreme Court addressed the inherent risk of misidentification by eyewitnesses to crime.
High Court Orders Rehearing
in 2nd NH Criminal Case
When the US Supreme Court granted a writ of certiorari early last year in the case of Anthony Dilboy v. New Hampshire, it marked the first time in more than three decades that the High Court accepted a criminal case from the Granite State.
Rather than ordering briefs and oral arguments, however, the court ruled on a similar case out of New Mexico, Bullcoming v. New Mexico, at about the same time. Citing Bullcoming, the court then vacated a decision of the NH Supreme Court, where it remanded the Dilboy case for further proceedings.
The defendant, Anthony Dilboy, was convicted of two counts of manslaughter and two alternative counts of negligent homicide stemming from a fatal automobile crash in Dover in March 2006.
The defense argued on appeal that the trial court erroneously admitted toxicology evidence in violation of the federal Confrontation Clause of the Sixth Amendment to the US Constitution. Instead of calling the forensic lab analyst who conducted the blood tests, the analyst’s supervisor testified.
The NH Supreme Court sided with the state, finding that the supervisor, in addition to conveying the results, also conveyed his independent expert opinion on Dilboy’s blood tests, and thus had not violated the Confrontation Clause.
Following the remand, the NH Supreme Court is preparing to rehear the case and has solicited briefs to address the impact of the New Mexico case. The defense brief was due in early October, and the state will have about six weeks after that to respond.
"It’s like Perry, in that the Supreme Court granted our certiorari petition," NH Deputy Chief Appellate Defender David Rothstein said, "but unlike it in that it did not order briefing or oral argument." NH Assistant Appellate defender Stephanie Hausman represented Dilboy on appeal, with Rothstein also working on the case. Assistant Attorney General Nicolas Cort and Attorney General Michael Delaney represented the state.
Attorneys from the New Hampshire Attorney General’s Office, New Hampshire Public Defenders and New Hampshire Appellate Defenders spent hundreds of hours preparing briefs to get to this point. In the weeks leading up to oral argument day, they will be spending many more hours polishing arguments and anticipating the questions that will be directed at them by the Supreme Court in Barion Perry v. New Hampshire.
"Because it’s the Supreme Court, there’s a special premium on making sure you’re doing the highest-quality work," said David Rothstein, deputy chief appellate defender, who will join public defender and lead counsel Richard Guerriero in presenting oral arguments to the high court.
The petitioners are asking the court to rule on whether trial courts have a duty to determine the reliability of eyewitness identifications made under suggestive circumstances, regardless of whether those circumstances were orchestrated by law enforcement.
"We filed this petition because we believe there is a split at the state and federal courts regarding the significance of state action," Rothstein said. The NH Supreme Court affirmed the conviction in a Nov. 18 decision decided without oral argument.
In the early morning of Aug. 15, 2008, residents of an apartment building in Nashua reported seeing a tall African-American man looking into cars in the parking lot. When police officer Nicole Clay arrived to investigate, she saw Barion Perry, now 32, of Nashua, carrying two amplifiers, which he claimed he found on the ground and was "just moving them."
Meanwhile, Nubia Blandon, whose husband, Joffre Ullon, made the initial report, had been watching the activity in the parking lot for some time from a window in her fourth-floor apartment.
Another officer arrived and stayed with Perry in the parking lot while officer Clay went upstairs to talk to Blandon and Ullon. In the doorway of her apartment, Blandon told Clay she had seen a tall African-American man circle her neighbor’s car and remove stereo equipment from the trunk. When Clay asked for a more specific description of the man, Blandon pointed toward the window and said it was the man who was standing with the other officer outside. Ullon, who had seen someone in the parking lot peering into cars but not the actual theft, said the same thing. Police arrested Perry and found him in possession of other property from the victim’s vehicle.
Later, when police showed the witnesses a photo array that included a picture of Perry, Blandon couldn’t pick him out. Ullon identified Perry right away.
At a hearing on a motion to suppress Blandon’s out-of-court identification, Perry’s attorney argued that because the circumstances were suggestive — she identified him from a window while he was standing in a dark parking lot next to a police officer — the court should determine the reliability of the evidence before allowing it at trial, even though the police did not act improperly. A Hillsborough County Superior Court judge denied the motion.
After a July 2009 jury trial, Perry was acquitted of a criminal mischief charge for breaking into the car but convicted of felony theft. Because of prior convictions, he received an enhanced penalty of 3 to 10 years in New Hampshire State Prison.
"The key issue was the identification of Mr. Perry by the witness who claimed to have seen him commit the theft," said Guerriero, the public defender who wrote the 36-page brief to the US Supreme Court after the case was accepted this spring.
The NH Supreme Court upheld Perry’s conviction on appeal, citing its decision in State v. Addison, the capital murder case that raised a similar issue last year.
In criminal cases that involve suggestive identification procedures created by law enforcement, such as those in which the officer conducting a lineup knows the identity of the suspect, the courts are required to conduct what’s known as a Biggers analysis to determine the factual reliability of the identification. Named for the 1972 case of Neil v. Biggers, the two-step reliability analysis is meant to protect a defendant’s right to due process under the Fourteenth Amendment of the US Constitution.
NH Attorney General Michael Delaney will argue to the US Supreme Court on Nov. 2 that state action is a necessary prerequisite for the reliability analysis. In the state’s brief to the court, Delaney, Senior Assistant Attorneys General Susan McGinnis and Stephen Fuller, who is listed as counsel of record, and Assistant Attorney General Tom Bocian argue that Perry’s attorney was able to and did cross-examine Blandon during the trial, and that it’s the jury’s job to determine whether the evidence presented is reliable.
The decision in Perry "will tell all of the lower courts how the due process clause applies to an identification where the police didn’t orchestrate the identification procedure," Fuller said.
The U.S. Solicitor General’s Office, which will split the state’s oral argument time, in an amicus brief argues that supporting Perry’s position would have sweeping implications for the nation’s criminal justice system.
"Petitioner’s proposed approach would exact a substantial societal cost by excluding relevant and probative evidence in criminal trials, would take away the jury’s crucial role in finding facts in our adversary system, and would invite criminal defendants to bring freestanding due process challenges to all sorts of potentially unreliable evidence," the Solicitor General wrote.
Perry’s lawyers disagree. "We don’t think it would cause any kind of sea change in the criminal justice system," Rothstein said.
Eyewitness misidentification is by far the leading cause of wrongful conviction in America. The US Supreme Court recognized in a series of cases from 1967 to 1977 that "eyewitness identification evidence is uniquely susceptible to influence, prone to error and resistant to correction through the normal criminal trial process," according to Guerriero’s brief.
Georgia’s recent execution of Troy Davis, whose case was fraught with suspicious identification evidence, forced public scrutiny on the issue, and a recent New Jersey Supreme Court decision highlighted the need for clarification. The New Jersey Supreme Court ruled in State v. Henderson that the Biggers analysis "does not offer an adequate measure for reliability or sufficiently deter inappropriate police conduct. It also overstates the jury’s inherent ability to evaluate evidence offered by eyewitnesses who honestly believe their testimony is accurate."
In Perry v. New Hampshire, the US Supreme Court will be asked to weigh these considerations against the possibility that excluding identification evidence could allow the guilty to go free.
For the petitioners, preparing the US Supreme Court brief for Perry in 60 days was "just a monstrous task," Rothstein said. It was a team effort by lead counsel Guerriero, Rothstein, and appellate defender Heather Ward. Public defenders Alex Parsons, Chief Appellate Defender Chris Johnson and appellate defender Lisa Wolford also worked on the case.
During oral arguments, each side will have 30 minutes to argue their case to the court, while the justices interrupt with questions.
"The court asks a lot of questions, so you’re lucky to talk for one or two minutes without being interrupted," Rothstein said.
To prepare their argument, the Appellate Defender’s Office will conduct a series of closed-door moot court practice sessions throughout October. The appellate defenders are inviting attorneys and others to assume the role of Supreme Court Justices and pose challenging questions. Rothstein described these moot court practice sessions as "intense" and said the focus is on giving the attorneys an opportunity to refine their answers to anticipated questions from the Justices.
If the court finds in favor of Perry, the decision would probably not set him free or necessarily result in a new trial, Rothstein said.
"It would depend on the scope of their opinion, in terms of the impact of the ruling," he said. A ruling in Perry’s favor would, "in all likelihood, result in the case coming back for further proceedings in the NH Supreme Court."
A criminal case from New Hampshire making its way to the US Supreme Court for oral arguments is a highly infrequent occurrence. Rothstein said the last case he is aware of was Coolidge v. New Hampshire, decided in 1971.
"Even as an appellate attorney who has been doing this for a long time, it’s not really something you can ever count on happening," Rothstein said about the opportunity to argue before the US Supreme Court. "A lot of things have to line up."
Since early 2010, however, the High Court has granted two petitions for writ of certiorari in New Hampshire cases, including Perry. The other case is Anthony Dilboy v. New Hampshire, which resulted in the US Supreme Court vacating a New Hampshire Supreme Court decision (see sidebar).
The US Supreme Court receives thousands of petitions for writ of certiorari each year and grants about 100. For Guerriero, the lead defense attorney in the Perry case, having two cases from New Hampshire accepted in a short timeframe is a good sign for the future.
"From our perspective, these cases show that review of criminal cases from the New Hampshire Supreme Court is a practical possibility," he said. "In the past, no one could remember a case being reviewed by the US Supreme Court, so it did not seem like a realistic option. Now, we see review by the Supreme Court as a remedy, which we will pursue in the future if the need arises."
For further information, please see the Bar's Barion Perry v. State of New Hampshire web page, updated regularly with links to pleadings and coverage of the case.