Eyewitness MISidentification

by Katherine Scardino

My hometown of Houston, Texas, made headlines at the end of July for exonerating two innocent men in one week.

To be honest, I am still angry over the number of years these men spent in prison before being released. I discussed the exoneration of the first man, Mr. Allen Porter, in my last post titled “Free at Last, Free at Last.” The day that post was published on this site, news broke of another Harris County man who was released and exonerated.

Mr. Michael Anthony Green (below right) spent 27 years in prison after being convicted of rape mainly as a result of the testimony of one eyewitness. Other inmates who have been exonerated and later interviewed by the media were quoted as making fairly soft, understanding, Christian-like comments. Mr. Green did no such thing. He was angry. As a matter of fact, on the date the judge acknowledged his innocence of the rape offense, some of his pent up anger burst out at the deputy who insisted on putting him in leg restraints and handcuffs that were too tight for his walk from the County jail to the courthouse -- even though the deputy knew at that moment that Mr. Green was an innocent person. I am afraid that my attitude would be about the same, if not much worse, had I lost 27 years of my life to faulty witness identification and subsequent false testimony. Especially, to top it off -- the icing on the cake -- when an eager officer felt that tight handcuffs were appropriate under the circumstances.

Eyewitness identification is not reliable. From 1990 to 2007, there were 24 wrongful convictions in Texas due to eyewitness identification. The most serious case was that of Timothy Cole, who is not included in the list of 24 exonerated inmates because, unfortunately, he was only officially exonerated posthumously. Timothy Cole (below left) died in a Texas prison in 1999 while serving a 25 year sentence for a rape he did not commit. Nearly a decade later, on April 9, 2009, DNA evidence from the crime posthumously exonerated him and implicated another man as the perpetrator.

In 1985, a young female Texas Tech student was parking her car in a church parking lot across from her dormitory in Lubbock, Texas when an African-American man approached her and asked her to help him start his car. She told him she did not have any cable, and he then reached in through her window and unlocked her door. He then put a knife to her throat and forced her to lie down in her car. The man drove her car to a vacant field where he vaginally raped her. The white female student called the police and during the investigation, she described her attacker.

Timothy Cole was a 26-year-old Army veteran studying business at Texas Tech in 1985. Timothy said he was at home studying the night of the attack. Timothy Cole’s photograph was placed in a photo lineup as a result of a conversation he had at a pizza parlor near the Texas Tech campus with a female detective. Cole was identified by the victim of the rape and was arrested for aggravated sexual assault. The victim of the crime testified at trial and identified Timothy Cole. This identification, along with inaccurate testimony from a forensic examiner, got Timothy Cole convicted of Aggravated Sexual Assault after six hours of jury deliberations. He was sentenced to 25 years in prison.

Now, imagine that you are Timothy Cole. At the time of the rape, he was in college. He had a life, probably a girlfriend or two, and a family -- a past and a future. Until he died in prison in 1999, he had nothing. His appeals were exhausted and nobody could give him any hope that he would ever be released. He was one of those men I have described before. He lived in a box, knowing that he was an innocent person and that no one was doing anything to help find the real perpetrators.

In 1995, one man came forward to accept responsibility for the crime that Mr. Cole was serving time for. Jerry Wayne Johnson wrote to police and prosecutors in Lubbock County stating that he was the guilty party. Keep in mind, however, that this confession came only after the statute of limitations had expired on rape. No one wrote him back. No one did anything. Eventually Mr. Johnson got to the Innocence Project of Texas, where I happily sit on the Board, and told his story. Attorneys at the Innocence Project sought posthumous DNA testing. Cole was cleared by DNA tests in 2008. At a hearing in February 2009, Johnson again confessed his crime before a judge. Mr. Cole was officially pardoned by Gov. Rick Perry on March 1, 2010. Unfortunately, Timothy Cole never knew any of this.

There are many stories like Timothy Cole’s. I will repeat -- eyewitness identification is not reliable. It is the leading cause of wrongful convictions in the United States. Seventy-five percent of the convictions overturned by DNA evidence have involved a mistaken eyewitness.

The Supreme Court of the United States has recognized the uncertainties of eyewitness identification. In United States v. Wade, a 1967 Supreme Court opinion, the court stated: “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”

One of the primary reasons that eyewitnesses to crimes have been shown to make mistakes in their recollection of the attackers is the police procedures used to collect eyewitness evidence. A common eyewitness identification issue arises when a witness or victim is asked to identify a stranger -- either in a line-up, or by viewing a photo spread.

So, how can this problem be solved? It has been recommended that police line-ups be conducted in a double-blind fashion, like any scientific experiment, in order to avoid the possibility that inadvertent cues from the officer who is conducting the line-up may suggest the “correct” answer. That means that neither the witness nor the officer conducting the line-up would know whether the suspect was even in the line-up. Some states have adopted reforms in eyewitness identification procedures. All states should adopt them, but no one wants to admit that they may be wrong. Texas has not adopted any reforms to change much of anything -- including eyewitness identification procedures.

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