Witness Mistakes Costly for Accused

In an era when death row inmates are being exonerated by DNA evidence, the 89 days Louie Gomez spent in County Jail for a crime he did not commit may not sound like much.

It took the justice system that long to recognize troubling inconsistencies in the robbery case against Gomez, and for the victim’s identification of him to fall apart, costing the Los Angeles man two jobs and three months of his life.

“I told them, ‘I’m not a thief.’ They didn’t believe me,” Gomez said. “They were wrong, but as long as the lady said it was me, that’s all it took.”

The case, which ended in Gomez’s exoneration on Aug. 8, illustrates how vulnerable people can be to mistaken identification by witnesses. Misidentification is the leading cause of wrongful convictions, said UC Irvine professor Elizabeth Loftus, who has researched the topic extensively.

Of 110 people nationwide exonerated by post-conviction DNA testing, about three-fourths were wrongfully convicted due to witness misidentification, Iowa State University professor Gary Wells said. Yet the system continues to rely on eyewitness testimony, which is often flawed because the memory is unpredictable.

“While these DNA exoneration cases have gotten strong attention focused on the problem of human memory, we still have a ways to go,” Loftus said.

The risk of misidentification increases if the suspect is a different race from the victim, if the witness is under stress or if the upper part of the face is concealed. And as soon as a misidentification is made, it tends to stick, Wells said. “It becomes the memory,” he said. “And there’s nothing that can really reverse it in their mind.”

In fact, Lilia Javier says she still believes it was Gomez who pushed something sharp against her ribs April 8 in a grocery store parking lot on Huntington Drive in Los Angeles. Javier said she is upset that Gomez was declared innocent and released from jail. “But what can I do? Nothing.”

The night of the robbery, Javier told police that she was tying her daughter’s shoes when a man said, “Don’t talk,” grabbed her purse and ran away. She yelled for help, and a security guard called police. While Javier waited, Gomez walked by, heading to a nearby house where he worked caring for an elderly woman. Javier said he was the thief, and her brother grabbed him, according to the police report.

Los Angeles Police Department Officers Sean Dempsey and Edward Rubio arrived. The radio call had described the robber as a Latino, 25 to 30 years old, with a mustache and a thin build and wearing a black jacket. Gomez was 44, had a mustache, weighed 165 pounds, and was wearing a blue jacket.

Javier told police that Gomez was the one who stole her purse, which had $150 in cash and her driver’s license. Another witness told the officers that she did not get a good look at the suspect, but that Gomez matched her description of the man she saw run away, the report said. Gomez had only 30 cents in his pockets. Police could not find the purse, despite a search.

“I wasn’t confident either way,” Dempsey said. “I felt like there was a possibility it was him, but I didn’t know for sure.”

At the station, Gomez told police he had just taken a break from work to buy a can of beer at a nearby liquor store. He was adamant about his innocence. Police arrested him.

Dempsey later said he noticed that Gomez walked with a limp, even though Javier said the robber ran from the scene. He also said later he was struck by the fact that Gomez did not flee, as most street robbers do, but was spotted as he walked by the scene of the crime. Neither of those observations were in the police report.

Before deciding to book Gomez, the watch commander called up the suspect’s criminal record, discovering three old misdemeanor convictions on drug charges and a burglary arrest from 1975.

The conclusion that Gomez was the right suspect was confirmed by prosecutors, who filed charges. Bail was set at $35,000, far beyond Gomez’s means. “I couldn’t believe it,” Gomez said later. “I was shocked, and I was mad.”

Gomez said he kept thinking police would realize they were mistaken and would let him go. Before his arrest, Gomez had been living with his 73-year-old mother and paying the bulk of the rent on their Los Angeles house. He was earning about $1,570 per month at his two county jobs, as a truck driver and a caretaker, and had received a paycheck the day of his arrest, according to court files.

Los Angeles County Superior Court Judge George G. Lomeli presided over the Gomez preliminary hearing on April 22. The only witness to testify was Javier, who said that she saw the upper half of the suspect’s face, including the nose, eyes and forehead. When she was asked to identify the robber, Javier pointed to Gomez. Based on Javier’s testimony, Judge Lomeli ruled that there was enough evidence for Gomez to go to trial.

Soon after the court hearing, Gomez rejected a deal offered by prosecutors of six months in jail, rather than the five-year prison term he was facing if convicted. “That would be like admitting I was guilty,” Gomez said. “I was innocent.”

Gomez’s lawyer, Deputy Public Defender John Alan, wrote a memo to prosecutors arguing that it was a case of mistaken identity. In his memo, he asked the district attorney’s office to reevaluate the case and release his client on his own recognizance.

“I believe a strong argument can be made for your office not pursuing this case to trial,” he wrote. Alan noted that Gomez did not have the victim’s purse, that he was employed, that he readily agreed to wait for police and that the suspect only saw part of his face.

Los Angeles County Deputy Dist. Atty. Patricia Redifer said that when she read the memo, she called the investigating officer and reexamined the booking photograph to see if Gomez had a distinctive appearance. Redifer said she had questions, but did not have time to sit down with the witnesses because of her heavy caseload.

“The problem is scheduling,” she said. “There are just so many hours in the day that I can spend doing things like additional investigation.” She concluded Gomez was probably guilty. After all, the victim identified him twice. “This sort of thing haunts me,” Redifer said, stressing that she was not speaking on behalf of the office. “I empathize with Mr. Gomez, and I regret it deeply that I did not have the information to free him.” Deputy Dist. Atty. Dmitry Brodsky saw Alan’s memo when the case was assigned to him for trial. Primarily based on Alan’s memo, Brodsky offered to dismiss the charges if Gomez passed a polygraph test. On the advice of his attorney, Gomez said he declined because Alan could not be present during the test and prosecutors would not agree to an examiner outside of LAPD.

Brodsky interviewed Javier on July 5, on the day of trial. She told him that she “was not 100% sure” that Gomez was the robber, according to court papers. Javier acknowledged that when Gomez took his hat off, he looked too old. And contradicting her testimony at the preliminary hearing, Javier said she only saw the suspect’s face from his chin to his nose, and did not see his eyes. She told Brodsky that the mustache was the only particular thing about the suspect’s face.

That same day, Dempsey, the arresting officer, shared his thoughts with Brodsky about how unusual it was for Gomez to have returned to the scene of the crime and to not have run away before police arrived. He also mentioned his earlier observation about Gomez’s limp. Brodsky checked with a court clerk who confirmed that Gomez walked with a limp.

Brodsky said he made up his mind to dismiss the case, and Gomez was freed that day.

“Based on the fact that I had reasonable doubt, I certainly did not want to proceed with the case,” he said. “My job is to do what’s just. It’s better to release 100 guilty than to convict one innocent.”

On Aug. 8, four months after Gomez was arrested, Superior Court Judge Rand Rubin granted the defense’s motion to declare him factually innocent.

Gomez said the time in jail was terrible. He knew his family did not have the money to get him out on bail, so he just stayed in his cell, kept to himself and prayed. He missed scheduled surgeries for a heel spur and a hernia, and it took him two months just to see a jail doctor. “It’s awful, compared to the way we live,” he said. “It changed my life.”

Gomez lost both his jobs when he was in jail, and he has not been able to find a new job since being released. He has applied for public assistance to help his mother, who relied on her other children while he was behind bars. But Gomez said he does not fault Javier. “She wasn’t lying, she just thought it was me,” he said.

Head Deputy Dist. Atty. Lauren Weis said there is no excuse for what happened to Gomez. “I can only tell you that our lawyers are extremely overworked,” she said. “Sometimes things slip through the cracks.”

For his part, Dempsey still isn’t sure of Gomez’s innocence or guilt. “He got his day in court, and he was cleared,” he said.

Alan sees it differently.

“I’m mad at the police for not having enough sense to believe that this guy might be innocent and instead operating on auto pilot ... and the district attorney’s office for ignoring my memorandum,” he said.