The Myth of Overwhelming Evidence

Dec 6, 2017

Every time I see the phrase “overwhelming evidence,” anger starts to boil in my stomach.  Let me try to explain why.  You see, when an appellate court decides a criminal case, it means that, in 99% of cases, the defendant has argued that there were errors in the trial below.  The defendant has pointed out some reason why he (or she) had an unfair trial, such that either his conviction or his sentence should be undone.  If the court agrees with the defendant, then it generally means that the case goes back to the trial court, and it’s as if the first trial never happened.

“Overwhelming evidence” comes into play when a court says that it doesn’t have to decide whether or not an error occurred because there was so much evidence that the error didn’t make a difference at trial.  That means that the court believes that, even if the error had not happened, the jury still would have convicted the client.  Saying that there is overwhelming evidence means that the court doesn’t have to make a decision about the error.

The idea makes sense, at least in theory.  But as with all theories, it’s how the theory is implemented that shows the flaws in the idea.  Namely, the court can just say there was overwhelming evidence, even if there was, in fact, a total lack of evidence against the defendant.

I’ve been thinking about this infuriating phrase recently because the Supreme Court of Georgia just refused to decide three different issues in one of my cases, citing “overwhelming evidence.”  To be frank, there was barely evidence against my client; it certainly wasn’t overwhelming.

My client is serving a life + 15 sentence in prison for a murder that he almost assuredly did not commit, so I am incredibly frustrated by the lengths that the court went to in order to affirm his convictions.  The case involved the murder of a tattoo shop owner, and the shooting of his employee.  My client went to trial, while his three codefendants pled guilty.  The court’s opinion is available here.

First, the Court stated that there was an in-court identification of my client by the surviving victim.  Let me tell you the facts surrounding that “identification,” and you can determine how valid it is for yourself.  Prior to trial, the surviving victim affirmatively identified my client’s co-defendant as the shooter from a photo lineup.  The victim affirmatively declined to identify my client as a participant, and he testified in open court that he could not identify anyone in that lineup because that lineup didn’t have anyone in it that shot him.  As in, he literally said that in court, to the judge and the jury.

In court, when presented with the lineup with the codefendant, the victim stated that the person in the lineup (the codefendant) was the same as the person who was sitting at the defense table (my client).  This was obviously a mistake.  Even the prosecutor conceded in closing that the victim had not previously identified my client and had mistakenly identified him.  This is far from the positive identification that the court made it out to be.

Next, my client’s three codefendants are on video mere minutes before the shooting in a restaurant next door to the tattoo shop.  My client is not located anywhere on the video.  In that video, the codefendant (the same one identified by the victim in the photo lineup) is wearing what the victim said the shooter was wearing—a red and black top.

Of the five people located in the tattoo shop when the incident occurred, no one identified my client.  The surviving victim, who is 5’6”, testified that the shooter was four inches taller than he was, which would make the shooter about 5’10”.  My client is only 5’3”.  Another witness testified that the shooter was tall, but again, my client 5’3”.  And you guessed it: the codefendant identified by the victim is 6’3”.

The only other individuals who identified my client were his two codefendants, who benefitted significantly from testifying against him at trial.  Their stories about the entire day were in conflict with each other and with objective facts.  They were selling a TV for money, but their stories contradicted each other as to who got the TV, why they were selling it, and everything else.  One of them denied receiving a phone call from when he was in the shop, while phone records clearly show that he received the call.  The State even conceded in its closing argument that they had lied, yet their testimony was held up as evidence of my client’s guilt.

Obviously, none of these other factors made it into the Supreme Court’s opinion denying my client relief.  I’m so frustrated—not just because I imagine all the Thanksgivings, Christmases, and birthdays he’s going to miss while he’s in prison.  I am frustrated because the government has this enormous power to take away a person’s liberty, often for a very, very long time.  That power shouldn’t be exercised lightly, and when there are serious doubts as to the fundamental fairness of the trial, those doubts should be resolved in favor of granting a new trial.  If anything, there’s overwhelming evidence to support the position that the criminal “justice” system often gets it wrong, and the system should account for that possibility.