The exoneration of Kash Register and the problem of false eyewitness testimony.

Eyewitness Testimony Condemned Our Client to 34 Years in Prison. How Could We Show It Was False?

Eyewitness Testimony Condemned Our Client to 34 Years in Prison. How Could We Show It Was False?

The law, lawyers, and the court.
Dec. 17 2013 7:27 AM

“A Mistake Has Been Made Here, and No One Wants to Correct It”

Without DNA evidence, how could we challenge the eyewitness testimony that sent our client to prison for 34 years?

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Grant and Laurie Levenson, a Loyola law professor who is the clinic’s founder and driving force, visited Elliott and Patty Singleton at their home. Elliott said he remembered nothing about the shooting or his role in the conviction—not identifying Register, or testifying at the trial. When Grant described the Hollywood-style chase scene he had relayed to the jury, Singleton dismissed it as “crazy,” even signing a declaration saying so. Weeks later, Levenson and Grant went back to the house and found Patty by herself. Outside of her husband’s presence, Patty told them what had actually happened.

On the day of the shooting, she and Elliot were at his mother’s house on the street where Sasson was killed—not at a friend’s, as Elliot had claimed. His mother was sick, and he was inside taking care of her. (Patty, we later learned, was pregnant.) Standing outside, across the street from Sasson’s car, she had seen the shooting, but not, she said, well enough to identify anyone. Her husband, she told Grant and Levenson, did not see anything. In a declaration we later filed with the court, Patty stated, “Someone said my husband ran after the young suspect and chased him through the streets, but he never did.” When Grant later asked Elliot Singleton about Patty’s statements in court, he expressed no surprise or outrage, repeating over and over that he just could not remember anything about the case.

Mejia turned over other important information, too—most crucially, Anderson’s rap sheet. The timing of her criminal record went a long way toward explaining her testimony. In addition to the threat of charges for the Avon theft, Anderson was facing a recent charge for credit-card forgery on the day she identified Register at the police station. She was in real danger of facing criminal prosecution, which gave her every reason to cooperate with the police. After Anderson pointed to Register’s picture, the forgery charges evaporated, just like the threat of an indictment for the Avon theft. Since prosecutors had kept this information from Register’s trial lawyer, the jurors had heard none of it. They also didn’t learn that Anderson was on probation for two other theft-related convictions when she testified.


Last July, based on the evidence we’d amassed, Judge Mader ruled that Register was entitled to an evidentiary hearing—the equivalent of a new trial, without a jury. It was clear from the judge’s written order that she wanted to see everyone for herself—the people who had put Register away, and the people who were trying to get him out. Levenson was in France, but Grant and I were so excited that we woke her up in the middle of the night to give her the news. The hearing was set for Oct. 25.

Then, in August, we had a set back: Patty had a severe stroke. When it came time for the hearing, she was still hospitalized and bedridden. She could not testify, and the judge ruled her declaration inadmissible because Mejia would not be able to cross-examine her.

Nine days before the hearing, our case took another hairpin turn. I came to work to find an email from Mejia explaining that he had taken another look at the still-hidden part of the 1979 trial file, and found a document he now thought he should turn over. Prosecutors are required to turn over any evidence that could show a defendant to be innocent. Mejia wrote only that this document could be “potentially” relevant in light of the new evidence we’d gathered.

Chillingly, the document was a memo about whether to seek the death penalty against Register. It included these sentences: “Mrs. Singleton saw the incident, but thus far has not cooperated due to the fact that her husband is afraid to have her testify,” and “Two other witnesses, Christine Chambers and Sharon Anderson, were with Brenda Anderson and observed the incident. They cannot identify.” Seeing this for the first time, I stared at my computer screen, reading the words “cannot identify” over and over. In my mind, the memo confirmed everything we had argued for months. Sharon had been interviewed by the police and had not picked Register as the shooter. Neither had her mother. And Patty Singleton—blocked by her husband from coming forward—apparently hadn’t made a positive identification either. Which meant that no one had.

Although Mejia disputed our interpretation of the memo, he did the right thing by turning it over once he realized its potential significance. If the DA who had tried the case in 1979 had done the same, it is quite possible that Register would never have been convicted. Register’s defense attorney could have then interviewed Sharon and Patty, knowing that the statement in the initial police report, that Sharon and Christine had “observed same” as Anderson, was wrong. He could have used this information at trial to show that there strong reason to think that Anderson and Singleton’s testimony was false. Combined with Register’s alibi and the lack of any meaningful physical evidence, those brief sentences in the death penalty memo might have made all the difference for Register.        

The students threw themselves into preparing for the hearing. At one point, when we could not find the hospital where Patty was, and Elliott would not answer the door, teams of students took turns waiting outside their apartment beginning at 6 a.m. on a Sunday, hoping that he would eventually come out and tell them where she was.

Sharon and Vanderkam were the first witnesses to testify. They held up well under cross-examination; even Mejia told Vanderkam, “You’re a really good witness.” I was especially proud of Sharon, who dealt with questions about her criminal record without shame or fear. Looking at the picture of the crime scene, she wept on the stand. Over and over, she told the judge that the man she saw standing over Sasson’s car was not Register. When Mejia asked Sharon if her felony convictions made her “untrustworthy,” Sharon answered, “It don’t matter because it’s not going to stop what I seen.”

Singleton made repeated attempts to try to get out of testifying, saying that he was too sick. When we finally got him on the witness stand, he continued to claim he couldn’t remember what happened on the day of the shooting and added that he had suffered from stress-induced epileptic seizures his entire life.

The prosecution called Detective Zolkowski. He denied ever speaking with either Sharon or Vanderkam, and also told the judge that it was his practice not to write reports when eyewitnesses failed to make a positive identification because it was not “relevant.” The law states the opposite: The defense is entitled to precisely that kind of information, because it tends to show the defendant is not guilty.

Wilma Register, Kash's mother, and Keith Chandler, a friend.
Wilma Register, Kash's mother, and Keith Chandler, a friend, after Judge Mader read her ruling aloud.

Photo courtesy Kim Fox/Loyola Law School

When Register took the stand, I asked him about every important life event he had missed: his daughter’s birth, his brother’s funeral, the arrival of his two grandchildren. We went through each of his parole hearings, Register repeating his assertions of innocence and answering, “No,” 11 times, when I asked him if he had been granted parole. When he finished speaking, there was a long silence in the courtroom. Mejia had no questions for him.

The wildcard witness was Brenda Anderson. Given all her conflicting statements, we just had no idea what she would say on the stand. She did not come to court on the day we subpoenaed her. When the students knocked on her door, no one answered. She showed up the next day only after Mejia’s investigators picked her up and drove her to court.

At first, she refused to get on the witness stand, telling the judge, “I’m not really, like, with this.” When she finally took the stand, her pupils fixed and dilated, she refused at first to keep her hand raised to be sworn, or to state and spell her name. When Judge Mader asked her to spit out her gum, Anderson gave her a long stare and put a tissue to her mouth. Then she kept chewing. The judge repeated her request. Anderson leaned forward and bared her teeth.

Not long into the questioning, Anderson testified that she did not know who the shooter was because her eyesight was poor and she had “only seen a flash.” Later, she added, “And like everybody knows, black people all look alike.” At one point, Anderson replied to one of my questions by saying that she was the real “victim.”

Although she was making our case for us, it was hard to take in. I could not believe that someone so damaged had been allowed to steal 34 years of a man’s life. How could the police and prosecutors have prevented the jury from knowing all the reasons to doubt her word?

Now Judge Mader could see all the holes in the case. On the sixth day of the hearing, she ruled from the bench, reading her 18-page order aloud. “There is credible evidence placing Brenda Anderson’s truthfulness in doubt,” she said, declaring, “She was simply not credible.” Mader also made it clear she didn’t believe Elliott Singleton. The people she did believe were Sheila Vanderkam and Sharon Anderson.

When she finished reading, there was a pause, and my heart lurched. Judge Mader looked straight at Register. “The petition is granted,” the she said, “and petitioner’s conviction is vacated.”

When he heard those words, Register began to weep. So did nearly everyone else in the courtroom. I put my head in my hands.

Last Friday, we came back to court one last time. Mejia told the judge that he would not appeal her ruling or try Register again. Register thanked the judge. She told him the case had been “life affirming.”  Thirty-four years after it began, the case of the People of the State of California v. Kash Delano Register was finally laid to rest.

We say we have the best criminal-justice system in the world, and that’s true. But it is also flawed. One giant crack that runs through it is that courts, prosecutors, and juries routinely take eyewitness testimony at face value. Garrett describes as “toothless” the standard the Supreme Court set in 1977 for admitting eyewitness identifications as evidence: “Even in cases with eyewitnesses who were drunk, half blind, observing someone at night, from a distance, it is almost impossible to find examples where appellate judges say it was error” to allow jurors to hear their testimony, he says.

That is starting to change at the state level, but only in fits and starts. In 2011, the New Jersey Supreme Court issued a landmark ruling setting new standards for how judges instruct juries on weighing the credibility of eyewitness identifications. The Oregon Supreme Court has done similarly. These states and a few others have revamped their police practices, trying to weed out the ones that have proven problematic. Still, in most states and the federal system, there are no standardized, evidence-based guidelines for introducing and evaluating eyewitness evidence once a case goes to trial. In fact, common practices are often at odds with empirical research—for example, judges still routinely instruct jurors to take into consideration a witness’s degree of certainty. And in 2012, the U.S. Supreme Court declined to follow New Jersey’s lead, deciding 8–1 not to overhaul its 1977 standard for admitting eyewitness testimony into court. That decision dealt a grave blow to the hope for change on a national scale. The problem of faulty or outright false eyewitness testimony is only compounded when prosecutors and police withhold evidence that a defense lawyer could use to destroy the credibility of these witnesses, as they did in Register’s case.

Kash Delano Register lost 34 years of his life to the lies of two people—and to the systemic failings, including the prosecution’s withholding of key evidence, which made it so hard to show that their testimony was false. There are thousands more like him in prisons across the United States. We have to get them out. Every single one of them.

Lara Bazelon is a contributing writer for Slate. Her law review article on judicial shaming of prosecutors, published by the Georgetown Journal of Legal Ethics, can be found here.