This is the third in a trinity of articles from the Fort Worth Star Telegram that I imbibed this morning along with my muffins and grapefruit.   Linda Campbell’s column in the is devoted to the vagaries of eyewitness testimony. 

Campbell uses the story of Ronald Cotton, a man who presently tours the country with the woman who misidentified him as her rapist in 1984.  After 11 years in prison, DNA testing demonstated beyond doubt that Cotton was the wrong man and that the right man had escaped detection. 

Linda Campbell wants to be polite.  This kind of mistake occurs, she insists, even when investigators and prosecutors are doing their level best to get it right.

But what if they arent doing their level best?

The problem of witness misidentification is compounded when overworked and under-resourced investigators and prosecutors cut corners so they can move on to the next case.

The problem is particularly severe when the victim is a white female and the prime suspect is a black male. 

Investigators and prosecutors can create a compelling case against any poor black male who doesn’t enjoy an airtight alibi.  Poor, legally compromised witnesses can be made to say almost anything if the right combination of carrots and sticks are employed.  First, you tell the prime suspect’s cellmate that you will cut him a deal if it turns out the suspect bragged about committing the crime. 

You don’t have to be gross about it; a wink and a nod will suffice. 

Next, you tell a single mother that she will lose her children if she refuses to cooperate.

Or perhaps you suggest that there might be reward money available for cooperative witnesses. 

Once you have a statement you don’t have to pay up.  Witnesses who back away from signed statements can be prosecuted for perjury.

Many police officers wouldn’t think of pulling this kind of stunt, especially if they work for a sheriff or a police chief who goes by the book or if they are preparing a case for a prosecutor with a modicum of professional integrity.

Unfortunately, investigators and prosecutors are easily convinced of their own infallibility.  Once they settle on a suspect all evidence is twisted to fit the chosen theory.

If public officials choose to operate this way there is little to stop them.

And what about innocent suspects who are convicted on the basis of inaccurate or fraudulent eyewitness testimony when there is no DNA evidence to set the record straight?

It is commonly assumed that all sorts of bleeding-heart, lefty organizations will rush to the defense of the wrongfully convicted.

It ain’t so.

In fact, in cases where innocence can’t be proven (and that’s 99% of the time) there is virtually no recourse for wrongfully convicted defendants . . . beyond the appeals process, that is.  In the absence of gross procedural irregularities an appeal is virtually hopeless.

It is difficult to exaggerate the power of eyewitness testimony in the courtroom.  Jurors eat it up.

That’s why Friends of Justice intercedes for the victims of wrongful prosecution.  If you are curious about how we work just stay tuned.  We are currently investigating a case based almost entirely on the kind of coerced testimony I have just described.

CAMPBELL: Eyewitness identification often proves faulty

lcampbell@star-telegram.com

Think you could positively, without doubt, identify the criminal who victimized you?
Jennifer Thompson was certain she could.

But she was wrong.

After Thompson mistakenly identified Ronald Cotton as having raped her, he spent 11 years in prison.

But DNA testing finally corrected that error in 1995 and identified the real perpetrator as a convicted rapist named Bobby Poole.

After Cotton’s exoneration, he and Thompson-Cannino (her married name) formed a close friendship and now speak all over the country about the procedural flaws that too often undermine the credibility of witness identifications. Working with writer Erin Torneo, they’ve put their experience of tragedy and triumph into a book, Picking Cotton, published this month. It’s an absorbing howdithappen – unraveling not a mystery but an injustice.

The dissection of their case illustrates how the criminal justice system can get things wrong when well-meaning people acting with the best of intentions follow procedures that are outdated and inadequate.

Photos in the book show the composite drawing that a police artist drew based on the description that Thompson-Cannino, then a 22-year-old college student in Burlington, N.C., gave the night of the attack.

Determined to find her assailant in a photo spread, she picked Cotton; she later ID’d him in a lineup where she stood across a table from the suspects.

“Ron was the only person who had been in both the photo and the physical lineups, making his face more familiar to me,” she says in the book. “Later, when I looked at the composite we created and at a mug shot of Poole, I thought I had actually done a great job. The problem was that Bobby Poole had not been in my lineup; Ronald Cotton had, and at the time Ronald Cotton most resembled that composite. The standard way eyewitness evidence was collected had failed me, and because of that, I’d failed, too.”

Thompson-Cannino and Cotton, along with the detective who handled the case, have worked to improve witness ID procedures that all too often lead to erroneous convictions.

It isn’t just about protecting defendants’ rights to due process. It’s about protecting the integrity of the system, so people believe the real wrongdoers will be punished. It’s about protecting public safety, so predators can’t continue victimizing while authorities pursue erroneous leads. It’s about using tax dollars wisely, so time and money aren’t wasted investigating, prosecuting, incarcerating – and then compensating – innocent people.

Faulty witness testimony was a factor in 33 of the Texas 39 cases since 1994 in which convicted defendants later were cleared through DNA testing (and three-quarters of such cases nationwide), according to the Innocence Project.

Since 2001, Texas has paid almost $9 million to 46 people who were found to have been wrongly convicted, the comptroller’s office said.

After surveying Texas law enforcement agencies last year, the Justice Project concluded that only 12 percent had written lineup policies in line with “best practices” for conducting eyewitness identifications.

(The group queried 1,034 agencies, and 750 responded, including the Tarrant County Sheriff’s Department, Arlington Police Department and several smaller area agencies.)

Among North Texas agencies responding, the Lewisville Police Department alone had written policies on four key procedures for both photo and live lineups, the Justice Project reported; the Richardson PD’s policies covered only photo lineups.

The most commonly recommended improvements are to caution witnesses that the offender might not be in the lineup and that it’s not mandatory to pick one of those in the group; to have all those in the lineup look as much as possible like the actual suspect; to record or document the lineup proceedings; and to have the procedure conducted by someone who doesn’t know the suspect’s identity.

The point is to avoid sending overt or subtle signals to the witness about whom to pick, or to cause a witness with doubts to suppress them, not because memory has improved but because an imprecise recollection has been reinforced through the power of suggestion.

State Rep. Pete Gallego, D-Alpine, and Sen. Rodney Ellis, D-Houston, have put those four safeguards into companion bills, HB 3583 and SB 117, that the Legislature should approve this session.

The bills would require law enforcement agencies to adopt detailed, written policies in line with model standards developed by the Texas Commission on Law Enforcement Officer Standards and Education.

This isn’t just an academic exercise or bleeding-heart legislation.

It’s essential reform designed to help get convictions right the first time.