At about 2:30 a.m. on January 14, 1986, a 25-year-old white woman awoke in her Somers Point, New Jersey home when a man put his hands around her neck and demanded money. The attacker rejected her offer of $8 and raped her vaginally, orally, and anally.
The victim initially told police that she thought the rapist was a black man, and that he might have had facial hair, but she wasn’t sure because all the lights were out and she was not wearing her contact lenses.
Hours later she told police that based on his deep voice and speech, her attacker was a black man. She said he had a round face with light facial hair. Police decided she would be hypnotized in an effort to “enhance her memory” of what her attacker looked like.
Sixteen days later, during a pre-hypnosis interview, the hypnotist questioned her about how much light was in the room. The victim said, “There’s not much, some, a little bit of light comes through the window but there was no light in my house, no lights were on, it’s pretty dark.” Lights from a parking lot a block away provided some light, she said, though “not very much; it’s enough to see, like shadows and stuff…Like outlines of things…nothing in detail.”
She recalled her attacker was a black male with a light beard, a round face, no big nose or big eyes. When the hypnotist questioned the detective about the layout of the apartment, explaining that the lack of light was an issue, the detective told the hypnotist that in fact there was sufficient light.
After the hypnosis session, the victim helped prepare a composite sketch. Three weeks after the assault, the victim picked out a three-year-old photo of 36-year-old Clarence Moore. In the photo, Moore had a little facial hair, but no mustache.
At the time of the crime, Moore, who is black, had a thick “fu-man-chu” type mustache. His face was oval and he had a long nose. Additionally, his voice was distinctly high-pitched. At the time, Moore and his wife lived with their three children in neighboring Cape May County, about an hour from the home of the victim. Moore owned his own successful masonry company and, with his wife, owned their home as well as an apartment building. Moore was also active in his church and was a coach his community.
Moore went on trial in Atlantic County Superior Court in March 1987. The victim, who had told police that she only had a fleeting look at her attacker in a nearly dark room because she followed his orders to keep her eyes closed, said she recalled Moore’s nose as an outstanding feature of his face. She testified, “I will never forget his face.”
Various articles of clothing and blankets from the victim’s bed had been submitted for DNA testing as well as hair, saliva and blood samples from Moore and the victim. The laboratory issued a report that said, “An insufficient amount of high molecular weight human DNA was isolated from the vaginal swabs, fitted sheet, beige blanket, yellow blanket and the light blue comforter, therefore no comparisons could be made with blood from Clarence Moore.”
Moore’s wife testified that her husband was home on the night of the crime. She said she had a very painful breast infection at the time and Moore was caring for the two older children, the baby, and her at same time.
In closing argument, the prosecutor suggested to the jury that the fact that Moore’s wife was Caucasian proved he had a predilection for Caucasian women. The prosecutor further stated that Moore was sexually frustrated because his wife had the breast infection, suggesting she was not able to satisfy him sexually. The judge ordered the remarks stricken. On March 5, 1987, Moore was convicted of rape and robbery and sentenced to life in prison.
In 1996, Centurion Ministries, a New Jersey-based non-profit that investigates wrongful convictions, took on the case. They sought more advanced DNA testing, but authorities said the physical evidence could no longer be located.
In 1997, Moore filed a federal petition for a writ of habeas corpus, alleging his trial had been constitutionally unfair because of the racial remarks made by the prosecutor, as well as the hypnosis session of the victim who hadn’t actually seen the face of the attacker. The petition was denied in U.S. District Court, but in 2001, the U.S. Court of Appeals for the Third Circuit reversed the denial and vacated Moore’s conviction, holding that Moore’s trial was “polluted by racism and prosecutorial misconduct.” Centurion Ministries posted Moore’s bond and he was released from prison on July 25, 2001.
In June 2002, Atlantic County Superior Court Judge Michael Connor ruled that the indictment of Moore was invalid because a prosecutor misled the grand jury that heard evidence against Moore. The judge found that the prosecutor failed to tell the grand jury that the victim didn’t identify Moore until after she was hypnotized.
The prosecution appealed and the conviction was reinstated by the New Jersey Appellate Division. The defense appealed to the New Jersey Supreme Court and in 2005, the case was sent back to Superior Court for a hearing on the issue of hypnosis and whether state guidelines were sufficient for allowing hypnosis evidence in criminal cases.
At the hearing, three experts testified, one for the state and two for the prosecution. The state’s expert acknowledged problems with hypnosis, but concluded that the problems, such as confabulation and memory hardening, were similar to problems with memory in general. One defense expert testified that hypnotically induced testimony was not reliable and that hypnosis actually has an adverse effect on accuracy. The expert said that guidelines that had been in place did not reduce effects such as false confidence, confabulation, uncured errors and recall problems. The other defense expert testified that there should be a complete ban on hypnotically enhanced testimony because such testimony would likely produce invalid memories.
In August 2006 the trial court ruled that the guidelines were insufficient and that hypnotically enhanced testimony should be inadmissible. Two weeks later, the New Jersey Supreme Court agreed and issued an order barring hypnotically-refreshed testimony in criminal cases. On August 10, 2006, the Atlantic County prosecutor dismissed the charge against Moore.
– Maurice Possley