Yet Loftus, who has served as an expert witness in more than 300 trials, says decades of research show memory can be shape-shifted. In one famous study, her team showed volunteers films of a simulated accident. Some were asked how fast the cars were going when they hit each other, some were asked how fast the cars were going when they smashed into each other; others were asked the question with a host of other verbs. As it turns out, the word smashed elicited higher estimates of speed than questions using the verbs collided, bumped, contacted, or hit. And the mere use of the word smashed made it likelier for people to remember broken glass at the accident scene—even though there was no broken glass. In another Loftus study, members of the U.S. military were aggressively interrogated. In the aftermath, they were likely to identify the interrogator suggested by the researchers, whether that individual had done the questioning or not. Loftus knows the fallibility of memory firsthand. In July 1959, when she was 14, her mother was found dead in a relative’s swimming pool. Accident or suicide? Loftus is uncertain, and the cause was never determined. It was, she wrote in her diary back then, “the most tragic day of my life . . . only God knows what happened.” Nearly 30 years later, her uncle told her she was the one who had found her mother. Gradually, over a period of days, she began to remember the body facedown in the pool, the screams and the police. Three days later, her uncle took back his statement, and other family members affirmed that her aunt had discovered her mother. Loftus’s memories were imaginings, not recollections."
---------------------------------------------------------------------
HEADING: "With Memory So Malleable, Can We Ever Know What's Real?", by author Jill Neimark, published by 'Open Mind,' on April 28, 2002; (Jill Neimark
is a writer based in Macon, Georgia, whose work has been featured in Discover, Scientific American, Science, Nautilus, Aeon, NPR, Quartz, Psychology Today, and The New York Times. Her latest book is “The Hugging Tree” (Magination Press)."
SUB-HEADING: "Our own skewed memories are part of the misinformation glut, so when you remember something for sure, it can’t hurt to pause and query your truth."
Broadwater always maintained his innocence, and in November 2021 a judge exonerated him entirely. One might call his imprisonment a tragic miscarriage of justice, except there’s a twist to the story. Broadwater was arrested after Sebold passed him in the street, five months after the rape, and thought she recognized him as her attacker. But she could not pick him out of a police lineup, nor did a composite sketch of the rapist based on her description look like him. Still, when the trial rolled around, she definitively identified him as her rapist. Why? Clearly, her eyewitness testimony was flawed and her memory fuzzy—even to herself.
We know now that eyewitness testimony is fallible, subject to memory distortions. And the hard questions Sebold might have asked herself are ones we all need to consider, in both our public and our private lives. We are meaning-makers. We are susceptible to the power of stories. We would have no continuity without our memories, and it’s from those recollections that we weave the story of our lives.
But memory places us all on shifting sands. According to research from 2015, each time we call up a memory, we reconsolidate it, and during that process it may be vulnerable to alteration. In fact, memory reconsolidation allows therapeutic approaches that can help address trauma and the emotional fallout from adverse experiences.
Memories can never be faithful recordings. This is something we need to remind ourselves of daily, especially in a time of blatant, relentless misinformation. Memory is not like a movie camera faithfully recording events. “It is more like a Wikipedia page,” says psychologist Elizabeth Loftus, a professor in both criminology and psychology at the University of California, Irvine, whose work on the malleability of memory is internationally renowned. Memory, says Loftus, “is able to be edited by ourselves and others.”
Sebold’s was not the first case to put a person in jail over a faulty memory. In October 2021, Showtime aired a widely praised docuseries, Buried, about a murder conviction based on one person’s long-repressed memory. The case went like this: In the afternoon of September 22, 1969, an eight-year-old girl named Susan Nason disappeared after school in Foster City, California. A few months later, her decomposing remains were discovered in a ravine, and it was determined she had been bludgeoned to death. The killer was never found. But two decades later, Susan’s childhood best friend, Eileen Franklin-Lipsker, suddenly remembered seeing her own father, George Franklin, rape and kill Nason right before her eyes.
Franklin was the first person jailed for murder on the basis of a recovered memory. But the case didn’t end there. In another twist, five years later, a district court judge overturned the conviction, ruling that the trial judge had made errors that impacted the jury’s verdict. Moreover, Franklin-Lipsker later claimed that she had recovered two more buried memories of rape-murders committed by her father. Yet DNA tests proved Franklin’s innocence in those two murders; in fact, in 2018 another man’s DNA was linked to the two killings.
In 1995 George Franklin was released from prison. “This was the case that launched the memory wars,” says Loftus, who had testified for the defense at the trial.
By memory wars, Loftus means the conflict between two wholly opposed views on the validity of repressed memories. One camp contends they are likely true and that the more traumatic the memory, the likelier to be repressed and “leak out” in physical and mental dysfunction. The other camp accepts that people can be reminded of things they haven’t thought about in a long time but maintains there is no credible evidence for repression of life-altering trauma. Somewhere in between are those who agree the brain can generate false memories but contend that repression of real ones is also possible.
“It is true that memory is fallible, and there is a lot of evidence for that,” says Emory University School of Medicine psychiatrist and radiologist Douglas Bremner. In fact, his research has shown that those with post-traumatic stress disorder (PTSD) due to childhood abuse are more prone to memory deficits—ones that might lead to false memories as well as memory gaps.
Does that mean recovering a repressed memory should constitute proof in court? The question is tricky. Loftus thinks juries should look to corroborating evidence before convicting, but Bremner says that delayed recall and testimony of trauma victims “should not be excluded in court.”
Many in the public agree with Bremner. A recent study from Loftus and colleagues shows a deeply entrenched belief in the truth behind recovered memories. That’s why personal narratives alone are often taken at face value on TV news, why testimonials are accepted on some physician websites, and why we still let memory play a central role in doling out justice.
Yet Loftus, who has served as an expert witness in more than 300 trials, says decades of research show memory can be shape-shifted. In one famous study, her team showed volunteers films of a simulated accident. Some were asked how fast the cars were going when they hit each other, some were asked how fast the cars were going when they smashed into each other; others were asked the question with a host of other verbs. As it turns out, the word smashed elicited higher estimates of speed than questions using the verbs collided, bumped, contacted, or hit. And the mere use of the word smashed made it likelier for people to remember broken glass at the accident scene—even though there was no broken glass. In another Loftus study, members of the U.S. military were aggressively interrogated. In the aftermath, they were likely to identify the interrogator suggested by the researchers, whether that individual had done the questioning or not.
Loftus knows the fallibility of memory firsthand. In July 1959, when she was 14, her mother was found dead in a relative’s swimming pool. Accident or suicide? Loftus is uncertain, and the cause was never determined. It was, she wrote in her diary back then, “the most tragic day of my life . . . only God knows what happened.” Nearly 30 years later, her uncle told her she was the one who had found her mother. Gradually, over a period of days, she began to remember the body facedown in the pool, the screams and the police. Three days later, her uncle took back his statement, and other family members affirmed that her aunt had discovered her mother. Loftus’s memories were imaginings, not recollections.
Given the power of memory to shape our private and public lives, we must be realistic about its power and its flaws. We are susceptible to shocking stories told with great emotion. We are moved and often convinced by the intensity with which someone relates a memory. Because the act of molesting children is horrifying to contemplate, we don’t want to dismiss any such accusation. Since so many victims of rape have been disbelieved, we want to hear, affirm, and protect them and their stories. We are, in short, emotional about certain memories and thus find them difficult to dismiss as partly or wholly fabricated. It is truly hard work to separate out the fallibility of memory from the crimes it might be revealing.
We also have trouble separating out what we think we know about someone from criminal claims about them. This, says Loftus, was a problem in the George Franklin case. “By some accounts he was violent, a heavy drinker, and into child pornography,” she says. “He may even have sexually abused one of his own daughters.” But this does not make him a murderer. As Loftus says, “As much as I worry about memory reports that appear when someone has been soaked in a sea of suggestion, I cannot say that the memories are false without other, independent evidence. Pundits who insist the memories are false don’t know this any more than those who insist they are true. I wish people would stop doing both.”
The brain’s ability to sift and prioritize allows it to handle the flood tide of information that would otherwise stall us completely. That ability to sort, select, and infer affects all perception, great and small. When the pandemic hit in 2020, many journalists like myself began to use Zoom for interviews, uploading the audio to an online transcription service. In spite of Zoom’s convenience, I took notes while interviewing in case the audio should fail. As I reviewed the transcripts, I saw sentences I had never heard but were on the audio. My brain focused on what seemed important, and there were small but meaningful gaps in my perception. This most likely happens to us all the time—and usually it’s beneficial. We navigate the world pretty well by making smart guesses and prioritizing information flow.
Armed with this knowledge, we must demand more of memories, including those offered in court cases or posted online without corroboration. Memory alone is not proof; it may be spot-on or it may be skewed, with the power to derail lives. In our personal lives, meanwhile, we can accept our disconnects, extending largesse to those we love and to ourselves, because memory is, by nature, imperfect and in perpetual flux.
https://www.openmindmag.org/articles/it-shifts-it-morphs
---------------------------------------------------------------------
NATIONAL REGISTRY OF EXONERATIONS: Entry by Maurice Possley, last updated on February 25, 2022: Contributing factors: False or misleading forensic science, perjury or false accusation, mistaken witness ID; Official misconduct:
GIST: "On November 21, 2021, nearly 40 years after Anthony Broadwater was convicted of raping a Syracuse University student who went on to become a best-selling author, his conviction was vacated and the charges were dismissed in an Onondaga County courtroom.
Numerous attempts to overturn the conviction were unsuccessful. and on December 31, 1998, Broadwater was released from prison on parole. He was required to register as a convicted sex offender.
While Broadwater was spending his last year in prison, Sebold was at the University of California, Irvine completing a Masters of Fine Arts degree that included a course on memoir writing. Eight months after Broadwater was released, on August 4, 1999, Sebold launched her literary career with a memoir, “Lucky,” that detailed the attack and identified Broadwater as “Gregory Madison.” Sebold went on to write “The Lovely Bones,” which sold more than five million copies, and was made into a feature film.
The memoir, which sold more than one million copies, ultimately contained details which, when finally pieced together with other evidence, fueled the effort to clear Broadwater of a crime he had always maintained he did not commit.
The attack occurred shortly after midnight on May 8, 1981, the day Sebold was to return home at the end of her freshman year. She was walking to her dormitory through Thornden Park when she was grabbed from behind. She said the man threatened her with a knife, though she did not see the weapon, and dragged her under an archway where she was raped and sodomized.
She described her attacker as a Black man, 16 to 18 years old, muscular, and about 150 pounds. She said he was wearing a dark blue sweatshirt and dark jeans with a short afro-style haircut.
Police later recovered a pocketknife and her broken glasses. A partial fingerprint was found on the knife, but police could not link it to anyone.
The crime was unsolved when Sebold returned to the university for her sophomore year. At about 6:20 p.m. on October 5, 1981, she was walking on Marshall Street near the campus when she saw a man who she believed was her attacker. She said the man was talking to a police officer and that he “reminded [her] very much” of her attacker. She said the man called to her, “Hey, girl. Don’t I know you from somewhere?” She said she left immediately and went to her dorm room.
When Sebold notified police about 45 minutes later, she provided a more detailed description and a sketch she drew after returning to her dorm room. She said the man was Black, 5 feet five inches to 5 feet 7 inches tall, 165 to 175 pounds, “very stockily built, very muscular looking with short cropped hair that was down in the front, a pug nose but wider” than most Black men. “The eyes were almond shaped almost Oriental” and the suspect’s mouth had a thick bottom lip and a thin upper lip. She said he had a short neck with a boxy jawline and a dark, “but not too dark” complexion.
Police put out a bulletin, and Officer Paul Clapper reported that he had been on Marshall Street and spoke with Broadwater at the time Sebold said she saw her attacker.
On November 4, Broadwater stood in a lineup along with four other men. He was in position number 4. Sebold selected the man in position number 5. Even though she failed to identify him, Broadwater was indicted on charges of rape, sexual abuse, sodomy, robbery, and assault.
On May 17, 1982, Broadwater went to trial in Onondaga County Supreme Court. Broadwater chose to have his case decided by a judge instead of a jury. Sebold recounted the attack and identified Broadwater—the only Black man in the courtroom—as her attacker.
“He was walking up that street and he walked diagonally across the street and he said to me…‘Hey, girl, don't I know you from somewhere?’ I looked at him, and that was indeed the man who had raped me on May 8th,” Sebold testified.
Sebold admitted she did not select Broadwater in the lineup. She said that Broadwater and the man in position number five—Henry Hudson—resembled each other. She said she picked Hudson “because he looked at me” through the glass window.
She said she marked the box indicating she had picked the man in position five “because I was very scared, and he was looking at me and I saw the eyes, and the way the line-up is—it is not like it is on television. And you are standing right next to the person and he looks like he is two feet away from you. He looked at me, and I picked him.”
Assistant District Attorney William Mastine Jr. asked, “Is there any doubt in your mind, Miss Sebold, that the person you saw on Marshall Street is the same person who attacked you on May 8th in Thornden Park?”
“No doubt whatsoever,” Sebold replied.
Officer Clapper testified that on October 5, 1981, after he heard a bulletin with the description that the man Sebold saw was speaking to an officer, he realized he was the officer and that she was referring to Broadwater. Clapper testified that when Broadwater approached him, Clapper said, “Don’t I know you?” Clapper said he spoke briefly with Broadwater before they parted ways.
A physician testified that a rape kit was taken at the hospital after the assault. The physician described Sebold’s injuries and said that Sebold had been forcibly raped.
Assistant District Attorney Gail Uebelhoer testified that she was present during the lineup. She said that prior to the lineup, Broadwater asked that one of the four fillers in the lineup be replaced by Hudson, who was in the jail.
She said the four fillers had been selected by jail authorities. However, Broadwater “requested that a different person be put in the lineup and apparently he was unhappy with one of the people in the lineup,” Uebelhoer said. “Specifically, (he) requested that a different person, who he knew to be in the jail, be brought down and be placed in the lineup and that was the person that was brought down and put in the lineup [in] position five.”
A police officer described the unsuccessful effort to link the pocketknife to Broadwater by the partial fingerprint. The knife was not allowed into evidence because Sebold never saw it and it could not be connected to the crime.
Steven Kaszubinski, a police crime lab analyst, testified that he compared a pubic hair that was recovered from Sebold to a pubic hair obtained from Broadwater.
Mastine asked, “Were the various characteristics found consistent or inconsistent with the hair…having come from Anthony Broadwater?”
“The hair recovered…was consistent as having come from Anthony Broadwater,” Kaszubinski testified.
“All the various characteristics you had mentioned, did you find anything at all inconsistent between these two hair samples?” Mastine asked.
“No, I did not,” Kaszubinski replied.
Justice Walter Gorman, who was presiding over the trial, interjected and asked Kaszubinski, “Through the testing that you performed on the two samples of hair that you prepared… it is simple to rule someone out?”
“Yes, it is,” Kaszubinski said.
“With respect to the hair sample, you stated that all the tests that you had—all the comparisons, all the characteristics were similar, is that correct,” Justice Gorman asked.
“That is correct,” Kaszubinski said.
“They were consistent?” Justice Gorman asked.
“They were all consistent,” Kaszubinski said.
“But even with that testimony, you cannot say positively, based upon, say a reasonable degree of chemical certainty, that the defendant is the person?” Justice Gorman asked.
“No, sir, I cannot,” Kaszubinski said.
No serological testing was performed on the rape kit, although semen was identified as being present.
Broadwater testified and denied committing the attack. He said he was on Marshall Street on October 5, 1981, but that he hailed officer Clapper by saying, “Hey, haven’t I seen you somewhere before?” Broadwater said Clapper first confused him for his brother, Wade, and then recognized him from past encounters. He denied that he addressed Sebold in any fashion.
Broadwater testified that he had a scar on his forehead and under his eye. He and also had a tooth which that had been chipped half off while he was in the Marines—distinguishing features that Sebold had not mentioned in her description.
Broadwater also denied that he knew Henry Hudson or that he demanded that Hudson be placed in the lineup.
During closing arguments, Mastine, the prosecutor, noted that Kaszubinski, the hair analyst, had compared physical characteristics of the pubic hair recovered from the rape kit with Broadwater’s pubic hair. “[T]here was not one…characteristic out of some 11 or 12 named by Kaszubinski that were inconsistent,” Mastine declared.
“So all he could say was that it was consistent,” Mastine said. “I don’t like to use the word at all. That is the most anybody could ever say about a hair sample is that it was consistent. The same way that is all [the physician] could say about the fact that this woman was raped. That it was consistent. I would draw a parallel between the two. The seriousness, which I think the Court should give to those two pieces of evidence.”
At the conclusion of the closing arguments, Justice Gorman convicted Broadwater of first-degree rape, first-degree sexual abuse, first-degree sodomy, first-degree robbery, and assault. He sentenced Broadwater to 8 1/3 to 25 years in prison.
Broadwater sought to overturn the conviction several times, but his efforts were fruitless. He was denied parole five times because he refused to admit guilt. He took two polygraph examinations—one after he was released on parole—and the examiners said he was truthful when he denied involvement in the crime. He once sent a check for $1,000 to renowned defense lawyer Johnnie Cochran, but the check was returned.
In 1989, the physical evidence was destroyed. As a result, when DNA testing became available, Broadwater was unable to avail himself of it to prove his innocence.
In 2012, following the exoneration of several defendants who were wrongly convicted on the basis of hair comparison testimony, the FBI began an internal review of microscopic hair analysis cases. The review found that virtually all of the testimony involved using the word “consistent” to describe hair recovered from crime scenes. The report concluded that using the words “consistent with” was erroneous.
In 2015, the U.S. Department of Justice and the FBI joined with the Innocence Project and the National Association of Criminal Defense Lawyers to examine hair analysis errors in cases before December 1999. A review of 268 cases revealed erroneous testimony in 96 percent of the cases. In these cases, analysts gave scientifically invalid testimony, such as saying that hairs were a positive match or gave unsupported mathematical odds of a match. Twenty-seven of 29 analysts either gave faulty testimony or submitted erroneous reports.
In 2020, production was ongoing to turn Sebold’s memoir into a feature film. The film’s executive producer, Timothy Mucciante, became concerned that Broadwater was, in fact, innocent. Mucciante hired a private investigator to take a look at the case. The investigator eventually connected Mucciante to Syracuse defense lawyer David Hammond, who brought in another criminal defense lawyer, Melissa Swartz.
Ultimately, following the re-investigation, the lawyers brought the case to the Onondaga County District Attorney’s Office. On November 10, 2021, Hammond and Swartz filed a motion seeking to vacate Broadwater’s convictions.
The motion cited the discrediting of hair comparison testimony and also cited a portion of Sebold’s memoir that described the lineup. Sebold said that the men in positions four and five “looked like identical twins.” She had doubts about her selection immediately, telling a detective who was running the lineup, “It was four, wasn’t it?” Sebold wrote that when the detective said he could not tell her, she realized, “I needed to rebuild my case.”
Sebold wrote that right after, the prosecutor, who was Uebelhoer, entered the room in a state of anger. Sebold said the prosecutor said, “Well, we got the hair out of the bastard.”
When the detective said that Sebold now “thinks it was four,” Uebelhoer told Sebold, “Of course you chose the wrong one…He and his attorney worked to make sure you’d never have a chance.” Sebold noted that the detective warned Uebelhoer to stop talking, but Uebelhoer replied, “She has a right to know.”
The memoir quoted Uebelhoer as saying that Broadwater “had his friend come down and stand next to him. We had to send a car to the prison to get him here. They wouldn’t go ahead until he showed…They totally worked a number on you. He uses that friend, or that friend uses him, in every lineup they do. They’re dead ringers.”
According to the memoir, Uebelhoer explained that the “friend” purposefully looked scary to psych her out while Broadwater looked innocently downward.
The motion for a new trial noted, however, that none of that was true. “Broadwater had never participated in a lineup procedure before this one, he was not friends with person number five Henry Hudson, Mr. Hudson was not ‘transported from prison,’ and they were not ‘dead ringers,’ given their only common characteristic was their race,” the motion said. Uebelhoer’s explanation to Sebold was never disclosed to Broadwater’s defense attorney.
The motion also noted that since Broadwater’s trial, extensive research had been done showing that cross-racial identifications (Sebold is white) have significantly higher rates of mistakes than same-race identifications.
“Not a shred of reliable trial evidence connects him to this crime,” the motion said.
On November 17, 2021, Onondaga District Attorney William Fitzpatrick filed a response, joining in the motion to vacate the convictions. Fitzpatrick said he was “very disturbed” by Sebold’s account of being told by the detective that she picked the wrong person and the prosecutor’s strategy of how to deal with the misidentification.
Fitzpatrick was an assistant district attorney at the time of the trial, but had no memory of it. He said that he “never saw anything” from Uebelhoer to suggest “any deviation from high ethical standards.” However, Fitzpatrick said, “This was a time for a supervisor to order a step back and release Mr. Broadwater and review all of the evidence.”
Fitzpatrick noted that Kaszubinski “did not exaggerate his findings, although it certainly could be argued that the trial prosecutor did.”
He also noted that following the report by the FBI and Innocence Project on the high rate of erroneous testimony by hair comparison analysts, his office sought to identify any cases involving hair testimony for review. A legal database was searched for “hair comparison.” Broadwater’s case eluded that dragnet because the his appellate decision in that case did not contain that phrase.
“The identification in this case was seriously flawed and perhaps, through no fault of Ms. Sebold, tainted as well,” Fitzpatrick said. “The People join Mr. Broadwater’s motion to vacate his conviction.”
On November 22, 2021, Supreme Court Justice Gordon Cuffy granted the motion to vacate the convictions. Fitzpatrick then dismissed the case. Broadwater sobbed at the defense table, holding his head in his hands.
Later, he said, “I never, ever, ever thought I would see the day that I would be exonerated.”
Eight days later, Sebold issued an apology. “I am grateful that Mr. Broadwater has finally been vindicated, but the fact remains that 40 years ago, he became another young Black man brutalized by our flawed legal system. I will forever be sorry for what was done to him,” her note declared. “I will continue to struggle with the role that I unwittingly played within a system that sent an innocent man to jail. I will also grapple with the fact that my rapist will, in all likelihood, never be known, may have gone on to rape other women, and certainly will never serve the time in prison that Mr. Broadwater did.”
The project to turn “Lucky” into a feature film was scrapped.
In February 2022, Broadwater filed a claim in the New York Court of Claims seeking $50 million in compensation. He also filed a notice of intent to file a federal lawsuit against the city of Syracuse and the Oneida County District Attorney's Office."
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6082
----------------------------------------------------------------------
PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
