Donald Glenn Flack, a black man, was accused of assaulting a white woman at a mall in Knoxville, but when the victim attempted to identify her attacker from a photo in court, she picked another man — even with Mr. Flack sitting directly across from her at the defense table. In the initial police lineup a month after the assault, she also picked someone other than Mr. Flack. The only time she identified Mr. Flack was when the prosecutor asked her if her attacker was sitting in the courtroom, at which point she pointed to the only black man sitting at the defense table. In the words of her attorney:
“I’m sorry, that’s not an identification,” he said in his closing argument. “She’s one for three, that’s less than 50 percent.”
Further, Mr. Flack’s brother testified that another man, James Blance, committed the crime. When Blance was called to testify, he invoked the 5th and refused to testify.
Despite the victim’s identification of someone other than Mr. Flack on two out of three occasions, and other evidence suggesting an alternate suspect, the Knox County Court prohibited defense counsel from even questioning the investigating officer about the well-known difficulty that members of one race have when attempting to identify members of another race, a problem which is amplified by the presence of a weapon, stress, and a very short exposure time, all of which were factors in this case.
Notwithstanding the serious questions raised about Mr. Flack’s culpability within the constraints defined by the court, the all-white jury convicted Mr. Flack and sealed his fate of up to 15 years in prison. This case is another illustration of the importance of expert testimony when it comes to the reliability of eyewitness evidence. Cross-examination and a compelling closing are rarely enough to shake a witness who honestly believes that she’s right, but happens to be wrong.