A few months ago, James “Cass” Garner walked out of prison after serving 15 years in prison for a crime he says he did not commit. In 2012, a jury convicted Garner of a triple shooting based in large part on in-court identifications by the victims. In April a judge vacated his convictions.
Long-standing concerns about in-court identifications, in addition to Garner’s continued assertions that he was innocent, attracted the attention of the University of Colorado’s Korey Wise Innocence Project. Partnered with one of the wrongfully convicted Central Park Five, the Innocence Project picks its cases carefully. They often select those that have the ability to affect policy going forward.
Garner’s case calls into question the utility of in-court identifications. Are such in-court identifications necessary or helpful? Or do they do more harm than good?
Trials that predate the founding of our country have traditionally relied on in-court identifications. Even if you have never set foot in a courtroom, you can picture the moment in your mind. A prosecutor asks a witness who committed the crime and the witness points to the defendant and says “that’s the one.”
The scene is so steeped in suspense and anticipation that it has become a staple in every Hollywood courtroom drama. It is the literal answer to “who dun it?” Of course, real life is rarely as simple as a two-hour movie.
In Garner’s case, the crime he had been convicted of occurred in 2009. A late-night altercation at a bar took a violent turn when gunshots rang out. Three brothers were hit and suffered serious wounds. In the immediate aftermath, the brothers gave differing descriptions of the shooter and none identified Garner. One even noted that while he saw Garner at the bar that night, he did not believe he had been the shooter.
Fast-forward three years. Try to picture that scene. Garner dressed in different clothing, the lone defendant sitting with his lawyers. Three brothers who suffered serious injuries telling the jury about that night.
Despite no prior identification of Garner, each of the three brothers sat in the witness stand and told the jury that he had been the shooter. To the jury hearing about the crime for the first time, it must have sounded assured and confident when they pointed out the defendant. The corroborating testimony by the brothers persuaded the jury to convict Garner.
In 2019, a split decision of the Colorado Supreme Court considered Garner’s case and allowed such identifications, even when the same witnesses had previously failed to identify the defendant in out-of-court settings. That makes it binding law in Colorado.
But it does not mean it is right.
In an impassioned dissent, Justice Melissa Hart (a former CU law professor), noted, “of all the evidence that may be presented to the jury, a witness’ in-court statement that ‘he is the one’ is probably the most dramatic and persuasive … there is almost nothing more convincing to a jury than eyewitness identification of the defendant.” However, as Hart also wrote, “in-court identifications like other eyewitness identifications are also remarkably fallible. Amicus curiae, the Innocence Project, has found that eyewitness misidentification is the leading cause of DNA-confirmed wrongful convictions.”
Effectively, despite what science, technology and experience have taught us, we remain bound by rules that governed when horse and carriage was the primary mode of travel.
That is not to say there is no place for witness identification. But in a world where police wear bodycams and police interrogations are video-recorded, it would make more sense to do the same for witness identifications. Record the identification process and let the jury watch it. Let them judge whether there was indecision when choosing from a lineup. Let them decide if the description matched the person on trial.
Certainly that would beat the prejudice imposed on defendants in the current, suggestive system.
Not everyone gets a lawyer like Joe Pesci in My Cousin Vinny, capable of exposing eyewitnesses who need new prescription glasses, have their view blocked by dirty windows and trees, or misremember the time of an event absent the use of magic grits. In fact, that is exactly what Garner did not have.
The failure of his prior attorneys to undermine the brothers’ testimony provided Garner with an argument that he had been provided ineffective counsel. The record and work provided by Garner’s new attorneys demonstrated that 15 years ago the prosecution asked problematic questions without objection from Garner’s defense counsel.
Even the current district attorney, Brian Mason, agreed. His office moved to dismiss the criminal case after he determined “it was just, in this case, to vacate the convictions.” Not every DA would make such a principled decision.
Garner is now a free man trying to put his life together after 15 years locked in prison. The Korey Wise Innocence Project continues to help him by asking supporters to donate items for his new apartment. We can all honor him by reviewing the process that put him there and making changes before someone else suffers the same fate.
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on BlueSky: @MarioNicolais.bsky.social.
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