Joel Freedman, a frequent contributor to MPNnow of Canandaigua, New York, has posed a question very important to the Rosario family whose gatherings take place at Sing Sing Correctional Facility in Ossining, New York. His opinion piece (here) asks, “Why is Richard Rosario still in jail?” The question has a short answer, but it elevates a troubling issue in DNA-era criminal justice.
Based on the eyewitness identification of two witnesses who did not know him, Rosario was convicted of the June 19, 1996, fatal Bronx street shooting of Jorge Collazo. He was sentenced in 1998 to 25 years to life. Rosario’s wife of 22 years and three children have stood by him and his claim of innocence and so has the Exoneration Initiative, an organization that focuses primarily on New York claims of wrongful conviction in cases that have no DNA evidence.
According to Freedman’s account, the two witnesses initially were unable to identify the shooter, but they eventually selected Rosario from photographs on file in the 43rd District. Rosario had a record of robbery and possession of stolen property. But he also had 13 witnesses that said he was in Florida when the Bronx shooting occurred. Freedman notes that “there is no evidence police or prosecutors contacted these witnesses.”
A third witness failed to identify Rosario, and the “prosecution didn’t refute Rosario’s claim that he didn’t know Collazo,” the victim. But prosecutors successfully undermined Rosario’s alibi witnesses, because they were his friends.
(Note: Many DNA-proven wrongful convictions reveal that jurors discounted alibi witnesses simply because they were friends or family members, a frightening thought since friends and family are the folks with whom most people spend their discretionary time.)
Freedman’s opinion expresses agreement with one federal appeals court observation that eyewitness evidence “uncorroborated by a fingerprint, gun, confession or co-conspirator testimony is a thin thread to shackle a man,” and is “precisely the sort of evidence that an alibi defense refutes best.”
Freedman writes, “Even though one federal appeals court judge found that Rosario’s alibi witnesses provided ‘indisputably critical data points in establishing Rosario was in Florida when the victim was murdered,’ Rosario is still in prison.”
Rosario has been productive as an inmate grievance representative, a language tutor, and as a participant in his continuing efforts to prove his innocence. The Exoneration Initiative has won the support of Acting Supreme Court Justice Peter Moulton in a request to gain access to NYPD records of the case.
DNA-proven wrongful convictions have revealed that mistaken eyewitness identification—present in 43% of all wrongful convictions recorded since 1989—is one of the most prevalent contributors to convicting the innocent. In an important analysis, “Exonerations in the United States, 1989 -2012 Report by the National Registry of Exonerations,” a joint project of University of Michigan Law and the Center on Wrongful Convictions at Northwestern Law (here), mistaken witness identification was identified in 80 percent of sexual assault convictions that later became exonerations. Mistaken witness identification was also the most frequent contributor to conviction errors in robberies (81%) and other violent crimes (51%).
FBI records of eyewitness identifications primarily in sexual assault cases in which the DNA of the suspect, usually identified by the victim, was paired with DNA from the crime, revealed in thousands of cases over many years, that mistaken eyewitness identification occurred consistently in about 25 percent of these cases.
Eyewitness identification is an important investigative tool; however, when an identification is uncorroborated by any other evidence, especially in stranger-to-stranger identifications, prosecutors, judges, and jurors can no longer ignore the elephant in the room of criminal justice: eyewitness fallibility.
For those seeking truth in justice and not just convictions, the Rosario case and others like it prompt an unavoidable challenge: Can a prosecution relying solely on a form of evidence, which has demonstrated a twenty-five percent error rate, establish guilt beyond a reasonable doubt?