Another Georgia Man Exonerated, Will Appear before Eyewitness Reform Committee Two Days after Release

Another Georgia man was exonerated by DNA evidence yesterday, after serving nearly 30 years in a state prison for a rape he did not commit. Like the six other men exonerated in Georgia since the Innocence Project started digging through old cases, John Jerome White was convicted on the basis of mistaken eyewitness testimony.

Tomorrow, two days after his release from his decades-long prison term, Mr. White will appear at the final hearing of the eyewitness ID study committee that was formed by the Georgia House of Representatives to study police procedures behind the statewide problem of wrongful convictions resulting from faulty eyewitness testimony.

Maybe with another wrongful conviction fresh in their minds, and with another face on this systemic problem, the Georgia committee will do the right thing and mandate that law enforcement in the state adhere to a set of best practices that everyone agrees will reliably collect eyewitness evidence and reduce false identifications.

UPDATE: It turns out that the man who was incriminated by the DNA evidence that exonerated Mr. White was in the same lineup from which the victim selected Mr. White. But Mr. White was the primary suspect, and sure enough, the victim picked the man police had in their crosshairs. Just another example of why blind lineup procedures are critical to getting at the truth.

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Judge Precludes Questioning on Cross-Race IDs, Witness Gets 2 of 3 IDs Wrong, Man Still Goes to Jail

Donald Glenn Flack, a black man, was accused of assaulting a white woman at a mall in Knoxville, but when the victim attempted to identify her attacker from a photo in court, she picked another man -- even with Mr. Flack sitting directly across from her at the defense table. In the initial police lineup a month after the assault, she also picked someone other than Mr. Flack. The only time she identified Mr. Flack was when the prosecutor asked her if her attacker was sitting in the courtroom, at which point she pointed to the only black man sitting at the defense table. In the words of her attorney:

"I'm sorry, that's not an identification," he said in his closing argument. "She's one for three, that's less than 50 percent."

Further, Mr. Flack's brother testified that another man, James Blance, committed the crime. When Blance was called to testify, he invoked the 5th and refused to testify.

Despite the victim's identification of someone other than Mr. Flack on two out of three occasions, and other evidence suggesting an alternate suspect, the Knox County Court prohibited defense counsel from even questioning the investigating officer about the well-known difficulty that members of one race have when attempting to identify members of another race, a problem which is amplified by the presence of a weapon, stress, and a very short exposure time, all of which were factors in this case.

Notwithstanding the serious questions raised about Mr. Flack's culpability within the constraints defined by the court, the all-white jury convicted Mr. Flack and sealed his fate of up to 15 years in prison. This case is another illustration of the importance of expert testimony when it comes to the reliability of eyewitness evidence. Cross-examination and a compelling closing are rarely enough to shake a witness who honestly believes that she's right, but happens to be wrong.

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The Great Engine of Truth Not So Great for Eyewitness Evidence

I recently received a copy of a law review article on the effectiveness of cross-examination for getting at the truth of eyewitness evidence. Prof. Jules Epstein explores in depth the efficacy of the "great engine of truth" as applied to eyewitness testimony, and reports that it falls far short. (Cite: Epstein, Jules, The Great Engine That Couldn't: Science, Mistaken Identifications, and the Limits of Cross-Examination, 36 Stetson L. Rev. 727 (2007)).

Prof. Epstein frames the issue with a quote from the Supreme Court case of Watkins v. Sowders:

In Watkins v. Sowders, the Court found identification testimony no different from other categories of proof and cited Wigmore's dictum in holding that cross examination would suffice to establish or debunk the reliability of the evidence as follows:

[W]hile identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart - the ‘integrity’ - of the adversary process.

Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification - including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.

Epstein points out that "[a]t least two flaws are manifest in the Watkins
analysis." Specifically:

Given the significant incidence of mistaken-identification convictions, it is not clear if one can claim that such testimony does not go to the integrity of the adversarial process. Several decades of scientific study raise the question whether cross-examination can in fact secure reliable verdicts in cases of mistaken identification.

Following a detailed and extensively researched analysis, Prof. Epstein concludes that the highly revered truth-seeking tool of cross-examination, while perhaps effective at rooting out liars, is utterly ineffective at uncovering the truth when faced with a witness who is confident, but honestly mistaken about what he or she remembers -- which accounts for the majority of cases in which mistaken identification has led to wrongful conviction.

In short, cross-examination was developed to counteract perjury, not genuine mistakes.

[T]hese accolades also show the limits of cross-examination and its inutility in confronting the truthful but mistaken witness, or in demonstrating the lessons of the science of perception, memory, and recall. A tool designed from its inception to root out liars is ill-suited for the task of exposing the risk or reality of mistaken identification.

Epstein also goes into some detail about the problems associated with getting the results of scientific studies on eyewitness memory in front of juries, without the aid of expert testimony. For example:

Q: Ma'am, you've told us that being robbed was a highly stressful event, correct?
A: Yes.
Q: And you must know that the higher the stress, the more memory and perception get distorted. In other words, the more stress, the more it is likely that people make mistakes. You know that science has proved this, don't you?
A: Look, I don't know about studies. But I sure know what I saw. That man did it--this event was a powerful one, I'll never forget it.

That, coupled with a prosecutor arguing the "she'll never forget that face" line in closing, and a defense attorney is going to be hard pressed to sway a jury's intuitive belief that the identity of the perpetrator is "burned in the mind" of the victim forever. That is, without an expert to testify to the uncontroverted findings of 30 years of social science research that counteract that widely held -- but false -- intuition.

Prof. Epstein makes a strong case for the admission of expert testimony on eyewitness factors, as well as detailed jury instructions, to counteract jurors' "near-religious faith in the accuracy of eyewitness accounts." He concludes that "ongoing reliance on cross-examination as a great engine will, sadly, contribute to the continued phenomenon of wrongful convictions based on eyewitness testimony."

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Eyewitness Reforms Meet "Resistance from the Very People Who Should Care Most about Justice for All"

Professor Katherine Ramsland of DeSales University has a new commentary in the Philadelphia Inquirer on the widespread resistance among law enforcement officers to policy changes designed to make law enforcement more accurate and effective. At the top of that list is a set of proposed measures known to make identification procedures more accurate, and less likely to pollute witness memory with police suspicion.

Prof. Ramsland likens the resistance that advocates for changes in lineup procedures are facing today, to police resistance to mandatory Miranda warnings in the 1960s.

They said that articulating those rights hampered their ability to get confessions and released more criminals on technicalities. In other words, if an arresting officer forgot the warning or failed to notice that the subject was not competent enough to waive protected rights, the case could be tossed.

The climate is much the same surrounding efforts to modify lineup procedures to comport with research that has pointed the way to a more reliable set of practices which are less likely to result in misidentification, and ultimately wrongful conviction.

Now we are seeing a host of new policy changes on the horizon. These changes will help minimize false convictions. And again, we see resistance from the very people who should care most about justice for all. It is almost as if the law-enforcement establishment believes it is more important to convict and then let the system sort it out. But those who believe this have not fully grasped the harm some current procedures have perpetrated on the innocent. Law enforcement should welcome - not reject - changes designed to protect.

(Emphasis mine.)

Ramsland also details what we know about wrongful convictions resulting from misidentification, and the likelihood that the problem is far more widespread than the DNA exonerations are able to reveal.

Prof. Ramsland's frustration at the resistance to the clear mandate of the social science community that has scrutinized these problems for over three decades is unmistakable.

It is almost as if law enforcement does not want to identify and exonerate the innocent. Eight states do not yet mandate giving inmates postconviction access to DNA analysis. Five states defeated bills intended to change policies on eyewitness identification. The California State Sheriff's Association opposes bills that require officials to record interrogations and corroborate informant information; the purported fear is that such procedures would create loopholes for defense attorneys to exploit. This organization also opposes new procedures for suspect lineups. Research has revealed that witnesses, when asked to pick from lineups, make comparisons among those lined up, which can alter their memory. Or they may simply choose the one who "looks" criminal. (The recent study by the Chicago police department that "proved" that current methods worked just fine was significantly flawed.)

(Emphasis mine.)

The English jurist William Blackstone famously said: "Better that 10 guilty persons escape than that one innocent suffer." Apparently that's literary fluff to some people. They should talk to exonerated convicts.

That doesn't sound like a bad idea.

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Houston City Council "Should Be Weary of Making Apologies to Innocent People"

According to former Texas appellate judge Michol O'Connor, the time has passed to wonder about what can be done to address Houston's notorious wrongful conviction problem, just as the time has passed to wait for the Houston Police Department to fix the problems on their own. He describes status quo police lineup procedures as "a suspect process" in dire need of reform. Yet despite clear evidence of a simple solution, O'Connor points out, HPD as yet refuses to take the necessary measures:

Repeated studies have shown that the traditional lineup procedures produce mistaken identifications. Despite this, HPD continues to use those very same procedures: live and photo lineups, usually conducted by one of the officers involved in the investigation or the arrest of the suspect.

With blind lineup procedures -- where the person conducting the lineup does not know the identity of the suspect, which is unequivocally supported by everyone who has studied lineup problems -- at the top of his list, O'Connor minces no words:

City Council should force HPD to adopt these procedures

Finally, his frustration with the people with the power to fix the problem is unmistakable:

City leaders should be weary of making apologies to innocent people who were convicted of crimes they did not commit. By requiring HPD to reform its lineup procedures, the city can reduce the risk of wrongful convictions without spending millions of dollars. The Chronicle headline was right: Something needs to be done. Now.

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Schwarzenegger Terminates Legislative Reform Effort in California

Despite our earlier hope, Governor Schwarzenegger again vetoed a bill aimed at reducing wrongful convictions. The bill would have provided an important first step toward making the collection of eyewitness evidence more reliable in California, by simply requiring the Attorney General to devise a set of best practices, in light of substantial research showing that certain procedures make false identifications far less likely to occur.

For the second year in a row, Governor Schwarzenegger has shown that his allegiance to the law enforcement lobby is stronger than his commitment to protecting the innocent and reducing wrongful convictions. As long as Californians call Arnold their governor, it looks like reformists may have to consider an alternate angle on fixing that state's broken system.

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NIJ Acknowledges "Marred" Results of Illinois Pilot Project

The NIJ Journal put out an article this week called "Police Lineups: Making Eyewitness Identification More Reliable," acknowledging the unreliability of eyewitness memory and the role the police procedures play in making it more or less reliable. The article gives some detail on the simultaneous vs. sequential debate, including Nancy Steblay's continuing great work testing the efficacy of double-blind sequential lineups in the field.

Significantly, the NIJ acknowledges that the Illinois pilot project (the infamous "Mecklenburg Report") was fatally flawed. ("The stunning implications of the Illinois Pilot Program have since been marred ... by questions about the methodology used.") Presumably, then, the NIJ will no longer include the results of that junk study in future serious discussions on lineup reform, such as the project being developed for Dallas County. Taxpayers, not to mention the wrongfully accused, can't afford another colossal waste of public resources on an agenda-driven charade like we saw in Illinois.

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Georgia Cops Resist Reform, Defend Flawed Status Quo

In the second day of hearings by the Georgia House committee organized to consider a new law mandating that police adhere to well-established best practices when conducting eyewitness lineup procedures, law enforcement officials were out in full force in opposition.

Given the total lack of empirical support for that position, cops are left to rely on baseless claims in defense of the status quo:

Monday, Chief Louis M. Dekmar of LaGrange spoke for the Georgia Association of Chiefs of Police when he said many questions remain about university studies into eyewitness misidentification. For instance, real witnesses are more careful about the consequences of a mistaken identification than students are when they volunteer to participate in an experiment.

"Folks don't just jump out there and make an identification unless they're certain," he said.

Of course, we know the opposite is true from both the scores of wrongful convictions resulting from witnesses doing exactly that, and from numerous studies showing a striking lack of correlation between witness "certainty" and actual accuracy.

Further,

Harris County Sheriff Mike Jolley, president of the Georgia Sheriffs Association, told the committee that a single law would prevent witness procedures from continuing to improve when research determines yet a better way to conduct lineups. That's why individual police agencies need the freedom to write their own policies and to update them when needed.

If that concern bore any resemblance to the reality in the state, the argument might carry with it some force. Unfortunately, as we reported recently, most Georgia cops have no eyewitness guidelines to speak of.

The Sherriff went on:

Plus, some county sheriffs' offices only have four deputies, too few to conduct elaborate lineup procedures if required by law, he said.

The "resources" argument falls equally flat, as zero-cost methods (PDF) (see "folder method," p. 10) have been developed, which are the antithesis of "elaborate" and can be implemented with no more than a stack of photographs and manilla folders and a few minutes of training.

The law mandating best practices is needed precisely because Georgia cops have failed to take action to curb the state's wrongful conviction problem on their own. They have known about the problem for long enough to take action, and they have not done so. Hopefully Georgia legislators will see the debate for what it is, and move Georgia police practices into the present day by passing this law.

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Conviction Overturned for Failure to "Seriously Consider" Expert Testimony on Eyewitness Factors

The Illinois Court of Appeals overturned a conviction Friday in People v. Allen (PDF) (update: now on Westlaw at 2007 WL 2821966), for the trial court's "failure to conduct a meaningful inquiry" into proposed expert testimony on eyewitness factors by Dr. Steven Penrod.

Subjects of proffered testimony were to include the effects of stress, weapon focus, cross-race, lack of correlation between witness confidence and accuracy, and police procedures. The appellate court's analysis of those factors is imperfect (for example, the court found that cross-race research would not have applied because the witness was married to an African American, which the research shows to be largely irrelevant).

Nonetheless, the Illinois court was concerned with the fact that the prosecutor had argued effects that conflict with research findings:

The State's comments: "[t]here is no higher degree of attention than someone pointing a gun at you;" "[defendant's] face is burned in her memory forever;" " [tlhere is no doubt she was certain;" and "if she is so certain, there is no reason and no doubt that you should be certain."

That doesn't stop our courts from excluding the same research on the same grounds, but I digress. The court didn't go as far as to say that it was error to exclude the expert testimony, but citing Illinois case law, found that it was error to fail to provide a reasoned basis for its exclusion.

Neither at trial nor in this appeal does the State challenge the reliability of the research cited by Dr. Penrod. Nor did the trial court when it rejected the proposed testimony. The court merely said it did not believe: "experts in this particular case will assist the jury in determining the identification in
this case. I believe it would probably confuse them more and I believe that the
instruction that's provided by the Illinois Pattern Jury Instructions is sufficient."

The appellate court also made some affirmative findings on the question of whether the research is common sense/not beyond the ken, which is helpful in light of the fact that courts most often rely on the claim, however unsupported, that these factors are common sense such that expert testimony would not be helpful. Quoting from another Illinois case:

The research challenges the claim that the jury does not require expert assistance. As the prosecutor understood, reasonable people well might believe an eyewitness will be more accurate when faced with a weapon and when the witness shows
confidence in the accuracy of her identification. The expert testimony "dispels myths or attacks commonsense misconceptions about eyewitness identifications, such as the effects of stress and weapon focus on the accuracy of identifications." Tisdell,
338 Ill. App. 3d at 467. In Tisdell I we said: "Numerous studies in the area of eyewitness psychology indicate there is a significant potential for eyewitness error and that jurors have misconceptions about the abilities of eyewitnesses." Tisdell, 316 Ill. App. 3d at 1157.

In other words, there is something wrong with excluding expert testimony on weapon focus and stress on the grounds that their effects are common sense, but nonetheless allowing prosecutors to argue the opposite of the common sense view, as they do in trial after trial.

Further, the court observed that:

No careful scrutiny took place in this case. Relevance of the different parts of Dr. Penrod's proposed testimony was not seriously considered. Nor their weight. The conclusion that the proposed testimony would confuse the jury had no considered basis. The balancing test requires a weighing of "probative value against its prejudicial effect.".

In other words, this presumably means that hard data will be required in support of future attempts to exclude expert testimony on common sense grounds. Fortunately, all the hard evidence (PDF) is firmly in favor of defendants seeking to get expert testimony in front of jurors.

Finally,

Because of the trial court's failure to conduct a meaningful inquiry into Dr. Penrod's proposed testimony, under the specific circumstances of this case, we reverse the defendant's convictions and remand this cause for a new trial.

The court could have taken it a step further and held that it was error to exclude the testimony, and further that it was error to allow the prosecutor to make arguments that conflict with what the court held to be common sense, but it's a start.

UPDATE: This case is now available on Westlaw: People v. Allen, --- N.E.2d ----, 2007 WL 2821966 (Ill. App. 1 Dist. 2007).

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Dallas, TX: Wrongful Conviction Leader Come Poster Child for Eyewitness Reform, or Illinois All Over Again?

Dallas County, notorious for its status as the county with the worst wrongful conviction record in the country, is now, at least ostensibly, making efforts to remedy this systemic problem. Eleven of the 13 wrongful convictions uncovered by the Innocence Project in Dallas County in the last six years resulted from faulty eyewitness evidence collected through flawed police procedures. Acknowledging that problem, Dallas county is taking part in a $300,000 federally funded study, aimed at identifying the most reliable lineup procedures by way of a pilot program.

State Senator Rodney Ellis, from Houston, has been involved in reform efforts in the state for some time.

"Dallas ought to be a laboratory – a poster child for reform," said state Sen. Rodney Ellis, D-Houston, who unsuccessfully tried to get the state Legislature to set up a working group to come up with a model policy for lineup procedures.

He lauded the department's willingness to get involved: "We all ought to be interested in law and order, but it would certainly be nice to get the right one."

One of the procedural reforms being tested is the "sequential double-blind" method recommended by social scientists who have studied lineup procedures in connection with eyewitness memory.

The starting point of any lineup reform effort should be an across-the-board requirement that all lineups be conducted blindly, as it is well-established across the sciences that people conducting experiments will inadvertently (if not intentionally) influence the outcome, when there is an expected or anticipated result -- that is, when the person conducting the lineup knows the identity of the suspect.

Testing the "accuracy" of blind procedures vs. non-blind is inherently problematic, however, without some sort of "ground truth" against which to compare the results. The likely outcome is quite likely to be that witnesses choose the police suspect more often when lineups are not conducted blindly, which does no more than confirm the influence of administrator bias. The problem is knowing whether or not the suspect is the actual culprit. In fact, if all we were after were a procedure most likely to result in an identification of the police suspect, we could just bypass the identification procedure altogether and move straight from suspicion to indictment. But hopefully the good people of Dallas County will assess the results of this project in good faith and account for this basic requirement in their analysis.

Unfortunately, the synopsis provided by the Dallas Morning News isn't encouraging on this front:

The method that leads to the fewest identifications of people who are not the suspected guilty party is expected to be the preferred method for conducting lineups.

In other words, if the procedure where the cop is pointing at the suspect and salivating like Pavlov's dog more often results in that person being picked -- with no knowledge of whether or not that person is actually the perpetrator -- then that procedure will be deemed superior. Hopefully this apparent fundamental flaw in the conception of this pilot project is either a reporting mistake, or if an actual reflection of the intended assessment metric, will be cured before the first the first tax dollar is wasted.

Another component being tested is the sequential presentation of the photos, which social scientists recommend, but caution should only be done if the lineup is also conducted blindly. Sequential presentation of lineup photos by an administrator who is aware of the identity of the suspect is more dangerous than even the traditional "six-pack" photo array, because the inadvertent influence of the administrator takes on heightened power when the suspect's photo is displayed by itself. Nonetheless, the Dallas project apparently intends to spend tax money testing this obviously flawed format as well.

The rational approach would be to treat blind not as a variable, but as a baseline. Blind procedures are scientific; non-blind are not. One protects against bias; one does not. It should be that simple, yet we see another study design that refuses to acknowledge this fundamental problem that continues to infect the reform dialogue.

But moving ahead. James Doyle of the Center for Modern Forensic Practice at the John Jay College of Criminal Justice sheds some light on the reasoning behind the sequential (blind) procedure:

Showing pictures one at a time provides more accurate results, Mr. Doyle said, because the method is akin to giving a true-false test.

"They have to compare that picture with their memory of the crime," he said "They can't compare the pictures with each other."

And on the pitfalls of the simultaneous format:

But many psychologists consider the traditional method to be similar to conducting a multiple choice test where "none of the above doesn't seem like a possible answer," said James Doyle, director of the Center for Modern Forensic Practice at the John Jay College of Criminal Justice in New York.

"What the psychologists believe is happening is that witnesses will pick out the person who looks most like the perpetrator by comparing the people in the array to each other," Mr. Doyle said.

Dallas County DA Craig Watkins claims to be committed to doing what it takes to fix the system:

"It's time for us to take a really close look at what we have done in the past and really make the necessary changes so we don't make the same mistakes," said Dallas County District Attorney Craig Watkins, who recently created a position to oversee DNA evidence and conviction integrity.

And the Assistant Police Chief as well:

"Everybody in law enforcement wants to use the best system," said Dallas police Assistant Chief Ron Waldrop, commander of the criminal investigations bureau. "Once it's been shown scientifically which is the best system, I think everybody will move to that system."

Then again, no one disputes that the most basic reform measure, namely blind procedures, is unequivocally less likely to result in wrongful convictions. Or at least no one does so with a straight face. This recommendation is a simple suggestion that one of the most basic lessons of science be applied to police procedures, based on decades of uncontroverted research across the sciences, and yet police departments and DA offices across the country continue to resist.

Let's hope Dallas County will count itself among those reversing the anti-science trend, and that this pilot project isn't another squandered opportunity to fix a serious and widespread problem.

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Most Georgia Cops Have No Eyewitness Guidelines

Despite the fact that the Innocence Project has exonerated six men in Georgia who were wrongfully convicted as a result of faulty eyewitness evidence, the majority of Georgia law enforcement agencies still lack even basic written guidelines for the collection of eyewitness evidence. A recent report found that 83% of the 296 Georgia law enforcement agencies surveyed have no specific guidelines to standardize eyewitness procedures.

In the past legislative session, the GA House of Representatives launched a study aimed at improving police procedures for the collection of eyewitness evidence, acknowledging the importance of reliable police practices in preventing wrongful convictions.

State lawmakers are considering legislation to tighten eyewitness guidelines on the heels of several high-profile cases in Georgia, and elsewhere across the country, where prisoners have been cleared by DNA evidence. Of the 205 people exonerated by post-conviction DNA evidence in the United States, 75 percent involved faulty eyewitness identification. Six of those were in Georgia.

Hearings began this morning, and will continue through mid-November (schedule here (PDF)). From the Georgia Innocence Project:

Presenters during the series of hearings include: Calvin Johnson, DNA Exoneree and Georgia Innocence Project Chairman-Elect (all six Georgia exonerees are invited to the first hearing); Barry Scheck, Co-Founder of the Innocence Project (New York), Aimee Maxwell, Executive Director of the Georgia Innocence Project, Jennifer Thompson Canino, victim in a rape case involving mistaken identification, Jeff Brickman, former DeKalb District Attorney involved in a wrongful conviction case, John Bankhead, Georgia Bureau of Investigation, Butch Beach, Georgia Public Safety Training Council (see attached schedule for list of all presenters). The House Study Committee is chaired by : Rep. Stephanie Stuckey Benfield from DeKalb County.

The legislative effort to bring about more reliable police procedures has also brought the spotlight back to Troy Davis, who still sits on Georgia's death row:

Most recently, questions about eyewitness identification have cast doubt on the conviction of Georgia death row inmate Troy Davis, who was found guilty of killing a police officer. He is awaiting a hearing before the Georgia Supreme Court. Davis' lawyers are asking for a new trial because they say several witnesses who initially testified against their client have since recanted or contradicted their testimony.

Rep. Stephanie Stuckey Benfield fought to pass an eyewitness ID reform bill last year, but prosecutors inexplicably opposed the bill -- the express purpose of which was to make law enforcement practices more accurate -- and managed to kill it. Benfield has another shot this session, and led the study committee at the outset of the hearings this morning in Atlanta.

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Federal Court Finds Lawyer Ineffective For Failure to Call Expert on Effects of Blood Loss and Sedation on Witness's Memory

Just came across an interesting recent decision from the 2nd Circuit, in connection with a habeas claim from an old New York case.

Brentonol Moriah was walking along a Brooklyn street at 2:30a.m. one summer night in 1996, when he was held up with a full-length shotgun. Mr. Moriah turned over the contents of his pockets, at which point apparently some headlights flashed, and his assailant fired the shotgun into his thigh. Moriah proceeded to lose approximately half of his blood before receiving treatment. When police arrived, he was still conscious, but only able to say that he was robbed and shot by a black male wearing a "lemon-colored shirt." The assailant was listed as "unknown" and "unidentified" in police reports documenting the incident. Mr. Moriah then entered an 11-day coma.

When he came out of the coma, but while still heavily medicated, Mr. Moriah reported that the man who shot him was his neighbor, Derrick Bell. On that evidence alone, Mr. Bell was convicted of robbery and assault at trial, which was upheld on appeal.

On the habeas claim, however, the 2nd Circuit found that trial counsel's failure to consult a medical expert on the expected effects of heavy blood loss, heavy medication, and an 11-day coma on the reliability of Mr. Moriah's memory as a witness to the crime, rendered Mr. Bell's trial counsel constitutionally deficient.

In connection with Mr. Bell's habeas claim, he contacted a neuropsychologist to review the case:

Bell submitted the affidavit of Dr. Elkhonon Goldberg, a neuropsychologist ... who reviewed the police reports from the case, Moriah's grand jury and trial testimony, and the trial testimony and affidavit of Dr. Brewer. Dr. Goldberg opined that: "Mr. Moriah's testimony contains unequivocal evidence that he suffered from retrograde amnesia for the events predating the loss of consciousness"; the retrograde amnesia was exacerbated by such anxiolytic and amnestic medications as Dr. Brewer attested were likely administered to Moriah in the emergency room; false memories can be persistent and dominant, overriding true memories; and Moriah was unlikely to have regained full consciousness when he first named Bell. Accordingly, Dr. Goldberg concluded that Moriah's identification of Bell was unreliable.

On that basis, the 2nd Circuit overturned the conviction:

where the only evidence identifying a criminal defendant as the perpetrator is the testimony of a single witness, and where the memory of that witness is obviously impacted by medical trauma and prolonged impairment of consciousness, and where the all-important identification is unaccountably altered after the administration of medical drugs, the failure of defense counsel to consider consulting an expert to ascertain the possible effects of trauma and pharmaceuticals on the memory of the witness is constitutionally ineffective.

The text of the decision is available on Westlaw: Bell v. Miller, --- F.3d ----, 2007 WL 2469423 (2nd Cir. 2007).

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New Zealand Government Funds Novel Eyewitness Research

The New Zealand Herald is reporting today that a New Zealand researcher will receive a government-funded grant in the amount of $170,000 to study factors affecting the reliability of eyewitness memory, in support of an effort to reduce wrongful convictions in the country. Dr. Rachel Zajac of the University of Otago will use some of the money to test a lineup modification on adults that was previously tested on children:

A previous study found that false identifications decreased dramatically when children were given the opportunity to point to an additional photograph depicting a silhouetted figure with a question mark superimposed, rather than verbally identifying a person in a line-up.

Following the success of the "non-pick pick" option in the earlier study with children, Dr. Zajac will conduct a similar test to determine if the same reduction in false IDs carries over when the modification is tested on adults. This strikes me as sort of a visual take on the "you don't have to pick anyone" lineup instruction, which could conceivably serve as a stronger deterrent to guessing than the instruction alone. (It turns out the old Rush lyric applies as well to lineups as anything else: If you choose not to decide, you still have made a choice.)

Since a witness actually sees the "non-pick" as one of the several choices presented in this test condition, it seems possible that not choosing anyone will appear as a more viable option in cases where witnesses are genuinely uncertain, as compared to a lineup comprised solely of affirmative choices, where the only acknowledgment of the non-choice as an option was an instruction read prior to viewing. I'll be interested to see the results.

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Innocent? Prove it.

Last I checked, the U.S. Constitution mandates that criminal defendants are presumed innocent, and guilt must be proven by the state. It may not say it in the plain text, but people who read the Constitution for a living swear it's floating around somewhere in the "penumbra" of the 5th, 6th, and 14th Amendments. In any case, the Supreme Court agrees. In fact, the presumption of innocence is "axiomatic and elementary." "[I]ts enforcement lies at the foundation of the administration of our criminal law."

There are several reasons for this, some of which are purely practical. One of these reasons is that it is no small feat to prove actual innocence. Another is that the average criminal defendant doesn't have the resources bestowed upon state and federal governments to cover court costs. So the burden of proof is on the party with the resources. This makes sense.

So why do innocent people have to prove their innocence in order to clear their records of false charges?

I came across a short editorial in the Sacramento Bee this morning arguing that they shouldn't, and I tend to agree. The editorial traces the story of Eric Warren, who spent 53 days in jail after being charged with a series of similar crimes in the area, following a phone tip and shaky other-race IDs by five witnesses. He maintained his innocence throughout, and a substantially similar crime was committed in the same area while he was locked up, suggesting someone else was behind all the crimes.

Ultimately Mr. Warren was released, after the eyewitness and other evidence quickly fell apart. Prosecutors admit to having "substantial doubts" about his connection to any of the crimes.

But,

If a mistake was made, what is the remedy for Warren? His family is out thousands of dollars in legal bills. Warren is out of jail, but he's not free from the effects of what appears to have been a false accusation. For example, if asked on a job application, "Have you ever been arrested?" must he answer "yes" -- a devastating admission for any job-seeker and particularly so for a young African American man? A declaration of "factual innocence" would officially expunge Warren's arrest record. But such a declaration requires Warren to petition the court himself, incurring yet more legal costs. That's unfair.

Not to mention extremely difficult. Even if the witnesses ultimately admit to being unable to make a reliable ID, that's still short of factual innocence. If Mr. Warren's only alibi is that he was at home sleeping at 4a.m. on the night of a particular crime, as most of the other innocent people in Sacramento likely were, he's going to be hard pressed to affirmatively prove that he wasn't out committing those crimes. Barring definitive DNA evidence, new eyewitnesses, or a confession by the actual perpetrator, Mr. Warren is left with an arrest record because the government made a mistake. The Sacramento Bee offers a better solution:

If a mistake, no matter how innocent, was made by witnesses, by police or by prosecutors, the system owes Warren an apology. A declaration of "factual innocence" is the one meaningful apology available to him. He should not have to pay for it.

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"They may as well have made him wear a target on his chest or a sign over his head saying 'pick me,'" says US federal court

I just came across an interesting decision issued last month from the U.S. District Court for the Northern District of Illinois, in which the court considered (and rejected) eyewitness evidence in support of an extradition request by the Republic of Poland. In re Mazur, Slip Copy, 2007 WL 2122401 (N.D.Ill. 2007).

The evidence presented in support of the government's probable cause showing included a live lineup of four men. Three of the men were "dressed in dark, subdued colors, whereas Mr. Mazur is wearing a bright red, slightly oversized jacket" -- a jacket "foisted" on Mr. Mazur by the authorities "in an effort to make his dress look less formal." In the words of the district court, "They may as well have made him wear a target on his chest or a sign over his head saying 'pick me.'" The court went on to say that the ID procedure employed by Polish authorities "would never pass muster in this country," that the lineup was unduly suggestive and "highly suspect." It further found that "the government's reliance on this identification is shocking and offensive." Id. at *24.

If only our courts could save some of that disdain for the procedures routinely done by our own police.

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When the DOJ Says It, Jurors Listen

A study was published a couple of years ago that tested juror reactions to information suggesting that police had failed to follow best practices in conducting eyewitness lineup procedures. (I haven't found the text online, but here's the cite: J.M. Lampinen et al., The reactions of mock jurors to the Department of Justice Guidelines for the collection and preservation of eyewitness evidence, 27 Basic and Applied Soc. Psychol. 155 (2005)).

The study used a set of mock trial transcripts, which were adapted from a real robbery case, in which a man was described as having robbed a convenience store while wearing a "makeshift" mask, and who told store employees that he had a gun and was "not afraid to use it." Three witnesses testified against the defendant -- one who claimed to have seen the perpetrator from about 40 feet away outside the store, as he removed his mask, a police officer who was inside the store during the robbery, and a friend of the defendant who testified that the defendant had a gambling problem and owed a lot of money, thereby establishing motive. The first witness selected the defendant from a photo array, after which charges were filed.

The researchers tested three different conditions, using the same facts -- in the first (control) condition, a trial transcript was provided to mock jurors including no mention of police errors in conducting the lineup procedure. In the second condition, two police errors relating to lineup procedures were mentioned, which were subsequently brought up by the defense. In the third, the same two police errors were mentioned, and the defense attorney not only highlights them, but also points out that they violate the Department of Justice Guide for Law Enforcement on Eyewitness Evidence (PDF). Aside from these modifications, the underlying transcripts were identical.

From the second condition:

Q. Officer Jacobs, I want to now ask you about the lineup which you showed to Ms. Wilcox.
A. Okay.
Q. Officer Jacobs, did you ever inform Ms. Wilcox that the culprit may or may not be in the lineup?
A. I don’t believe so.
Q. Don’t you believe it would have been a good idea to let the witness know that she didn’t have to pick somebody?
A. In my experience, things like that don’t make any difference.
Q. Officer Jacobs, Mr. Martinez has a mole on his left cheek, did any of the other photographs you showed Ms. Wilcox have a mole?
A. No.
Q. Aren’t you afraid that would make Mr. Martinez stand out?
A. No sir I wasn’t. In my experience, witnesses either recognize someone or they don’t.

And then from the condition in which the procedures used were contrasted with DOJ best practices:

Q. Officer Jacobs, I want to now ask you about the lineup which you showed to Ms. Wilcox.
A. Okay.
Q. Officer Jacobs, did you ever inform Ms. Wilcox that the culprit may or may not be in the lineup?
A. I don’t believe so.
Q. Don’t you believe it would have been a good idea to let the witness know that she didn’t have to pick somebody?
A. In my experience, things like that don’t make any difference.
Q. Officer Jacobs, are you familiar with the Department of Justice guidelines that were recently published entitled “Eyewitness Evidence: A Guide for Law Enforcement”?
A. I’ve heard of them.
Q. And are you aware that they state that the investigating officer should make clear to the witness that the culprit may or may not be in the lineup?
A. No I wasn’t.
Q. Alright Officer Jacobs, Mr. Martinez has a mole on his left cheek, did any of the other photographs you showed Ms. Wilcox have a mole?
A. No.
Q. Aren’t you afraid that would make Mr. Martinez stand out?
A. No sir I wasn’t. In my experience, witnesses either recognize someone or they don’t.
Q. I see, well were you aware, Officer Jacobs, that the Department of Justice guidelines state that the suspect should not stand out as being different from the
other members of the lineup?
A. No I wasn’t.

The same tactics were echoed in closing arguments.

The result?

Mock jurors in the DOJ condition (a) voted to convict at a lower rate, (b) rated the eyewitness as less credible, (c) rated the investigating officer as less professional, and (d) were more likely to opine that the investigating officer had thereby jeopardized the prosecution’s case.

Just as interesting was the fact that raising problems with the ID procedures on cross and again in closing produced no fewer convictions than the condition in which the errors were never mentioned at all.

The moral? Juries listen when they learn that police violated practices set forth by an authoritative source. They pay less mind when the source is a defense lawyer.

UPDATE: I should mention, as has been mentioned to me, that the results of this study should not be taken to invoke a sort of fatalism in those cases where introduction of the DOJ guidelines, or some other authoritative source, is not permitted or otherwise possible. A cursory look at the study shows that the second condition by no means involved a properly developed cross of a cop on a flawed ID procedure, and the lack of difference in conviction rate between the first two conditions should certainly not be taken to mean that it isn't worthwhile to wage a full scale attack on bad IDs, even when you can't get authoritative best practices in front of the jury. The silent lesson from the study might just be that your cross shouldn't look like the one in condition #2.

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The Problem with Telfaire

The so-called "Telfaire instruction" (from U.S. v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972)) is the most commonly used jury instruction on eyewitness ID in U.S. courts, aimed at alerting jurors to the potential pitfalls of eyewitness evidence. Unfortunately, it is based directly on the flawed and outdated criteria for assessing the reliability of eyewitness evidence set forth in Neil v. Biggers in 1972, which was decided before the majority of eyewitness research now available was conducted, when the entire field was in its infancy. As a result, the instruction often backfires, causing jurors to rely even more heavily on shaky eyewitness testimony, rather than serving its intended purpose of sensitizing them to the factors that tend to make it unreliable.

It opens as follows:

Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.

Here's the first problem. When a judge instructs a jury to rely on the "strength of the identification," she asks them to consider the confidence of the witness in assessing his or her accuracy. Yet it is well-established among experts that a witness's confidence is "a dubious indicator of eyewitness accuracy even when measured at the time an identification is made." See, e.g., Steven Penrod & Brian Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1 Psychol., Pub. Pol., & L. 817 (1995). According to the same article, the more emphasis that is placed on the Telfaire instruction, the more jurors tend to credit eyewitness testimony. That is, "the instruction produced a credulity rather than a skepticism effect." Id. at 833.

The Telfaire instruction continues:

You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.

There's more trouble here. This is true if and only if the lineup is conducted in accordance with best practices, and given that rigid criteria are applied in adhering to the "similar" requirement. Lineup members can quite easily pass a broad interpretation of the "similar" test, by, for example, all belonging to the same race. But the requirements of a good lineup are far more subtle than a generic "similarity" requirement, which juries are not equipped to judge without insight from the research. And as Gary Wells has pointed out, a bad lineup can have the effect of pointing a giant finger at the suspect, while giving the witness heightened (though false) confidence because she "picked" him from a group.

The problems with Telfaire are apparent, and defense lawyers have been urging trial courts to abandon it for some time. As an alternative, researchers recommend detailed instructions that are informed by the findings of social scientists over the last 35 years, since the Biggers factors were identified by the Supreme Court with no scientific basis.

These tailored instructions should include, where applicable, instructions on the cross-race effect, the detrimental effects of stress on eyewitness memory, the weapon-focus effect, the absence of a reliable correlation between confidence and accuracy, and lineup procedures that have been shown to make an identification more or less reliable.

But scientifically accurate jury instructions are not enough. To properly sensitize jurors to the problems with eyewitness testimony and to begin to curb the nationwide wrongful conviction problem due to over-reliance on bad eyewitness evidence, expert testimony is critical. In fact, according to the recent Copeland ruling by the Supreme Court of Tennessee, expert testimony is the only reliable method to ensure that jurors have the necessary tools to assess eyewitness evidence accurately. State v. Copeland, 2007 WL 1498396, *11 ("Research over the past 30 years has shown that expert testimony on memory and eyewitness identification is the only legal safeguard that is effective in sensitizing jurors to eyewitness errors.").

It's time to stop misinforming juries based on the antiquated, unscientific musings of an old Court, and to start letting science into the courtroom at every phase of trial. The Constitution demands it, and the rights of the wrongfully accused depend on it.

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GA Supreme Court Will Hear Troy Davis' Case; Original Jurors Urge New Trial

On Friday, the Georgia Supreme Court agreed to hear the appeal of Troy Davis, including new evidence of police coercion that undermines the eyewitness testimony that was the primary basis of his conviction.

Now, four jurors from Mr. Davis' original trial have come forward urging clemency and a new trial, in light of this new evidence that has come to public attention. Knowing what she knows now, one juror said that if Mr. Davis is executed, it will "haunt her until her own death." That juror and three others submitted sworn statements to the Georgia Board of Pardons and Paroles, urging them to avert this injustice.

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Mecklenburg and The Big Picture

I agree with Ben. It just isn't right that, faced with a fight between prosecutors and scientists over a purely scientific issue, a respected newspaper looks at the dispute and basically calls it a draw. But I want to make sure we don't get too discouraged over this development. It seems to me that this story is just a fairly extreme example of the media's need to find two conflicting viewpoints, present them both no matter what the objective merit, and let readers decide where the "truth" lies without further explanation.

"Scientists: Earth is round. Prosecutors: Earth is flat. Media: Time will tell who's right. "

There is a bigger picture here, though, and it's important not to miss it. A study like the Mecklenburg Report, which cost lots of money, got huge publicity and was supported by powerful interests, could have set the reform movement back many years, or killed it altogether. The response could easily have been delay, confusion, disappearing resources, and a strengthening of resolve against reforms. Some suspect that that was precisely the goal of Mecklenburg, since it clearly wasn't designed to create any usable scientific data.

In the short term, of course, Mecklenburg did succeed in setting back reform -- as some of the quotes from the Tribune story make painfully clear. But that, fortunately, was not the end of the story or anything close. In the long run, Mecklenburg did not kill the reform movement, and it did not even set it back very far because of the remarkable response of the scientific community. In fact, in many ways the Mecklenburg report strengthened the hand of reformers.

The Mecklenburg Report was released only a little more than a year ago. In that time, scientists from around the country (many of whom are new to the field) have reviewed its results, discredited them, and repudiated them. In other words, in a very short time, Mecklenburg has created more awareness of the identification research and, after much scrutiny, more recognition of its scientifically-rigorous underpinnings. The controversy has also spurred a host of field studies that, because of the serious protocols, will create good, usable data -- data that can be used to make procedures better and to figure out if there are principles that do or do not translate from the lab to the field. Absent Mecklenburg, it is hard to imagine these studies coming into being so quickly, and their results will answer a question that, Mecklenburg or not, would have always been used to critique the lab results -- namely, the question of whether the laboratory results can translate into real world procedures.

This is all for the good. Although we already have field studies and real-world results that support many of the reforms, its always better to know more, particularly when we can know more quickly. Because of the resources and attention Mecklenburg has focused on the issue, we will in very short order have more good scientific results from the field. Those results will then inform the progress of which procedures to reform and how, and their existence will take away from the skeptics their current refrain about Mecklenburg being the "only" field study that has attempted to determine how reforms work in the real world. Those reports will prevent anyone's ability to delay longer by seeking field studies or the results from field studies.

It's highly unlikely that the goal of the Mecklenburg report was to highlight the rigorous nature of eyewitness identification science. It's also unlikely that anyone anticipated a response to Mecklenburg that was this fast, this focused or this rigorous. But it's looking like that will be the result, and that very soon there will be no lingering questions about whether and how the scientific principles work in the real world.

The media might say that only time will tell. My money is on the science.

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Lipstick on a Pig, Part Deux: Scientists vs. Prosecutors

We reported recently that the so-called "Illinois Report" on lineup procedures was found to be unscientific, unreliable, and generally adds no value to the dialogue on the most accurate and reliable police lineup procedures. Today, the Chicago Tribune is running a story, in the wake of the definitive debunking (PDF) of that police-sponsored report from Chicago, suggesting that the best lineup format has yet to be identified.

Two problems with this characterization strike me with equal force. The first problem is that the "disagreement" is one of conflicting agendas, not unresolved questions of science. Scientists, with their well-known bias in favor of facts, are in general agreement that sequential lineup procedures are less likely to put innocent people in prison. Every peer reviewed study on the topic bears out this finding. A meta-analysis (PDF) was conducted by leading psychologists to extrapolate the comparative accuracy rates of the two types of procedures, and the clear finding was that sequential lineups are far less likely to result in an innocent person being identified. When "moderator variables" are considered, the two methods are also largely equivalent in their likelihood of bringing about a correct selection of the actual perpetrator, when he is present in the lineup. The general consensus among scientists is that "sequential lineups are superior."

To the extent that there is disagreement on this point, it is not a disagreement among scientists or any sort of conflict in empirical findings. Rather, it is an objection by prosecutors at the audacity of scientists who dare to suggest that science should inform criminal justice policy. After all, the Chicago Police Department has been doing lineups for decades. Who are these scientists to tell them their procedures are flawed? It's like a bunch of M.D.s telling cigarette manufacturers that smoking causes cancer.

So the Illinois Report manages yet again to avert attention from the uncontroverted findings of social scientists, namely that sequential lineups are less likely to result in wrongful convictions. To characterize the status of the debate as "not yet resolved" is to fall prey to the prosecutorial agenda to resist reform at any cost; it's tantamount to concluding that the smoking/cancer link has yet to be established because Philip Morris executives find that fact to be in conflict with their profit motive. Except that it's a little less clear what interest is being protected by the prosecutors who resist lineup reforms, since presumably they share the interest in prosecuting actual criminals, while protecting the innocent.

The other problem with the Chicago Tribune's framing of the debate on lineup reform is the myopia with respect to the simultaneous-vs.-sequential question. The fact is, the recommendation that lineups be presented one person at a time rather than all at once is a single bullet point amongst a long list of recommendations to make lineup procedures more reliable. To borrow some words from eyewitness researcher Gary Wells:

[L]et's not become myopic because of the sequential lineup. Let’s not forget that we need to institute a broad range of improvements to lineup procedures that make the terms "biased procedure" and "motions to suppress based on suggestive procedures" mere memories from the past. I continue to be amazed as to why prosecutors are not at the forefront of this effort to jettison suggestive procedures. Do prosecutors like to have these "motion to suppress identification" hearings? Of course not. Would not prosecutors prefer to have cleaner identifications to carry forward to trial? Of course they would. Are prosecutors at the forefront of efforts to: (1) improve instructions to witnesses, (2) select better fillers for lineups, (3) implement procedures that eliminate influence from the lineup administrator, (4) assess eyewitness certainty in an unbiased manner, (5) make sure that full records are kept? The answers are (1) no, (2) no, (3) no, (4) no, (5) no. I apologize to my prosecutor friends in Clinton, Iowa, in New Jersey, and in other places who are clear exceptions to this characterization of prosecutors not assuming leadership roles on identification issues. Still, the failure of law enforcement to significantly improve their lineup procedures is primarily because prosecutors have not pressed for these improvements.

With 27 wrongful convictions revealed by the Innocence Project in Illinois alone -- 19 of which resulting from faulty eyewitness evidence -- you'd think Illinois prosecutors would be eager to put themselves at the forefront of the reform effort, rather than fighting tooth-and-nail to preserve status quo procedures with a long track record of failure.

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New Lineup Rules Pass in NC

With the passage of the Eyewitness Identification Reform Act earlier this week, police across North Carolina are now required to adhere to certain best practices with respect to lineup procedures, which have been shown to reduce the likelihood that innocent people will be identified from a lineup.

The reform measures include "blind" administration of lineups, where someone not connected to the case who doesn't know which person is the suspect will be required to conduct the lineup, to prevent that person's knowledge from sending inadvertent cues to the witness. Lineups must also be conducted sequentially (one photo at a time) as opposed to simultaneously, which has been shown to reduce the problem of "relative judgments," where witnesses have been observed to pick the person who looks "most like" the culprit from the group, even when, in many cases, that person is innocent. Sequential presentation of lineup members has been shown to reduce guessing in general, which is thought to be a primary cause of eyewitness-related wrongful conviction.

Under the new legislation, lineup administrators in North Carolina will also be required to take confidence statements from witnesses, in their own words, immediately following an ID. Administrators are also prohibited from giving any feedback or making comments of any kind prior to recording that confidence statement, in order to reduce the likelihood that the witness's confidence will be distorted by intervening influences.

Lineups in North Carolina must also be videotaped whenever practical, and when not, an explanation must be documented, in addition to rigorous detail relating to the lineup procedure itself, including retention of the photographs themselves in photo lineups, the source of the photos, the identities of the individuals, and any words used by the witness to describe an identification.

Remedies for noncompliance include, at the court's discretion, suppression of ID evidence at trial, as well as jury instructions on the effect of noncompliance on the reliability of identification evidence.

The findings of the General Assembly are also interesting:

(1) Throughout the nation and in North Carolina innocent people have been accused or convicted of serious crimes because of mistaken eyewitness identification.

(2) Mistaken lineup identifications distract law enforcement agencies from apprehending perpetrators.

(3) Reports of the United States Department of Justice, the American Bar Association, 25 years of peer‑reviewed scientific research, and the experiences of practitioners across the country indicate that the accuracy of eyewitness identification can be greatly enhanced by the use of "blind" administrators, instructions to the witness, confidence statements, and the proper composition of lineups.

The text of the bill is here. More media coverage here.

As North Carolina joins the growing list of states adopting similar legislation, it is becoming increasingly clear that lawmakers are running out of patience for remedying the wrongful conviction problem. Let's hope states like Georgia will be quick to follow suit, despite Georgia and other states' prosecutors' continued resistance to practical measures that are demonstrated to reduce the conviction of innocents.

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Two New Studies Conclude: Faulty IDs Caused "Thousands" Of Wrongful Convictions

The New York Times reported this weekend that two new studies have looked closely at the wrongful conviction epidemic, and have concluded that there are literally thousands of people serving sentences in prison for crimes they did not commit.

The first, "Judging Innocence", is soon-to-be-published in the Columbia Law Review, conducted by University of Virginia Professor Brandon Garrett. Professor Garrett's study systematically examined all of the DNA exonerations and concluded that "the leading cause of the wrongful convictions was erroneous identification by eyewitnesses, which occurred 79 percent of the time. In a quarter of the cases, such testimony was the only direct evidence against the defendant." Other leading causes of wrongful convictions were faulty forensic evidence, unreliable snithc testimony and false confessions.

As the Times reports, Professor Garrett's study also "strongly suggests . . . that there are thousands of people serving long sentences for crimes they did not commit but who have no hope that DNA can clear them." This suggestion is based on the fact that so many DNA exonerations have occurred despite the fact that DNA evidence onlly exists in a small subset of cases.

The second forthcoming study, by Professors Samuel Gross at Michigan Law School and Barbara O'Brien of Michigan State, reached similar conclusions. Specifically, the Michigan study concluded:

"The main thing we can safely conclude from exonerations is that there are many other false convictions that we have not discovered," the Michigan study said. "In addition, a couple of strong demographic patterns appear to be reliable:

Black men accused of raping white women face a greater
risk of false conviction than other rape defendants; and young suspects, those under 18, are at greater risk of false confession than other suspects."

One other important point from the studies: "The courts performed miserably in ferreting out the innocent." Among other things, that really needs to change, and reforming ID procedures is one way to make it happen.

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Troy Davis Case Spotlights Eyewitness Fallibility, Drives Georgia Reform Effort

The Atlanta Journal-Constitution has a story today on the fallibility of eyewitness testimony, in connection with the ongoing Troy Davis case. The article highlights the systemic problem of wrongful convictions resulting from faulty eyewitness testimony, including all six DNA exonerations in Georgia over the last eight years, all of which resulted from inaccurate eyewitness evidence.

To explore the laundry list of problems with the eyewitness evidence in Mr. Davis' case, the defense team hired cognitive psychologist and eyewitness expert Dr. Jeffrey Neuschatz. Needless to say, he "found numerous concerns with the identification of Davis as the man who fatally shot Officer Mark Allen MacPhail in a Burger King parking lot on a summer night in Savannah."

Whether or not Neuschatz's analysis will be enough to sway the Board of Pardons and Paroles to permanently stay Mr. Davis' death sentence remains an open question.

Neuschatz's report has been filed with both the parole board and in Davis' court appeals for a new trial. Neuschatz analyzed the eyewitness identifications using contemporary standards to determine if there were flaws in the procedures used to implicate Davis.

Among other factors, Neuschatz highlighted issues present in the Davis case relating to the "mugshot effect (PDF) and the "weapon-focus" effect:

Neuschatz concluded that one witness, Dorothy Lee Ferrell, told police she had seen Davis' picture on the news as a suspect in MacPhail's slaying. "Prior exposure to the suspect's picture increases the likelihood that the suspect will be picked out of the lineup," Neuschatz wrote.

Neuschatz also made other observations, including: When a weapon is involved in a crime, witnesses tend to focus on it, rather than the suspect; the passage of time, in many cases 10 days, between the crime and the identification of Davis. Another witness testified that he had been drinking on the night of the shooting.

The Davis case has also given momentum to an ongoing effort to reform police procedures in Georgia relating to the collection of eyewitness evidence. Following the sixth DNA exoneration in Georgia earlier this year, by which Willie Williams was released from prison after serving 21 years for a rape he didn't commit, state Rep. Stephanie Stuckey Benfield (D-Atlanta) attempted to get a bill passed that would have required Georgia police to use procedures that have been demonstrated to make eyewitness evidence more reliable. Predictably, prosecutors fought the legislation, and for now, managed to win the day.

Despite the legislative loss, House Speaker Glenn Richardson supports the reforms, and appointed Rep. Benfield to chair a committee to investigate the connection between flawed police identification procedures and the systemic wrongful conviction problem in the state. Hearings are scheduled for the fall, where Barry Scheck of the Innocence Project, among others, is expected to testify.

The Georgia Innocence Project, which has played a role in three of the state's exonerations, is promoting lineup standards.

"In all six of those [Georgia] cases, the victims, and sometimes witnesses as well, incorrectly identified the attackers," said Lisa George, spokeswoman for the project. "It's not that these victims or witnesses were lying; it's just that they got it wrong. Human memory is extremely fallible."

Predictably, Rick Malone, executive director of the Prosecuting Attorneys' Council of Georgia, said "prosecutors don't object to better standards for lineups, but they don't want them codified into state law." In other words, Georgia prosecutors support preventing the conviction of innocent people in theory, just not in practice.

Fortunately, cases like those of Mr. Davis and Mr. Williams are driving the effort to reform police procedures that are unmistakably linked to mistaken eyewitness testimony, and inform those procedures with well-settled scientific findings that reveal a better, more reliable methodology that is less likely to distort the memories of well-meaning witnesses. It's time for Georgia prosecutors to catch up, and stop standing in the way of efforts to keep innocent people out of prison.

In related news, check out Emory Law School's new project to Save Troy Davis, sponsored by their Indigent Criminal Defense Clinic.

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In the Pope's Own Words

We managed to obtain a copy of the Pope's letter (PDF) to Georgia Governor Sonny Perdue, calling for the commutation of Troy Davis' death sentence, in light of "strong claims of innocence," including now-recanted eyewitness testimony that appears to have resulted from police coercion.

More from the letter:

This particular case is all the more disturbing inasmuch as the public record indicates that most of the "witnesses" have recanted their testimony, alleging that their statements were coerced; Mr. Davis' conviction was not based on any physical evidence and the murder weapon was never found. While I am certain that these facts have been presented to you, I reiterate them so as to underscore that this is a case which merits very special consideration. It is deeply troubling taht the State of Georgia might proceed with this execution, given the lack of evidence and the strong claims of innocence in this particular case.

Read it for yourself. Click below.

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Pope's Letter Questions ID Evidence

Following up on Ben's post, it appears that the Pope's letter didn't just ask for Mr. Davis' life to be spared but also observed, as the Atlanta Journal Constitution pointed out only a few moments ago in its most recent update to the story, that "Davis' pending execution is "disturbing" given that many witnesses have come forward to say that their testimony implicating Davis was false, and that other witnesses have come forward to identify another man as the killer."

In other words, the Pope apparently expressed concerns about the reliability of the underlying evidence in the case -- that is, the eyewitness testimony. This is unusual. As Richard Dieter of the Death Penalty Information Center in Washington pointed out, "the Catholic Church doesn't usually go into details of the case, as it did in Davis.'"

The bottom line: The Pope = Infallible. Eyewitness ID Evidence = Not infallible.

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The POPE Calls on Georgia to Spare Troy Davis

The Pope himself has formally called on the state of Georgia to spare Troy Davis from his death sentence.

The Vatican delivered a letter to Governor Sonny Perdue on Monday, the same day Mr. Davis's stay was granted.

"In the name of Pope Benedict XVI, I am respectfully asking you to commute Troy's sentence to life in prison without parole," wrote Monsignor Martin Krebs, the office's charge d'affaires.

Meanwhile, the Board of Pardons and Parole is considering the new evidence presented to it, and in their own words:

Scheree Lipscomb, a spokeswoman for the board, said it has received thousands of letters from Davis supporters, including U.S. Rep. John Lewis, a civil rights icon, and it will treat the pope's letter like all others. She said the board is aware of the letters, but its responsibility is to review the facts in the case.

Hopefully they will consider the fact that the Pope and everyone outside of the Georgia DA's office agrees that refusing to commute Mr. Davis's sentence would be a serious miscarriage of justice.

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Troy Davis Granted 90-Day Stay

Great news: Troy Davis was just granted a 90-day stay of his death sentence, averting his execution scheduled for tomorrow night. The Pardon and Parole Board reached their decision to stay the execution after less than an hour of deliberation. Hopefully a more sensible solution will be reached over the next months and Mr. Davis can, for the first time, exercise his right to a fair trial.

More coverage at MSNBC and the Washington Post.

UPDATE: Press Release from the Parole and Pardon Board is here, and the order granting the stay is here (PDF). The order states, among other things, that:

The members of the Georgia Board of Pardons and Paroles will not allow an execution to proceed in this State unless and until it is convinced that there is no doubt as to the guilt of the accused.

For the record, that makes the Georgia standard for execution a higher standard, even, then beyond a reasonable doubt.

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Will Georgia kill an innocent man tomorrow night?

More press coverage of the Troy Davis, the day before his scheduled execution.

Time Magazine: Will Georgia kill an innocent man?

And the Atlanta Journal Constitution, with a transcript of Congressman John Lewis's testimony at the Parole and Pardon Board hearing this morning, which starts off:

Good morning, Chairperson Hunt and members of the State Board of Pardons and Paroles.

It is a privilege to address you today, and I want to thank you for hearing me. I will not speak long, because what I have to say is very simple. I do not know Troy Anthony Davis. I do not know if he is guilty of the charges of which he has been convicted. But I do know that nobody should be put to death based on the evidence we now have in this case.

Evidence that is dramatically different from what the jury heard. Evidence that I understand no court has ever considered, for technical reasons that have nothing to do with the truth.

And from the Guardian: Death of an Innocent, Georgia Style

Mr. Davis's website and how you can help here.

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Update and Press Coverage of Troy Davis Case

AP has picked up the story of Troy Davis, the Georgia man on death row for a murder he maintains he did not commit. His lawyers filed a motion last week seeking a new trial, based on sworn affidavits by witnesses from the 1991 trial who now say they lied due to police coercion when they testified against Mr. Davis. The motion was denied, and defense lawyer Jason Ewart planned to appeal that ruling Friday night. A clemency hearing is set for Monday morning, before the GA Board of Pardons and Paroles.

More Georgia press coverage here. Click here to send a letter to the GA Board of Pardons and Paroles to urge them to stay Mr. Troy's execution, scheduled for Tuesday night.

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New Wikipedia Article on Eyewitness ID

A new article on eyewitness ID recently appeared on Wikipedia. Check it out.

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Innocence on Georgia Death Row?

Troy Anthony Davis is currently on death row in Georgia, for a 1991 murder conviction based exclusively on eyewitness testimony. There is no physical evidence connecting Mr. Davis to the crime. Since the trial, all but two of the government's non-police witnesses have recanted their testimony incriminating Mr. Davis, many citing police coercion in sworn affidavits, (PDF) including threats of charges against the witnesses themselves if they refused to implicate Mr. Davis in sworn statements. No murder weapon was ever found.

In the words of one "witness" whose testimony was relied upon at trial:

"I kept telling them that I didn’t know. It was dark, my windows were tinted, and I was scared. It all happened so fast. Even today, I know that I could not honestly identify with any certainty who shot the officer that night."
[...]
"After the officers talked to me, they gave me a statement and told me to sign it. I signed it. I did not read it because I cannot read."

And another:

"I nodded and repeated what they said, whether it was true or not.... I am not proud for lying at Troy’s trial, but the police had me so messed up that I felt that’s all I could do or else I would go to jail."

Summaries of the recanted witness testimony are here. Nine other individuals have issued sworn affidavits implicating another man as the culprit.

Amnesty International has signed on to Mr. Davis's cause, and has issued a detailed report on his case. AI asks supporters to send letters to the State Board of Pardons and Paroles in Georgia, urging that his death sentence be commuted. All avenues of judicial relief have been exhausted, and Mr. Davis is scheduled for execution on July 17.

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NO WAY TO PUT LIPSTICK ON THIS PIG: PANEL OF SCIENTIFIC EXPERTS FINDS THAT HIGHLY-PUBLICIZED CHICAGO POLICE STUDY OF ID PROCEDURES IS JUNK SCIENCE

Approximately a year ago, a highly-publicized study out of Illinois claimed to have raised questions about some of the procedural reforms being adopted around the country to improve the handling of eyewitness evidence. The study, taking the form of a pilot project spearheaded by Chicago police across three counties, purported to reveal that current identification procedures protected against mistaken identifications better than reforms (PDF) proposed by respected social scientists, based on extensive research on eyewitness memory. In other words, the Chicago police were happy to report that, notwithstanding the 19 wrongful convictions recorded in Illinois that resulted from faulty eyewitness evidence, everything was just fine and no pesky (scientific) reforms were needed.

Despite the fact that the "report" trumpeting the study was never subjected to peer review, and despite the fact that it was authored by a lawyer for by the very same Chicago police department that had fought reforms in Illinois for many years, these "findings" were trumpeted on the front page of the New York Times and have since served as serious impediments to reform in Legislatures around the country.

But something seemed rotten in Illinois, since the study's results were at odds with the recommendations of nearly every scientist who had studied the issue and the methodology underlying the pilot project appeared something short of scientific. According to one article on the topic, "the design of the project contained so many fundamental flaws that it is fair to wonder whether its sole purpose was to inject confusion into the debate about the efficacy of sequential double-blind procedures and to thereby prevent adoption of the reforms." Leading eyewitness researcher Gary Wells described the study's methodology as "extremely problematic."

Bearing out these suspicions, a new analysis was released yesterday, in which a "Blue Ribbon" panel of social science luminaries concluded that the study was "crippled by a design flaw that made the study's conclusions a dangerous basis for shaping public policy." This scholarly article does a fine job of showing that the Illinois pilot project on eyewitness lineup procedures was a sham, and a scandalous waste of taxpayer dollars. On that point, six out of six respected scholars agree.

The panel now weighing in includes Nobel Laureate Daniel Kahneman of Princeton and Harvard Professor and author Daniel Schachter, and other eminent scholars across the social sciences. In their own words, (PDF) "the design [of the Illinois study] guaranteed that most outcomes would be difficult or impossible to interpret," and the study's fundamental flaw has "devastating consequences" with respect to its scientific merits.

The story of the Chicago ID report is, in other words, one that is sadly familiar these days. Facts are cooked to suit the theory. The cooked facts are then trumpeted to an uncritical media, and the public understandably gives its officials the benefit of the doubt. But sooner or later the truth comes out, as it did here when the Illinois "study" received the sort of critical scientific analysis that should have occurred all along. In fact, this was just the sort of scientific rigor that the Legislature ordered when it appropriated tax-payer funds to conduct the study in the first place.

We now know that the failure to heed the Legislature's guidance resulted in the waste of many taxpayer dollars and, at least as importantly, the waste of a critical opportunity to determine how to fix a system that is currently relying too heavily on demonstrably mistaken eyewitness testimony. As the scientists suggest, the failure of Illinois now means that we need to await the results of properly-conducted studies in other jurisdictions to obtain this information.

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A Bad ID, and Bad Law, in Louisiana

In a recent Louisiana bench trial, eyewitness ID expert Robert Shomer testified in front of a judge in the 21st Judicial District on a collection of factors tending to undermine the reliability of eyewitness evidence. The local press reports:

Had the robbery case been tried before a jury, rather than a judge alone, the testimony of the specialist in eyewitness identification would not have been allowed. Because the defendant had waived his right to a jury trial, the judge permitted the testimony of Robert Shomer, an experimental psychologist who has taught at Harvard and UCLA.

The ID in this case was a police procedure in which the cops showed the witness a photo lineup including five color photos and one in black and white. It shouldn't be hard to guess which one was the suspect, which one got picked, and which one ended up on trial and found guilty.

Though it didn't persuade the judge in this case, Shomer testified as follows:

For a picture lineup to be fair, the pictures must be presented in the same format and should match the initial description of the perpetrator to the same extent, he said.

And:

Like a scientific study, a photo lineup should be presented in a double blind manner, he said. When the effectiveness of a drug is being studied, the nurse actually administering the drug shouldn’t know which patients are receiving the real drug and which are getting the sugar pills. That way, the nurse can’t, either consciously or accidentally, provide any indications to the patients, Shomer said.

In a photo lineup, the person showing the pictures to the witness shouldn’t know which photo is that of the suspect. Without intending to do so, a police officer might provide the witness with subtle clues as to which picture is that of the suspected person, Shomer said.

Unfortunately in this case, the judge was unable to get past the positive ID, notwithstanding the fact that it resulted from an unacceptably suggestive police procedure clearly calculated to induce the witness to pick their suspect.

There's no question in my mind that this sort of police misconduct should result in an exclusion of any identification evidence, even under the ill-conceived current due process standard of Manson v. Brathwaite. And defense attorneys have to keep pushing that the standard be applied with teeth until Manson is eventually revisited by the Supreme Court.

Until then, expert testimony would seem to be an important remedial measure to educate juries about the fallibility of eyewitness testimony and stave off wrongful convictions. Except in states like Louisiana -- and there are many states like Louisiana in this respect -- where the courts don't allow expert testimony in front of juries because they think the work of battalions of social scientists is common sense. This, despite clear evidence (PDF of poll of DC jurors) that it is far from common sense.

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Three California Wrongful Conviction Bills Advance

The California Assembly Public Safety Committee cleared three bills yesterday targeted at reducing wrongful convictions, which we reported on earlier in the process. One is aimed at curbing false confessions by way of mandatory recording of confessions, the second requires corroborating evidence for jailhouse snitches, and the last is an eyewitness ID bill that would required the California attorney general and others to devise a set of guidelines for conducting lineups.

Governor Schwarzenegger vetoed similar bills last year, but the bills have reportedly been modified this session to accommodate Arnold's concerns. Hopefully we'll see a better result this year, and the Governor will show his commitment to reducing wrongful convictions in California.

Here's the text of the bill in PDF.

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