Identifying the Wrong Person

Supposedly the defendant, a complete stranger to the victim, “sucker-punched” him in the face with his fist.  After an initial trial saw a 6-6 hung jury, the second trial saw Mr. Martinez convicted and sentenced to 31 years to life.

In a 2010 interview with the Davis Enterprise, Deputy Public Defender Richard Van Zandt was incredulous about the strength of the evidence.

“One person out of all the people on these jam-packed streets testified, saying Mr. Martinez  was the person that hit Mr. Tamayo,” Mr. Van Zandt said to the Davis Enterprise, referring to the Picnic Day crowds. “Not even Mr. Tamayo, in his testimony, was sure that Mr. Martinez  was the right guy.”

Eyewitness identification is something that has not come up a lot in our survey of the Yolo County courts, however, the Innocence Project cites it as among the leading causes of wrongful convictions.

About three-quarters of all cases where convictions were later overturned due to DNA evidence had eyewitnesses who identified the wrong person. 

Captured in the book “A Plea For Justice” is the story of Timothy Cole.

The book describes how a 24-year-old black student at Texas Tech University in Lubbock Texas, an army veteran who somehow became “entangled in a web of deceit cast by an overly-aggressive police investigation, unjustly arrested without any physical evidence to link him to the crime, falsely convicted, and then incarcerated for aggravated sexual assault on a fellow student whom he had never seen until the first day of his trial.”

Elliot Blackburn, a reporter with the Lubbock Avalanche-Journal in a recent article writes, “A suggestive photo lineup helped to convict Tim Cole  in the 1985 rape of a Texas Tech student. Cole died in prison in 1999, almost 10 years before DNA evidence proved his innocence in the crime. He became the state’s first posthumous exoneree and pardon recipient.”

Now Texas is seeking to fix what is obviously a broken system.  Mr. Blackburn reported on May 18, 2011, “Law enforcement agencies across the state would move to updated eyewitness procedures rooted in academic research under a law Texas senators sped Wednesday to Governor Rick Perry’s desk.”

The new law would require Texas law enforcement agencies to adopt eyewitness procedures that have basis in scientific research on memory, the article reports.

“Agencies would have more uniform standards on how police give instructions to potential eyewitnesses, how departments conduct lineups and encouraging the process be conducted by officers or employees not familiar with the investigation,” the article continues.

Agencies could adopt standards prepared by a Sam Houston State University research center, or show that their own procedures comply with such methods.

“What is in the bill is pretty much common sense,” said James McLaughlin, general counsel and executive director of the Texas Police Chiefs Association. “Most departments are already doing those things that are required in the bill.”

“Our memories are not like cameras,” said Scott Henson Director of the Innocence Project of Texas, which supports the legislation. “Eyewitness testimony is trace evidence so like all trace evidence, it can be contaminated if it’s not gathered properly.”

The Texas bill was sponsored by Rep. Pete Gallego, a former West Texas prosecutor.

“The idea, perhaps, is that the person who is the lead investigator should not be the person organizing the lineup,” said Rep. Gallego. “There’s really nothing more basic in our system than making sure that the person that you’re putting in prison is the right person.”

“Years ago, everybody would have bragged and said you know what, there’s nobody in our criminal justice  system who’s innocent, everybody who’s in there is there because they deserve to be,” said Rep. Gallego. “And now we know better. You need to know as a taxpayer, you need to know as a citizen that people who are in prison are there because they deserve to be.”

The question increasingly becomes whether such witness identification should even be admissible in court when it has been shown to be so unreliable.

As the Innocence Project reports, “While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification  is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.”

This is not new research, indeed, the Innocence Project cites studies going back to 1907 showing the unreliability of eyewitness identification. 

According to researcher Marc Green,  a mock trial study found guilty verdicts in only 18% of cases where there was no eyewitness identification but 72% of the time where there were.

Moreover, even when the identification was impeached, the guilty rate was still 68%.

Some of the research suggests it is not even a close call, as in one of the cases overturned there were five separate witnesses who identified the defendant – all wrongly.

A 1987 study showed that in 500 wrongful convictions, mistaken eyewitness identification occurred in 60% of them.  “This is an amazingly high number since eyewitness identification is an important factor in only 5% of all trials,” writes one observer.

So why is it, with a very long history, that we continue to rely on it so heavily in trials? 

In a recent case the Vanguard began to cover before a mistrial was declared, that of Oscar Barrientos,the perpetrator was identified in a single photo.

They did not have the victim pull the suspect out of a photo lineup or even a live lineup.  Instead, they brought her a single photo and told Ms. Cerna that this was the individual whose fingerprint they found on her window.

Even at the time that they showed her the photo, she was only 70 to 80 percent sure that was the person who she had seen in front her house.

As she explained, she was only 70 to 80 percent sure, “because I really didn’t see him that well.”

When asked in court if she saw the person in court whom she had seen on the day in question outside of her home, she responded flatly no.

She said that too much time has gone by and people change, as though trying to minimize the problem.

Deputy DA Tokhi had tried to ask her about the person to the left of the defense attorney, but that was shut down immediately on objection.

Deputy DA Tokhi then spent about 20 minutes, painfully trying to resurrect the credibility of his key witness, trying to get her to minimize the 70 to 80 percent and to focus on facial hair issues, but for the most part she stuck with her testimony.

Such evidence in the past has been enough to put people away in prison for lengthy periods of time.  Tim Cole’s tragic death, that could have been avoided with proper medical attention, only heightens the sense of tragedy.

Mr. Blackburn reports, the actual perpetrator in the Tim Cole case, a man named Jerry Johnson, “sat silent and followed the coverage from his jail cell, waiting for his own conviction on another sexual assault.”

Mr. Johnson sought out Mr. Cole about ten years later.  According to Mr. Blackburn, “A letter confessing to the crime reached Cole’s mother, Ruby Session, heir to his estate. Cole had died in prison of an asthma attack in 1999.”

“When I read in the report that Mr. Cole had died in prison in 1999, I cried and felt double guilty, even though I know the system’s at fault,” he wrote shortly after the first story came out. “A day later, I am still bothered, terribly, by the death revelation.”

Obviously, the system was not the only thing that was at fault.  But it does share a good deal of the blame here.

One thing that becomes clear here is that a wrongful conviction not only punishes the innocent, it traumatizes the victim.

According to the recent article in the Lubbock paper, the victim has gone through her own struggles with forgiveness.  “About 10 years after the 1985 attack and trial, she had forgiven Cole because she needed to move on, she said.”

However, that changed when she learned in 2008, “that the man she’d forgiven hadn’t done anything at all.”

Writes Mr. Blackburn, “It was Michele who sought forgiveness, months later, at a nervous meeting with Cole’s family. In February 2009, she faced Johnson for the first time during an exoneration hearing in Austin.”

“I’m responsible for all of this and I say to you again that I’m truly sorry for my pathetic behavior and selfishness,” Mr. Johnson told the court.

The victim answered angrily.  “I may forgive you one day, because I’m a Christian, and I’m going to try to forgive you,” she told him in 2009. “But it’s going to be a long, hard time.”

As Blackburn reports, “Lubbock Police years ago abandoned some of the practices that helped condemn Cole. Where the department once used unintentionally suggestive mug shots, investigators now use uniform driver’s license photos.”

However, experts claim that the department has not gone far enough, and clearly the focus should not just be on Lubbock, as the problem is nationwide.

The Innocence Project recommends four critical reforms in eyewitness identification procedures.

First they recommend adoption of laws mandating that law enforcement utilize the double-blind  method for photo and live lineups. This procedure guarantees that the officer administering the lineup does not know the identity of the suspect, thus reducing the likelihood that the officer will inadvertently or intentionally suggest to the witness who the suspect is.

Second, they said that law enforcement needs to carefully provide instructions to the eyewitness that state that the perpetrator/suspect may or may not be present in the lineup.

This, they argue, reduces the likelihood that the eyewitness will feel compelled to make a selection from the lineup participants even when the actual perpetrator may not be present in that lineup.

Third, they want law enforcement to present the individuals in a lineup to the eyewitness in a sequential manner (one after another, instead of all at one time). Research shows that by conducting a lineup in this fashion, the likelihood of misidentification decreases significantly.

Finally, they want police to collect confidence statements from the eyewitness at the time of their identification. This will allow the witness to make known his or her level of confidence in the identification, thus providing valuable information to investigators.

This is one area that could be improved, at least in the Barrientos matter in which the witness herself was so adamant about lacking confidence in her identification of the individual involved.

—David M. Greenwald reporting