- Associated Press - Tuesday, January 14, 2014

JACKSON, Miss. (AP) - An attorney for a Mississippi death row inmate says the man was the victim of mistaken eyewitness identification and a trial judge erred in not letting him challenge the testimony, his attorney argued Tuesday to the Mississippi Supreme Court.

Caleb Corrothers, now 32, was convicted in 2011 of two counts of capital murder and sentenced to death in Lafayette County.

Corrothers‘ attorney, Alison Steiner, with the Office of State Public Defender, told the Supreme Court that a cognitive psychologist would have testified that eyewitness identification can be unreliable. She said such testimony has been allowed in other states.

However, prosecutors argued cognitive psychology is not a legitimate science.

Special Assistant Attorney General Melanie Thomas said the trial judge determined, based on the facts of the case, that the psychologist’s testimony was unreliable and irrelevant. Thomas said the credibility of a witness is a fact to be determined by a jury.

Prosecutors said Taylor Clark and his father, Frank Clark, were killed on July 11, 2009, in their Oxford-area home over drugs and money. Tonya Clark, Taylor’s mother and Frank’s wife, was wounded. Another son, Josh Clark, was present but was not injured.

Court records show Josh Clark picked Corrothers out of a photo lineup. Josh Clark and Tonya Clark identified Corrothers from the stand during trial, but records also show Tonya Clark was unable to pick Corrothers out of a pre-trial photo lineup.

Steiner said the testimony of a qualified cognitive psychologist could have helped the jury in assessing those identifications. She said the testimony was important to Corrothers‘ right to put on a proper defense.

Steiner said that in cases like this, in which the witnesses “believed they were telling the truth, cross examination is not enough.” She said the jury needs to know if a lineup is suggestive or if other factors would affect eyewitness testimony.

Thomas said the judge also decided that a risk of confusing the jury was possible by allowing the psychologist to testify after the prosecution had rested its case.

“We’re talking about testimony that is not based on the facts of the evidence. An expert cannot opine on evidence that is not in evidence,” Thomas said.

Thomas said Corrothers was trying to challenge something - the eyewitness identification - that the trial judge had already decided was admissible.

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