NJ Supreme Court limits 'mugshot exposure' in ruling on Willingboro shooting

TRENTON – A man serving a 20-year term for allegedly shooting into a Ladies Night party in Willingboro has won a potential reprieve from the state Supreme Court.

Brandon Washington, 38, was convicted in February 2019 for a gun attack at a VFW post two years earlier.

But a unanimous high court said Washington’s right to due process may have been violated when prosecution witnesses — who had previously identified the Trenton man from photos during the investigation — were shown photos of him again during trial preparation.

It directed a lower-court judge to determine whether the photo presentation was “impermissibly suggestive” and whether Washington should get a new trial as a result.

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The Jan. 8 ruling sharply restricts when defendants' photos can be shown to prosecution witnesses during trial preparation.

Supreme Court cites risk of 'mugshot exposure'

It says mistaken identifications tied to the repeated viewing of suspects’ photos are “the leading cause of wrongful convictions.”

Among other problems, the ruling says, “mugshot exposure” can occur when a witness initially makes no identification from a set of photos, “but then selects someone — who had been depicted in the earlier photos — at a later identification procedure.”

“Mugshot commitment” can occur when a witness is repeatedly shown a defendant’s photo. That makes it difficult to know “whether a witness recalls the original event or the earlier identification procedure,” the decision says.

Similarly, it notes, reshowing photos to a witness during trial prep can send the implicit message: "‘"That’s the very person you identified before.”

That can reduce doubt for the witness and create a false sense of confidence during testimony, the ruling says.

New rule for photo displays during trial preparation

“Suggestive identification procedures may so irreparably taint out-of-court and in-court identifications that a defendant is denied due process,” says the 45-page decision written by Chief Justice Stuart Rabner.

Under the decision's new “overarching rule,” any witness who’s made a prior identification should not be shown a defendant's photos during prep sessions – whether new pictures or ones they previously reviewed.

“The need to prepare for trial or refresh a witness’s recollection, standing alone, cannot serve as a good reason” to waive that rule, it adds.

And when exceptions do occur, the prosecution must share a written record of its actions with the defense, which can then challenge the admissibility of any identification.

Washington’s attorney, Robin Lord of Trenton, only learned of the pretrial photo displays after his trial had started.

Lord on Monday expressed gratitude for “this landmark decision.”

“Brandon's jury had no way of knowing that when (witnesses) identified him in court their memory very possibly was tainted by the undue influence that the pretrial prep sessions had on their recollection,” she said.

The Burlington County Prosecutor’s Office declined to comment on the pending case.

According to the ruling, Washington was among about 150 people who attended a Ladies Night event at a VFW post in Willingboro in February 2017.

Moments after he was forcibly ejected due to an argument with a security guard, someone fired into the building and wounded two people, the ruling says.

Witness identifications represented key evidence against Washington.

The suspect was not arrested at the scene, the gun was not recovered, and no video showed the shooting.

Washington, initially accused of attempted murder, was convicted on two counts of attempted passion provocation manslaughter.

He was sentenced to two consecutive 10-year prison terms, with no parole eligibility for 17 years.

Jim Walsh is a senior reporter for the Courier-Post, Burlington County Times and The Daily Journal. Email: Jwalsh@cpsj.com.

This article originally appeared on Cherry Hill Courier-Post: Supreme Court restricts prosecution's use of photos during trial prep