The Power of Suggestion (and a Very Weird Lineup)

The Wisconsin State Journal reports this morning on an old case that's come back into the light for a re-trial, the facts of which read more like Midnight in the Garden of Good and Evil meets Serpent and the Rainbow than a case in a US criminal court. It's not quite a voodoo priestess making potions in Bonaventure Cemetery in the twilight, but in some key ways, it's not far off.

The author makes reference to a police lineup that "involved practices that would likely be unusual for police today." My first reaction was try me, because when you spend a certain amount of time every week scouring case law for weird eyewitness procedures, you tend to find some pretty weird eyewitness procedures. But Mr. Treleven was right. These procedures are even weirder than what I'd seen.

But a little background about the case, just to set the stage. Back in the spring of 1980, a UW-Madison student named Charise Kamps was found raped and strangled in her apartment, just after she finished her first year of college. One eyewitness, a man named Marcel Del Rico -- who at the time was living as a woman named Ricci Orebia -- claimed to have seen someone leaving Kamp's apartment that night, but said there was no way she could make an ID.

But the cops had a suspect, and the only thing they lacked was evidence of any kind. So they put their heads together and came up with a plan that was bound to get them a nice reliable ID: they hypnotized the witness, and then subjected her to a live lineup on the street, which took the form of parading the suspect, along with cops wearing wigs, in front of the witness's porch. Astonishingly, the witness picked the man who wasn't wearing a wig. But even under hypnosis, he knew the lineup was rigged, and testified to that effect at trial. Nonetheless, he "gasped" when the suspect was presented, and that gasp was enough to put Ralph Armstrong away for the last 26 years. (Notwithstanding the fact that he claimed to have been shown a photograph of the suspect at the hypnotist's office, prior to the lineup.)

Mr. Armstrong's case was reviewed in 1983, and the Wisconsin Supreme Court upheld the conviction and declared that hypnosis was a perfectly legitimate method of refreshing the memories of witnesses -- and apparently enhancing the reliability of lineups. (And I thought the Manson/Biggers reliability factors (PDF) were ill-informed.)

I could be wrong, but I'm pretty sure the lineup procedures used back in 1980 wouldn't pass muster under Wisconsin's current Model Policy and Procedure for Eyewitness Identification (PDF).

In 2005, the Wisconsin Supreme Court granted a new trial, on the strength of new DNA evidence. As psychologist Steven Clark observed in support of Mr. Armstrong's petition for review, "a gasp is not an identification."

Now, against his strong preference, Mr. Del Rico is testifying again, about the same hazy memories and bizarre police procedures. In a pre-trial hearing yesterday, his most frequent response to questions about the events back in 1980 was "I don't remember." He wrote a letter to prosecutors asking to be spared from going through this again, but it appears that his wish will not be granted.

Mr. Armstrong's case is now in the able hands of attorneys Jerome Buting, Keith Belzer, and Barry Scheck, and is set to proceed around the end of this year.