Case Information
*1 Before: B.D. P ARKER , H ALL , and C ARNEY , Circuit Judges .
___________________
Appeal from a judgment of the United States District Court for the Western District of New York (Bianchini, M.J. ) granting defendant’s petition for a writ of habeas corpus, ordering his convictions vacated, and barring the State of New York from re-prosecuting him.
AFFIRMED in part and VACATED in part .
___________________
G EOFFREY K AEUPER , Assistant District Attorney, for Sandra Doorley, District Attorney of Monroe County, Rochester, NY, for Respondent-Appellant . J OHN H. B LUME , Cornell Death Penalty Project, Cornell Law School, Ithaca, NY (Brian Shiffrin, Easton *2 Thompson Kasperek Shiffrin, LLP, Rochester, NY, on the brief), for Petitioner-Appellee . James L. Brochin, Jennifer H. Wu, Cassius K. Sims, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY; Barry C. Scheck, David Loftis, Karen Newirth, Innocence Project, Inc., New York, NY, for Amicus Curiae the Innocence Project . ______________________________________________________________________________ B ARRINGTON D. P ARKER , Circuit Judge :
The State of New York appeals from a judgment of the United States District Court for the Western District of New York (Bianchini, M.J. ) granting defendant Rudolph Young’s petition for a writ of habeas corpus, vacating his convictions for robbery and burglary, and barring the State of New York from retrying him. Young was convicted at his first trial in [1]
August 1993 based on the victim’s in-court identification and her testimony that she had identified him in a lineup held one month after the crime. He was the only member of the lineup whose picture had also been included in a photographic array shown to the victim two days earlier, when she failed to make an identification. After the lineup identification testimony was suppressed as the product of Young’s unconstitutional arrest under the Fourth Amendment, at a [2] second trial held almost six years later, the state trial court nonetheless permitted the victim to identify Young in court as the person who had broken into her home, based on its finding that her in-court identification had a basis independent of the tainted lineup. The New York courts *3 affirmed Young’s convictions on direct appeal. Young filed a petition for habeas corpus arguing, inter alia , that the source of the victim’s in-court identification could not possibly have been independent of the tainted lineup. The district court agreed and granted the petition.
The State now appeals, arguing principally that, because Young had a full and fair
opportunity to litigate his Fourth Amendment claim in state court, federal habeas relief is not
available.
See Stone v. Powell
,
BACKGROUND
The crimes for which Young was convicted occurred on March 29, 1991. That evening, an intruder entered the home of William and Lisa Sykes carrying an axe and sledgehammer and *4 wearing a blanket draped over his clothes. He wore a scarf around his mouth that covered his lips, nose, ears, and cheeks, leaving only his eyes and the top of his head uncovered. Brandishing the axe over Mr. Sykes’s head, the intruder demanded money and then took some watches from the bedroom. The Sykeses later reported that a pair of binoculars, a red bicycle, a mirror, and a pair of workout gloves from Mrs. Sykes’s car were also missing.
The intruder was in the house for approximately five to seven minutes. After he left, Mr. Sykes immediately called the police. In the police report taken later that evening, which she signed, Mrs. Sykes, who is white, described the intruder as “[a] black man in his twenties, five-ten, medium build.” App. at 131. When the police asked if she could assist in preparing a [3]
composite sketch of the intruder, Mrs. Sykes replied that she could not. Id.
Approximately one month later, police showed Mrs. Sykes a photographic array containing six full-color photographs, including one of Young’s entire face. She could not at that time identify Young as the intruder. The next day, Mr. Sykes viewed the same array in his home [4]
– with Mrs. Sykes present – but also failed to make an identification.
The next day, Young was arrested and placed in a lineup that Mr. and Mrs. Sykes viewed
separately. As noted, the Appellate Division, Fourth Department, subsequently held that there
was no probable cause for the arrest.
See Young
,
Young was indicted for burglary and two counts of robbery and went to trial in August
1993. At trial, Mrs. Sykes identified Young as “that person that [she] identified at the lineup.”
1993 Trial Tr. (“Trial I”) 57. She later testified that she made this identification based on a
“combination” of factors “from seeing him and also the voice.” App. at 73. Due largely to Mrs.
Sykes’s in-court identification, which stemmed from the prior lineup, Young was convicted.
See
Young’s conviction was reversed on appeal. The Appellate Division concluded that,
because the police had obtained Young’s consent to the lineup “by means affected by the primary
taint [of his illegal arrest],” and because “the [in-court] line-up identification flowed directly
from the illegal arrest and was not attenuated therefrom,” Mrs. Sykes’s testimony concerning the
lineup should not have been admitted at trial.
People v. Young
,
In March 1999 – eight years after the initial incident at the Sykeses’ residence – the trial court held an independent source hearing to determine whether Mrs. Sykes would be permitted to make an in-court identification of Young at a re-trial. At that hearing, Mrs. Sykes described the robbery in detail and testified as to why she remembered the intruder from her observations of him during the crime rather than from the tainted lineup. According to her testimony, she first encountered the intruder standing “a couple of feet” away from her in her well-lit dining room. App. at 117. Mrs. Sykes, who is “five-eight, fine-nine,” testified that she was “[e]ssentially . . . looking at [the intruder] face-to-face,” and therefore estimated his relative height to be 5’10”. Id. Young is black, is six feet tall and was almost 34 at the time of the incident. Mrs. Sykes said the intruder had a “[s]carf over his face and a blanket covering all his clothes.” Id. at 131. The scarf “covered up the intruder’s mouth[,] chin,” ears and the “majority of the intruder’s cheeks and jawbone.” Id. at 136-138. Mrs. Sykes did not recall whether the intruder had a beard or mustache, or the length or kind of hair on his head; whether he was muscular or had any “noticeable or distinct physical characteristics,” id. at 138; whether he wore a hat or any jewelry; what type of shoes or pants he wore; whether he was wearing a jacket underneath the blanket; or whether he was wearing gloves .
After initially screaming, Mrs. Sykes said she looked carefully at the intruder, in disbelief that the incident was not a prank, but realized after staring at his eyes that she did not know him. The burglar then walked directly behind Mr. Sykes, brandished the axe over his head, looked directly at Mrs. Sykes, and said, “I will kill him. Give me your wallets.” Id. at 118 (quotation marks omitted).
The three then walked down the hallway to the master bedroom to retrieve Mr. Sykes’s wallet. Mrs. Sykes turned on the hall light and the intruder turned and looked right at her. She continued to watch him as he relieved Mr. Sykes of his money and took the watches. After next demanding that Mrs. Sykes give him her money, he proceeded to rip two telephones out of the walls, instructing Mrs. Sykes not to “look at [his] face.” Id. at 123. The intruder left the house shortly thereafter.
Mrs. Sykes testified that, up until the point the intruder instructed her to avert her eyes, she had continuously looked at his face, primarily his eyes, trying to determine who he was. She said that for many nights after the crime, she woke up seeing the intruder’s eyes in her nightmares. However, she also testified that there was “[n]othing unusual that stood out” about them. Id. at 140. She further acknowledged that she was unable to assist the police in sketching a composite drawing of the intruder’s face and stated that, although she had examined the eyes of each of the faces in the photo array conducted a month after the incident, she was unable to select Young because “a photograph is not a real person” and the pictures in the array did not “look real” to her. Id. at 155.
As to the lineup, Mrs. Sykes testified that she selected Young based solely on his eyes and voice. She contended that, eight years after the incident, she could “completely excise that lineup from [her] mind” and make an in-person identification based solely on the “eyes and voice.” Id. at 168. Based on this testimony, the court found that Mrs. Sykes had demonstrated the ability to make an in-court identification at Young’s subsequent retrial. In so holding, the court stressed that Mrs. Sykes “was in close proximity” to the intruder and “had ample *8 opportunity” to see him. Id. at 195. Although “much of her identification focused on [the intruder’s] eyes,” her certainty helped establish her ability to make an in-court identification. Id.
At Young’s retrial in January 2000, the prosecution offered no physical evidence linking Young to the robbery. Instead, its case-in-chief consisted almost entirely of testimony from the Sykeses and from two other individuals, Taunja Isaac and Nell Kimbrel. The Sykeses’ description of the robbery at trial was largely consistent with Mrs. Sykes’s description at the independent source hearing. She identified Young as the perpetrator. Mr. Sykes did not identify him. The court denied Young’s motion to introduce expert testimony on the ability of a person (1) to make an identification independent of an earlier, tainted lineup identification or (2) generally to make an accurate identification given various factors.
The prosecution’s third primary witness, Isaac, was an acquaintance of Young’s and a convicted felon with a lengthy criminal record. Isaac testified that on April 29th – a month after the Sykes burglary and in connection with Isaac’s arrest for disorderly conduct – she informed the police about a pair of binoculars and three watches that Young had “asked [her] to sell” some time in March or April of 1991. 2000 Trial Tr. (“Trial II”) 131. When asked by a sheriff’s investigator to retrieve the items, Isaac was able to recover only the binoculars, which were introduced into evidence. Mr. Sykes identified them as those stolen from his car. A sheriff’s investigator testified that he never directed Isaac to show him where or from whom she had gotten them.
Isaac admitted at trial that she “had a very good and close friendship” with Lamont Gordon, another man who “lived around [her] neighborhood” and whom she knew the police to *9 be investigating as a suspect in the Sykes robbery. Id. at 149-150. Gordon was a “[l]ight skinned” African-American male, “about six feet,” of “medium build,” and “between 18 and 20” at the time of the incident. Id. at 159. Isaac further testified that at the time of her arrest she feared she would be charged and sent to jail. She never was.
The fourth primary prosecution witness, Kimbrel, testified that a month after the incident the police found a pair of gloves belonging to the Sykeses in a garbage can at her residence – a house from which as many as 30 people a night would “be in and out” to “smoke cocaine.” Id. at 272-73. Isaac, from whom Kimbrel regularly bought cocaine, and Young were two such people. According to Kimbrel’s testimony, Young had been staying at her house at least once a week and leaving some of his belongings there during the months of March and April 1991, during which time Kimbrel was “constantly [and] continually” using cocaine. Id. at 286. Kimbrel, who had prior felony convictions for larceny and possession of stolen property, could say only that the gloves “had been [in her house] for a while” and that she had never actually seen Young with the gloves. Id. at 261. She testified that “[a]t any point someone could have brought the gloves in [to her house] because [she] had a lot of peoples in the house.” Id. at 274. Kimbrel had discarded the gloves, which were admitted at trial, along with a number of other items upon learning that the police were coming to execute a search warrant.
The defense introduced the testimony of a police officer establishing that Young was 6’0’’ to 6’1’’ tall and would have been 34 years old at the time of the incident.
Young was convicted on all three counts and sentenced to two consecutive terms of fifteen years to life imprisonment.
Direct Appeal
The Appellate Division, Fourth Department, affirmed the convictions.
People v. Young
,
[t]he inability of the victim to assist the police in constructing a composite of the intruder and her inability to select defendant from a photo array prior to the lineup identification procedure strongly suggest that her alleged independent “recollection” of defendant was irrevocably tainted by her having viewed defendant in the lineup and having heard him speak. We therefore must conclude that any in-court identification testimony by the victim would be derived from exploitation of the illegal arrest.
Id. at 627 (Hurlbutt, J.P. , and Gorski, J. , dissenting) (quotation marks and citations omitted).
A divided panel of the Court of Appeals affirmed.
People v. Young
,
Young timely filed a petition for a writ of habeas corpus alleging,
inter alia
, that the state
courts’ conclusion that Mrs. Sykes had an independent source for her in-court identification of
Young was an unreasonable application of clearly established federal law.
See Wade
,
After “[r]eviewing the
Wade
factors,” the district court concluded that “all of them are on
Petitioner’s side of the scale, and none of them are on the government’s.”
We review a district court’s grant of habeas relief
de novo
, and the underlying findings of
fact for clear error.
See Ramchair v. Conway
,
DISCUSSION
The State presents scant argument on appeal challenging the district court’s conclusion
that the state court unreasonably applied
Wade
. Its principal contention is that, because Young
had a full and fair opportunity to litigate his “Fourth Amendment claim” in state court, federal
habeas corpus provides him no remedy.
See Stone
,
I.
Whether an in-court identification has a source independent of an earlier tainted
identification is a mixed question of law and fact.
See Wade
,
The exclusionary rule applies not only to the “direct products” of unconstitutional
invasions of defendants’ Fourth Amendment rights, but also to the indirect or derivative “fruits”
of those invasions.
Crews
,
As to the third element, “given the vagaries of human memory and the inherent suggestibility of many identification procedures,” “intervening photographic and lineup identifications – both of which are conceded to be suppressible fruits of the Fourth Amendment violation – [may] affect the reliability of the in-court identification and render it inadmissible as well.” Id. at 472 (citing Patrick M. Wall, Eye-Witness Identification in Criminal Cases 40-64 *14 (1965); Frederic D. Woocher, Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification , 29 Stan. L. Rev. 969, 974-89 (1977)).
[I]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.
Wade
,
Whether an in-court identification is nevertheless admissible depends on whether it has
an origin “independent” of the tainted lineup,
Wade
,
* * *
We turn now to an analysis of Mrs. Sykes’s in-court identification, considering whether the Wade factors could reasonably support a finding by clear and convincing evidence that it had an independent basis. In the course of assessing those factors, we reference an extensive body of scientific literature presented to us by amicus curiae the Innocence Project in support of affirmance. That literature indicates that certain circumstances surrounding a crime – including [7]
*16 the perpetrator’s wearing a disguise, the presence of a weapon, the stress of the situation, the cross-racial nature of the crime, the passage of time between observation and identification, and the witness’s exposure to defendant through multiple identification procedures – may impair the ability of a witness, such as Mrs. Sykes, to accurately process what she observed. Many of these factors are counterintuitive and, therefore, not coterminous with “common sense.” We note that the research presented to us by the Innocence Project – to which the State has offered no response – has been reviewed, replicated, and retested, and is generally accepted in the research [8]
community.
See State v. Henderson
,
[8] In a footnote in its reply brief, the State argues that, “[b]ecause [Young] did not present any
expert testimony at the independent source hearing on the reliability of identification procedures, he
cannot rely upon any here.” Resp.’s Reply Br. 8 n.2 (citing
Cullen v. Pinholster
,
Indeed, this Court has previously approved lower courts’ drawing upon this body of
literature in appropriate cases. In
United States v. Luis
, for example, we endorsed a “flexible
approach” to trial judges’ use of “a specific eyewitness charge in order to ameliorate the concerns
expressed in . . . [
Wade
] relating to the dangers inherent in eyewitness testimony that may lead to
misidentification.”
* * *
The first and, we think, most important
Wade
factor concerns the victim’s prior
opportunity to observe the alleged criminal act. Here, Mrs. Sykes testified that she observed the
perpetrator for five to seven minutes in good lighting. However, she was afforded no meaningful
opportunity to perceive him during that time given that his body was covered with a blanket and
the entirety of his face below his eyes – including his lips, nose, ears, and cheeks – was covered
by a scarf. And as for those eyes, “
nothing unusual . . . stood out
” about them. App. at 140
(emphasis added). Nor did the intruder have any other “noticeable or distinct physical
characteristics.”
Id.
at 138. Indeed, following the incident, Mrs. Sykes could neither assist in a
composite sketch nor recall any details of the perpetrator’s mouth, ears, forehead, facial hair, or
hairstyle. Since then, she has been unable to articulate anything but the barest of details about
him – his height, gender, and race – instead repeatedly emphasizing his wholly unremarkable and
decontextualized eyes. In
Raheem v. Kelly
,
In assessing this first Wade factor, we find illuminating the social science research, presented by the Innocence Project, addressing the effect of disguises, weapons, stress, and cross- racial identifications on those identifications’ accuracy. First, as the amicus curiae observes, even “subtle disguises can . . . impair identification accuracy.” Brian L. Cutler & Margaret Bull Kovera, Evaluating Eyewitness Identification 43 (2010); see also Brian L. Cutler et al., The Reliability of Eyewitness Identification: The Role of System and Estimator Variables , 11 Law & Hum. Behav. 233, 240, 244-45 (1987) (reporting results of experiment showing that when “perpetrator” wore a hat, only 27% of participants’ identifications were accurate, versus 45% when “perpetrator” did not wear a hat). Here, the perpetrator of the Sykes robbery wore no minimal disguise; as noted above, his body and face were almost entirely covered. That disguise deprived Mrs. Skyes of any meaningful opportunity to observe him; social science research suggests it likely also impaired her ability accurately to perceive the little she was able to observe.
Second, the scientific literature indicates that the presence of a weapon during a crime
“will draw central attention, thus decreasing the ability of the eyewitness to adequately encode
and later recall peripheral details.” Nancy Mehrkens Steblay,
A Meta-Analytic Review of the
Weapon Focus Effect
, 16 Law & Hum. Behav. 413, 414 (1992). For example, an analysis of 19
weapon-focus studies involving 2082 identifications found that, on average, identification
*20
accuracy decreased approximately 10% when a weapon was present.
Id.
at 415-17. Our own
Court has recognized that “it is human nature for a person toward whom a [weapon] is being
pointed to focus h[er] attention more on the [weapon] than on the face of the person pointing it.”
Raheem
,
Third, high levels of stress have been shown to induce a defensive mental state that can result in a diminished ability accurately to process and recall events, leading to inaccurate identifications. Kenneth A. Deffenbacher et al., A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory , 28 Law & Hum. Behav. 687, 687, 699-700 (2004); see also Charles A. Morgan III et al., Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress , 27 Int’l J.L. & Psychiatry 265 (2004). For example, a review of 16 studies involving 1727 participants found that accurate identifications decreased 22.2% under high stress conditions. Deffenbacher et al., A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory at 692, 694 (reporting that overall proportion of correct identifications for high stress conditions was 0.42 versus 0.54 for low stress conditions). Here, as if the stress of the situation were not already clear, Mrs. Sykes testified that she was “scared” and “petrified.” App. at 142.
Fourth, social science research indicates that people are significantly more prone to identification errors when trying to identify someone of a different race, a phenomenon known as “own-race bias.” “There is a considerable consistency across [scientific] studies, indicating that *21 memory for own-race faces is superior to memory for other-race faces.” Robert K. Bothwell et al., Cross-Racial Identification , 15 Personality & Soc. Psychol. Bull. 19, 19, 23 (1989) (conducting meta-analysis of 14 studies finding that own-race bias effect “occurs for both Black and White subjects in 79% of the samples”). Studies have thus found a “tendency for people to exhibit better memory for faces of [members of their own race] than for faces of [members of another race].” Tara Anthony et al., Cross-Racial Facial Identification: A Social Cognitive Integration , 18 Personality & Soc. Psychol. Bull. 296, 299 (1992). Studies suggest that own-race bias is especially pronounced where, as here, the person making the identification is Caucasian and the person being identified is African-American. Henry F. Fradella, Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimony , 2 Fed. Cts. L. Rev. 1, 14 (2007).
Before proceeding to the second
Wade
factor, we also consider the flip-side of the first
one: whether Mrs. Sykes’s limited opportunity to observe the perpetrator at the crime scene
influenced her subsequent
perceived ability
to identify Young, and whether those subsequent
identifications in turn altered her
perceived ability
to draw on her limited observation of Young
at the crime scene. After all, as we have seen, the in-court identification followed
three
instances
in which Mrs. Sykes was exposed to the defendant subsequent to the crime: she viewed his
picture in the photo array and his person both in the unconstitutional lineup and also during the
first trial. Here, the Innocence Project has directed us to scientific research indicating that such
prior identifications may taint subsequent in-court identifications due to a phenomenon known as
the “mugshot exposure effect,” or “unconscious transference,” whereby a witness selects a
*22
person in a later identification procedure based on a sense of familiarity deriving from her
exposure to him during a prior one. This phenomenon occurs because “the witness [is] unable to
partition his or her memory in such a way as to know that the suspect’s increased familiarity is
due to the exposure [in the photo array], rather than the suspect’s presence at the time of the
crime.” Godfrey & Clark, at 242;
see also People v. Santiago
,
In addition, where, as here, a victim identifies the defendant during an identification procedure prior to her in-court identification, her memory can be tainted by the “mugshot commitment effect”: having identified that person as the perpetrator, she becomes attached to her prior identification. As a result, she is more likely to identify him again in a subsequent identification procedure, even if he is innocent. See Charles A. Goodsell et al., Effects of *23 Mugshot Commitment on Lineup Performance in Young and Older Adults , 23 Applied Cognitive Psychol. 788, 789 (2009). In one study, 72% of persons who made an inaccurate identification from a mugshot book later made the same mistaken identification in a lineup. Id. at 795. This phenomenon may be observed even when the actual culprit is present in the second identification procedure, and the previously selected innocent person is absent. For example, in one experiment, 60% of participants indicated that the actual culprit was not present in the lineup, while only 12% correctly identified him from the lineup. Id. at 798. This research demonstrates that “[m]ugshot choosers will select their prior mugshot choice if given the opportunity and will reject a lineup that does not contain it” even when the opportunity to select the actual culprit is available. Id. Moreover, where a witness has been primed with information supporting an erroneous identification – such as repeated exposure to Mr. Young’s face in photographs, the illegal lineup, and the 1993 trial – research suggests she is often more confident in her erroneous selection. See Elizabeth Loftus, Semantic Integration of Verbal Information into a Visual Memory , 4 J. Experimental Psych.: Hum. Learning And Memory 19-31 (1978).
Here, our analysis of Mrs. Sykes’s ability to identify Young independent of the tainted lineup is also informed by the possibility that her in-court identification was due to her prior choice of Young during the illegal lineup, which in turn may likely have been due to her prior exposure to his picture in the photo array. Combined with Mrs. Sykes’s minimal opportunity to observe the perpetrator during the commission of a stressful, violence-threatening, cross-racial crime, Mrs. Sykes’s multiple exposures to and identifications of Young thereafter strongly *24 suggests that there could be no independent basis for Mrs. Skyes’s identification. Nevertheless, we examine the remaining Wade factors.
* * *
The second
Wade
factor is the existence of any discrepancy between any pre-lineup
description and the defendant’s actual description. Immediately after the robbery, Mrs. Sykes
described the perpetrator as “[a] black man in his twenties, five-ten, medium build,” App. at 131;
Young, by contrast, is a six-foot tall African-American who, at the time of the robbery, was
almost 34 years old. The two-inch height differential between Mrs. Sykes’s estimated and
Young’s actual height is significant for at least two reasons: first, the difference between 5’10”
and six feet is the difference between a man of average height and a tall man.
See
Cynthia L.
Ogden, et al.,
Centers for Disease Control, Mean Body Weight, Height, and Body Mass Index,
United States, 1960-2002
(2004) at 15, available at http://www.cdc.gov/nchs/data/ad/ad347.pdf.
Second, and more important, Mrs. Sykes estimated the perpetrator’s height in relative terms – in
relation to her own height of 5’8’’ or 5’9’’ – based on her ability essentially to stand “face-to-
face” with him. If Young was the perpetrator, there would have been a three- to four- inch height
differential between them, rendering a description of their encounter as “face-to-face” unlikely.
Even leaving aside the divergence of Mrs. Sykes’s description from Young’s actual appearance,
Mrs. Sykes’s post-incident description does not “instill any confidence as to the reliability of
[her] identification[] of [Young] as the [robber] independently of the [tainted lineup], for though
[she] provided general information as to the [robber’s] age, height, and weight, [she] provided
*25
virtually no detail about his face.”
Raheem
,
* * *
The third, fourth, and fifth
Wade
factors probe whether the witness, prior to the lineup,
identified another person; whether the witness identified the defendant by photograph prior to the
lineup; and whether the witness failed to identify the defendant on a prior occasion. Here, Mrs.
Sykes has offered differing testimony as to whether, from the photo array conducted one month
after the crime, she selected someone other than Young as the perpetrator or failed to identify
anyone at all. Either way, her inability to identify Young goes to the third through fifth
Wade
factors and, for each, counsels against concluding that Mrs. Sykes had an independent basis for
her in-court identification of Young. In
Crews
, by contrast – where the in-court identification
was found to have an independent basis – the “the victim failed to identify anyone other than
respondent, . . . [and] twice selected respondent without hesitation in nonsuggestive pretrial
identification procedures.”
Moreover, as noted above, Mrs. Sykes’s failure to identify Young in the photo array, followed by her “successful” identification of him at the lineup, not only suggests that the robbery itself may have provided an inadequate basis for her in-court identification; but in light of the fact that Young was the only lineup participant whose picture was also included in the photo array, it also suggests that the photo array itself may have been the only basis for the very lineup identification suppressed as the fruit of Young’s unlawful arrest.
* * *
The sixth and final
Wade
factor is “the lapse of time between the alleged act and the
lineup identification.”
Wade
,
Here, over one month passed between the robbery and Mrs. Sykes’s identification of
Young at the suppressed lineup. Early in this intervening one month – a not inconsiderable
period of time – Mrs. Sykes failed to identify him (or worse, identified someone else) while
being shown his photograph only one week after the alleged act. Leaving the photo array aside
for the moment, the month-long delay between the robbery and confrontation weighs in favor of
the accused when the circumstances of the crime and the prior description given by the witness
indicate nothing distinctive about the alleged perpetrator or about the witness’s ability to perceive
anything distinctive about him. There is no basis in the record to conclude that the reliability of
Mrs. Sykes’s identification somehow strengthened over the course of this month, or that she
remembered details she had forgotten during the first photo array. The same is true of the year
*27
that passed between the robbery and her identification of Young at his first trial and the eight
years separating the robbery from the independent source hearing.
See Raheem
,
Finally, we note that using the suppressed lineup as the second end-point makes sense
only when the lineup is “nonsuggestive.”
Crews
,
* * *
Because all six
Wade
factors weigh against a finding that Mrs. Sykes’s in-court
identification could derive from a source other than the tainted lineup, the State failed to meet its
burden to prove an independent basis by clear and convincing evidence. The Court of Appeals’
determination otherwise was based on its mistaken impression that the independent source
inquiry was an “issue of fact” to be resolved by the trial court and upheld on appeal so long as
there was “support in the record.”
Young
,
II.
The State’s primary argument on appeal is that we are barred by Stone from considering Young’s claim and, notwithstanding the State’s failure to raise the issue below, we should consider it on appeal. We hold that, because the Stone rule is non-jurisdictional, it is waivable by the State, and we decline in the exercise of our discretion to consider it on appeal.
In
Stone
, the Supreme Court held that “where the State has provided an opportunity for
full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal
habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure
was introduced at his trial.”
However, the Supreme Court has made it clear that
Stone
’s limitation on federal habeas
relief is not jurisdictional.
Withrow v. Williams
,
The State nonetheless contends that Stone is jurisdictional because it “made [habeas] relief categorically unavailable by collateral review.” Resp.’s Reply Br. 3. There is no merit to this contention; Stone itself refutes it. In responding to Justice Brennan’s dissent that Stone “la[id] the groundwork for a ‘drastic withdrawal of federal habeas jurisdiction,’” the Stone majority explained that it held
only that a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review. Our decision does not mean that the federal court lacks jurisdiction over such a claim .
1
7
Here, despite four years and numerous opportunities to do so, the State never raised
Stone
8
and the record is bereft of any reason as to why it failed to do so.
See Boardman v. Estelle
, 957
*31
F.2d 1523, 1537 (9th Cir. 1992) (“The Supreme Court has enforced strict procedural forfeitures
on habeas petitioners in the interests of efficient and final adjudication. Why should not the state
be similarly held to a pedestrian rule of appellate procedure? Concerns of federalism and respect
for a state’s criminal judgments are marginal here because the state brought the problem on
itself.”). Moreover, indulging that argument would require a remand to afford Young the
opportunity to argue either why
Stone
does not apply or why he did not have a full and fair
opportunity to litigate his claim. On a petition that has been pending for over five years, that
would constitute an unjustifiable waste of scarce judicial resources, undermining the comity and
federalism concerns that also underlie
Stone
.
See Withrow
,
What is more, it is difficult to imagine a case further afield from the “typical Fourth
Amendment claim, asserted on collateral attack” than this one, where the issue Young is “asking
society to redetermine” has
everything
to do with “the basic justice of his incarceration.”
Stone
,
III.
We turn now to the question of whether Young was prejudiced by the improper
admission of Mrs. Sykes’s identification testimony. When, as here, there is no state court
holding to which AEDPA deference applies, a federal court in habeas must determine whether a
state court’s error in admitting identification testimony had a “substantial and injurious effect or
influence in determining the jury’s verdict.”
Brecht v. Abrahamson
,
Here, Mrs. Sykes’s identification testimony clearly bore on an essential and critical issue: the identity of the robber. Her testimony was also crucial to the prosecution’s case. The only other evidence tying Young to the robbery was Isaac’s testimony that the items found in her home, matching the description of items stolen from the Sykeses’ house, were given to her by *33 Young to sell. Leaving aside the question of whether Isaac’s testimony may have been influenced by a desire to protect Gordon – a close acquaintance whom she knew also to be a suspect in the Sykes robbery (and who better matched Mrs. Sykes’s physical description of the perpetrator) – Isaac provided no insight into how Young acquired those items to begin with. Meanwhile, Kimbrel could not link the gloves found at her residence – from which as many as 30 people came and went on a nightly basis – to Young, and the state offered no physical evidence that would have identified Young as the robber.
On these facts, we have little difficulty concluding that the admission of the unreliable in- court identification had a “substantial and injurious” influence on the jury’s deliberations. Here, we again find illuminating research presented by the Innocence Project, indicating that identification evidence is “comparable to or more impactive than physical evidence . . . and even sometimes [than] confession evidence.” Melissa Boyce et al., Belief of Eyewitness Identification Evidence , in 2 Handbook of Eyewitness Psychology: Memory for People 501, 505 (R.C.L. Lindsay et al. eds., 2007). Moreover, “[t]he existence of eyewitness identification evidence increases the perceived strength of the other evidence presented.” Boyce, at 505.
Studies also suggest that jurors tend to overestimate “the likely accuracy of eyewitness evidence,” John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications , 7 Law & Hum. Behav. 19, 28 (1983), perhaps because they “rely heavily on eyewitness factors that are not good indicators of accuracy,” Tanja Rapus Benton et al., Has Eyewitness Testimony Research Penetrated the American Legal System?: A Synthesis of Case History, Juror Knowledge, and Expert Testimony , in 2 Handbook *34 of Eyewitness Psychology: Memory for People 453, 484 (R.C.L. Lindsay et al. eds., 2007). Social scientists theorize that jurors do this, as the Innocence Project explains, because many of the scientific principles underlying the reliability of eyewitness testimony are counter-intuitive or do not comport with common sense. Michael R. Leippe, The Case for Expert Testimony About Eyewitness Memory , 1 Psychol. Pub. Pol’y & L. 909, 921 (1995). Whatever the cause, the effect is that jurors frequently cannot accurately discriminate between correct and mistaken eyewitnesses and rely on the testimony of mistaken eyewitnesses. Id. at 925.
The jurors may also erroneously have relied on certainty as an indicator of accuracy.
[12]
“[M]ock-juror studies have found that confidence has a major influence on mock-jurors’
assessments of witness credibility and verdicts.” Neil Brewer & Gary L. Wells,
The Confidence-
Accuracy Relationship in Eyewitness Identification: Effects of Lineup Instructions, Foil
Similarity, and Target-Absent Base Rates
, 12 J. Experimental Psychol.: Applied 11, 11 (2006).
Yet scientific research suggests that “eyewitness confidence is a poor postdictor of accuracy.”
Steven M. Smith et al.,
Postdictors of Eyewitness Errors: Can False Identifications Be
Diagnosed?
, 85 J. Applied Psychol. 542, 548 (2000). Because eyewitnesses sincerely believe
their testimony and are often unaware of the factors that may have contaminated their memories,
they are more likely to be certain about their testimony.
See United States v. Bartlett
, 567 F.3d
901, 906 (7th Cir. 2009) (explaining that the “problem with eyewitness testimony is that
*35
witnesses who
think
they are identifying the wrongdoer – who are credible because they believe
every word they utter on the stand – may be mistaken”). And because jurors confound certainty
and accuracy, cross-examination is less likely to be effective in discrediting eyewitnesses. Jules
Epstein,
The Great Engine that Couldn’t: Science, Mistaken Identifications, and the Limits of
Cross-Examination
, 36 Stetson L. Rev. 727, 772 (2007);
Henderson
,
CONCLUSION
For the reasons just stated, the judgment of the district court granting the writ and
ordering Young’s convictions vacated is affirmed. Because Young is currently serving a term of
25 years to life on an unrelated charge, that judgment does not require his release. Although the
State did not address (in any fashion) the district court’s “extraordinary remedy of precluding the
prosecution from retrying Young,”
Young
,
1 If the State seeks to retry Young (without, of course, the eyewitness identification of Mrs. 2 Sykes), Young is free to argue in state court that the re-prosecution is barred.
Notes
[1] The parties consented below to disposition of the matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
[2] The Appellate Division, Fourth Department, determined that Young was arrested without
probable cause.
See People v. Young
,
[3] At a hearing held eight years later, Mrs. Sykes stated that she also told the police the intruder’s skin was light black.
[4] At a hearing held five days after the photo array, Mrs. Sykes stated that she selected someone other than Young. However, at a hearing held eight years later, she asserted that she made no identification from the photo array.
[5] The dissenting judge further chided the majority for “miss[ing] the opportunity to hold that . . . , as a matter of law, where eyewitness identification is attenuated and possibly tainted, and corroborating evidence is weak, courts should allow expert testimony concerning eyewitness identification.” Id. at 50.
[6] By contrast, in determining whether a witness’s pre-trial identification has reliability
independent of
unduly suggestive identification procedures
, courts examine the following factors: “[(1)]
the opportunity of the witness to view the criminal at the time of the crime, [(2)] the witness’ degree of
attention, [(3)] the accuracy of the witness’ prior description of the criminal, [(4)] the level of certainty
demonstrated by the witness at the confrontation, and [(5)] the length of time between the crime and the
confrontation.”
Neil v. Biggers
,
[7] The Innocence Project is an organization dedicated primarily to providing pro bono legal and related investigative services to indigent prisoners whose actual innocence may be established through post-conviction evidence. It pioneered the post-conviction DNA model that has led to the exoneration of 289 innocent persons to date, the vast majority of whom were originally convicted based, at least in part,
[9]
See also State v. Guilbert
,
[10] Three of the four courts of appeal to have considered the issue appear to agree.
See United
States v. Ishmael
,
[11]
See, e.g.
,
Day v. McDonough
,
[12] We note that, in concluding that Mrs. Sykes’s in-court identification had an independent basis, the trial court itself expressly relied on the fact that Mrs. Sykes “seemed most certain of her ability to identify [Young].” App. at 195.