|Man's Blinking Testimony Allowed|
|By ALEXIS SHAW (@ashaw109)||Apr 10, 2013, 4:39 PM|
The videotaped testimony of a paralyzed man, whose communication through only eye blinks to police was used to identify his alleged killer, is allowed to be shown in court, an Ohio judge ruled Tuesday.
Hamilton County Court Judge Beth Myers denied the motion by defense attorneys to ban the blinking testimony of 35-year-old David Chandler to be shown to jurors in the trial against his alleged shooter, Ricardo Woods.
Woods, 34, is accused of fatally shooting Chandler in the head and neck on Oct. 28, 2010. When police interviewed Chandler in the hospital on Nov. 2, he was paralyzed and using a ventilator to breathe, authorities said.
Based on a communication system set up by his family, Chandler was instructed by authorities to blink three times to indicate a "yes" and two times to indicate a "no" when asked to identify the person who shot him.
During the interview, when Chandler was shown a photograph of Woods, he reportedly blinked three times.
On Nov. 12, Chandler died of complications of his paralysis and gunshot wounds.
Woods was charged with murder, felonious assault and weapons counts. If convicted, he could face life in prison.
Woods's attorney, Kory Jackson, told ABC News he wanted the video excluded from the trial because it was unreliable.
"Police set up these rules, and they asked him a series of questions," he said of the videotape of Chandler's testimony. "There are times he doesn't blink at all in response to questions, there are times he blinks more than three times. So it is often unclear what exactly he is trying to communicate."
Jackson said Chandler's eye-blinking testimony was also problematic because authorities only showed him one photo and reportedly suggested to him that Woods was the person they believed was the suspect.
"They planted the idea in his mind, and then asked him to respond," Jackson said.
Jackson said that according to Ohio law, whenever authorities arrange for a line-up or a photo array for identification purposes, an officer in the room is required to not know who the suspect is.
But Jackson said that not only did officers know who the suspect was, but they only showed Chandler one picture, a picture of Woods.
"It is improperly suggestive," Jackson said. "That causes false identifications more often than not."
Jackson said the two individuals who were in the car with Chandler when he was shot were both shown a line-up, and neither of them identified Woods as the shooter.
Karen Newirth, an eyewitness identification litigation fellow at the Innocence Project, told ABCNews.com that the nonprofit legal clinic decided to become involved with the case, submitting an amicus brief to the judge in support of the defense's motion in December 2012.
"The procedures were so unusual and so far outside the bounds of anything we'd ever seen that we felt like it was important to get involved," Newirth said.
Newirth said the organization, which works to exonerate the wrongfully convicted through DNA testing and improving the criminal justice system, was interested in the case because Ohio's minimum requirements for live and photo lineup procedures were not followed.
"Eyewitness misidentification is the leading contributing case of wrongful convictions, present in 75% of our 303 DNA exonerations," she said. "It's a shame that in a state with such a strong law, the procedures were not followed."
A spokesman for the Hamilton County prosecutor's office declined to comment on the judge's ruling because the case was still pending.
Woods is currently in custody at Hamilton County Jail.
The trial is scheduled to begin on April 29.
ABC News' Christina Ng contributed to this report.