Innocence Blog

Massachusetts at Forefront of Reforming Treatment of Eyewitness Identification Evidence in Court

Posted: August 29, 2014 11:10 am

By Eric Pilch, Paralegal, Strategic Litigation
 
Today’s Innocence Blog features a post by guest blogger Eric Pilch, who works for the Innocence Project’s Strategic Litigation Department, identifying promising test cases, evaluating case materials, and conducting research. Eric’s post is a follow-up to the article featured on the Innocence Blog yesterday about the Massachusetts Supreme Judicial Court’s evaluation of how eyewitness testimony is handled and presented to juries.
 
The Massachusetts Supreme Judicial Court (SJC) appears poised to reform the way eyewitness evidence is treated in criminal cases, indicating that it will likely release a significant ruling on the issue. The Innocence Project is hopeful that the court’s decision will follow the example set by the Supreme Court of New Jersey in State v. Lawson and the Supreme Court of Oregon in State v. Henderson, two landmark cases that created a new legal framework for evaluating identification evidence based on decades of scientific research on eyewitness perception and memory. Eyewitness misidentification is the leading contributing cause of wrongful convictions nationwide, appearing in 72% of the 317 cases overturned by DNA evidence.
 
The SJC’s engagement around how eyewitness evidence is handled by the court began in 2011 when the court decided Commonwealth v. Walker, a case where the defendant was identified by an eyewitness, but the method used by police officers did not conform to procedures outlined in the court’s earlier decisions. As a result, the court created the Supreme Judicial Court Study Group on Eyewitness Evidence, composed of criminal justice stakeholders who were tasked with reviewing the scientific research on eyewitness memory and issuing recommendations.
 
The study group’s report was released in July 2013 and included five recommendations, each of which are crucial to ensuring an improvement in the reliability of eyewitness evidence: 1) The SJC should “take judicial notice … of the modern psychological principles regarding eyewitness memory”; 2) Police departments should adopt uniform statewide procedures for conducting lineups and show-ups and should conduct comprehensive training on their scientific support; 3) Pretrial judicial inquiry into the reliability of eyewitness evidence should be expanded; 4) Expansive science based jury instructions should be adopted; and 5) The SJC should create a committee to develop professional training for judges and lawyers on the new procedures.
 
The SJC justices invited public comment on the report, and earlier this year the Innocence Project responded with a letter that has now been publicly released (see pg. 27). The letter “commends the Supreme Judicial Court for achieving a consensus among stakeholders in the criminal justice system that comprehensively addresses the reliability of eyewitness identification evidence at both the front end — its collection by law enforcement — as well as the back end — when and how it is used in courts.”
 
Although the study group’s excellent report reflects a serious commitment to improving the reliability of eyewitness evidence, the Innocence Project expressed concern about the procedures for handling pre-trial challenges — opportunities for a defendant to challenge the reliability of the identification evidence. The SJC report falls short in failing to enshrine concrete guidelines that lower courts can rely on when ruling on these challenges. The Innocence Project’s submission noted, “Scientific research has demonstrated that the amount of suggestion that can substantially contaminate memory is directly correlated to the strength of the original memory.” So, for example, a witness who is far away from a nighttime crime scene and has only a short opportunity to view the perpetrator will be affected by a small amount of suggestion. The Innocence Project urged the justices to clarify that courts must evaluate the strength of the witness’s original memory when making reliability determinations.
 
The SJC has also accepted a trio of cases presenting eyewitness identification issues — Commonwealth v. Jeremy Gomes, Commonwealth v. Kenneth Johnson, and Commonwealth v. Walter Crayton — and will be hearing oral arguments on September 2, 2014. The Innocence Network worked with pro bono counsel McDermott Will & Emery LLP to prepare an amicus brief for the court, urging it to improve the legal framework governing eyewitness evidence and to accept the recommendations of the SJC study group with limited modifications.
 
The SJC has been at the forefront of important changes in the way courts treat eyewitness identification evidence. Changes in the state’s framework for evaluating eyewitness testimony hold the exciting potential of not only bringing procedures in line with scientific consensus but will provide greater protections to innocent defendants subject to eyewitness misidentifications.



Tags: Massachusetts

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Massachusetts to Evaluate How Eyewitness Identification Testimony is Presented and Evaluated in Court

Posted: August 28, 2014 1:30 pm

The Massachusetts Supreme Judicial Court is scheduled to hear from defense attorneys next month about adopting changes in the way eyewitness identification testimony is presented to juries. The Boston Globe reported that four cases will be considered in the push to implement stronger instructions to advise jurors that eyewitness identifications are not always reliable.
 
Among the cases is the conviction of Jeremy Gomes who was not picked out of a police photo array by the victim of a box cutter slashing, but who was later identified by that victim when he saw Gomes in a gas station a week following the incident. Gomes’ lawyer John Fennel is challenging the conviction based on unreliable eyewitness identifications of the victim and his friend.
 
According to the Boston Globe, Fennel believes that jurors need to be made aware, particularly by judges, about the fallibility of eyewitness identification, even by crime victims who strongly believe that they have identified the right person.
 
‘‘These are people who had something terrible happen to them. They are people of good will trying to do the best they can, but what the science tells us is that people of good will are just wrong about this a lot,’’ Fennel said, according to the Boston Globe.
 
Decades of research and scientific evidence have shown that the human memory is easily influenced and not like a video recording. The Innocence Network is among the many groups that have long questioned the reliability of eyewitness testimony and has filed a legal brief supporting more cautionary instructions from judges on the matter.
 
The most common element in all wrongful convictions later overturned by DNA evidence has been eyewitness misidentification and, yet, juries continue to accept eyewitness testimony as the gold standard. The American Psychological Association cites a study showing as many as 40 percent of witnesses who made positive identifications were mistaken despite describing themselves as 90 percent to 100 percent confident in their identifications. The push for change comes in response to statistics such as these, according to the Boston Globe.
 
Read the full article.



Tags: Massachusetts, Eyewitness Identification

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Louisiana Exoneree Seeks Compensation

Posted: August 27, 2014 3:30 pm

Nearly three years ago, Michael Williams was exonerated of second-degree murder in Louisiana. According to the American Lawyer, Williams is now seeking compensation from New Orleans and the state for the more than 15 years he spent in prison for a crime he did not commit.
 
In 1996, a young woman was stabbed to death and then dumped onto a road. A single eyewitness testified that he had seen Williams and the victim arguing in Williams’ car on the night of the crime, and that he saw Williams push the victim’s body out of his car and onto the street. The eyewitness — whose testimony served as the primary evidence that led to Williams being convicted and sentenced to life in prison — recanted in 2009. Lawyers at Innocence Project New Orleans took on Williams’ case and through investigation were able to prove that police had actually talked to another witness of the crime, but never shared that additional information with the defense.
 
The American Lawyer reports that Benjamin Haley of the law firm Covington & Burling has taken on Williams as a pro bono client and has filed two suits against Jefferson Parish prosecutors and law enforcement officers involved in Williams’ wrongful conviction, claiming that they suppressed exculpatory evidence.
 
The suit filed in the U.S. District Court in New Orleans claims Williams’ right to due process was violated and the suit filed in state court seeks damages under the Louisiana Innocence Compensation Fund statute.
 
The American Lawyer reports: Williams and his lawyer say that they are seeking more than money. “It’s more important to hold the police and prosecutors accountable,” says Haley. “I don’t want anything like this to happen to someone’s husband, father and son again,” Williams says.
 
Read the full article.
 
More on Williams’ case.



Tags: Louisiana

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North Carolina Man Expected to be Released

Posted: August 26, 2014 2:50 pm

On Monday, a Superior Court judge in North Carolina dismissed all charges and vacated the convictions of Michael Parker who was convicted of multiple sex crimes against his three children. Parker spent more than 20 years behind bars and is expected to be released from Craggy Correctional Center today.
 
In January 1994, Parker was convicted of eight counts of first-degree sex offense and four counts of taking indecent liberties with a minor. He was sentenced to eight consecutive terms of life imprisonment for the first-degree sex offenses and an additional 40 years on the indecent liberties convictions.
 
Asheville attorney Sean Devereux brought the case to the Duke Law School Wrongful Conviction Clinic in 2011, about a decade after he was approached by Parker. Devereux told the Citizen-Times that Parker was convicted during the satanic ritual abuse frenzy of the late 1980s and early 1990s. According to the Citizen-Times, Devereux said that not a single one of those satanic ritual sexual abuse accusations has proven to be true. He said that all of the defendants have seen their convictions overturned.
 
According to the judge’s ruling, advances in child medical examinations and forensic interviewing techniques warranted granting Parker’s petition for relief and that most of the evidence presented at trial was unreliable. The motion also listed ineffective assistance of trial counsel and recantation of one of the children’s testimony, among other vital factors to grant relief.
 
Devereux said that last year Parker was offered a deal to plead guilty, which would have vacated his convictions and allowed him to leave prison based on time served, but Parker refused to take the deal.
 
Read the full article.



Tags: North Carolina

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Illinois Passes Identification Law

Posted: August 25, 2014 5:35 pm

Legislation to improve eyewitness identification procedures in Illinois was signed by the governor on Friday, marking the second wrongful conviction law to be signed in two weeks.
 
In an effort to reduce the risk of misidentification, municipalities across the country will practice blind administration, meaning the police officer who administers a photo or live lineup will be unaware of who the suspect is. Additionally, lineup compositions will be more carefully managed. The fillers, who are the non-suspects included in a lineup, should resemble the eyewitness’ description of the perpetrator. The suspect should not stand out — for example, he should not be the only member of his race in the lineup, or the only one with facial hair.
 
The law was sponsored by Representative Scott Drury and Senators Patricia Van Pelt, Jacqueline Collins and Kwame Raoul who recently sponsored the expanded DNA testing legislation.
 
Learn more about the identification legislation from the bill status page and view a copy of the enrolled bill.



Tags: Illinois, Eyewitness Identification

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New York Man to be Released from Pennsylvania Prison

Posted: August 22, 2014 1:00 pm

A New York man convicted of setting a fire at a religious retreat in the Poconos that claimed the life of his 20-year-old mentally ill daughter more than 25 years ago will walk out of prison today.
 
Han Tak Lee’s arson conviction was dismissed last week by a federal judge based on advances in science. Lee, 79, has been serving a life sentence since 1990.
 
Newsday reported that Lee is due to be released from a state prison in rural central Pennsylvania then driven by a longtime supporter to the federal courthouse in Harrisburg for a hearing to determine the conditions of his release. He is expected to be greeted by friends, family members and supporters at the courthouse.
 
Although prosecutors have conceded the arson science used to convict Lee was faulty, they have said they probably will appeal last week’s dismissal based on other evidence that points to Lee’s guilt. Monroe County District Attorney E. David Christine Jr., who prosecuted Lee in 1990, could seek to prosecute Lee again if he loses the appeal but acknowledged it would be very difficult given the passage of time. Lee is a client of the Pennsylvania Innocence Project.
 
Read the full article.



Tags: Pennsylvania

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Texas Exoneree Says Hold Prosecutors Accountable

Posted: August 22, 2014 12:50 pm



Michael Morton (right) with Innocence Project Co-Director Barry Scheck at the 2012 Celebration of Freedom and Justice in New York.
 
Three weeks ago, as covered by the Innocence Blog, the Marshall Project broke a story revealing new allegations of prosecutorial misconduct that likely caused Texas to wrongly execute Cameron Todd Willingham. In response to that story, Texas exoneree Michael Morton wrote an op-ed that appeared in today’s Dallas Morning News about the prosecutorial misconduct in both Willingham’s and his cases and the need to hold the justice system accountable for its errors. Morton writes:


Three years ago, I sat in a Texas prison cell despite DNA evidence that proved my innocence. The prosecutor who had the power to set me free initially refused to acknowledge that miscarriages of justice occur.
 
In 1987, the murder case against me consisted solely of junk science, with a heavy dose of prosecutorial misconduct. Thank God it was not a capital case. If I had faced the death penalty, I would have been executed years ago.
 
Cameron Todd Willingham was not so fortunate. Although efforts were made to stop his execution, Willingham — who I believe was innocent — was executed Feb. 17, 2004.
 
Willingham, a victim who initially suffered the unspeakable loss of his children, Amber, Karmon and Kameron, ultimately died a victim of what appears to be the most egregious deprivation of federal constitutional rights. He cannot be brought back from the grave, but the prosecutor who violated his federal civil rights can and should be federally prosecuted and held accountable.
 

 
I personally lived the nightmare of being wrongfully convicted of murdering my wife, the mother of my son. It is unimaginable to me to consider the horror of being wrongfully convicted and executed for killing one’s own children. A prosecutor who was entrusted to protect civil rights should be held accountable to the fullest extent of the law for causing the deprivation of those rights.

Morton spent nearly 25 years in prison for murdering his wife, Christine, until DNA testing proved his innocence and implicated the real perpetrator. His memoir, Getting Life: An Innocent Man’s 25-Year Journey from Prison to Peace, is on bookshelves now. Read the full op-ed.



Tags: Texas, Government Misconduct, Michael Morton, Cameron Todd Willingham

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West Virgina Man Granted DNA Testing

Posted: August 21, 2014 12:43 pm

More than a year after a West Virginia man filed petitions for release with help from West Virginia Public Defenders and the West Virginia Innocence Project, a judge ruled in favor of new DNA testing. Joseph Lavigne, Jr. was convicted in 1996 of raping his then 5-year-old daughter and has been seeking to be released from prison ever since.

The Charleston Gazette reported that although Putnam Circuit Judge Joseph Reeder denied Lavigne’s request for a new trial, he did grant the request to allow testing of evidence that has either never been DNA tested before or hasn’t been tested with current methods. Among the evidence to be testing are hairs collected during Lavigne’s daughter’s examination, towels and washcloths gathered from Lavigne’s home and swabs taken as part of a rape kit.

While Lavigne believes his daughter was attacked, he adamantly denies that he was the perpetrator — a sentiment the victim herself has publicly echoed. 

Lavigne’s motion stipulates that if a male DNA profile is yielded from testing that it can be entered into the nationwide (Combined DNA Index System) database to determine whether it’s a match with a convicted felons’ profile already in the database.  

Lavigne is currently serving a jail sentence of 22 to 60 years. His first parole hearing is scheduled for September 2017.

Read the full article


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Another Wrongful Conviction Settlement in New York

Posted: August 20, 2014 3:23 pm

Four years after Brooklyn prosecutors agreed to release a man convicted of a 1994 murder he didn’t commit, he has reached a $10 million settlement with the city.

The Daily News reported that Jabbar Collins, who spent more than 15 years in prison after he was wrongly convicted of the murder of Rabbi Abraham Pollack, ended his legal battle with the city Tuesday and joined the list of settlements built up under former Brooklyn District Attorney Charles Hynes.

Collins fought for years to prove he didn’t have a fair trial, and one month before he saw his conviction overturned, prosecutors finally admitted that critical evidence was withheld at trial from Collins’ attorney. The high profile murder is what led Collins to being railroaded in court in an effort to solve the crime and end the case with a conviction. 

Now 42, Collins finally feels a weight lifted from his shoulders. 

I lost some of the best years of my life in prison and now I’m starting my life all over again as a middle-aged man. My emotions are all over the place. A part of me wanted to lay everything out in a full public trial and put all these people on the witness stand. I’ve been litigating this for 20 years and for the first time in 20 years I don’t have to wake up in the morning having to fight that fight anymore.

Before Hynes was voted out of office last November, he acknowledged in a sworn deposition that he no longer believed Collins was guilty of killing the rabbi. And more recently, Hynes’ successor, Kenneth Thompson echoed that sentiment, telling the Daily News editorial board that Collins was innocent.

The judge who cleared Collins said the prosecutor in the case, Michael Vecchione, coerced witnesses to identify Collins and withheld evidence. Collins was able to uncover much of the alleged misconduct on his own by filing Freedom of Information requests from his upstate prison cell. Vecchione has denied any wrongdoing.

Read the full article


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Illinois’ DNA Access Law Expanded

Posted: August 19, 2014 4:30 pm

Legislation to expand Illinois’ post-conviction DNA testing access law to inmates that have pleaded guilty was signed by the governor on Friday, acknowledging that innocent defendants sometimes plead guilty to avoid a severe punishment.
 
The Chicago Tribune reported that the expanded DNA access law, which is sponsored by Senator Kwame Raoul, will give defendants who plead guilty a chance to use DNA evidence to clear their name if the evidence was not available at the time they took the plea. Defendants will get that chance after a judge finds there would have been a reasonable probability of being acquitted had the evidence been available when the case went to court. The Tribune reports:


“It’s an important element to make sure that we recognize the fact that, even when somebody implicates themselves and there’s a lack of other compelling evidence, there’s a possibility that they didn’t commit the crime,” Raoul said. “We don’t know all influencing circumstances that leads one to plead guilty to a crime they did not commit. Sometimes it’s coercion, sometimes it’s fear of … intimidation from a prosecutor that they’ll get a very stiff penalty” if they go to court and lose.
 
“It is well known that this happens. So in a case where someone can provide some additional evidence that DNA testing can prove them innocent, I think it’s absolutely the right thing to conduct the test,” Raoul said.

Although Raoul gave no indication whether the new law will overturn existing convictions, it’s a step toward strengthening the criminal justice system of Illinois, which has the second highest exoneration rate in the country with 43. Texas leads with 48.
 
Senator Raoul told the Tribune, “I’ve always believed that — given the mistakes that we have documented in the state — (lawmakers should) give the state a sense that we are doing everything in our power to get it right. Nobody expects the criminal justice system to be perfect, but it should always strive for perfection.”
 
According to the National Registry of Exonerations, a little more than 10 percent of the 1,378 exonerations recorded to the database involved prisoners who had pleaded guilty. Of those 145 exonerations, DNA evidence played a role in 29 of them, four of which took place in Cook County.
 
Read the full article.



Tags: Illinois, Access to DNA Testing

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