CT Supreme Court breaks new ground in case about eyewitness identifications

The state Supreme Court broke new ground Tuesday when it established a procedure that will allow people convicted of crimes to benefit, retroactively, from judicial decisions made years after they were found guilty and incarcerated.

The unanimous decision written by Justice Andrew McDonald turns on the case of Edgar Tatum , convicted of murder in 1990 largely on the basis of what the court called unreliable, in-court eyewitness identifications by two drug abusing witnesses who had previously identified someone else.

Tatum argued in his initial appeal that the in-court identifications were suggestive and unreliable. After being called to the witness stand, the two witnesses were asked if they saw the killer, known to be a Black man, in the courtroom. Both identified Tatum, the only Black man at the defense table.

In 1994, the Supreme Court, hearing the case for the first time, upheld the conviction after rejecting Tatum’s argument about the unreliability of the eyewitness identifications.

But 12 years later, the court revisited questions about such identifications in light of an evolving and persuasive body of scientific evidence that characterized them as subject to suggestion and frequently unreliable.

In the 2016 decision in State v Andrew Dickson , the court said, “in cases in which identity is an issue, in-court identifications that are not preceded by a successful identification in a non suggestive identification procedure implicate due process principles and, therefore, must be prescreened by the trial court.’’

The court, in 2016, continued, “we are hard-pressed to imagine how there could be a more suggestive identification procedure than placing a witness on the stand in open court, confronting the witness with the person whom the state has accused of committing the crime, and then asking the witness if he can identify the person who committed the crime.’’

Tatum, then in prison for more than a decade, embarked on a succession of post-conviction actions based on the decision in Dickson. He argued that the Dickson court had adopted the very argument he made and lost in his initial 1994 appeal

Tatum lost again, repeatedly, in both state and federal courts, because of a U.S. Supreme Court decision which effectively barred lower courts from retroactively applying decisions like the Connecticut Supreme Court’s Dickson decision.

In its decision Tuesday, the state Supreme Court said it interprets the rights due criminal defendants more broadly than the U.S. Supreme Court. The decision establishes a procedure in Connecticut that allows the retroactive application of decisions in cases where litigants, like Tatum, make arguments that are later adopted by the court.

The state court wrote that although the retroactive application of decisions may be “moribund” in the federal courts, “we conclude that it has continued viability in Connecticut.” Elsewhere the court said, “We do not believe that we should follow the (U.S.) Supreme Court’s lead …by foreclosing the possibility of the retroactive application of new procedural rules in all cases.”

The court issued instructions to lower courts to reconsider Tatum’s latest appeal in view of Tuesday’s decision. The instructions will likely prove moot. Tatum was released from prison in 2023 by the state Board of Pardons and Paroles after serving 35 years. The decision could result in the murder conviction being removed from his record.