Another Dallas Man to be Exonerated after 27 Years in Prison

As we've mentioned before, Dallas County leads the country in wrongful convictions. Most of those wrongful convictions resulted from faulty police lineup procedures. Yesterday, the number of wrongfully convicted individuals to be freed as a result of DNA testing in Dallas County grew to 15, as news broke that DNA proved that Charles Allen Chatman could not have committed the rape for which he spent nearly 27 years in prison.

In Mr. Chatman's case, previous DNA tests failed to yield discernible profiles, but the more recent attempt to develop a Y-STR profile (a powerful method of isolating male DNA from a mixture, often successful in rape cases where tradition DNA testing was not) was successful, and definitively cleared Mr. Chatman:

State District Judge John Creuzot, who pushed for the genetic test that cleared Mr. Chatman, scheduled a hearing for this morning during which he is expected to order the 47-year-old man released on a personal bond and find him to be innocent.

"My attitude is that if the man is innocent, he needs to be free," the judge said.

As we've also mentioned previously, Dallas County is at least ostensibly making efforts to remedy its significant wrongful conviction problem by taking part in a federally funded study designed to identify more reliable protocols for police lineup procedures. It remains to be seen, however, whether the study will be a legitimate scientific endeavor, or just another attempt to rubber-stamp the same status quo procedures that led to all these wrongful convictions.

UPDATE: As Maggie at Of Counsel points out, this may be the first time that an exoneration investigation was actually prompted by a judge. Hopefully others will follow Judge Creuzot's excellent example.

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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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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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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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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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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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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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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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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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New EyeID Resource at UT

The University of Texas law school just launched the Actual Innocence Awareness Database, with a section devoted to "resources which address wrongful convictions resulting primarily from inaccurate, mistaken or perjured eyewitness identification." Looks like it has potential to be a great resource.

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New Dallas DA Comes in Swinging -- At Bad ID Procedures

As reported over at Grits for Breakfast and at the New York Times, the new Dallas District Attorney -- a career defense attorney until his election to DA in November -- has some new ideas about prosecuting crime. This shouldn't seem novel, but in Craig Watkins' own words, "I lock them up if they're guilty." But against the backdrop of 13 DNA exonerations in the last six years under the old leadership in Dallas County alone, a focus on prosecuting the guilty comes as a welcome change.

Among the changes Mr. Watkins has already brought is a dramatic reform to police lineup procedures, namely the use of double-blind procedures, where the person administering the lineup is unaware of the identity of the suspect. Studies like the Hennepin County Blind-Sequential Pilot Project (PDF) have generated promising results, suggesting that the use of blind procedures can play a key role in reducing the number of innocent people selected from police lineups.

In other fronts in Mr. Watkins' attack on what he terms the "conviction-at-all-costs" mentality of his predecessors, the new DA has put an end to the practice of destroying files in death penalty cases following convictions, and has partnered with the Innocence Project of Texas to review 400 new cases for possible wrongful convictions. He is also taking steps to educate prisoners, and provide drug rehab in custody.

To his critics -- who Watkins says "are just waiting for me to make a mistake" -- he says: "It doesn't make any difference. Let them be on the wrong side of history."

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"Sometimes I wonder if death ain't better"

Roger Dean Gillispie has been in prison for 16 years for three rapes he swears he didn't commit. He has maintained his innocence from the outset, and the Ohio Innocence Project has been working on his case since 2003. Mr. Gillispie is currently awaiting a decision from the parole board, expected early next week, on whether or not it will reconsider its decision last month to deny him parole.

In 1990, Mr. Gillispie was charged with the rape of three women, in a cold case from 1988. The only evidence purportedly linking him to the crime was a set of identifications by the victims that flowed from a gravely flawed police procedure, in which police clearly suggested to the witnesses that Mr. Gillespie was the man they should pick. His face was larger in the frame than anyone else in the lineup. His face was against a yellow background on photo paper with a matte finish, whereas the other members of the lineup appeared against blue backgrounds on glossy paper. "Gillispie's photo was all but circled and starred," leaving no question in the minds of the witnesses who the investigating officer wanted them to ID. Following the well-crafted cues, all three witnesses selected Mr. Gillespie as the perpetrator, and despite the absence of any forensic or other corroborating evidence, the eyewitness testimony was sufficient to get Mr. Gillispie convicted by two juries.

Several key details about the attacker's description conflicted with Gillispie's actual traits, to such a degree that the original investigating officers ruled him out as a suspect on those grounds alone. His hair was a different color, he had pale skin instead of a dark tan, thick chest hair as opposed to none, and a thick Kentucky accent where the perpetrator did not. Yet almost certainly because of the manner in which the lineup was constructed, Gillispie was selected by all three witnesses.

Also of note is the fact that there is another man from the same area -- an ex-prison guard -- who fits the original description of the attacker to every detail, including his height, weight, hair color, and his "commanding voice." Further, the man who Gillespie's attorneys believe should have been the prime suspect appeared to betray knowledge about the case, without any cues from the attorneys -- he repeatedly referred to the "ladies," without any mention having been made of multiple victims. The same man was arrested for a similar crime in 1990, but was released when the complaining witness failed to cooperate. Mr. Gillispie had a clean record up until this unfortunate turn of events.

Mr. Gillispie continues to maintain his innocence 16 years later, despite his knowledge that an admission of guilt might get him an earlier parole. Weighed against his 16 years in an Ohio state prison, in his own words, "Sometimes I wonder if death ain't better."

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Coke Machines, Willie Nelson Lookalikes, and the Failure of Manson v. Brathwaite

The following, from a real court decision:

Barnett testified that Mrs. Hayden told him the intruder was short and stocky, approximately 5'4 to 5'6 in height, that he had long hair, and that he was in his middle 20's. At trial, Mrs. Hayden testified that she told Barnett that the intruder was between 5' and 5'4 tall, that he had red hair, and that he had a red bandana tied around his head. Later in the day, after defendant had been apprehended, Deputy Barnett called Mrs. Hayden, told her he thought they had caught the person who had broken into her home, and asked her to come to the courthouse to see if she could identify the suspect. She went to the courthouse where she viewed a lineup. The lineup, which was reminiscent of a scene from the television show Saturday Night Live, consisted of the defendant, who bore a resemblance to a diminutive look-alike of country singer Willie Nelson, red bandana and all, five other men, the shortest of whom was 5'11 tall, and a red Coca-Cola machine. Defendant was the only person in the lineup who had red hair and who was wearing a red bandana as a headband. At the motion to suppress hearing, Mrs. Hayden was asked if defendant was the only person in the lineup with red hair. Her reply was, "I didn't notice the other ones because when I saw him, I knew it was him."

In case you missed it, or tend to skip over block-quoted text, the police in State v. Kiplinger (591 S.W.2d 207 (Mo.App. S.D. 1979)) used a Coke machine as a filler in a lineup, presumably to minimize the extent to which a red-headed suspect -- wearing a red bandana -- stood out from other members of the lineup. Further to that end, the police included five other men 5'11" or taller, to draw attention away from the 5'4" miniature Willie Nelson lookalike.

But the most astonishing thing about this case is not the lineup itself, nor is it the egregious police negligence, incompetence, and general disregard for the rights of the accused. The most astonishing thing about this case is the fact that the appellate court held that the lineup did not run afoul of due process.

This case is a stark illustration of the failure of the Manson v. Brathwaite due process standard for the admissibility of eyewitness identification evidence. The Supreme Court in Manson told us that "reliability is the linchpin" in the admissibility analysis for eyewitness evidence, which on its face doesn't sound all bad. When there is a suggestive procedure, courts should look to other "indicia of reliability" -- the classic factors, including the witness's opportunity to view the perpetrator, the accuracy of the prior description, and (science notwithstanding) the confidence of the witness.

But the Manson court didn't stop there. The Supreme Court held that against those "indicia of reliability" should be weighed "the corrupting effect of the suggestive identification itself." Which is to say, the presence of suggestive procedures was not intended to be relegated only to the first prong of the analysis, as a threshold requirement to be met prior to engaging in a reliability analysis. Rather, the corrupting effect of the suggestive procedure itself was intended to be carried over into the second step of the analysis, for a determination as to whether or not the "indicia of reliability" outweigh that effect. In a case like the one quoted above, at best it should be impossible to extract any indication of independent reliability from a procedure so corrupting, such that the corrupting effect should easily be found to win the day.

But instead, that court -- and nearly all courts since -- managed to omit a fundamental step of the analysis set forth in Manson, namely that the corrupting effect of the procedure itself should be considered in determining the overall reliability of the identification evidence. The unfortunate reality is that Manson has been interpreted to mean, in direct contradiction to the clear language of the decision, that if the circumstances surrounding the original viewing of the perpetrator are found to be sufficiently reliable, even the most egregiously suggestive procedure will be excused and overlooked.

The result is that courts allow eyewitness evidence in front of juries from procedures that they themselves liken to a Saturday Night Live skit. I'm not sure that the Comedy is the right literary vehicle for the story of wrongful conviction.

(Thanks to occasional fellow-blogger Zeke for digging up this case.)

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Eyewitness ID Reform on NPR Today

Just got wind that NPR's show "To the Point" will be devoting today's show (live at noon on the west coast) to DNA and wrongful convictions, with a discussion on the reliability of eyewitness evidence and proposed reforms to police procedures to minimize future errors. Might be worth checking out:

DNA and Wrongful Convictions
MON MAY 7, 2007

After years in prison for crimes they didn't commit, hundreds of innocent people have been exonerated by DNA testing. Monday, on To the Point, can line-ups and other testimony from eye-witnesses be trusted? How can other mistakes be corrected? Is a flawed criminal justice system being repaired?

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Stages of Denial: The Numbers Are On Our Side Too

As Ben's post shows, many in the criminal justice process remain in the denial stage with respect to wrongful convictions. Before DNA, those same people repeatedly would say, with confidence, that innocent people were NEVER convicted in our criminal justice system. In the pre-DNA era, they disdainfully dismissed works like the Radelet study -- a pre-DNA study that concluded that 23 innocent capital defendants had been executed in the past 85 years -- pointing to its supposed flaws such as its reliance on "one-sided" materials like newspaper articles.

Of course, any pre-DNA attempt to demonstrate innocence, particularly post-humously and often years after-the-fact, would be subject to criticism by those who simply wanted to prolong the debate. Before DNA, it was simply impossible to definitively prove or disprove whether the criminal justice system wrongfully convicted people. If they wanted to, skeptics could continue to deny forever that such miscarriages of justice ever occurred, pointing to various "flaws" in exoneration cases that seemed to fairly definitively establish a miscarriage of justice.

Then the DNA exonerations came. And it was good. But not enough for the skeptics. At that point, it obviously became impossible for any rational person to deny that the criminal justice system sometimes convicted the wrong person. But when reformers then began to demand that the system take simple steps to fix what was now an identified and undeniable problem -- by, for example, reforming demonstrable problems in eyewitness identification procedures -- the skeptics began to question the scope of the problem, now demanding that reformers not only demonstrate the existence of the problem and its causes, but also its precise scope.

In other words, the skeptics once again wanted to prolong the debate by shifting it to even more unprovable territory. But even so, if it's numbers they want, it's numbers they'll get. Reformers are not afraid of the numbers because, while we'll never be able to establish precise error rates in the absence of some reliable measure of ground truth in every case, the numbers we do have themselves give rise to grave cause for alarm.

What numbers am I talking about? At the outset, its important to make clear that, for comparison purposes, we should look only at the number of criminal trials the system conducts, not the number of criminal convictions. Wrongful convictions are almost always convictions that occur following a trial, and thus the important question is how many of these trial verdicts are erroneous. Any attempt to include guilty plea convictions in the mix is simply an attempt to unfairly and artificially dilute the rate of wrongful convictions.

So the real question is how often factfinders convict people who claim at trial that they are innocent. The DNA exonerations themselves suggest that the scope of the problem is quite substantial. Why? Because testable DNA is available in only a small fraction of criminal cases -- the case must involve an item where the presence of absence of DNA is dispositive, which is not a common scenario -- and even in such cases, the physical evidence has often been destroyed before it could ever be tested. It's also not as though resources exist to routinely conduct testing in every eligible case or that there are lawyers who are available to take the results of those tests and to advocate for their clients on that basis. Given that the pool of cases in which DNA exonerations is possible is very small, the fact that the Innocence Project has managed to definitively exonerate 200 people from around the country suggests that the scope of the problem is substantial. Yes, it's "only" 200 people -- so far -- but its 200 people from the small group from which DNA testing could still be conducted and for which resources existed and trained, skilled lawyers were able to present the results to a court or the prosecutor.

The fact that so many innocent people have come to light under such circumstances tells us that we would inevitably get a lot more exonerations if we could establish ground truth in every case. Unfortunately, there is currently no way to do so.

But does that mean that we can only extrapolate an error rate from the exoneration numbers alone? No, we have at least two other numbers that provide us with some idea of the wrongful rate.

First, in Virginia, law enforcement authorities recently discovered a host of biological evidence from cases tried in the 1970's and 1980's. Before ordering DNA testing on all the evidence, Gov. Mark Warner ordered scientists to conduct DNA testing on a small, randomly selected percentage of sexual assault cases tried between 1973 and 1988 to determine if a more widespread DNA testing of the hundreds of convictions obtained during that time would be warranted. Of the 31 cases reviewed, two exonerations occurred. In other words, 6 percent of the randomly sampled cases tested resulted in exonerations. Predictably, both Virginia exonerations involved convictions that relied heavily on eyewitness testimony. See Michael D. Shear and Jamie Stockwell, DNA Tests Exonerate 2 Former Prisoners, WASH. POST., December 15, 2005, at A01.

Sure, its a small sample size. But its a random sample too, and if the criminal justice system has an error rate that is anything approaching 6% of the overall cases, the consequences are truly staggering. It would mean there are thousands of innocent folks sitting in jail around the country.

Second, we know that the FBI conducts DNA testing in a number of cases where criminal charges have already been filed (often based on eyewitness testimony), and that such testing often exculpates suspects. Unfortunately, the FBI has never made public how often DNA testing exonerates wrongly accused suspects. We have unofficially heard that the exoneration rate in such cases runs as high as 25%. Assuming that error rate is anywhere near accurate, and assuming that a similar error rate exists in cases where DNA can never rule out the suspect's guilt, such numbers would provide powerful (and quite frightening) evidence about the scope of the wrongful conviction problem in the criminal justice system.

On the question of numbers, as Ben points out, the precise ratio of wrongful convictions one is willing to tolerate ultimately boils down to a question of morality. Some agree with Ben Franklin and the Framers of the Constitution (as we do) about the importance of keeping the innocent out of jail, while others agree with the Former Chief of the Soviet Secret Police about the importance of locking up a lot innocent bystanders in an effort to get all the guilty culprits. Do you want to live in a free society that is strong enough to protect the innocent by providing meaningful civil rights and criminal justice protections for all its citizens, or do you want to live in a society that is so petrified by fear that it needlessly sacrifices the lives of innocent persons in order to obtain a "margin of safety" for those who are lucky enough not to be swept up in the net?


Whatever your moral position on this issue, its becoming clearer and clearer that our criminal justice system gets it wrong far too often. In the face of that reality, you can bury your head in the sand, or you can do something about it. We've chosen the latter course.

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Another Bad ID, an Unlikely Exoneree, and the Problem with DNA

Last week another faulty eyewitness identification was exposed, and another wrongfully convicted man was set free, thanks to the continued good work of the Innocence Project. Antonio Beaver spent more than ten years in Missouri prisons, after being convicted for a carjacking he didn't commit.

In some ways Mr. Beaver's case is much like other wrongful-conviction cases in which the (eventual) exoneree was convicted based on a bad eyewitness identification procedure. The police placed him in a live lineup in which he was one of two people wearing a baseball cap, and the only person with noticeable abnormalities to his teeth. The witness had described the perpetrator as an African-American man wearing a baseball cap with a gap in his teeth. Not surprisingly, he was selected from the lineup, and was convicted by a jury with no other evidence linking him to the crime.

What's different about Mr. Beaver's case is the nature of the crime for which he was convicted. In cases of carjacking and other similar offenses, it is very rare that testable DNA evidence is recovered from the crime scene, and thus it is similarly unlikely that those wrongfully convicted of similar crimes will have any hope of exoneration. However tenuous the foundation for the eyewitness evidence in the case, once a jury is convinced that the witness "will never forget that face," the defendant's fate is typically sealed. Mr. Beaver's sole good fortune in his unfortunate case was that the real perpetrator was observed to have bled on the door of the car, and a sample of that blood was preserved and eventually tested, clearing Mr. Beaver from any involvement.

But Mr. Beaver's case brings into focus an important fact that is often overlooked in discussions of DNA exonerations and the causes underlying wrongful convictions. While robberies rarely result in testable DNA evidence, they account for almost four times the number of arrests every year in the United States, as compared to rapes -- where DNA is often available for testing. More to the point, in a study (PDF, see p. 530) that examined all known cases of misidentification prior to the advent of DNA testing, misidentifications in robbery cases outnumbered those in rapes by more than two to one. Since the advent of DNA testing, however, exonerees falsely accused of rape account for more than 20 times the number of those falsely accused of robbery.

The difference? Robbers don't typically leave enough DNA at the crime scene for testing. But there's no reason to think any fewer people are wrongfully convicted of robberies now than before the advent of DNA testing. In fact, if we assume the ratio of misidentifications in robbery cases as compared to rape cases hasn't changed, and we make the (substantial) assumption that every person wrongfully convicted of rape between 1983 and 2003 was eventually exonerated, we are left to conclude that over 17 people per year are wrongfully convicted of robbery, or over 300 since 1989. In fact, only 6 of the exonerees between 1989 and 2003 were convicted of robbery. (See this Gross et al. article chronicling exonerations in the U.S., both pre-and post-DNA testing.) In the absence of DNA evidence to clear them and against the well-known force of a confident-but-wrong eyewitness at trial, their chances of walking free before their sentences are complete are small indeed.

All of this goes to illustrate that DNA is not enough to protect the innocent, because it only helps the "lucky" few. Which means that we need to focus on fixing the policies, procedures (PDF), and laws governing the collection and use of eyewitness evidence in criminal trials, and stop wrongful convictions before they happen in the first place.

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