United States v. Clayborne

• Docket Number: 18-cv-109-pp
• Decision Date: 05 January 2022
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JACK A. CLAYBORNE, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

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UNITED STATES OF AMERICA, Plaintiff, v. JACK A. CLAYBORNE, Defendant.

No. 18-cv-109-pp

United States District Court, E.D. Wisconsin

January 5, 2022

ORDER GRANTING GOVERNMENT'S MOTION TO EXCLUDE TESTIMONY OF DR. NEUSCHATZ (DKT. NO. 160)

Hon Pamela Pepper, Chief United States District Judge

I. Background

In his August 19, 2019 recommendation that this court deny the defendant's motion to suppress, Magistrate Judge David E Jones recounted the facts of the case:

On July 7, 2016, Michael Guster became the victim of an attempted carjacking. See Defendant's Motion to Suppress Evidence 4-5. As Mr. Guster parked his car in his garage, two masked men approached with guns drawn. Id. at 4. The men fired shots, and a bullet went through both of Mr. Guster's legs. Id. at 5. Mr. Guster, legally carrying a handgun, shot back at the two men and hit one of them who was later identified as Eric Booker. Id. The two armed and masked men fled the scene and approximately ten minutes later, a man stripped down to his underwear showed up at the door of nearby resident, P.P. Def.'s Mot. to Suppress 5. The man asked P.P. to provide him with some clothes and then he retreated. Id. at 5-6.

Shortly after the attempted carjacking, Mr. Guster was interviewed by a detective. Mr. Guster described the person that shot him as a “black male, 23-25 years old, medium complexion, medium build, 6'0-6'1'', 180-190 pounds, 1-2'' afro, wearing a mask which covered his mouth and nose.” Def.'s Mot. to Suppress 6. P.P., who was also interviewed by a detective, described her visitor as a “black male, 6'0, mid 30s, medium build, caramel complexion, bald, no scars or tattoos.” Id.

By August 1, 2016, Jack Clayborne was identified as a suspect through video surveillance from July 7, 2016, which showed a wounded Eric Booker being dropped off at a hospital by someone driving a Ford Taurus with Illinois license plates. Def.'s Mot. to Suppress 6-7. Law enforcement ran the plates which listed to Jack Clayborne. Id. at 7. An FBI agent contacted Jack Clayborne who explained that he'd given his Taurus to his son-also named Jack- who took it to Milwaukee and returned it around July 10. Id.

In February 2018, law enforcement officers offered Mr. Guster and P.P. an opportunity to identify Mr. Clayborne as the person they observed. Def.'s Mot. to Suppress 7. FBI Agent Lucker and Detective [Klabunde] put together a photo array comprised of six photographs, one of Mr. Clayborne and five random others purported to resemble Mr. Clayborne. Id. at 8. Detective [Klabunde] first presented P.P. with form instructions and then he showed her the six photos in sequential fashion, with Mr. Clayborne's photo appearing fourth. Id. P.P. hesitated between pictures two and four, but described herself as “pretty certain” that the fourth photo depicted the unclothed man that came to her door. Id. Detective [Klabunde] repeated the process for Mr. Guster who also picked out Mr. Clayborne from the photo array because of his nose and mouth shape. Id. at 9.

Dkt. No. 79 at 2-3. In adopting Judge Jones's recommendation, this court reiterated those facts. Dkt. No. 101 at 9-10.

On August 9, 2016-just over a month after the incident described above-a federal grand jury charged Eric Booker with attempted carjacking in violation of 18 U.S.C. §2119(2) and knowingly using, carrying brandishing and discharging a firearm during and in relation to that offense in violation of 18 U.S.C. §924(c). United States v. Booker, Case No. 16-cr-125-LA (E.D. Wis.), at Dkt. No. 1. On January 25, 2017, a jury found Booker guilty on both counts. Id. at Dkt. No. 35. Over a year later-on February 26, 2018-Judge Lynn Adelman sentenced Booker to serve thirty-six months on the attempted carjacking count and 120 months on the §924(c) count, to run consecutively to the sentence imposed on the carjacking count, for a total sentence of 156 months, or thirteen years. Id. at Dkt. No. 57.

On May 15, 2018, a grand jury charged the defendant and Sylvance Brown with attempted carjacking, 18 U.S.C. §2119; using, carrying, brandishing and discharging a firearm during and in relation to a crime of violence, 18 U.S.C. §924(c)(1)(A)(i)-(iii); and unlawful possession of ammunition by a prohibited person, 18 U.S.C. §922(g)(1). Dkt. No. 14. These charges, like the charges against Eric Booker, were based on the July 7, 2016 incident involving Mr. Guster. Brown later pled guilty to two of the counts. Id. at 144.

That leaves the defendant as the only one of the three men charged in the July 7, 2016 incident whose charges remain outstanding. The defendant's trial is scheduled to begin January 10, 2021. Dkt. No. 138. He lists among his potential witnesses Dr. Jeffrey Neuschatz of Hunstville, Alabama. Dkt. No. 158 at 4. On December 23, 2021, the government filed a motion to exclude the testimony of Dr. Neuschatz, whom the government asserts is being offered “as a defense expert on eyewitness memory.” Dkt. No. 160 at 1. The defendant opposes the motion. Dkt. No. 167.

II. Dr. Neuschatz's Credentials and Report

A. Curriculum Vitae

The defense has filed Dr. Neuschatz's curriculum vitae. Dkt. No. 158-9. According to his CV, Neuschatz currently is a distinguished professor in the department of psychology at the University of Alabama in Huntsville. Id. at 1.

He has been a professor-first an assistant professor, then an associate professor, then a full professor and finally a distinguished professor-at the University of Alabama/Huntsville for twenty-one years. Id. He has a Bachelor of Science in psychology from Roger Williams University, a Master of Science in experimental psychology from the State University of New York College at Cortland and a Ph.D. in cognitive psychology from Binghamton University. Id.

Dr. Neuschatz lists in his CV the grants he has received, including a grant in 2017 to fund research in “Eyewitness Identification Confidence, ” two grants comparing show-ups and lineups as identification techniques and a mini-grant on the effect of post-identification feedback on the elderly. Id. at 2. He has co-authored three books: one about jailhouse informants, one about psychology and the law and one (in 2012) titled “Psychology of Eyewitness Memory.” Id. Neuschatz has authored numerous articles in referred journals (several of the articles are about eyewitness testimony, lineup identifications and show-up identifications). Id. at 2-6. He has co-authored book chapters and law review articles on memory gaps and errors, eyewitness memory in older adults, the cognitive psychology of memory, false memories and applied memory. Id. at 6-7. He has co-authored articles about eyewitness identification and memory in publications such as The Champion (the magazine of the National Association of Criminal Defense Lawyers) and the Encyclopedia of Psychology & Law. Id. at 7-8. Dr. Neuschatz has spoken at professional conferences and conventions on the issue of eyewitness testimony (as well as other psychology-related topics). Id. at 8-17. His 1999 dissertation was titled, “The phenomenological characteristics of false memories.” Id. at 17. He has taught undergraduate classes in sensation and perception. Id. at 18. He is a member of the American Psychological Association, the American Psychology Law Society and the Society for Applied Research in Memory and Cognition, among others. Id. He is an editor of Psychology, Crime, and Law and is a past member of the editorial board of Law and Human Behavior. Id.

B. Expert report

Dr. Neuschatz's report is not dated. Dkt. No. 158-10. In describing the task for which he was retained, he states only that defense counsel “has contacted [him] regarding expert assistance in various eyewitness identification matters at issue in this case.” Id. at 1. He summarizes his conclusions-based on discovery materials provided to him by defense counsel-as follows:

In summary, my overall opinion, based on the scientific research and facts of the case, is that it would be very difficult to make an accurate identification under the conditions in which the encounter occurred. The factors, long retention interval, weapon focus, stress and head covering would make it hard to accurately identify the culprit. Furthermore, best practice guidelines for choosing fillers or known innocent people were not adhered to and therefore could contribute to a false identification.

Id. at 1-2.

Dr. Neuschatz gives a brief, two-paragraph summary of the facts, then moves on to an overview of the scientific research on memory and eyewitness identification. Id. at 2. He discusses research regarding mistaken eyewitness identifications, stating that “[a]ccording to the Innocence Project's web page, “Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 70% of convictions overturned through DNA testing.” Id. at 3-4. (He gives no web address for this web page, but the court assumes he is referencing the web site https://innocenceproject.org.) He also cites Smith, A.M., & Cutler, B.L. (2013), Introduction: Identification procedures and conviction of the innocent for the assertion that “[i]n reviewing a larger sample of wrongful conviction cases, mistaken identifications were a factor in about 50% of the cases.” Id. at 4.

Dr Neuschatz then turns to “[s]pecific variables affecting memory, ” and discusses them in relation to certain facts from this case. He begins with exposure time, explaining that the longer a witness is exposed to a “culprit's” face and the more clear the view, the stronger and more accurate the memory. Id. at 4. He states that in this case, the “entirety of the incident did not last more than a few seconds, ” and he asserts that the victim “indicated that he only saw part...