The U.S. Supreme Court is getting ready to hear a case out of New Hampshire that deals with a subtle but important point in the witness process.
Lawyers for a hapless burglar say the case asks whether the due process -- or fair trial and procedure -- guarantee in the 14th Amendment bans the use of all "unreliable eyewitness identification" arising from "impermissibly suggestive circumstances and which are very substantially likely to lead to misidentification, or only to those identifications which are also the product of 'improper state action?'" -- meaning police manipulation.
But in a larger sense, the whole idea of eyewitness evidence is under attack in the case, scheduled to be heard Nov. 2.
"DNA analysis in particular has demonstrated that misidentifications by eyewitnesses continue to lead to a high incidence of miscarriages of justice, as previously recognized" by Supreme Court precedent, the New Hampshire defendant's merit brief to the U.S. Supreme Court said.
"In a study of 250 cases in which defendants were exonerated after conviction, [University of Virginia law] Professor Brandon L. Garrett stated that the 'role of mistaken eyewitness identifications in these wrongful convictions is now well known. Eyewitnesses misidentified 76 percent of the exonerees [those proven innocent through DNA] (190 of 250 cases).' Furthermore, Professor Garrett's original study of 200 cases indicated that eyewitness misidentification evidence was the leading contributing factor to wrongful convictions and was four times more likely to contribute to a wrongful conviction than a false confession."
The study is included in Garrett's recent book, "Convicting the Innocent." The blurb promoting the book on the Harvard University Press Web site says, "DNA exonerations have shattered confidence in the criminal justice system by exposing how often we have convicted the innocent and let the guilty walk free. ...
"Very few crimes committed in the United States involve biological evidence that can be tested using DNA," the blurb argued. "How many unjust convictions are there that we will never discover? 'Convicting the Innocent' makes a powerful case for systemic reforms to improve the accuracy of all criminal cases."
The book in part deals with the case of Earl Washington who was "defended for all of 40 minutes by a lawyer who had never tried a death penalty case [and was] found guilty of rape and murder in the state of Virginia and sentenced to death." Washington spent nine years on death row before relatively unsophisticated "DNA testing cast doubt on his conviction and saved his life. However, he spent another eight years in prison before more sophisticated DNA technology proved his innocence and convicted the guilty man."
The defendant's merit brief also cited a U.S. Department of Justice study of 28 felony convictions overturned by DNA evidence that found "85 percent of the convictions resulted primarily from erroneous eyewitness identifications. Attorney General Janet Reno explained: 'Recent cases in which DNA evidence has been used to exonerate individuals convicted primarily on the basis of eyewitness testimony have shown us that eyewitness evidence is not infallible. Even the most honest and objective people can make mistakes in recalling and interpreting a witnessed event; it is the nature of human memory.'"
The brief also cites the 2009 Innocence Project study of more than 200 cases "in which convicted defendants were exonerated by DNA evidence, mistaken eyewitness identifications accounted in whole or in part for 75 percent of the wrongful convictions. Specifically, the Innocence Project found that [more than] 175 people have been wrongfully convicted based, in part, on eyewitness misidentification and have been later proven innocent through DNA testing."
In a friend of the court brief supporting the New Hampshire defendant, the American Psychological Association said: "That the various factors that can cause eyewitness error have actually resulted in false identifications is not simply a theoretical possibility. Indeed, more than four decades ago this [Supreme] Court observed that 'the annals of criminal law are rife with instances of mistaken identification.'
"Studies released as early as 1932 and as recently as 2008 confirm that observation, documenting wrongful convictions that rest largely or wholly on eyewitness identifications."
The APA brief added: "Although DNA testing for innocence claims has been available only since the early 1990s -- and only a small fraction of cases are suitable for testing because DNA was not collected, has deteriorated or was lost or destroyed -- proven post-conviction DNA exonerations in the United States exceed 270."
The friend of the court brief said examples aren't limited to the United States.
"For example, one analysis of 1,561 identification attempts by witnesses viewing lineups in England found that 39 percent correctly identified the suspect, 20 percent incorrectly identified a 'filler' [someone selected at random to fill out the lineup], and 41 percent made no identification -- meaning that at least 33.9 percent of the identifications were wrong (20 percent divided by 59 percent, with the denominator being those who made some identification, correct or incorrect)."
The U.S. Supreme Court, of course, hasn't been deaf to the DNA debate. The justices blocked a Texas execution 45 minutes before it was set to be carried out, then ruled 6-3 in March earlier this year that prisoners at least have the right to use federal civil rights law to force DNA testing.
The Death Penalty Information Center, though not part of the New Hampshire case, lists the names of 138 men who have been released from death row since 1973 for various reasons -- charges dismissed, eventual acquittal and pardons. Seventeen of the releases were substantially driven by DNA testing.
Hey, wait a minute, New Hampshire said in its merit brief. Let's look at the facts.
Following a jury trial in a New Hampshire court, Barion Perry was convicted of one class B felony count of theft by unauthorized taking, "which was subject to an extended term of imprisonment because he had two prior convictions for theft by unauthorized taking and one prior conviction for burglary. ... The court sentenced him to serve three to 10 years in the New Hampshire State Prison."
At an evidence suppression hearing, a judge heard that at 2:53 a.m. on Aug. 15, 2008, "Officer Nicole Clay from the Nashua, N.H., Police Department was sent to the back parking lot ... to investigate 'a report about a black male looking through vehicles and attempting to gain entry into vehicles.'"
She parked her cruiser and walked around the back of the building, where she heard what "sounded like a metal bat hitting the ground," and then saw Perry "carrying two amplifiers and walking toward her from between two vehicles."
Perry told her he had "found" the amplifiers, and had "seen a couple of kids leaving the parking lot."
Both the officer and Perry walked to a nearby street then back to the parking lot. A resident, Alex Clavijo, walked over and said "that his neighbor had told him that someone had broken into his car. He also said that the amplifiers [Perry] had been carrying and a large wooden box with two speakers mounted inside had been taken from his car."
When another officer arrived, Clay left him with Perry while she and Clavijo went inside the building to talk to the neighbor.
Nubia Blandon, who spoke only Spanish, told Clay through Clavijo that she had seen "a tall, black man walk through the parking lot, look into all the cars, circle Clavijo's car, and then open the trunk of Clavijo's car and remove a large box. Blandon also said that the man had been carrying a bat."
Police said Blandon was not told about Perry remaining in the parking lot. But when Clay asked her for a description of the man she had seen, Blandon said, "It was the man that was in the back parking lot standing with the police officer," pointing to the window that overlooked the lot.
"At some point, Blandon's husband, Joffre Ullon, who had called in the initial report about a man trying
to break into cars, returned from getting coffee," the state's brief said. He also identified the man among the cars as the "the man standing outside with the police officer."
A month later, Blandon was unable to pick Perry's picture out of a photo array. Ullon successfully picked out Perry's picture.
Eventually, the New Hampshire Supreme Court refused to throw out the eyewitness evidence.
"The New Hampshire Supreme Court correctly concluded that the due process clause of the 14th Amendment does not require that all identification evidence must be deemed reliable before it is admissible in a criminal trial," the state's brief said. "Instead, as the New Hampshire Supreme Court held, identification evidence needs to be deemed reliable only in cases where the police obtained the challenged evidence as the result of an improper -- that is, unnecessarily suggestive -- procedure."
A friend of the court brief filed by the Obama administration echoes the state brief.
Perry's case may seem like small potatoes -- to everyone except Perry, of course. But the implications in his case are huge.
Georgia executed Troy Davis in September despite pleas to spare him from a variety of heavyweights, ranging from the pope to former President Jimmy Carter. To the end, he insisted he was innocent.
"While his execution alone -- no matter how passionate his supporters -- won't bring the death penalty to an end, there is one area where activists are hoping to use Davis' death as an ongoing and emotional rallying cry for reform: eyewitness identification," Time magazine opined.
"In the 48 hours leading up to Davis' execution, the nation heard that the case against Davis was built entirely on eyewitnesses who said they saw Davis gun down off-duty police officer Mark McPhail [who had tried to rescue a homeless man being pistol-whipped by Davis]. But of the nine witnesses who testified against Davis in his original trial, seven would go on to change their minds and recant. As many outside observers pointed out, they were either lying on the stand, or lying now."
Virtually all reporting on the killing contained that fact -- that the unusually high number of nine witnesses swore at trial they saw Davis kill the young police officer, and that seven later recanted -- without going into the details surrounding those accounts.
Under what circumstances, and under what pressure, did the eyewitnesses originally identify Davis under oath? And under what circumstances, and under what pressure, did they allegedly recant?