Barb’s Robbery: If the eyebrows don’t fit, you must acquit

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(THUNDER BAY, ON) – A male that was the suspect in a robbery that occurred at Barb’s Laundromat on May Street on January 29th, 2018 of this year appeared in a Thunder Bay courtroom today to receive the judgement from his trial that commenced earlier this year. His Honour, Justice Dino DiGiuseppe was presiding over the matter along with Crown Attorney Franceline Auclair and criminal defence lawyer George Joseph.

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The male was facing charges of Robbery with an imitation weapon, and a breach of probation. We will refer to the accused as “John Doe” from here on out. The Judge begins to read his decision on the matter.

DECISION

A police officer received a broadcast email, along with other officers that showed a photo of the suspect during the robbery which was asking all officers if they recognized the individual. One officer responded to that email and claimed that the suspect looked like John Doe. The officer that was investigating then believed that he too agrees with the identification made, because he had some interactions with this individual years ago. The previous interactions were in August 2015 and in December 2015. John Doe was not the subject of an investigation at that time, and the officer notes that there was nothing remarkable or unusual during these interactions.

A male suspect was seen in the video wearing a grey and black hoodie, grey sweatpants and a ball cap. This suspect was in the store for roughly 7 minutes. The investigating officer gave a very generic description of John Doe during his previous interactions with him as:

  • Slim to medium build
  • Dark hair
  • 5-foot 10 to 5 foot 11 inches
  • Raised eyebrows (only distinctive feature)

During a review of the surveillance video, the officer had captured still shots of the video in which be determined the suspect also had raised eyebrows, and was about the same height and build. The officer stated that he was very confident that John Doe was the suspect in the robbery.

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The store clerk that had been robbed testified that the video surveillance accurately showed the events of what happened during the robbery. The male had entered the store and lurked around the movie section before approaching the till. That’s when the suspect said, “I need you to give me all the money in the till”. At this point, the clerk told the man to leave and dialled 911. The suspect responded by putting his hand in his hoodie pocket and said: “I have a gun”. It was obvious to the store clerk that the suspect’s finger was pointing through his sweater in an attempt to look like a gun.

During the 911 call, the store clerk tells the 911 operator that the suspect was a “F***ing idiot” and described the suspect’s feeble attempt to suggest he had a weapon. That’s when John Doe had tried to push his way behind the counter, but the store clerk easily swatted Doe away. John Doe then left the store while the clerk was still on the phone with police.

Doe was described by the store clerk as about 5-foot 10 to 5-foot 11-inches tall, Caucasian, skinny and like an “average guy”, there was nothing distinctive. When the clerk was asked about Doe’s eyebrows, he stated that they did not seem large or thick, but a bit longer and thinner. He further said they were close to his eyes. During the encounter, the clerk was only a few feet away from the individual and the store was well-lit. The clerk stated that the encounter made him uneasy for a while, but this easily passed, he did not feel threatened or imposed by the suspect.

The Judge says that there can be no doubt that on January 29th, 2018 a male person had entered the Barb’s Laundromat and wandered through the establishment, ultimately demanding money from the clerk and motioned with his hand in his pocket, attempting to pass it off like a gun. He also tried to force his way behind the till before leaving but was easily repelled. This was all captured on video. Justice DiGiuseppe accepts that evidence as that being factual. A robbery had been committed.

John Doe is presumed innocent, the Crown bears the burden of establishing guilt beyond a reasonable doubt. The sole issue is if John Doe is the male that robbed Barb’s Laundromat. The store clerk was unable to identify John Doe as the person who had robbed him that day. The investigating officer identified the suspect as John Doe. “The dangerous inherent in eyewitness identification and the risk of a miscarriage of justice has been the subject of much judicial comment. The court must be cautious when dealing with such evidence, as it is not just an issue of credibility but involves the inherent frailties of identification evidence simply because of the unreliability of human observation and recollection. The danger associated with such evidence is that it can be deceptively credible, mainly because the witness is honest and sincere and difficult to discredit in cross-examination for the same reason. The Crown’s case relies on recognition evidence provided by [the officer].” said Justice DiGiuseppe.

Justice DiGiuseppe continues “Recognition evidence is a subset of eyewitness identification in which identification is based on prior acquaintance. The recognition witness may, or in this case may not have been at the scene of the crime. For threshold admissibility for this type of identification evidence, a court must be satisfied that the witness has a prior acquaintance with the individual and thus in a better position in a trial of fact to identify the perpetrator.”

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The description the officer gave of John Doe and of the individual in the surveillance video was said to be generic and unremarkable. His only unique identifying feature the officer noted is his raised eyebrows. It should be noted that the quality of the video is adequate, it is not high-definition video. The still shots extracted from the video are of low-quality, diluted and distorted.

The clerk did not describe the suspect’s eyebrows as raised, much to the contrary he said the eyebrows were close to his eyes. This is a significant difference in that the only unique identifying feature described by the officer was the suspects clearly raised eyebrows. This feature played a critical part in the officer’s identification of the individual in the video as John Doe. Justice DiGiuseppe said “I cannot ignore this difference, it is neither minor nor in respect to a collateral or peripheral matter. Rather, it is related to the core issue at trial, identity. In my view, it is a critical point and has an impact on the reliability of the eyewitness evidence and what weight I place on it.”

Justice DiGiuseppe carries on “I am mindful that [the officer] testified that he was very confident that the individual in the surveillance video was John Doe. There was nothing to suggest that [the officer] was not honest and sincere when he gave this evidence, I find that he was. However, I do not mistake certainty or confidence for accuracy. In this case the only evidence that John Doe was the perpetrator was [the officers] recognition evidence. In my view, that evidence has been undermined by the inconsistency between the evidence of [the store clerk] and [the officer] in respect to the only unique identifying feature that points to John Doe as the perpetrator.”

“It would be unsafe to grant a criminal conviction on this recognition evidence alone for the reliability of that evidence has been compromised notwithstanding [the officers] confidence in that identification. For these reasons, I am not satisfied beyond a reasonable doubt that the individual in the surveillance video is John Doe. There is no other evidence that implicates Mr. Doe. The Crown has not met it evidentiary burden, there will be a finding of not guilty on both counts.” Justice DiGiuseppe said in his final comments during his decision on the matter.

John Doe is a free man and leaves the courtroom along with several family members who were in attendance.

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2 Replies to “Barb’s Robbery: If the eyebrows don’t fit, you must acquit”

  1. I hate to take the side of the alleged criminal here, but the crown is an absolute moron for pursuing this case all the way to trial. How desperate were they for a conviction that they ignored the eyewitness and tried to pin the whole case on the testimony of one officer who watched an admittedly poor video?

    How much did it cost the defendant to save himself from an apparent malicious prosecution?

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