Thursday, June 24, 2010


"More than 75 percent of the cases overturned through DNA testing across the country trace their convictions to poor eyewitness evidence, according to research by The Innocence Project.

Lighting, stress and the difficulty of correctly identifying members of a race other than a witness's own have contributed to incorrect identifications, according to the project, which pursues DNA testing to prove wrongful convictions."

REPORTER ELLIOT BLACKBURN; LIBBOCK AVALANCHE-JOURNAL; Wikipedia informs us that, "(the) Lubbock Avalanche-Journal is a newspaper based in Lubbock, Texas, U.S. It is owned by the Morris Communications Company."


BACKGROUND: Timothy Cole, whose cause has been championed by state lawmakers and others, was found guilty in the 1985 rape of a Texas Tech student and was sentenced to 25 years in prison. His conviction was based in part on the victim's identification of him as her attacker and what a judge later called faulty police work and a questionable suspect lineup. The victim later fought to help clear Cole's name. Cole died in prison in 1999, at age 39, after an asthma attack caused him to go into cardiac arrest. Following repeated confessions by another man, Cole was cleared by DNA evidence in 2008, and a state judge exonerated him in 2009. His family pursued a pardon, but Perry had said he did not have the authority to grant one posthumously. That changed after Perry announced that he had received legal advice to the contrary.


"Lubbock police have moved away from relying on eyewitness evidence to prove cases, but experts say it's not far enough,"
the June 20. 2010 Lubbock Avelanche-Journal story by reporter Elliot Blackburn begins, under the heading, "Eye-dentification ... are we sure?"

"And at least one recent case shows the weak evidence may still anchor lengthy prison sentences in local cases,"
the story continues.

"Departments, including Lubbock, have steadily edged away from using witness or victim memories of a crime as linchpin of major cases in the wake of hundreds of overturned convictions nationwide rooted in faulty identifications.

The department resisted what a spokesman called "knee-jerk reactions" to exonerations and new research that changed laws in three states and eyewitness procedures in at least five major departments including Dallas.

Capt. Greg Stevens said in a recent interview current procedures would make impossible a repeat of the series of errors that produced cases such as that of Tim Cole, Texas' first posthumous pardon recipient, who died innocent in prison serving a Lubbock sentence based heavily on the misidentification of a rape victim.

Lubbock police officials would not discuss the 1985 case, citing an effort by Cole's survivors to continue to explore possible litigation against the city.

Stevens spoke to The Avalanche-Journal about current eyewitness procedure at the department, which he defended as an appropriate balance of finding suspects and supporting investigations with other evidence.

"Not ever would that one piece of evidence be used to even, even substantiate a case against somebody," Stevens said. "It would have to be corroborated with more evidence, more information."

But a life sentence reversed by the Seventh Court of Appeals of Texas in 2008 - more than 20 years after the Cole investigation and several years after changes Stevens described - indicated eyewitness

identification could make up the bulk of a case.

'Very, very closely'

Billy Ivey Jr. was no saint.

A Lubbock jury convicted him in 1988 for the stabbing death of a biker. A few months later, another jury convicted Ivey of felony injury to a child for hitting a friend's daughter with a belt.

He plead guilty to buying more than $200 in cigarettes with checks under other people's names during the fall of 2006. But on the night of April 25, 2007, Ivey claimed - even as he was pressured to plead guilty or face a life sentence - he was not a burglar.

"I Didn't Get to go very far in school, But Common Sense tell's me that if I 'NEVER' was a certain place, then there will not be any physical evidence of me being at that Certain place, RIGHT??????" Ivey wrote in a letter from prison to Judge Brad Underwood. "So I am thinking to myself, what would make Mr. Hall think that 'I' Burglarized his house???? I HAVE NO IDEA!!!!"

Lubbock jurors in 2008 sentenced Ivey to life in prison based on testimony that the wiry man with brown hair fit a burglar's description "very, very closely."

Clinton Hall and his girlfriend were getting ready for bed in a North Lubbock home when they heard their dogs barking and saw the knob of their bedroom door begin to turn. Hall opened the door and saw a shirtless man in jeans with his back to Hall in the dark.

Hall chased the man outside. The intruder ran through some brush and jumped a fence. Hall went to his car and searched for the man, but couldn't find him. He returned home and called police.

Some time later - police reports and court testimony differed on whether it was minutes or an hour - a white truck slowly cruised past Hall's home as he stood outside talking to an officer.

The officer noticed the truck did not have its headlights turned on. He rushed to his car to stop the truck, but the driver fled, ultimately ditching the vehicle after a short chase.

Information inside the truck led police to its owner, who pointed them to Ivey.

Ivey answered the door in boxers and said he had been "dead asleep," though the officer noted he quickly answered the door. A pair of jeans lay draped over a nearby chair.

Ivey lived not far from the burglarized home. He drove past the crime scene up to an hour after the crime.

Police drove Hall and his girlfriend to the house where Ivey stood outside in his boxers and in handcuffs.

"They asked us if that was the gentleman," Hall later testified, according to a court transcript. "And I said that he fits our description very, very closely. I said I never saw his face. I can't give you a for sure description."

Jury foreman Mark Caffey had hoped for more tying Ivey to the scene, he said, looking back on the case two years later.

He and another juror took more convincing than their peers, he said.

Still, Caffey left the trial confident in his decision, he said.

It bothered him that Ivey never testified in his own defense if he insisted he was innocent - a point jurors are specifically instructed not to consider.

When they later learned of his criminal history, Caffey was even more certain that the man should be off the streets, he said.

"'We don't have anything else to go on beyond this, but yet when you put it all together, you don't have any doubt that this is the guy,' " Caffey remembered telling his fellow juror. "I don't think there was any doubt amongst us that he was the right guy."

Because of his previous felony convictions, Ivey was sentenced to life in prison.

The sentence stunned Artie Aguilar, his defense attorney. His client had pleaded guilty to a lot of things, but Aguilar didn't think Ivey had done this, he said.

"I remember telling him he really needed to appeal because I just didn't think they got him," Aguilar said. "I was just bewildered by their verdict."

The Criminal Court of Appeals agreed months later.

Lubbock attorney Richard Wardroup successfully argued a jury couldn't have convicted Ivey on such scant evidence.

When told of the decision, Caffey said he was sickened to learn Ivey was released on appeal.

"To think that the justice system had failed us on this," Caffey said.

Police and prosecutors proved Ivey looked like the man Hall saw, Justice James Campbell wrote in an opinion reversing the jury's verdict and acquitting Ivey.

That wasn't enough to make Ivey a burglar, Campbell wrote.

"If the State's burden was only to prove that appellant matched Hall's description of the burglar, we would have no difficulty finding the evidence sufficient," Campbell wrote. "But many people would closely fit such a general description, and the State's burden was greater."

Guess who

Problems with eyewitness testimony can defy our most basic assumptions about ourselves. What could be more simple than recognizing a face?

But decades of research suggest it's much harder to remember even simple details when witnessing - much less becoming the victim of - a crime.

More than 75 percent of the cases overturned through DNA testing across the country trace their convictions to poor eyewitness evidence, according to research by The Innocence Project.

Lighting, stress and the difficulty of correctly identifying members of a race other than a witness's own have contributed to incorrect identifications, according to the project, which pursues DNA testing to prove wrongful convictions.

The suspect could have been in the dark and difficult to see, as Hall's burglar was. Victims or witnesses may pay more attention to a knife or a gun, if one is present, than the face of the person holding it.

More than half of the wrongful cases determined by the Innocence Project to be caused by eyewitness misidentification involved a witness who was a different race than the perpetrator.

That doesn't render eyewitness testimony useless or mean every description of a suspect turns out to be wrong. Police commonly ask the public to review images from video surveillance or other photos to generate tips to the identity of a suspect.

"I think when you bring emphasis to the fact that it's not a perfect science, then you bring emphasis more to the other investigative techniques that are associated with it," said Tim Braaten, a police chief for 25 years in Michigan, Wisconsin and Texas.

"In the past, it may have been if I said you did it, then that was it, that was good enough," Braaten said. "I was a person of honor and you were not, and so you went to jail and I identified the wrong guy."

So it means today, much more than in the past, police must have other supporting evidence beyond a simple eyewitness identification, said Stevens, the Lubbock police spokesman.

"We don't rely so much on the eyewitness testimony and on the photo lineup identification, because it's only used as one small part of the overall investigation," Stevens said. "Nothing hinges so much on that, and this is law enforcement-wide, not just our department. Used to, a photo lineup was a much bigger piece of the pie in terms of an investigation. That's simply not the case anymore."

Reforming the process

Major departments across the country began to shift their eyewitness techniques as researchers published papers and exonerations piled up.

The Dallas police force, stung with a nation-leading 38 DNA exonerations in their area, began reviewing lineup procedures in 2008 for the first time in 30 years, Dallas Police Lt. David Pughes said.

Dallas adopted changes now mirrored in the Boston and Denver police departments, among others, and required under state law in Ohio, North Carolina and New Jersey.

The department launched a "lineup team" in April 2009, made up of civilians who know nothing about the circumstances or suspects of the cases whose lineups they present.

Witnesses or victims who view the lineups are instructed that the suspect may not be in the lineup - an instruction used to reduce a person's pressure to pick someone even if they do not recognize anyone.

By keeping the investigator away from the lineup, the process tried to remove any cues, even unintentional ones, from prompting the witness or victim to pick a certain person.

Detectives resisted the change at first, he said. Many worried about cases done under the old system still waiting for trial. Changes in the process could imply some weakness or fault with the system for a defense attorney to pounce on.

It took more work, too.

"They felt like our identification rate was going to drop and it was going to make it more difficult for them to put suspects in jail," Pughes said.

More than 3,000 lineups later, detectives' worst fears had not come to pass, he said.

The number of identifications made by witnesses and victims held up and, because of the new procedures, they also held up in trial, he said.

"I think they're saying that it's a stronger piece of evidence to bring to court," Pughes said. "Those challenges are erased with the new procedure."

Administrators of the Texas Commission on Law Enforcement Officers Standards and Education introduced similar changes to training offered to all Texas police departments eight months ago, said Braaten, the group's executive director.

Braaten had learned as a street cop that a poorly constructed photo lineup could cost you a case.

"I think that eyewitness is a critical part of solving crimes, except one has to recognize the fallibility that comes along," Braaten said. "It's not something that should be thrown out, but should definitely be scrutinized and the technique improved."

Lubbock Police Chief Dale Holton said he did not see overwhelming evidence that policies needed to change.

He would continue to read new research and learn about what other departments adopted, and said it was always possible to change in the future.

Federal rulings on eyewitness testimony could also require changes, he said.

But Lubbock wasn't there yet, he said.

A piece of the puzzle

Ivey seemed unlikely to have gone to trial under procedures police spokesman Stevens described as in place years before his arrest. It may have not made it to the courthouse had a detective worked the case hours or days later, rather than the patrol officer on scene, Holton said.

Patrol work still relied heavily on suspect identification, Holton said. Ultimately, the evidence needed to convince more than just the officer, he said.

"One of the constants in all these comparisons is that they were all reviewed by prosecutors, and a jury and a grand jury," Holton said.

Stevens said detectives rarely use "field identifications" - in-person identifications similar to what officers used in Ivey's case.

Investigators instead use a database of Texas driver's license photos and civilian department staff to compile paper lineups for witnesses and victims.

A technician finds the driver's license photo of their suspect in a state database. The department will use booking photos if they are more recent and available to give a more current picture of a suspect, Stevens said.

Using the database keeps one particular picture from sticking out. Old lineups, including photo lineups done in the Cole era, involved actual photographs cut or taped to fit in a folder with windows. Backgrounds, clothing and other factors could vary from photo to photo, giving subtle and unintentional cues for a witness to pick a suspect.

"It saves time and it's logistically easy, and it creates an ostensibly better photo lineup spread," Stevens said. "There's no scissors involved."

Then the investigator or technician searches through randomly chosen photos within about three years of the suspect's age.

They look for similar clothing, facial hair and hair coloring, and other characteristics that would make the rest of the lineup a close match for their suspect, Stevens said.

The investigator might hand it off to another officer to present the line-up, but policy does not require it. Ideally, officers would record the identification - officers in the Ivey case did this - but policy does not require that either.

Other states and individual departments also now require a detective or technician tell the witness the suspect may not be in the lineup. Witnesses might otherwise feel pressure to pick a photo even if unsure it is the person he or she saw.

Those were critical, glaring omissions, wrote Gary Wells, an Iowa State University professor and expert on eyewitness identification who assisted Dallas police and other states.

"My point is that LPD's procedures are woefully out of date and do not at all look like those of a police department that has taken this problem seriously," Wells wrote in an e-mailed response to questions. "They have seemingly ignored the science on this as well as the recommendations of the Department of Justice and virtually every task force in the country that has delved into this issue."

It made no sense to craft a restrictive policy allowing only one way of doing things, Stevens said.

Research such as the work suppfficer's either going to do it ethically, or he's not," Stevens said. "And it doesn't matter what TCLEOSE's policy says or what Dallas PD's policy says or what our poliorting changes in other states and departments tended to be cyclical - departments could learn of problems with the process or told to change procedures again in another 10 years, he said.

A policy couldn't prevent malicious officers from corrupting the process, anyway, Stevens said.

"The police ocy says. We can write a new policy right now, today, and enact it and send it down and, if a policeman is going to do it wrong, the policy is not going to be what makes him do it right."

No expert who discussed reforms with The Avalanche-Journal pointed to intentionally shoddy lineup procedures. Reforms targeted accidental cues and best intentions leading both witness or victim and investigator down the wrong path.

"The victim can be victimized a second time," Braaten said. "Through less than the best practices available, if they rush to ID somebody to put it behind them, then later on they find out they identified the wrong person, then they'll be victimized again.""

The story can be found at: