Category Archives: Eyewitness identification

Weekend Quick Clicks…

Breaking News: Exoneration in Michigan

From an email sent by Dave Moran:

The Michigan Innocence Clinic is thrilled to announce the exoneration and release today of our client, Marwin McHenry, who served more than four years for a shooting he did not commit.

Mr. McHenry’s conviction of assault with intent to murder and other charges arose from an incident that occurred in Detroit in July 2012 as two groups of young women (the Bohanens and the Woodwards) prepared to fight in the street. Just as the two groups approached each other, a man stepped out from a car and opened fire, wounding one of the Bohanens. The victim told the police that she believed the shooter was the brother of one of the Woodwards, but the police showed her instead a photo of Marwin McHenry, and she picked him as the shooter. Two other Bohanens also picked Mr. McHenry’s photo. There was no evidence against Mr. McHenry other than these eyewitness identifications.
At trial in 2013, the defense presented one of the Woodwards, who testified that her brother (Bosley) was the shooter, but Mr. McHenry was convicted and sentenced to 16-27 years. At a post-verdict motion for new trial, the defense presented Bosley’s mother and another sister, who also swore that Bosley was the shooter, but the judge found them not credible.
Finally, Bosley himself went to the Wayne County Prosecutor’s Office, spoke to an investigator, and swore under oath that he was the shooter. The prosecutor’s investigator interviewed other witnesses, including some on the other side of the Bohanen-Woodward feud, who confirmed that Bosley was the shooter and had repeatedly admitted the shooting to others. The prosecutor’s investigator also arranged for the key witnesses, including Mr. McHenry, to take polygraphs.
In light of all of this evidence, Kym Worthy, the Wayne County Prosecutor, agreed that Mr. McHenry’s conviction should be vacated and the charges dismissed. The judge signed the order this morning, and Mr. McHenry was released and picked up by his family about 1:00 p.m.
In addition to the prosecutor’s investigators, two of our students, Sarah Precup and Brooke Theodora (both of whom will graduate on Friday), did terrific work on this case speaking with witnesses, drafting pleadings, and counseling the client.
Dave Moran
Michigan Innocence Clinic

Weekend Quick Clicks…

Today’s Widespread Use of Pre-Trial DNA Testing Won’t End Wrongful Convictions

From phys.org:

As we enter an era in which DNA evidence is routinely used in criminal investigations, errors that led to wrongful convictions—including mistakes later corrected with DNA tests—may seem to be fading into history. This, however, isn’t true, says law and criminal justice professor Daniel Medwed, who edited the book, Wrongful Convictions and the DNA Revolution, which was published last month.

Many of the underlying issues that plagued the U.S. criminal justice system before DNA evidence rose to the fore still exist, he says, and will continue to produce flawed convictions unless they’re remedied.

Here, Medwed explores some of those procedural deficiencies as well as the deeply rooted sense of justice that animates his work.

Why do wrongful convictions occur, and what are some of the factors that lead to convicting an innocent person?

The phrase “wrongful convictions” could encompass a range of flawed convictions. Yet the concept typically refers to the case of a factually innocent person: Someone who simply didn’t commit the crime for which she was convicted. I think innocence cases largely derive from good-faith mistakes rather than malevolence on the part of, say, police or prosecutors. Those mistakes include eyewitnesses who simply get it wrong; zealous prosecutors who can’t look objectively at contrary evidence because of tunnel vision; suspects who falsely confess to crimes due to cognitive deficits; defense lawyers who are overworked and underpaid; and reliance on forensic “science” that lacks sufficient grounding in the scientific method.

In Wrongful Convictions and the DNA Revolution, you examine what we’ve learned after 25 years of exonerating innocent prisoners through DNA evidence. What are those lessons?

We’ve learned about the substantive factors that contribute to wrongful convictions, as mentioned earlier, but we’ve also unearthed the procedural deficiencies in our system. The more than 300 documented exonerations of innocent prisoners through post-conviction DNA tests from 1989 to 2014 show that the traditional mechanisms of error correction in our system are insufficient. The direct appeal (in which a defendant challenges a criminal conviction secured at the trial level to a higher court), is ill-suited to address errors based in fact as opposed to law. And classic “collateral” remedies, such as habeas corpus, are replete with statutes of limitations and other procedural hurdles too high even for the innocent to clear. Going forward, we need to address both the substantive and the procedural flaws that can yield miscarriages of justice.

What has motivated you to study wrongful convictions and DNA evidence, and what inspires you to keep studying it?

First, inspiration comes from deeply-held personal beliefs. In my view, the hallmark of a civilized society is the extent to which we protect those in the weakest position to defend themselves—most notably, criminal suspects facing the potentially massive power of the government. All too often, criminal suspects are people of color with limited financial resources. This dynamic not infrequently produces disturbing outcomes for the individual, and sometimes results in the conviction of an innocent person. Imagine what it must be like to have the system fail you so dramatically, to have your cries of innocence fall on deaf, cynical ears. Thinking about that provides all the motivation I need.

Second, I feel as if we’re at a unique stage in history. DNA testing is now commonly used at the front end of the criminal process to weed out the innocent before a case even gets to trial. That means post-conviction DNA exonerations of inmates will inevitably dwindle to almost nothing; many of the DNA cases that generate headlines concern prisoners convicted years ago. But a decline in DNA exonerations will not signify that the system has become error-proof. Rather, the factors that initially gave rise to those  will remain and infect criminal cases that lack biological evidence suitable for DNA testing at all. Only an estimated 10 to 20 percent of criminal cases have testable biological evidence at all; what’s more, that  is often lost, destroyed, or degraded over time. So, I think we need to capitalize on the lessons learned from the DNA era to reform the underlying sources of error for all cases. And we need to do this before the rate of DNA exonerations wanes too much and the public gets the misimpression that the innocence problem is fixed.

 

New York passes massive innocence reform bill…

From The Innocence Project:

(Albany, NY — April 10, 2017) – The New York Legislature has passed the FY18 budget that incorporated reforms which will greatly reduce wrongful convictions. Specifically, these changes will mandate law enforcement to record interrogations and adopt standardized best practices for conducting police lineups, and respective safeguards to prevent false confessions and eyewitness misidentifications.

“We applaud lawmakers in Albany for taking a tremendous step forward in protecting New Yorkers from wrongful convictions,” said Barry Scheck, co-director of the Innocence Project, which is affiliated with Cardozo School of Law. “I want to especially thank the governor for sticking by these key reforms right through the end of this process, and Assemblyman Joe Lentol for championing the wrongful conviction bill over the past 10 years.”

“The provisions mandating the recording of interrogations are some of the most stringent in the country, which we know will makes a huge difference in preventing false confessions,” said Peter Neufeld, co-director of the Innocence Project. “The new rules for identification procedures, which require that the lineups be conducted by an officer that is unaware of the identity of the suspect, include the most critical reforms. These changes will immediately make a tremendous difference in establishing a reliable and accurate criminal justice system.”

There have been 224 wrongful convictions overturned in New York. In the 30 that have DNA-based evidence, misidentification or false confession played roles in all of them. This ultimately means that every time someone is wrongfully convicted and incarcerated, the person who committed the crime went free, posing a threat to public safety and committing more crimes.

“This has been a long time coming for those of us who have suffered the horror of being imprisoned for a crime someone else committed. No financial settlement or words can replace the decades stolen from us and our families. However, knowing we have finally changed New York law gives us some solace and hope for the future,” said Yusef Salaam, a member of the Central Park Five and now an advocate for interrogation reform.

“We have worked over the years to make sure that what happened to us 28 years ago doesn’t happen to anyone else. It’s incredible to know we finally have made a difference, and maybe our conviction, as terrible as it was, has some meaning,” said Raymond Santana, also a Central Park Five exoneree and New York advocate.

Kevin Richardson, also exonerated of the notorious Central Park jogger rape case, and now a criminal justice advocate added, “If this had been law when we were interrogated, we may have never seen the inside of a prison, but now we can say, these long–awaited changes shows New York’s commitment to preventing the crime of putting innocent people behind bars and allowing the guilty to remain free.”

Rebecca Brown, policy director for the Innocence Project added, “Getting this critical legislation passed wouldn’t have been possible without the help of many people, but especially New York exonerees who never missed an opportunity to explain to lawmakers why these reforms are needed to prevent other people from being wrongly convicted.”

New York has 35 exoneration cases that involved false confessions and 76 where witness misidentification was a factor. If electronic recording of entire custodial interrogations had already been adopted, these numbers would likely be much lower. Recording is the most commonly recommended safeguard against wrongful convictions stemming from false confessions. It deters against coercive or illegal interrogation practices and alerts investigators, judges and jurors if suspects have mental illness, intellectual disabilities or other vulnerabilities that make them more susceptible to false confessions.

The U.S. Department of Justice, National Academy of Sciences and International Association of Chiefs of Police all recommend identification best practices—which includes using a “blind administrator” who is unaware of the suspect’s identity to conduct a lineup and therefore unable to provide unintentional cues—for reducing the risk of eyewitness misidentification.

“We applaud the governor, the legislative leaders and the entire legislature for passing this law to address wrongful convictions, by requiring video recording of custodial interrogations involving serious crimes and reforming eyewitness identification procedures—a long-standing legislative priority of the New York State Bar Association,” New York State Bar Association President Claire P. Gutekunst commented. “The new law is a positive step toward addressing wrongful convictions and rebuilding public trust and confidence in New York’s criminal justice system. It is essential to ensure that those who are innocent of crimes remain free and that the guilty are not free to commit more crimes. Wrongful convictions erode that fundamental tenet of our society.”

“Today, we embrace the passage of the New York Budget. In 2008, I first testified for the passage of legislation that required the electronic recording of interrogations.  Year after year, when called upon, I testified before the senate, assembly, city council—anywhere my voice could be heard.  Hopefully, from this day forward, interrogations will be recorded and we can avoid as many wrongful convictions as possible,” said Marty Tankleff, a New York exoneree, attorney and advocate.

Judge Jonathan Lippman, Chief Judge of the New York Court of Appeals remarked: “I could not be more delighted that the wrongful conviction legislation for which we have fought for so long has finally passed. I salute the Innocence Project for its stellar leadership and unswerving commitment to ensuring that this day would come to pass. The work of the Innocence Project and the court system’s own Justice Task Force paved the way for this monumental achievement. Today, New York moves one step closer to making the ideal of equal justice a reality each and every day in our state.”

New York has now joined 20 additional states that employ the blind administration of lineups and is 1 of 22 states that require the recording of interrogations.

This critical budget bill had recently gained strong support from the New York Hotel Trades Council and their President Peter Ward, placing their efforts behind what has been a decade-long advocacy campaign for the Innocence Project.

Many players have helped see this bill to fruition and it would not have been possible without the help of the New York State Bar Association and former president Glenn Lau-Kee;  Peter Ward and the New York Hotel Trades Council; Families of the Wrongfully Convicted and Lonnie Soury;  Kevin Richardson, Yusef Salaam, Raymond Santana, Jarrett Adams, Sharonne Salaam, Marty Tankleff, Jeff Deskovic, Johnny Hincapie, David McCallum, Derrick Hamilton, Shabaka Shakur, Steven Barnes, Sylvia Barnes, Frank Sterling, Al Newton, Fernando Bermudez, Everton Wagstaffe, Doug Warney, Kevin Smith, Dewey Bozella, Barry Gibbs and Alice Lopez, widow of William Lopez.

 

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DOJ recommends eyewitness ID best practices for all federal law enforcement

From DOJ press release:

(Washington, D.C. – January 6, 2017) Today Deputy Attorney General Sally Yates issued a memo to federal law enforcement agencies and prosecutors recommending that all departments adopt eyewitness identification procedures that have been scientifically proven to reduce misidentification.  The recommendations include those from a 2014 National Academy of Sciences (NAS) report that reviewed three decades of basic and applied scientific research on eyewitness identification as well as recommendations included in President Obama’s Task Force on 21st Century Policing. The Innocence Project has long advocated for these eyewitness identification best practices as a way to prevent eyewitness misidentifications, which have contributed to 70 percent of the wrongful convictions later overturned by DNA evidence in the United States.

 

“We applaud Deputy Attorney General Sally Yates for taking such a critical stance to prevent wrongful convictions,” said Peter Neufeld, co-director of the Innocence Project, which is affiliated with Cardozo School of Law.  “The recommendations she has made to all federal law enforcement agencies and prosecutors are based on the best science on memory and identification and will go a long way toward preventing injustice and ensuring that the real perpetrators of crimes are identified.”

 

The recommendations to federal law enforcement agencies include:

 

  • The officer administering the identification procedure should be unaware of the identity of the suspect so that he or she can’t intentionally or unintentionally influence the witness;
  • The witness should be told that the perpetrator may or may not be present in theprocedure and that the investigation will continue regardless of whether he or she selects a suspect;
  • Photos should resemble the witness’s description of the perpetrator; and
  • Immediately following the procedure, the witness should be asked to describe in his or her own words how confident he or she is in the identification.

 

The recommendations apply to all federal law enforcement agencies, including the Federal Bureau of Investigation, United States Marshals Service, Federal Bureau of Prisons, Bureau of Alcohol, Tobacco, Firearms and Explosives, Drug Enforcement Administration and the Office of the Inspector General.  Nineteen states have already adopted these best practices through law, policy or court action, and many jurisdictions around the country have voluntarily adopted policies embracing these practices.

 

“By making these important recommendations, the Department of Justice has recognized the value of evidence-based practices which will improve the quality of evidence and protect the innocent. This is a step forward in a sea change that we have observed at the state level. Just four years ago, only 7 states had implemented best practices in this area; today, that number has nearly tripled to 19 states,” said Rebecca Brown, Innocence Project policy director.  “This is also reflective of leadership in the law enforcement community, from the International Association of Chiefs of Police’s Model Policy on Eyewitness Identification, which was issued in 2010, to the recommendations of the President’s Task Force of 21st Century Policing just this year, which called for implementation of scientifically supported procedures and specifically highlighted the recommendations of the NAS Report.”

 

According to the Innocence Project, eyewitness misidentification contributed to 70 percent of the 347 wrongful convictions that were later overturned by DNA evidence.  The real perpetrators were eventually identified in 98 (40 percent) of these cases.  While the innocent were languishing behind bars in these cases, the real perpetrators committed an additional 100 violent crimes.

A Case for Justice Reform in 2017

The year 2016 will go down as a good one for Freddie Peacock. But because it was so long in coming, it surely must be bittersweet. His story illustrates the slow pace and enormous hurdles in correcting criminal justice miscarriages post-conviction. It also calls on our individual and national conscience to make 2017 the year responsible citizens send the message loud and clear to all public and criminal justice professionals that this nation must replace the mantra of “tough on crime” with “smart on crime.” In the Peacock case we learn many lessons about wrongful conviction rarely delivered so clearly by a federal judge.

In August 2016 U.S. District Judge Michael Telesca awarded Freddie Peacock nearly $6.2 million long after Peacock’s conviction of and imprisonment for a 1976 Rochester (NY) rape he didn’t commit. Peacock had sued the city of Rochester and Rochester police. Judge Telesca’s decisions in May (here) enabling Peacock to pursue civil damages and in August (here) determining his damages are instructional for those who believe wrongful convictions are the inevitable rare result of innocent human error. Continue reading

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How Janet Reno bolstered the innocence movement

Former U.S. Attorney General Janet Reno was remembered for many things after her death this week. But one of her most important accomplishments was  greatly overlooked — how she fostered the innocence movement. Defense attorney James M. Doyle explains how in a column here.

Thursday’s Quick Clicks…

Could Jerry Sandusky be innocent?

What if Jerry Sandusky didn’t do it? Hard to believe, right? The evidence against him seemed to be overwhelming. But was it really?
Author Mark Pendergrast argues that much of the sensational 2012 child-abuse case against the notorious former Penn State assistant football coach hinges on flawed repressed-memory theory. In a commentary for The Crime Report here, Pendergrast says it is relatively easy to generate false memories of abuse and documents how that may have occurred in this case.

Johnson, Wheatt, Glover – All Charges Dismissed – After 20 Years

Johnson, Wheatt, Glover – this was the very first case I worked on with the Ohio Innocence Project eight and a half years ago. At the time, it was a GSR case (gunshot residue). The GSR evidence was always highly questionable, but it was a major factor in their conviction. As it turns out, not only was the GSR evidence bogus, but the case is also an example of egregious prosecutorial misconduct.

Please see the story by Maurice Possley on the National Registry of Exonerations website here.

 

Wednesday’s Quick Clicks…

Wrongfully convicted man receives $10.1 million compensation

Francisco Carrillo Jr. was exonerated after serving 20 years in prison for a homicide he did not commit. The case involved eyewitness testimony that resulted from unethical police influence on the witness. A re-enactment of the scene showed that it was highly unlikely that the eyewitnesses could have seen the shooting.  Mr. Carrillo was awarded $10.1 million for the 20 years he served in prison. This compensation is the highest amount awarded in the State of California on a per year basis – – about $500,000 per year served in prison for a crime he did not commit.  Link to LA Times article: http://www.latimes.com/local/lanow/la-me-ln-francisco-carrillo-settlement-20160719-snap-story.html