A judge will weigh whether to allow Hurd’s testimony.
A judge will weigh whether to allow Marcus Hurd’s testimony.
Wendy Maeda/Globe staff file

The sole survivor of the 2010 Mattapan shootings that left four people dead, including a 2-year-old boy, has told police he can now identify one of the killers, a reversal of his earlier testimony.

Marcus Hurd, paralyzed after he was shot in the back of the head, told a jury last March that the two men who shot him and four other people on Woolson Street wore masks or tightly pulled hooded shirts.

Edward Washington and Dwayne Moore were charged with the killings. Washington was acquitted, but the jury deadlocked on Moore. He faces a new trial next month.

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Now, Hurd is saying that it was during that first trial that he recognized Moore as one of the shooters, according to documents filed recently in Suffolk Superior Court.

The development would appear to be a significant advantage for prosecutors, whose case relies heavily on another eyewitness, an admitted drug dealer, with questionable credibility. But according to legal specialists and psychologists, allowing Hurd to testify to such a different account is risky. On Tuesday, a judge will weigh whether to allow Hurd’s new recollection at Moore’s retrial in October.

Hurd, a 31-year-old handyman at the time of the shootings, had initially testified that he caught fleeting glimpses of the man who shot him, a “taller gunman” in a hooded shirt and Adidas sneakers carrying a weapon that looked like a machine gun.

“I couldn’t see none of their face, no skin,” Hurd said during his testimony. He did not identify either defendant from the stand.

But seeing Moore in court, prosecutors said in documents filed Friday, “caused him to recognize the shooter’s facial features (specifically his bone structure.)”

“He saw the defendant during a period of great import and highly notable events from close range and recognized him when he saw him in person for the first time since the shooting,” Assistant District Attorney Edmond Zabin wrote.

Zabin will argue Tuesday that Hurd’s new testimony should be allowed at Moore’s trial. But according to some legal specialists, Hurd’s testimony could end up helping Moore’s case. At issue is not just that Hurd changed his story, but also that the new assertion comes two years after the shooting.

“If a witness testifies that the person may have been wearing a mask and testifies in a way that is totally contradictory to their past testimony, [a defense attorney] is going to pick that apart,” said Michael Doolin, a Dorchester defense attorney and former Suffolk prosecutor. “Any time a witness gives a contrary statement . . . it usually is good for the defense. It makes the witness look like they’re not being completely candid.”

The most accurate memories are typically the ones that follow soon after a crime, said Elizabeth Loftus, a psychology professor at the University of California, Irvine, who has testified in criminal cases about witness memory.

“Many people in general and jurors in particular believe that memory for a traumatic event works something like a memory recorder,” she said. But over time, memory “becomes more and more vulnerable to other influences, more and more vulnerable to distortion.”

Last July, the New Jersey Supreme Court issued new instructions for jurors, telling them to scrutinize eyewitness testimony carefully and reminding them that “human memory is not foolproof.”

Jeannine Turgeon, a trial court judge in Dauphin County, Pa., is working with Loftus and a jury instructions expert to create similar instructions for her state.

“The scientific evidence from all of the studies done is that just because a witness is certain, that does not mean that the witness’s memory is accurate,” Turgeon said. “Jurors need to know that.”

Since 1989, eyewitness identifications have resulted in nearly 75 percent of convictions that were later overturned through DNA testing, according to the Innocence Project in New York.

Still, Hurd’s new claim is also potentially problematic for the defense, said Robert M. Griffin, a Walpole criminal defense lawyer and a former Suffolk prosecutor.

The key witness against Moore is Kimani Washington, a confessed pimp and convicted drug dealer who said he took part in the home invasion and robbery that preceded the shooting, but left before the killings of Simba Martin, 21; his girlfriend, Eyanna Flonory; her 2-year-old son, Amanihotep Smith; and Levaughn Washum-Garrison, Martin’s friend who slept on a couch that night.

“His character is just terrible,” Griffin said of Kimani Washington. “And [he] really was what the government hung their hat on in the first trial. All of a sudden they have Kimani Washington and this poor guy who would be a very, very sympathetic witness for the government . . . It’s a huge boost to the government’s case if in fact the jury believes [Hurd].”

Moore’s lawyer, John Amabile, filed a motion Sept. 4 asking a judge to forbid Hurd from making the identification during the trial, which is scheduled to begin Oct. 11.

In that motion, Amabile argued that the identification is unreliable and tainted because it was allegedly made when Hurd saw Moore seated at the defense table “in the most highly suggestive context imaginable . . . obviously the person accused of the crime.”

Hurd never looked at police photos of Washington or Moore before the trial. Amabile noted that because of the heavy news coverage, his client’s picture was all over newspapers, television and the Internet, another factor that could have tainted Hurd’s memory.

Prosecutors told Amabile of Hurd’s new claim on Aug. 13, five months after Hurd testified.

“The circumstances revolving around the purported disclosure of the purported identification are highly suspect,” Amabile said in his motion. “What is the explanation for withholding this dramatic revelation for several months?”

Amabile has also asked for an evidentiary hearing, which would allow him to question witnesses, including Hurd, to determine precisely how the identification came about or if it was “tainted by extraneous influences.”

In his motion, Zabin disputed Amabile’s assertion that the identification was somehow prompted either by police or by news photos of Moore.

“To claim that the police created this situation is disingenuous and misleading in an attempt to create police action where none existed,” he wrote. “Accordingly, there is no constitutional basis to exclude the victim’s identification testimony . . . The victim’s memory and identification testimony are for the jury to evaluate.”

Amabile and prosecutors declined to comment for this report.

The bullet that paralyzed Hurd did not pierce his brain. But the trauma of such an event could make it difficult to remember a perpetrator’s face clearly, said Michael Leippe, a professor of psychology at the John Jay College of Criminal Justice in New York.

“The level of fear and anxiety and stress would be overwhelming,” he said.

That kind of uncertainty may keep Zabin from asking Hurd to identify Moore in court, even if a judge allows the testimony, legal specialists said.

“As a prosecutor you hate to leave anything unused,” said Quincy defense lawyer Raffi Yessayan, a former prosecutor in the Suffolk district attorney’s gang unit. “But you really do run the risk of that witness losing all their credibility, even if they’re being genuine.”