Wednesday, September 26, 2007

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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Monday, September 17, 2007

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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Monday, September 10, 2007

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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Thursday, September 6, 2007

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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