Investigator Ronald Bates testified that when going through the (deleted) contents of that disc, he “recognized” the persons depicted in that photo as Nickel and Arthur. Subsequent to this purported recognition, Bates showed the photo to Arthur, who then confirmed Bates’s preconception.
Arthur only alleged that oral sex occurred after he was shown this photo; he said nothing about this at his initial interview, some ten days earlier.
Arthur claimed that this photograph had been taken in Nickel’s bedroom. But a comparison of it with police-taken photographs of Nickel’s actual bedroom shows beyond any doubt that this is not true.
Arthur’s description of how this photo was actually taken also lacked credibility:
(Q) “Okay. How did that picture get taken?
(A) He took the flash off and set it, when I — I was taking a nap.”
If Arthur had been taking a nap, how could he have known that Nickel “took the flash off and set it?” The boy depicted in the photo has his eyes wide open; his head is turned almost 90 degrees to the left, his eyes are focused directly at the camera, and his back is arched sharply, with the lower part of his body dangling over the foot of the bed. All of this is inconsistent with someone either taking a nap, or just having woken up from one. (That camera has a 10-second timer.) Moreover, indoor pictures taken without a flash tend not to come out at all, which was clearly not the case with this picture.
The proposed expert witness, Richard T. McEvoy, Jr., was to testify that the adult male in the pornographic photograph was not Nickel. The adult male in the photograph is not facing the camera, and therefore cannot be identified through an examination of the face. Mr. McEvoy was to testify that he took photographs of Nickel and did certain scientific measurements, eventually determining that the adult male in the photograph was not Nickel. But Judge Czajka refused to allow Mr. McEvoy to testify as an expert.
There is no doubt that Mr. McEvoy is qualified. He has been consulting with and training law enforcement personnel in the use of photography and digital imaging for 25 years. He started out doing precision photography for the military and then went into forensic photography. He was in charge of the Georgia Bureau of Investigations’ photographic laboratories — part of its homicide and arson investigation section — for over six years.
He has also worked on photo identification cases for other agencies, including the FBI. Some of his work involved the identification of persons depicted in bank surveillance photographs. Mr. McEvoy has in fact worked almost exclusively on the prosecution side. In his written report, which Judge Czajka also refused to allow into evidence, Mr. McEvoy made the following findings:
“Body Hair Pattern Characteristics of chest, arm, hand, and back are different between images … The adult male [in the sex photo] displays less hair on the forearms, wrist, and back of hands … [He] has a different direction of natural growth and curl on the back of the neck and head … [He] has a chest hair pattern that displays a higher chest-to-width pattern with less width to the pattern … There is more hair on the back and shoulders …
Ear Shape and Pattern characteristics of the adult[s] … are different … The adult ear in [the sex photo] is shaped like a reverse question mark with a distinct descending ‘squared-off’ lobe. Jeffrey Nickel displays an ear that is ‘C’ shaped without a prominent descending lower lobe … The ear labyrinth patterns of Jeffrey Nickel and the adult in the image are also dissimilar.
Nose shape, Nose Bridge Angle of Protrusion, Nostril and Nare Shapes … The nose shapes are different. The adult in [the sex photo] has a slight downward curvature (from bridge to tip). Jeffrey Nickel has a straighter line … Jeffrey Nickel has a less prominent nose bridge than the adult in [the sex photo] … The nares are different shapes. Jeffrey Nickel has elliptical, ‘coma-shaped’ nares. The adult in [the sex photo] has a nearly ‘square-shaped’ nare. The nostril of Jeffrey Nickel is more ‘blended’ to the … nose than the nostril shown on the adult in [the sex photo].”
In summary, Mr. McEvoy found that the sex photo and the pictures he took of Nickel depict two different people. Judge Czajka was either completely unaware of, or for some reason simply chose to ignore the fact that courts throughout the U.S. routinely admit this sort of expert testimony. (Bank robberies are the most common type of case for which forensic photography experts are called in.)
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