My client’s name isn’t important so we’ll call him C.H. He was minding his own business in Pensacola, Florida when he was arrested. The police claim he’d mugged several people in town over the previous week.
One of the purported victims was peculiar. He wasn’t peculiar by virtue of his long hair or beard. Nor was he peculiar in that he was wandering the dark streets alone at night with no real destination in mind.
He was peculiar because he doesn’t remember being knocked out, he doesn’t know who knocked him out, and he doesn’t know how he was knocked out. Yet, after admitting he couldn’t identify who did it, he blames C.H.
Nobody else can put C.H. and the victim in the same area of town on the same night. Nobody knows exactly what happened when the victim blacked out. If it weren’t for a mug shot on a wanted poster stuck to a light post, C.H. would never have been charged.
That guy in the mugshot looks guilty.
That mugshot didn’t get there on accident, either. When another person was attacked on a different day the police (under circumstances we know little-to-nothing about) pulled out a mugshot to have that victim attempt to identify her attacker. Despite the well-known unreliability of police lineups, despite the overwealming unreliability of cross-racial identifications, and despite some of the latest advances in eyewitness identification offering no additional reliability, the police plastered the town with mugshots of C.H. and implicated him in terrible acts.
When the victim saw one he decided, for the first time, that he could identify his attacker.
It’s been twenty years since I personally served on a jury, but even before I was a lawyer I’d say the case against C.H. isn’t the best. Could the prosecutor win? Possibly. Could he lose? For sure.
It’s hard to believe a witness pointing at defendant in open court saying, “that’s the guy, I’ll never forget his face” when the first time the witness was asked about it he said he couldn’t remember any face. When that’s your best evidence, you really can’t fault a jury for finding that the government didn’t prove C.H. is a criminal.
C.H. isn’t really a client of mine.
He’s the subject of episode 7 (“J.R.R. Ziemba) of Criminal. The episode recounts the story of J.R.R.- a late-evening stroller who encounters a man late at night before, presumably, being knocked out (he says he doesn’t know what happens) and mugged.
The podcast tells the story from his viewpoint. It’s got a different spin than what I’ve written here but the important facts are the same. He doesn’t know what happened (“He asked me what time it was, and that’s literally the last thing I remember…“), he told the police he couldn’t identify the man he’d encountered on the street, then he contacted the police only after seeing a wanted poster on the street. He went to trial, and lost.
The prosecutors also called him as a witness to tell his story against C.H. in other trials. The prosecutors lost those, too. I’m not surprised by that, either.
Yet when you listen to the show, the story is one of bewilderment. J.R.R. has reasons he told the police he couldn’t identify C.H. You hear them in the podcast. At the end of it all, you’re left wondering how the trials could have failed such a reasonable victim.
The podcasts attempts to resolve this by talking about J.R.R.’s appearance, his potential quirkiness, or the potential homophobia of the jury. The podcast doesn’t talk about the difficulties of eye-witness identification or the rules and burdens of court. The prosecution doesn’t talk about that pesky 6th Amendment and the right to subject the victim to “scrutiny” (or, “cross examination” as we call it).
I’m not saying they should have interviewed a defense attorney to tell the other side of the story. After-all it is J.R.R.’s story and he likely doesn’t know those things.
I am saying that Criminal podcast is well produced, does a great job at telling stories and, at least in this episode, is unfair.