PUBLISHER'S NOTE: This Blog is interested in false eye-witness identification issues because wrongful identifications are at the heart of so many DNA-related exonerations in the USA and elsewhere - and because so much scientific research is being conducted with a goal to making the identification process more transparent and reliable- and less subject to deliberate manipulation. I have also reported far too many cases over the years - mainly cases lacking DNA evidence (or other forensic evidence pointing to the suspect - where the identification is erroneous - in spite of witness’s certainty that it is true - or where the police pressure the witness, or rig the identification process in order to make a desired identification inevitable.
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SUB-HEADING: "Powerful new evidence further challenges the conviction of Scott Watson for murdering Marlborough friends Olivia Hope and Ben Smart. Why then is the Crown trying to withhold it, along with a report of its own that damns police actions? Mike White investigates."
PHOTO CAPTION: "Scott Watson, who has been in prison for 26 years, for crimes he has always insisted he didn’t commit."
GIST: "Strong attempts are being made to muzzle crucial evidence that calls into question Scott Watson’s convictions for the Marlborough Sounds murders, says Watson’s family.
The evidence, from world-leading eyewitness identification experts, is part of Watson’s upcoming appeal against his convictions for murdering Olivia Hope, 17, and Ben Smart, 21, at a New Year’s party in 1998.
The experts conclude police broke numerous rules when obtaining a controversial identification of Watson by Furneaux Lodge water-taxi driver Guy Wallace, and that one of the vital planks in the case against him is unreliable.
But Crown Law, which conducts appeals in the Court of Appeal, and is trying to maintain Watson’s convictions, has written to the court to argue the report should be ruled inadmissible, saying facts it relies on are disputed.
However, a report Crown Law commissioned from its own witness identification expert agrees with Watson's experts that Wallace’s crucial eyewitness evidence is likely unreliable.
Despite this, Crown Law has kept this report from the Court of Appeal, in the lead-up to Watson's June appeal.
Watson has always insisted he never met Hope and Smart, and didn't kill them, but has spent nearly 26 years in prison for their murders. Their bodies have never been found, and the case remains one of the country's most controversial.
In 2020, Watson was granted another appeal against his convictions on the basis of concerns about two hairs, DNA matched to Hope, that police and the Crown insist were found on Watson's yacht.
Significant concerns have always surrounded the handling of the hairs during scientific testing.
A second ground of appeal was added, relating to the identification by key Crown witness Guy Wallace of Scott Watson as the man he saw getting onto a mystery yacht with Hope and Smart.
This evidence is now at the centre of a bitter battle, with the Crown seeking to suppress new opinion and analysis of it.
Guy Wallace initially denied Watson was the man he took to a mystery yacht early on January 1, 1998, after a party at Furneaux Lodge attended by more than 1500 people.
However, nearly four months after Hope and Smart disappeared, Wallace identified Watson from a montage of photos as the person most like the man he had seen on the water-taxi.
At a pretrial hearing, Wallace then denied Watson was the mystery man.
But at Watson’s trial, Wallace said he said he was "pretty definite" the person he picked out from the photo montage - Scott Watson - was the man on the water-taxi with Hope and Smart.
His evidence, along with that of the two hairs, was crucial in Watson's conviction.
However, following the trial, until his death in 2021, Wallace insisted he had made a mistake, said Watson wasn't the mystery man, and felt he'd helped send an innocent man to jail.
Mistaken witness identification is the leading cause of miscarriages of justice worldwide, contributing to around 70% of wrongful convictions that have been overturned due to DNA evidence.
However, eyewitness testimony remains one of the most persuasive forms of evidence for a jury.
In preparation for Watson's appeal, his lawyers asked world-leading eyewitness identification expert, psychologist Gary Wells of Iowa State University, to provide an opinion on Wallace's identification of Watson as the mystery man with Hope and Smart.
Wells was assisted by Adele Quigley-McBride, a New Zealander now working in the US, who has conducted award-winning research directly relevant to the events of Wallace's identification.
Their report, filed in July 2023, and provided to the Sunday Star-Times by Watson’s family, raises serious concerns about the process that led to Wallace picking out Watson from the photo montage, and the reliability of his memory.
They note initial descriptions of the mystery man by Wallace, and two computer sketches he helped create, had little in common with how Watson appeared at Furneaux Lodge, as shown by photos taken that evening.
The report also points to Wallace being shown a single photo of Watson by police early in January 1998 - known as a "showup" - and later, that he was likely shown an initial photo board, montage A, but didn't identify Watson from either.
He was also shown footage of Watson by a TV journalist, and denied this was the man he saw with Hope and Smart.
Exposure to these images of Watson contaminated Wallace’s memory, and indicated who police believed was guilty of the crimes, Wells and Quigley-McBride state.
In addition, Wallace was exposed to considerable media coverage of Watson being the police’s prime suspect, prior to being shown a second photo montage of eight photos, montage B, on 20 April 1998.
This montage, however, contained a new photo of Watson, which showed him mid-blink, and was more like descriptions of a mystery man at Furneaux Lodge who had "hooded eyes".
After more than 90 seconds considering the photo board, Wallace said photos 3 and 5 stood out for him. Photo 3 was the controversial "blink" photo of Watson.
He eventually said photo 3 was most like the person he saw on the water-taxi with Hope and Smart, and in the bar at Furneaux earlier that evening.
However, Wallace qualified this by saying the man he remembered was more unkempt; had longer, bushier, wavy hair with a fringe; and had considerable stubble on his chin and face - none of which matched photos of Watson taken on the night.
Wells and Quigley-McBride say the marked difference between Wallace's descriptions and computer sketches of the mystery man, and his rejection of the early "showup" photo of Watson, suggested "Wallace's memory for the man on the water-taxi was either extremely weak, or was instead a memory of a different person entirely, not Watson.
"After considering all of the circumstances in light of the eyewitness identification science, perhaps the least likely reason that he settled on Watson’s photo was that Watson was a better match to Wallace’s memory of the person he last saw with Olivia Hope and Ben Smart."
They compared Wallace's identification with that of Hayden Morressey, the only other person on the water-taxi able to describe the mystery man.
"The fact that neither description matched Watson, and yet the two descriptions are highly similar to each other, strongly implies that it was not Watson that they saw on the boat."
Three other people who were on the water-taxi with the mystery man, didn’t choose Watson from the photo montage.
Morressey didn't budge in his memory from the water-taxi, and said none of the photos matched the mystery man, when shown montage B in April 1998.
"That is the same reaction that Wallace had when he was first shown a photo of Watson. This non-identification pattern is consistent with the description not fitting Watson, and again strongly implies that Watson was not the person on the boat,“ Wells and Quigley-McBride say.
Among a litany of other mistakes Wells and Quigley-McBride say police made, which flouted international best practice, were: the officer showing Wallace montage B knew who the suspect was, whereas it should have been a "double blind" test; there was no video or verbatim record of Wallace's comments, or clear record of his certainty when identifying photo 3; and Wallace wasn't told the suspect may not be in the photo lineup.
"The conclusion we reach from our analysis is that Wallace’s identification testimony has little to no incriminating probative value regarding the identity of the person who was left with the victims in the early hours of the morning on January 1st, 1998."
After Watson's lawyers shared the Wells/Quigley-McBride report with Crown Law, the government agency commissioned its own report, from City University of New York eyewitness expert Margaret Kovera.
Kovera also notes numerous factors that question Wallace's identification of Watson.
It was extremely dark at the time, which research shows reduces reliability; Wallace was exposed to pictures of Scott Watson from police and media numerous times in the nearly four months before he identified him; and this time frame before picking Watson from montage B was "a length of time that is associated with poor identification accuracy rates."
Importantly, the unnatural "blink" photo of Watson in montage B meant Watson was the only person depicted with heavy or hooded eyelids, Kovera says.
"The lineup violated best practices for lineup composition because the defendant stands out from the other lineup members."
Kovera agrees with Wells and Quigley-McBride that the person administering the photo montage shouldn’t have known who the suspect was; that Wallace shouldn’t have been shown photos of Watson before the identification process; and Wallace should have been warned the suspect may not be in the photo montage - thereby reducing pressure to pick someone from the array.
Kovera says there were "significant problems with the method of identification", and a substantial body of literature showed these errors decreased the reliability of eyewitness evidence.
"There are compelling reasons to question the reliability of the identifications in this case," Kovera concluded.
"Taken together, in my opinion, there is substantial evidence that there were factors present in this case that could have adversely affected the witness's ability to make a correct identification."
Despite commissioning Kovera's report, Crown Law has thus far chosen not to release it to the Court of Appeal, ahead of Watson’s appeal in June.
This is in addition to the Crown wanting to prevent the report from Watson’s experts, Wells and Quigley-McBride, from being heard at Watson’s appeal.
It also wants to exclude evidence from one of Watson's trial lawyers, Nicolette Levy, KC, who in January signed an affidavit regarding what they knew about the identification process.
The Crown argues that elements Wells and Quigley-McBride rely on to reach their conclusions are disputed - despite their own expert agreeing with them, and the reports being based on police and other official documents, and court transcripts.
One contentious issue is whether Wallace was shown a single photo by police early in January 1998 (the "showup" photo), and two earlier photo boards, montage A1 and A2.
Crown Law appears to be questioning whether either happened.
However, statements from Wallace, police documents, and the findings of the Independent Police Conduct Authority clearly suggest Wallace was shown the single photo and possibly montage A1 or A2.
Wells and Quigley-McBride say it would be "inexplicable" if Wallace wasn't shown one of the earlier photo montages, given he was the key witness and could likely help identify the perpetrator. (These montages were shown to more than 40 witnesses during February 1998, according to the IPCA.)
"We believe that it is more likely that Wallace was in fact shown one or both montages, and did not recognise anyone."
In 2010, the IPCA raised strong concerns about the police photo identification process during “Operation Tam”.
“The construction of the montages, the methods used for presenting the montages to witnesses, and the showing of a single photograph to Guy Wallace were all highly undesirable practices, particularly given the critical importance of suspect identification in this case.”
Compounding this was the lack of useful police documentation about who made decisions about the montages, and how witnesses responded, the IPCA said.
“This dearth of information makes it difficult for the Authority to determine whether there was any deliberate misconduct on the part of any individual officers in the approach taken to the photographic identification. The Authority does, however, find the methods employed were highly undesirable and fell far short of best practice.”
The latest efforts by Crown Law to exclude expert evidence from Watson follow its unsuccessful attempts last year to rule out evidence from two other expert witnesses for Watson, who provided reports on the handling of hairs found on his yacht.
Scott Watson's lawyers, Nick Chisnall, KC, and Kerry Cook, declined to comment, saying it was inappropriate while the matter is before the court.
Crown Law also declined to answer questions from the Star-Times, including whether it would release the report of its own expert, which raises significant concerns with Wallace’s identification evidence.
“Admissibility of evidence issues are due to be dealt with by the Court of Appeal at the appeal hearing,” a spokesperson said. “Submissions in relation to admissibility issues will be made in writing prior to the appeal hearing, and orally at the hearing.”
However, Scott Watson’s father, Chris Watson, says the Crown is attempting to squash relevant evidence from coming out.
Given the Court of Appeal has already ruled that the reliability of Wallace’s eyewitness identification is one of the grounds for Watson’s appeal, Chris Watson says he doesn’t understand why his son’s lawyers can’t present world-leading expert opinion on what occurred.
“I’m just sort of standing with my mouth agape.”
Rather than spend an inordinate amount of time trying to get relevant information ruled out using legal arguments, Chris Watson is calling on Crown Law to be transparent, and do everything it could to get to the truth of what happened.
“There’s just so much that was wrong with the whole case, and it needs to see the light of day at some stage.”
He says it is extraordinary Crown Law is still fighting to undermine his son’s appeal, four years after the case was referred back to the Court of Appeal, and he believes the public will be disturbed by the Crown’s continued attempts to suppress crucial evidence.
“But I think Scott’s case has always been an embarrassment to them, and they’ll fight tooth and nail to try and keep the status quo.”
Scott Watson remains in prison having been refused parole four times, largely due to his insistence he is not guilty. His next parole hearing is in May.
This week, the Criminal Cases Review Commission, which investigates potential wrongful convictions, announced it was launching an inquiry into eyewitness identification evidence in New Zealand, following a number of cases, other than Watson’s, where concerns about its use have been raised.
Olivia Hope and Ben Smart’s families were offered the opportunity to comment for this story."
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. 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;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater's attorneys who sought his exoneration, told the Syracuse Post-Standard, "Sprinkle some junk science onto a faulty identification, and it's the perfect recipe for a wrongful conviction.
https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-12348801
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MORE VALUABLE WORDS: "As a former public defender, Texas' refusal to delay Ivan Cantu's execution to evaluate new evidence is deeply worrying for the state of our legal system. There should be no room for doubt in a death penalty case. The facts surrounding Cantu's execution should haunt all of us."
Congresswoman Jasmine Crockett; X March 1, 2024.
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