Tuesday, October 14, 2014

In wrongful conviction cases, questionable witness identification more important “evidence” than television “CSI” mythology

I must admit that I despise all of these crime shows on television with their pompous, self-righteous detectives and “crime scene investigators.” They always get it “right.” Almost all of the victims in these shows are white females, almost all of the perpetrators white males—clearly an effort to make a “political” statement. No one, once identified as the prime suspect, is ever actually innocent. No one ever makes a mistake—unless, of course, it leads to a very rare acquittal on Law & Order.

But in the real world, they do sometimes get it wrong—and badly. The Northwest branch of the Innocence Project recently won the release of a man who spent ten years in prison for a crime he apparently did not commit. Brandon Olebar was convicted in 2004 for assault and theft as one eight attackers during a home invasion. After the attack, the victim was able to identify his girlfriend as one of the attackers—Olebar’s sister. Interestingly, the victim did not “ID” Olebar until his picture was presented to him by police. 

The victim presumably was familiar with his girlfriend’s brother, so why he was not identified as one of the attackers initially was not explained; it seems more likely that the victim chose to “assume” he was there out of vengeance. After several persons present at the scene of the crime testified that he had not been present, Olebar’s conviction was vacated and he was awarded nearly $500,000 ($50,000 per year of imprisonment) under a new state law that compensates wrongfully-convicted persons. 

According to the National Registry of Exonerations, since 1989 close to 1,000 cases of wrongful conviction in which the prisoner served time for felony crimes but was subsequently absolved and released from all legal penalties. This may seem like a “small” number of fish in the ocean; on the other hand, it could also be a fraction of wrongfully convicted persons, since there is only so many resources available to investigate every potential case. Those collecting the data also discovered over 1,000 additional cases in which false charges and convictions were thrown out due to police misconduct. 

While DNA testing has been a major factor in initiating the wrongful conviction crusade, it should be noted that DNA evidence was the determining factor in about one-third of the cases, mainly those involving homicide and sexual assault; in the latter cases, the crime was often fabricated by a vindictive ex-spouse or girlfriend. The majority of wrongful convictions were based on either deliberate or mistaken eyewitness or victim identification. That the majority of the exonerated are minorities suggest the “they all look the same”—perhaps a variant of the “they are all the same”—syndrome. 

University of Michigan law professor Samuel Gross, who helped compile the registry, found the following links between type of crime and how wrongful convictions were drawn from them, as identified by an NBC News report:

 Fabricated crimes. False convictions in child sex abuse cases were usually due to fabricated crimes; sometimes a divorced parent told a child to make up lies about an ex-spouse abusing them, or police or a therapist convinced a child to say something that wasn't true.

 Eyewitness mistakes. In adult rape cases, for example, false convictions were typically based on eyewitness mistakes, "more often than not, mistakes by white victims falsely identifying black defendants," the report said.

 Misconduct by authorities. For homicides, misconduct by authorities was the second-biggest cause of false convictions, just behind false eyewitness accounts.

The report noted that since “Eyewitnesses are crucial to a trial…their mistakes, whether intentional or not, can have a huge impact. ‘The bulk of the evidence that is presented in trials in human testimony. Almost all of the time, energy, and effort is spent hearing people's statement in what occurred at a different place and a different time,’ Dan Simon, a professor of law and psychology at USC, said. ‘The bottom line is, people are often inaccurate.’"

Also complicating matters was the fact that 15 percent of those exonerated had falsely confessed to the crime they were accused. Gross pointed out that "The first thing to note is the risk of false confessions goes up rapidly when the suspects are either juveniles or mentally handicapped or both." He also noted that interrogators might deliberately “misinterpret” a statement as a “confession,” or based on a preconceived assumption, lead the innocent person through a pressure-cooker interrogation over many hours or days while the “suspect” is already enduring a “time of extreme mental anguish and distress”—especially when a victim is a family member.

The registry notes that 93 percent of those exonerated are men, 62 percent are minorities, 48 percent were falsely convicted of murder and 35 percent of sexual assaults—a third of which involved children. Especially in the sexual assault cases, exoneration can be cold comfort; the “stigma” can still last a lifetime—and beyond.

From the Innocence Project, “Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in 72% of convictions overturned through DNA testing. 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.”

The Project found that common instances of misidentification include the following:

A witness made an identification in a “show-up” procedure from the back of a police car hundreds of feet away from the suspect in a poorly lit parking lot in the middle of the night.

A witness in a rape case was shown a photo array where only one photo of the person police suspected was the perpetrator was marked with an “R.”

Witnesses substantially changed their description of a perpetrator (including key information such as height, weight and presence of facial hair) after they learned more about a particular suspect.

Witnesses only made an identification after multiple photo arrays or lineups — and then made hesitant identifications (saying they “thought” the person “might be” the perpetrator, for example), but at trial the jury was told the witnesses did not waver in identifying the suspect.

Despite the fact that witness misidentification has been identified as a problem for well over a century by criminologists, “Eyewitness identification is (still) among the most prevalent and persuasive evidence used in courtrooms. Eyewitness testimony that directly implicates the defendant is compelling evidence in any trial, but it is not error-proof. Jurors may not realize that confident, trustworthy witnesses can be mistaken. A single witness’s identification can be enough to obtain a conviction.”

False identification can also lead to poor police work:

“Eyewitness identification also plays a key role in shaping investigations. In the immediate aftermath of a crime, an erroneous identification can derail police investigations by putting focus on an innocent person while the actual perpetrator is still on the streets. Once a witness identifies the suspect to police, whether or not that person actually committed the crime, investigators may stop looking for other suspects.”

Since DNA evidence is only useful in perhaps 5-10 percent of all criminal cases, eyewitness identification often supplies the “best” evidence—and sometimes the only evidence—to convict a person. Shockingly, the Project found that in 53 percent of the cases where misidentification led to exoneration, the witnesses even “misidentified” the race of the accused. 

When sex is involved, anything goes, especially when the media hysterically demands immediate closure. The Project found one case in 1982 in which

Three young girls were sleeping alone in a Shreveport, Louisiana home when a man in cowboy boots came into the house and raped the oldest girl, who was 10 years old. When police started to investigate the rape, the three girls all remembered the attack differently. One police report said the 10-year-old victim didn’t see her attacker’s face. Another report — which wasn’t introduced at trial — said she identified Calvin Willis, who lived in the neighborhood. The girl’s mother testified at trial that neighbors had mentioned Willis’s name when discussing who might have committed the crime. The victim testified that she was shown photos and told to pick the man without a full beard. She testified that she didn’t pick anyone, police said she picked Willis. Willis was convicted by a jury and sentenced to life in prison. In 2003, DNA testing proved Willis’ innocence and he was released. He had served nearly 22 years in prison for a crime he didn’t commit.

Interestingly, 15 percent of false convictions were obtained with the help of jailhouse “snitches” who of course have an incentive to testify to something that will help prosecutors. Also of interest is the fact that 95 percent of all felony criminal cases end in plea “deals,” in which while the prosecutor may concede the “possibility” of not having enough evidence to convict on the higher charge, “persuades” an innocent but panicky defendant to plead to a lesser charge in which there might be no evidence to convict either. In many such cases, the defendant may feel completely at the mercy of a more powerful force, not knowing that the prosecutor is “bluffing.” Even if innocent of the charges, the now “convicted” person has basically “bargained” away his right to appeal.

Of course, the most insidious kind of false conviction occurs in capital crime cases that lead to the death penalty. The National Academy of Sciences released a report stating that, through a rather convoluted interpretation of data, that 4.1 percent of inmates currently on death row are innocent could be a “conservative” estimate.

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