Justices hear debate over staged photos

Nevada’s Supreme Court justices heard arguments Tuesday in a case that could decide the future of re-enactment photos and computer-generated evidence in trials.

In 2004, Anthony Michael Alcaraz was charged with firing a gun at Metropolitan Police Department officer Dan Drummond when he was trying to pursue Alcaraz in Laughlin. A Clark County District Court jury found Alcaraz, now 22, guilty of attempted murder and assault with a deadly weapon. He is in Ely State Prison.

Defense attorneys appealed the case because prosecutors showed jurors photos of a Las Vegas police officer posing as Alcaraz, holding a gun aimed at Drummond.

“A picture is worth a thousand words. Unfortunately in this case, the picture never, in its 1,000-word entourage, never should have been brought before the jury,” Robert Miller, a deputy public defender, told the court while holding one of the photos.

Bill Gang, a spokesman for the Supreme Court, said Tuesday was the first time all seven members of the court have met in Las Vegas to hear a case. The entire court, as opposed to a panel of a few of the justices, heard the oral arguments because the questions surrounding the use of re-enactment photos interested it, Gang said.

The court’s decision on the Alcaraz case could have ramifications for the admissibility of computer-generated evidence in criminal cases, Gang said, though neither side addressed that issue directly.

The arguments before the court focused on the photo, and one of the key points for the lawyers who argued against its propriety was that none of the officers involved in the chase testified they saw Alcaraz hold or fire a gun.

“The problem with the photos and why they were so unbelievably prejudicial was that no one saw him (Alcaraz) with a gun,” Lori Teicher, an assistant federal public defender, told the Review-Journal.

One officer said he saw the defendant hold and aim an object at Drummond, and another officer testified he saw Alcaraz holding a metallic gray object.

Miller argued that to create a photo that portrays the “gray object” as a gun is unacceptable. “They made the leap. … There’s no way it could be found a harmless error,” he said.

While investigating the crime scene, investigators found a spent cartridge and a firearm about 30 feet from where Alcaraz was arrested, prosecutor Ravi Bawa said.

Teicher said, “But there were no fingerprints on the gun, no gunshot residue on his hands, and no one heard or saw it.”

Bawa said the purpose of the photo was to help “the jury to understand where everybody was.” He said Drummond could not see any gunfire because he was taking cover behind a square-shaped utility structure and because cactuses blocked his view, which was difficult to describe to jurors. “You don’t understand what that means until you see it. You have to see it,” Bawa said.

Bawa said the photo depicted the perspective of Las Vegas police officer Steve Leyba, who witnessed the chase and arrest. Leyba said he did not see a gun in Alcaraz’s hand, but Bawa said Leyba testified he saw Alcaraz stop, turn and point a gray metal object at Drummond.

Justice Michael Cherry asked Bawa whether he needed the photos to convict Alcaraz, and Bawa said he did not because of the weapon and a bullet casing at the scene, which matched a casing found at an attempted robbery across the Colorado River from Laughlin in Bullhead City, Ariz., just hours before the arrest.

The victim in that case, who was held up at a drive-through, described a suspect wearing clothes that matched what Alcaraz had on later when he was arrested, Bawa said. That earlier robbery, in which the suspect’s gun went off, is what prompted police in Laughlin to start chasing Alcaraz.

Teicher, who was involved in the case on behalf of Nevada Attorneys for Criminal Justice, an affiliate of the National Association of Criminal Defense Lawyers, said the Supreme Court also requested the organization weigh in on the subject of admissibility of computer-generated evidence, which with the advancement of technology could be used to re-create a crime for a jury.

“A jury sees something that looks like a video game, and it could be very believable to them, and it’s not even close to reality,” Teicher said.

Computer-generated simulations, which use software to analyze information and draw conclusions, should be required to meet the same standards applied to expert and scientific testimony, she said in the brief she filed.

“You’ve got to have parameters in check to ensure the defendant’s constitutional rights and that it just doesn’t become a movie that’s not based on fact or any type of standards,” she said.

District Attorney David Roger said that to his knowledge prosecutors in Clark County do not use computer-generated animations or simulations to re-create a crime.

He said that sometimes crime scene analysts are not called to a crime scene and that prosecutors go out and take photos that fairly and accurately depict the crime scene as it was at the time of the event.

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