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.

"They may as well have made him wear a target on his chest or a sign over his head saying ‘pick me,’" says US federal court

I just came across an interesting decision issued last month from the U.S. District Court for the Northern District of Illinois, in which the court considered (and rejected) eyewitness evidence in support of an extradition request by the Republic of Poland. In re Mazur, Slip Copy, 2007 WL 2122401 (N.D.Ill. 2007).

The evidence presented in support of the government’s probable cause showing included a live lineup of four men. Three of the men were “dressed in dark, subdued colors, whereas Mr. Mazur is wearing a bright red, slightly oversized jacket” — a jacket “foisted” on Mr. Mazur by the authorities “in an effort to make his dress look less formal.” In the words of the district court, “They may as well have made him wear a target on his chest or a sign over his head saying ‘pick me.'” The court went on to say that the ID procedure employed by Polish authorities “would never pass muster in this country,” that the lineup was unduly suggestive and “highly suspect.” It further found that “the government’s reliance on this identification is shocking and offensive.” Id. at *24.

If only our courts could save some of that disdain for the procedures routinely done by our own police.

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A Bad ID, and Bad Law, in Louisiana

In a recent Louisiana bench trial, eyewitness ID expert Robert Shomer testified in front of a judge in the 21st Judicial District on a collection of factors tending to undermine the reliability of eyewitness evidence. The local press reports:

Had the robbery case been tried before a jury, rather than a judge alone, the testimony of the specialist in eyewitness identification would not have been allowed. Because the defendant had waived his right to a jury trial, the judge permitted the testimony of Robert Shomer, an experimental psychologist who has taught at Harvard and UCLA.

The ID in this case was a police procedure in which the cops showed the witness a photo lineup including five color photos and one in black and white. It shouldn’t be hard to guess which one was the suspect, which one got picked, and which one ended up on trial and found guilty.

Though it didn’t persuade the judge in this case, Shomer testified as follows:

For a picture lineup to be fair, the pictures must be presented in the same format and should match the initial description of the perpetrator to the same extent, he said.

And:

Like a scientific study, a photo lineup should be presented in a double blind manner, he said. When the effectiveness of a drug is being studied, the nurse actually administering the drug shouldn’t know which patients are receiving the real drug and which are getting the sugar pills. That way, the nurse can’t, either consciously or accidentally, provide any indications to the patients, Shomer said.

In a photo lineup, the person showing the pictures to the witness shouldn’t know which photo is that of the suspect. Without intending to do so, a police officer might provide the witness with subtle clues as to which picture is that of the suspected person, Shomer said.

Unfortunately in this case, the judge was unable to get past the positive ID, notwithstanding the fact that it resulted from an unacceptably suggestive police procedure clearly calculated to induce the witness to pick their suspect.

There’s no question in my mind that this sort of police misconduct should result in an exclusion of any identification evidence, even under the ill-conceived current due process standard of Manson v. Brathwaite. And defense attorneys have to keep pushing that the standard be applied with teeth until Manson is eventually revisited by the Supreme Court.

Until then, expert testimony would seem to be an important remedial measure to educate juries about the fallibility of eyewitness testimony and stave off wrongful convictions. Except in states like Louisiana — and there are many states like Louisiana in this respect — where the courts don’t allow expert testimony in front of juries because they think the work of battalions of social scientists is common sense. This, despite clear evidence (PDF of poll of DC jurors) that it is far from common sense.

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Coke Machines, Willie Nelson Lookalikes, and the Failure of Manson v. Brathwaite

The following, from a real court decision:

Barnett testified that Mrs. Hayden told him the intruder was short and stocky, approximately 5’4 to 5’6 in height, that he had long hair, and that he was in his middle 20’s. At trial, Mrs. Hayden testified that she told Barnett that the intruder was between 5′ and 5’4 tall, that he had red hair, and that he had a red bandana tied around his head. Later in the day, after defendant had been apprehended, Deputy Barnett called Mrs. Hayden, told her he thought they had caught the person who had broken into her home, and asked her to come to the courthouse to see if she could identify the suspect. She went to the courthouse where she viewed a lineup. The lineup, which was reminiscent of a scene from the television show Saturday Night Live, consisted of the defendant, who bore a resemblance to a diminutive look-alike of country singer Willie Nelson, red bandana and all, five other men, the shortest of whom was 5’11 tall, and a red Coca-Cola machine. Defendant was the only person in the lineup who had red hair and who was wearing a red bandana as a headband. At the motion to suppress hearing, Mrs. Hayden was asked if defendant was the only person in the lineup with red hair. Her reply was, “I didn’t notice the other ones because when I saw him, I knew it was him.”

In case you missed it, or tend to skip over block-quoted text, the police in State v. Kiplinger (591 S.W.2d 207 (Mo.App. S.D. 1979)) used a Coke machine as a filler in a lineup, presumably to minimize the extent to which a red-headed suspect — wearing a red bandana — stood out from other members of the lineup. Further to that end, the police included five other men 5’11” or taller, to draw attention away from the 5’4″ miniature Willie Nelson lookalike.

But the most astonishing thing about this case is not the lineup itself, nor is it the egregious police negligence, incompetence, and general disregard for the rights of the accused. The most astonishing thing about this case is the fact that the appellate court held that the lineup did not run afoul of due process.

This case is a stark illustration of the failure of the Manson v. Brathwaite due process standard for the admissibility of eyewitness identification evidence. The Supreme Court in Manson told us that “reliability is the linchpin” in the admissibility analysis for eyewitness evidence, which on its face doesn’t sound all bad. When there is a suggestive procedure, courts should look to other “indicia of reliability” — the classic factors, including the witness’s opportunity to view the perpetrator, the accuracy of the prior description, and (science notwithstanding) the confidence of the witness.

But the Manson court didn’t stop there. The Supreme Court held that against those “indicia of reliability” should be weighed “the corrupting effect of the suggestive identification itself.” Which is to say, the presence of suggestive procedures was not intended to be relegated only to the first prong of the analysis, as a threshold requirement to be met prior to engaging in a reliability analysis. Rather, the corrupting effect of the suggestive procedure itself was intended to be carried over into the second step of the analysis, for a determination as to whether or not the “indicia of reliability” outweigh that effect. In a case like the one quoted above, at best it should be impossible to extract any indication of independent reliability from a procedure so corrupting, such that the corrupting effect should easily be found to win the day.

But instead, that court — and nearly all courts since — managed to omit a fundamental step of the analysis set forth in Manson, namely that the corrupting effect of the procedure itself should be considered in determining the overall reliability of the identification evidence. The unfortunate reality is that Manson has been interpreted to mean, in direct contradiction to the clear language of the decision, that if the circumstances surrounding the original viewing of the perpetrator are found to be sufficiently reliable, even the most egregiously suggestive procedure will be excused and overlooked.

The result is that courts allow eyewitness evidence in front of juries from procedures that they themselves liken to a Saturday Night Live skit. I’m not sure that the Comedy is the right literary vehicle for the story of wrongful conviction.

(Thanks to occasional fellow-blogger Zeke for digging up this case.)

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Failure to Resolve ID Issues = New Trial

Just came across an interesting decision from the great state of New Jersey from a couple weeks back, in which the New Jersey Superior Court overturned a conviction because the trial court failed to resolve factual issues relating to ID procedures. (State v. Greene, Not Reported in A.2d, 2007 WL 1223906 (N.J.Super.A.D. 2007))

The case involved an armed robbery of a Domino’s Pizza restaurant. Shortly after the robbery, police showed up, and apparently in the presence and earshot of the witness, the officer on the scene received a radio call stating that the “guy who committed the robbery” had been apprehended. The officer on the scene then took the suspect to a field location to conduct a show-up.

There were several factual disputes that were left unresolved at the Wade hearing (determining the reliability of the ID), including a complete lack of information about clothing in original description by the witness that “evolved at the Wade hearing to match precisely the items revealed to Heiman by the prosecutor,” unresolved issues regarding whether the suspect was on the ground or in a police car during the show-up and how far away the witness was, and an additional unresolved problem with the fact that the defendant was paraded in front of the witness in an orange jumpsuit and shackles immediately prior to the hearing itself.

Citing this article (PDF) on everything that’s wrong with Manson v. Brathwaite, along with other works chronicling the problems with eyewitness evidence and the due process standard that should be serving to protect against the admission of unreliable procedures, the NJ Superior Court overturned the conviction, ordering a new Wade hearing and a new trial.

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