Wednesday 10.11.17 – Day two of my evidentiary hearing began at 4 AM for me. I was up after 4 hours of sleep at breakfast time, ready to go. After a year of non-stop preparation, I am ready!
I am outside the courtroom by 7:30AM, waiting for the proceedings to begin. It’s ironic that I ask the Court bailiff to put me in a small holding cell so I can be alone and lay out my paperwork and review my notes for the day. I am enjoying being in a general population “tank” with 23 other men, but there are times when I’d like to have a cell to myself.
Today we will present Dr. Margaret Kovera, Professor of Psychology at John James University, in New York City. She is our Eyewitness expert and a total “bad ass” when testifying in cases like mine. She is awesome! By the end of the day, I will be super impressed with her.
When the Texas Court of Criminal Appeals issued its order granting me the evidentiary hearing, the court said we met the requirements on (our) issue # 1, the hypnosis issue. Since this point, we have sought to stretch the boundaries of the order the Appeals Court issued. Our argument is that in fact the Issue is an Eyewitness Issue and hypnosis a claim in this issue. Our District Court Judge has until now shown a willingness to listen to our argument. So today begins with the prosecution objecting to Dr Kovera testifying as her “testimony not relevant” to the hypnosis issue. This is a joke and a weak attempt to prevent a very powerful Expert from testifying on our behalf. This is the adversarial legal system/justice at its best and our legal team is so much better at in-court debating I almost feel sympathy for the prosecution who’s no match for my attorneys. ALMOST!
After an hour of testimony by Dr Kovera where she outlines what she will opine upon the Judge rules that he will “allow Dr Kovera to present testimony that will specifically relate to Barganier’s memory of the event she believes she saw and the (HIGHLY QUESTIONABLE) in-court identification in this case”. With this ruling, the evidentiary hearing that has been ordered in my case now will include very important expert testimony on the leading cause of wrongful convictions today – suggestive identification procedures. This is a very big positive development for us as we now have the entire eyewitness identification issue, of which hypnosis is but one of the claims contained therein.
Dr Kovera begins with explaining that the human brain does not work like a video recorder. If a person/witness to an event has not attended to an event, it is not stored as a memory, a process called “encoding”. No amount of memory refreshing or retrieval will cause a memory that was not encoded to appear. Because there is a limited amount of “storage” in our memory, our brain edits memory naturally and this is done subconsciously. Again, our brain does not work like a video recorder. There is no fast forward or rewind buttons and some things are not encoded into memory.
Dr Kovera informs the court/judge that one major problem with hypnosis is the premise of being able to go back and “uncover a memory” that’s just there, waiting to be retrieved. If an event has occurred and the witness was not attending to it, paying attention, it is not encoded into memory. And there are many things that affect the encoding process – illumination, distance the witness is away from the event, the exposure time, focus, conditions in which the event is viewed, etc. These real factors determine whether or not an event that has been attended to by a witness is encoded.
Dr Kovera testified to many aspects of the problems that are present in the misidentification of me as the person she thought she saw on the morning of Mrs. Black’s murder. That person Jill Barganier originally described a white male, thin medium build, long dark hair with a moustache. To be clear, she was describing 2 white males – medium build – 5 ft 8 in. tall and 160 lbs in weight. With long dark hair past the shoulder with a moustache. This description matches the composite drawing she created perfectly and looked nothing like me. This massive discrepancy was at long last. The fact that Barganier’s original description, which is always the most accurate because it’s the freshest, did not match me – a Hispanic male of Azteca and Mayan descent (brown skin!) over 6 ft tall, in 1998 weighed 250 lbs, with a short military style flat top hair cut, clean shaven and must wear eyeglasses to see was a huge warning signal in this case. Then the fact that 6 days after the crime event occurred, Barganier was shown a photo line-up with my photo in it and could not identify me as the person she thought she saw is telling. Dr. Kovera testified that a positive identification made as soon as possible after the event occurred is always the best most reliable identification there is. And the worst – most unreliable identifications are ones made months or years after the event occurred and after the witness has been subjected to multiple suggestive identification procedures, as occurred in my case.
This was extremely powerful testimony and there was no shaking Dr. Kovera from her findings in this case. Dr Kovera was more intelligent than the prosecutor and was a better debater. As a result, she was a stellar expert witness and was quite simply amazing.
The final witness of the day was the original hypnosis expert for the prosecution, Dr George Mount. He was called in 1999 to testify that in spite of the police hypnotist violating 40% of the established guidelines, Mount could see nothing wrong with the hypnosis procedure the police subjected Jill Barganier to.
In 1999, I was poorly represented by court-appointed trial attorneys who did little to defend my rights. But in 2017, it’s a vastly different story. Our legal teal is ready for Mount.
Dr Mount was a poor witness for the state. In nearly 20 years, Mount has not changed his opinion on anything in spite of the evolving belief of the larger scientific community that hypnosis is not safe to use, period.
Mount testified that after reviewing his testimony given in 1999, he continued to stand by everything he had testified to during my jury trial. Mount’s opinion was that the movie theater technique was still acceptable today, despite the fact that this hypnosis technique is now believed to be the most suggestive there is by the larger scientific community today. In a response to the question by my attorney on if Mount had a problem with the misidentification being made 13 months after the crime, Mount was comical when saying “No”! In the Zani case, it was 13 years later! A direct rejection of an established fact by Dr. Kovera that memory decays rapidly and the sooner a positive identification is made after an event, the more reliable it is.
Again, my attorneys outclassed the prosecution and were able to extract information they will use in the “Findings of facts and conclusions of law” and in closing arguments to be given orally.
Day 2 of the evidentiary hearing ended at about 5 pm which allowed me to get back to the tank at about 5:30 pm. It was another long day but a good day for us no doubt. Dr Kovera was a big time winner and with her amazing testimony, framed the larger issue, “suggestive eyewitness identification procedures,” which created the misidentification in my case.
And Dr. Mount came across as an out-of-touch hypnotist who did not know what the leaders in his field now believed.
Day 3 of testimony will begin next Monday Oct. 16, 2017. Dr Lynn will testify and I can’t wait!