The instructions were clear: blink three times for “yes,” two times for “no.”  Six times for “maybe.”  Nine times for “I’ve got something in my eye.”  Once for “am I gonna die?”  Or maybe not. 

When the only means of communication is a blink, however, that’s the best you can do.  From Cincinnati.com :

Ricardo Woods could spend the rest of his life behind bars because of a blink.

In a bizarre case, Woods is charged with fatally shooting David Chandler, with authorities relying on a priest and blinking to try to solve the killing.

Woods was charged with murder after a wounded Chandler identified Woods as the shooter – by blinking his eyes to answer yes-and-no questions from police who also brought in a priest to administer last rites, Woods’ attorney alleges, to skirt the law.

The police had two problems to overcome.  There was David Chandler, paralyzed as the result of a shooting and incapable of speaking.  It was their belief that Woods was the shooter, but they needed an identification and Chandler was in no position to give up a name.

The other problem was that Chandler was alive, even though paralyzed, but there was no assurance that he would survive long enough to testify.  In the hospital, it was questionable whether he believed himself to have one foot in the grave, in extremis, such that his communication would fall under the hearsay exception of a dying declaration. 

To create the proper atmosphere, the cops brought in a priest to give Chandler last rites.  After all, who cares about saving his life and comforting the victim when there’s evidence to be gathered and no way to do so without making sure he knew he was about to meet his maker.  And once he was sufficiently fearful of the grim reaper, get their ID.

As Chandler was in the hospital, police tried to get him to tell them who shot him. But because he was paralyzed in the shooting, he could only communicate by blinking.

Police videotaped the in-hospital questioning and then charged Woods. But Woods’ attorney questions police tactics and the identification by Chandler of Woods.

“Mr. Chandler was hooked up to a ventilating machine,” Kory Jackson, Woods’ attorney, said. “Because of the way he is responding, he did not properly identify” his killer.

Curiously, while the cops recorded the identification, where they had Chandler observe a single photo and asked him to assert, by the blink method, whether that was his shooter, they neglected to show the image on the photo to the camera, so that it’s impossible to tell from the recording that the photo was that of Woods.

Even so, it appears that Chandler’s responses were a bit inconsistent.

Police, Jackson said, told Chandler to blink three times for yes, twice for no. “In lots of responses, he isn’t answering correctly. He either doesn’t blink or blinks too many times,” Jackson said.

Guys who were just shot in the head will do that.

But the blinks still could be used in court.

The circumstances of the identification lend themselves to a myriad of problems, questioning whether the blinds were arbitrary, or related to the questions at all.  There is no way to determine whether Chandler, who had been shot in the head and neck, had the capacity to think, to understand, to respond.  Perhaps so, but it’s also quite possible that he wasn’t in the right frame of mind to identify much of anybody after the shooting.  And yet, this was all the police had to work with, and work it they did.

Now for the obligatory lawprof commentary part of the report:

If prosecutors can establish that Chandler properly answered questions, that can be used at trial, said University of Cincinnati law professor Mark Godsey.

If there were “clear and unambiguous answers being given by the witness and everyone was on the same page about what they meant, then it can be considered valid,” Godsey said.

“To comply with the … law, it has to be a series of photos shown one at a time,” Godsey noted.

Well, no, not if the two men were knew each other beforehand, making the identification confirmatory.  But what would the story be if it didn’t include a lawprof stating something so deep and astute.

This strange scenario ultimately comes down to whether the judge is going water down every concept of reliability so that the prosecution isn’t left without an identification, and hence without a case.  Whether blinks can ever suffice as “clear and unambiguous” answers is a decent question.  It’s likely that under normal circumstances, one can properly test the blinks through a series of questions to remove the potential of randomness from the blinks and confirm that a “yes” or “no” means what it purports to mean.

But if the video shows what Jackson says, that Chandler was blinking all over the place, then it would seem impossible to be assured that his “yes” blink meant yes, even assuming the photo was that of Woods and that the judge will bite on the priest gambit.  Missing from the discussion seems to be any assessment of whether Chandler had the mental capacity following the bullet entering his head to think much about anything, which strikes me as a pretty decent question.

The strongest argument on behalf of the prosecution, and the one that will never be spoken aloud, is that someone will get away with murder if the court doesn’t allow them to introduce evidence of identification.  And as long as a judge isn’t going to be a slave to reliability or the law, this argument may well be a winner.  After all, nobody likes to see a murder without a conviction.

Update:  And the court says :

Hamilton County Common Pleas Judge Beth Myers said that Chandler’s “pronounced, exaggerated” eye movements were reliabe evidence.

“I find from the totality on the circumstances based on Ohio law and the facts as I found them that the identification is reliable and there is not a substantial likelihood of misidentification,” the judge ruled.

Imagine what the cross-examination of this testimony will produce.  Oh wait, the victim is dead so there won’t be any cross.  Well then, at least it’s reliable, because otherwise an innocent person could be convicted.