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?

Lara Bazelon, Laurie Levenson (second row), Kash Register, Adam Grant. Lara, Laurie, and Adam are Kash's lawyers from the Loyola Project for the Innocent.
Lara Bazelon, Laurie Levenson (second row), Kash Register, and Adam Grantin the moment Register learned he'd been exonerated. Bazelon, Levenson, and Grant are Register's lawyers from the Loyola Project for the Innocent.

Photo courtesy Kim Fox/Loyola Law School

In the early afternoon of April 6, 1979, a 78-year-old white man named Jack Sasson was robbed and shot five times at close range as he sat behind the wheel of his blue Chevrolet in the carport outside his home in West Los Angeles. His wife, Renee, testified that when she found him, he was “all blood.” Three weeks later, Sasson died of his injuries.

Brenda Anderson, 19, lived in an apartment on the same street. She told police at the scene that she heard gunshots, looked out of her window, and saw a black man flee the carport, double back, fire more shots, and run off again. Three days later, detectives at the West Los Angeles Police Station showed Anderson a photo array with six pictures of young black men. Anderson, who is African-American, identified the suspect as 18-year-old Kash Register, a former classmate of hers from high school.

A second person also claimed to be an eyewitness: 31-year-old Elliott Singleton. He was shown the same photo array and also identified the suspect as Register. Singleton, who is black, said he’d been painting the house across the street from Sasson’s house when he saw the shooting, and that he chased the armed shooter for blocks, stopping only when the man turned and pointed the gun at him.

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The fingerprints on Sasson’s car did not match Register’s. The police never recovered a wallet or a weapon. In a search of Register’s house, they found three brown caps, a pair of black pin-striped pants, and a burgundy shirt, similar to the clothing Singleton said the shooter was wearing. There was a speck of blood on the pants. DNA testing did not exist in 1979, so the blood was simply found to be Type O, matching Sasson, Register, and more than 3 million residents of Los Angeles.

Register, who lived nearby in an apartment with his mother and older brother, said he had spent the morning before the murder at the local unemployment office, where he had finally gotten a lead on a job, and the afternoon having lunch and watching television with his long-time girlfriend, Cheryl Perry. She was pregnant, and he was anxious to start supporting her and their baby. The unemployment office confirmed his account about the time he’d spent there, and his girlfriend backed up his alibi.

Still, Register found himself facing charges of first-degree murder for Sasson’s death—with the possibility of the death penalty. Because the physical evidence was weak, the case against Register turned almost entirely on the eyewitness identifications of Anderson and Singleton.

* * *

At a preliminary hearing held the same month as Register’s arrest, Anderson did not sound sure about the identification she had made. Reminded by the prosecutor that she had picked Register’s picture out of a photo array, she replied, “Well, I identified the picture, what the picture was.” Anderson went on to explain that she had gotten “confused” when the detectives showed her Register’s photograph because she recognized him from high school. She had not seen the suspect “that good,” she added.

“So what you are telling us as you are sitting in the courtroom today is that you are not sure of your identification,” the defense lawyer said. “Is that correct?”

“Yes. That is correct,” Anderson answered.

But her backtracking didn’t deter prosecutors from taking the case to trial. And on the witness stand at that trial, in October 1979, Anderson answered “Yes,” without a trace of doubt, when the prosecutor asked, “are you absolutely sure the man you saw running from the scene April 6, the day of the shooting, is the defendant in court, Kash Register?”

Singleton, too, identified Register at trial as the shooter. He also said he did not know either how tall the suspect was or his own height. And in telling his story of giving chase at full speed for blocks after the murder, he claimed that he never once broke a sweat, lost his breath, or felt any fear.

After three days of deliberations, an all-white jury found Register guilty. When the verdict was read aloud, Register cried out, “I didn’t do nothing.” The judge imposed a sentence of life without the possibility of parole. It was later commuted to 27 years to life, and in 1993, Register became eligible for release. At 11 parole hearings over the next two decades, he proclaimed his innocence. “A mistake has been made here, and no one wants to correct it,” he told the California Parole Board in 2007. And in April of last year: “I have been incarcerated for 33 years of my life for a crime I didn’t commit.”

This last request for parole, like the others, was denied. After all, two eyewitnesses had told the jury they were sure Sasson’s killer was Kash Register, and he was refusing to accept responsibility for his crime. Time and again, the parole board came down on him for his lack of insight and remorse.

And yet, according to Brandon Garrett, a law professor at the University of Virginia and the author of Convicting the Innocent, eyewitness misidentifications have played a leading role in nearly 75 percent of 250 convictions overturned by DNA evidence between 1989 and 2010. In more than one-half of those exonerations, the eyewitnesses start off unsure, a “glaring sign” of potential trouble as Garrett puts it, yet appear to become increasingly certain over time. This often corresponds with police practices like suggestive photo arrays, lineups, and even well-intentioned comments like “Good job!” after a witness makes an identification, however tentative. All of this can cause “contamination” of memory, Garrett says so that “there is no way to know after the fact whether the eyewitness could have actually picked the person with any degree of confidence.”

When DNA exists to prove an eyewitness wrong, it provides an independent scientific basis for assessing the validity of old convictions. But DNA testing did not become routine until the mid-1990s. In most cases predating that time, there is nothing left to test. In the early 1980s, the state destroyed every shred of physical evidence in Register’s case—shell casings, fingerprints, and clothing.

And so, when Register’s case came to the Loyola Project for the Innocent, a law school clinic which I direct, there was no way to use science to challenge Brenda Anderson and Elliott Singleton’s eyewitness testimony, which we became convinced was false. It took enormous human effort to undo human error, from an unlikely cast of characters who came together, through years of persistence and dumb luck, to try to reverse an old and haunting injustice.

* * *

One day in late 2011, Sheila Vanderkam, Brenda Anderson’s older sister, came across a site with information about the location of prison inmates while surfing the Internet. Curious, she typed in Register’s name, because she remembered her sister’s involvement in the case against him. When she saw that Register was still incarcerated for Sasson’s murder, she was horrified.

Vanderkam, who is eight years older than Anderson, had long suspected what Register had always claimed: that her sister was lying. During the evening of the shooting, she’d visited the apartment where Brenda Anderson lived with their mother, Christine Chambers, and younger sister, Sharon Anderson. Brenda told Vanderkam that she had heard shots and seen a man flee, but had not gotten a look at his face.

Sharon was also home that evening. She told Sheila that she and Brenda had been together at the time of the murder—and not in the apartment. They were on the street outside, headed home after stealing a box of several hundred dollars worth of Avon make-up and trinkets, and stashing it at a friend’s house. Sharon told Vanderkam she heard gunshots and then the sound of a horn blaring. When she turned, she saw an elderly man slumped over his steering wheel.  

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