Wrongful Conviction 2014


Posted 11/8/14

WHEN SEEING SHOULDN’T BE BELIEVING

A long-awaited report offers best practices in eyewitness identification

   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.

     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.

Click here for the complete collection of wrongful conviction essays

     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.

     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.

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RELATED POSTS

Is a Case Ever Too “Cold”?     It’s Amateur Hour in the Southland     The Tip of the Iceberg

From Eyewitnesses to GPS     Rush to Judgment (Part II)     Can We Outlaw Wrongful Convictions? I II

RELATED WEBSITES, ARTICLES AND REPORTS

National Academy of Sciences     Eyewitness ID issues     NY Times review of eyewitness evidence

Five suggested techniques (NY Times)     NPR report on revamp of eyewitness ID procedures

UTEP witness ID website


Posted 9/5/14

WRONGFUL AND INDEFENSIBLE

Coerced confessions cost two innocent men thirty years in prison

     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.

   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.”

Click here for the complete collection of wrongful conviction essays

     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.

     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.

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RELATED POSTS

The Tip of the Iceberg     The Witches of West Memphis     False Confessions Don’t Just “Happen”

DOJ: Texas Executed an Innocent Man     House of Cards     Can We Outlaw Wrongful Convictions?

Labs Under the Gun     The Usual Suspects     Would You Bet Your Freedom on a Dog’s Nose?

RELATED ARTICLE

NY Times on former North Carolina prosecutor Joe Britt

 


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