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Missouri Lawyers Awards 2021: Rosemary Percival, Missouri State Public Defender System

Rosemary Percival

Rosemary Percival

Influential Appellate Advocates

To secure a major win both for a client and broadly for criminal defendants across the state is a rarity, but in 2020, Rosemary Percival did so in the case of Kane Carpenter.

Carpenter was convicted of first-degree robbery and sentenced to 10 years in prison for robbing a man in October 2016 on East Capitol Avenue in Jefferson City.

Minutes after the robbery occurred and the victim reported it, police found Carpenter near the scene and detained him for a “show up” — for the victim to view a potential perpetrator. The victim identified Carpenter and told police he was 100 percent sure Carpenter robbed him.

At trial, Carpenter’s attorneys sought to admit testimony from an expert on the reliability of eyewitness identification, but the judge refused. Following his conviction, Carpenter appealed to the Missouri Supreme Court.

His argument: that his expert’s testimony was critical to his defense of mistaken identity. Mounting scientific evidence on eyewitness testimony should lead the court to overrule a 32-year-old precedent affirming the exclusion of expert testimony regarding certain factors affecting the reliability of eyewitness identification, Carpenter maintained.

In a 5-2 ruling in September, the court agreed, holding that expert testimony on eyewitness identification should be treated like any other expert testimony following the state’s enactment of the so-called Daubert standard in 2017. The ruling marked a major shift for defendants, Percival said.

“Before then, defendants would just routinely be shut down when they asked to present testimony from experts on eyewitness identification,” she said. “So they weren’t really able to challenge some of the perceptions that jurors automatically have about the accuracy of eyewitness identification.”

The ruling gives defense attorneys a tool to attack eyewitness identification evidence — a tool that litigants in other areas of the law already could use to challenge evidence.

“As the opinion acknowledged, we couldn’t do it through other means,” she said. “We couldn’t do it through cross-examination. The instructions only took us so far, but not far enough. We needed the expert testimony.”

Percival is now a district defender for one of the Missouri State Public Defender System’s two appellate districts in Kansas City. She said she heard from several public defenders after the court issued the opinion.

“One woman told me that she actually started to cry when she saw the opinion,” she said. “It was an overwhelmingly positive response. It was a long time coming.”

The ruling is especially important because mistaken eyewitness identification is the leading cause of wrongful convictions, she said.
Being able to obtain such a ruling in the Carpenter case “feels great” and keeps her going in public defense work, Percival said.

“A win like this doesn’t come very often at all, so it’s something I really cherish,” she said. “It helps you get over the rough spots when you can think back on an opinion like this.”

While the ruling would have enabled Carpenter to obtain a new trial, Percival said he opted to enter a guilty plea for second-degree robbery.

“He actually decided it was in his best interest to take a guilty plea rather than go back to the jail and wait for a new trial,” Percival said. “. . . That will help him get an earlier parole date.”

In December, he was sentenced to 10 years in prison.


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