Wednesday’s rulings by the New Jersey Supreme Court offered the court’s first dissents in more than a year. (Amanda Brown for New Jersey Monitor)
The New Jersey Supreme Court overturned the convictions of two men Wednesday in decisions clarifying rules on in-court identifications and narration of surveillance video, rules that are meant to ensure defendants get a fair trial.
The court ordered new trials for Quintin D. Watson of Middlesex County and Roberson Burney of Essex County, saying errors in the unrelated robbery cases deprived both men of fair trials. In a third case, the court upheld the attempted murder conviction of Dante C. Allen of Monmouth County, who had objected to a detective’s in-trial narration of surveillance video capturing the incident.
It’s unusual for the court to release three rulings in one day, but the cases had overlapping issues.
In Watson and Burney’s cases, victims identified the men as their assailants for the first time in court after suggestive comments from investigators or prosecutors. In Watson and Allen’s cases, defense attorneys argued that investigators’ narration of surveillance video during their trials unfairly prejudiced jurors.
Chief Justice Stuart Rabner wrote the unanimous decision in Watson’s appeal.
“In the case of first-time in-court identifications, witnesses are asked if they can identify their culprit long after the crime took place. They see a single individual seated at the defense table beside a lawyer. And it is evident the prosecution team believes that person is the culprit,” Rabner wrote. “The inherently suggestive nature of the procedure, conducted in front of a jury, evades well-settled protections that the law provides. It therefore risks depriving defendants of their due process rights.”
That’s what happened in Watson’s case, the chief justice wrote.
During a police investigation of the 2017 robbery of a North Brunswick bank, a teller identified someone else as the robber, and Watson became a suspect only after his ex-girlfriend identified him as the perpetrator in other area robberies, according to the ruling. At trial, the teller then told the court he was “maybe like . . . 80 percent” sure that Watson was the robber — but revealed during cross-examination that the prosecutor told him, before trial, that the man seated at the defense table committed the robbery.
“Twenty-two months after the robbery, and months after he identified another person as the robber, the prosecution in effect told the teller whom to identify in court as the defendant,” Rabner wrote.
Judges should allow first-time in-court identifications only “when there is a good reason for them” and with fair notice to the defense, Rabner decreed.
Good reasons include when an eyewitness already knows the defendant, when domestic violence victims identify assailants, and when an officer who arrested a defendant is called to confirm the defendant is that same person, Rabner wrote.
In Burney’s case, he challenged his conviction for an armed robbery at a Bloomfield home on Christmas Day 2015.
Long before his trial, the victim said she was 90% sure the man she identified in a photo array was her attacker, but that photo wasn’t of Burney, and she also failed to identify him in a second photo array, according to the ruling. At trial, she identified Burney as the culprit for the first time.
Justice Fabiana Pierre-Louis, quoting Rabner’s Watson ruling in writing the Burney opinion, said detectives investigating Burney made suggestive comments that “impermissibly influenced and tainted” the victim’s at-trial identification of him. Prosecutors also lacked any good reason for making a first-time in-court identification, Pierre-Louis wrote.
Alex Shalom is senior supervising attorney and director of Supreme Court advocacy at the American Civil Liberties Union of New Jersey, which filed briefs in all three cases.
First-time in-court identifications aren’t common, but they’re “really pernicious,” Shalom said.
“We have two different cases here where the government was saying, ‘We understand you were unable to pick someone out when we went through a semi-fair process of using a double-blind, sequential photo lineup. But now that there’s one person sitting next to a lawyer in court, we’re going to ask you, hey, is that the guy?’ Who’s not going to say ‘yes’ in that situation?” Shalom said. “It’s a very suggestive form of identification.”
Wednesday’s rulings “close that loophole,” he said.
“New Jersey is widely recognized as the state that has done the most to limit the use of unreliable identification evidence, and that’s because we recognize how harmful unreliable eyewitness identification can be in the ways that it contributes to wrongful convictions,” Shalom said.
Surveillance video narration
In Watson’s case, the justices objected to the running commentary a detective offered at trial as jurors watched surveillance video of the bank robbery.
“Although an investigator’s specific comments can assist a jury in determining facts in issue, the rules of evidence do not allow for continuous, running commentary on video evidence by someone who has merely studied a recording,” Rabner wrote.
Investigators instead only are permitted to give focused responses to specific questions and offer objective, factual comments but not subjective interpretations, the chief justice wrote. They cannot comment on facts that are reasonably in dispute, which the jury must decide, and should not draw inferences from other evidence, he added.
Allen had raised similar objections in appealing his conviction for shooting at a police officer in Asbury Park in 2015.
At trial, Allen testified that he got a handgun to protect himself from a gang member but ran from an officer who tried to talk to him because he suspected he was armed, according to the ruling. Allen admitted he fired the gun, but said he did not point it at the pursuing officer and it instead went off accidentally when he tried to fling it onto a roof; the officer returned fire and wounded Allen.
At trial, the officer, Terrence McGhee, and the lead forensic detective on the case narrated surveillance video that captured the incident.
Justice Anne Patterson, who wrote the Allen decision, said the detective erred when he told jurors that Allen turned and fired at McGhee, because Allen’s intent was a disputed detail. Still, she wrote, the state otherwise had strong evidence so that error was harmless. She upheld his conviction.
Video narration in court has become “a huge issue” with the increased ubiquity of surveillance cameras, Shalom said.
“We really needed serious guardrails put on the use of narration, because generally speaking, if a jury can do something themselves, we don’t need a witness to tell them how to do it,” Shalom said.
Wednesday’s rulings give prosecutors and defense attorneys alike more clarity on both video narration and in-court identifications, he added.
“Everyone wants fair trials. Everyone wants to only convict the guilty,” Shalom said. “I think this gets us a step closer to that goal.”
Disagreement over harm
Wednesday’s rulings offered the court’s first dissents in more than a year. Both centered on whether the errors justices identified in lower court proceedings were harmless or not.
In Allen’s case, Pierre-Louis wrote a dissent that Rabner and Justice Rachel Wainer Apter joined.
The three justices agreed with the majority’s assessment of which parts of the officers’ video narration were admissible and inadmissible — but declared the error harmful.
“To find otherwise not only diminishes the public’s confidence in the criminal justice system, but also weakens the strong protections put in place by the rules of evidence and Watson to ensure testimony is properly admitted, or excluded, at trial,” Pierre-Louis wrote.
In Burney’s case, Justice Lee Solomon wrote a dissent that Patterson joined.
They agreed with their colleagues’ decision that the trial court erred on the first-time in-court identification issue but felt that error was harmless in light of “the sheer volume of competent evidence” against Burney, which included his DNA evidence on a bag in the victim’s home and photographs of the victim’s stolen watch on his phone.
Such evidence “leads to the inescapable conclusion that defendant was convicted in a fair trial,” Solomon wrote.
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