Jailed 6 years as argument rages over expert witness

Defense lawyers say there was a reason Jose Alicea confessed to the Oct. 30, 2005, shooting death of 21-year-old Esroy George Rowe during a melee at their neighborhood cafe in Olney.

Alicea, then 19, with no prior record or contact with police and an IQ of 64 - six points below the traditional threshold for mental retardation - was brought in for questioning at 2 a.m. Nov. 1, 2005.

Five hours later, nervous and shaking, Alicea began making a statement implicating himself.

In what lawyers say could be a first crack in the Pennsylvania courts' reluctance to allow some types of expert psychological testimony, a state Superior Court panel ruled Monday that Alicea's lawyers could use an expert to explain to a jury why some people are especially vulnerable to being pressured into confessing to a crime they did not commit.

Writing for the majority of the three-judge panel, Judge Mary Jane Bowes said the testimony of Richard Leo, a nationally known expert on police interrogation and false confessions, would not infringe on the jury's ability to assess the credibility of Alicea's claim of a coerced confession.

"Even those jurors who are aware of police interrogation techniques, or believe that they are aware by watching media and television," wrote Bowes, "are unlikely to understand how these methods can lead to an innocent individual confessing."

Hugh Burns, chief of appeals for the Philadelphia District Attorney's Office, said his office would likely appeal the Superior Court ruling. The DA's office could ask the full Superior Court to reconsider the panel ruling or the state Supreme Court to take the case.

"I think this is an important matter," Burns said. "There is this tendency to tell jurors what they should believe."

Burns can easily find support in the brief dissent by Superior Court Judge Correale F. Stevens.

Quoting from an earlier state Supreme Court opinion, Stevens wrote that the state's high court has long restricted expert witnesses: "Expert testimony is only admissible where formation of an opinion on a subject requires knowledge, information or skill beyond that possessed by the ordinary juror."

Monday's decision will have little immediate impact. Because the ruling only affirms a pretrial ruling by Philadelphia Common Pleas Court Judge Benjamin Lerner, Alicea will stay in prison, without bail and awaiting trial, until the courts rule on the DA's appeal.

That could mean several more years behind bars for a man - legally innocent until proven guilty - already confined six years, largely because of pre-trial arguments on whether he can use an expert witness. Beyond his confession, the evidence against Alicea is equivocal: eyewitnesses who identified two others as the shooter.

Nor is the Superior Court's ruling precedential, or binding on other state trial courts.

Still, some experts say the Superior Court decision is significant because it is one of several incremental steps by Pennsylvania judges to ease restrictions on some expert testimony.

Marissa B. Bluestine, legal director of the Pennsylvania Innocence Project, founded two years ago at Temple University's Beasley School of Law, said she believes the exoneration through DNA of some people convicted of crimes - by confession, eyewitness identification, or other evidence - is making some judges more open to the use of experts in court.

Bluestine said one Pittsburgh judge has already permitted limited testimony by Leo about coerced confession, a ruling not directly challenged by prosecutors.

Two other cases are pending before the state Supreme Court on the use of expert testimony about the reliability of eyewitness identification.

According to Bluestine, only Pennsylvania and Kansas do not allow some use of expert testimony about coerced confessions.

"Most courts [in other states] allow its use at the discretion of the trial judge and that's as it should be," Bluestine added. "It's not appropriate in all cases."