Homicide Conviction Hinged on Witness Who Could Only Blink

Posted by Steve Eversole | Jun 29, 2013 | 0 Comments

A man's fate was decided in the blink of an eye.

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Our Birmingham homicide defense lawyers mean this quite literally, as we're referring to the case of an Ohio man whose trial outcome was largely influenced by the testimony of a man who couldn't speak or even write. There were no words this witness could offer. In fact, he never even appeared in the courtroom.

And yet, it was his account that resulted in a potentially lifelong sentence.

How is this possible? 

The witness was the alleged victim. He had been shot in the neck and face as part of the alleged crime. As such, he was paralyzed from the neck down. He couldn't speak. He couldn't move his hands. He relied on a ventilator to sustain his life by supplying him with oxygen.

His only form of communication was to blink his eyes. That is, before he eventually died.

Two weeks prior to his death, law enforcement investigators initiated a video-taped interview with him. During that time, he was instructed to blink three times if he intended to identify the defendant as the individual who ambushed him with a firearm as he sat in his vehicle in late October 2010.

But how reliable were those blinks?

Defense lawyers argued they were inconsistent. A doctor who treated the victim testified that the victim was able to clearly communicate through his blinks. However, when someone is shot in and about the head area, one wonders what kind of brain function is lost in the midst of that, particularly when it can't be tested with the use of spoken interviews.

Further, there is a fair amount of suspicion raised regarding the accuracy of that "testimony" when you factor in all the various drugs this individual was on, which could have undoubtedly hindered the man's ability to clearly understand and respond to investigators during the course of the interview.

To rely upon it to decide the fate of another person's life, it seems, is a huge leap.

Police concluded that the defendant had shot the victim because he learned the victim had purchased drugs from another dealer while he was still owed money from another prior transaction. That theory was first offered up by a jailhouse informant. However, the testimony of those imprisoned should always be questioned when they stand to gain something as valuable as a lighter sentence in exchange for that testimony – as this witness did.

It's worth noting that the defendant in this case has maintained his innocence all along, even refusing to accept a plea deal that would have had him out of prison within five years. Instead, he has been sentenced to 37 years to life.

Dying revelations are not all that unique in murder trials. What is unique however is the prosecution's strategy to move forward with a dying revelation delivered in the form of a gesture, rather than words. Most of the time, prosecutors won't even attempt to use this tactic because they know it is unreliable and subject to varying interpretations.

However, with advances in medical technology serving to keep critically injured people alive for longer, we may continue to see more examples of this in future criminal cases.

Contact Birmingham Criminal Defense Attorney Steven Eversole at (866) 831-5292.

Additional Resources:

Man gets 36 years to life in Ohio murder case that hinged on victim's eye blinks,June 20, 2013, Associated Press

About the Author

Steve Eversole

Admitted to practice in All State and Federal Courts in Alabama: AllAlabama State Courts, Alabama Supreme Court, Alabama Court of Appeals,Northern...

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