Wrongful Conviction: The Dangers of Eyewitness Testimony

There are currently close to two million American citizens behind bars. This number is unsettling, even under the assumption that the entire two million are truly guilty of the crimes for which they have been convicted and incarcerated. But what if there was one of them, just one, who was living in filth, bondage and constant danger- as punishment for a crime he or she did not commit?

Sadly, this has been the unfortunate experience of numerous citizens who have served time and subsequently been proven innocent- as well as undetermined numbers of current American inmates of the United States Department of Corrections. In the last twenty years there have been 265 post-conviction DNA exoneration rulings in the United States. And while DNA testing is a progressive means of clearing wrongfully convicted citizens, what about those convicts who are as innocent as those given DNA exonerations, but whose cases are not subject to the absolution that DNA evidence provides? For example, of the 265 DNA exonerated persons, 75% of them were convicted due to eyewitness misidentification testimony. Simply stated, the identifying witness was WRONG.

Wrongful conviction due to eyewitness misidentification has been a subject of social and legal controversy since the early 1900’s. Before DNA testing and the accuracy of modern technological forensics, individuals questioning the absolute precision of human recollection led to the 1911 release of Andrew Toth- a PA steelworker and victim of faulty eyewitness testimony who spent 20 years in prison for a murder he did not commit. Twenty years later Yale law professor Edwin Borchard wrote, Convicting the Innocent, a provocative work in which he chronicled 65 cases of wrongful convictions, 39 of which resulted from incorrect eyewitness testimony. That is an astonishing 60% wrongful conviction due to witness misidentification, in the early 1930’s.

With millions currently incarcerated, and the availability of DNA testing exonerating over two hundred since 1989, how many innocent Americans are doing time as a result of faulty witness identification and testimony in 2010? The American criminal justice system’s unquestioning acceptance of eyewitness testimony as solid evidence is becoming increasingly irresponsible. Considering the high percentage of proven misidentification cases as related to DNA exonerations, policy improvement in the eyewitness identification and testimony process is long overdue.

Organizations like The Justice Project http://www.thejusticeproject.org are working to reform the system by pushing for better policies and procedures, including adopting sequential line-ups and “double blind” administration, in which the suspect is not known to the administrator. These initiatives serve to take pressure off the witness, helping to insure a proper identification - if there is one to be made.

In the U.S. Supreme Court case of Manson vs. Brathwaite, an under-cover officer and an informant purchased heroin from a suspected narcotics dealer. The suspect was charged with dealing heroin. However, no line-up was ever conducted and the respondent was identified on the strength of but one photograph. No objection to the identification procedure was registered by the defense during trial, but after sentencing the Court of Appeals reversed the District Court’s denial of a writ for habeas corpus.

Subsequently, this case allowed the suppression of tainted eyewitness testimony in American courts rare, and has inaccurately remained controlling case law despite mounting scholarly research refuting the Brathwaite court’s views on human memory.

Consistent unreliability in a procedure so integral to the determination of limitations or termination of the freedoms of American citizens is unacceptable. In addition to pure human error, the margin for pre trial identification evidence obtained by suggestive and unnecessary police procedures is far too wide. The witness identification and testimony process of the American judicial system was considered flawed and questionable as early as 1911- yet has since remained largely unchanged, if not less scrutinized. From capital murder to car accidents witness identification is far too influential in the outcome of cases to continue in its unquestioned status in American criminal law. Wrongful conviction is a traumatic, devastating mistake that takes years from its victims lives, ruins families and causes irreparable damage. Eyewitness misidentification is responsible for more than half of all wrongful conviction cases. This statistic alone, justifies radical reformation.

Indeed, in New Jersey retired appellate judge Geoffrey Gaulkin was appointed by the New Jersey Supreme Court to study the reliability of eyewitness testimony and procedures. Gaulkin’s report called for extensive reforms given the potential unreliability of the practice. www.nytimes.com/2010/06/22/nyregion/22witness.html; http://www.criminallawlibraryblog.com/2010/06/new_jersey_report_of_the_speci_1.html.

Organizations like The Innocence Project and The Justice Project are pioneering real change. Click on the links to learn more, or donate to their efforts.

The New Jim Crow

“There are more African Americans under correctional control today in prison or jail, on probation or parole than were enslaved in 1850, a decade before the Civil War began.”

”As of 2004, more African American men were disenfranchised (due to felon disenfranchisement laws) than in 1870, the year the Fifteenth Amendment was ratified, prohibiting laws that explicitly deny the right to vote on the basis of race. ”

”A black child born today is less likely to be raised by both parents than a black child born during slavery. The recent disintegration of the African American family is due in large part to the mass imprisonment of black fathers.”

”If you take into account prisoners, a large majority of African

American men in some urban areas have been labeled felons for life.”

These are quotes from “The New Jim Crow”, a recent article by Michele Alexander of The Huffington Post. And as outrageous as these facts are, they do not touch upon the full impact of racism in the American criminal justice system.

Most states, including New Jersey, have bail “guidelines” - a euphemism for the refusal of judges (or agencies which exert control over those judges) to individually assess one charged with an offense to determine if he or she will return to face the new charges.

Bail, traditionally and constitutionally, exists to insure that one who is not guilty and indeed presumed innocent will return for trial. It was never to be one-size fits all proposition that punishes rather than respects the presumption of innocence. Indeed, in the New Jersey Constitution, bail is mentioned as a right more than almost any other.

But bail “guidelines” punish mostly the poor and people of color before trial. Five thousand dollars means little to an upper middle class defendant yet represents the difference between pre-trial freedom and incarceration to one who is impoverished. Conversely, five thousand dollars, in a one-size fits all system, bears little relation to a well-off person’s motivation to return.

Stuck in jail, with the attendant loss of a home and job– not to mention the conditions like no medical care-- even totally innocent people will plead out to get out or end the limbo. Of course this, as noted, applies mostly to people of color. Once convicted by way of this institutionally coerced plea bargain, an innocent person is converted to a felon. Jim Crow then comes full circle as felons can’t vote.

So it is little wonder that in addition to its racially skewed prison population, New Jersey county jails are generally overcrowded hellholes teeming with people of color with little means. Forget the presumption of innocence. If you are poor, your punishment starts with the simple but often mistaken word of the policeman.

Even those lucky enough to obtain bail must face a gauntlet of institutionalized racial barriers that ensure radically more people of color end up in prison. Even in supposedly “progressive” states like New Jersey, the imbalance is nothing short of shameful.

Laws requiring mandatory minimums are more likely used against minorities. For example, mandatory sentences for drug sales or possession near schools impacts minorities in the inner city simply because there are tighter quarters and almost no areas are beyond the school zone boundary - not so for the less crowded and more affluent suburbs.

And the list goes on.

Suffice it to say that The Huffington Post notes the outrageous symptoms of our criminal justice system. But our criminal justice system and how it continues to criminalize color must be decoded more aggressively for real change to occur.

John Wilson's Nightmare In New Jersey

New Jersey so often pats itself on the back as a “progressive” state. It’s not, particularly in the area of criminal justice issues, especially drug related issues. On drug policy, New jersey leads the way in draconian sentencing schemes and obsolete thinking. Somehow the weight of this system is also placed primarily on minorities as New Jersey’s prisons house mostly minorities.

Outside America most of the developed world has long placed marijuana in context. These nations have either legalized use, decriminalized the substance or have made it a minor offense. Inside America many states have embraced reason to allow for medicinal use of a proven medically necessary drug. Some of those same states, and others have accepted the need to make punishments less draconian.

Yet New Jersey still relies on mandatory sentences for amounts of marijuana that would be considered mere possession elsewhere. To inflict maximum unnecessary pain, New Jersey still suspends drivers’ licenses for six to twenty four months, even for less than fifty grams or if the marijuana had no connection to the use of a car. Needless to say it is surrealistic to think that where a state would want to help prevent recidivism, New Jersey helps destroy lives by preventing people to travel to employment, rehab, probation or grocery shopping.

The oddest – and most draconian– New Jersey law declares that one can be guilty of “maintaining or operating a controlled dangerous substance facility” for merely growing ten or more marijuana plants. The penalty: up to twenty years of which one half to one third must be served before one is eligible for parole and up to 750,000.00 in fines. Moreover, it doesn’t matter whether the plants are seedlings or mature. Anyone of a fair mind, in law enforcement, or otherwise knows that ten plants is minimal to the personal user who wants to avoid the distribution milieu and grow his or her own for personal use. Collective experience in places where medicinal marijuana is allowed shows that ten plants is a minimum for a treatment regime.

Enter The Nightmare of John Wilson

Showing some common sense - or fairness - there is/was a safety valve to the absurd notion that ten plants of any size should be on the same plane as horrific crimes of violence. A less well known NJ statute did not include personal use within the definition of “manufacturing.” Thus, despite the danger of other criminal penalties, MS sufferer Roy Wilson had some hope that he would not die in prison for treating his MS with marijuana. Roy found himself in a nightmare, at least in his NJ county, in front of Judge Reed.

Accepting the NJ Attorney General’s hypertecnical reading of the statute distinguishing manufacturing from personal use, Judge Reed ruled that the statute applied to almost all other drugs, but not marijuana. As Judge Reed and the Attorney General saw it truly lethal substances could be exempted from the horror of a “manufacturing” conviction but medicinally beneficial marijuana could not. Rejecting decades of common sense use of the definitions statute, Judge Reed and the Attorney General decided, without the benefit of a jury, that Roy Wilson had no defense in his upcoming trial. Wilson would not be allowed to say he grew for his use only. Wilson could not say that he had MS and marijuana helps MS sufferers.

Instead, in an era where mandatory minimums are decried even by the most conservative Supreme Court Justices, when drug policy , especially marijuana policy, is under more common sense scrutiny everywhere, Judge Reed and the NJ Attorney General cling to policies of retribution. In the mind set of the Attorney General and Judge Reed, essentially a life sentence is treatment enough for MS. Parsing of words beyond all mercy and reason is safe and alive in New Jersey.

End The Fiction of the “Consent” Search.

“Consent “is a threadbare fiction which should be eliminated from highway or pedestrian searches. No traveler with a choice wants to be detained for the minutes or hours that searches consume. No one wants the humiliation and spectacle that attaches to the process while he or she sits on the hood of a car or the guardrail as police strangers comb through their vehicle and their most intimate possessions. Every request for a highway search carries the implied threat that if the traveler does not accede to the officer’s wishes in this most vulnerable and isolated situation, he or she could potentially be the object of the officer’s wrath, be it more tickets, an elongated stop, or worse.

The reality of searches by the side of the road, especially those rationalized under the doctrine of consent, has led to an array of abuses that implicate the integrity of our law enforcement and judicial systems. Sadly, these perceptions are not fantasy. Consent searches have become part and parcel of a bundle of “techniques” and practices that have perpetuated racial profiling and other unacceptable invasions of privacy and dignity. Armed with stereotypical training, enforcement personnel have essentially used the traffic code as a pretext to stop and attempt to search “any car [an officer] wants.” State v. Soto, 324 N.J. Super. 66, 80 (Law Div. 1996), appeal withdrawn April 20, 1999.

Too often, officers work backwards, deciding first who they would like to search and then perfecting the stop from the almost unlimited supply of violators on the highways. The myriad of traffic regulations allow that almost anyone is eligible to be stopped. Consciously or unconsciously, biases and stereotypes are inevitable. Ridding ourselves of the notion of the consent search would be an important step to check biased law enforcement.

It is now beyond reasonable debate in New Jersey and the nation, as has been admitted that the number and patten of “consent” searches, are a major indicator of the presence of racial profiling. As a society, we should dwell upon the overarching significance of this last fact. If consent searches alone are an indicator of racial profiling, then the very notion of consent in these situations is highly suspect. When the Attorney General of a state the size population- wise and significance of New Jersey must concede that “consent” searches, are a major indicator of the presence of racial profiling, we are assured that “consent” is a cynical fiction the use of which demeans our courts, law enforcement and society.

The sad fact of profiling and its symbiotic relationship to consent searches, is a fact in New Jersey and elsewhere. But, to date, examination of profiling and its relationship to consent searches has focused almost exclusively on law enforcement. Profiling has also survived because our courts have fallen away from a healthy skepticism of supposed consent searches, and in the process encouraged their use that much more.

Too often, courts operate with blinders on. When faced with a suppression motion, a judge sees sitting before the court a defendant nabbed with contraband. Courts are rarely reminded of, and usually oblivious to, the fact that dozens of innocent people have been stopped, searched, endangered, and humiliated in unproductive “consent” searches, before one offender is discovered. Credible anecdotal analyses of searches, has shown as little as one in thirty, accuracy rates. United States v. McKines, 933 f.2d 1412, 1436 (8th Cir. 1991) (dissent by McGill, J.) (citations omitted). Consent search suppression hearings require the court to credit a police officer’s testimonial recitation of a set of facts that often belies common sense. With their blinders on, through the doctrine of consent searches, our courts have all too often served the function of an institution that sanctifies practices responsible for wide-spread damage to the lives of thousands of innocent travelers.

Ironically, Courts were considerably more skeptical about the concept of a “consent” search decades ago than they are now. For example, in Higgins v. United States, now over years old, the Court of Appeals for the District of Columbia Circuit stated, “Words or acts that would show consent in some circumstances do not show it in others. ‘Non-resistance to the orders or suggestions of the police is not infrequent...; True consent, free of fear or pressure, is not so readily to be found.’” Higgins v. United States, 209 F.2nd 819, 820 (D.C. Cir. 1954), [citing Judd v. United States, 190 F.2nd 649, 651]. To be voluntary, any consent cannot be the result of duress or coercion, expressed or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 248-249 (1975). [Emphasis added].

Law enforcement representatives complain that abolition of the doctrine of consent, even for highway travelers, would deprive law enforcement of a “useful tool.” Yet, a dangerous, often abused practice, which is also at the heart of profiling, serves no use in a free society. The directive and goal for law enforcement in a free society has never been and should not be the power to use any tool that it deems useful.

Too often, such “useful tools” have been thoroughly exposed as instruments of potential abuse. Law enforcement should have only the authority to use those tools that do not demean the rights of citizens and the institutions that purportedly guard citizens’ rights. Any debate over consent searches should not address the “useful tool” concept. It must center on whether or not the value of consent searches is outweighed by the harm they wreak and whether in the light of painful, recent experiences, those tools comport with our concept of ordered liberty and human dignity. Consent searches, all too often, are rationalizations that formalize an officer’s hunch, as opposed to the more objective requirements of probable cause and reasonable suspicion.

Were consent searches प्रोहिबितेद law enforcement would continue to possess the authority to act on numerous other bases, including probable cause, reasonable suspicion and search incident to arrest. Directing police to act on the basis of these standards would be a major step forward in the quest to eliminate the widespread abuses associated with profiling and other citizen-law enforcement encounter problems. It would provide our courts with a more objective basis for balancing the needs of law enforcement against the right of citizens to their privacy, dignity, and fundamental right to travel. Abolition of purported consent searches would remove the institutional pressures on courts to credit police testimony against that of citizens on the rationalization that officers have no motive to stray from candor.

Notably, the New Jersey State Police, over a decade ago, decreed that consent searches should be limited only to those instances where an officer had “reasonable suspicion” that a consent search would net contraband. New Jersey State Police Standing Operating Procedure F-55. See also State v. Carty, 332 N.J. Super. 200 (App. Div. 2000). This recognition of the potential for abuse inherent in purported consent searches speaks volumes. Yet, after a decade of analysis, through profiling challenges and related civil rights litigation, it is clear that this standard is not and cannot be effectively enforced. The incentive to extract a consent search, under the inherently coercive circumstances of a highway stop, remains. A decade of analysis and history shows that consent searches are an oxymoron under any standard. Instead, it is time that we refocus on the paramount concern of a free and civilized society to assure travelers that they can safely travel with dignity and without fear of a government which exists supposedly to guarantee their safety and dignity.