eyewitness id
Connickally yours
Jan 11th
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
Nov 22nd
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?
Jul 10th
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
Dec 16th
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.
H/T: CTNJ
Best lineup ever
Nov 11th
And by that I mean worst lineup ever. Is it any wonder that people get wrongfully convicted because of police tactics like this?
can you spot the perp? hint: he's the one who's not smiling
Yes, that is the defendant in a headlock in a police lineup full of other police officers who are smiling. This is not a recreation or a photoshop job. This. Actually. Happened. And as a result, Ivan Henry spent 27 years in a British Columbia prison for 8 rapes he did not commit. The culprit once again? Eyewitness identification:
Henry was convicted solely on identification by the victims.
The appeal court found the identification was weak and the trial judge erred by instructing the jurors that they could infer consciousness of guilt from the resistance of Henry to participation in the line-up conducted by police on May 12, 1982.
The appeal court considered a shocking photo of the police line-up, which showed three police officers, dressed in civilian clothes, restraining Henry, who was in a head lock.
The other people in the line-up were believed to be police officers, who were all smiling.
“If this had been disclosed, it would have been a gold mine for a defence lawyer,” Appeal Court Justice Richard Low said of the photo during Henry’s appeal hearing last June, when the court reserved judgment.
It’s a wonder that courts across the country still refuse to accept that eyewitness identification as the sole basis for a conviction is not very reliable. The study of and the science behind eyewitness misidentifications is so well developed and is entering the mainstream consciousness to such an extent that courts will be unable to ignore its realities much longer. Connecticut came close in recent months, without actually taking that big step.
Henry’s case highlights another common problem with wrongful convictions. It is often said that the 250+ exonerations touted by the Innocence Project is just the tip of the iceberg. There are many. many more innocent people behind bars who cannot be helped, because in most cases, there is no physical evidence to test. DNA retention policies are terrible and in some cases there is willful destruction of the testable material. Henry may have been released sooner, but for the same problem:
Change blindness and the fallacy of the all-remembering cop
Jun 13th
Change blindness is a visual perception phenomenon in which the human mind fails to detect pretty significant changes in our surroundings and distorts our memory.
The most recent famous example of change blindness and its relative, inattentional blindness, is the “count the passes” experiment, which I’m sure everyone’s heard of by now (read the NYT review of their book on the subject). What that illustrates is that when our mind is focused on one task, we zero in on it at the expense of most things around it. For the criminal defense lawyer and the criminal justice system, this is a particularly troublesome issue.
Eyewitness misidentification has become the number one cause of false convictions and it’s easy to “see” how. During a particularly stressful event, when combined with weapons focus, the human mind zeroes in on one thing and pretends to see the others. It fills in the gaps as it were and it is on this peripheral vision that faces are remembered and convictions are obtained.
But there’s a problem with remembering faces. Look at this video:
It’s 5 p.m. Do you know where your bills are?
Mar 29th
Today, at 5:00pm, the Judiciary Committee of the state legislature closed for business, just like any other day. But today is important for two reasons: 1) It was the last day on which the committee could vote on bills; 2) This marked the first year that the eyewitness identification reform bill passed and will now head to the legislature for a full vote.
There are several bills I’ve been tracking for a while now, of interest to me and the regular reader. We now know the fate of all those bills (here’s a list of all bills voted out of committee and here’s a list of those that were on the agenda).
Good news:
The biggest news, in my opinion, is that the eyewitness identification reform bill received enough votes to make it out of committee (it died in committee last year). This is a tremendous step forward in the quest for adoption of best practices in lineups and photo arrays.
In addition, the sex offender residency restriction bill was never called to vote, and so unless it’s added as an amendment to a bill that did pass, it has died. (My problems with this bill were documented in this post.)
Another year and another assault on the dignity of The Great Writ has been turned away. The habeas corpus “reform” bill also died in committee, never being called to a vote.
For the second year in a row, the Adam Walsh fearmongering and bleeding money Act also failed to make it out of committee.
The innocuously titled “Act Concerning Subpoenas for Property” also wasn’t called to a vote and went away quietly. Don’t get fooled by the title. This was a very, very dangerous investigative subpoena bill, essentially granting the state to subpoena whatever the hell they wanted from whomever they wanted, even in the absence of a pending criminal prosecution/investigation. It essentially spat in the face of the Fourth Amendment.
An act seeking to create a mandatory-minimum sentence for assault of a public safety officer made it out of committee, but if I recall correctly, without the mandatory minimum.
Three bills hell bent on pushing Connecticut closer to fulfilling Orwell’s prophecy, one to remove the statute of limitations on perjury in murder cases; one to remove the statute of limitations for hindering murder prosecutions and one making it a crime to fail to report a “serious crime” against a child.
The “sexting” bill made it out of committee. But that could be a good or bad thing depending on your point of view. Me, personally? I don’t care either way.
Bad news:
I’ve always viewed the eyewitness ID bill and the videotaping of interrogations bill as two peas in a pod. Fraternal twins, if you will. Where one goes, so should the other. Unfortunately that wasn’t the case today. I’m not even sure the videotaping of interrogations bill was called for a vote. One step at a time, I guess. There’s always next year (says he, sounding awfully like a Red Sox fan. I need a shower).
The big-ticket news item of the day is the passage of the bill eliminating the statute of limitations for civil suits in child sexual assault cases. It’s not criminal, per se, but a stupid idea nonetheless.
A statewide ban the box proposal was called for a vote, but derailed and then “held”, which is lege-speak for killed.
For the second year, a bill seeking to reduce the zone around schools within which drug offenses triggered an enhanced penalty from 1500 feet to 200 feet. In addition, the penalty would have been triggered only for sales made within school hours. This was a much needed bill and I’m sad that it died.
I’m sure there are others that I’ve missed. Which bill did you want to see make it out of committee and which bill are you glad/mad didn’t?
Wishful Wednesday
Mar 9th
In what has by now become a ritual dance, every year the state legislature toys with bills meant to enact some real reform in the criminal justice system. Every year, like the sucker I am, I get seduced, dancing the dance, enjoying the promise of a moonlit sonata. Every year, like the battered spouse, I know it will be different. I believe and I hope and I pray.
So here we go again.
Tomorrow, the judiciary committee is set to conduct public hearings on three very important bills:
S.B. No. 230 (RAISED) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS.
H.B. No. 5273 (RAISED) AN ACT CONCERNING EYEWITNESS IDENTIFICATION.
H.B. No. 5445 (RAISED) AN ACT CONCERNING THE DEATH PENALTY.
The bills seem to fall under the umbrella of “fixing the death penalty” and in some sense they may do so. But the real action in these bills is the adoption of best practices when it comes to interrogations and identifications. The death penalty bill also has some very interesting proposals. But let’s start at the very beginning. The interrogations bill is a hoot to read:
First, it applies only to those accused of a capital felony or Class A or Class B felonies. Second, any statement made by such person is presumed inadmissible unless 1) recorded and 2) the recording is not substantially altered. The bill then lists 9 exceptions pursuant to which a non-recorded statement is made admissible, but squarely places the burden on the state to prove by a preponderance that the exception is met. But there’s this odd subsection, which in my opinion, seeks to invalidate the entire bill:
(h) The presumption of inadmissibility of a statement made by a person at a custodial interrogation at a place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.
Since there is no further clarifying information, one must assume that this reverts back to the current standard for admissibility of statements: that they are reliable given the totality of circumstances. What, then, is the purpose of the bill requiring videotaping of interrogations? Am I reading this wrong?
The eyewitness identification bill is the standard bill that has been introduced for the last few years, so there’s nothing really to remark on. It is the death penalty bill that is the piece de resistance in this trifecta.
The bill starts tepidly enough and one might even confuse it for a bill proposed by a Republican to further limit the rights of criminal defendants in death penalty cases (oh wait, that’s exactly what it was…). But then it just takes off into neverneverland in a delightful way.
The bill first mandates that all relevant agencies must maintain exact records of the expenses incurred in pursuing and defending the death penalty. Some of you might recall how last year the public defender’s office was able to provide a dollar amount for the money spent, but the State “didn’t keep such records”.
But wait, it gets better. And how:
Another conviction reversed: Exhibit n for no prosecutorial immunity
Nov 15th
In what is becoming routine, another conviction was reversed this past week in New York, this one too based on the eyewitness testimony of 5 individuals. This, though, isn’t the usual case of mistaken ID nor is it a DNA exoneration.
Convicted of murder in 1992, Fernando Bermudez has wrongly been in jail for 17 years. Interestingly, it took only a year from his conviction for the eyewitnesses to recant citing police and prosecutorial pressure and manipulation:
A year after Mr. Bermudez’s 1992 conviction, five witnesses who had identified him as the killer at trial recanted, saying in sworn affidavits that, they were coerced or manipulated by the police and prosecutors to identify Mr. Bermudez as the killer. Several of those witnesses reiterated their recantations in September at a hearing before Justice Cataldo.
Not only that, but all 5 testified at the most recent hearing that they viewed his mugshot as a group and discussed his likeness to the killer: a big no-no in photo array identifications. All the science in this field shows that we have a tendency to compare pictures to each other and to what we think the suspect looks like and pick the one that most closely resembles the person sought to be identified, instead of picking the person who actually is. If you don’t believe me, try this simple test from expert Gary Wells‘ website.
In his 79-page decision, Justice Cataldo wrote that Mr. Bermudez’s rights were violated because the police had allowed prosecution witnesses to view Mr. Bermudez’s mug shot as a group and to discuss his resemblance to the killer. Justice Cataldo also found that the prosecution should have known before sentencing that one of its cooperating witnesses, Efraim Lopez — a teenager whom Mr. Blount had punched at the club — had given false testimony.
But that doesn’t deter prosecutors. In fact, they’re so wedded to the notion that once a conviction is obtained it must be defended at all costs – and certainly one where the reversal is based in part on misbehavior by one of their own – that they utter nonsense like the following:
Rest in Peace, good bill, your time will come
Apr 10th
It’s that time of year – when the legislature’s committees are done discussing, when one party has successfully blocked discussion and vote on other bills and the few stragglers that made it through leave behind a myriad of bills that died on the floor. Some of these bills are truly dead, some have a whisper of a chance – either for this year as add-ons to bills that made it through, or next year, because they’re persistent little sobs.
So, in honor of Good Friday (no, not really, don’t get mad at me and leave a 1000 comments), here are three Good Bills that died this year in committee, and two “it’s Good these Bills died in committee”:
Shh…don’t look now…
Mar 24th
but the Judiciary Committee is in full swing again and is considering several important bills again. Here’s a listing of the bills up for public hearing today, with some links to submitted testimony. I’ll have more on specific bills as they progress.
S.B. No. 348 (COMM) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS. (JUD)
S.B. No. 349 (COMM) AN ACT CONCERNING THE PENALTY FOR POSSESSION OF A SMALL AMOUNT OF MARIJUANA. (JUD)
S.B. No. 357 (COMM) AN ACT CONCERNING EYEWITNESS IDENTIFICATION. (JUD)
S.B. No. 537 (COMM) AN ACT PROVIDING COMMUNITY REINTEGRATION SERVICES TO END-OF-SENTENCE INMATES. (JUD)
S.B. No. 543 (COMM) AN ACT CONCERNING SENTENCE REVIEW Modifications. (JUD)
You people would make terrible eyewitnesses
Mar 10th
The poll results from the eyewitness ID poll reveals either that I’ve got a bunch of non-attentive readers or (more likely) that there’s no way anyone can identify anyone from that array. They all looked the same to me, btw.
So, for those of you interested in the “answer”, it’s after the jump.
A dizzying array
Mar 1st
From a regular reader, can you pick out the defendant from this array given the description (click on the image for a larger size)? Make your choice in the poll below. I’m gonna sticky this post for a bit.
[poll id="27"]
If only they’d used such caution the first time
Jan 4th
As often happens, I lollygag when it comes to writing posts. Then, all of a sudden, in a span of a day of day or two, several stories appear that tie together the strands in my head. Today is such a day.
Percolating in the back of my head was some chagrin directed toward the prosecutors in the Clarence Elkins case (aka #92), the subject of Friday night’s Dateline. Elkins, in a case with some parallels to Miguel Roman, was convicted of raping his niece and raping and murdering his mother-in-law based on one single dubious eyewitness: his niece, who told cops that the killer looked like her uncle. Clarence, meanwhile had an alibi: he had been drinking heavily at a bar and then came home to his wife, who was awake. They went for a walk.
The police, however, got their blinders on because of the statement of the niece, despite the fact that rudimentary DNA testing excluded Elkins. Elkins’ wife, convinced of his innocence, began investigating on her own:
Troy Davis is “innocent” because…
Oct 20th
This “rebuttal” of Troy Davis’ advocates does little to dispel any notions of an impending injustice [via Paul Cassell at Volokh].
More disturbing than the weak “rebuttal” (for an extensive rebuttal of the “rebuttal”, see this comment), however, is the post itself by Paul “I used to be a Judge” Cassell, which contains some very disturbing assertions and implications.
He writes:
There has been much ado in the media lately about another “innocent” person about to be executed. Unfortunately, most of the media coverage about the impending execution of cop-killer Troy Davis has spent precious little time discussing the facts of the case.
I guess in Paul “I used to be a Judge” Cassell’s world, no innocent man has ever been sentenced to death, despite, well, innocent people actually being released from death row. Let’s just ignore those that were set free after numerous years awaiting execution.
Further, Paul “I used to be a Judge” Cassell implies that somehow the media coverage has ignored the facts of the case. While it may be true that lately the media accounts haven’t focused on the facts, that doesn’t mean that when the story about Davis first broke, the fact weren’t front and center. Without a link to back up his assertion, I’m disinclined to give him any credit. What else would they focus on right now? The issue is whether an innocent man is about to be executed. The stories should rightly focus on the reasons why he might be innocent and any status updates.
Then, Paul “I used to be a Judge but now I’m a victim’s advocate” Cassell throws out this gem:
Even more poignant is this link, which has information about the victim in this case — Officer Mark Allen MacPhail.
I guess as a standalone link it is fine, but to somehow imply that the saintliness of a victim should be a consideration in the guilt or innocence of a defendant is an affront to the whole judicial system. Would he care less about this case were the victim another drug dealer from the ‘hood? I suspect yes.
Obviously I know nothing of Officer MacPhail, nor do I presume to. By all accounts he lived a good life and was killed in the line of duty – an obvious tragedy. But if we start making determinations about the guilt of the accused based on the character of the victim, well, what sort of criminal justice system would we have?
Even more disturbing is that this is a man who used to be a judge. One of the characteristics required of a judge is to be able to evaluate both sides of an argument, assess the facts, give each one credence and then decide how to apply the law. Paul “I used to be a Judge” Cassell seems to think that these are characteristics that stay with the position of a judge, not the person occupying the judgeship.
Finally, we get this zinger:
Davis was convicted and sentenced to death in 1991. We live in strange times when the claim is made that he hasn’t had due process yet.
I think he may just be advocating for a statute of limitations on innocence claims. I don’t know that that merits any consideration.
This also isn’t the first time Paul “Good thing you’re not a Judge anymore” Cassell has made some outrageous comments.
Troy’s execution date is coming up soon. Read more about him and make your own decision.
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