D. The 1998 Evidentiary Hearing
Counsel for Mr. Smith also presented the following witnesses: Chiquita Lowe; Jeffrey Walsh; Andrew Washor; and Judge William Dimitrouleas. Ms. Lowe again testified that in 1989 she was shown a picture of a man whom she recognized as the man she saw on the street the night of Shandra Whitehead's murder (1998 trans 79-82). Ms. Lowe identified the picture she was shown in 1989; it is a booking photo of Eddie Lee Mosley (Defense Exhibit 1).
Ms. Lowe explained why she identified Mr. Smith at his trial as the man she saw near the victim's house on the night of the crime. Ms. Lowe was a teenager at the time of Mr. Smith's trial who knew the victim's family and wanted to assist the police in solving the crime. She explained:
I was under a lot of pressure, a whole lot of pressure. I was scared, nervous, young. I just was under a lot of pressure. It hurted me because I know a little girl got killed, I know the family, and it just hurted me seriously, just hurted me. It hurts talking about it.
(1998 trans 66). Ms. Lowe explained: "I knew a bad thing happened and I feel that I had to do something about it in my heart." (1998 trans 145). Ms. Lowe also explained that she felt pressured by the community:
Q You said the people in the neighborhood --
A Neighborhood. They just afraid to have that person on the street again so they can go over again, something else can happen to somebody else little girl. They wanted him off the street.
(1998 trans 72-73).
In addition to pressure from the community, Ms. Lowe testified that she was pressured by Detectives Scheff and Amabile to cooperate with their investigation. Ms. Lowe testified that the police attempted to influence her when she looked at the first photo line-up. Ms. Lowe testified that the police "kept pointing at [James Freeman's photo] and talking about it" and "kept on telling me is Freeman the one who did it, because Freeman known of doing that to little girls." (1998 trans 57). The police used the same suggestive tactics when they showed her the line-up including Mr. Smith's picture:
They showed me the second [line-up] and I looked at them and they say -- I'm not certain which number he said but I know it was a number with Frank Lee face on it. I'm just saying, for instance, say number two.
They said this is the one that Shandra mother said and Gerald said this is the one, Frank Lee. This is who did it. This is the one that we have to get off the street because he hurt little girls.
And he just kept on pointing to the picture and telling me that this is the one, we have to get him off the street.
THE COURT: Who's saying that?
THE WITNESS: The two police officers.
THE COURT: Scheff and somebody else?
THE WITNESS: Yes.
THE COURT: Did you know him beforehand, Frank Lee Smith?
THE WITNESS: I never laid eyes on him.
. . .
THE COURT: They said to you that he was the one that did this homicide?
THE WITNESS: They said he the one that did it.
(1998 trans 58-59). Ms. Lowe testified that the police told her that Ms. McGriff and Mr. Davis had already identified Mr. Smith as the man they saw on the night of the murder (1998 trans 75). Ms. Lowe believed what the police told her about the other witnesses (1998 trans 76).
Ms. Lowe explained on cross-examination that she would not have chosen Mr. Smith from the photo line-up if not for police coercion:
Q Okay. Do you recall picking out number two?
A They was pointing number two out to me.
Q They were pointing number two out to you? Have you ever testified in any court of law that Detectives Scheff and Amabile and/or Amabile told you to pick out number two?
A They kept on pointing at that one saying this is the one.
Q At the time you made the selection?
A What selection?
Q At the time that you did this photo lineup, originally did this photo lineup?
A They brought these pictures to me and they kept pointing at number two telling me that this is the one, this is the one.
THE COURT: So in other words, you're saying the only reason you pointed out number two is because they kept saying this is the one, this is the one?
THE WITNESS: Uh-huh.
THE COURT: You're saying but for them saying that to you, you would not have picked out number two?
THE WITNESS: No, I wouldn't have picked number two out.
THE COURT: You wouldn't have?
THE WITNESS: I wouldn't have picked none of those that he just showed me. I wouldn't have picked none of them.
(1998 trans 106-08). Ms. Lowe admitted that she swore under oath that the police had not pressured her; she explained why she made that statement: "I had to say it." (1998 trans 116).
The same pressure was exerted upon Ms. Lowe at the time of Mr. Smith's trial:
Both of the police officers told me that go in there and tell the truth. We captured the person that did this to this little girl here and he needs to be off the street.
Mr. D told me that he would not harm me, that everybody was going to be around in the courtroom and he cannot do anything to you. Just go in there and just tell the truth.
And they kept on saying this person here is bad, he need to be off the street, and just go in there and just tell the truth. They just kept on telling me that over and over and over and over again.
(1998 trans 69). Ms. Lowe testified that she was afraid to go into the courtroom because "[t]hey said they captured the person that killed that little girl, and I was afraid to go in the courtroom on account of death . . . . and looking at the person in there in their face knowing that they did an awful crime like that." (1998 trans 152).
However, when Ms. Lowe saw Mr. Smith in court at his trial, she knew that he was not the man she saw on the night of the murder. Ms. Lowe explained that when she saw Mr. Smith in court at his trial, it was the first time she had seen him live (1998 trans 71). She realized that he was too thin and did not have the droopy eye that both she and Mr. Davis saw on the night of the murder (1998 trans 70). Ms. Lowe explained why she identified Mr. Smith despite her realization that he was the wrong man:
Q Okay. Now, earlier you said -- Well, why did you point to [Mr. Smith] and say he was the man you saw when you were in court?
A I was under a lot of pressure, other people in the neighborhood, what they were saying. `Um, I was very hurt because I know how the mother feel, how the mama had been under a lot of stress and she was hurt.
(1998 trans 72). Ms. Lowe's testimony on recross was consistent about the pressure that caused her to identify Mr. Smith at his trial:
Q You had no hesitation in pointing him out and saying that's the man I saw on April 14th, 1985?
A The police told me that Miss Dorothy and Gerald say that is the man and I went ahead and said also because they said the man needed to be off the street and he hurt that little girl and that was him.
(1998 trans 161).
Ms. Lowe testified that the first time she saw a picture of Eddie Lee Mosley was 1989 when Jeff Walsh visited her. She also testified consistently with her trial testimony that she was shown two photo line-ups: one including a picture of James Freeman and the other including a picture of Frank Lee Smith.
In response to Ms. Lowe's testimony identifying Eddie Lee Mosley as the man she saw on the night of the crime, the State presented Detective Richard Scheff and Dorothy McGriff. Detective Scheff testified that he and Detective Amabile considered Eddie Lee Mosley a suspect in this case "because he was notorious for committing crimes of violence in the area" and that "simply in an abundance of caution I considered him a suspect." (1998 trans 349). Detective Scheff testified that he showed a photo line-up of Eddie Lee Mosley to Ms. Lowe, Ms. McGriff, and Mr. Davis (1998 trans 349-50). He identified the Mosley line-up and testified that the picture accurately depicted Mosley as he appeared at the time of the Whitehead murder (1998 trans 370). Detective Scheff explained that he encountered Mosley in "the latter part of February of 1985" and again during "the latter part of April of 1985 through May and June." (1998 trans 370). According to Detective Scheff, at that time Mosley's hair was close-cropped and his beard was neatly trimmed (1998 trans 373).
The State's other witness at the evidentiary hearing was Dorothy McGriff, the victim's mother. Ms. McGriff testified that the police showed her a picture of Eddie Lee Mosley in a line-up of six pictures and that she told them he was her cousin (1998 trans 218). Ms. McGriff testified that the picture of Mosley was in the same line-up that included Mr. Smith's picture (1998 trans 219-20). On cross-examination, Ms. McGriff admitted that at the 1991 evidentiary hearing she testified that she saw Mosley's picture not in a line-up but in a picture book:
Q Do you remember did they actually show you a lineup at one point in time with about six pictures in it? And your answer: No, there wasn't no six pictures. It was like a photo book. Do you know -- do you know how to get a photo book? And then the question, yes. I looked through the book and the book -- skimmed through to look in the picture book.
(1998 trans 234). On redirect, Ms. McGriff testified that she knows the difference between a photo line-up and a photo book (1998 trans 236).
Detective Scheff also testified about Eddie Lee Mosley's modus operandi and explained why he believed Mosley's modus operandi did not match the facts of this case:
A In all the cases that we've been able to link to Eddie Lee Mosley - and by link I mean more than simply just suggest that it might be Mr. Mosley - the victims are adult female prostitutes primarily or picked up in a bar. The sexual activity occurs outside in an open field and the manner of death is manual strangulation without a ligature being used. Also there is no trauma, blunt trauma.
Q And in this case you have a --
A This case I have a child victim, I have a ligature, I have blunt trauma, and I have sexual activity occurring indoors.
(1998 trans 397). Detective Scheff explained why he used a Mosley line-up in this case despite the alleged differences in his modus operandi:
I thought Eddie Lee Mosley was an individual that I was looking at as a suspect in two other cases that I subsequently arrested him on. He was notorious in the area and a decision was made simply to put his picture in a photo lineup and see how the witnesses reacted.
This was prior to us getting the composite. I don't think I would have even done that had we gotten the composite first because I would have looked at the composite and said that that's not Eddie Lee Mosley or at least the Eddie Lee Mosley that I knew.
(1998 trans 460).
Detective Scheff was unable to explain the inconsistency between his hearing testimony regarding the Mosley line-up and all the other evidence in the case. In regard to his trial testimony that he did not show a line-up including Mosley's picture to the witnesses, Scheff explained that he made a mistake (1998 trans 375). Detective Scheff offered the following explanation for his failure to mention investigating Mosley or showing the witnesses a Mosley line-up at his deposition:
Okay. I did not consider at the time I was giving my deposition to Tom Gallagher the issue of Eddie Lee Mosley to be one of any importance at all. I based that on the fact that there was no link between Eddie Lee Mosley and the murder of Shandra Whitehead.
Tenuous or not, there was no witness, there was nothing to suggest that Eddie Lee Mosley was a suspect in this case other than the fact that he was a notorious person in this area.
. . .
And so I considered it a very trivial matter. Obviously, it's taken on added importance over the years, but at that point in time it really didn't seem to be relevant.
(1998 trans 437-58). This answer would suffice only if Scheff had been asked a specific question about "relevant suspects." However, his opinion that Mosley was irrelevant to the case does not satisfactorily explain why he failed to mention showing the witnesses a Mosley line-up when he was repeatedly asked whether anything else had been done on the case. His explanation also fails to establish any difference between Mosley and the other suspects who were allegedly eliminated but were mentioned during his deposition.
Detective Scheff was also questioned about his handwritten notes which include an account of the investigation detailing the activity done each half hour (Defense Exhibit 7). The notes do not mention showing a line-up including Eddie Lee Mosley to Chiquita Lowe, Dorothy McGriff, and Gerald Davis (1998 trans 444). Detective Scheff's notes also do not refer to his showing a picture book of 150 pictures to Ms. McGriff as he testified at the 1991 hearing (1998 trans 449). The notes make no mention of Eddie Lee Mosley at all although, as with his deposition, they do mention other suspects who were investigated such as James Freeman, Neely Williams, and Edwin McGriff (1998 trans 444). The notes specifically indicate that Scheff checked the criminal histories of Edwin McGriff and James Freeman for similar crimes (Id.). There is no similar notation that Scheff checked Mosley's criminal background although he testified that he investigated Mosley's criminal history and was familiar with his modus operandi (1998 trans 445).
Detective Scheff could not adequately explain his failure to mention the Eddie Lee Mosley line-up in his handwritten notes, his final report, his deposition and his trial testimony. He claimed in 1998 that Mosley was not a suspect (1998 trans 468), while at Mr. Smith's trial he testified that Mosley was a suspect. He offered the following explanation:
I differentiated Eddie Lee Mosley to any of the other names that you have mentioned because the other names that you have mentioned, there was some link; that was somebody said, you know, the family came forward and they were suspicious. There was some link, tenuous though it might be, between that person, that potential suspect and the case.
In Eddie Lee Mosley's situation there was nothing to suggest that he was the suspect other than pure speculation on the part of the sheriff's office. And so there was a distinct difference in the way I would characterize him in this case, at least in my mind there was.
(1998 trans 455). This differentiation in Detective Scheff's mind is insufficient to explain the inconsistency between his hearing testimony that he showed a Mosley line-up to the three witnesses and all the other evidence in the case indicating that a Mosley line-up was never used.
Counsel for Mr. Smith presented additional testimony contrary to Detective Scheff's hearing testimony regarding the Mosley line-up. Mr. Smith's trial attorney, Andrew Washor, testified that during discovery he received two photographic line-ups -- one of Mr. Smith and one of James Freeman (1998 trans 251). Mr. Washor testified that he received nothing about Eddie Lee Mosley during discovery (1998 trans 252, 254). Mr. Washor was also called as a rebuttal witness after the Mosley line-up was introduced during Detective Scheff's testimony. After examining the Mosley line-up, Mr. Washor testified that it did not look familiar and repeated his testimony that he did not receive a Mosley line-up at the time of Mr. Smith's trial (1998 trans 527-28).
William Dimitrouleas, the prosecutor on Mr. Smith's case who is now a federal district court judge, also testified for Mr. Smith in rebuttal regarding the Mosley line-up. Judge Dimitrouleas testified that the trial judge had granted a defense motion requesting all photographs and photographic line-ups used during the investigation. Judge Dimitrouleas testified that he would have turned over all photographic line-ups used during the investigation even if Mr. Washor had not filed a motion specifically requesting them (1998 trans 509). Judge Dimitrouleas examined the Mosley line-up that was produced by Detective Scheff and testified that he had no independent recollection of ever seeing the line-up before (1998 trans 514). He explained:
[I]t's an unusual arrangement for a photographic line-up. I'm not saying I never saw it but I would think that a line-up where it wasn't three across and three across, it would be something that I might remember.
Q But you don't recall ever seeing this?
A Never recall seeing that.
Q And in your experience the formation of the lineup is different than your normal line-up?
A Yeah. Normally they'll have three pictures across and three pictures on the bottom or some other situation.
Q Two parallel lines?
A Usually that's what they have. That's an unusual configuration that I might remember if I had seen that before.
(1998 trans 514). Judge Dimitrouleas testified that he would have corrected Detective Scheff's trial testimony that there was no Mosley line-up shown to the witnesses if he knew that Scheff was mistaken or lying (1998 trans 506-07).
Mr. Washor also testified that the information regarding Eddie Lee Mosley that was unavailable to him at the time of trial -- Ms. Lowe's identification, police reports naming Mr. Mosley as a suspect, the Mosley photograph that Ms. Lowe was shown -- would have enabled him to support his theory that Mr. Smith was innocent. Mr. Washor was shown a composite exhibit of police and autopsy reports from sexual assault and murder cases in which Mr. Mosley was a suspect. He testified that he would have used the reports to compile a reverse William's Rule motion and to question Detectives Scheff and Amabile about their elimination of Mr. Mosley as a suspect (1998 trans 272). In regard to the reverse Williams' Rule motion, Mr. Washor testified that the reports revealed several details that were similar to the facts of this case. First, Mr. Mosley approaches people on the street, says that he is from New York and asks the person about doing drugs with him (1998 273). This pattern was followed by the person who approached Gerald Davis on the night of the murder. Several of the reports identifying Mr. Mosley as the perpetrator mention a "droopy eye." (1998 trans 274). Chiquita Lowe and Gerald Davis both included this unique characteristic in their descriptions of the man they saw. Mr. Washor also testified about similarities between the crimes Mosley was suspected of and the Whitehead murder: all involved African-American female victims who were raped or raped and murdered. Mr. Washor also testified that the reports indicated that Mr. Mosley used different methods to kill his victims, in contrast to Detective Scheff's testimony that Mosley was eliminated as a suspect because he only kills by manual strangulation. The reports show that Mosley used different weapons (including a knife, a cane, and a gun) and that on several occasions he strangled his victims with a ligature. In addition to the similarity of the crimes, the rapes and murders of which Mosley was suspected were all committed in the same geographical location as the Whitehead murder (1998 trans 274). Regardless of his success with a reverse Williams' Rule motion, Mr. Washor testified that he would have used the reports to question the detectives about the elimination of Mr. Mosley as a suspect; if these reports had been available to Mr. Washor, the jury would have known that Mr. Mosley was a suspect in numerous rapes and murders in the same geographical area as Shandra Whitehead's rape and murder.