Emily Munoz Detoto

Emily Detoto, a graduate of St. Mary’s Law School, serves on the Board of Directors for TCDLA. A briefing attorney at the Texas Court of Criminal Appeals and a former Harris County prosecutor, she’s been honored as H Texas magazine’s best lawyers, 2004 & 2005, and Texas Monthly magazine’s Texas Rising Stars: 2004–2005, 2008–2009, and 2011. Emily has appeared on “Inside Edition,” “Primetime Live,” “Celebrity Justice,” “Anderson Cooper,” “Good Morning America,” and various national news media outlets.

Eyewitness Identification: Certainty Doesn’t Equal Accuracy. Ask Me How I Know.

In 1998, I was beginning what would be the last year of my very brief career at the Harris County District Attorney’s Office under the legendary Johnny B. Holmes. I was the number three prosecutor in the 230th district court, which meant I had no power and was not free to use my discretion on cases. I handled the lowest level of felonies, ranging from petty drug offenses to second-degree felony aggravated assaults. If there was a dead body, I wasn’t allowed to touch the case. And that was really fine by me.

So, on a nondescript day, a day no different than any of my other days in court, I found myself about to pick a jury on an aggravated assault case—The State of Texas v. Gilbert Amezquita. Gilbert was accused of having been fired from a family-owned plumbing company and then coming back the next day and beating the woman who fired him to a pulp. He was accused of beating her so severely, she was left unrecognizable by her own family. It was also alleged that this woman, Kathy, was pregnant at the time of the horrendous beating and lost her unborn baby.

At the hospital, when Kathy regained consciousness, the first word she uttered was “Gilbert.” The police took this and ran with it and ultimately arrested a former worker at the plumbing company, Gilbert Amezquita. Gilbert was a handsome first offender with no criminal record to speak of. He was in the ROTC or Reserves, I forget, but he seemed to have the whole world, his whole life, in front of him.

I always had an affinity for Gilbert because he was a young Hispanic man. As a young Hispanic prosecutor, I was very disappointed in him and wished he would have made better choices in his life. But I also knew in my heart he was guilty.

We proceeded to trial, and Kathy identified Gilbert in front of the jury. Her identification was rock solid and unwavering. You see, Gilbert was not a stranger to Kathy. He was an ex-employee. Surely she knew him by name and sight. She was not wrong. She was certain and, in my opinion, accurate and reliable.

Gilbert’s lawyer put on a defense that consisted of some ill-prepared alibi witnesses, and as a young relentless prosecutor I had my way with them.

Gilbert was convicted as charged and the judge gave him a sentence of 15 years TDCJ-ID. Gilbert would eventually appeal his case and was consistently turned away until he ultimately exhausted all of his appeals. Thankfully, he had a hard-working and zealous writ attorney who just would not stop. His writ attorney was able to track down leads that were not followed up on by law enforcement, and eventually, they came across another Gilbert. They interviewed him and he ultimately confessed to the horrific crime.

In 2007, I was sitting at a restaurant in Jackson Hole, Wyoming, having a lavish breakfast with my lawyer friends when I received an email. This email shook me to my core and changed my life forever. The contents of the email? ”Gilbert Amezquita Pardoned by Governor Perry on Actual Innocence,” or something to that effect. My heart stopped, I was sick to my stomach, and I began to cry.

I had to make this right. So upon my return to Houston, I emailed Gilbert’s writ lawyer and asked him if he would ask Gilbert if he would meet with me. You see, I had to apologize. I had to ask for forgiveness and try and make this right. To my shock and surprise, Gilbert said yes. There was no turning back now.

So on another nondescript day, I woke up, got dressed, took my children to day care, and set off to ask for forgiveness.

I walked into his lawyer’s office and there he sat, Gilbert Amezquita, the innocent man who I had put in prison. The innocent man who had spent nine years in a Texas prison for a crime he didn’t commit.

When we saw each other we began to cry, and we hugged for what seemed like an eternity. I then sat across from him, held his hands, looked him in the eye, and told him three simple words: “I am sorry.” He forgave me, and we chatted for about an hour about how our lives had been for the last nine years. He told me that his wife had divorced him, and that she miscarried upon hearing the verdict. It seems that the stress of it all was just too much. I told him that I had married, had two children, and was a defense attorney.

I suppose we both try not to think about Gilbert’s life in prison. I can think of no worse pain—the kind of pain that makes you literally go insane, knowing in your core that you are innocent, but stuck in a horrible horrible place you do not belong. I can’t let myself go there because the guilt will eat me up alive. So, we both move forward and make the best of what we can with the life we have left.

I am telling this story because it needs to be told. It is my personal testimony on how I have seen first hand how certainty does not equal reliability. And no matter how many times an eyewitness points to the same person over and again, it doesn’t make her identification accurate, reliable, or credible. Certainty does not equal accuracy. This is a tough lesson I learned the hard way.