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When Seeing Is Not Believing 

Everyone from Janet Reno to the governor of Illinois is questioning cases that depend on one eyewitness. In a local courtroom, attorney Emily Bolton, head of Innocence Project New Orleans, shows why one witness' 25-year-old testimony may be especially sus

Last year, Emily Bolton launched Innocence Project New Orleans to defend Orleans and Jefferson Parish inmates who are serving out life sentences and have new evidence of actual innocence. Her current case involves Gregory Bright, who in 1976 was sent to Angola solely on the testimony of one eyewitness.

When Orleans Parish Criminal Court Judge Charles Elloie asks all witnesses to leave the courtroom until they're called to the stand, half the crowd gets up to leave.

This is a 25-year-old murder case.

It's a courtroom bristling with emotion, with tearful people in the benches listening to testimony and reacting with mumbles like "Thank you, Jesus," and "Finally, Lord, the truth is coming out." Near one aisle, a 10-year-old boy sits quietly next to his mother. He says that the man in the blaze-orange jumpsuit is his uncle, someone he's seen only in this courtroom and "at the jailhouse" -- the Louisiana State Penitentiary at Angola.

In 1976, Gregory Bright, the man in the orange jumpsuit, was sentenced to serve out the balance of his natural life at hard labor. His co-defendant, Earl Truvia, was given the same sentence. Bright was 20 years old at the time; Truvia was 18.

No physical evidence linked Bright or Truvia to the scene. Their convictions have always depended solely on the eyewitness testimony of a woman known in the trial records as Sheila Robertson.

Today, for the first time, the court will hear that Robertson wasn't her real last name. And it wasn't the only name she went by. "Instead of a one-eyewitness case, it was a nine-eyewitness case," Elloie says at one point, gesturing toward a large easel that lists the known aliases of "Ms. Robertson."

The easel chart and hundreds of other pieces of evidence were assembled by attorney Emily Bolton, who a year ago launched Innocence Project New Orleans as one of a growing nationwide network of Innocence Projects founded in 1992 by former O.J. Simpson defense attorney Barry Scheck and fellow attorney Peter Neufield at New York's Benjamin N. Cardozo School of Law.

Bolton, along with her skeleton staff of three and a few local attorneys acting pro bono (on this case, Jason Rogers Williams), defend Orleans and Jefferson Parish inmates who are serving out life sentences and have new evidence of actual innocence.

This February hearing will determine whether Gregory Bright receives a new trial. The outcome will also directly effect Earl Truvia, since Robertson's testimony led to his conviction as well. On a broader level, this case -- and cases like it -- are raising new concerns about single-eyewitness testimony.

Most of these concerns are emerging because of death-row inmates who have, in the past several years, been exonerated by DNA tests. Last month, an Illinois panel looking at 13 such cases concluded that nearly all the wrongful convictions had common threads -- namely, a lack of physical evidence and "a witness with something to gain."

The people who lead Innocence Projects like Bolton's have found similar results. According to the Innocence Project headquarters in Manhattan, the projects have so far exonerated 108 inmates. And in an analysis of the factors involved, mistaken identity was No. 1 -- it played a major role in 60 of the first 82 wrongful convictions.

Bolton's experience is much more limited. But witness error has been responsible for her first and only exoneration as head of Innocence Project New Orleans. In December of last year, Dwight LaBran Jr. was released from Angola after Orleans Parish Judge Leon Cannizzaro reversed his conviction and the district attorney's office dropped the charges. LaBran had served five years for a first-degree murder conviction based on the testimony of an eyewitness who had appeared in court under a false name.

A 1998 study of the DNA exonerations, conducted by outside researchers such as Iowa State University psychology professor and memory expert Gary L. Wells, found eyewitness error in 90 percent of the wrongful convictions. In 1999, U.S. Attorney Janet Reno wrote, in an intro to a new Department of Justice publication on the topic, "Even the most honest and objective people can make mistakes in recalling and interpreting a witnessed event; it is the nature of human memory. This issue has been at the heart of a growing body of research in the field of eyewitness identification."

Last year, New Jersey became the first state to adopt new, more foolproof eyewitness procedures. Other states are looking at similar measures. Most state legislatures, including Louisiana's, have debated the scope of DNA testing. A bill currently before the Illinois legislature bars the death penalty as a sentence when the evidence "depends upon the testimony of a sole eyewitness."

Thus far, the controversy over eyewitness testimony has primarily focused on death-row inmates. But the issue is beginning to make inroads for other inmates as well. Some prison-rights groups have begun to demand that prosecutors re-examine every case in which a conviction relies on a single eyewitness.

The irony of eyewitness testimony is that, even though it may be unreliable, it's also incredibly persuasive.

Reading from the record of the 1976 trial, Robertson's testimony sounds perfectly plausible. It's no wonder that a jury took only eight minutes to convict Bright.

According to the testimony, Robertson had been sitting in the window of her apartment in the Calliope housing project around 1 a.m. and had seen a local teenager, Elliott "Al" Porter, walk by with two men. The trio struggled by some bushes, she said, then moved out of her sightline, which is when she heard shots. According to a police report, Robertson said that she then saw Porter crawl through the fence at the side of the building.

Robertson's testimony is the only evidence in this case. Soon after the murder, the investigating detective described the case to The Times-Picayune as "a typical project murder," and Innocence Project filings note that "the time spent on [this case] speaks volumes about how seriously such cases were taken in 1975." The crime scene wasn't diagrammed or photographed and nothing was analyzed -- not the blood from the scene nor the two bullets shot into Porter's skull at close range. As a result, the case's eyewitness -- the woman known as Sheila Robertson -- is it.

Naturally, in court, each side must play its role. The prosecutor needs to say that the witness isn't perfect, but she still saw what she saw. The defense attorney needs to question that witness' credibility from every angle.

So Bolton attacks that credibility with full vigor. She has a stack of records dating back several years before the crime that describe Robertson as a paranoid schizophrenic. She has a state subpoena, returned undelivered one month before the trial, with "Sara Mayo Hospital" hand-written across the top, which seems to indicate that the document was not delivered because the witness was receiving mental-health services there at the time.

Bolton has an expert in crime-scene reconstruction who testifies that Robertson's view was blocked and so she could not have seen what she said she saw -- even if she had leaned out the window. Dr. Paul McGary, the pathologist who conducted the autopsy in 1975, testifies that the body showed no rigor mortis at 9 a.m., so the time of death has to be between 5 and 8 a.m., not at 1:30 a.m. as Robertson testified. Also, adds McGary, the shots caused instantaneous brain-death and so the victim could not have crawled the 15 feet Robertson had described.

Finally, Bolton calls a string of witnesses who swear that Bright was at a bonfire across town, then at home near the time Robertson put him at the murder scene. Another long line of people testify about Sheila Robertson, her mental instability, her heavy heroin habit, her long criminal record, and her willingness to do just about anything for money. Witnesses include Robertson's old friends, her ex-boyfriend, her former parole officer, even her very own family. Bolton also has a deposition from the victim's brother saying that the men who were convicted of the crime are innocent.

Assistant District Attorney Lonnie Burns is undeterred. He tells the court that most murder cases are single-eyewitness cases and that, in fact, his witness is still viable. "Someone is going to attack a witness because she hasn't lived a good life? Because she's schizophrenic, because she's paranoid, she can't testify?"

Elloie stops Burns in his tracks. "Mr. Burns," he says, "you're a fair man. You would not want to see an innocent man be incarcerated for the rest of his life."

There's a murmur of support from the benches. Elloie silences it and then continues: "Based on everything I've heard and seen from this one- or nine-eyewitness case, justice would best be served if Mr. Bright be granted a new trial."

In the judge's written ruling, he finds that "the district attorney's office was aware of these facts about its eyewitness, including the false identity of the eyewitness and her problems with the law and with the courts and that this evidence ... if presented to the jury, was reasonably likely to have produced a different result in the trial."

On May 22, the prosecution filed a writ with the state Supreme Court asking that Elloie's ruling be reversed. The DA's office argues in detail that most of the material to which Elloie referred is either irrelevant to the case or was unavailable at the time of trial. But the writ's main point is that the missing material is ultimately not an issue because -- according to Louisiana case timelines -- Gregory Bright should have filed his petition by 1991. The prosecution basically asks the High Court to conclude that Elloie's ruling about Gregory Bright's hearing is immaterial -- because, to be valid, the hearing should have been held a decade or so ago.

It's a sunny day at the Louisiana State Penitentiary at Angola and Emily Bolton has come to visit some of her clients and some of Angola's inmate counsel substitutes, who -- as their prison job -- assist fellow inmates with legal matters such as the Innocence Project New Orleans application.

Gregory Bright greets his attorney in crisply creased blue jeans, his neat attire perhaps a function of his job at the prison laundry. Bolton goes into a private room with Bright's former co-defendant, Earl Truvia, and Bright sits down in a waiting room with some of the inmate counsels.

The inmate counsels and Bright say they are thrilled about the Innocence Project investigators, who can knock on doors and dig in dusty files -- and find the sorts of evidence that Bolton and her cohorts found on "Ms. Robertson." Inmates, they say, can study the law late into the night, keep up on new cases and cite legal precedents. But they can't exactly get furloughs to go to crime scenes or to visit labs.

Bright is not an inmate counsel, but he has made filings on his own case, with their help. He recalls being a new arrival at Angola and paying a carton of cigarettes to a jailhouse lawyer in exchange for some legal assistance. But, he says, most of his efforts over the years were expended trying, in vain, to get records on his case. He had heard about Innocence Project New Orleans right away, but was "not too enthused" because most Innocence Projects have focused solely on DNA and death-penalty cases, and so he thought he wouldn't qualify.

As Bright's hearing showed, DNA evidence isn't an issue in his case, because it was never collected. Yet, even if blood samples had been taken at that crime scene in 1975, they would be gone by now. Most DNA evidence in Louisiana is routinely disposed of within a few years.

Bright was never on death row. Neither was inmate counsel Calvin Duncan, a fellow New Orleanian who also is serving a life sentence for murder. It's ironic, Duncan says, but from a legal standpoint, being on death row can be an advantage. "I always say that if I'd gotten the death penalty, I wouldn't be here." He quickly clarifies: "I'd be free." That's because, notes Duncan, death-penalty inmates get more legal help and at an earlier stage of the game.

But there are also fewer people on death row. For instance, Angola currently holds 5,108 inmates. Only 92 are on death row population. Nearly two-thirds -- 3,356 -- are lifers.

It would be overwhelming to take applications from that entire number. So at this point, Bolton is only allowing applications from those inmates convicted in Orleans and Jefferson Parish. According to the Project's Web site (ip-no.org), the staff won't currently review applications from other places, but will keep them "on file" in case the project expands. At this point, inmates from Orleans and Jefferson have a distinct advantage, says Duncan, admitting "Now I feel bad if someone says, 'but I'm from Shreveport.'"

click to enlarge TRACIE MORRIS/YOUNG STUDIO
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