Public Defense

Best lineup ever

By Gideon

And by that I mean worst lineup ever. Is it any wonder that people get wrongfully convicted because of police tactics like this?

can you spot the perp? hint: he's the one who's not smiling

Yes, that is the defendant in a headlock in a police lineup full of other police officers who are smiling. This is not a recreation or a photoshop job. This. Actually. Happened. And as a result, Ivan Henry spent 27 years in a British Columbia prison for 8 rapes he did not commit. The culprit once again? Eyewitness identification:

Henry was convicted solely on identification by the victims.

The appeal court found the identification was weak and the trial judge erred by instructing the jurors that they could infer consciousness of guilt from the resistance of Henry to participation in the line-up conducted by police on May 12, 1982.

The appeal court considered a shocking photo of the police line-up, which showed three police officers, dressed in civilian clothes, restraining Henry, who was in a head lock.

The other people in the line-up were believed to be police officers, who were all smiling.

“If this had been disclosed, it would have been a gold mine for a defence lawyer,” Appeal Court Justice Richard Low said of the photo during Henry’s appeal hearing last June, when the court reserved judgment.

It’s a wonder that courts across the country still refuse to accept that eyewitness identification as the sole basis for a conviction is not very reliable. The study of and the science behind eyewitness misidentifications is so well developed and is entering the mainstream consciousness to such an extent that courts will be unable to ignore its realities much longer. Connecticut came close in recent months, without actually taking that big step.

Henry’s case highlights another common problem with wrongful convictions. It is often said that the 250+ exonerations touted by the Innocence Project is just the tip of the iceberg. There are many. many more innocent people behind bars who cannot be helped, because in most cases, there is no physical evidence to test. DNA retention policies are terrible and in some cases there is willful destruction of the testable material. Henry may have been released sooner, but for the same problem:

Henry filed 56 application to try to reopen his case, at times asking officials to compare the forensic evidence from the crime scene to his own blood type.

His applications, made without the aid of a lawyer, were dismissed as frivolous.

Unfortunately, the physical evidence from crime scene that may have contained DNA to help exonerate him was not kept by police or the Crown. It was destroyed.

56 applications? The Canadians sure are patient, eh? Here, in the US, any inmate filing 56 appeals or habeas petitions would surely be called vexatious and would be the poster boy for calls by some to limit inmates’ access to courts in post-conviction proceedings. Yet, here he is, at try number 56, being found innocent of the crimes he was convicted of. Cases like these should be the seminal examples of why we should never limit access to courts for those claiming innocence. The procedural burdens on the machinery of Government should pale in comparison to the weighty interest of ensuring that innocent people are not convicted and incarcerated.

On a related note, the local NBC station is running this story today: Would you be a good witness?

Using a hidden camera, Stephanie Hoey, special projects manager for NBC Connecticut, stood outside several donut shops across the state and asked people for directions.

Would you remember what she looks like minutes after pointing her in the right direction? We stopped several people who didn’t.

“I don’t really remember. Her hair was short. I definitely have no idea what she was wearing though,” Natalia Khandrs, of Norfolk, said.

Stephanie is about 5-feet 5-inches tall and has short red hair. She was wearing glasses, a gray jacket, black pants and a striking blue and silver necklace.

Very few people who remembered any of that.

When interviewed for the story, State Police spokesperson Lt. Paul Vance repeated the dangerous party-line:

“All the little bits of information might seem insignificant to a witness or person, but they can be important to solving criminal activity or crime,” Vance said.

The best kind of description would include something distinct or unique about the suspect.

Even though no one in our story was witness to a crime, Lt. Vance says it’s always important to pay attention to what?s happening around you.

This is dangerous nonsense from a police officer and in part what leads to misidentifications. Take, for example, the citizen who heeds Vance’s words. The citizen observes a robbery and tries to remember something “unique” about the suspect, so commits to memory the fact that the suspect had a New York Yankees blazer on. 20 minutes later, the police conduct a show-up with a suspect wearing a New York Yankees blazer. Anyone want to bet that the suspect will be “positively identified”, not because it is, in fact, the same person, but rather because the person was wearing a NYY blazer? If we get eyewitnesses to focus on “unique aspects”, then the human mind will tend to correlate the two. Our natural tendency is towards confirmation bias and once we see that some piece of evidence confirms that which we had in mind already, the rest of the pieces close around that belief and start to arrange themselves in a way that support that belief.

Honestly, the more I read about eyewitness misidentifications and the tricks the human mind plays on us, the harder I find it to believe that they have any reliability whatsoever.

The NBC story reeks of this “Invisible Gorilla” video, btw, which has a greater “Wow!” factor:

The Door Experiment

And we want to trust eyewitnesses.

Full post as published by A Public Defender on November 11, 2010 (boomark / email).