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Witness Mistakes Costly for Accused

Law: Inconsistencies in victim's statements don't prevent the lengthy jailing of man.

September 02, 2002|ANNA GORMAN | TIMES STAFF WRITER

In an era when death row inmates are being exonerated by DNA evidence, the 89 days Louie Gomez spent in County Jail for a crime he did not commit may not sound like much.

It took the justice system that long to recognize troubling inconsistencies in the robbery case against Gomez, and for the victim's identification of him to fall apart, costing the Los Angeles man two jobs and three months of his life.

"I told them, 'I'm not a thief.' They didn't believe me," Gomez said. "They were wrong, but as long as the lady said it was me, that's all it took."

The case, which ended in Gomez's exoneration on Aug. 8, illustrates how vulnerable people can be to mistaken identification by witnesses. Misidentification is the leading cause of wrongful convictions, said UC Irvine professor Elizabeth Loftus, who has researched the topic extensively.

Of 110 people nationwide exonerated by post-conviction DNA testing, about three-fourths were wrongfully convicted due to witness misidentification, Iowa State University professor Gary Wells said. Yet the system continues to rely on eyewitness testimony, which is often flawed because the memory is unpredictable.

"While these DNA exoneration cases have gotten strong attention focused on the problem of human memory, we still have a ways to go," Loftus said.

The risk of misidentification increases if the suspect is a different race from the victim, if the witness is under stress or if the upper part of the face is concealed. And as soon as a misidentification is made, it tends to stick, Wells said. "It becomes the memory," he said. "And there's nothing that can really reverse it in their mind."

In fact, Lilia Javier says she still believes it was Gomez who pushed something sharp against her ribs April 8 in a grocery store parking lot on Huntington Drive in Los Angeles. Javier said she is upset that Gomez was declared innocent and released from jail. "But what can I do? Nothing."

The night of the robbery, Javier told police that she was tying her daughter's shoes when a man said, "Don't talk," grabbed her purse and ran away. She yelled for help, and a security guard called police. While Javier waited, Gomez walked by, heading to a nearby house where he worked caring for an elderly woman. Javier said he was the thief, and her brother grabbed him, according to the police report.

Los Angeles Police Department Officers Sean Dempsey and Edward Rubio arrived. The radio call had described the robber as a Latino, 25 to 30 years old, with a mustache and a thin build and wearing a black jacket. Gomez was 44, had a mustache, weighed 165 pounds, and was wearing a blue jacket.

Javier told police that Gomez was the one who stole her purse, which had $150 in cash and her driver's license. Another witness told the officers that she did not get a good look at the suspect, but that Gomez matched her description of the man she saw run away, the report said. Gomez had only 30 cents in his pockets. Police could not find the purse, despite a search.

"I wasn't confident either way," Dempsey said. "I felt like there was a possibility it was him, but I didn't know for sure."

At the station, Gomez told police he had just taken a break from work to buy a can of beer at a nearby liquor store. He was adamant about his innocence. Police arrested him.

Dempsey later said he noticed that Gomez walked with a limp, even though Javier said the robber ran from the scene. He also said later he was struck by the fact that Gomez did not flee, as most street robbers do, but was spotted as he walked by the scene of the crime. Neither of those observations were in the police report.

Before deciding to book Gomez, the watch commander called up the suspect's criminal record, discovering three old misdemeanor convictions on drug charges and a burglary arrest from 1975.

The conclusion that Gomez was the right suspect was confirmed by prosecutors, who filed charges. Bail was set at $35,000, far beyond Gomez's means. "I couldn't believe it," Gomez said later. "I was shocked, and I was mad."

Gomez said he kept thinking police would realize they were mistaken and would let him go. Before his arrest, Gomez had been living with his 73-year-old mother and paying the bulk of the rent on their Los Angeles house. He was earning about $1,570 per month at his two county jobs, as a truck driver and a caretaker, and had received a paycheck the day of his arrest, according to court files.

Los Angeles County Superior Court Judge George G. Lomeli presided over the Gomez preliminary hearing on April 22. The only witness to testify was Javier, who said that she saw the upper half of the suspect's face, including the nose, eyes and forehead. When she was asked to identify the robber, Javier pointed to Gomez. Based on Javier's testimony, Judge Lomeli ruled that there was enough evidence for Gomez to go to trial.

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