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Case of Eyewitness vs. Alibi Raises Question of Defense Lawyers’ Competence

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Monday, May 2, 2011

Richard Rosario was convicted of a murder that took place on Turnbull Avenue in the Bronx on June 19, 1996, based on the testimony of two witnesses who had picked his picture out of a book of mug shots.

There was no other evidence linking him to the crime. He did not know the victim, and he did not know the witnesses. And there is powerful evidence that he was in Florida that entire month.

The Supreme Court is scheduled to decide next week whether to hear Mr. Rosario’s appeal, which claims his lawyers badly bungled his alibi defense.

The question of what may be expected of lawyers in terms of rudimentary competence has lately been high on the court’s agenda. In the last couple of months, the court has agreed to hear one case and stayed executions in two others presenting variations on that theme. Mr. Rosario’s case may interest the justices as well.

On June 30, 1996, after he heard that the authorities were looking for him, Mr. Rosario took pains to set things straight. He got on a Greyhound bus in Florida on June 30, arrived in New York the next day and voluntarily contacted the police.

He named more than a dozen people in Florida he said would vouch for him. But the police did not follow up, and prosecutors charged him with murder based on the statements of the two eyewitnesses.

Eyewitness identification is the most common cause of wrongful convictions. Of the first 200 DNA exonerations, for example, 158 involved convictions based on eyewitness testimony, according to a 2008 study from Brandon L. Garrett, a law professor at the University of Virginia.

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