Philip Moseley

Court-appointed defense attorney for Ronald Cotton.

Q: Did you think the Cotton case was winnable?

MOSELEY: In the sense that any case that I take I always approach that it is winnable, so yes, I thought this case was winnable. At the same time, I knew that it was going to be very difficult, because there are two very real victims here. When there are real victims, there often is a sentiment towards avenging the crime. There had been eyewitness identification ... I believe eyewitness identification is very powerful. And then there was a racial component in this case in that the defendant was African American and the victims were Caucasians, so that made it difficult.

Q: What was wrong with Cotton's alibi?

MOSELEY: He told the police he had been with friends, identified those friends to the police. The police checked out those friends and determined that he had not been there at those points in times that were applicable. Then he told me, at my initial interview, that he had been with a girlfriend at a local motel, left there very late, too late to have committed these offenses. And his family told me a third alibi story--that he had been on the sofa asleep at the time.

Q: So how did that work against you?

MOSELEY: The alibi defense is not credible if it was inconsistent. So if Ronald was telling three different stories, then no story is believable, so the victim's story is believable that he was there. So if Ronald was giving one story about where he was and his family was giving another story of where he was, that had to be reconciled before trial if alibi was going to be offered as a defense.

Q: In the end, how do you think the jury responded to what his family had to say about his alibi?

MOSELEY: I believe the jury felt his family was trying to protect him in that their stories were less believable than the victims' And Jennifer's (the first victim) confidence in her conclusion that Ronald Cotton was her assailant was powerful to the jury.

Q: What kind of witness was Jennifer Thompson?

MOSELEY: Jennifer is a very bright and very self-assured person. She is one of those people that has confidence and emotes a sense of confidence about her. People that look at her or listen to what she's saying can tell that she believes what she's saying is true and, therefore, they are inclined to believe it.

She was a very strong witness for the State, and she was, at all times, entirely confident in the trials that Ronald Cotton was her assailant and that she had an opportunity, as dark as it was, to identify him.

Q: Why was it so important to link the two rape cases, committed that night, together?

MOSELEY: Because in the first case there was no physical evidence in that there had not been hair, tissue, semen, fluids. The whole first case was eye-witness identification--Jennifer Thompson's. The second case there was identification, but of somebody else, so if the same person did both crimes and Ronald Cotton did not do number two, then he also did not do number one, so it was very important to link the cases together.

But ... we got to trial and as a part of the defense we attempt to introduce evidence that there was a second rape that night, and that victim selected someone other than Ronald Cotton as the assailant, and, therefore, since Ronald Cotton did not do number two, he also did not do number one. But we attempted to do this just as the State might introduce evidence that there had been a series of break-ins and enterings, there was the same MO, common tools, common means of entry, common words and phrases, plus the very similar physical build of the two assailants.

The trial judge disagreed with us and would not let in any of the testimony of victim number two or any of that evidence at all. And because of that, we did not get some of the physical evidence at the scene of victim number two. So we went to trial, then, without one of our key defenses. The jury never knows that there was a second rape that night, and never knows that another woman at a lineup picked number four, the same person that Jennifer Thompson also had trouble with.

Q: What was your concern about the physical lineup--the fact that Jennifer had been shown this photo of Cotton?

MOSELEY: Jennifer Thompson had seen Ronald Cotton, in the photo lineup, so when she went to the physical lineup and is asked to pick someone she recognizes, well she did recognize Ronald Cotton, but she recognized him from the photo lineup because he was the only common denominator. He was the only person that was present both in the photo lineup and the physical lineup. Thus, her mind could have made an unconscious transfer from that photo lineup to the rape scene and then when she selects him at the physical lineup, that's why she's picking him.

Q: What's a lineup about?

MOSELEY: The purpose of a lineup is to be as fair and as objective as possible to assist the State in determining whether or not their victim can make a true and credible identification--for the victim to select the person that committed the offense.

That's what it is in the textbooks. But what, in fact, it is, the victim often thinks that the police have caught somebody that they think did it, and now it's a test time, like a multiple guess, to pick the one that we think did it. So if it's a multiple guess, then they're compelled to pick someone rather than to say, "No, I can't identify anyone," they're compelled, they think, to do what victim number two did, "It's number four, did I get it right?" We don't know if that happens or not, because by the time they get to trial, everything has been sanitized and it was fair and objective and they've picked this person. But it's really not that way.

Q: You have this compelling eyewitness testimony from Jennifer Thompson. What are you going to do about it? What happens?

MOSELEY:

Because of Jennifer's compelling eyewitness identification, I had read the works of Elizabeth Loftus and Dr. Loftus had spoken on the problems of eyewitness identification and human memory; and that led me to find Dr. Reed Hunt at the University of North Carolina, Greensboro whose area of expertise was on human memory.

Presented the facts to Dr. Hunt, and he was willing to testify in this case, which is excellent because he doesn't like to do that, I think, on a regular basis. I wanted Dr. Hunt to share with the jury the psychological opinion that there were problems in eyewitness identification ... that a real label and pigeon hole could be put on this issue of unconscious transfer, whatever that meant, so that a jury would understand that does happen in human memory.

Q: And what happened?

MOSELEY: The court would not allow Hunt to testify. The court believed that his testimony was not scientifically proven, that it was not scientifically accepted, that it was not an area in which opinion evidence could be offered, and that it was unduly prejudicial against the State.

The court said that eyewitness identification and whether or not somebody can see or is it too light or too dark or too close ... these are things that are common knowledge ... and that no eyewitness expert is needed to discuss these things to the jury.

Q: Explain the issue of unconscious transference.

MOSELEY: When the court ruled that Dr. Hunt could not testify, that meant the jury never really learned what the psychologist meant that Jennifer Thompson may well have unconsciously transferred her choice of Ronald Cotton at the physical lineup from having seen his face, and only his face at the photo lineup. So the jury never really understood that the scientists know that human beings can make eyewitness identification, not falsely in the sense that it's a lie, but incorrectly because of unconscious transfer. They saw an event, number one. They have another event, number two, and they use number two, the photo lineup, instead of the rape scene, itself, to make their selection in the physical lineup.

Q: What was the wall you were up against in this case? All the other evidence collected...

MOSELEY: The other little piece of evidence in that case was that at the time of the alibi defense, a woman who had been friends with Ron Cotton testified that she had seen him riding his bicycle out at that time that our alibi had him at home. So the accumulation of Jennifer's strong eyewitness identification, the shoe fragments, the flashlight, the difficulty of his alibi with the police, several stories, and the person that saw him out on his bike that night when he was supposed to be at home on the sofa, made for a difficult case.

Q: What happened with the Supreme Court and how you won a new trial.

MOSELEY: After the sentence at the first trial, then I was selected to do the appeal. At that time, the appeal went directly to the North Carolina Supreme Court where we brought forth the issues of the court preventing us from getting into evidence Dr. Reed Hunt as the expert witness and the issue of the court preventing us from showing this other rape at that same time.

The North Carolina Supreme Court reversed the trial court, specifically reversed on the issue saying that we should have been allowed to get into evidence this second crime that night and that second victim had selected someone else other than Cotton, which was a great victory. It gave us a new trial.

Q: The second trial: What happened with that second victim' s identification?

MOSELEY: We prepare for the second trial, then the State decides to indict Cotton on rape number two, because that victim can now identify him after all these years. So for the second trial, he's charged with the burglary and rape and crime against nature against Jennifer and also against victim number two.

Q: In the meantime, Ronald Cotton hears in prison about Bobby Poole, the real rapist of Jennifer Thompson. Talk about your efforts to bring that to trial.

MOSELEY: By now--the second trial--we know about Bobby Poole. We file pre-trial discovery, requesting all the records of rape offenses of Bobby Poole, vigorously opposed by the State. Judge McClellan, who later turns out to be the trial judge, heard those motions, just a coincidence. Judge McClellan says, "Give them everything." They gave us a stack of papers on Bobby Poole, and as you go through those papers on Bobby Poole, it just jumps out--the same modus operandi that was used in Jennifer Thompson's and victim two' s rape. The same neighborhood, the same age of the victim, the same destruction of the back light, the same means of entry, similar phrases, the same body size ... their description.

The composite drawing closely resembled Poole, looks a little bit like number four in the line up, Watkins, that they were troubled with, but does not look like Cotton.

So we are real pleased with this. Also, as a result of obtaining the discovery, we get a document that is the lab report of Poole's blood type. At victim number two's rape scene, there was a spot of blood on the rear storm door.

This spot of blood was a different blood type than Ronald Cotton's and we knew that before, but now we knew that it was Poole's blood type. So we come to trial. We issue a writ of habeas corpus to bring Poole in from central prison. We bring in two other jail-house informants, as it were, who were to testify that Poole had made statements to them that he had done the stuff that Cotton was charged with, and the judge does not allow any of this testimony in. The jury never sees Poole, never hears these two jail-house informants, never learns that spot of blood is the same blood type as Bobby Poole's blood.

Q: Why?

MOSELEY: The court incorrectly ruled that this testimony did not meet the test of North Carolina that evidence that someone else was the perpetrator of the crime had to be direct evidence. Well, hell, I don't think you can get more direct than that. I had been practicing law about 12 years, at that time, and there's only one other case that had troubled sorely. I went back to see the judge ... we've know each other for years and he is a fine man. Went to see Judge McClellan to tell him how deeply troubled I was over this ruling on a personal basis, not because we would let the Appellate Court sort that out, but on a personal basis, how this man, he may well be innocent, was not going to get a chance for a jury to review this evidence and make a decision [on] it. And Judge McClellan explained to me how ... that it was his theory that the system was important and it mattered really if this individual was innocent or not so long as he had a fair trial, and if the system worked, then everything was as it should be, and the system included "rules of evidence," obviously, and evidence that may point to his innocence, if the evidence does not meet the test to be admissible in court, then it can't come in. Just like evidence that someone is guilty, if it doesn't meet the test, can't come in. So, he explained that was his theory.

Q: So what was the effect of the jury not hearing this Bobby Poole evidence?

MOSELEY: I thought that the jury not hearing this defense was catastrophic! I was very troubled and concerned about Ronald Cotton, but it was a real emotional pendulum shift. Because in preparation of the trial we were going through this stack of papers and it's two or three o'clock in the morning and you find in Poole's records the SBI lab report that shows Bobby Poole's blood type, and here over here in this stack of records is the drop of blood from victim number two's rape scene on that storm door, and you get the two together and you go, "My God, this is physical evidence that Poole raped this woman!" So when that didn't get in, it was not a good day.

There was something else that happened that's rather interesting. In victim number two's testimony, she said that her assailant had made an unusual grin at her, is what she called it. So, Poole's testifying up here with the jury in the back room, telling everybody that he didn't do it, and during the course of his testimony he goes like that--old stress grimace. Well, I about jumped out of my seat and I saw that number two saw it, too, and I saw her react emotionally, and so I said to the Judge--I wouldn't have done this if the jury was in the room, hope not anyway cause I'd probably spent the night in jail--but I said "Judge, did you see that?" It doesn't get in the record, the jury doesn't see that. Nobody knows.

So the people on the defense side of the courtroom are entirely convinced that Poole did this and to not get that in was really a dark day I think for Ronald Cotton

Furthermore, now Jennifer is in the courtroom, 15 feet away from Bobby Poole. Victim number two is in there 15 feet away looking at him. They testify Bobby Poole didn't rape me, Ronald Cotton did. So as a result of that, the judge says that the evidence that Bobby Poole committed these crimes does not meet the test in North Carolina of direct evidence and therefore we may not present his testimony. We may not present any evidence that Bobby Poole committed these crimes. We cannot tell the jury that that blood spot on victim number two's storm door is the same blood type as Bobby Poole's. We can't tell the jury that Bobby Poole told two other people that, "I did the things that Ronald Cotton's charged with."

Q: And if you look at these two trials together for a second and you look at the scientific evidence, I mean not semen, not blood, nothing--versus Jennifer Thompson. Tell me about how the jury was weighing those two things.

MOSELEY: In Jennifer's case there was no physical evidence, other than the foam fragments from the shoe. But there was no semen, there was no hair, there was no scan, there were no other fibers. Her testimony was that her assailant, she believed, had not ejaculated so there was not semen there. So there was no physical evidence in Jennifer's case, but her strong testimony was entirely credible to the jury. In the second trial we presented again the alibi defense. For reasons I'm not sure of, Ron's family was unwilling to go through the transcripts for the second trial. One of his sisters said to me, "I'm telling the truth. I know what the truth is. I know what I did then. I know what I did now. I know what I did, no lawyer needs to tell me what to say. I'm going to tell the truth." I'm entire[ly] satisfied that she thought she was telling the truth, but when she got to the witness stand to testify, her times were different, the person that she was with, was different. The basis was the same, but there were many details, and they did not fare well on cross examination. Their cross examination by the district attorney was expertly done, and they did not hold up well under cross-exam. So again at the second trial now, we had the further alibi testimony of Ronald, himself. So, whereas, a decision had been made by the defense team that he would not testify at trial one. Having had an unhappy result, Plan B, he testified at trial two.

Q: Tell me what happened at the end of the second trial--Ronald Cotton singing ...

MOSELEY: Wel,l the jury deliberated and came back with a verdict of guilty on all counts. The judge was preparing for sentencing and sentenced Ronald to the same sentence that he got in one, even though he'd been convicted of twice as many things in two, and "Anything you'd like to say Mr. Cotton?" says the court. Ronald said, "I'd like to sing this song." Well, it became very quiet in the courtroom because none of us were accustomed to someone singing a song in the courtroom. Ronald sang a song that he had composed himself that truth would prevail, that this was something that he would have to bear, that truth would prevail.

It was a lovely song. I didn't hear any of it. I was so concerned that the bailiff may come snatch him out by the neck or that the judge would be offended and gavel us down. I thought there would be a ruckus because when you're sending away for life, there are rape victims here and it was a very emotional time--I would give anything to have heard that song, though I was sitting right beside him.

Q: Did you start out thinking Ron Cotton was innocent?

MOSELEY: Lawyers are sometimes asked that question--and what I have learned to do is to not deal with that question on a subjective basis, because that ruins the whole system if the lawyer is going to be the judge and jury, then why do we need the judge and jury, and there is a presumption of innocence, and I very much believe in that.

So, yes, all my clients are presumed innocent, including Ronald Cotton. It wasn't until that second discovery that I had Bobby Poole's blood type from the SBI reports and I had that spot of blood and I put those two together that I made a subjective personal decision that Ronald Cotton could not and did not [do] the things and that Bobby Poole had.

And that's the worst possible thing because nothing is worse than defending somebody that you know in your gut is innocent and watch them go to jail. Nothings worse for a lawyer than that.

Q: Trial one. How difficult a decision was it for you not to have Ronald testify and why?

MOSELEY: In preparation for trial, we struggled over the decision as to whether Ronald would testify. If he testifies, the jury learns of his prior criminal record. If he testifies, the jury learns of his prior inconsistent statements about his whereabouts. A decision was made that he would not testify at trial one. We were comfortable with that decision and I believe that Ronald was. But it was then, and always is, a struggle.

Q: Describe how you came to hear of the DNA evidence...

MOSELEY: I've known the prosecutors for years, and we have a cup of coffee over that. Tom Lambeth was kind enough to keep me informed as to his and Rich Rosen's activities. Wonder what the DNA will show? I then learned that the DNA showed that from the semen stains at the rape scene of victim number two, there was DNA consistent with the victim. There was DNA that was consistent with victims boyfriend. There was DNA there that was not consistent with victim or friend or Cotton, an outside source. I then learned that the State of North Carolina had begun a DNA databank. This DNA sample then was run against that databank. It struck a positive. That positive turned out to be Bobby Poole, the man that we had brought into the courtroom to show to the jury.

Q: What did you think?

MOSELEY: I thought, "At long last!" Well, just because Ronald has been scientifically proven to be innocent doesn't mean that he gets to go free, and I want to commend the local district attorney for the way they handled it once the DNA test shows that they had a match with Poole. There are cases in America today where DNA has shown that it's inconsistent which would exonerate a defendant, but the district attorneys are saying, "Well he's had his fair trial, he's had his appeals, he's in prison, it's over, that he can't re-open." There are DAs that take that position, so I think we have to commend the local DAs for the position.

Q: Your gut reaction when you hear there was going to be a DNA test?

MOSELEY: When I heard there was going to be a DNA test was that the DNA was only victim number two. So there was a real conflict in my mind as to how the State would treat that if it came back for Cotton as to victim number two. I tried Jennifer's case before two different juries. She, as far as I knew, was still positive that it was Ronald Cotton. There was no DNA excluding Cotton or anybody else because there was no materials to do the DNA test on in Jennifer's case, so Ronald wasn't out of the woods.

Q: And then when you learned of the results, what was your reaction?

MOSELEY: I was ecstatic because I thought that surely he would get another trial, another opportunity and I was concerned what the State's position would be on Jennifer's case because Jennifer was still, as far as I knew, positive that Ronald Cotton had done this crime with her, and there was no DNA material to test in Jennifer's case, so her case could go forward, so Ronald wasn't a free man yet, but I was ecstatic that he would surely get a new trial.

Q: Were you surprised at how the DA handled it?

MOSELEY: I was very pleased at how our district attorney's office handled it. I know that there are other jurisdictions where their DNA tests excluding and those district attorneys have said, "Well if you got a fair trial, it's been to appeal, it's been affirmed, it's over, you can't get out."

But our DA did not take that position, and conducted an investigation ... I later learned that our DA sent these investigators to prison to interview Poole and at that time Poole told them that yes, he had done both crimes, that he wondered when they were going to get back to him.

Q: Where were you the day Ronald was released in court and it was announced?

MOSELEY: I had received a courtesy call from his appellate lawyers and was very pleased that they had called me and I went down to the courtroom and sat on the right behind the families that were ...it was an emotional time for me. I got a little misty eyed to see Ronald go free. It was a great day. It's still a bittersweet day.

I'm ... troubled--and others that say that I did a good job, that I wrote new law in North Carolina on this "rules of evidence," that I protected the Record on Appeal, brought Poole into the courtroom. But my client went to prison for ten years, and I can't take any joy in that. I'll always be troubled by that.

Q: Your thoughts on the DNA in this case?

MOSELEY: Science in the courtroom is an ever-evolving question. What DNA testing does is provide a piece of physical evidence that's not subject to fear, prejudice, emotion. It can be subject to mistake. It can be subject to laboratory error. It can be subject to contamination, so it's not a lie detector, as it were, but it is a very strong piece of physical evidence, not unlike when we first discovered fingerprints. It's as powerful as that.

Q: And it's impact?

MOSELEY: The impact of DNA will allow people who are suspected of criminal offenses to not lose everything because they were charged wrongly, tried under mistaken eyewitness identification, convicted by a fair jury and sent to prison when they really weren't there and it wasn't them, and here's the physical proof that it really wasn't them.

So that's a piece of strong evidence and that's a great thing; and I would imagine that as scientists continue to work on DNA testing and develop further markers, then probably all inaccuracies are going to be improved, so it will get better.

I don't think that Ronald Cotton's case is a one-in-a-million. I think that there are more than Ronald Cotton in prison that DNA testing may exonerate. It's a difficult thing about who's going to pay for the cost of that. Is the state going to DNA test everybody convicted in the last 20 years because everybody who's in prison for life will use everything they can to try to get out, so of course they'll want that test and hope upon hope ... even if they're really guilty. But my guess is that there are other good people in prison for life that DNA testing would exonerate. I believe that society has an obligation to look at those cases, and if there is objective evidence lead to a reasonable inquiry, then there should be testing, my goodness.

Q: And what about the judge who says, "They've had a fair trial, they've had two fair trials. How many fair trials are you going to give them?"

MOSELEY: How many fair trials should a defendant get? Well, he should have all the fair trials possible. I don't know that there's a limit. Our courts have ruled that defendants are not entitled to an error-free trial. They're only entitled to a trial that's free of prejudicial error. These are hard questions that our legal system is still sorting out.

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