Can Justice Be Blinded by Eyewitnesses?

For the last several weeks, I’ve been thinking constantly about a 17-year-old boy I’ve never met. His name is Arthur Carmona, and he’s been in the Orange County Jail for nearly 15 months, charged with two armed robberies.

Last October, a jury convicted him. Next week he faces possible sentencing to more than 30 years in prison. The question that has nagged me in recent weeks, after reading 700-plus pages of trial transcript and interviewing a number of people familiar with the case, is this:

Did he do it?

Did Carmona--with no previous record and described as the kind of kid who tried to avoid trouble--brazenly hold up two restaurants a week after his 16th birthday and, yelling obscenities and waving a 9-millimeter pistol, order employees to lie on the floor?

Did Carmona, who told a pastor at a weekend retreat that he wanted to get more involved in church activities, then commit two armed robberies over the next four days?

Did he do it with a confessed accomplice twice his age--a 33-year-old man with whom investigators never established a prior connection?

Yes, said the jury, convinced, as one of them told me, of Carmona’s guilt by eyewitness testimony, which was the heart of the prosecution’s case against him. There is a large body of reliable research indicating that eyewitness testimony, while potentially reliable, is fraught with potential error, especially when race is part of the equation. But that is not the only thing that fuels my consternation in this case. It is the very nature of the eyewitness identifications and how they were obtained that bothers me.

The trail that led Carmona to his jail cell begins about 3:30 p.m. on Feb. 12, 1998, when a young man wearing a dark jacket and baseball cap walked into an Irvine juice bar. Brandishing a handgun, he ordered a frightened clerk to hand over cash in the register. Stuffing $340 into a backpack, the gunman ran across the street to a Texaco station parking lot, where he jumped into a pickup truck driven by an accomplice.

A suspicious citizen jotted down the license number on a check stub. Within the hour, the 33-year-old accomplice, Shawn Kaiwi, was arrested at his Costa Mesa apartment. He would later plead guilty to the robbery and now is in prison.

Some 30 minutes after Kaiwi’s arrest, a Costa Mesa police officer stopped Arthur Carmona as he walked in a nearby residential neighborhood. Believing Carmona matched at least a partial description broadcast over the police radio, the officer detained him, despite Carmona’s statement that he was in the neighborhood to visit a friend.

Shortly thereafter, two clerks from the juice bar were brought to the neighborhood to see if they could identify Carmona. One of them, Walid Abdel-Samad, said that although Carmona’s clothing appeared different from the robber’s, he was “80%” sure Carmona was the gunman. He then asked if Carmona had a hat. Police then put a Laker cap on Carmona’s head. At that point, Abdel-Samad testified, he was 100% certain Carmona was the robber.

What the police didn’t tell Abdel-Samad is that the hat had been found in Kaiwi’s truck and was not linked in any way to Carmona. In fact, Carmona was hatless when the officers stopped him and, to their knowledge, he hadn’t been wearing a hat of any kind that afternoon.

I asked Abdel-Samad recently what was going through his mind at the time of the robbery. “Everybody was scared, workers and customers. I just didn’t want to get shot. That’s what was going through my head. . . . When I first saw him [later], I could tell it was him but I wanted to be 100% sure. I didn’t want to put an innocent guy in jail. When I saw him with the hat, I knew it was him. I’ve never been uncertain since.”

The other juice bar employee taken to identify Carmona was Joseph Kim. He testified as follows:

“When I first saw him [Carmona], I wasn’t sure it was him, but then he put the baseball cap on, the Lakers hat, then I said, ‘That’s him.’ ”

A moment later, he added: “I can’t do it by the face. I couldn’t identify him, just the face. I told the cop that too.”

A third eyewitness was Casey Becerra, the server from a Costa Mesa Denny’s robbed two nights before the Irvine robbery. A couple of weeks later, she couldn’t pick Carmona out of a photo lineup, testifying that she thought all six people had similar characteristics to the robber.

She identified Carmona for the first time two months later, when she appeared at Carmona’s preliminary hearing. He was dressed in jail garb and named as the suspect in the case.

The other Denny’s employee held up at gunpoint was George Algie. He testified that he couldn’t identify Carmona as the gunman.

Another key witness was Christine Hoffman, a Costa Mesa resident who notified police less than 20 minutes after the Irvine robbery that someone was climbing over a wall that separates her property from the Corona del Mar Freeway.

Within an hour of phoning police with her sighting, Hoffman was taken to the nearby street where Carmona was detained. She waited in a steady rain as he climbed out of the police car.

She told me recently that it was Carmona’s clothing and general appearance that caught her eye. Because the person she’d seen on the wall had a hat, “I asked [the police] if he had a hat.” Police obliged by again putting the Laker hat they found in Kaiwi’s truck on Carmona. At that point, Hoffman says, she was certain. At trial, she testified the hat “concreted in my mind that it was him.”

I asked Hoffman if it would bother her to know that police now concede that Carmona wasn’t wearing the Laker hat or any hat when they stopped him.

“Oh, yeah, it does,” she says, “because I remember specifically asking if he had a hat.”

The witnesses were critical for one simple reason: No physical evidence linked Carmona to the robberies. None. His prints weren’t found on the gun or anywhere in the getaway truck. The robber wore a jacket and hat, but when Carmona was arrested, he again had neither. Further, despite finding the gun, the hat and the backpack used in the juice club robbery at the accomplice’s apartment, police never found the money.

Scott Fraser has a doctorate in psychology and works for the psychological research firm of Applied Research Associates in Los Angeles. He says he has taught college classes for years on eyewitness memory and identification. Eyewitness testimony can be reliable but is notorious for its potential for mistakes, Fraser says.

He wouldn’t comment on the Carmona case (of which he was unaware) but noted that “field lineups,” such as those to which witnesses Hoffman, Abdel-Samad and Kim were taken, have a higher rate of misidentification than other tests. Among the reasons, Fraser says, is that witnesses typically are viewing only a single individual, as opposed to a lineup of several possibilities.

Moreover, “one of the consistent findings in the field from 100 years of research shows people are less accurate in identifying members of a different race than their own,” says Fraser, adding that this is true even under favorable viewing conditions.

From the moment of his arrest, Carmona maintained his innocence. So, too, has a circle of supporters who claim he is the victim of mistaken identity and inadequate legal defense--certainly, not novel claims for criminal clients.

Yet, Carmona’s support goes a bit beyond the ordinary. Santa Ana school board member and attorney Nadia Maria Davis has joined in a motion for a new trial for Carmona. At her behest, Santa Ana Mayor Miguel Pulido--although not intimately familiar with the case, according to an aide--has taken the rare step of writing a letter in Carmona’s behalf to trial judge Everett Dickey.

Davis says she originally was reluctant to get involved in the case, partly because “I have a responsibility on the school board that I have to be sensitive to.” But, she says, it was at the urging of another attorney she respects and her reading of the facts that convinced her to become involved.

Irvine Police Det. Gary Cain led the investigation of Carmona. He spoke with me at length about the case and says he’s comfortable with the Carmona conviction. It obviously would have helped to recover money from the robberies or hard evidence, but Cain says he knows of nothing that exonerates Carmona.

I asked Cain if it troubled him that no evidence linked Carmona and Kaiwi.

“In a perfect world, we would have known that,” Cain says. “It would be nice to have the answer, but there’s hardly any case I have where all the answers are known.”

The decision to put the robber’s hat on Carmona occurred before he got to the scene, Cain says. “I’m not sure whether I’d do that myself,” Cain says. “If that was the whole case, it would be different, but it’s not.”

Despite dangling both carrots and sticks in front of Carmona during a police station interview, Cain and another detective couldn’t shake the teenager’s claim of innocence. Not even telling Carmona, as a ploy, that Kaiwi said Carmona carjacked him convinced Carmona to confess. Nor did Carmona flinch when told, falsely, that he’d been caught on film by a video camera at the Texaco station.

This unwavering from a 16-year-old special education student who had never had a run-in with police--except for not wearing a bicycle helmet--and who suddenly found himself subjected to a face-to-face grilling by two detectives.

Kenny Reed, Carmona’s original court-appointed attorney, is in a touchy position when discussing the case. New lawyers for Carmona have filed a motion for a second trial, citing mistakes or oversights they believe Reed committed.

They contend Reed didn’t fully investigate the case. Among other things, they contend, he should have interviewed possible alibi witnesses and called experts on eyewitness testimony. They also say Reed should have demanded that witnesses be subjected to a standard physical lineup with multiple persons and that he should have filed a pretrial motion to suppress identifications involving the hat taken from Kaiwi’s truck.

Reed wouldn’t discuss with me the particulars of his defense strategy, other than to defend his performance. “I can tell you this,” he says, “this case does gnaw at me, because they teach us [in law school] that I.D. evidence is the worst kind, but it’s also the one jurors believe the most.”

Mark Devore is Carmona’s new lead attorney. “This case goes to the heart of society’s belief that an eyewitness identification is enough to convict somebody,” he says. “We believe the witnesses believe that person they all saw was Arthur. But that’s just not true.”

I spoke earlier this week to Ken Wilson, pastor at Seeker’s Chapel in Fullerton. The weekend before the two robberies, Wilson says, Carmona told him he wanted to get more involved in church activities, after having joined cousins at previous functions.

Wilson, who estimated he’s visited Carmona 50 times in jail, says he thinks Carmona was genuinely moved by having attended a church retreat that weekend.

“I’ve been in youth work since 1984,” Wilson says. “It’s not that I’ve never been fooled--I have been--but not in this type of situation where it goes on and on for a year and nothing surfaces that tells me to be suspicious.

“It’s impossible for me to believe that this is the type of kid who could stick a gun in someone’s face and demand money. In anger, you can push people to do a lot of things, but to calculate something and to think, ‘I’m going to stick a gun in someone’s face,’ on more than one occasion, and that ‘I can kill someone right now,’ that’s not Arthur, that’s not him. He doesn’t have that kind of makeup.”

Bob Navarro, a detective during much of his 28 years with the Los Angeles Police Department, now runs a private investigative firm. He was retained by the Carmona family to fully investigate the case, which he says he did. “I have a definite sense that they have the wrong guy, I’m 99% sure they do,” he said.

Deputy Dist. Atty. Jana Hoffman, who prosecuted the case, wouldn’t discuss it. However, she told the jury in her closing argument: “Ladies and gentlemen, you know just from how the facts came out in this case that the contest here is whether or not you believe the eyewitnesses.”

Which is precisely my concern.

Can I sit here and say for a fact Arthur Carmona didn’t commit the robberies?

No.

Should he get a new trial?

Absolutely.