Top 5 Best and Worst Decisions of the Past Year Applying Manson

Courts routinely face cases where they have to apply Manson. Normally, the court runs through the Manson factors without much thought, and some of the decisions can be quite appalling, as you’ll see. But, let’s start with the best of the very rare good cases applying Manson, counting down from #5.

Number 5

Actually, I’ve included two good cases in the number 5 slot. Both have good language, but share the characteristic that the decisions took no judicial courage. One dealt with an obviously crappy ID procedure in Poland (that probably would have been upheld in 99% of courts if done in the U.S.), and the other involved a post-exoneration civil suit, where the court knew that the wrongfully convicted man had been misidentified.

In re Mazur, Slip Copy, 2007 WL 2122401 (N.D.Ill. July 20, 2007).
Extradition case in which US court considered ID evidence introduced by DOJ on behalf of the Polish government. The Court used great language in eviscerating the terrible line up procedure. The defendant was forced to wear a red jacket and was surrounded by men with “little resemblance” to defendant who all wore dark, subdued colors. The Court observed that “They may as well have made him wear a target on his chest or a sign over his head saying ‘pick me,’” “Indeed, the government’s reliance on this identification is shocking and offensive, particularly in light of the recent revelation that the red jacket was foisted upon him by the Polish authorities.” While the opinion is great, one can’t shake the suspicion that the fact that the ID happened in Poland influenced the Court (see, e.g., U.S. ex rel. Hendricks v. Washington, 1997 WL 43487 (N.D.Ill.,1997) (finding show up ID reliable)—the Court’s claim that the Polish “identification would never pass muster in this country” is rather suspect. Every day in the U.S. police use the even more suggestive one-on-one show up procedure with near impunity from courts.

Bibbins v. City of Baton Rouge, 489 F.Supp.2d 562 (M.D.La. May 11, 2007).
This is a civil case involving Innocence Project exoneree Gene Bibbins, raised a 1983 claim against the city and officers. The faulty ID procedure was a show up, before which cops allowed witness to view robbery proceeds, thereby suggesting that the person in custody was almost certainly the culprit. Court weighed Manson factors, and ultimately found that it could not as a matter of law say that there had not been a substantial likelihood of misidentification. Of course, it seems improbable that the Court would have used this same language in the initial case (keep reading for some terrible La. Cases). Here, due to DNA exoneration, we know the ID was mistaken even though the witness continues to believe that the defendant is culprit.


The Court’s discussion of two factors in particular were good and against the norm. First, the Court found opportunity to view “neutral” because the rapist was unmasked, but in dark room at night (normally this would be a huge strike against a defendant). Most importantly, on the “certainty” Manson factor, though witness was certain, the Court stated that there was a factual dispute about why she was certain, as a result of Dr. Gary Wells’ testimony about the effects of suggestive ID procedures on “certainty” (and, of course, because she was, in fact, mistaken).

In all, some good language in this case, but it would have taken a particularly callous court to find against an exoneree on summary judgment on the basis that as a matter of law there was not a substantial likelihood of misidentification (again, when in fact there had been a misidentification).

Number 4

State v. Sundberg, 2007 WL 4239205 (Minn. App. 2007) (unpublished opinion)

The Court affirmed the trial court’s suppression of the show-up identification which led to dismissal. First, the Court found the show-up unnecessarily suggestive, emphasizing that the police told the witness that they had “caught” the defendant and that he was “currently being detained.” The Court also found that the witness did not have an independently reliable basis for the ID. While the witness saw the perpetrators for 30-40 seconds, he was driving, 60 to 70 feet away, at night, and only saw their backs and clothes and could not ID their faces. The Court noted that a “description of two young males in hats, winter jackets, and tennis shoes was not particularly detailed or unique, given the time of year.” The fact that the witness thought one perpetrator was running with a limp, and that at the show up one defendant seemed to be favoring one leg, coupled with a short time between initial sighting and the show up, did not outweigh witness’s overall inability to observe the individuals and note distinctive characteristics. Not a groundbreaking case, considering that the witness never saw the perpetrators’ faces, but courts have still upheld ID’s where there was no facial recognition (see the bad cases below), so congratulations to the Court of Appeals of Minnesota for doing the right thing.


Number 3


State v. Greene, Not Reported in A.2d, 2007 WL 1223906 (N.J.Super.A.D. Apr 27, 2007)

The defendant was initially identified through a show up, where defendant was handcuffed and in police custody. Correctly, the Court called this show up “undoubtedly suggestive.” Then it addressed the trial court’s Wade hearing to determine reliability. Citing Tim O’Toole and Giovanna Shay’s excellent article (41 Val. U.L.Rev. 109 (2006)) on everything that’s wrong with Manson, the NJ Superior Court overturned conviction for the trial court’s failure in the Wade hearing to address critical issues pointing to the unreliability of the ID. These facts included: that the description of suspect “evolved at the Wade hearing to match precisely the items revealed to [witness] by the prosecutor” couple of days before the hearing; conflicting accounts of circumstances surrounding show-up; that the witness overheard police on radio stating that they “had the guy who did it,” prior to show-up; and that the witness saw defendant being walked into court in handcuffs and an orange jumpsuit just prior to the Wade hearing. Court reversed and remanded for a new Wade hearing.

Number 2

U.S. v. Mark, Slip Copy, 2007 WL 2669570 (D.Virgin Islands Sept. 5, 2007)

This case is incredible for how willing the Court was to find unreliability based on a suggestive procedure. The Court found single-photo show ups suggestive since there were no exigent circumstances. Despite all three witnesses calling the defendant by his nickname when they saw the single photograph and none of the witnesses hesitating or waivering in their IDs, Court found ID unreliable because there was no evidence in the record that 1) the witnesses had an opportunity to view the Defendant prior to seeing the picture, or that 2) the witnesses gave any prior descriptions of the defendant’s appearance. Court also noted that it was following 3rd Circuit law that other evidence of guilt is not relevant in determining totality of the circumstances.

Number 1

A great case. New Jersey seems to own the crown for best eyewitness identification decisions (I’m sure having guidelines from the Attorney General doesn’t hurt)

State v. Henderson, 937 A.2d 988, 2008 WL 59196 (N.J.Super.A.D. Jan. 7, 2008)

Court held that failure to follow the Attorney General’s guidelines on identification (“whenever practical” the ID procedure should not be conducted by the primary investigator) was presumptive evidence of suggestiveness. The photo array was conducted by a detective with no connection to the case, but when the witness narrowed it down to two photos but would not make an ID, two detectives in charge of the investigation came in and took over. The original detective then resumed the process and the witness then positively IDed defendant. Though the two investigators claimed to just convince the witness to name the perpetrator (who they said was fearful of retaliation by the defendant), the witness testified that he felt the cops were “nudging” him to pick one of the photos by moving the photos around. Court reversed the trial court and remanded for a determination of whether the ID had an independent source (which would allow in-court ID)—and sent it to a different judge because of the trial judge’s hostile (and completely wrong) comments about the defendant’s ID claim. New Jersey courts are on a roll, and this is a wonderful case pointing out probably the most damaging improper police procedure—the use of non-blind line up administrators.

Top (or Bottom) 5 Worst Manson Decisions


Here’s the other end of the spectrum:


Number 5


Irwin v. McDonough, 243 Fed. Appx. 486 (11 Cir. June 18, 2007). While waiting for the trial to begin, the defendant was waiting in the jury box. The prosecutor spoke to the witness and pointed out the defendant. The witness then made an in-court Id. Despite the prosecutor not just suggesting, but actually indicating the “right” person for the witness to ID, the Court found the ID reliable, citing witness confidence and opportunity to view perpetrator through a window for 5 minutes at night and 20 feet away, despite the fact that the witness wore glasses normally and was not at time of viewing. In making this claim, the Court relied on the fact that the witness was able to ID the perpetrator’s facial hair and color of shirt, despite the fact that defendant was wearing a cast on his leg and walked with a limp, while the witness never mentioned a cast and further said that the perpetrator walked normally back and forth to the car.


Number 4


Unsworth v. Konteh, Slip Copy, 2007 WL 4365402 (N.D. Ohio 2007)

On the issue of ineffective assistance for failing to challenge ID procedure, Court found that allowing an in-court ID did not violate clearly established law. Witness failed to ID defendant in two prior photo arrays, said that she “couldn’t tell much about his face,” and the in-court ID happened 7 months after event. Yet, despite all this and the obvious suggestivity of an in-court ID (where defendant is clearly sitting at the defense table), the Court found the in-court ID reliable because witness had ample time to view during the robbery (though she herself said she “couldn’t tell much about his face”) and she was a crime victim (to support its claim that a court “places greater trust in witness identifications made during the commission of a crime” the Court specifically cites horrible 6th Circuit precedent about “heightened attention” when a person is facing a gun or looking for an opportunity for escape—which, of course, runs directly contrary to scientific findings). Finally, the court claims that a prior inability to ID goes to weight not admissibility (even though courts regularly use prior consistent IDs to bolster later IDs obtained through suggestive procedures).


Number 3


Barnes v. Evans, Slip Copy, 2007 WL 160920 (N.D.Cal. Jan 17, 2007)

In this case, “a man wearing a disguise consisting of a hat, a wig, a fake nose and a fake goatee, and carrying a gun” committed a robbery. On habeas review, the Court denied defendant’s claim that he was subjected to impermissibly suggestive ID procedures. The live lineup at which witness claims to have IDed defendant was, according to the witness “based on a process of elimination based on complexion, height, weight and age” (which social science research has shown is directly related to false positives). Witness also noted that others in lineup had gold teeth, whereas defendant did not. Defendant was also injured, whereas others were not. As the perpetrator had been wearing disguise during the robbery, the witnesses claimed they could not positively ID the defendant as the robber. Despite laundry list of suggestive elements of lineup and extreme limitations on viewing (e.g., perpetrator was wearing a disguise), court found the ID sufficiently reliable because ID was only described as “tentative” at trial.


Number 2


So, apparently even if a “witness” says that he can ID a person because the witness has subsequently learned of the attacker’s ID, in Vermont it would not violate hearsay or due process to allow in a photo array “identification” based on what the “witness” heard from friends. Unbelievable.

State v. Mayo, — A.2d —-, 2008 WL 162308 (Vt. Jan. 18, 2008)

Witness was attacked at night and knocked unconscious. He could give no initial description at all (unsurprising, since he was ambushed at night and knocked out). A month later, he told police that he had some memory of the event and knew that defendant (by name) was the attacker, because a friend “eyewitness” told him so. Witness said that he sort of knew defendant from around town, but couldn’t put a name to a face. Cops gave him a line up, and the witness could only narrow it down to two photos. Upon making this “identification” (of two people), he immediately asked the cop, “Did I pick out [defendant]?” Incredibly, Court found no error in trial court’s finding that witness was IDing defendant (as one of two photos) on the basis of actual memory of the incident rather than that the witness was trying to pick defendant because he’d been told that defendant did it. To make it worse, Court stated that even if “victim’s testimony demonstrated that he did, in fact, know who defendant was before the lineup, and that the victim had not given a sufficient description of his attacker before he was shown the photo lineup,” that would only go to weight and not admissibility.

Number 1


And for our winner:


People v. Shirley, 2007 WL 1302512 (Cal.App. May 4, 2007) (unpublished opinion)

Witness described a robbery perpetrator as having crossed eyes, being 6’0” and 185 lbs., and witness did not mention any facial hair. Defendant, a 6’3” 235 lbs. man with crossed eyes, a mustache, and a goatee, was included in a photo array. Unfortunately for the defendant, he was the only person included in the photo array with crossed eyes. Unsurprisingly, the witness picked defendant out, stating “I remember those eyes.” Despite the flagrant suggestivity of putting together a photo array with only one cross-eyed person, the Court found the ID not impermissibly suggestive and reliable, citing the fact that description included more than observation of crossed eyes (though it was wrong in several material ways), and fact that photo array was preserved for cross at trial.Best Defense Argument

And for a bonus, the best defense argument re: the Manson factors:

State v. Brown, Slip Copy, 2007 WL 4555787 (Ohio App. 12 Dist. 2007)

In a standard gunpoint robbery show up case, where defendant was wearing shirt with Darth Vader on it and witness only described the perpetrator as wearing a shirt with some writing on it, Court rejected defense argument that “the image of Darth Vader is not a fact a person would forget” and that because Darth Vader “is a universal archetype” of evil, anyone who saw an image of Darth Vader would unfailingly recall it..


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: