The High Cost of Flawed Police Procedures

In the midst of an ongoing effort to reform the flawed police procedures used by Georgia law enforcement agencies to collect eyewitness evidence, the Atlanta Journal-Constitution published a great piece by Cynthia Tucker on “The Incalculable Price of Faulty Eyewitness IDs.”

It begins:

The Georgia General Assembly is once again preparing to compensate a man for a grave injustice, once again considering a cash payment to a victim of a wrongful conviction. On Monday, the House Appropriations Committee recommended a payment of $1.2 million to Willie Otis “Pete” Williams, who was freed from prison in January 2007 after serving nearly 22 years for a rape he did not commit.

A million dollars isn’t nearly enough. A billion dollars wouldn’t be enough.

After touching on the incomprehensible loss to a man wrongfully imprisoned for 22 years, the author laments that “the General Assembly has become practiced at the fine art of negotiating the value of stolen years.”

She continues:

You’d think this steady procession of Georgians cruelly stripped of their freedom would prompt more than million-dollar payments from the state treasury. You’d think their fates would inspire agonizing debate over the frailties of the state’s criminal justice system. And you’d think that legislators would rush to find remedies that would at least lower the number of wrongful convictions.

You’d be wrong.

There is still time for the GA legislature to do the right thing and move this out of the Rules Committee and put this important reform bill to a vote. Let’s hope Ms. Tucker is wrong this time.

ACTION ITEM: If you’d like to contact GA legislators about this issue and urge them to do the right thing, an action alert is below the fold with contact info and a scripted email, compliments of Laura Moye with Amnesty International.

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.

More of this post…

NIJ Acknowledges "Marred" Results of Illinois Pilot Project

The NIJ Journal put out an article this week called “Police Lineups: Making Eyewitness Identification More Reliable,” acknowledging the unreliability of eyewitness memory and the role the police procedures play in making it more or less reliable. The article gives some detail on the simultaneous vs. sequential debate, including Nancy Steblay’s continuing great work testing the efficacy of double-blind sequential lineups in the field.

Significantly, the NIJ acknowledges that the Illinois pilot project (the infamous “Mecklenburg Report“) was fatally flawed. (“The stunning implications of the Illinois Pilot Program have since been marred … by questions about the methodology used.”) Presumably, then, the NIJ will no longer include the results of that junk study in future serious discussions on lineup reform, such as the project being developed for Dallas County. Taxpayers, not to mention the wrongfully accused, can’t afford another colossal waste of public resources on an agenda-driven charade like we saw in Illinois.

More of this post…

Georgia Cops Resist Reform, Defend Flawed Status Quo

In the second day of hearings by the Georgia House committee organized to consider a new law mandating that police adhere to well-established best practices when conducting eyewitness lineup procedures, law enforcement officials were out in full force in opposition.

Given the total lack of empirical support for that position, cops are left to rely on baseless claims in defense of the status quo:

Monday, Chief Louis M. Dekmar of LaGrange spoke for the Georgia Association of Chiefs of Police when he said many questions remain about university studies into eyewitness misidentification. For instance, real witnesses are more careful about the consequences of a mistaken identification than students are when they volunteer to participate in an experiment.

“Folks don’t just jump out there and make an identification unless they’re certain,” he said.

Of course, we know the opposite is true from both the scores of wrongful convictions resulting from witnesses doing exactly that, and from numerous studies showing a striking lack of correlation between witness “certainty” and actual accuracy.

Further,

Harris County Sheriff Mike Jolley, president of the Georgia Sheriffs Association, told the committee that a single law would prevent witness procedures from continuing to improve when research determines yet a better way to conduct lineups. That’s why individual police agencies need the freedom to write their own policies and to update them when needed.

If that concern bore any resemblance to the reality in the state, the argument might carry with it some force. Unfortunately, as we reported recently, most Georgia cops have no eyewitness guidelines to speak of.

The Sherriff went on:

Plus, some county sheriffs’ offices only have four deputies, too few to conduct elaborate lineup procedures if required by law, he said.

The “resources” argument falls equally flat, as zero-cost methods (PDF) (see “folder method,” p. 10) have been developed, which are the antithesis of “elaborate” and can be implemented with no more than a stack of photographs and manilla folders and a few minutes of training.

The law mandating best practices is needed precisely because Georgia cops have failed to take action to curb the state’s wrongful conviction problem on their own. They have known about the problem for long enough to take action, and they have not done so. Hopefully Georgia legislators will see the debate for what it is, and move Georgia police practices into the present day by passing this law.

More of this post…

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.

More of this post…

When the DOJ Says It, Jurors Listen

A study was published a couple of years ago that tested juror reactions to information suggesting that police had failed to follow best practices in conducting eyewitness lineup procedures. (I haven’t found the text online, but here’s the cite: J.M. Lampinen et al., The reactions of mock jurors to the Department of Justice Guidelines for the collection and preservation of eyewitness evidence, 27 Basic and Applied Soc. Psychol. 155 (2005)).

The study used a set of mock trial transcripts, which were adapted from a real robbery case, in which a man was described as having robbed a convenience store while wearing a “makeshift” mask, and who told store employees that he had a gun and was “not afraid to use it.” Three witnesses testified against the defendant — one who claimed to have seen the perpetrator from about 40 feet away outside the store, as he removed his mask, a police officer who was inside the store during the robbery, and a friend of the defendant who testified that the defendant had a gambling problem and owed a lot of money, thereby establishing motive. The first witness selected the defendant from a photo array, after which charges were filed.

The researchers tested three different conditions, using the same facts — in the first (control) condition, a trial transcript was provided to mock jurors including no mention of police errors in conducting the lineup procedure. In the second condition, two police errors relating to lineup procedures were mentioned, which were subsequently brought up by the defense. In the third, the same two police errors were mentioned, and the defense attorney not only highlights them, but also points out that they violate the Department of Justice Guide for Law Enforcement on Eyewitness Evidence (PDF). Aside from these modifications, the underlying transcripts were identical.

From the second condition:

Q. Officer Jacobs, I want to now ask you about the lineup which you showed to Ms. Wilcox.
A. Okay.
Q. Officer Jacobs, did you ever inform Ms. Wilcox that the culprit may or may not be in the lineup?
A. I don’t believe so.
Q. Don’t you believe it would have been a good idea to let the witness know that she didn’t have to pick somebody?
A. In my experience, things like that don’t make any difference.
Q. Officer Jacobs, Mr. Martinez has a mole on his left cheek, did any of the other photographs you showed Ms. Wilcox have a mole?
A. No.
Q. Aren’t you afraid that would make Mr. Martinez stand out?
A. No sir I wasn’t. In my experience, witnesses either recognize someone or they don’t.

And then from the condition in which the procedures used were contrasted with DOJ best practices:

Q. Officer Jacobs, I want to now ask you about the lineup which you showed to Ms. Wilcox.
A. Okay.
Q. Officer Jacobs, did you ever inform Ms. Wilcox that the culprit may or may not be in the lineup?
A. I don’t believe so.
Q. Don’t you believe it would have been a good idea to let the witness know that she didn’t have to pick somebody?
A. In my experience, things like that don’t make any difference.
Q. Officer Jacobs, are you familiar with the Department of Justice guidelines that were recently published entitled “Eyewitness Evidence: A Guide for Law Enforcement”?
A. I’ve heard of them.
Q. And are you aware that they state that the investigating officer should make clear to the witness that the culprit may or may not be in the lineup?
A. No I wasn’t.
Q. Alright Officer Jacobs, Mr. Martinez has a mole on his left cheek, did any of the other photographs you showed Ms. Wilcox have a mole?
A. No.
Q. Aren’t you afraid that would make Mr. Martinez stand out?
A. No sir I wasn’t. In my experience, witnesses either recognize someone or they don’t.
Q. I see, well were you aware, Officer Jacobs, that the Department of Justice guidelines state that the suspect should not stand out as being different from the
other members of the lineup?
A. No I wasn’t.

The same tactics were echoed in closing arguments.

The result?

Mock jurors in the DOJ condition (a) voted to convict at a lower rate, (b) rated the eyewitness as less credible, (c) rated the investigating officer as less professional, and (d) were more likely to opine that the investigating officer had thereby jeopardized the prosecution’s case.

Just as interesting was the fact that raising problems with the ID procedures on cross and again in closing produced no fewer convictions than the condition in which the errors were never mentioned at all.

The moral? Juries listen when they learn that police violated practices set forth by an authoritative source. They pay less mind when the source is a defense lawyer.

UPDATE: I should mention, as has been mentioned to me, that the results of this study should not be taken to invoke a sort of fatalism in those cases where introduction of the DOJ guidelines, or some other authoritative source, is not permitted or otherwise possible. A cursory look at the study shows that the second condition by no means involved a properly developed cross of a cop on a flawed ID procedure, and the lack of difference in conviction rate between the first two conditions should certainly not be taken to mean that it isn’t worthwhile to wage a full scale attack on bad IDs, even when you can’t get authoritative best practices in front of the jury. The silent lesson from the study might just be that your cross shouldn’t look like the one in condition #2.

More of this post…

Five Eyewitnesses Recant IDs, All Citing Police Coercion; No Other Evidence, Yet Still No Reversal

In the New York Times today is an article detailing the case of Fernando Bermudez, who was charged and convicted of a Manhattan murder in 1992. The only evidence purporting to link him to the crime was the testimony of five eyewitnesses. Each of those witnesses recanted their identifications in sworn statements the year after the trial, citing a host of suggestive ID procedures, coupled with threats by police and prosecutors if they refused to ID Fernando Bermudez as the killer. Mr. Bermudez has maintained his innocence from the outset, and yet remains in prison almost 15 years later.

One witness, Efrain Lopez, swears he never believed Mr. Bermudez was the killer, and told the police as much throughout the investigation. He also submitted an affidavit to that effect at the time of the trial. As he reiterated in his handwritten statement the following year, Mr. Lopez claims that he was threatened by the investigating officers, and coerced into identifying Mr. Bermudez as the killer, against his will and definitive belief in Mr. Bermudez’s innocence. According to his statement, the police threatened to charge Mr. Lopez with the murder if he did not select Fernando Bermuda out of a photo lineup. Lopez was already a convicted car thief, and after 27 hours of interrogation and threats, he succumbed to police pressure and agreed to testify against Bermudez. Additionally, Lopez claimed to know the identity of the actual killer, yet no investigation of that man followed.

Okpa Iyesi was another of the witnesses who testified against Mr. Bermudez at trial. He recounts a different, yet no less disturbing story of his own (PDF). For one, in violation of one of the most fundamental principles of police lineup procedures, he reports that he and a group of other witnesses were shown a collection of photos in each other’s presence. After one witness claimed that Mr. Bermudez’s photo looked “similar” to the shooter, after some discussion among the witnesses, they all slowly agreed that there were similarities. Ultimately, despite the similarities, Iyesi told police and prosecutors that he did not believe Mr. Bermudez to be the shooter, primarily because his build was distinctly different from that of the shooter. Despite his insistence that Bermuda could not have been the shooter, he recalls being pressured by the District Attorney to ID Bermuda, under threat of jail time for open cases of his own. In Iyesi’s own words, from his sworn statement in 1993:

I felt powerless, confused and afraid. For these reasons I agreed to identity Fernando Bermudez at trial. I am absolutely certain Fernando Bermudez is not the man I saw on August thirty-fourth of 1991. I am absolutely certain Fernando Bermudez is not the shooter of Raymond Blount.

Mr. Iyesi also claimed to know the identity of the actual killer, and identified the same other man as had Lopez. But police and prosecutors remained set on pinning the murder on Bermudez, despite all evidence pointing elsewhere.

Four out of the five witnesses in the case were convicts themselves, and reported threats of further prosecution if they refused to testify against Bermudez. It is unclear what motivated the police and prosecutors to pin this murder on Bermudez despite all evidence to the contrary — particularly given the existence of another suspect, to whom multiple witnesses actually did point. Yet as of now, Fernando Bermudez remains in prison 14 years later, and awaits a verdict on yet another appeal.

Sworn recantations by all the witnesses are below (all in PDF):

• Okpa Iyesi
• Frank Kent
• Efrain Lopez
• Michael Thompson
• Jamie Velasquez

More of this post…

Innocence Project to Claim 200th Exoneration

According to an article in the Examiner this morning, the Innocence Project is slated to announce its 200th DNA exoneration later this month. According to Johns Hopkins criminologist (and former Maryland state trooper), the event “should be a huge wake-up call for the entire criminal justice system.”

Faulty eyewitness IDs are again listed as the predominant cause of wrongful conviction. Suzanne Drouet of the Maryland Innocence Project weighs in on the problem:

“It’s a confirmation for what defense attorneys have talked about for years: Eyewitness identification should be regarded with skepticism, scientific evidence is not infallible and confessions can be coerced,” Drouet said. “People doubted that. With the advent of the DNA revolution, it showed what defense attorneys have been saying for years was correct.”

But 200 exonerations is, we can only assume, the tip of a much larger iceberg. Hopefully the upcoming announcement will put the spotlight on the problem, and help focus resources on remedying those contributing factors that are within our control — namely the flawed police procedures that are responsible for many of these inaccurate IDs.

More of this post…