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Posted 11/8/14
WHEN SEEING SHOULDN’T BE BELIEVING
A long-awaited report offers best practices in eyewitness identification
For Police Issues by Julius (Jay) Wachtel. On September 28, 1990, a 16-year old white girl was sexually attacked by a masked man in a Dallas motel room. She said that her assailant was Michael Phillips, a thirty-two year old black man who did maintenance work at the motel. He was arrested within days. Phillips protested his innocence. But his accuser later picked him out from a “six-pack,” a photographic lineup with six photos side by side. One was of Phillips.
Thirteen years earlier, when he was nineteen, Phillips served time for burglary. Although he had since kept out of trouble, a public defender suggested he plead guilty to avoid a possible life sentence. So that’s what he did. Phillips was released in 2002, a convicted sex offender.
Five years later the Dallas D.A. formed a unit to tackle the problem of wrongful convictions. They began having old rape kits tested, something that wasn’t done in Phillips’s case because he pled guilty. Lo and behold, DNA from the attacker’s semen DNA not only excluded Phillips, but turned out to be a perfect match for the DNA of another resident of the motel, a man who resembled Phillips. Alas, he cannot be prosecuted because the statute of limitations has lapsed.
Click here for the complete collection of wrongful conviction essays
On July 25, 2014, a judge exonerated Phillips. Under Texas law he will get $80,000 for each of his twelve years of wrongful imprisonment, and the same amount yearly for life. Phillips, who suffers from sickle-cell anemia and is confined to a wheelchair, plans to leave the nursing home where he has been sharing a tiny room with another resident, and perhaps travel. “Hang on to your faith,” he told reporters. “The Father works in his own time, and like the good song says: He may not come when you want to, but He’s always on time.”
During the evening hours of August 7, 1977, a Metairie, Louisiana woman was attacked while walking to her apartment. She managed to fight off her assailant, but not before he bit her neck and ripped off her dress. He fled before police arrived. The victim described him as black, bare-chested, and wearing black shorts.
A security guard directed officers to an apartment in the same complex. Nathan Brown, the resident, was one of the complex’s few black residents and had tangled with the guard before. Brown answered the door. Officers had him take off his shirt and put on black shorts. They then staged a “showup,” in essence parading Brown by the victim. She positively identified him as her assailant, and later testified to that effect at trial.
Brown denied everything. He insisted that he had been home playing with his 2-year old daughter. Five persons corroborated his account.
No matter – victim ID carried the day. Jurors found Brown guilty and a judge sentenced him to 25 years.
More than a decade later, through the intervention of the Innocence Project, tests were performed on the victim’s dress (miraculously, it was still in evidence.) DNA in saliva stains positively matched a different black man. He happens to be in a Mississippi prison, doing time for an unspecified crime.
On September 3, 2014, a judge exonerated Brown and set him free. He had served seventeen years for a crime he didn’t commit.
Eyewitness misidentification has long bedeviled America’s criminal justice system. According to the Innocence Project, mistaken identifications were involved in a stunning 72 percent of convictions that were later reversed due to DNA testing. In a new, comprehensive report, the National Academy of Sciences tries to bring order to the chaos.
NAS reviewed a number of witness ID techniques. Perhaps the two most common are photo arrays, a series of usually six photos, one normally of the suspect, and show-ups, one-on-one viewings that take place in the field and are normally staged by beat cops. Each procedure raises two important concerns: accuracy of recall and witness suggestibility.
Accuracy of recall
- Should photo arrays be shown simultaneously, all at once, or sequentially, one at a time?
- What is the maximum amount of time that should pass between an incident and a show-up?
Witness suggestibility
- Officers administering arrays are usually involved in the investigation. To minimize the possibility that they may purposely or inadvertently convey cues, two procedures can be used: single-blind and double-blind. In single-blind, photos are shuffled so the officer doesn’t know which photo is being viewed. In double-blind, the officer is also unaware of the suspect’s identity.
- During show-ups, witnesses might feel pressured to identify persons who are handcuffed or sitting in the back of a police car. Field situations can make it difficult to create neutral, non-suggestive settings or bring in uninvolved officers.
Certain factors are thought to always affect the accuracy of identifications. Witnesses may be distracted by the presence of a weapon. Stress and fear can negatively impact memory and vision. Cross-racial identifications can be tricky. Length of an observation is also important, as is the lag between the observation and its recall.
Using our own words (don’t blame NAS!) here are some of its key recommendations:
- Inform officers about identification issues at the academy and through in-service training. Require in-depth coursework for investigators.
- Prevent officers from suggesting the “correct” choice by using double-blind procedures when showing photo arrays. If the cop doesn’t know who the suspect is, that’s as good as it can get.
- Develop and use standard witness instructions.
- Document, verbatim, the level of confidence that a witness has in his or her judgment. Resist the urge to give feedback. Videotape the process.
- Judges should conduct pre-trial inquiries to determine if witness identifications were done in accordance with best practices, and if not, whether lingering concerns should be addressed with expert testimony and a hearing.
- Inform jurors about every occasion when witnesses were asked to make an identification, and of their level of confidence each time.
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There is a lot more in the report, including a detailed overview of Federal and State witness identification laws and court decisions, a summary of pertinent research on vision and memory, and a painfully technical discussion of issues in measuring eyewitness performance. As one might expect, the reports ends by recommending a national research initiative on witness identification, and even sets out a comprehensive agenda.
Well, it’s about time. Considering all the innocents who have been locked up, and all the guilty who should have been, but were left to roam around and victimize some more (for a few head-spinners, check our prior posts) the report comes in a bit late. But it’s nonetheless highly welcome.
UPDATES (scroll)
1/15/24 Why was North Carolina man Ronnie Long imprisoned for 44 years for a crime he didn’t commit? According to Duke Law School, his rape conviction stemmed from a “suggestive identification” procedure that led the victim to identify him “weeks after the attack.” No physical evidence tied Long to the crime. Police kept secret that fingerprints and a suspect hair weren’t his. And the rape kit “went missing.” Long was granted a Governor’s “pardon of innocence” and will receive $25 million.
6/20/22 On a February evening in 1992, while 28-year old Gary, Indiana man Willie Donald was car-shopping, six armed robberies and a murder happened in his neighborhood. Although the robber had a badly acne-scarred face (Donald didn’t), after coaching by police, two of six victims picked him from a lineup. Solely based on their ID’s, Donald was convicted. Police later got and withheld evidence that he was not in the area. After Donald served 24 years, it turned out that a gang member (with acne scars) was the real robber. Donald’s story airs tonight on People Magazine’s “Investigation Discovery.”
4/28/22 “I’m positive of it,” the victim’s stepdaughter testified. “I will never forget his face. I will never forget his eyes.” Those words, and assertions by others that a man named “Tommy James” was the killer, cost Thomas Raynard James thirty-one years in prison. Only problem is, as the witness now concedes, and the Miami-Dade State’s Attorney wholeheartedly agrees, he was the wrong “Tommy James.” The real one, now deceased, admitted that he and a colleague had planned the fatal robbery.
11/24/21 Acting on motions filed by Jackson County, Missouri D.A. Jean Baker and the Midwest Innocence Project, a judge exonerated and freed Kevin Strickland, who served more than forty-three years for his alleged involvement in a triple homicide. No physical evidence linked him to the crime, and a survivor who picked him out of a lineup and was the sole basis for his conviction later insisted she had been pressured by police. Strickland’s alibi witnesses were ignored, as were the statements of two confessed participants who swore that he wasn’t there.
11/9/21 On November 3, 2021 the L.A. City Council settled a civil rights lawsuit filed by Andrew Wilson for $14 million. Exonerated in 2018 after serving 32 years for murder, Wilson was reportedly convicted because an LAPD detective pointed out his picture to a witness while showing a photo array. California state law now requires, among other things, that photo lineups be administered “blindly,” that is, by someone who is unaware of who the suspect may be.
8/30/21 Virginia Governor Ralph Northam recently granted full pardons to three wrongfully convicted men. Each - Bobbie Morman, Jr., Joseph Carter and Emerson Stevens - had served decades in prison before lawyers at the University of Virginia law school innocence were able to secure their parole. Sloppy police work was blamed in each case. Junk “hair science” also helped seal Stevens’ fate, while mistaken witness ID played a substantial role in the convictions of Carter and Stevens.
2/4/20 When uncertainty strikes, “the brain often fills in the gaps in perceptions, supplying missing information based on that person’s past experiences or expectations.” That, according to Thomas Albright, who led the team that issued “Identifying the Culprit,” the groundbreaking 2014 NAS report, can affect what witnesses think they see, hear and experience, with obvious consequences.
3/18/19 Seven years after a New York City jury convicted Otis Boone, a black man, of robbing two white persons, the State’s high court ruled that juries must be informed of the frailties of cross-racial ID. According to jurors at his second trial, held one month ago, that and other weaknesses in the case led to Boone’s acquittal. But prosecutors still insist that Boone was guilty, and an expert who testified at the first trial says it’s not race but witness certainty about ID that really matters.
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Posted 9/5/14
WRONGFUL AND INDEFENSIBLE
Coerced confessions cost two innocent men thirty years in prison
For Police Issues by Julius (Jay) Wachtel. On September 3, 2014, nearly thirty-one years after their arrest and imprisonment for the rape and murder of an 11-year old girl, a North Carolina judge declared Henry McCollum, 50, and Leon Brown, 46, factually innocent. McCollum had served his entire term on death row.
It never had to happen. McCollum and Brown, who had recently arrived in the small town where the murder occurred, were detained by police shortly after the crime. Unsurprisingly, after hours of grilling, the mentally retarded half-brothers confessed.
Within weeks a local resident, Roscoe Artis, confessed to another rape/murder. (His confession was genuine, and he was convicted and imprisoned.) Artis happened to live only a block from where the body of the victim supposedly slain by McCollum and Brown was found. Inexplicably, prosecutors ignored the lead. Although the accused promptly repudiated their confessions, it was to no avail. It took nearly three decades for authorities to test DNA on a cigarette butt found near the girl’s body. You guessed it - it proved a perfect match for Artis.
Click here for the complete collection of wrongful conviction essays
Joe Britt, the original prosecutor, and Ken Snead, a retired state investigator, unashamedly denounced the exonerations. “It’s a tragic day for justice,” said Britt. “Someone should have been called today to refute the evidence [for exoneration],” said Snead.
Really.
What happened in North Carolina seems disturbingly similar to the case of the Central Park Five, one of the most “celebrated” episodes of wrongful conviction in modern times.
In April 1989 police arrested five youths for the brutal rape and beating of a jogger in New York City’s Central Park. Each was put through the wringer, and four confessed on tape to an assistant D.A. Although the four promptly recanted, all five were convicted and were sentenced to terms up to fifteen years. But in 2002 a miracle happened. Troubled by his conscience, the real perpetrator, who was serving time for an unrelated rape/murder, came forward and said he alone was responsible. His improbable but highly welcome confession was promptly corroborated by DNA.
Despite the D.A.’s vehement protests (he claimed, among other things, that the five could have participated in the crime) their convictions were quickly vacated. New York City later acknowledged that the five men were innocent and, on the day this very post was published, settled their legal claims for $41 million.
Settled, but with fingers crossed behind its back. “The City of New York has denied and continues to deny that it and the individually named defendants [i.e., cops and prosecutors] have committed any violations of law or engaged in any wrongful acts.” According to city attorney (“corporation counsel”) Zachary Carter, “Our review of the record suggests that both the investigating detectives and the assistant district attorney acted reasonably, given the circumstances with which they were confronted.”
In other words, stuff happens.
Over the years Police Issues examined many wrongful convictions that had been precipitated by false and coerced confessions. Here are a few:
- George Allen, a schizophrenic, exonerated in 2012 after serving twenty-nine years for murder. Evidence aside from his “confession” included erroneous blood work. Conveniently, prosecutors ignored fingerprints found at the scene that weren’t his.
- Damon Thibodeaux, exonerated in 2012 after serving sixteen years for murder. Authorities ignored DNA that wasn’t his.
- Douglas Warney, a former psychiatric inpatient with an IQ of 68, exonerated in 2006 after serving nine years for murder. DNA eventually identified the real killer.
- Jeffrey Deskovic, also exonerated in 2006 after serving 15 years for rape and murder. Deskovic was convicted even though DNA recovered from the victim wasn’t his. It did, however, ultimately identify the real killer.
- Earl Washington, a mentally disabled man with an IQ of 69, exonerated in 2000 after serving 18 years for murder (and nearly being executed.) Again, he did not match victim DNA; again, the real suspect was ultimately arrested.
As before we could close by setting out ways to prevent these all-too preventable tragedies. For example, recording entire interviews, not just, as in the case of the Central Park Five, the juicy parts, where the suspects (falsely) confess.
But this time we’ll let the reader page through our former posts (see below for links). Really, this latest example literally screams for a new approach. So here goes. When cops and prosecutors use unduly suggestive or coercive interrogation techniques, or purposely turn a blind eye to indicators of possible innocence, why not arrest and prosecute them?
There is some precedent. Remember Michael Morton, the Texas man who served twenty-five years for killing his wife? Except, of course, that he didn’t do it. Last year Texas judge Ken Anderson, Morton’s one-time prosecutor, served nine days in jail and accepted disbarment for failing to disclose exculpatory evidence to Morton’s defense attorney.
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Current statutes prohibit various kinds of misconduct by government officials. Morton’s persecutor (yes, we meant to say that) was charged with evidence tampering, tampering with a government record and contempt, for lying to a judge in a pretrial hearing. To stem the plague of mistaken arrests and wrongful convictions it may be necessary to craft new laws. For example, that require police and prosecutors make good-faith efforts to investigate indications of innocence, and which outlaw using threats and coercion when taking statements.
Does that seem too harsh? It’s not outlandish to require that government officials, whose goofs can and have caused unspeakable injury (including executing the wrong man) at least try to do quality work. On the other hand, perhaps the authorities have already reformed. Perhaps advances in DNA and other forensic techniques make catastrophic errors a thing of the past. Perhaps twenty years into the future there will be no more examples of innocents serving decades in prison.
Perhaps not.
UPDATES (scroll)
3/4/24 In 1994 the Philadelphia D.A. secured the murder conviction of Daniel Gwynn, 25. And a death sentence, which was fortunately never carried out. And now, nearly 30 years later, the same D.A.’s office obtained his exoneration and release. Witnesses testified they picked Gwynn from a photo lineup. It went missing for years. But when found, Gwynn wasn’t in it. His confession also turns out to have been coerced. Meanwhile authorities have identified the suspected real killer. He’s doing life on another case.
7/6/23 Coerced confessions led to the conviction and imprisonment of five New York City youths for the 1989 rape/murder of a jogger in Central Park. But thirteen years later, with one still locked up, the real perpetrator confessed. That (and other evidence) led to the youths’ exoneration and, in 2014, to a $41 million settlement. And made possible Yusef Salaam’s recent win at the Democratic primary for a seat on the city council. You see, Salaam was one of the exonerees.
6/11/22 In 1966 Idaho Falls man Christopher Tapp, 20, was twenty when a friend, Brian Dripps Sr., raped and murdered an 18-year old woman. But police came to suspect Tapp because he was friendly with a man who committed another rape. During a long series of interrogations, police persuaded Tapp to slowly involve himself in the crime, and ultimately to confess. He spent 21 years in prison until DNA and its genetic trail led to Dripps. He confessed, and Tapp was exonerated. He will receive $11.7 million.
3/6/21 Gary Johnson, 46, George Bell, 44, and Rohan Bolt, 59 served twenty-four years for the 1996 murders of two men at a New York City check-cashing store. Yesterday they were released. An inquiry by the conviction integrity unit established by the Queens Borough’s new D.A. revealed that evidence linking known gangsters to the crime had been withheld from the defense and strongly suggested that the confessions were coerced. After upbraiding authorities, a judge dismissed the case.
1/4/21 In the New York Times, three members of the wrongfully convicted “Central Park Five” endorsed a proposed New York state law that would prohibit providing false information to persons being interrogated or otherwise deceive them in a way that could lead them to falsely confess.
3/29/20 In their new book, “Understanding Police Interrogation: Confessions and Consequences,” Woody and Forrest argue that false confessions can be caused by psychological manipulations; for example, techniques that “build rapport” with suspects and tricks that fool them into believing they’ve been incriminated by (non-existent) evidence.
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When Should Cops Lie? Accidentally on Purpose The Tip of the Iceberg
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RELATED ARTICLE
NY Times on former North Carolina prosecutor Joe Britt
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