Judge rejects Innocence Center’s evidence in LV case

Molly Ball

Wednesday, Dec. 15, 2004 | 8:56 a.m.

A judge has rejected an effort by a regional legal aid group to free a prisoner who it says science proves is innocent.

Bryon Garnett, convicted in 2001 of armed robbery in Las Vegas, will appeal to the Supreme Court, his lawyers said.

In claiming Garnett's innocence, the Salt Lake City-based Rocky Mountain Innocence Center called on a NASA rocket scientist whose video-enhancing technique is used to clarify pictures from outer space.

After examining the security-camera video of the robber passing the height strip in the store's doorway, NASA's David Hathaway said the man on the tape could have been no taller than 5 feet 8 inches. It couldn't be Garnett because he is 6-foot-1, his lawyers contend.

But District Judge John McGroarty was unconvinced of the technique's precision.

"A review of the testimony and the videotape evidence presented ... provides no definitive measurement of the suspect," McGroarty wrote in his decision.

"Given the evidence provided at trial, the jury's verdict, and the unreliability of the testimony of the defendant's expert ... the defendant's claim of actual innocence must be denied," McGroarty wrote.

The prosecutor on the case, Deputy District Attorney Marty Hart, noted that Hathaway used the technique to estimate the heights of two policemen and a witness in the video and guessed them all 1 or 2 inches short.

"When you looked at the videotape, there was just no way you could say with any certainty the height of the individual," Hart said.

Hart said he was sure the right man was convicted for the crime and noted that witnesses identified Garnett at his trial.

In the robbery in question, which took place in 2000, a man in a red baseball cap threatened a Circle K clerk with a gun until the clerk emptied the safe. The robber also took a $100 bill from a woman who came in to get change.

The Innocence Center's Josh Bowland called the judge's decision "unfortunate."

"It's pretty simple," Bowland said. "There's an obvious discrepancy between the height of the person in the video and the man we represent."

Local defense attorney JoNell Thomas, who has joined the case to aid the Innocence Center with the appeal, said unreliable witnesses are a common problem in criminal cases.

"Certainly, there are a lot of studies that discuss the fact that eyewitness misidentification has led to a lot of wrong convictions," she said.

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