Category Archives: EYEWITNESSES

THE FALLIBILITY OF EYEWITNESSES, PART TWO

Eye witnesses

I heard a program sometime back on Public Radio that has stuck with me. A defense team was trying to overturn a guilty verdict based on an eyewitness identification. A car cruised up to a house and stopped. The passenger window was lowered, followed by a burst of ammunition coming from the opened window killing the person coming down the walkway. The primary witness of the shooter was a bystander not related to either man. The defense asserted that at the time of day the crime was committed the car would have been backlit by the sun. There was no way a positive identification could have been made. Finally, a reenactment was staged and the judge brought out the very place of the murder, at the same time of year, at same time of day with, fortunately, the same weather conditions. Sure enough, the person sitting in the car mimicking the shooter was visible only as a dark mass. The judge agreed that identification of the shooter was impossible under the circumstances.

The Innocence Project, founded in 1992 at Cardozo School of Law in New York City, is a national litigation and public policy organization dedicated to exonerating wrongfully convicted individuals through DNA testing and reforming the criminal justice system to prevent future injustice.[1]

Since the 1990s, when DNA testing was first introduced, Innocence Project researchers have reported that well over three quarters of convictions overturned through DNA testing are based on eyewitness testimony. Amazing to me, one third of these overturned cases rested on the testimony of two or more mistaken eyewitnesses. In the case of Kirk Bloodsworth, an ex Marine convicted of the rape and murder of a nine-year old girl and sentenced to the gas chamber, his conviction was based on the testimony of FIVE eyewitnesses. After nine years in prison, two of them on death row, he was finally freed by his own insistence on using DNA testing.

Tragically, a substantial number of people wrongfully convicted are exonerated only after serving a significant portion of their lives behind bars. These following were incarcerated based primarily on the testimony of eyewitnesses, and exonerated because of DNA testing: Cornelius Dupree, 30 years imprisoned in Texas; Derrick Williams, 18 years in Florida; Johnny Pinchback, 27 years in Texas; Alvin Jardine, 20 years in various prisons on the main land.[2]

Of course, it doesn’t matter how long someone is wrongfully incarcerated, imprisonment of innocent people is a heinous miscarriage of justice. And, the fact that eyewitness testimony has been established as a major contributor to such travesties is deeply unsettling.

Until hearing the aforementioned program, I thought an eyewitness ID was proof positive. And now with my own experience in a situation that was not anywhere near as fear ridden as a murder or rape, I wonder how many people would pay attention to the detail of the perpetrator instead of focusing how to avoid further harm. My priorities were first Tank, and second how not to get bit while trying to save him.

Sometimes the victim is composed enough to look for something identifiable so as to later ID the perpetrator. When an assailant broke into the apartment of then 22-year old Jennifer Thompson and sexually assaulted her, she did exactly that. As she said on 60 Minutes, “I was just trying to pay attention to a detail, so that if I survived…I’d be able to help the police catch him.”[3]

Thompson’s identification, of which she stated she was 100% sure[4], landed Ronald Cotton in prison with a sentence of life plus 54-years. DNA testing on a semen sample over ten years later not only demonstrated that he was innocent, it categorically proved the culpability of another man.

 

The questions

What keeps bouncing around my mind is the thought of eyewitnesses and the sway their testimony has on juries. Two questions loom.

  1. How could so many eyewitnesses be wrong?
  2. Why is eyewitness testimony so powerful despite its record of misidentification?

 

 

 

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THE FALLIBILITY OF EYEWITNESSES, PART ONE

Dog fight, dog fight…

A big part of my life is spent with my two young Parson Russell Terriers. In case you are not familiar with the breed, they are those dogs that jump: boing, boing, boing; or if you are a Facebook fan you may have seen the pup popping a million balloons in under a minute. That was a Jack Russell, basically the same thing.

One fundamental problem for my high-energy dogs is that for them to get adequate exercise they need to run off-leash. Otherwise I would have to walk them several hundred miles each day, and I don’t have the time. The situation is compounded by the fact that where we live there are not a lot of public spaces that allow unattached dogs. So guess what? We often are free where we shouldn’t be.

After a 15-minute romp through a vacated nursery site, Tank (my boy weighing in at 18 pounds) and River (my girl, a mere 11) make a beeline to the OC&E Trail, the old Oregon, California & Eastern Railroad bed that has been converted to a multiple use path. It is a place we often visit so, given where we are parked, they think that is where they are supposed to go. I am not in a hurry and it actually seems like a good idea for them to have a longer walk.

I follow them over to the trail, and peer up and down it to see if any officials are lurking. Having been informed on a previous walk by a man in uniform that the trail is a State Park and all dogs MUST be on leashes, I feel smug I am at least carrying a leash. What I do not feel comfortable about is that they do not have on their remote control collars, which they almost always wear when off-leash anywhere but home. The moment those buckles are secured, the dogs are good as gold. Voice-control is real. But, they don’t have them on.

Upon reaching the break in the fence, I expect to see them sniffing along the trail as they usually do. Instead I watch Tank, with River close behind, cross the raised, paved OC&E pathway and head down a dirt track through an entry into a seriously sketchy neighborhood. I call after them. River comes, but Tank completely ignores me, continuing several yards. He then stops, and is basically “on point” staring at what I finally see is a tethered pit bull. A large one. I call, to no avail.

He proceeds forward, at which point the tethered dog rushes out to meet him, and I see he is not tethered at all, but merely dragging a leash. This is actually better. Fettered dogs can be dangerous. It makes sense: they cannot escape, so they must be ferocious to stave off any potential threat. I relax. They are doing a familiar dance of acquaintanceship, and while I wish Tank would heed my call, I am not worried. They are starting to romp a little, and as I approach, I have no sense of menace.

Just as I near them, a buff, dark-haired guy in black leather bursts onto the scene and grabs the pit bull by the collar, yelling and hitting him, even though, I must emphasize, the dog has done nothing to warrant this behavior. Tank, wedged between the fence and the dog, has no where to run as the massive dogs breaks loose and, now, with a menacing master on the scene, goes after my dog for real. It is not pretty, but fortunately Tank is fast…and unfortunately Tank is amped! He leaps toward the pit bull, which in turn asserts his supremacy in a vicious growling charge. There looks to be contact. There sure is a lot of noise. The guy grabs his dog again and wouldn’t you know it, Tank, unfazed by the fact that he has just escaped the jaws of death, runs right around me, too fast to catch, and goes back into the fray.

A fleshy, upbeat young woman, with heavy make up and too small tank top, comes out to see what’s up. She is followed by a redheaded guy in plaid shirt and jeans. She is certainly not afraid of the pit bull, in fact she is almost nonchalant about the whole scene. But the guy is clearly anxious. He demands repeatedly “who left the gate open?”

Midst all the chaos, me focused on rescuing Tank without getting hurt myself, she looks over to where I am standing and says loudly, “What cute dogs you have.” “What the hell,” I think. “Doesn’t she see what is going on?”

“Catch him,” I say, with an undertone of urgency. The pit bull, albeit held by the guy, is still lunging, and is now joined by a smaller one, also dragging a leash. “The little white one,” I yell, ” grab him by the tail if you have to.” I am starting to worry. Tank seems crazed, and a fear that this is going to end badly begins to roil my stomach.

Much to my chagrin, the girl seems rooted to her spot, making no apparent move to help. “Let’s barricade him,” I say, hoping she will move to block his route past the pit bull. Instead, she bends over and extends her hand toward the snarling dogs. She starts to sweet talk Tank, telling him, of all things, how cute he is. And, damn, he just goes right over to her.

“Grab him while you can,” I think. But, recognizing my instructions so far have had no impact on her, I say nothing and, with feigned calm, move to a position where I can snap on the leash. Whew. I call River over and hook her up, too. She has been watching the whole thing from across the street.

Meanwhile, Leather Boy hauls off the big fellow and now both pit bulls are out of sight. “Close the gate,” yells the redhead. He is definitely a somber fellow.

“Who the hell left the gate open,” he once again queries loudly. Turning to face me, he apologizes, intensely staring at me. It seems he is not looking into my eyes, but is focused just at the surface. It is unnerving.

“No, no,” I say. “I should have had them leashed.” “No,” he says. “The gate should have been closed. That big one, he likes to hurt things.”

He goes on to tell me that the dog has been cited and is on probation. “I’ll take care of any expenses for your dog,” he says. Now his eyes are boring into me. I am instantly worried. Is Tank hurt? He is moving OK, but I haven’t actually examined him. The girl yells out, “He ain’t hurt.” Leather Boy, who has returned, the girl, and I look at Tank who, thankfully, has not a mark on him. “He’s just fine.” I say convinced and relieved.

The guy looks at me intently. “If he has any vet bills, I’ll pay ’em.” “Thank you,” I say, “but he’s fine, honestly.” Then he says, “I just got out of prison – yesterday. I don’t want any trouble.” “He really isn’t hurt,” I say, wondering why he was in jail…and which one was he in, and for how long. “It’s OK.” I look him directly in the eyes. It seemed important.

I once again apologize for not having my dogs leashed. They all reiterate it was their fault. And we go our ways. The redhead returns to the house and Leather Boy and the girl walk with me to the OC&E trail. “You wanna go over to the train?” She asks him. “Ye-ah,” he says in way that makes them both seem like innocent 12-year old best friends off for a days adventure. I muse that they are probably teenagers, a bit younger than I initially thought.

They turn in the direction I had planned to go; I make a quick adjustment and head the other way. We, the pups and I, are rewarded with a nice, freshly mowed field surrounded by fence, perfect for running loose.

Driving home, my thoughts are on the incident, ever grateful that no animal or person was injured. I admit to my foolish, irresponsible behavior in not leashing the dogs and I promise, promise, promise I will always leash them if they don’t have on their control collars, even for short walks. But what deeply disturbs me has nothing to do with the dogs.

Here is the thing: I spent a good half hour with them, talking as well as trying to catch Tank, and I could not identify these people if you paraded them in front of me with neon arrows hovering over each one’s head.

Leather Boy: Good looking. Young. At first I thought he was about 22, but after the fact I think about 17 or 18. But, criminy, he could be 27. Dark, straight hair; dark complexion. Probably Hispanic…maybe Native American. Did he have a hat on? Maybe. His clothing was dark, and somehow seemed heavy. Black pants. Jeans? Now why do I call him Leather Boy? Maybe his pants were leather. Maybe he wore a big black leather belt? I am pretty sure he was wearing a black leather vest. Were there chains or studs? Zippers? Tattoos anywhere? You’d think so, but I don’t remember seeing any. Probably dark eyes, but that is an assumption.

So, as you can see, there is nothing in my memory to ID him.

The Girl: Obese. Light skin. Longish dark hair, maybe curly. I think it was pulled back. At least I don’t remember it in her eyes. Were her eyes light or dark? I really don’t know, but, for some reason, I don’t think they were blue. Nothing remarkable about her face, so I deduce she had an average nose. Did she have beauty marks? I don’t even know if she had jowls. The only take-away I have is that she seemed pleasant, and comfortable in her body so that the double layer of tight tank tops, exposing flank rolls and heavy arms, was not just clothing, but an earnest fashion statement.

Again, nothing substantial.

The Redhead: Trim and of a fair height. Fine features, light-ish, somehow impenetrable eyes. Ethnically familiar: Scotch Irish, as am I. There was something of a wound up steel spring about him, but mostly I remember that he seemed scared. Also, he vaguely reminded me of someone I knew long ago. So, with the intensity of our encounter, all this makes him seem to be more memorable. But, I don’t really think he is.

Most of my recollection is how I felt.

 

 

 

[1] innocenceproject.org

[2] American Bar Association

Section of Litigation – Testimony

Is Eyewitness Testimony Inherently Unreliable?

2012 By Aileen P. Clare – May 28, 2012

[3] http://www.innocenceproject.org/cases/ronald-cotton/

[4] TODAY NEWS, Mike Celizic, 2009

 

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