A man who faced five years in prison for an attempted abduction walked free after his cell phone placed him miles from a crime scene.
Charges of attempted unlawful imprisonment and assault were dismissed by Grand Traverse County prosecutors in a case that hinged on an apparently erroneous identification from a photo lineup by a victim.
That photo lineup ID had been central in the case against David Michael Walter, a 42-year-old from Kingsley who had all along maintained he was innocent.
The case stemmed from an incident on the afternoon of Sept. 16 in Garfield Township when a 44-year-old woman walked her dog on the TART Boardman Lake Trail near Art Van and someone tried to pull her into the woods.
What happened, as described by police, sounds terrifying: a man approached the woman from behind, pulled her into a bear hug, picked her up, and started to drag her off the trail.
The woman kicked and struggled and freed herself, but the suspect grabbed her leg before she could get away. The woman kicked some more, flailed her arms, and was able to separate herself from her attacker and flee.
THREE PHOTO LINEUPS
The woman gave sheriff’s deputies a description of her attacker -- he was a white or Native American man in his late 20s or early 30s with a medium build and long black hair pulled into a pony tail.
A day after the attack the victim was shown a photo array of six men who loosely met the description.
She couldn’t make an ID, according to court documents. She was shown another photo lineup two days later, and again, she recognized no one.
In the meantime, the woman helped a state police artist draw a composite sketch of the suspect.
A Grand Traverse County Sheriff’s detective showed the drawing to people around Traverse City and many said the drawing looked like Walter, according to an account in a brief written by Walter’s attorney, David Clark.
The detective tracked down Walter at a soup kitchen and photographed him with his ponytail hanging over his shoulder.
That photo, along with photos of two other men whose names had also come to police after the composite drawing was released to the media, were included in a third photo array shown to the woman.
When the victim saw the photo of Walter -- which is different than the booking photo that’s been released to the media -- she made an immediate ID. She broke down crying and repeatedly said, “It was him,” according to a brief filed by prosecutor Alan Schneider.
AN APPARENT MISIDENTIFICATION
It appears now, that identification could have been wrong.
Just days after defending the photo lineup ID through motions and at a court hearing, Schneider filed a motion to dismiss the charges.
Prosecutor Robert Cooney, who takes over for Schneider as of Jan. 1, said phone records showed Walter’s cell phone was being used around Kingsley near the time of the attack.
“We felt it was likely that it was a good defense and for that reason, we dismissed the charges,” Cooney said. The charges were dismissed without prejudice, meaning they can be brought again.
Cooney said investigators are still checking out Walter’s alibi to make sure it was him using the phone.
Walter’s attorney had earlier in the case filed a motion that argued the photo lineup process led to a misidentification and the ID should have been thrown out.
Clark wrote that when the victim saw an old booking photo of Walter printed in a newspaper next to the composite drawing of the suspect, she had second thoughts about her identification.
He argued the lineup ID process is open to suggestion.
Prosecutors argued police used safeguards to prevent against a false positive ID.
Clark’s motion to have the evidence thrown out was rejected by Circuit Court Judge Thomas Power in late November.
INNOCENT ALL ALONG?
Walter maintained his innocence throughout and apparently Clark believed him. Clark did not return a message seeking comment.
Clark said in a letter to Schneider about the cell phone records, “Walter is adamant he didn’t do it.”
Early in the case, Clark filed a motion seeking Walter be allowed to take a polygraph, though it’s unclear how that could have helped him if his case had gone to trial and the victim pointed her finger at him.
So it is lucky for Walter, a man described in court records as indigent and disabled, that he had a cell phone and apparently used it around the time that he was miles away from the attack.
It is not uncommon for witness identification to be wrong. Mistaken testimony from eyewitnesses was a factor in 72% of post-conviction DNA exoneration cases nationwide, according to the Innocence Project.
The Boardman Trail investigation continues, however, and police have apparently not ruled out Walter as a suspect.
“They don’t have any other suspects and they’re still putting a case together,” Grand Traverse Sheriff’s Lt. Christopher Clark said.