With two independent eyewitnesses fingering Neville Potter Jr. for murdering Marvis Chamaro and Jack Diehl in 2009, the defense took aim at the reliability of eyewitness testimony before resting its case Thursday.
Jurors heard a pre-prepared deposition from Dr. Jeffrey Neuschatz, an expert in the psychology of witness identification and associate professor of psychology at the University of Alabama in Huntsville. Defense attorney Leslie Payton and Assistant Attorney General Douglas Sprotte questioned Neuschatz for the deposition, and in court the two read their own questions from the deposition transcript, while an officer of the court read Neuschatz’ parts.
Tuesday, on the first day of the retrial, attack survivor Kyle Gumbs and eyewitness James John picked Potter from an array of photos the day of the killing and identified him in court as the perpetrator.
Based upon written testimony from Potter’s first trial in March (which ended in a hung jury) and the defense attorney’s account of how the photo arrays were prepared and presented, Neuschatz testified he believed it would be difficult for Gumbs and John to reliably identify the gunman because of the stress of the crime and the short time they saw the shooter. He also questioned whether police followed the best procedures in presenting the array to the witnesses.
There are four basic criteria to properly hold a lineup or use a photo array for identification Neuschatz said. First, the person administering the lineup should not know who or which photo is the potential suspect. Second, the witness should be told the suspect may or may not be in the lineup, so they feel free to say they do not see the suspect. Third, the defendant should not stick out or be noticeably different in appearance from the others. And lastly, officers should ask for a measure of how confident the witness is of the identification.
Neuschatz said the photo array met the third requirement, with Potter appearing very similar to the other individuals, but he questioned whether the officers may have accidentally influenced the selection because they knew who the suspect was.
Sprotte challenged Neuschatz on why he believed the officer’s presenting the array knew who it was, pointing out that both witnesses were presented the photo array at about the same time, in different locations by different officers, with no evidence the officers knew which person was the defendant.
As to Neuschatz’s suggestion that stress and brevity may have skewed the witnesses reliability, Sprotte asked whether the fact that two witnesses who did not know one another somehow selected the same picture had factored into Neuschatz’ analysis. Neuschatz said it was not a factor at all, to which Sprotte expressed surprise.
Before resting their case, prosecutors presented gruesome autopsy evidence, expert testimony on ballistics and emotional testimony from the victims’ families.
“He had lots of dreams,” Chamaro’s mother Mavis Williams testified. “He wanted to be an architect, a mechanic or an engineer. Right now at home there is a letter for him from Stratford Institute about studying to be a mechanic. And he was working. He loved to take pictures. He loved to travel, and he loved working on things with his hands.” She recounted how he began his interest in building at age four, building huge castles and palaces out of Leggos. “He built his first bicycle by hand at age 13,” Williams said.
“I’m not a stranger to loss. As a nurse I’ve seen a lot of loss,” said JoAnne Sickler, Diehl’s widow. While she has experienced the loss of relatives over the years, “this brought me to my knees,” said Sickler. “I’m affected every day, financially, emotionally, mind, body and spirit … He brought in money, a second income. He always fixed the house. Now I have to pay someone,” she said.
“You don’t go through grief, you don’t go around it and it doesn’t end. It simply changes.”
Dr. Francisco Landron, medical examiner for the U.S. Virgin Islands, recounted in graphic detail how each bullet entered and exited and how each victim died.
Accompanying charts showing the wounds were the actual autopsy photos of the bullet entrance and exit wounds. Chamaro was shot six times, with two shots to the face, dying of multiple gunshot wounds, he said. Diehl was shot twice and killed with a shot to the back of the head from less than two feet away, Landron said.
Potter’s defense attorney Leslie Payton asked whether Landron found anything to indicate who had done the shooting. “No it does not,” Landron said. His work only established the circumstances and details of the deaths, he said.
Defense and prosecution both rested their cases Thursday. Closing arguments and jury instructions are scheduled to begin 9 a.m. Friday.