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A Bad Photo Array and Concealed Evidence Calls Conviction into Question

This is powerful testimony:

"It was burned into my mind, my eyes ... what he looked like," the victim in the case, the Rev. Herbert Harrison Sr., testified at the trial. "I made sure that I knew who was trying to take my life."

Problem is, confidence in the accuracy of an identification doesn't correlate with actual accuracy. Harrison picked Aquil Wiggins from an array of six photographs. The array was tainted by the inclusion of pictures that didn't fit Harrison's description of the assailant -- an error that would have focused Harrison's attention on the pictures that more closely resembled the description. [more ...]

[W]itnesses described the attacker as a light-to-medium-skinned black man in his 20s with some facial hair. ... The pictures — still on file at Hampton Circuit Court — included two dark-skinned black males, two men with medium-to-dark complexions and two light-skinned black males.

The Hampton police violated their own policy:

"In conducting photo lineups, the photos must depict persons displaying similar physical characteristics as the suspect," according to the Hampton Police Division's policy in place in 1997 and now. That way, the theory goes, an innocent person won't be picked out simply because he's the only one who halfway resembles the true criminal.

The detective responsible for the error said he couldn't find better pictures so he used what he had. Close enough for government work, as the saying goes.

Two witnesses who didn't see the array disagreed whether Wiggins committed the crime. One thought he was the guy, "while the other said that he wasn't and that Wiggins' 'features are way off.'"

Powerful testimony leads to convictions, even when the testimony is suspect. Wiggins was convicted and sentenced to prison for 16 years. His case is in the news today because the conviction (one would hope) is likely to be reopened.

Hampton Commonwealth's Attorney Linda D. Curtis recently learned — in reviewing the case before meeting with the Daily Press — that a prosecutor failed to tell Wiggins' defense attorney the sole fingerprint found on the car didn't match either Wiggins or the victim.

Remember the detective who assembled the faulty photo array? He testified at trial

that "no usable fingerprints were found on (the victim's) car." The prosecutor, James E. Schliessmann, didn't correct him.

Perhaps by "usable" he meant "prints we could use to convict the guy we arrested."

Wiggins' case is another illustration of the perils of eyewitness identification.

Of 200 people whose convictions have been overturned on DNA evidence since 1989, the group says, 75 percent were based in part on bad eyewitness testimony. In September, another Hampton man — Teddy Thompson — was released after six years when the victim said he misidentified him.

More on the problem of eyewitness identification here and here, although the Innocence Cases archive is replete with stories of mistaken convictions caused by bad witness ID's.

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  • Display: Sort:
    I'm a fairly good sketch artist... (none / 0) (#1)
    by Salo on Mon Jun 16, 2008 at 04:43:04 PM EST
    ...and I can draw a likeness from memory, or from a brief encounter.  I can even do cartoons from descriptions.

    But it's a massively unreliable method for people who are not trained to translate
    3D reality (4D if you like.) into a 2D picture.

    I'm not surprised the allow dissimilar facial types into line ups. They have a podcution quota to meat.


    correction: not surprised "the cops" (none / 0) (#2)
    by Salo on Mon Jun 16, 2008 at 04:44:23 PM EST
    ...because most people who are not visual will be able to distinguish between similar loking people.

    Parent
    4D? (none / 0) (#7)
    by duncan on Tue Jun 17, 2008 at 09:57:59 PM EST
    OK, you hooked me. What is 4th D here? Can you draw someone's spleen just from looking at their nose or something?

    Parent
    Their policy is bad, too (none / 0) (#3)
    by txpublicdefender on Mon Jun 16, 2008 at 07:54:52 PM EST
    Ironically, their policy of requiring that others in the array have similar characteristics to the actual suspect in the array is a bad one, too.  The best procedure is to have others in the array have similar characteristics to the description of the suspect given by the witness.

    These things simply will not change until the public consciousness about eyewitness ID changes.  There are so many things about eyewitness ID that are counterintuitive.  Witnesses who say that they took care to focus specifically on the characteristics of the person so they could ID them later actually have a higher rate of error than those who did not.  And yet, a jury is much more likely to believe a witness who says they paid such close attention.

    obviously a wrongful conviction (none / 0) (#4)
    by cpinva on Tue Jun 17, 2008 at 12:54:21 AM EST
    bothers me, as it should anyone with a sense of justice. what bothers me even more, is the prospect of the actual perpetrator still loose on the streets, free to commit more crimes, because of shoddy work by both the police and prosecutors.

    i'd be interested to know if there are any kind of viable statistics showing the number of additional, unnecessary victims, resulting from this?

    i wonder how the public would react, upon finding out that poor police work, and a prosecutorial focus on convictions, has actually increased the number of crime victims, not reduced it?

    On the other hand ... (none / 0) (#5)
    by bogie wheel on Tue Jun 17, 2008 at 07:26:16 PM EST
    ... sometimes they really are guilty.

    When you have a gun (that would be an actual Glock, not a comb-pretending-to-be-a-Glock) shoved against you and you are threatened to be shot on the spot, sometimes out of that kind of experience you actually do remember almost every detail.

    I'm not a fairly good sketch artist but I am one of those "visual" people.  I gave the police a very detailed description of the man who robbed me at gunpoint.  I described his height, approximate weight and age, hair, and four specific articles of clothing -- ballcap, t-shirt, pants, and shoes.  I  gave them specific details about features on his face (eyes, nose, facial hair).  It helped (me, at least) that just before the actual robbery, I had gotten a steady look at the guy for 15-20 seconds.

    A couple weeks after the incident, I was shown a photo array of eight, and within seconds (as in, almost immediately) I picked out the person I believed to be the gunman. All eight subjects in the pictures were within the age range of the description I have given police, and had the same hairstyle and facial hair characteristics as the man I had described; no piercings or tattoos on anyone in the photos, and no piercings or tattoos on the guy in my description.

    Not long after I did the i.d. from the photo array, the police got a hold of a security camera shot of a guy swiping my stolen credit card at a gas station fewer than 6 hours after I had been robbed (and less than a half-mile from the site of the robbery). The clothing worn by the man on the security footage was exactly what I had initially described to the police, with exact colors on all the correct items (one article of clothing was dark blue, two more were black, the pants were baggy, dirty blue jeans cut off at mid-shin).  The insignia on the t-shirt of the guy in the footage was also an exact match to the description I'd given police (a hollow, oblong white diamond that almost went the width of the front of the tee).

    Is eyewitness i.d. unreliable?  In the aggregate, yes.  But each case really comes down to the visual acuity and memory of the specific eyewitness.  In my case, I observed a lot and forgot nothing.  (Like I said, it helped that I got a good, long look at the guy beforehand, and that I have one of those memories.  If either of those factors not been the case, it could have been quite a different story.)

    BTW, the defendant in my case was out on bail for more than two years before the case went to trial. Besides my testimony, we had him on security camera (visual clarity: exellent and close) swiping my credit card, and driving a car that was id'd as belonging to his mother.  The guy had no alibi. To this day, he swears it was his "brother" who did it.  (No record of his having a brother, wouldnt ya know, let alone one who looks enough like him to be his twin.) In other words, as legal procedure goes, this guy was as guilty as you can get.  And yet, even after this man had used a firearm to assault and rob an innocent, taxpaying citizen, and despite the fact that he had multiple drug possession counts on his prior record (junkie + firearm = public menace), the legal system allowed this guy to walk around on the streets for 28 months before bringing him to trial.  To paraphrase cpinva, "Anyone with a sense of justice [should be bothered by] the prospect of the actual perpetrator still loose on the streets, free to commit more crimes, because of shoddy work" by our so-called justice system.

    Are innocent people behind bars a stinking offense to the notion of justice?  Absolutely.  So are violent, predatory criminals who are turned loose on the general population because the legal system is incapable of dealing with them (or anyone else) speedily (or incarcerating the predators long enough).  Which is a bigger problem in this country?

     

    Memory is unreliable (none / 0) (#6)
    by duncan on Tue Jun 17, 2008 at 09:54:09 PM EST
    bogie: I don't doubt that many eyewitness accounts of crimes are quite reliable. No one doubts that. The problem is that many aren't reliable, and many people (including jurors and judges) are not aware that eyewitness accounts are often completely wrong. There's no easy way to determine which accounts are reliable and which are not.

    I have an outrageously good memory. Everyone who knows me well eventually figures this out and points it out to me (they often forget that they have and do so more than once ;) ). You don't know me, so you'll have to take my word for it (or not, if you prefer). I actually think that I am likely a bit unusual neurologically.

    At any rate, I can recite trivial conversations I had 10 years ago word for word if they made an impression on me for some reason. People are often surprised when I see them after some years and ask after relations they mentioned in passing- it's too bad I have the wrong temperament for politics as I imagine that would be a useful skill for a meet-and-greeter.

    Because I do have a very good memory, I notice the degree to which people begin to distort events very shortly after the fact. When I was a kid I didn't understand this, and I just thought that most people were terrible liars.

    Beyond that, I have also become aware that even though my memory is much better than most people's, it is also unreliable. My subjective take is that I have a pretty accurate record of every waking moment since I was a small child stored in my head. The reality is that I don't.

    On a couple of occasions I have been approached by people that I did not recognize who seemed to have a good idea of who I was. It turns out that I had met them and made an impression on them, but the reverse was not true- they had made no impression on me, and I had entirely forgotten them.

    I read a memoir by the novelist D M Thomas about 15 years ago (if my memory is accurate, and it might not be so). It is titled, aptly, "Memories and Hallucinations". In it he describes an event that was "burned" into his memory- during the second world war a bomb fell in his front yard, and he describes the experience luxuriously, in terms of every sense except touch.

    It turns out that he was away when the bomb fell. His memory of the event is vivid, but it is also completely fabricated from accounts by his family and neighbors. I would recommend his book to all judges and jurors- memory is a fickle thing, and it is not possible to accurately determine the accuracy of your memories through subjective means.