True Witness: Cops, Courts, Science, and the Battle against Misidentification
240
True Witness: Cops, Courts, Science, and the Battle against Misidentification
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Overview
Honest but mistaken eyewitnesses are the leading cause of wrongful convictions in the United States. As the innocent go to prison their lives are shattered; as the criminal goes free, the public remains vulnerable. With a vivid cast of brilliant scientists, street-wise cops, and former prosecutors--all haunted by the legacy of wrongful convictions, some directly involved with one--Doyle sheds light on the intersection of personal ambition, legal and political principles, and scientific inquiry. He highlights real possibilities for improved identification, their challenges to the legal tradition, and persuasively argues that the promises of improved justice must be realized before another wrongful conviction lets the guilty go free. This is an important look at a pressing issue in the news with every exoneration.
Product Details
| ISBN-13: | 9781466888265 |
|---|---|
| Publisher: | St. Martin's Publishing Group |
| Publication date: | 12/23/2014 |
| Sold by: | Macmillan |
| Format: | eBook |
| Pages: | 240 |
| File size: | 383 KB |
About the Author
James M. Doyle is a veteran litigator, the leading legal authority on eyewitness testimony and the coauthor, with Elizabeth Loftus, of Eyewitness Testimony: Civil and Criminal, "The Bible" for lawyers. He lives in Brookline, Massachusetts.
Read an Excerpt
True Witness
Cops, Courts, Science, and the Battle Against Misidentification
By James M. Doyle
Palgrave Macmillan
Copyright © 2005 James M. DoyleAll rights reserved.
ISBN: 978-1-4668-8826-5
CHAPTER 1
AS SURE AS I CAN BE
Early in June 2000, Gary Graham sweltered on death row, awaiting execution for a murder that had been committed when Graham was 17. Graham had been on death row for more than half his life, but now the date for his execution was only days away. Graham claimed that he was innocent. The only man who could save Graham, Texas Governor George W. Bush, was campaigning for president, and that made Graham's fate a national issue. Partisans from both sides of the capital punishment debate came running. Television satellite trucks clogged the roadways around the prison in Huntsville, bringing with them their traditional accompaniments: candlelight vigils and hymns of death penalty opponents dueling with the Confederate flags and sardonic T-shirts of execution fans. With life and death in the balance and a closely contested presidential campaign fascinating the country, the Graham case created the kind of classic electronic feeding frenzy which might attract, say, Jesse Jackson and Bianca Jagger. It did: Both stepped before the microphones before the drama was complete.
Among those swept up by the media whirlwind were two women who hadn't asked for attention. Each, through no choice of her own, had been an eyewitness to a crime.
The first of these eyewitnesses was a dignified, mature African American woman named Bernadine Skillern. Skillern was anxious for the return of her privacy, but she calmly faced the media and told her story, just as she had at Graham's trial. She was waiting in the parking lot for her daughter to return from the market, she explained, and she watched the murder of Bobby Lambert through her car window at a distance of only 30 feet. She had identified Gary Graham, a precocious hoodlum with a pile of robberies to his credit, as the shooter. She understood that a life was at stake, and she took no pleasure in her role, but she had seen it with her own eyes. She was certain that she had chosen the right man.
The second eyewitness was Jennifer Thompson, a North Carolina homemaker and mother of triplets. She was worried that she had interrupted the triplets' home-schooling program to come to Texas. Inexperienced, unprepared, with her knees shaking, she was shoved in front of a bank of cameras from around the world, and she told her story, too. She was there to bring to the Graham controversy the lessons of her own experience, an experience in which Gary Graham had played no role. Thompson was in Texas to tell the story of a brutal rape she had suffered nearly 15 years earlier, and hundreds of miles from Texas.
In July 1984, Jennifer Thompson, then a 22-year-old student with a 4.0 average at Elom College in North Carolina, was raped in her apartment by a light-skinned African American man. Two hours later and half a mile away, the same man raped a second woman. Even the North Carolina Appeals Court's austere summary of these attacks conveys a sense of their brutality:
... the first victim was awakened by an intruder in her bedroom. The intruder jumped on her, put his hand over her mouth and held a knife to her throat. The intruder pulled the first victim's underwear off, held her legs down and performed ... sex on her.... The intruder stayed in the first victim's apartment for about 30 minutes. She was able to escape by running out the back door and running to a nearby apartment....
The second victim ... looked up and saw a man in her house. When she sat up, the man fondled her breasts. The man went out the back door and around the house. The second victim went over to close a window, but the man reached through the window and pulled down the top of the garment she was wearing. She tried to use the phone, but it went dead. The man crashed through the front door and grabbed the second victim. The man pushed her down the hall to a bedroom, pulled off her clothes, threw her on the bed and sucked on her breasts. He crawled on top of her, putting his penis in her vagina. The man then left through the front door, after having been in the second victim's house for 20 to 30 minutes.
Jennifer Thompson, the first victim in the court's narrative, is blonde and tiny, five feet tall and 100 pounds. She speaks quietly, and she ends her sentences on the rising, interrogative lilt characteristic of girls raised in the South. Watching her describe her ordeal for the PBS series Frontline, it is easy to see the traces of her upbringing as the adored daughter of suburban Carolina business executives.
But it is easy to see something else in Jennifer's interview, too: the iron resolve with which she survived the attack and pursued her attacker and the unflinching honesty with which she is determined to tell the story of the assault and its aftermath. No one will confuse Jennifer with the wilting southern belle of legend. During the rape, her mind was racing:
At that point, I realized that I was going to be raped and I didn't know if this was going to be the end, if he was going to kill me, if he was going to hurt me and I decided that what I needed to do was outsmart him. Throughout the evening, I would turn on lights, even if it was just for a second, and he would tell me, "Turn that light off." And at one point, he bent down and turned on my stereo and a blue light came off of the stereo and it shone right up to his face and ... and I was able to look at that. When I went into the bathroom, I shut the light on and he immediately told me to shut it off, but it was just long enough for me to think, "Okay, his nose looks this way" or "His shirt is navy blue, not black," little, brief pieces of light that I could piece together as much as I could piece together.
Jennifer escaped to a neighbor's house, and was taken to a local hospital emergency room where a rape kit was prepared. There, she was interviewed for the first time by Burlington police captain Mike Gaudlin. Jennifer's empathy for the second victim augmented her determination.
Mike Gauldin came in and I heard a woman crying a few stalls down from me and I remember looking at him and saying, "Did she get raped also?" and he said, "Yes, and we think it was the same person." And that was a horrible feeling, that he had hurt two women on one night. And I can remember feeling so sorry for her because I knew how much pain I was feeling and I could only assume that she was feeling the same amount.
The qualities that strike a viewer watching Jennifer's interview struck Detective Mike Gauldin during their initial encounter: "She was so determined during the course of the sexual assault to look at her assailant well, to study him well enough so that, if given an opportunity later, she would be able to identify her assailant ... I had great confidence in her ability to identify her assailant," Gauldin remembered. "A lot of victims are so traumatized, so overcome with fear during the course of the sexual assault itself, that it's unusual to find somebody that's capable of having that presence of mind."
Gauldin asked Jennifer to help a police artist prepare a composite drawing of the rapist. That drawing was widely circulated, and it generated an anonymous tip. An informant provided Gauldin with the name of a man with a criminal record, a man who worked at Somer's Seafood restaurant in the neighborhood of Jennifer's apartment—a black man with a habit of touching white waitresses and teasing them about sex. The caller said the man owned a blue shirt similar to the shirt Jennifer had seen on the night of the rape. Gauldin placed that man's photograph in an array of six individual mugshots of black men and asked Jennifer whether she recognized anyone. The composition of the array was fair—no one stood out unduly. Gauldin played it straight: He made no effort to prompt Jennifer, or tip her off to his suspect.
Jennifer remembers her photo identification this way:
It didn't take me very long. It took me minutes to come to my conclusion. And then I chose the photo of Ronald Cotton. After I picked it out, they looked at me and they said, "We thought this might be the one," because he had a prior conviction of the same ... same type of circumstances sort of.
Armed with Jennifer's identification, Mike Gauldin obtained a search warrant and set out to arrest Ronald Cotton. Cotton wasn't at home, but Gauldin did find two pieces of evidence in Cotton's room: a red flashlight like one described by the second rape victim, and a shoe with a foam insert consistent with foam found on the floor at Jennifer's apartment. When Cotton heard about Gauldin's search, he turned himself in at the police station, "to clear things up." Cotton gave Gauldin an alibi, but his alibi did not check out. Gauldin arranged to have Cotton stand in a "live" lineup.
Jennifer methodically examined the line of six black men arrayed across the front of a room in the police headquarters. "They had to do the steps to the right, to the left, and then turn around," she recalled. "And then they were instructed to do a voice presentation to me. They had to say some of the lines that the rapist had said to me that night so I could hear the voice, because the voice was a very distinct voice."
Jennifer narrowed her choices to the man wearing number "4" and Ronald Cotton, who was wearing number "5". She had the police put the lineup members through their routine again. Then she was sure: "It's number 5," she said. Later, Gaudlin explained what had happened: "That's the same guy. I mean, that's the one you picked out in the photo."
"For me," Jennifer remembered, "that was a huge amount of relief, not that I had picked the photo, but that I was sure when I looked at the photo that [it] was him and when I looked at the physical line-up I was sure it was him." She was still sure when she testified in court and identified Ronald Cotton.
She was just as sure when she faced Cotton again, in a second trial ordered by the North Carolina Supreme Court. There was a new challenge this time. Cotton's lawyers had pursued inmate rumors that the Burlington rapes actually had been committed by a convict named Bobby Poole. At Cotton's second trial Poole was brought into court and shown to Jennifer. Jennifer didn't flinch then either. "I thought," she told Frontline, "'Oh, this is just a game. This is a game they're playing.'" It wasn't Poole, Jennifer told the jurors, "I have never seen him in my life." She told them it was Cotton. At the second trial, the other Burlington victim testified for the first time, and she also positively identified Cotton. Cotton was convicted again, and Jennifer was elated. "It was one of the happiest days of my life," she recalled. Now she knew for certain that Cotton was never going to get out. She had forced herself to go through two trials; she had picked the right man; she had her justice. "I was as sure as I can be," she remembers.
But Jennifer Thompson was wrong.
The second Burlington victim was wrong. Mike Gauldin and the Burlington police, despite their conscientious, by-the-book investigation, were wrong. The 24 jurors who in 2 separate trials had convicted Ronald Cotton were wrong.
Fourteen years after that first night of terror—fourteen years that Ronald Cotton spent in the state penitentiary—DNA evidence proved that Ronald Cotton was innocent.
The DNA also proved that Bobby Poole was guilty: guilty of raping Jennifer, guilty of raping the second victim. Jennifer had been mistaken about that, too. And, to ratchet the horror up further, Bobby Poole was guilty of other rapes—rapes committed while Ronald Cotton was incarcerated for the crimes Poole had committed, rapes committed during the liberty that Poole enjoyed thanks to law enforcement's reliance on Jennifer's mistake.
There was nothing freakish about the Cotton/Thompson case. That is the frightening thing about it. Later in this book we will see other cases like it. We will see, to take just one example, that the DNA technology that proved that two eyewitnesses wrongly sent Ronald Cotton to prison for life plus 54 years also proved that five eyewitnesses wrongly sent Maryland ex-marine Kirk Bloodsworth to death row.
In fact, of the 62 wrongful convictions revealed in the first wave of DNA exonerations, 52 (83 percent) relied to some extent on eyewitness identification evidence—a total of 77 sincere, mistaken witnesses. In eight of these cases an innocent man was sentenced to death. In every case the real criminal was allowed to go free. In most of the cases, the real criminal is still free.
What the Ronald Cotton case, the Kirk Bloodsworth case, and all of the other mistaken eyewitness exoneration cases have in common is that—except for the actual criminal, of course—they are stories without villains. The mistaken victims are not driven by greed, racism, or malice; they are simply mistaken. The police were not trying to "frame" anyone; they were trusting the evidence they had: evidence from a sincere, unbiased witness. A mounting body of evidence shows that the roots of the mistakes lie in the normal operation of human memory.
The implications are unnerving. Each year an estimated 75,000 American prosecutions turn on eyewitness identification evidence. Eyewitness evidence is frequently right, and it is often the only evidence available, but DNA proves every day that eyewitness evidence can be tragically wrong. And in most cases—armed robberies, drive-by shootings, armed assaults—there will be no biological material such as the criminal's blood or semen left on the scene. There will be no DNA safety net to catch the mistakes.
The DNA exoneration cases were the signal for a new battle in an old war. For almost 100 years, research psychologists have been studying the process of eyewitness identification, and struggling to force the legal system to pay attention to their results. The researchers believe that they know how many eyewitness mistakes can occur, and they have tried to tell the courts how to catch the mistakes. At both the Ronald Cotton and Kirk Bloodsworth trials, for example, the defense offered—and the judges rejected—expert psychological testimony intended to warn jurors about frailties in the eyewitness identification process. The researchers also believe that they know methods by which many, even most, eyewitness errors can be prevented before they happen—that information, too, has been reflexively dismissed by the legal system.
Perhaps that was to be expected. "The life of the law," Justice Holmes famously noted, "has not been logic: it has been experience." The testimony of eyewitnesses is our oldest form of proof. It predates not only DNA, but also fingerprints, blood-typing, ballistics, and forensic scientific evidence of every kind. Courts and the legal system won't tamper with identification procedures until they have concrete, experience-based proof that they were unreliable, and some confidence that replacement procedures will be better.
Still, if it is experience that the law requires, then DNA evidence has now provided it. That, anyway, is the researchers' argument. If nothing else, the DNA cases have certainly provided a fresh occasion for calculating the cost of doing nothing.
Wrongful convictions receive front-page treatment because we respond to their primal drama, to the realization "That could have been me!" Anyone, or anyone's son or daughter, might be wrongfully accused by a sincere eyewitness and imprisoned like Ronald Cotton or Kirk Bloodsworth were. Anyone might, like Jennifer Thompson, be forced to live with mistakenly depriving a man of 14 years of his life. Anyone, like the jurors in Kirk Bloodsworth's case, might send a man to death row, only to learn later (perhaps even after an execution) that their verdict was mistaken. Anyone might be victimized by a Bobby Poole, who was allowed to roam the streets because an honest but mistaken eyewitness led investigators down the wrong trail. Any honest, sincere, and correct eyewitness, victimized by a Bobby Poole, may be disbelieved by some future jury if the drumbeat of DNA exonerations in faulty eyewitness cases continues unabated, and cynical jurors decide to throw the good identifications out with the bad.
(Continues...)
Excerpted from True Witness by James M. Doyle. Copyright © 2005 James M. Doyle. Excerpted by permission of Palgrave Macmillan.
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Table of Contents
Preface * I Was as Sure as I Could Be * Only the Lawyer Is Obdurate: Professor Munsterberg Battles Dean Wigmore * The Lawyers' Art: Bad Verdicts from Good Witnesses * Nobody Likes a Smart Ass: Bob Buckout Joins the Battle * The Book on the Street: The Cops, the Courts, and the Eyewitnesses * We Took Loftus Seriously: Elizabeth Loftus and the Science of Memory * Thinking about Seeing: The Accelerating Study of Eyewitnesses * When Justice Is Done in the Courts: Three Prosecutors Meet the Psychologists * DNA to the Rescue (of Some) * Break Out Shot: Gary Wells and the System * A Technical Working Group: The Police Craft a New Book * A Road Ahead: The Continuing Study of Wrongful Convictions * An Endgame: Looking Back on Gary Graham * Notes * Current Events: A Short Bibliographical Note * Acknowledgments * Index