Code of Silence


Medill Justice Project tracks down eyewitness 10 years later who says convicted killer didn’t commit the crime


MJP also finds three jurors who had significant doubts about the conviction, while discrepancies are raised about eyewitness identification in Miami murder


Detective Arthur Nanni showed Michael Morris, the surviving victim and sole eyewitness, a photo array that included a picture of Andre Gonzales (pictured bottom left). Morris identified Gonzales as his attacker with “60 percent” certainty. (Photo courtesy: Prosecutors’ office)

Detective Arthur Nanni showed Michael Morris, the surviving victim and sole eyewitness who testified at trial, a photo array that included a picture of Andre Gonzales (pictured bottom left). Morris identified Gonzales as his attacker with “60 percent” certainty. (Photo courtesy: Prosecutors’ office)

By Dani Anguiano, Marcel Byrd, Marianna Cooper, Dean DeChiaro, Katherine Dempsey, Yuri Han, Emily Hoerner, Adrienne Hurst, Nikki McGee, Tara McManus, Ally Mutnick, Danny Dongmin Na, Daniel Parris, Rachael Ponn, Ryan Sachetta, Becca Savransky, Meghan Tribe, Lucy Vernasco, Brandon Wilson and Mercy Yang
The Medill Justice Project

MIAMI—The Medill Justice Project has tracked down a man who said he witnessed a murder a decade ago—and he said the accused who is serving a life sentence for the crime is not the killer.

Arnold Clark, who was the head bouncer and floor manager at a Miami nightclub behind which the shooting occurred, said he has never spoken to authorities about what he saw because he would have been a “sitting duck” in a crime-riddled neighborhood known as Liberty City where a code of silence prevails.

But Clark, who is in prison for burglary, assault and grand theft, said he did not realize anyone had been charged or convicted of the murder until he recently received a letter from The Medill Justice Project asking to speak to him about the night in question.

Clark, who went by the nickname “Maniac” when he worked at the club, said he does not know the man accused of the murder—doesn’t even know his name, Andre Gonzales, who has maintained his innocence all along. But in an interview from Everglades Correctional Institution in Miami, Clark said he is certain Gonzales didn’t commit the crime because Clark saw who did.

“As for the person whose name that you said was locked up for it, I don’t even know him, you know, but I do know he wasn’t no triggerman,” Clark said.

Arnold “Maniac” Clark, the former head bouncer and floor manager at Players Club in Miami, said he is certain Andre Gonzales did not commit the crime because he saw who did. (Photo courtesy: Florida Department of Corrections)

Arnold “Maniac” Clark, the former head bouncer and floor manager at Players Club in Miami, said he is certain Andre Gonzales did not commit the crime because he saw who did. (Photo courtesy: Florida Department of Corrections)

The Medill Justice Project also tracked down three of the 12 jurors in this murder case who said they harbored serious doubts about Gonzales’ guilt, primarily because of questions about eyewitness identification, but they went along with the decision to convict anyway. Two of those three jurors said the decision was driven in part by a desire of some jurors to go home on a Friday evening after deliberating for over five hours, following three days of testimony. Had one of the dozen jurors voted against Gonzales’ conviction, there would have been a hung jury, leading to a mistrial.

“I felt like everyone, they just needed to get it over with … It was a long trial,” said Tatiana Innocent, one of the jurors, in an interview for this article, adding, “I was not convinced that he was guilty … We didn’t have enough evidence; there were too many discrepancies.”

A 10-week Medill Justice Project investigation also identified significant discrepancies in the account of the sole eyewitness who testified at trial, Michael Morris. When police showed Morris, who was shot twice but survived the crime, a photo array for the first time more than nine months after the crime, Morris said he was “60 percent certain” the assailant was Gonzales.

Eyewitness identification and memory experts said 60 percent is little more than a tossup. “Sixty percent of course doesn’t sound very certain,” said Nancy Steblay, a psychology professor at Augsburg College in Minneapolis and an eyewitness memory expert.

Judge John W. Thornton Jr., who oversaw Gonzales’ trial, wasn’t convinced either, ordering a new trial. But after an appeal by the prosecution, a higher court overruled Thornton, saying the judge’s ruling hinged in part on his assessment of polygraphs passed by Gonzales and his then girlfriend, Kimberly Hunter-Black, in which they said Gonzales had no part in the murder.

The polygraph tests were not considered at trial because the prosecution wouldn’t agree to it; in Florida, polygraph results are admissible only when both sides agree. No murder weapon was recovered, and the only physical evidence that tied Gonzales to the crime scene was a black stocking cap with his DNA on it; the cap was found across a two-lane street, 11 feet from the head of the victim, Nigel Whatley, who died that night in the shooting.

Thornton declined to comment for this article but in his order granting a new trial, he said, “The verdict is contrary to the weight of the evidence.”

Steven N. Yermish, Gonzales’ public defender at trial, said in an interview for this story, “Thirty-two years of practice, representing thousands of clients and some couple hundred trials. He’s the only person I truly, truly believe is in prison who I represented who was innocent.”

Gonzales said in a telephone prison interview from Charlotte Correctional Institution in Punta Gorda, Florida, “I’m an innocent man. I didn’t murder Nigel Whatley. I didn’t shoot Michael Morris.”

Yermish lamented the crime was “just another Miami murder” in a poverty-stricken neighborhood scarred by frequent shootings, stabbings and robberies. (View images from the neighborhood in the accompanying photo essay, “Liberty City.”)

While Morris, the sole eyewitness who testified at trial, declined to comment for this article, records show this is what he told police and the jury: Morris and his friend Whatley left Club Boi at about 5 a.m. on Oct. 1, 2005, and walked to Morris’ new black Infiniti G35 on N.W. 78 Street. While the two stood outside the car talking, a man approached, pointed a gun at them and demanded cash. Just then, an Isuzu Rodeo SUV drove by, distracting the gunman. Whatley jumped on the robber, and Morris attempted to choke the man from behind. The gun went off, and Whatley collapsed face down on the pavement. The gunman knocked Morris to the ground. While Morris started to crawl away, the man shot him in the chest. To stop the bleeding, Morris inserted his finger in the bullet hole and ran behind a car. Morris said he watched the assailant “straddle” Whatley, one foot on either side of his still body, and shoot him again. Once the attacker began searching inside the Infiniti, Morris ran in a zigzag fashion toward N.W. 7 Avenue. The assailant shot Morris in the leg, and he fell to the ground. Morris got up and turned the corner onto N.W. 7 Avenue. A black car passed by, lowering its window, but drove off as Morris screamed for help. Morris kept running until he reached Muhammad’s American Bahamian Kitchen, a late-night restaurant on the next block but no one came out to help. Having difficulty breathing and drifting in and out of consciousness, Morris slumped on a bench outside the restaurant. Three men walked up, one said, “That n—– got hit,” and turned to leave. Just then, police arrived in response to a 911 call and asked the three men whether they were aware of a shooting. The men said no. The officers were about to leave when Morris stood up, shouting, “I’m here.”

Nigel Whatley (pictured center) was shot to death in the early morning Oct. 1, 2005, outside a club in Miami. (Photo courtesy: Public defender’s office)

Nigel Whatley, on the ground next to the car, was shot to death in the early morning of Oct. 1, 2005, outside a club in Miami. (Photo courtesy: Public defender’s office)

Clark, the former club bouncer, described a different version to The Medill Justice Project: Late that night, he walked behind the club where, from about 20 feet, he saw a friend he knew well shoot more than once at a man later identified as Whatley. The friend, who usually sported a goatee, fired the gun from about four feet from Whatley. The victim, wearing a pink wrist band from Club Boi, which catered to gay and bisexual customers, dropped to the ground. Stunned, Clark asked his friend, “What [sic] you doing?” His friend responded, “Did you see this?” Clark replied, “What is [sic] you doing? … Don’t touch that car.” His friend looked at him and then walked around the car, using the cloth of his T-shirt to open the passenger-side door. “I’m, like, damn, what is he doing?” Clark recalled. Clark and the assailant then walked into Players Club, a strip club in the same building as Club Boi.

Arnold “Maniac” Clark drew a sketch of the crime scene in which he described what he saw the night of Nigel Whatley’s murder.

Arnold “Maniac” Clark drew a sketch of the crime scene in which he described what he saw the night of Nigel Whatley’s murder.

“Did I address what I saw?” Clark said to The Medill Justice Project. “No. Did I ever ask [my friend] why? No. Never did I. Why did I never say anything? It’s not necessarily that it’s my business.” Clark added, “If something is said in that neighborhood, it’s going to go around. So you never know who’s going to get feedback or where the feedback is going to come from because that area is tight-knit … You’d be basically a sitting duck so just be quiet about it.” Clark said he didn’t see Morris there.

When The Medill Justice Project asked about Clark’s eyewitness account, Ed Griffith, a spokesperson for the prosecutors’ office, said, “Although, from our knowledge, Arnold Clark appears to have never brought any of this information to police or prosecutors, this is certainly information of interest.” Griffith added, “State Attorney Katherine Fernandez Rundle has always believed that only the guilty should be convicted of a crime. That is why we have successfully worked with Barry Scheck and the Innocence Project in the past when reliable evidence of a wrongful conviction has come to light.” Scheck is the co-founder and co-director of the Innocence Project, an organization in New York dedicated to exonerating the wrongfully convicted.

Police investigation

Within minutes of the shooting, police cordoned off the crime scene with yellow tape and collected evidence on the same side of the street as Whatley’s body: a silver pendant, a Motorola earphone, a car key, a green corduroy cap on the ground and a fingerprint on the car.

Across the street, 11 feet from Whatley’s head, authorities recovered a black, nylon stocking cap.

A police rendering of the crime scene demonstrates where Andre Gonzales’ stocking cap was found. (Photo courtesy: Police records)

A police rendering of the crime scene demonstrates where Andre Gonzales’ stocking cap was found. (Photo courtesy: Police records)

Two days later, police released the attacker’s description from an unknown source: “Black male, 5 feet 7 inches to 5 feet 10 inches, medium build, approximately 165 pounds, dark complexion, 20-30 years old, black fade haircut with possible braids.”

The next day, lead detective Arthur Nanni, a veteran with about 30 years on the police force, questioned Morris in the intensive care unit of Jackson Memorial Hospital. Morris, having difficulty communicating because of his gunshot wound and heavy medication, only recalled his attacker’s dark complexion and height, which he said was about 5 feet 6 inches to 5 feet 8 inches.

Then, over nine months later, police got a break in the case—a DNA hit from Florida’s database of DNA profiles, including those convicted of felonies: the black stocking cap 11 feet from Whatley contained the DNA of Gonzales, a Miami local who was already in jail on unrelated charges. Gonzales’ DNA profile had been entered into the DNA database because of his prior convictions.

Authorities also found DNA that belonged to Morris and other unknown people—but not Gonzales—on other evidence found near Whatley’s body. In an interview for this article, Yermish, the public defender, said the fingerprint from the car was lacking in enough detail and, according to a police report, “found to be of no comparison value.”

Two days after learning about the DNA hit, Nanni met Morris again, this time at the mall where Morris worked as a manager of Bath & Body Works. Nanni presented a photo array of six mugshots of men that included Gonzales’ picture. Morris told Nanni that Gonzales “resembled” the perpetrator, saying he was “approximately 60 percent certain,” according to a police report. Two days later, Morris gave a sworn statement and signed the photo array at the police department’s homicide office, again saying he was 60 percent sure that Gonzales was the person who shot him and killed Whatley.

The next day, Gonzales agreed to meet, without an attorney, with Nanni. Gonzales told the detective he was at Players Club but not on the night of the crime. When Nanni told Gonzales his DNA was at the scene of the crime, Gonzales recalled in an interview for this article that he said, “That’s impossible. Y’all can’t have my DNA because I wasn’t involved in any robbery or murder. I didn’t kill nobody. I didn’t shoot nobody.”

Hunter-Black, the mother of one of Gonzales’ sons, testified that she and Gonzales had arrived at Players Club hours before the shooting. As they sat in Gonzales’ car and prepared to enter the club, she said Gonzales took off his black stocking cap, put it in his lap and began brushing his short hair. Hunter-Black said she didn’t see what happened to the cap afterward.

In an interview for this article, Gonzales said the black stocking cap was found on the scene because it might have fallen to the ground when he left or entered the car that night.

Later that night, after Hunter-Black and Gonzales left the club, she said a friend named “Blinky” called Hunter-Black about the shooting, saying the victim might have been her friend “Yellow.”

Hunter-Black and Gonzales drove back to the area of the club where Hunter-Black said she looked at the body and realized it wasn’t her friend.

“Who forgets seeing somebody’s brains scattered on the concrete?” she said in an interview for this article. “Not me.”

Hunter-Black said she twice called 911 and tried to describe the scene to the dispatcher.

When Gonzales returned to his cousin Ralanda Adderly’s home, where he was staying, Gonzales told Adderly what he saw, that a man had just been killed, Adderly said in an interview for this article.

“He came banging on my room door,” she said. “He said ‘Cous’, guess what happened? … Somebody got killed at the club.”

Adderly said Gonzales told her he didn’t know who killed Whatley, but the incident scared him so much Gonzales said he wasn’t going to go to clubs anymore.

Gonzales, wary of police based on his previous run-ins with the law, said when he spoke with police more than nine months later, he didn’t tell them he was at the club that night because he was concerned he would be accused of committing the crime.

Nanni, the lead detective, retired in July 2006, a few days after Gonzales’ arrest. In a 2009 deposition before trial, Nanni said he destroyed his notes and at trial he said, “It was not necessary” to make certain that 911 records were obtained. Nanni declined to be interviewed for this story, except to say that while eyewitness identification can be “iffy,” Gonzales had ample opportunities to explain why his DNA was found at the crime scene. “If the DNA wasn’t on the scene, Andre [Gonzales] would have never gone to jail,” Nanni said. “Andre had a clear chance to clear himself.”

The Miami-Dade Police Department declined to comment, citing its policy not to speak about prior cases.

Trial

At trial, the defense challenged Morris’ 60 percent certainty that the assailant was Gonzales; records show Morris offered four different descriptions of the suspect’s height. At the hospital, three days after the crime, he described the shooter as about 5 feet 6 inches to 5 feet 8 inches, about Morris’ own height, 5 feet 7 inches.

When Morris viewed a photo array more than nine months later, he said the assailant was about 5 feet 8 inches or taller. Two days after that, in a sworn statement to police, Morris said the attacker was about 5 feet 8 inches to 5 feet 11 inches. At trial and in his deposition, Morris described the shooter as 5 feet 8 inches to 6 feet. Gonzales is 5 feet 11 inches.

At the hospital, Morris “may have said” the shooter had facial hair, Nanni testified. More than nine months later, Morris told Nanni at the mall the shooter “possibly had some facial hair,” according to one of Nanni’s police reports. Two days later, in a sworn statement, Morris was more definitive, saying the shooter had “some scruff around his chin area,” no longer qualifying his description that it was only possible.

The defense said Gonzales couldn’t grow facial hair and called forensic pathologist Dr. Edward N. Willey to prove it. Willey observed Gonzales’ face under a Dino-Lite digital microscope and concluded Gonzales was “incapable of growing a beard, or what would commonly be referred to as ‘whiskers.’” In addition, the defense conducted an observation test over eight days during which Gonzales was voluntarily placed in solitary confinement without access to a razor, checked each day and emerged without visible whiskers.

Gonzales’ aunt, Kirtrina Adderly, said in an interview for this story, “I’ve been with Andre since he was a baby, and Andre never had facial hair. He never could grow facial hair.”

Others who knew Gonzales for years confirmed they have never seen him with facial hair. “Andre never grew facial hair,” said Daniel Ogletree, a professional photographer who has known Gonzales for about a dozen years. “We always used to ask him, ‘When are you going to grow up?’”

The state challenged Willey’s qualifications because he wasn’t a dermatologist and challenged his examination, which prosecutors said was not credible.

Following three days of testimony and more than five hours of deliberations on a Friday, the jury convicted Gonzales of second-degree murder, attempted first-degree murder, armed robbery and attempted armed robbery.

In an interview for this article, juror Augustin Durand, an electrical engineer, said he raised questions during jury deliberations about Morris’ account, including that he said the assailant had facial hair even though Gonzales’ defense asserted he couldn’t grow a beard.

“What’s done is done,” Durand said. “It’s unfortunate, sometimes good people go to jail, innocent people go to jail, that’s life.”

In an interview for this article, Innocent, a juror who is pursuing a master’s degree in occupational therapy, said the jurors were anxious to wrap up deliberations. “I think everyone was so eager to get it over with it,” she said. “ … They didn’t take it seriously, they just wanted to get it over with it. It was a long trial. I remember someone saying, ‘Do you want to come back Monday?’”

A third juror, who declined to be named for fear of retribution, said in an interview for this article, “It’s laziness, it’s true. We wanted to finish this on Friday.”

Thornton, the trial judge, suggested polygraph examinations of Hunter-Black, Morris and Nanni. Hunter-Black passed her polygraph, indicating Gonzales had no part in the crime. Gonzales, who took a polygraph test prior to the trial, also passed his, indicating he did not commit the crime.

John J. Palmatier, a Ph.D. in social science focusing on psychological research and credibility assessment and a former Michigan state police detective sergeant, who administered Gonzales’ polygraph, said, “The guy that I tested is being truthful. He didn’t do that armed robbery and he didn’t shoot those people, and I’m very comfortable to a scientific certainty that that’s true.” Palmatier said he has conducted polygraph exams for various state and federal agencies.

In this case, the state objected to allowing Morris or Nanni to take the exams.

Whether polygraphs are accurate remains a point of debate; Stephen E. Fienberg, a statistics and social science professor at Carnegie Mellon University who chaired a committee that authored a 2003 study on the limits of polygraphs, said in an interview for this article they are “better than chance in identifying deception but far from perfect.”

In 1998, the U.S. Supreme Court ruled that state and federal governments are allowed to ban the use of polygraph evidence in court because “there is simply no consensus that polygraph evidence is reliable.”

In November 2011, Florida’s Third District Court of Appeals overturned Thornton’s order giving Gonzales a new trial; in his decision, Thornton said granting a retrial was based solely on questions raised during the case, particularly eyewitness identification issues, but the appeals court believed he had been influenced by the polygraph results.

“It is entirely clear from the record that the trial court requested the polygraphs, reviewed the results, and was, at least, minimally influenced by the polygraphs in arriving at its decision,” the appeals court wrote.

The polygraphs could have persuaded some of the jurors, if they had known about the exams. “I don’t think this guy got a fair trial,” said Innocent in an interview for this story. “There were too many unanswered questions we needed answers to send him to jail. The polygraph should have been included.”

Durand also said knowing Gonzales passed his polygraph could have changed the trial’s outcome.

He said, “I would most likely have voted differently.”

Criminal forte

Andre Gonzales was convicted of second-degree murder, attempted first-degree murder, armed robbery and attempted armed robbery and sentenced to life in prison. (Photo courtesy: Public defender’s office)

Andre Gonzales was convicted of second-degree murder, attempted first-degree murder, armed robbery and attempted armed robbery and sentenced to life in prison. (Photo courtesy: Public defender’s office)

The words “f— da police” adorn Gonzales’ left arm, a telling reminder of his encounters with authorities. Gonzales, now 43, said he acquired the tattoo while incarcerated for a different crime.

The ink was inspired by a 1996 beachside altercation with law enforcement, Gonzales said. What began as a night of fishing in Miami became a dispute between Gonzales and police that would land him in prison for aggravated assault and battery against police and possession of a firearm by a convicted felon. As Gonzales explains it, the officers “overdid it,” claiming he tried to assault them and run them over with his Honda Accord, which he said he was backing up.

Court records for the offense show he “pulled out and pointed a firearm with a red laser” toward the chests of three park rangers, one of whom had also pointed a gun at Gonzales. Gonzales said he invented the alias “Tony Brown” that night when the rangers approached him for trespassing. Under that name, two years later, he was imprisoned.

It wasn’t the first time. In 1987, when he was 15, he was arrested for manslaughter. One of his then-public defenders said in a 2009 letter to a prosecutor that “what occurred on the day of the incident was that a scared and panicked adolescent was attacked by a violent, crack-abusing bully.” The victim and Gonzales “exchanged words, the victim hit Andre on the back of the head, the victim picked up a brick and chased Andre, and Andre got a gun and shot the victim one time.” Florida Department of Corrections records show he served about two years from 1988 to early 1991.

Gonzales said he dabbled in drug dealing before finding what he described as his criminal forte: identity fraud. He obtained a driver’s license under the name of a childhood friend and wrote bad checks to buy expensive items such as Nautica clothing, Jordan sneakers and Dooney & Bourke purses. Gonzales said he cashed about $100,000 from 1992 to 1996. He was imprisoned for using a false name in applications and aggravated assault from the beachside altercation.

“I wasn’t innocent back then,” Gonzales said.

After his release from prison in 2005, Gonzales said he landed a position driving patients to doctor appointments. Then came the murder charge. During sentencing, Gonzales addressed the family of Whatley, the victim who was fatally shot.

“I’m not the one that did that crime that night,” he said. “I’m not.”

Whatley was 25 at the time of his death and had worked in communications for the Miami-Dade County Water and Sewer Department, according to a police homicide report and his death certificate. In an interview for this article, his father, Robert Lee Whatley, said he last spoke with his son three days before his murder; Whatley wanted to travel to Europe and Africa with his father.

“How many people get to say their son’s last words were ‘I love you’?” Robert Lee Whatley said.

For Morris, nearly losing his life at the age of 33 will always remain with him. “I will always have pain so I will never forget you,” Morris told Gonzales at sentencing. “I’m still angry.”

Eyewitness I.D.

Interviews with several experts in eyewitness identification and memory raised questions about Morris’ evolving description of the shooter, who grew from about 5 feet 6 inches to upwards of 6 feet—moving closer to Gonzales’ 5 feet 11 inches—and who went from possibly having facial hair to definitively showing “some scruff around his chin area.”

In a 2007 deposition, about a year and a half after the crime but before he testified, Morris said he had learned that DNA had been retrieved from the crime scene, that Gonzales was a suspect and that authorities had recovered a “skully” cap.

Even with witnesses who are certain they are telling the truth, eyewitness recollections can change when the witness learns post-event information. “Post-event information is any information about an event that comes along after the event itself is over that the witness can use to supplement their memory for important aspects of the original event,” said Geoffrey R. Loftus, a psychology professor at the University of Washington in Seattle who specializes in memory and perception and has testified in more than 300 cases. “So in this case, Michael [Morris] having chosen [Gonzales] from the photo lineup was perfectly capable of using Andre’s appearance as a basis for reconstructing his memory of the original crime, the original shooting, robbery, and so on, such that, even if his memory of the actual perpetrator was pretty hazy and dim at that point, which it probably was, he can now replace that hazy, dim image with a stronger representation of Andre, the guy he selected from the photo montage. So that by the time he walks into trial, Michael has a relatively strong image of [Gonzales] as the person who committed the crime.”

Morris’ initial description of the assailant was that he was about his own height—5 feet 6 inches to 5 feet 8 inches—with a dark complexion. Loftus said people are better at perceiving and memorizing parts of appearance like height and build than more detailed elements. “If Michael [Morris] had originally memorized anything accurately about what the perpetrator looked like, it’s likely that he accurately memorized the perpetrator’s height,” Loftus said.

Meanwhile, interviews with forensic pathologists who reviewed Whatley’s autopsy for this article questioned how Morris said the assailant fired two shots at Whatley when the victim sustained one bullet wound.

“The autopsy just says that Whatley was struck just once by a bullet,” said Dr. Michael M. Baden, the noted former chief medical examiner of New York City and past co-director of the New York State Police Medico-Legal Investigations Unit. “He might have discharged the weapon and it didn’t hit anything.”

Experts also highlighted that there was no stippling—marks from fragments of a bullet fired at close range—found on Whatley’s body even though Morris said the assailant first shot Whatley as they were in a close, face-to-face struggle.

“When a firearm is discharged very close to the body, you can see gunpowder stippling with your naked eyes,” Dr. Bruce A. Hyma, Miami-Dade’s chief medical examiner, testified. “From this particular wound, there is no gunpowder stippling.” He said the shot came “not within inches … not even a couple of feet. It’s further away than that.” Hyma declined to comment for this article.

Dr. Judy Melinek, a forensic pathologist formerly with the New York City Medical Examiner’s Office who is now associate clinical professor of pathology at the University of California, San Francisco Medical Center, said soot would have been visible if the shot was fired within six inches of the victim and that stippling would have been identified if the shot was fired within three feet. Whatley’s body showed neither.

Dr. Bruce P. Levy, associate professor of clinical pathology at the University of Illinois at Chicago and a forensic pathologist formerly of the New York City Office of the Chief Medical Examiner, wondered how Whatley could have fallen motionless to the ground, as Morris described, unless Whatley had been struck violently, which Levy said didn’t seem possible, or if Whatley had been shot at close range—but that would have produced stippling, which wasn’t present.

“You would really need something significant to knock you out,” Levy said. “Again, if there’s a scuffle like you’re describing where everyone’s kind of on top of one another, you usually can’t get the momentum going to really knock someone out.” He added, “There are no other injuries that would explain [why he fell to the ground motionless] that are described in the autopsy.”

Experts say that witnesses to crimes can be impacted by several other factors, including lighting conditions, stress, the presence of a weapon and intoxication levels. Whatley had consumed about seven drinks, based on his blood alcohol level at the time of his autopsy, forensic pathologists said. Morris said in his deposition that he had consumed two and a half vodka drinks with grapefruit juice. At trial, Morris described himself as “petrified” when the perpetrator, who was holding a gun, told him and Whatley to “get naked.” And Morris said in his deposition he “was really focused on the weapon.”

Calling it the weapon-focus effect, Steblay, the eyewitness identification expert, said people focusing on a weapon are less likely to recognize the perpetrator in a lineup because they may not have taken in details of the perpetrator’s face.

“The dominant response that people have to stress and fear is fight or flight,” said Gary L. Wells, a psychology professor at Iowa State University in Ames, Iowa, and an expert in eyewitness identification. “The brain puts all of its resources into the fight or flight system, which leaves very few resources for things that are irrelevant to survival in that setting, like taking in details of the perpetrator’s face, knowing how they are dressed because those things are irrelevant to survival. Your body is preparing to either fight against or try to disarm the threat or to flee.”

60 percent

When Nanni, the lead detective, administered the photo array to Morris nearly a decade ago, Nanni knew which photo pictured the suspect, according to a police report. As of November last year, Miami-Dade Police Department standard operating procedures recommend that an independent administrator who does not know the suspect’s identity be used “when feasible.”

Experts generally recommend that the administrator presenting the photo lineup does not know the identity of the suspect because lineup presenters who know the suspect’s identity can “unintentionally” influence the witness’ selection.

Nanni presented the photos all at once and asked Morris to pick a mugshot, rather than showing Morris one photo at a time and asking if that picture shows the shooter. As of November last year, Miami-Dade Police Department standard operating procedures state that showing photos one at a time is “preferred.”

When photos are shown all at once, “the witness can always find someone who looks closest to what they remember and that closest person may in fact be an innocent suspect,” said Steblay, who has conducted research on eyewitness memory for over 25 years.

Of 329 DNA exonerations in the United States, about 70 percent of them were cases where misidentification contributed to the wrongful conviction, said Paul Cates, a spokesman for the Innocence Project. Eyewitness misidentification is the leading factor in wrongful convictions, said Michelle Feldman, the Innocence Project’s state policy advocate. In the past three decades, many scientific studies have shown that eyewitness identification is often inaccurate, Cates said.

Since 2001, through laws, court action and policy directives, 14 states have implemented eyewitness identification reforms, according to the Innocence Project. Florida is not one of those states.

Morris gave two explanations for why he said he was only 60 percent certain Gonzales was the shooter. In a 2007 deposition, Morris said the photo array was too “grainy.” At trial three years later, Morris said his 60 percent certainty was due to “an abundance of caution” and his tendency to “quantify things.” Also, the men in the photo array were not wearing stocking caps; he said he would have been more comfortable with his identification had the photos included mugshots of men wearing stocking caps because the assailant had worn one.

Prosecutors often do not want eyewitnesses to quantify with percentages how certain they are about who they select in photo lineups. “It’s typically not very clear what those numbers mean,” said Jason C.K. Chan, an associate professor of psychology at Iowa State University in Ames and a memory expert.

Chan said 50 percent is “very, very low confidence,” so he said Morris’ “60 [percent] sounds pretty low to me, although, again, it’s hard to know exactly what that person means by 60.”

Chan added, “Nine months is a very, very long delay,” before Morris was shown the photo array. “The likelihood that a person can identify a stranger in a photo lineup after nine months is pretty minimal.”

Five years after the crime, Morris was more certain than ever. At trial, one of the prosecutors asked Morris to identify Gonzales as the killer.

Morris replied, “It’s him right there, sitting down in the middle, with the glasses in the gray shirt and tie.”

The prosecutor said, “Let the record reflect the witness has identified the defendant.”

2 Responses to Code of Silence

  1. Stephen J. Berry says:

    Nice work, Medill Project reporters. Such events anger me to no end. Unfortunately, I cannot say I am shocked, because I have become so jaded about the American criminal justice system from years of covering it. Such miscarriages happen all to often; in fact, they are common. Someone needs to be punished for robbing a man of a good portion of his life. In this case, the police,the prosecution and the jury system failed.

  2. Chico says:

    Code of Silence lives on

Leave a Reply to Stephen J. Berry Cancel reply