Category Archives: eyewitness id

Impossibility is not a defense

The law, you will have guessed by now, is not concerned much with the English language and its precise definitions. A fall-back answer that’s almost always right, when it comes to the law, is that everything “depends”.

Even something as simple as ‘impossibility’. When you, laypersons, think about the word “impossible”, you usually think of something that’s not possible. But the law isn’t that easy.

There are different categories of impossibility, each with its own definition and applicability: mistake of law, mistake of fact, legal impossibility and factual impossibility. Legal impossibility is where, no matter how evil your intentions are, your acts do not constitute a crime. Factual impossibility is where it is impossible for you to have committed a crime because you misunderstood the facts. A classic example used in law school hypotheticals is that of Sydney Barringer, the guy who died in a most tragic fashion.

But none of this takes into account the law’s stubborn desire to extract a conviction from just about anyone who wanders into its field of vision, despite the apparent physical impossibility of that person to have committed the crime.

This is how we come to meet Tyree Threatt, 21 years old, facing charges of mugging a woman on June 27. They didn’t arrest him that day, of course, but she gave a description of the mugger. A few weeks later, officers saw Threatt and determined he matched the description. Then they put his photo in a lineup and she picked him out.

  1. The sad part is that this very recent MoJo article documents the horrible practice in Florida, some 9 years after I wrote this post about a Florida PD vowing to end the practice.

Convicted in the blink of an eye

You’d think this was a post about the figurative blink of an eye; a lament about the need for speed in the criminal justice system and the rush to judgment. That’s another post, but that’s not this. This is about the recently concluded trial of Ricardo Woods, an Ohio man, who was convicted of the murder of David Chandler because Chandler’s identification of Woods was admitted into evidence at the trial.

You guessed it: the identification was Chandler blinking his eyes in a hospital bed. Chandler then died and wasn’t available at trial, so the prosecution sought to enter the video of his interview at the  trial. The video is here, courtesy the Kentucky Post:

DNA exonerates another in CT; mis-ID the culprit

On Monday, Hubert Thompson walked out of Hartford Superior Court a free man. He felt the sun hit his face, breathed fresh air and went where the hell he damn pleased. He had just been granted a new trial after serving well over half a decade in prison for a rape he didn’t commit.

After DNA taken from the victim was discovered to still exist in a vault somewhere, his attorney sought to have it tested. The results excluded him as the source of the DNA and implicated another man. On Monday, his motion for a new trial was granted [I don’t have a copy of the actual motion, but if you go that page, you can see a copy of the order page, which has some details on it].

[I’ve been sitting on this post for 3 days now, since there was absolutely no media coverage whatsoever and I didn’t want to find myself in the enviable position of being the source of a news story that frankly half a dozen “news” organizations shouldn’t gotten their hands on this week. That it took 4 days before the intrepid folks at CT News Junkie tracked down this story independently speaks volumes to the focus of the “mainstream” news outlets, which are quick to splash sensationalist headlines of people’s arrests but reluctant to find out about real stories of injustice even when repeatedly informed of them. This is why independent news outlets like CTNJ and New Haven Independent have the drop on most traditional news media.]

How did Mr. Thompson get arrested, charged and convicted, you might ask, despite the title of this post? A faulty identification by the victim, ‘natch. Just in time, too, as the legislature today holds a public hearing on another eyewitness identification bill that would improve upon the one passed last year. But it also comes at the right time in the context of the death penalty debate, serving to remind us and our legislators that even here in the land of steady habits, we are not perfect. We make mistakes and one day, these mistakes are going to converge in a death penalty case. That we’ve been lucky so far is no reason to maintain faith in the infallibility of our particular death penalty scheme.

Thompson was convicted in 1998 of a rape and kidnapping that occurred in 1994. He was sentenced to serve 12 years in prison. At the time there was no usable DNA evidence, but the victim identified Thompson as the perpetrator.

Just this month, the State lab finished testing on the victim’s underwear to find that it excluded Thompson and implicated another man. Which is fantastic for Mr. Thompson, but just imagine, for a second that there was no testable DNA remaining. He’d still know he was innocent, but no one would believe him. He’d probably serve 12 years and be left to the ravages of the system with no way of proving his innocence.

There are people like that in our prisons. People who are innocent, but have no way of proving it. And a large number of them are convicted based solely on eyewitness testimony. Why do we continue to rely on this faulty mode of evidence? Why do juries? People: if you’re reading this and you’re on a jury, be extremely skeptical. There may be no white knight in 5, 10, 15 years to save an innocent man. Maybe it’s time we all started requesting instructions on the dangerousness of eyewitness testimony. We should ask that juries be instructed that 75% of wrongful convictions involved an identification of the exonerated. Something has to be done.

Just not what State Rep. Hewett wants:

However, Rep. Ernest Hewett, D- New London, said Thompson’s case lends support to a different proposal he’s pushed in the past. Hewett wants to allow the pre-conviction collection of DNA data at the time of a felony arrest.  “Can you imagine if we increased our database to arrestee DNA, how many people we’d get? They’re just walking the streets,” he said. “Those people that are running wild out there, continuing to commit crimes, their profile would be in our database.”

This, apparently, is his pet project. I’ve written in the past about how this would run afoul not only of our basic Constitutional rights, but also the principles underlying those rights and would only serve to push us closer to war with Oceania [and a debate on this bill last year produced, in my estimation, the “Best. Quote. Ever“].

Hewett, as you can see from prior posts, is prone to saying things that make little sense. He says that Hubert Thompson’s DNA exoneration, – and for that to work, they’d had to have DNA from the victim, the suspect and Mr. Thompson – this particular case, lends support to the idea that we should take DNA from people when they’re arrested. Apparently he missed the part where they didn’t test the DNA in 1998 because there wasn’t any usable DNA in the rape kit, not because they didn’t have Mr. Thompson’s DNA or that of the real suspect.

As time went by, extraction methods and protocols improved, allowing the lab to extract DNA from samples previously thought to be unusable. It’s that advancement in technology that permitted the exoneration of Mr. Thompson, not him suddenly deciding 5 years into a 12 year sentence that “hey, you know, maybe I should start working on this whole ‘getting out of serving time for a crime I didn’t commit’ thing”.

We’re all allowed to have positions on things and our pet projects – God knows I have so many – but can’t we at least expect our elected officials to be able to understand, articulate and properly apply theirs?



Connickally yours

The problem with Brady v. Maryland, as many have argued, is that its effectiveness depends entirely on the charity and goodwill of prosecutors who are tasked with enforcing it. The only sword hanging over prosecutors’ head, forcing them to do “the right thing” is one that brings as its punishment obscure and vague references to the office they work in, buried deep in mildly reproachful appellate decisions. A vague notion called the “interests of justice” and pithy phrases reminding them that their job isn’t to “seek convictions” do little encourage them to fulfill their Constitutional obligation.

The only incentive – financial loss – was vilely struck down by SCOTUS in a decision (Harry “I’m the singer’s father” Connick v. Thompson) authored by Justice Thomas (who, in the words of one commentator, just doesn’t give a fuck). And Thomas seems to have a 20 year love affair with the crooner’s father, as evidenced by his joining the dissent in Kyles v. Whitley, another case highlighting the failure of Connick’s office to turn over exculpatory material, the aforementioned Connick v. Thompson, and his lone dissent in yesterday’s Smith v. Cain [PDF] – another Connick special.

Smith was about the prosecutor’s failure to turn over police notes that significantly undermined the testimony of the only witness against Smith. From this Slate article:

notes from the detective stating that the eyewitness said on the night of the murder that he “could not … supply a description of the perpetrators other then [sic] they were black males.” Again, five days after the crime, the ostensible eyewitness said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” The detective wrote these statements down—and then wrote down “Could not ID.” It’s understandable that the eyewitness was, as he later said, “too scared to look at anybody” under the circumstances. But usually police know that a person who didn’t see a face is not an eyewitness at all.

And this was a “witness” who went on to testify with absolute conviction that Smith was, indeed, the perpetrator and he’d seen him face to face. Perhaps recognizing, albeit not acknowledging, that there may be such a thing as a Connick special, SCOTUS took cert. soon after Thompson and in brief, terse and matter-of-fact 4 page 8-1 opinion summarily reversed Smith’s conviction.

8-1. A lone dissent. Thomas authored a 17 page dissent extolling the virtues of eyewitness testimony and the jury’s function of determining the reliability of that testimony. Garbage. He knows it, I know it, his four conservative colleagues on the bench know it and don’t you fall for it. A jury can, I suppose, effectively evaluate the reliability and believability of a witness’ testimony, but only if that jury has all the relevant information before it from which to reach that conclusion. Hiding the fact that the only witness had several times claimed that he could not ID anyone hardly seems non-material.

That Thomas continues to ply this nonsense is not a testament – nor should it be – to the decline of the value of The Court, but rather a telling indictment of his abandonment of any modicum of intellectual honesty. In other words, he just doesn’t give a fuck anymore. Unfortunately, in doing so, he is fast making his presence on the Court a joke and, in the process, devaluing the institution.


A day after the Court issued Smith, it issued Perry v. New Hampshire [PDF], a case that had incorrectly been called the next step in the development of eyewitness identification jurisprudence. The issue in Perry was far more limited and not a review of lineup procedures in of themselves. Here‘s a nice article by the same fellow who wrote the Slate piece above on the juxtaposition of the two cases.



Witnessing bullshit

That eyewitness identification is a troublesome area of the criminal justice system is well known to regular readers of this blog. That the movement toward long overdue reform is lethargic and a source of much consternation to me is well known to the readers of this blog. So, it presented a bittersweet moment when I learned that the Connecticut-centric NPR show “Where We Live” was going to do an episode on the problems of eyewitness identification and the enacted legislative reforms. That the complexities of this issue cannot be given – heh – justice in a one hour time slot goes without saying, but there is something to be said about this seeping into the collective general consciousness. So, all for the better, I suppose.

Until a caller called in with a comment toward the end of the show (which you can listen to in its entirety here). The caller “Wayne” offered a personal anecdote, which I paraphrase below:

I’m a cab driver in New Haven and back in 1979, I had transported an individual, who it turned out had just committed a murder. So, as a witness, I was called to testify at the trial and identify him. Now, when I had transported him, he was a thin fellow, riddled with a drug addiction, unkempt, mousy and had that lean and hungry look. After getting 3 squares a day, regular sleep and no sunlight for a year at the taxpayer’s expense, he looked like a different man. He’d put on weight, had grown hair and was looking well-fed. I couldn’t recognize him at all. I couldn’t see the person I had transported a year earlier, so when asked to identify the passenger, I figured, heck, it has to be that guy sitting next to the defense attorney, looking quite out of place in a suit. So I pointed in that direction. Luckily, there was other evidence and he was convicted.

Read it again if you’re sitting here thinking “well, what’s the problem?”. The problem is that this witness admitted that he had no idea whether the defendant was indeed the same person who he had transported a year ago, but pointed at the guy sitting in the courtroom anyway, thereby making an in-court identification that jurors could – and would – rely upon to convict him.

Putting aside the desire that witnesses be honest and forthcoming about their inability to recall the defendant as the perpetrator – they rarely are – this highlights a recurring problem for which there may be no solution. In most criminal trials, there is one person sitting across from the jury who just doesn’t belong to the scene. There is one person who best resembles a Microsoft photoshop faux pas: the defendant. Either he isn’t wearing a suit, or wearing one that’s ill-fitting or is wearing the same shirt that the juror saw him wear during voir dire, or he’s just…sitting there. Looking out of place. Uncomfortable.

And everyone can see it. Even the witness. And that makes identifications in court essentially meaningless. Because, when asked to identify the perpetrator, who else is the witness going to pick out? The prosecutor who’s just been asking him questions? The defense attorney who’s been objecting? The judge? Don’t be silly.

I’ve been thinking about this all day and I’m not sure that there’s a solution. But there is a problem. And the problem is that it turns bad memories into good ones. It turns hunches into convictions. It’s the same problem with juries: the defendant’s here, he’s arrested, he must be guilty. Innocent people don’t just end up in trial for no reason. If the system has got him, it’s got the right guy.

We can control this to some extent during pretrial hearings on the suppression of identifications, but in trial, there’s no apparent remedy. It’s yet another failing that we have to live with and work to overcome.


Do video lineups lead to accurate eyewitness ID?

That’s what researchers from Royal Holloway University of London Eyewitness Group seem to be suggesting, as per this BBC news story. I haven’t been able to find the actual research paper or its conclusions, but presumably its in the offing. It will be interesting to read and see what the basis for this conclusion is. The current statistics, as per the report, seem pretty dire: only 4 out of 10 witnesses make accurate identifications. For more on eyewitness ID posts on this blog, click here. If you fancy yourself a pretty astute observer, try Gary Wells’ Eyewitness ID test.

Death penalty abolition bill filed and waiting

It isn’t even January yet and already state legislators are “pre-filing” bills to be voted upon in the next session of the state legislature. As expected, first among them is a death penalty abolition bill with State Rep. Gary Holder-Winfield as its proponent. Holder-Winfield, you may recall, spearheaded the first abolition bill two years ago, which passed both the House and Senate and was ultimately vetoed by “only a month left until she’s gone, wooohoo” Gov. Rell.

Holder-Winfield has also introduced other necessary criminal justice reform legislation, like adopting the best practices for eyewitness identification procedures and videotaping interrogations. He has “pre-filed” a bill addressing the former once again.

Of course, with the just concluded Hayes trial and the upcoming circus in the trial of his co-defendant Joshua Komisarjevsky, the debate on the death penalty bill is likely to be emotional, contentious and close. But no one can accuse Holder-Winfield of falling prey to the typical abolitionist tendencies of avoiding confrontation and “waiting for the right moment”, which almost never materializes, because there’s always a heinous crime around which the pro-death penalty folks will rally.

With newly elected anti-death penalty Dan Malloy taking over the reins of the State for the next 4 years, there’s a sliver of hope for abolition.