Category Archives: Eyewitness identification

New Scholarship Spotlight: In Defense of American Criminal Justice

The Honorable J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit has published the above-titled article in the Vanderbilt Law Review.  It argues that the system is not nearly as broken as many critics allege, some convictions of innocents is part of a necessary trade-off, and that the reforms pushed by the Innocence Movement often go to far.

Have a read here.

17, on Death Row …. and Innocent

Shareef Cousin was once the youngest person in the US on death row.

His case is yet another example of how mistaken (or false) eyewitness testimony can override an airtight alibi.  And this one was also compounded by a Brady violation regarding the eyesight of the witness, a lying detective, and coerced snitch testimony.

Cousin has recently authored a CNN article decrying the death penalty.

This quote from the article:  “It is hard to argue that the death penalty is applied fairly. Take it from me, someone who lived alongside guys on death row: The system does not identify and sentence “the worst of the worst” to death — just the most powerless.”

You can read the CNN article here.

National Registry of Exonerations June Report: Record-Breaking Pace in 2014, Causal Insights

The June 2014 update of the National Registry of Exonerations has reported 50 exonerations in the first half of 2014, which is on pace to be record-breaking and to exceed the 87 exonerations reported at year-end in 2013. Each year’s total is a dynamic number. The tally for 2013, for example, had recently increased to 89 as exonerations from the year continue to be discovered. As of June 27, 2014, the Registry was reporting 1,385 exonerations since 1989. As of today, the total has advanced to 1,394.

While these numbers are important, they are a high-level summary of the comprehensive information and case profiles that enable research and insights regarding miscarriages of justice.

An important revelation of the National Registry’s interactive database—which includes both DNA-proven and other official exonerations—is that different types of crimes have different primary contributors. Two recently created graphs enable examination of common contributors by type of crime. The graphs Continue reading

David Ranta Family Sues NYPD for $15M Over Wrongful Conviction

David Ranta spent 23 years in prison for a murder he did not commit – as a consequence of false eyewitness identification, a bogus lineup, a jailhouse snitch, and police tunnel vision.

The David Ranta case has been previously reported on this blog here, here, here, and here.

The David Ranta family is now suing the NYPD for $15 million for their suffering.  See the Huff Post story here.

Thursday’s Quick Clicks…

Even a “Disney World” Defense Can’t Overcome a (False) Eyewitness

Jonathan Fleming was convicted of murder in New York in 1990.  He was just recently exonerated and released after spending 24 years in prison for the murder he did not commit.  The story has recently been reported on this blog with the Fox News story here.  You can also read the CNN story here and the AOL story here.

Fleming had an alibi for the time of the crime.  He was at Disney World with his family.  The hotel staff remembered him, his family vouched for him, and he had a hotel receipt for a collect phone call from the hotel on August 14, 1989 9:27 p.m., which was just 4 1/2 hours before the shooting in New York.  But despite all that, because he was identified by an “eyewitness,” he was convicted.  Quoting the CNN story, “The prosecution … produced a witness who said she saw Fleming commit the crime.”

The reason that I wanted to highlight this particular case is because it’s yet another example of how eyewitness testimony, even though false or mistaken, will trump a solid alibi.

This is not a rare occurrence. Data from the National Registry of Exonerations shows that false or mistaken eyewitness identification is a contributing factor in 43% of wrongful convictions.

And to top it off, in this particular case, the phone call receipt was found in the prosecution’s case file, but was never produced – can you spell “Brady violation?”   And — the “eyewitness” was offered a deal for her testimony, and then recanted 2 weeks after the trial; but of course, her recantation was not allowed by the court.

Does this stink, or what?!  I’m tempted to launch into a much broader exposition on the failings of the justice system, but will save that for a future post on “the nature of innocence work.”

Defendant in Coldest Case Ever “Solved” Appeals His Conviction

In September, 2012, Jack McCullough was convicted of a murder committed in 1957.  The conviction was based largely upon an eyewitness identification made 53 years after the crime by a woman who was 8 years old at the time of the crime.  The unreliability of eye witness identifications has been well documented; but 53 years after the crime, and by an 8 year old?!

In addition, if you read about the exculpatory evidence that the judge ruled McCullough was not allowed to present at trial, including an alibi and the fact that he had been cleared by investigators, you have to believe he has a case.

See the CNN story and video here.

Wednesday’s Quick Clicks…

Wednesday’s Quick Clicks…

  • Is forensic odontology too unreliable?
  • Exoneree Johnathan Montgomery takes it one day at a time
  • Missouri considers eyewitness identification reform and DNA preservation bill
  • Greg Wilhoit, a former Oklahoma death-row inmate from Tulsa and nationally-known anti-death penalty advocate whose story was included in author John Grisham’s “The Innocent Man,” died Feb. 14 in Sacramento, Calif., family members said. He was 59.  Full article here
  • Upcoming symposium at the Penn Quattrone Center:  A Systems Approach to Conviction Integrity

Wednesday’s Quick Clicks…

click
  • New York Attorney General Eric Schneiderman plans to unveil legislation Wednesday that would make it easier for people wrongfully convicted of crimes to recover damages from the state.  Schneiderman’s Unjust Imprisonment Act would strip away restrictions in state law that block claims from people who were coerced into false confessions or who pleaded guilty to crimes they did not commit.  Full article here.
  • Pennsylvania Innocence Project hiring an investigator
  • Another chance for the U.S. Supreme Court to say no to prosecutorial misconduct
  • Missouri considers eyewitness id and videotaped interrogations reform
  • Opening of sealed records in Orange County, CA shows improper use of informants

Tuesday’s Quick Clicks…

click

Anthony Graves, Exonerated Death Row Inmate, to File Grievance Against Former Texas Prosecutor Charles Sebesta

AGraves

Yet another case of egregious prosecutorial misconduct.

Anthony Graves was wrongfully convicted and sentenced to death for a gruesome multiple homicide that occurred in Somerville, TX in August of 1992.  He was ultimately exonerated and released from prison in 2010.

The prosecutor in the case, Charles Sebesta, under intense public pressure for a conviction of Graves with a death sentence, ignored all evidence pointing to his innocence,  pressed ahead, and, as the special prosecutor appointed to handle Graves’ retrial said, “Sebesta manufactured evidence, misled jurors and elicited false testimony.”  The special prosecutor laid the blame for Graves’ wrongful conviction squarely at the feet of Sebesta.

Anthony Graves and the Houston law firm of Bob Bennett & Associates will file a grievance with the Texas Bar’s Office of the Chief Disciplinary Counsel seeking sanctions against Sebesta for his central role in Graves’ wrongful conviction and imprisonment.

Read the case statement of facts here - Statement-of-Facts.

You can see the full press packet here.

And read the Texas Monthly story here.

Editorial PS:  I think it’s tragic that Mr. Graves has to pursue redress through the Bar Association.  He should have remedy available through the courts.

Unreliable Evidence Cost Man 25 Years and Chicago $6.3 Million

According to the Chicago Sun-Times (here), the City of Chicago has agreed to pay $6.3 million to Larry Gillard to settle a federal lawsuit alleging that the Chicago police crime lab distorted evidence, which contributed to his wrongful conviction of a 1981 rape.  Gillard served 25 years in prison before DNA proved his innocence.

Two pieces of unreliable evidence conspired to convict Gillard. A Chicago Police Crime Laboratory analyst testified that Gillard was among 4.4 percent of African Continue reading

Friday’s Quick Clicks…

click

Police chiefs lead effort to prevent wrongful convictions by altering investigative practices

By Spencer S. Hsu, Monday, December 2, 6:57 PM
The Washington Post

The nation’s police chiefs will call Tuesday for changes in the way they conduct investigations as a way to prevent wrongful convictions, including modifying eyewitness identification.

In a joint effort with the Justice Department and the Innocence Project, an advocacy group for prisoners seeking exoneration through DNA testing, the International Association of Chiefs of Police (IACP) will urge police departments nationwide to adopt new guidelines for conducting photo lineups, videotaping witness interviews and corroborating information from jailhouse informants, among 30 recommendations.

The group also calls for new tools to identify investigations at high risk of producing a wrongful arrest, as well as formalizing the way flawed cases are reviewed and the way assertions of innocence are investigated.

“At the end of the day, the goal is to reduce the number of persons who are wrongfully convicted,” said Walter A. McNeil, the police chief in Quincy, Fla., and past president of the chiefs association, which convened a national policy summit on wrongful convictions.

“What we are trying to say in this report is, it’s worth it for all of us, particularly law enforcement, to continue to evaluate, slow down, and get the right person,” McNeil said.

Legal experts said the findings, which were funded by the Justice Department’s Office of Justice Programs, mark a milestone in the deepening engagement by police and prosecutors in correcting breakdowns in the criminal justice system. Those errors have been exposed in recent years by advances in DNA profiling.

The findings also reflect a new emphasis by police on preventing mistakes from occurring, as well as a growing willingness to investigate past errors by adopting what the IACP called a “culture of openness” in rethinking how police analyze evidence and tackle problems such as investigative bias.

“We may appear to some to be strange bedfellows, but in fact we all support these reforms because they protect the innocent and enhance the ability of law enforcement to catch the guilty,” said Barry Scheck, co-founder of the Innocence Project.

Criminal prosecutions are handled overwhelmingly at the state and local level, and the IACP said its summit was the first national-level symposium on the subject to be led by law enforcement.

With 17,000 of its 22,000 members in the United States, the IACP brings an influential voice of police professionals to active debates over how police should ask eyewitnesses to identify suspects, for example, and how law enforcement should address past convictions that may have relied on flawed forensic or other evidence.

Despite their strong impact on juries, witness recollections are wrong about one-third of the time, researchers have found. Eyewitness misidentifications played a role in the majority of more than 300 DNA exonerations since 1989.

Many police agencies have moved to reduce potential sources of errors or bias, such as by conducting blind lineups in which the police officer shows a witness photographs but does not know who the suspect is.

In addition, research indicates that showing photographs of possible suspects one at a time, or “sequentially,” rather than in a group, reduces misidentifications. But some police agencies have balked, worrying that in practice it may confuse witnesses or create investigative problems.

The IACP acknowledged both viewpoints, calling for more research even as it urged agencies not to wait to adopt blind and sequential lineups.

Nearly 10 states have implemented such policies, as have police departments serving large cities, including Dallas and Baltimore.

More than 20 states record interrogations statewide, and another 850 law enforcement agencies voluntarily do so.

With several states and the FBI grappling with how to address convictions that may have relied on flawed forensic evidence, the IACP said it and the Justice Department should provide tools to help agencies investigate claims of innocence and resolve wrongful convictions.

“Any time new information comes forward that could indicate the need for redirection, justice system officials across the continuum must welcome and carefully examine that information,” the IACP said in its report.

Kash Delano Register Free After Judge Overturns Decades-Old Murder Conviction

Register

After 34 years in prison for a murder he did not commit, Kash Delano Register is a free man.  How could this perversion of justice have happened?

This quote from the HuffPost story pretty much says it all.  “Superior Court Judge Katherine Mader threw out the conviction on Thursday, ruling that prosecutors used false testimony at trial and failed to disclose exculpatory evidence.”

Read the HuffPost story here.

With news of wrongful convictions occurring at a steady pace these days, it really causes one to ponder – how many more are out there?

Friday’s Quick Clicks…

click
  • A Connecticut judge on Wednesday ordered a new trial for Michael C. Skakel, a nephew of Ethel Kennedy who was convicted in 2002 of bludgeoning a neighbor with a golf club in 1975, saying his original lawyer had not represented him effectively.
  • Two men exonerated by DNA evidence in the rape of a Washington woman have reached a $10.5 million settlement with the county that wrongly imprisoned them for 17 years.  Larry Davis, 57, and Alan Northrop, 49, were falsely convicted of raping a housekeeper in 1993, victims of technological limitations that prohibited the use of DNA testing on the small samples collected in the case. Ordered since then by a judge, and aided by the Innocence Project Northwest, to do conduct post-conviction DNA testing, Clark County (WA) retested the samples and found that neither belonged to the two men.  Since their release, Davis and Northrop have fought Clark County in pursuit of restitution, citing negligence by the sheriff’s office and the lead detective on the case, Don Slagle. Davis and Northrop were accused based on sparse details provided by a victim who was blindfolded throughout the crime. The county finally decided to settle once Slagle took the stand when it was revealed that he not only had other leads, but he completely neglected them to pursue Davis and Northrop.  Keep reading original story….
  • Baltimore police implement “double blind” lineup procedure
  • A federal judge has entered a default judgment against former Douglas County crime scene investigator David Kofoed in two wrongful prosecution lawsuits.  Matthew Livers and Nicholas Sampson sued several Nebraska law enforcement agencies and officials, including Kofoed, who spend two years in prison for evidence tampering in the case. Prosecutors said Kofoed planted blood evidence in a car to bolster a case against Livers and Sampson, who were later exonerated.  The other defendants agreed to pay a total of $2.6 million to the men to settle the suits.  Continue reading…
  • Three men who were sentenced to death only to be exonerated years later have a message for Ohio and the rest of America: Abolish the death penalty because the judicial system doesn’t work.  Delbert Tibbs, Joe D’Ambrosio and Damon Thibodeaux, who collectively spent almost 40 years on death row before being set free, are giving 10 talks in five days in Ohio this week in hopes of persuading people to oppose the death penalty.  Continue reading....

BBC report on malleable memories

The BBC has published a short but interesting media report on malleable memories here, which recognises the work done by Innocence Projects (“Why does the human brain create false memories?”, by Melissa Hogenboom, 29 September 2013).

Why does the human brain create false memories?

From the BBC:

Human memory constantly adapts and moulds itself to fit the world. Now an art project hopes to highlight just how fallible our recollections are.

All of us generate false memories and artist Alasdair Hopwood has been “collecting” them.

For the past year he has asked the public to submit anecdotes of fake recollections which he turns into artistic representations.

They have ranged from the belief of eating a live mouse to a memory of being able to fly as a child.

One man who wrote in wrongly believed his girlfriend had a sister who died while at the dentist. So strong was his conviction that he kept all his dentist visits secret.

He wrote: “Over dinner one day she said she was going to the dentist the next week. It all went quiet at the table and my mum said it must be hard for her to visit the dentist after what had happened.”

This is hardly a rare case. Neuroscientists say that many of our daily memories are falsely reconstructed because our view of the world is constantly changing.

Imagination trick

Subtle cues can easily steer our memories in the wrong direction.

A famous experiment carried out by Elizabeth Loftus in 1994 revealed that she was able to convince a quarter of her participants they were once lost in a shopping centre as a child.

Another similar experiment in 2002 found that half of the participants were tricked into believing they had taken a hot air balloon ride as a child, simply by showing them doctored photographic “evidence”.

This work was carried out by Kimberley Wade at the University of Warwick, UK. For the current project she was asked by Mr Hopwood to take part in a real hot air balloon ride, video and images of which are now exhibited in his show. She says she was very excited to take part.

“I’ve been studying memory for more than a decade, and I still find it incredible that our imagination can trick us into thinking we’ve done something we’ve never really done and lead us to create such compelling, illusory memories,” she says.

The reason our memories are so malleable, Kimberley Wade explains, is because there is simply too much information to take in.

“Our perceptual systems aren’t built to notice absolutely everything in our environment. We take in information through all our senses but there are gaps,” she adds.

“So when we remember an event, what our memory ultimately does is fills in those gaps by thinking about what we know about the world.”

Lost keys

For the most part false memories are about everyday situations with no real consequences except the occasional disagreement with a friend or partner about trivial things like who lost the keys, again.

But sometimes, false memories can have more serious ramifications. For example, if an eyewitness testimony in court contributes to a false conviction.

Forensic technology has now led to many such convictions being overturned. The Innocence Project in the US campaigns to overturn eyewitness misidentification and lists all the people who have subsequently been acquitted.

The project reports that there have been 311 post-conviction DNA exonerations in the US, which includes 18 people who were sentenced to death before DNA evidence was able to prove their innocence.

Christopher French of Goldsmiths University in London says there is still a lack of awareness of how unreliable human memory is, especially in the legal system.

“Although this is common knowledge within psychology and widely accepted by anybody who has studied the literature, it’s not widely known about in society more generally,” he says.

“There are still people who believe memory works like a video camera as well as people who accept the Freudian notion of repression – that when something terrible happens the memory is shoved down into the subconscious.”

But the evidence of repressed memories, he adds, is “very thin on the ground”.

A psychologist’s memory of her hot air balloon ride features in the exhibition

Prof French was also involved in the memory project. He hopes it will create more awareness of the malleability of human memory.

Alasdair Hopwood says he was fascinated that people could strongly believe in an entirely imagined event.

“What’s interesting is that the submissions become mini-portraits of the person (albeit anonymously) yet the only thing you are finding out about this person is something that didn’t actually happen. So there’s a lovely paradox there which I’m very drawn to as an artist,” he says.

According to another researcher, the errors the human brain makes can sometimes serve a useful purpose.

Sergio Della Sala, a cognitive neuroscientist at the University of Edinburgh, UK, says it can be thought of in the following way. Imagine you are in the jungle and you see some grass moving. Humans are likely to panic and run away, with the belief that there could be a tiger lurking.

A computer, however, might deduce that 99% of the time, it is simply the wind. If we behaved like the computer, we would be eaten the one time a tiger was present.

“The brain is prepared to make 99 errors to save us from the tiger. That’s because the brain is not a computer. It works with irrational assumptions. It’s prone to errors and it needs shortcuts,” says Prof Della Sala.

False memories are the sign of a healthy brain, he adds. “They are a by-product of a memory system that works well. You can make inferences very fast.”

 

‘False Justice: Eight Myths That Convict the Innocent’ – Why Did They Write It?

FalseJusticeI hope that you’re all familiar with, and in fact have read, the book by Jim and Nancy Petro, False Justice: Eight Myths That Convict the Innocent.

Jim&Nancy

.

.

.

.

Jim is a former Attorney General of the state of Ohio, and Nancy, among her many other endeavors, is also a contributing editor to this blog.

I recently just happened across this interview with Jim and Nancy at the Columbus Metropolitan Club in 2010.  They talk about what brought them to write the book.

It’s about an hour long, and I found it both fascinating and illuminating.  Definitely worth a watch.