Wednesday, November 13, 2013 11:51 PM
Attorneys work to free convicted killer
By Olivia Neeley | Times Staff Writer
A flawed lineup is what largely led to Charles Ray Finch’s conviction in 1976. And that alone should now set him free, a nationally renowned defense attorney said Wednesday.
Raleigh attorney Joseph B. Cheshire V, part of the team that cleared former Duke University lacrosse players, testified that the prosecution’s case was based "almost all or entirely” on the eyewitness identification of Finch as the killer that night back in 1976.
Cheshire said the eyewitness who picked Finch out of a live lineup after his arrest did so not based on his facial features but simply by what he was wearing in the lineup.
"All the evidence shows he (the eyewitness) identified him from his clothes,” said Cheshire, adding not what Finch actually looked like. "Other than the Duke Lacrosse lineup, I don’t think I have seen anything more suggestive as this,” he said.
The unprecedented evidentiary hearing began Wednesday in the murder conviction of Finch, who is currently serving a life sentence in the killing of Richard "Shadow” Holloman, who was gunned down after a failed robbery attempt inside his country store located on U.S. 117 in Black Creek on Feb. 13, 1976.
Finch, who is now 75, has spent the past 37 years in prison for a killing he has always maintained he didn’t commit. After a decade-long investigation into Finch’s case, Duke’s Wrongful Conviction Clinic laid out some of its case Wednesday on why Finch’s conviction should be overturned. Duke brought some heavy hitters to Wilson, including a nationally recognized expert in eyewitness memory, whose expertise in the subject was used when North Carolina developed a lineup procedure and Eyewitness Identification Act law in 2007. Part of Finch’s defense team included Attorney David Rudolf, who has defended clients including Rae Carruth and Michael Peterson.
The Wilson County courtroom was packed with onlookers including Finch’s family, students, attorneys and family members of Holloman.
Finch, who has been waiting on this hearing for decades, sat quietly beside his defense team Wednesday. Finch, wearing a green checkered shirt and black pants, listened closely to the testimony. He often looked over at his family while proceedings continued before him. Superior Court Judge Milton F. Fitch Jr. allowed family members to visit with Finch individually during breaks.
On the night Finch was arrested in the death of Holloman, he was placed in a lineup along with six other black men. But Finch stood out due to the fact that he was the only suspect wearing a three-quarter-length coat, his attorneys and experts argued Wednesday.
Attorneys said the fact Finch was the only one wearing a coat in all three lineups suggested he was the man the sole eyewitness to the killing, Lester Floyd Jones, should identify. Finch’s attorneys argued that the lineups were biased and unreliable.
The coat, attorneys said Wednesday, was a "cue” for Jones to pick Finch as the killer that night.
Research shows even under the best circumstances, eyewitness identification is highly problematic, according to Duke attorneys’ court motions. It is also the single most common factor in the vast majority of wrongful convictions, they said. According to Harvard research, out of 250 DNA exonerations cases, researchers found "eyewitnesses misidentified 76 percent of exonerees.”
Cheshire, who testified as a criminal defense expert, said the basis of prosecutors’ case against Finch at the time began with the eyewitness identification, then tied it in to the rest of the evidence.
Cheshire said Finch’s defense attorney should have been "jumping up and down” when he saw the photographs of the lineups because of its suggestiveness. And if Finch’s attorney had done that, he believes, Finch wouldn’t be in prison today.
Brian Cutler, professor at the University of Ontario Institute of Technology and an expert in eyewitness memory, testified that the evidence of "strong cues,” such as Finch being the only one wearing a dark coat in the lineup, could mislead a witness in making a positive identification. And repeated attempts in the lineups would also build confidence in the witness’ identification.
EYEWITNESS INCORPORATES COAT
After the shooting that night back in 1976, Jones wrote down an initial description of the suspects to a highway patrolman who was the first on the scene. Jones later said during the pre-trial hearing and trial itself that Finch was wearing a leather coat at the time of the shooting. Jones testified that to the best of his knowledge he included the coat in his handwritten description of the killer. But he did not, court documents show.
Frank Brown, who was an assistant district attorney at that time, told jurors during closing arguments in Finch’s original trial that Jones had included the coat in his initial description of the killer. And Tony Owens, who was chief deputy for the Wilson County Sheriff’s Office at the time of the killing, testified during Finch’s trial that Jones told him about the coat when he interviewed Jones at the murder scene.
Attorneys argued that Jones began to incorporate the coat description into his testimony based on the suggestiveness of the lineups when Finch was the only one wearing the coat.
Owens, lead investigator in Finch’s case, was the first to testify Wednesday.
Rudolf asked Owens if he had done anything to prepare for Wednesday’s hearing.
"... a lot of praying and a lot of thinking back 37 years ago,” he said.
Rudolf continued to ask if that preparation included calling former deputies or assistant district attorneys in the 1976 case.
Owens paused for several seconds and then told the court he did call former assistant district attorney David Williams. He wanted to know if Williams knew or remembered the live lineups staged by him not long after Finch was arrested in Holloman’s killing.
Rudolf pressed Owens on several questions about the procedure in which Owens replied he didn’t recall. Owens testified Williams remembered something.
Owens recalled the eyewitness "immediately” identified Finch from the lineup, he said. At one point he testified that it wouldn’t be fair if Finch were the only suspect in the lineup wearing a coat. He also testified that Finch was not wearing a coat during the lineups.
Rudolf pulled out one of the photos of the original lineups and asked Owens what Finch was wearing.
"A black quarter length coat,” Owens said. "Is anyone else wearing the coat?” Rudolf asked.
"No,” Owens replied.
Rudolf pressed Owens, saying that he earlier testified it wouldn’t have been fair if Finch was the only suspect wearing a coat. Rudolf then asked Owens if he knew it wasn’t fair, then why did he do it.
"I have no idea,” he said.
Rudolf showed Owens a second lineup photograph and said Finch was still wearing a coat.
"If it was unfair the first time, it was even more unfair the second time, isn’t that right?” Rudolf said.
"Not more unfair, but unfair,” Owens replied.
"Not a single other person was wearing a dark quarter length coat,” Rudolf said.
The Wilson County District Attorney’s Office argued that the store was well lit the night of the killing for Jones to be able to see the description of the men and later identify Finch as the perpetrator.
Wednesday’s testimony also included a State Bureau of Investigation agent, former Wilson County Assistant District Attorney David Williams and James Coleman Jr., Duke University School of Law professor, co-director of the Duke Wrongful Convictions Clinic and faculty adviser to the Duke Innocent Project.
The hearing is expected to continue today.
BEFORE THE HEARING
In January, the Duke Wrongful Convictions Clinic filed a Motion for Appropriate Relief on behalf of Finch asking the court to overturn his conviction based on various new pieces of evidence.
That motion lists several claims for Charles Ray Finch’s relief including:
• Failure to disclose a Feb. 17, 1976 medical examiner report showing Richard "Shadow” Holloman died from multiple gunshot wounds, not a shotgun wound, which contradicts the sole eyewitness account to what happened the night of the killing.
• Failure to disclose that the state’s key witness identified another man involved in the attempted robbery from a photographic lineup on Feb. 17. 1976, which was not discovered until 2011 by the Innocence Project.
• Failure to disclose that a sawed-off shotgun was seized at the Wilson County Jail from another alternate suspect.
• Cumulative effect of the state’s failure to disclose exculpatory evidence that violates both the United States and North Carolina constitutions.
• The state knowingly allowed and elicited misleading and false testimony to bolster its key witness and secure Finch’s conviction.
In July, the Wilson County District Attorney’s Office filed a response to Duke’s Motion for Appropriate Relief in Finch’s case, in which they denied the allegations.
"The state denies each and every allegation of fact and law made by Finch except those specifically admitted herein,” according to the response. On some specific allegations, the state said in its response that they were "without sufficient information to admit or deny” those claims made by Duke’s Wrongful Convictions Clinic.
©The Wilson Times, Wilson, North Carolina.
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