Confession at center of pretrial appeal in 2005 killing

Posted: September 12, 2012

Jose Alicea is now 26 and has been in prison since age 19 when he confessed to the Oct. 30, 2005, shooting death of 21-year-old Esroy George Rowe during a melee at their neighborhood cafe in Olney.

Alicea's attorneys say he confessed not because he was guilty but because his low IQ and lack of experience with police made him especially vulnerable to questioning by authority figures.

On Tuesday, the Pennsylvania Supreme Court took up the pretrial appeal that has delayed Alicea's trial: whether his lawyers may call as a witness a nationally known expert on false confessions.

The expert, Richard Leo, has already testified for the defense without objection by prosecutors in an Allegheny County homicide case.

In Alicea's case, Philadelphia Common Pleas Court Judge Benjamin Lerner ruled that Leo could testify generally about factors that contribute to people falsely confessing.

In March 2011, a divided three-judge Pennsylvania Superior Court panel affirmed Lerner's ruling.

Assistant District Attorney Peter Carr, however, urged the six justices to overturn the lower court rulings, saying they must "protect the jury's exclusive role in determining the credibility of a witness."

Carr said that, traditionally, courts only allow testimony of expert witnesses who have the ability to explain a subject beyond the average juror's knowledge.

"The jurors have no need to be educated about the fact that false confessions exist," Carr argued. "There is no need for expert testimony to educate the jury."

Alicea's lawyer Lloyd Long III said Leo would not testify specifically about Alicea or opine that Alicea's confession was false - only describe his research on factors found to have contributed to false confessions.

Long said that, in addition to Allegheny County, Leo has been allowed to testify more than 160 times in 23 states.

The justices listened for about 45 minutes before holding the case for further review. They gave no indication about when they would rule.

Several justices, including Chief Justice Ronald D. Castille and Associate Justice Seamus McCaffery - both former prosecutors - said they worried that allowing Leo's testimony would open the door to a crush of new post-conviction appeals based on the failure of defense attorneys to use false-confession experts.

"It seems like a lot of speculation is what you are asking us to allow to go before a jury," McCaffery told Long.

Defense lawyers say Alicea had never been arrested and had no prior contact with police when he was brought in for questioning at 2 a.m. on Nov. 1, 2005.

Five hours later, nervous and shaking, Alicea - who has an IQ of 64, six points below the traditional threshold for mental retardation - began making a statement implicating himself in Rowe's killing.

Beyond Alicea's confession, defense lawyers say the evidence against him is equivocal: eyewitnesses who identified two others as the shooter.

Alicea's mother, Emilia Cruz, said after the hearing that Jose, the oldest of her five children, was receiving Social Security disability benefits and was diagnosed at age 3 with speech problems and a learning disability.

Also in court was Marissa B. Bluestine, legal director of the Pennsylvania Innocence Project at Temple University's Beasley School of Law, who filed a brief in support of permitting Leo's expert testimony.

There is no time frame as to when the state Supreme Court will issue an opinion on the Alicea case.

Contact Joseph A. Slobodzian at 215-854-2985 or, or follow on Twitter @joeslobo.

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