Coming to America: Escaping Tyranny Like Our Forefathers

america_and_apple_pieTo be an American is to be a Muslim, a Catholic, a Jew, a Serb, a Croatian, black, white, Chinese, American Indian, and every person of every other religion, ethnicity and national origin who fled to America to escape persecution, tyranny and oppression and for the opportunity to live a life of freedom. We should never forget where we came from nor seek to exclude others who want what we all want as Americans.

His name was Sava, a Serbian boy raised in the Serbian Orthodox Church. Her name was Bozana, a Croatian who was raised Roman Catholic. They lived in small villages separated by a short distance from one another in the now former Yugoslavia. She agreed to marry him on the condition that they get married in the Catholic church and in exchange she would raise their children Serbian Orthodox. The Catholic priest told Bozana he would only marry them if she promised to raise their children as Catholics and she agreed. Despite her promise to the priest, all three of their daughters were baptized and raised Serbian Orthodox. She was strong-willed and while she was a woman of faith she was also dedicated to her husband and would not diminish his faith for her own.

Sava was a train engineer, gone for days at a time, driving passenger trains across Europe. Bozana stayed at home to raise the children. They didn’t have much money but they had what they needed. Life was good. Then the Second World War erupted and they would fight to survive in their own country. Not just against foreign invaders but also against their own people. Once united, families, neighbors and villages were torn apart by religion and nationalism.

Seeing an opportunity for an independent Croatia, Ante Pavelic’s Ustase allied with the Nazis and launched a genocidal campaign against Serbs, Jews and Gypsies. Curfews were imposed. Signs were posted warning that Serbs, Gypsies and dogs were not allowed on the streets after a certain time. Serbian Orthodox churches were destroyed. Serbian Orthodox priests who traditionally wore beards, were tortured and killed. They were forced to dig their own graves, their beards were torn from their faces and they were disemboweled and buried alive in the graves they dug to die agonizing deaths. Entire Serb villages were destroyed. Men and boys were taken from their homes, lined up, shot and buried in shallow graves. Some were thrown into deep wells. Some were beheaded with saws. Serbs were sent in droves to concentration camps where they were tortured and killed by the Ustase. Savagery and cruelty was boundless.

This wasn’t the first time the Balkans fell under the boot heels of barbarians. On June 28, 1389, the Serbs fought the Turks on the Field of Blackbirds in Kosovo. They lost but it was a battle for freedom, not the first and certainly not the last. It was an uprising. They endured 500 years of savage Turkish rule and the regime’s policy of “kill a third, convert a third (to Islam), and expel a third.” The Second World War brought barbarism and death back to the Balkans. Yad Vashem, the Israeli organization dedicated to education, research and documentation and commemoration of the Holocaust, estimates over 500,000 Serbs were murdered, 250,000 expelled and 200,000 forcibly converted to Catholicism.

One night, a Croatian woman came to Sava and Bozana’s house to warn them that the Ustase were coming for Sava, allowing Sava to escape certain execution. They were told later that the woman was tortured by the Ustase in an effort to find out where Sava was hiding. Sava and Bozana suffered during the war and the years that followed. Food was scarce. Bozana exchanged her wedding ring for a sack of flour so she could feed the children. Their middle daughter died of blood poisoning when she was nine years old because doctors and medicine were in short supply. They lost everything. Their country was broken and they had nowhere to go.

Slavko was nine years old when the Ustase came to his village and murdered his father. When he was fourteen he picked up a rifle and joined the Cetniks, the Serbian nationalist guerrilla force that formed to fight against the Nazis and the Ustase. He was shot twice and endured unimaginable conditions. After the war, Slavko spent a year in a displaced persons camp in Italy and then found his way to London where he worked in a textile factory for the next fourteen years.

Sava’s and Bozana’s oldest daughter, Nada, moved to London and she and Slavko married. After five years in London, they moved to Waukegan, Illinois where Slavko worked in a boat factory and for a company that built fences. Nada worked as a cook at a nearby college. Eventually they moved to Las Vegas, Nevada where they managed a motel for the husband of a close friend from Yugoslavia. Slavko worked at the motel as a handyman and went to what is now UNLV while Nada worked as the front desk clerk. Slavko graduated with a degree in accounting at the age of forty-two and went to work for the IRS. Nada continued to work for her friend’s husband as a bookkeeper.

Shortly after moving to the United States, Nada brought her sister, Boba, over to Waukegan and then to Las Vegas. Boba was married for a short time and divorced shortly after her son was born. Working two jobs to support herself and her son — working the counter at a drug store by day and at night working as a waitress in the steakhouse of the newly built Hilton Hotel — she had no choice but to send her son to live with her parents, Sava and Bozana, in Zemun, a city across the Sava and Danube Rivers from Belgrade. Boba gave her son an American name because she wanted him to be an American and enjoy all the privileges of being an American. She was afraid that he would be deprived of certain opportunities if she gave him a Serbian name. Her son was baptized in the Serbian Orthodox Church and his first language was Serbo-Croatian. Boba’s son lived in Zemun with his grandparents until he was five years old, when it was time for him to start school.

Sava and Bozana flew to the United States with Boba’s son so he could start school. They returned to Yugoslavia briefly to sell their belongings and then moved to the United States permanently. At the age of 65, Bozana took a job as a hotel maid at the Tropicana Hotel where she worked for the next ten years and everyday she outworked the other maids who were many years her junior. Sava went to work with Nada at the motel as a handyman. There wasn’t anything he couldn’t make or fix. They lived with Slavko and Nada but they worked because they wanted to be useful and feel like they were contributing, not because they had to.

Nada, Slavko and Boba became American citizens. They voted. They stood up for their adopted country when others criticized America. Sava and Bozana tried to become citizens but English was difficult to learn at their age and they weren’t able to pass the test. Regardless, they were all proud Americans, grateful for the opportunities and the life this country gave them.

In 1991, war broke out in the Balkans as Yugoslavia tore itself apart from the inside. Old wounds were reopened and people were once again killed in the name of nationalism – Serb against Croat against Muslim. The Serbs were vilified. The atrocities committed by the Croats against the Serbs forty years earlier were forgotten. The Bosnian Muslims were seen as innocent victims. The reality is that there were many innocent victims on all sides and atrocities were committed on all sides by Serbs, Croats and Muslims but for whatever reason, the media or politics or whatever other interests existed at the time, a new boogeyman was needed and the Serbs were it. Bozana was grateful that Sava, who died nine years earlier, wasn’t alive to see what was happening to Yugoslavia all over again.

This is my family. Sava and Bozana were my grandparents, Slavko and Nada were my aunt and uncle. They’re all gone now. My mother, Boba, and I are the last of the herd. We mainly spoke Serbo-Croatian in the house because of my grandparents. I grew up eating Serbian food and celebrating Serbian traditions and customs. I grew up playing soccer, not football. I was and still am very proud of my culture. I am an American and I am a Serb. Does it make me, or my family, any less American because we spoke a different language at home and celebrated foreign customs? Because we belong to one of the oldest Christian religions in the world that most people have never heard of? (We don’t speak in tongues, play with snakes or sacrifice virgins.) There is no doubt in my mind that the rhetoric of fear and xenophobia that has overtaken American politics and inflamed the passions and latent prejudices of so many Americans that many would say that neither I nor my family are real Americans. As if any one group has the exclusive right to that claim.

Why tell you my family’s story? My family’s story is just one of millions of other stories; yet, it’s no different than so many other immigrants’ stories. Because I look like any other white American. Because seeing my last name you would never question where I’m from or how I got here. If my name was Marko Kosic (my baptismal name and my grandfather’s last name) the story would be quite different. One of my dearest friends is a Muslim. Unlike mine, his name betrays his ethnicity. He was born in Pakistan and raised in Dubai but he’s as American as hot dogs and apple pie. Or sushi and burritos. That’s American, too. He’s a lawyer, like me. We both love fountain pens and watches. We both love nice clothes and food and travel. The only difference between us is he’s Muslim and I’m Serbian Orthodox. We’re both men, fathers and husbands and all he wants for his life and his children is no different than what I want for mine. Why is his right to be here less than mine? Or yours?

On a side note, my mother sent me to a Hebrew school from the 6th through the 8th grade because the middle schools in Las Vegas were so bad at the time. I learned to read, write and speak some Hebrew. I went to temple with the Jewish kids on Fridays. I learned about Jewish history and the centuries of hardship they endured as a people. And you know what I found to be different about the Jews? Nothing. They were just like me and my people, with a beautiful religion and meaningful traditions. They have the same hopes and dreams we all do. My oldest friend is Jewish. Apart from our religions, we are more alike than different.

Second side note: My wife and stepchildren, who I love and treat as if they were my own, are Mexican. Mexicans are as much a part of the American fabric as any other people, whether they are here legally or not. Recently I heard a sound clip on the news from some halfwit yelling at a group of Latinos, “Go back to Mexico! I’m an American! I am a proud American! Go make my burrito, bitch! I love Trump!” and it saddened me that this prime specimen of mental deficiency, devoid of compassion, survived outside of the womb. This is, regrettably, not an isolated sentiment.

It defies comprehension and common human decency when politicians and their supporters say that Muslims shouldn’t be allowed to enter the United States. Unfortunately, there are entire colonies of these idiots throughout the United States. The politics of the dolts who promote such idiocy, Republican or Democrat, doesn’t matter. This is not a question of politics but a matter of compassion for the human condition. I have no doubt if my grandparents could have fled the war in Yugoslavia for America’s shores and entered illegally, they would have, just as so many flee Syria and other Muslim countries that have fallen into chaos and genocide. Just as those who flee poverty and violent drug cartels in Mexico and other Latin American countries. Of course, there is bad in every lot but most of the people America’s fear mongers seek to expel or exclude are people who are no different than the rest of us. They’re not murderers, rapists, drug dealers or Muslim terrorists looking to do harm to America. Those Americans who believe that only Americans are entitled to peace, freedom and opportunity do not exemplify the beliefs upon which America was founded and bring nothing but shame to the rest of us.

My Muslim friend is subjected to incessant hostility towards Muslims and fears for what lies in store for his two beautiful children who were born in the United States. Who of us can imagine that fear? During the Balkan War of the 1990’s, I can’t count how many times, after finding out my background, people made ignorant and thoughtless remarks about Serbs being rapists and murders and, by ethnicity and religion, I was seen no differently. “Oh, you’re one of the bad guys,” one moron said to me. Sadly, you can’t fix stupid but you can fight it.

To be an American is to be a Muslim, a Catholic, a Jew, a Serb, a Croatian, black, white, Chinese, American Indian, and every person of every other religion, ethnicity and national origin who fled to America to escape persecution, tyranny and oppression and for the opportunity to live a life of freedom. We should never forget where we came from nor seek to exclude others who want what we all want as Americans.

EXTRA! EXTRA! When the Press Gets to Your Client Before You Do

breaking newsIt’s Sunday evening. You’re sitting on the couch watching the news to catch up on the latest happenings and to see what’s going to be swirling around the criminal courthouse Monday morning. As a criminal defense lawyer you live the news everyday, defending clients charged with DWI, drug possession, robbery, murder and everything in between.

The “Breaking News” banner scrolls across the screen, giving notice of the latest case of humans behaving badly. The camera focuses on a somber-looking news anchor with an equally somber tone reserved for reporting on human tragedy — the well-practiced, standard-issue visage learned in journalism school and perfected on air after years of making countless similar nightly reports in a large violence prone city. It’s a triple murder. Two adults and their child. Just happened. Horrible scene. A field reporter is standing by at the county jail ready to report the gory details that will equally repulse and fascinate the viewing audience.

The field reporter, mimicking the same standard-issue somber look and tone as his colleague in the studio, looks into the camera and recites the gruesome details just learned from police.

And then you hear it.

“In an exclusive interview with Eyewitness News, the accused killer told Yours Truly his side of the story …”

Wait. What? You think you must have heard wrong. Then you see a splashy graphic with the accused killers own words in quotations scroll across the screen. Yup. You heard right, the accused killer talked to the reporter shortly after he was transported to the county jail. You shake your head and look over at your spouse who’s lived and breathed every one of your cases with you and who patiently listened to all your war stories and rants.

“Can they do that?” she asks.

“Can who do what?”

“The media. How can they talk to this guy at the jail?”

“Well, there’s no law against it. They’re not police or prosecutors so there’s nothing stopping them.”

“But why would his lawyer let him do that?”

“I’m sure he doesn’t have a lawyer yet. He probably hasn’t even been brought before a judge for probable cause. He won’t get a lawyer appointed to him until his first court appearance tomorrow.”

“Wow!”

“Yeah. Wow. It’s going to suck for the lawyer who catches that case. Nothing like your client shooting himself in the foot right out of the gate.”

The following morning on your drive to work, drinking the specially made Starbucks coffee you picked up at drive-thru because you’re too embarrassed for any other adult to hear you order it, you begin mentally preparing for another week of fighting prosecutors and judges and some unreasonable clients. You’re reminded of one client on the docket today. He has a lengthy criminal history and the last time he saw you he told you that you suck as a lawyer — actually, he called you a “bitch ass” lawyer and said if he had the money he’d hire a “free world” lawyer — because you couldn’t get his two aggravated robberies reduced to misdemeanors. Yeah, well, maybe his free world lawyer can file a motion to change the facts. As your mind wanders once again to thoughts of why the hell you’re doing this job, your ringing cell phone interrupts your thoughts.

You look at your telephone screen and see it is one of the district courts calling. You answer the call and the coordinator on the other side of the line says the judge told her to call you to ask if you can help out the court today and accept a new case. That’s code for “we have a shitty case and we’d like you to take it.”

“Sure. What kind of case?” you ask, girding for the response.

“It’s a bad one. Triple murder. Mom, dad and kid. It’s been in the news all weekend.”

“Ok, great. I’ll be there shortly.”

The previous night’s newscast rushes back to mind. You’re the poor bastard that just drew the black bean. Your client, whom you haven’t even met, has already talked to the press. Whatever small measure of peace you were enjoying before the telephone rang quickly evaporated, replaced by the stress of what you know is waiting for you at the courthouse.

You look back at your phone and make a call.

“Hi honey. Remember that story we watched on the news last night? Yep, that’s the one. Guess what …”

What the hell was this guy thinking, you ask yourself. Doesn’t he watch tv? Has he never watched a cop show? Law and Order has three different shows playing 24-hours a day on multiple channels. Doesn’t he know you don’t talk? Not to the police. Not to your cellmate. And sure as hell not to a reporter. NEVER. So what now?

Last month, in Houston, Texas, a television news reporter went to the Harris County jail on a Sunday and interviewed a man accused of killing three people and then broadcast his statements on the evening news. The reporter knew that the defendant didn’t have a lawyer, it was the weekend and a lawyer would not be appointed until Monday. He had to move quickly because even the most inexperienced lawyer knew enough to advise his client to not discuss his case with anyone.

In 2015, again in Houston, Texas, a newspaper reporter went to the Harris County jail and was given access to a defendant charged with murdering an entire family. The interview took place four days after the murders and two days after a very experienced lawyer was appointed to represent him. The defendant’s lawyer, immediately upon learning of the interview, filed a motion for the court to issue a gag order to preserve the defendant’s right to a fair trial by preventing pre-trial publicity and the judge signed the order. The newspaper responded with an indignant statement that it would continue to “aggressively report” on the case because the order violates the newspaper’s First Amendment right. Oh. Ok. When you put it that way, the right to sell papers with all the deliciously wicked details of the crime is far more important than an accused’s right to an impartial jury pool and a fair trial. Totally reasonable. Morons.

The media is a duplicitous, pompous ass creature, swollen with self-righteousness that will eagerly crucify police for violating citizens’ rights and prosecutors for wrongful convictions — guardians of truth, justice and the American way — and they have no compunction about eviscerating an accused’s defense with the same vigor in relentless pursuit of the almighty “story” under the protective cloak of the First Amendment.

But that is expected from the media. The modern world of the 24-hour news cycle and the ever increasing competition from self-professed lone wolf “journalists” armed with nothing more than a smart phone with a camera and a social media account, puts pressure on the media to be the first to publish. No media outlet wants to get scooped by some average Joe with an iPhone and a Twitter account. After a day or two of news coverage it’s on to the next story, the next incident of human depravity. The story that was so important moments earlier fades into the background as “old news” but the affect on your client and his case is permanent. The damage has been done. Your client’s statement is now in the ether, available for public consumption and the prosecutor’s case. You know the prosecutor is will use your client’s words against him like a loaded weapon that may just pay the freight for your client’s one-way ticket to the death.

THE REAL PROBLEM

The root of the problem in both of these scenarios is not the media, it’s the Harris County Sheriff. The Harris County Sheriff is the chief law enforcement officer over the Harris County jail. The Sheriff controls who can visit an inmate, when they can visit and the parameters of that visit. Visits are controlled by numerous rules, which one can find on the Harris County Sheriff’s Office website. The first thing visitors to the website are told is “Visitation is a privilege” and that it may be “denied, revoked or limited” if the Sheriff, through his deputies, deems it necessary. Finally, and most importantly to our discussion here, is notice that all non-privileged (those visits not between a defendant and his lawyer) “will be monitored by Detention personnel.”

So, how does someone without the slightest connection to an inmate — like a reporter — gain access to that inmate? What rules govern media access? Apparently, a few which are not followed:

Request for media interviews must be accompanied by a signed letter on letterhead stationery from the defendant’s attorney of record in the criminal proceedings, reflecting the attorney’s approval of the interview request. The letter must state that the judge having jurisdiction over the criminal proceeding has been informed of the interview request. 

Why does the Sheriff allow media access to inmates? A private investigator working for a defendant’s lawyer on the defendant’s behalf MUST present a letter from the defendant’s lawyer to the Harris County Sheriff stating that the attorney represents the defendant, the investigator works for the attorney and the investigator needs access to his client in the jail. If this is required of attorneys and investigators who actually represent the defendant, why does the media get unfettered access? And, you can bet that if an attorney has not yet been appointed, there has been no letter filed reflecting both the attorney’s approval and the judge’s awareness. And, in the case where the attorney sought a gag order from the court, neither the press nor the Sheriff sought the attorney’s approval before the interview. So why would the media have access absent this stated policy or rule?

Police interaction with criminal defendants is controlled by the United States and Texas constitutions. When police arrest a person for a crime they must read that person a legal warning (a la Miranda) before they are permitted to question them about the crime. Under Texas law, the legal warning and the defendant’s statements must be recorded in writing or on video or audio for the statement to be admissible at trial. These constitutional provisions do not extend to the media because media are neither governmental institutions nor law enforcement. What better way to get a damaging statement or confession from a defendant than through the press? Especially under the watchful eye (and ears) of a detention officer. There is however, a narrowly-tailored restriction on civilians and media. If a civilian, acting on behalf of law enforcement, obtains information from a criminal defendant, that civilian becomes an agent of the state and the constitutional strictures that apply to law enforcement apply to the civilian’s contact with the defendant and any statement the defendant made to the civilian.

Is that what is happening at the Harris County jail? Possible but not probable. The reality is likely closer to an indelible bureaucratic ignorance. Regardless of the reason, nefarious or otherwise, the result is the same. Allowing media access to inmates, the Harris County Sheriff’s Office is complicit in undermining the accused’s Fifth and Sixth Amendment rights. An expected response from the Sheriff and the media is that a defendant can simply refuse to talk to the media, nobody is forcing them to make a statement. True, but most criminal defendants are not known for being brain trusts or for possessing common sense. After 50 years of Miranda (1966) and, I hate to say it but you know it’s true, after 50 years of police programs featuring officers reading defendant’s their rights — everybody knows about Miranda — the requirement to recite these rights when required to each defendant has not diminished. Nevertheless, too many criminal defendants waive these rights before they are given the benefit of legal counsel who would advise them to take full advantage of their right to remain silent. And, without the benefit of legal counsel, too many defendants given the opportunity, will speak to the media because they want to get their version of the story out. And because they want to get on news. Like I said, they’re not the brightest folks.

Lawyers cannot protect their clients from all their stupid decisions but the Harris County Sheriff’s Office’s policy allowing media access to defendants requires scrutiny, and it needs to stop. Immediately. The First Amendment guarantees freedom of speech and press, it does not guarantee the media access to inmates in the Harris County jail. Denying media access to inmates at the Harris County jail does not affect the media’s First Amendment right. As with all constitutional guarantees, they are not limitless. The First Amendment doesn’t protect an individual’s right to scream “fire” in a crowded theater and a convicted felon loses his Second Amendment right to possess a firearm. Likewise, the media’s First Amendment right does not and cannot ever trump a defendant’s Fifth and Sixth Amendment right to a fair trial.

[Note: post updated 6/13/16, 6:50pm to reflect Harris County Sheriff’s Department Media Relations Policy as linked and quoted above]

The Credible Witness

There is no crime more heinous or incomprehensible than murdering a child. What kind of human being does such a thing? How badly wired must one’s brain be to even conceive of murdering a child? On May 17, 2016, eleven-year-old Josue Flores was savagely attacked and murdered while walking home from school. Walking home from school, for God’s sake. Josue didn’t die because he was “at the wrong place at the wrong time,” or as the result of an unfortunate accident, he died because some sick twist got the urge to kill him. Josue’s family’s grief is unimaginable. As the father of an eleven year-old boy, looking at Josue’s pictures on the evening news, I was struck with such a profound sadness and anger by the senselessness of his death and the evil that caused it. There is a special place in hell for people who kill children and the Devil is a clearing a spot at the table for Josue’s murderer. As a criminal defense lawyer, I hoped that the police’s determination to seek justice for Josue was equaled by a determination to conduct a thorough investigation and ensure the right suspect is charged. The clock was ticking. The killer must be caught before he killed another child and devastated another family. And he was, according to police. After a brief investigation, which included interviews of three eyewitnesses to the murder, police identified the killer as thirty-one year-old Che Calhoun. Calhoun was charged and the Houston Police Department quickly notified the media asking for the community’s help in finding him, splashing Calhoun’s picture across every news channel and media outlet. Josue’s family was going to see justice done for their little boy. And then, just as quickly as he was identified and charged with murder, Calhoun was released from jail and his murder charge dismissed. What happened?

What happened to Che Calhoun is what happens far too often in criminal cases; he was wrongly identified by an eyewitness whom the investigating officer believed to be “reliable and credible.” What is a reliable and credible witness? A reliable and credible witness is reliable and credible because a police officer says so. Because the officer believes the witness doesn’t have a reason to lie or because their rendition of events seems to make sense or the witness’s story fits with the officer’s predetermined assessment of the case. Witnesses are a mixed bag. Some witnesses are confidential informants who have worked with a particular officer on multiple occasions and their information about crimes committed by other bad actors has led to a number of arrests. Some have an axe to grind and make false statements to get the object of their disdain in trouble; the angry girlfriend whose boyfriend is on parole or probation and makes a false allegation to get her boyfriend arrested because she is mad at him for cheating on her, breaking up with her, cutting her off financially or _____ (fill in the blank). The angry soon-to-be ex-husband who alleges his soon-to-be ex-wife is physically abusing the children. I recently represented a client who, while on probation, was charged with aggravated assault after the complainant called 911 to report that a stranger kidnapped her daughter at gunpoint. It turned out my client was the child’s father and the kidnapping charge was never filed. The complainant did not respond to calls from the prosecutor and didn’t appear at his hearing on a motion to adjudicate guilt. She also failed to appear in family court for a paternity test and custody hearing. But she got what she wanted, which is possession of their child. There are a myriad of other reasons why some witnesses make bad identifications. Most witnesses, however, try to do the right thing and tell the police what they believe to be the truth and identify the person they believe to be the perpetrator of the crime. In most cases, the investigating officer is meeting the witness for the first time but makes an on-the-spot decision about the credibility of that witness and that determination, along with a bad identification, has led and continues to lead to disastrous results.

Despite the numerous exonerations over the last decade or more of people wrongly convicted by faulty eyewitness identifications and trial testimony, the average citizen, who, when called upon, becomes the average juror, is still heavily swayed by the conviction of an eyewitness’s testimony. In every trial case involving eyewitness identification, I ask the jury panel in voir dire if they are familiar with the Innocence Project’s work in exonerating people who were wrongly convicted. “Sure we have.” I ask them if they are aware that most exonerations come by way of DNA testing. “Of course, everyone knows that.” I ask them if they know that most of those exonerated were convicted by faulty eyewitness testimony. “Hmm, we didn’t know that.” When I ask them what happens to the people who are sitting in prison wrongly convicted because of a bad identification and there is no DNA to prove otherwise, the usual response is a sea of blank stares. Even though we see more now than ever before the frailty of eyewitness identification and recollection, instead of taking greater caution, human nature takes over and the average juror defaults to believing the eyewitness got it right. “This witness was absolutely the Defendant is the person who robbed, raped, shot ______ (fill in the blank) them so we feel confident that we have the right person.” Yeah, well, so were all the witnesses in the cases where the person convicted was later exonerated. According to the Innocence Project, “eyewitness identification is the greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in more than 70% of convictions overturned through DNA testing nationwide.” More than 70%! The credible witness is WRONG more than 7 out of 10 times! How can eyewitnesses get it so wrong so often?

One culprit in misidentification is the (un)reliability of cross-racial identification. In her 1984 Cornell Law Review article, Cross-Racial Identification Errors in Criminal Cases (page 937, volume 69, issue 5, June 1984), Sheri Lynn Johnson recounts a 1965 study conducted by Patrick Wall where the five victims of a kidnapping, rape and robbery identified the wrong man. The person wrongly identified was several hundred miles away at the time of the incident. The right suspect was eventually caught and the only similarity between the two men who did not look alike was that they were both black. Wall made the following finding:

In general, there is a much greater possibility of error where the races are different than where they are the same. Where they are different, there is more likelihood of error where the subject belongs to a minority group and the witness to a majority group than there is in the opposite situation. Ibid. Quoting P. Wall, p. 122, Eyewitness Identification in Criminal Cases (1965).

Fifty-one years after Wall published his findings, our criminal justice system continues to suffer from the same infirmity. Che Calhoun is black and all three witnesses upon whose description and subsequent identification investigators relied, are Hispanic. Calhoun was involved in a scuffle with Metro police the day before Josue’s murder near the murder location. Calhoun got away but not before he dropped his wallet, which contained his ID. Calhoun fit the description given by the three Hispanic witnesses and based on that information detectives created a photo array that included Calhoun’s photo. When investigators showed the photo array to one of the Hispanic eyewitnesses, he identified Calhoun as Josue’s killer.

According to news reports, Calhoun turned himself in when he learned he was wanted for Josue’s murder. He immediately told police he didn’t kill Josue and that he had an alibi. Calhoun said he was in Pearland at the time of the murder and his family provided police with a video of Calhoun at a Pearland convenience store 45 minutes before Josue was murdered. Police had the wrong man. And just like that, the case against Che Calhoun crumbled.

Che Calhoun was vilified in the press, and I have no doubt there were a number of people in Josue Flores’s neighborhood who hoped they got their hands on Calhoun before the police did. But, Calhoun was lucky, if you can call a man charged and arrested for murdering an eleven year-old boy lucky, because he was exonerated without having to suffer through the years of imprisonment and anguish that so many exonerees suffer. The right thing happened but think about what could have happened to Che Calhoun if there were no video, if he wasn’t in Pearland when Josue was killed but rather sitting at home, watching tv with nobody to vouch for him. The result would have been very different. Calhoun would be taking a ride on the criminal justice roller coaster, vilified and wrongly accused of a crime he didn’t commit. Wanting to prove his innocence and facing a jury that would surely send him to prison for the rest of his life if they believed him guilty of killing an eleven year-old boy. One tragedy compounded by another. All because a credible witness was wrong.