The Kentucky Court of Appeals has upheld the robbery conviction of a Lexington man who was found guilty on the basis of a controversial method of eyewitness identification called a "show-up."
The opinion, released Wednesday, said that the jury's guilty verdict was not unreasonable and that the show-up identification was not necessarily unreliable or unduly suggestive.
Corey Wayne Jackson was accused of robbing Rebekah Kirkland at gunpoint in downtown Lexington on Oct. 24, 2006.
Lexington police arranged a "show-up," in which police take a victim to the suspect in an effort to obtain a positive ID.
The practice is frowned upon in some legal circles because show-ups are prone to false identifications. It has been challenged in other states, and the Wisconsin Supreme Court has ruled that it is inherently suggestive and shouldn't be used unless necessary. Other experts and courts say that show-ups can be helpful if police don't have other options.
Jackson was found guilty of first-degree robbery by a Fayette Circuit Court jury on July 17, 2007, and sentenced to 13 years in prison.
His attorney, Samuel Potter of the Department of Public Advocacy, appealed, saying the show-up identification was "impressively suggestive," in part because Jackson was handcuffed when the victim saw him.
But a panel of three Court of Appeals judges — Glenn Acree, Michelle Keller and Thomas Wine — disagreed. They said there was no injustice committed when Jackson's defense attorney did not file a motion to suppress the show-up identifications.
"Both identification witnesses were subjected to thorough cross-examinations concerning weaknesses in their statements and recognition," the opinion said. "The jury had ample information from which to weigh the evidence and determine credibility."
Jackson remains in the Eastern Kentucky Correctional Complex in West Liberty.
Jackson's family initiated a campaign to free him from prison, including a Web site, http://freecorey.blogspot.com.
"We are obviously disappointed and will continue to fight," his brother-in-law, Lafe Taylor, said Wednesday.
On the day of the robbery, an officer took Rebekah Kirkland to identify the suspect, who she said was wearing a green parka. She said he had poked a revolver into her midsection and had taken her purse, which contained a $5 bill, some credit cards, bank statements, keys and a cell phone.
Kirkland's husband, Jeff, told Officer John Carmichael that he could also identify the suspect. He said the description his wife gave — a 6-foot-tall black male, about 200 pounds, wearing a green coat with a fur hood — matched that of a man he'd seen in the area "more than a dozen times" over the last month. Jeff Kirkland said the guy was memorable because he had "big" or "wild" hair like an Afro.
At the scene with the suspect, Rebekah Kirkland mentioned for the first time that she remembered the suspect was wearing a long chain, which was connected to his belt or wallet — similar to one Jackson was wearing. She told him she remembered the chain bouncing against her knee.
After seeing Jackson, then 18, who was 6 feet tall, black and weighed about 200 pounds, Kirkland told an officer she was "very sure" that he was the person who robbed her.
Moments later, the officer drove Jeff Kirkland to the suspect. He concluded that Jackson was the man he suspected to be "casing" the area.
Police didn't have physical evidence. Additionally, Kirkland had said her assailant wore a green coat; Jackson's was brown. Her husband said he saw a guy with "wild" hair like an Afro; Jackson's hair was in dreadlocks.
There were no other eyewitnesses. Among the unanswered questions in the case — which the appeals judges noted — was that a search of Jackson at the scene revealed that he had only a $20 bill. A $5 bill taken from Rebekah Kirkland was never recovered.
Another high-profile case in Kentucky concerning show-ups went differently. In 2006, a three-judge panel from the 6th U.S. Circuit Court of Appeals addressed the case of a Louisville man named William Gregory who had been identified in a show-up and was then exonerated by DNA evidence. The appeals judges said that the Louisville police department encouraged one-on-one show-ups knowing that they are inherently suggestive and had failed to train officers conducting show-ups to disclose evidence that a suspect might be innocent.
In 2007, eight states passed legislation reforming eyewitness identification procedures. In 2006 and 2007, 32 bills dealing with the issue were introduced in 17 states. Kentucky was one of six that considered proposals in 2008, according to the National Conference of State Legislatures. The Kentucky legislation did not pass.