In Akira Kurosawa’s famous 1950 film Rashomon, a samurai is murdered in the forest. An unsuspecting woodcutter discovers his body — the samurai’s hands frozen mid-air like claws clutching a final moment.
What follows is familiar: Witnesses are brought forth. A court case begins. But the people who saw what happened in the forest that day recount wildly different stories. The movie has, for decades, illustrated the fallibility of human perception and memory — the foundation of eyewitness testimony, the leading cause of wrongful conviction.
But despite its well-documented problems, eyewitness testimony is still widely used in Michigan and across the nation to secure murder convictions.
And in a court case that has dragged on for years, new evidence could help a Michigan man named Diallo Corley clear his record after a 2015 attempted murder conviction in People v. Diallo Corley, a case in which the state’s highest court is now giving him another chance to maintain his innocence.
Corley, 28, served roughly four years in prison for attempted murder and related convictions after prosecutors accused him of shooting a man his defense attorney said he didn’t even know.
In April, he was discharged from state prison after the Michigan Supreme Court issued an order that declared Wayne County Circuit Court Judge James Callahan made an error in not allowing him a retrial.
Callahan, now retired, decided that new eyewitness testimony that could have exonerated Corley didn’t merit a retrial because the person who brought it to the court had a previous criminal conviction — making him unreliable, in Callahan’s eyes.
Legal experts, however, say the way in which Callahan dismissed the witness is more or less unheard of, and that Corley’s due process rights may have been violated in the process.
And according to some, like Western Michigan University Cooley Law School professor Tonya Krause-Phelan, that might just be the tip of the iceberg.
“It raises questions about how many other defendants appeared before that judge that had a similar fate,” Krause-Phelan said.
“And their due process rights might have been violated if that was something the judge consistently did.”
In 2014, Calvin Wray was shot in an attempted murder on Avalon Street in Highland Park, just outside of Detroit. After Wray testified that Diallo Corley opened fire at him in a drive-by shooting, Corley was convicted and faced potentially decades in prison.
Wray testified that someone with long dreadlocks — which Corley had down to his shoulders — fired five or six bullets from a red Mercury Mountaineer.
According to the brief for appeal from Corley’s appellate attorney, Craig Daly, Wray “knew of” but had never spoken to and had “no beef” with Corley, whose name he at first thought was “Diablo.”
Wray’s attorney argued that Corley was associated with a group called the “Winona Boys,” who were supposedly “jealous” of Wray because he was crowned homecoming king at Highland Park High School at least seven years before the shooting, the brief said.
Daly argued that there was no circumstantial or scientific evidence linking Corley to the crime. There was no firearm with his prints, no vehicle identification — not even a motive.
“There’s absolutely no motive for Diallo Corley to want to shoot Mr. [Calvin] Wray [the victim] … The best thing that they could come up with was that Mr. Wray was crowned … king of the [high school prom] court seven years earlier,” Daly said.
Wray admitted in court to lying to a physical therapist about injuries he sustained during the shooting, and to lying under oath during the defendant’s preliminary hearing about his middle name.
He picked Corley from a photo lineup about three months after the April 2014 shooting.
Daly told Michigan Supreme Court justices in his oral argument that the new witness who may be included in the retrial, Tarryl Johnson, was in the neighborhood for a “homosexual rendezvous.” Daly argued that his admitting to something many would not added to his credibility.
Johnson, 39, grew up in Detroit and had no connection with either Wray or Corley, according to a legal brief filed by Daly. He was found by a private investigator hired by Corley’s family after his mother “learned from a family friend at a funeral that he may have witnessed the shooting,” according to the Michigan Supreme Court order.
“He saw no red vehicle; instead, he testified that the shooter, whose hairstyle was short, with brush waves in a circular pattern, approached the victim on foot from in between two houses, fired at least three shots, and ran back in the same direction he came from after the victim fell to the ground,” the order said.
“The eyewitness’s testimony plainly undermined the prosecution’s evidence.”
The state Supreme Court justices eventually ruled 5-2 that Callahan made an error in not granting a retrial based on that testimony.
Criminal witnesses’ viability
Legal experts told the Advance that witnesses with checkered pasts are often relied upon for convictions, especially in drug conspiracy and other criminal cases.
“That’s highly unusual for a judge to just take that carte blanche decision without following the rules and letting the jury decide the credibility of the witnesses,” said Cooley Law’s Krause-Phelan. “The fact that the Supreme Court reversed the decision … it’s huge.”
To illustrate the disconnect between a conviction and witness credibility, Krause-Phelan raised the case of the famous entrepreneur Martha Stewart. She was convicted in 2004 of obstructing justice and lying to investigators about securities fraud.
“Martha Stewart has a conviction, and I think, for the most part, people find her to be a relatively credible person,” Krause-Phelan said. “We leave it to the jury to decide the credibility of the witnesses and the weight of the evidence.”
Josh Blanchard, chair of the criminal law section of the State Bar of Michigan, said he has “never heard of a judge” making a witness credibility determination in this way.
If that were the general rule, “that would create a lot of problems in criminal trials. That would be a real problem for justice,” he said.
Ann Arbor-based defense attorney John Shea said he agreed with the court’s decision to order a retrial rather than send the case back to the trial court, which could have prolonged the process by years.
“I think these five justices said, ‘Listen, the guy gets a new trial,’” Shea said. “‘We’re going to short-circuit it right now.’ … Otherwise, if he’s innocent … he may be spending another five years before that’s ever found out.”
Daly did not return multiple calls to his office or an email from the Advance. A secretary at his office said he could not comment on the case.
Wayne County Assistant Prosecutor Kim Miles will be pursuing charges against Corley in the retrial, according to Miller, the spokeswoman for the Wayne County prosecutor’s office.
Court records show that Corley has paid a $1,000 bond, and is awaiting a new jury trial set for mid-August. Wayne County Circuit Court Judge Donald Knapp, appointed last year by former Gov. Rick Snyder, will preside.
Due process questions
Before Michigan’s highest court overturned his previous convictions in ordering a retrial, Diallo Corley served about four years in prison.
The sole evidence used to convict Corley was eyewitness testimony from the victim, Calvin Wray, whose own credibility was questioned by Corley’s defense attorney.
Court records show that in denying Corley’s retrial, Callahan held that “as a matter of law” a jury was not likely to come to a new conclusion based on Johnson’s testimony.
The Michigan Supreme Court argued in its order, however, that the testimony “would have undermined that evidence significantly” and wrote that “this disinterested witness’s detailed account makes a different result probable on retrial.”
Legal experts speaking with the Michigan Advance say that the manner through which Callahan made his decision borders on a due process violation.
Although the law allows the court to impeach witnesses for certain crimes involving theft, lying or “moral turpitude,” those experts say that’s usually just one factor taken into consideration by the jury.
“That’s pretty far out there,” University of Michigan Law School professor David Moran said of Callahan’s decision.
Moran directs the university’s Innocence Clinic, which works to exonerate people who have been wrongly convicted of crimes. “The prosecution all the time relies on evidence from people with criminal histories.”
Callahan argued to the Advance in a phone interview that Johnson’s prior armed robbery conviction, which is a felony, allowed him to exclude his testimony under state law.
The retired Wayne County judge said he did not disagree with the Supreme Court’s finding, however, and added that he “tried to do as good a job as I possibly could in reviewing [the] facts of the case and analyzing the testimony of witnesses or potential witnesses in the matter.”
The Supreme Court retrial order overturned Corley’s 2015 convictions that prison records show included assault with intent to commit murder, assault with a dangerous weapon, discharging a firearm from a vehicle and another felony firearms charge.
Together, those charges could have meant 26 to 40 years in prison for Corley.
Pressure to convict
For now, Corley is once again innocent until proven guilty in the eyes of the criminal justice system.
Jurors will have to weigh two completely different accounts of what happened that day, as Corley awaits a second chance at clearing his name.
No one knows what the outcome of the new trial will be. But in recent years, there has been a growing movement, both nationwide and in Michigan, to reexamine harsher aspects of the criminal justice system. Lawyers and activists have sought to draw attention to those falsely convicted of crimes — and to establish justice in their cases.
More than 2,400 people have been exonerated nationwide since 1989, according to the National Registry of Exonerations. Ninety-seven people have been freed from Michigan prisons after their convictions were overturned during the same time period.
The bulk of those were for false murder convictions, both nationwide and in Michigan.
Faulty eyewitness testimony is the leading cause of wrongful conviction among all crimes according to the University of Michigan Law School’s Innocence Clinic, which works to exonerate people who were convicted of crimes they didn’t commit.
The national Innocence Project said that eyewitness misidentification accounts for 70 percent of the 350 convictions that have been overturned by post-conviction DNA evidence.
Records from the Registry of Exonerations show that across the country, 151 people — including nine people in Michigan — were exonerated in 2018 alone, including one of the nation’s longest-serving defendants, Richard Phillips.
After going to prison in 1972, Phillips served 45 years and two months in Michigan for a murder he never committed. He was exonerated by the U of M Innocence Clinic last year after lawyers discovered new evidence proving his innocence.
It is a story that happens all too often, spurred by the pressure for answers, the pressure for justice, the pressure to convict, U of M’s Moran said.
“The people expect the police and the prosecution to solve crimes, and if they leave the murderer on the street … it’s easy for the prosecution to fall into the trap of saying ‘we gotta get this guy because he’s a danger to the community,’” Moran said.
In 2018, about 46 percent of exonerated prisoners were sentenced for homicide. Thirty-one exoneration cases in Michigan that year involved mistaken eyewitness identification.
Numerous stories of wrongful convictions have come to light in recent years, and lawyers find that the more they look into it, the more innocent people they find — something that’s also shown in the data.
If cleared in his retrial, Corley may be entitled to $50,000 for each year he was imprisoned, through the state’s Wrongful Imprisonment Compensation Act.
More cases, more questions
Michigan Supreme Court Justice Brian Zahra was first appointed by former Gov. Snyder and is, by all accounts, one of the more conservative justices on the court.
And despite joining with Justice Elizabeth Clement, also appointed by Snyder, to oppose granting Corley an outright retrial, Zahra made a comment during oral arguments that suggests there may be more cases like his that haven’t yet been brought to light.
“I have a little concern with this judge who’s now retired, that perhaps he had a policy,” Zahra said. “I mean, it seemed to me, I’d see cases over and over, when it came to credibility determinations — particularly newly discovered evidence or post judgement motions — if a witness had a criminal record they were not credible.
“If the witness had no criminal record they were credible. Not on the basis of their demeanor, how they testified, what they were able to observe, the typical things that you would expect a trial judge to do in assessing credibility.
“It was simply this threshold test — conviction, no conviction,” Zahra said. “Credibility, no credibility.”
Callahan was first elected to the 3rd Circuit Court of Michigan in November 2004. He was reelected in 2010 and retired in 2017 at the end of his judicial term. He worked as a trial attorney for 33 years before that and served in the U.S. Navy from 1959 to 1965.
Callahan issued a few controversial opinions.
In 2014, prosecutors objected to Callahan’s decision to give a one-year jail sentence with five years probation to one of four Detroit men who were involved in the severe beating of a man who hit a 10-year-old boy with his truck.
The crime could have led to multiple years in prison, but Callahan argued then that the man’s remorse warranted a lighter sentence.
In another 2016 case, Callahan sentenced a man to one month in jail and five years of probation after his dog mauled a 4-year-old to death.
The retired judge defended his record in an interview with the Advance.
“In that regard [to the convictions] I think Justice Zahra is mistaken,” Callahan said.
“I tried to do as good a job as I possibly could in reviewing [the] facts of the case and analyzing the testimony of witnesses or potential witnesses in the matter. And I did not have any standing rule, as he’s suggesting, that if the person had a previous conviction, that they would not be believed. Or if they did not have a previous conviction, that they would be believed.
“Certainly it’s his opinion to draw, but I never had the attitude or policy of disallowing testimony just because the person had been convicted of a felony,” he added.
Corley, meanwhile, served years in prison after Callahan’s retirement, and will serve potentially decades more — unless the evidence the judge threw out leads the jury to a different conclusion this time around.