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Saturday, January 14, 2012

U.S. Supreme Court upholds Nashua conviction despite debate over reliability of eyewitness testimony

A Nashua man’s break-in conviction from 2008 was upheld for a final time this week when the U.S. Supreme Court denied Barion Perry’s claims that an eyewitness was unfairly influenced before identifying him.

The ruling, handed down last week, upholds the felony theft conviction resulting from Perry’s theft of two radio speakers from a parked vehicle. New Hampshire public defender Richard Guerriero had argued before the U.S. Supreme Court in November that judges’ courts should take special precautions to ensure eyewitness testimony is accurate.

The court denied Guerriero’s arguments and upheld Perry’s felony conviction.

Police said they responded to the theft after a woman called and reported that “a black male was trying to gain entry into vehicles located in the back parking lot of an apartment building.” When Nashua Police Officer Nicole Clay responded, she found Perry holding two speakers, which he claimed he had found on the ground.

Upon questioning, a neighbor said she saw “a tall black man” break into the vehicle. Without being prompted, the neighbor, Nubia Blandon, went to her window and identified Perry as the man she saw. Perry was standing next to another officer in the parking lot at the time, according to court documents.

Perry’s lawyers argued that seeing Perry next to a police officer could have unfairly influenced the woman’s identification.

The court has ruled previously that a defendant’s right to due process can be violated when police create “suggestive” situations to induce an eyewitness to identify a suspect.

Perry’s lawyer argued that his due process was violated by a suggestive situation even if the police didn’t create the situation.

The Supreme Court ruled that defendants don’t have a right to prevent potentially unreliable evidence during trial because they have the opportunity to persuade the jury that it is, in fact, unreliable.

The court ruled 8-1 to uphold the lower court’s ruling. Justice Sonia Sotomayor dissented.

Perry wasn’t the first to ask the court to issue special rules around eyewitness testimony. The American Psychological Association, the Innocence Network and the Criminal Defense Lawyers Association have cited a book by University of Virginia law professor Brandon Garrett that showed that 190 of the first 250 exonerated by DNA evidence were first convicted because of eyewitness testimony.

Guerriero said questions about eyewitness testimony are unique.

“If somebody else came along and said, ‘We’ve done a study and we find … that in 75 percent of the wrongful convictions, this evidence contributed to the miscarriage of justice,’ then I would think the court should take a look at that,” Guerriero said. “But I don’t think any other evidence matches that.”

He said the ability to cross-examine witnesses doesn’t take care of the problem, and that in the vast majority of cases, the witnesses aren’t lying, they’re simply mistaken.

“The witness’ sincerity has a powerful effect on the jury,” Guerriero said.

Joseph G. Cote can be reached at 594-6415 or Also, follow Cote on Twitter (@Telegraph_JoeC). Washington Post reports were used in this story.