Fallibility of Eye-Witness Testimony (Megan Cassidy; The Republic)

Three decades ago, a victim’s imperfect memory sent Larry Youngblood to prison.

DNA evidence would later clear the Tucson man of involvement with a 1983 child abduction and rape, but not before he would languish for a total of nine years behind bars.

Advocates are pointing to this case and a growing number of others to discredit the sanctity of one of the legal system’s most cherished prosecutorial tools: eyewitness testimony.

Last week, the National Academy of Sciences released a report evaluating the scientific research on memory and eyewitnesses, underlining key variables that can lead to flawed identifications.

The report recommends various best-practice procedures, including blind testing, (when the officer performing the lineup is unaware of the suspect), videotaping the procedure, developing standardized witness instructions and asking the witness to rate his or her level of confidence at the time of the lineup.

The Innocence Project, a national litigation and public-policy organization that lobbies for freedom of the wrongfully convicted, has pushed for states to uniformly adopt these techniques, to mixed results.

Ten states so far have enacted the recommendations by law, policy or court action. Arizona is not one of them, but some jurisdictions have voluntarily embraced the reforms.

Innocence Project officials have advocated presenting photos or suspects in sequential order instead of simultaneously. Supporters say research shows the method helps prevent wrongful convictions by reducing the pressure to “pick one.”

The Tucson Police Department was one of four agencies to participate in an Innocence Project and American Judicature Society field study using sequential testing. The agency adopted the method following the study’s report, said Tucson police legal adviser Lisa Judge.

“The impetus for us was doing what we could to rely on the most credible evidence available,” she said. “Certainly you can’t ignore that across the nation, there’s evidence that points to wrongful convictions based on bad IDS.”

Youngblood’s saga began in 1983, when a 10-year-old boy was kidnapped from a Pima County carnival, molested and held for more than an hour. The boy received a rape examination and told investigators his assailant was a Black man with a bad right eye.

But when police presented a photo lineup to the boy nine days later, it was Youngblood, a Black Tucson man with a disfigured left eye, who stood out. Youngblood was arrested four weeks later.

Youngblood’s chief defense in trial was that the boy had been mistaken, but a jury disagreed. He was convicted in 1985 and sentenced to 10½ years in prison. In a crucial misstep, Tucson police failed to properly store DNA evidence collected from the boy at the time, rendering it useless for emerging forensic technology.

Legal battles over Youngblood’s right to DNA would free and reincarcerate the man until more sophisticated DNA testing became available for the evidence. In 2000, Youngblood’s claims of innocence were at last scientifically validated. He was not the assailant.

Instead, the evidence led investigators to Walter Cruise, a Black man who was blind in his right eye, and serving time in a Texas prison for unrelated charges of sex assaults against children. Cruise later pleaded guilty to the Arizona crime.

Carol Wittels, Youngblood’s public defender who fought for his freedom, said the prosecution’s case hinged nearly entirely on the victim’s identification, despite conflicting evidence.

Several people vouched for Youngblood’s alibi — that he was baking lemon meringue pies at the time of the abduction, Wittels said.

The victim had also noted there were tufts of gray in his assailant’s hair, while a hair expert testified that Youngblood’s black locks had never been dyed.

“Larry’s case always haunted me — he was such a sweetie,” she said. “I knew he was innocent.”

Eyewitness misidentifications have contributed to 72 percent of the 318 convictions that were later overturned by DNA evidence, according to the Innocence Project.

The true perpetrators were later identified in 39 percent of those cases, but were free to commit 98 additional violent crimes while the innocent were locked up, the organization says.

Experts say most of the mistaken eyewitnesses aren’t intentionally lying. While no single factor shoulders the blame for the human error, researchers say police practices often fall short on their efforts to ensure accurate eyewitness identification.

“(I)nsufficient training, the absence of standard operating procedures and the continuing presence of actions and statements at the crime scene and elsewhere may intentionally or unintentionally influence eyewitness identifications,” the report states.

Scientists have long understood memory to be malleable by time and outside variables, but advocates say jurors still place too much trust on the brain’s accuracy.

Amshula Jayaram, a state policy advocate for the Innocence Project, explains the recommended reforms as a cost-benefit analysis.

Defenders are getting trained on how to litigate using current sciences, she said, and officers using best practices are also protecting themselves from accusations of wrongdoing during an unreliable process.

“These practices are designed to improve accuracy, but you’ll never have 100 percent accurate eyewitness identifications,” she said. “Memory is fundamentally fallible.”

Maricopa County Attorney Bill Montgomery said today it would be a rare case that rises or falls on the basis of an eyewitness alone without any other evidence.

Montgomery and Innocence Project officials have disagreed on the subject of sequential versus simultaneous eyewitness identification testing.

Montgomery said he has resisted the reform because scientific evidence has not backed up the claim that the sequential method is preferable. He pointed to a recent case in which a Pennsylvania man’s murder charges were dropped after a mistaken sequential identification.

Ivan Henry and Me. The Wrongful Conviction of an Innocent Man

Acclaimed writer Gary Ross has written a wonderful article about Ivan and me: WRONGED!

In it, Gary deftly underscores the indefatigable perseverance of Ivan Henry–four years out of jail (after 27) and still penniless. Bloodied but unbowed.

Could not the defendants, who continue to argue that he is the author of his own misfortune, advance him at least a pittance of money pending the outcome of litigation?

My book, to be published in September 2014, will prove his innocence.

Rape Victims and Post Traumatic Growth

All my life, I’ve been interested in why some people recover from trauma while others remain forever traumatized–stuck inside that one horrible event that forever after defines their life. My father, paralyzed from the waist down from polio in 1954, moved on to greater and better things. A sheetmetal mechanic by day, he applied the electronics courses he’d taken while in rehab to a night job fixing neighbour’s TV sets out of our garage. Such was his passion, and his interest in sharing it with others, my brother recently received the Order of Canada for his ground-breaking work in biomedical engineering.

It was while writing my book about Ivan Henry–convicted of ten sexual assaults in 1983; acquitted in 2010, after 27 years in jail–that my interest in the subject deepened. Though Henry is almost certainly innocent of all ten crimes–the likely perpetrator, Donald James McRae, continued, after Henry’s incarceration, raping countless other women–the courts in 2010 merely pronounced him “not guilty” as opposed to “innocent.”

(In 2005, DNA having conclusively linked McRae to three rapes in the ‘80s, he pleaded guilty to (only) those and received a five-year sentence. In June 2010, he was released at the age of 58.)

In this piece, I consider the impact of rape on the following three groups of victims:

  1. The three women inextricably linked through DNA to McRae;
  2. The “Henry” complainants: (a) non-trial; and (b) trial; and
  3. Jennifer Thompson (now Thompson-Cannino), the woman whose misidentification of her attacker led to the lengthy incarceration of an innocent man, Robert Cotton.

Two questions that arise are

  • what factors bear upon one’s ability to tilt towards “post traumatic growth”; to fall up as opposed to down? How is it that some victims are defeated by trauma, whereas others–for instance, Viktor Frankl, a holocaust survivor–are able not just to overcome but, indeed, to defeat adversity; and
  • doe the alleged perpetrator’s “criminal law” outcome affect the victim’s ability to recover from the crime–e.g., does it matter whether (a) the perpetrator’s factual guilt is conclusively established (McRae); (b) he is, like Henry, merely acquitted, not declared innocent; or (c) his factual innocence is, like Robert Cotton. conclusively proven?

In his excellent book, “The Happiness Advantage” (2010; Random House), Shawn Achor explores this very subject. Achor says that, on every mental map after crisis or adversity, there are three mental paths:

  1. One that leads you toward further negative consequences;
  2. One that keeps circling around where you currently are; and
  3. The “Third Path”—one that leads us to a place where we are even stronger and more capable than before the fall. Instead of falling down, the victim actually “falls up”.

Citing psychologist Richard Tadeschi’s empirical study of “post-traumatic growth”, Achor notes that the results of that extensive research show that trauma such as military combat, refugee displacement, and physical assault can spur growth in many, many individuals.

Of course, not everyone is able to “fall up” after great suffering. What distinguishes the people who find growth versus those who do not? According to Achor, “the people who can most successfully get themselves up off the mat are those who define themselves not by what has happened to them, but by what they can make out of what happened. These are the people who actually use adversity to find the path forward. They speak not just of ‘bouncing back’, but ‘bouncing forward’.”

Is it possible for victims of rapes to move past their anger; even past the mere regaining of their equilibrium? Is it possible for them to emerge stronger, more self-actualized, than before? Secondly, is the criminal law outcome—guilty, not guilty, or innocent—relevant to that question? Where there is a real possibility, or, indeed, certainty, that a victim has misidentified her attacker, what if any role does the State play in helping or hindering her journey along that “third path”?

Beginning with the three McRae victims, in June 2005, Provincial Court Judge W. Kitchen wrote a lengthy sentencing decision after Donald James McRae pled guilty to the only three counts (among dozens of virtually identical sexual assaults, including “Henry’s”) wherein DNA testing confirmed that perpetrator spermatozoa matched his. The three assaults occurred in June/85, January/87 and March/87 respectively—roughly two decades earlier.

After noting “continuing terror and upset” on the part of each of the three victims, Judge Kitchen said, “Without wanting to dishearten the complainants, it really has fairly well destroyed their lives.” How sad, I think, that such should be so.

Turning to the “Henry” victims, is it a coincidence that the only two who agreed to be interviewed testified at Henry’s preliminary hearing, but not—because they were unable to identify their attacker—at his trial?

Though they both suffered for months thereafter—installing bars on the windows of their basement suites; afraid of being alone; experiencing prolonged bouts of depression, insomnia, etc.—each of them said that, within a relatively short period of time, she had moved on with her life. One graduated with a law degree the following year; the other participated, not long after the trial, in a “restorative justice” documentary, filmed in Seattle, USA, wherein several victims of rape and a number of (unrelated) “recovering” rapists spoke frankly—often, rawly—about their experiences.

“That exercise helped very much with the healing process.” she told me. After which she freely volunteered what a tragedy it was that, if Henry really didn’t commit the crimes, he spent twenty-seven years in jail.

Had this woman played an instrumental role in sending an innocent man to jail, would she have been so forgiving? Likely not. Perhaps only because her  conscience was clear was she able to say, “No way was I letting some pervert define my life.” Indeed, at a meeting wherein a number of victims of the “rip-off rapist” created a composite sketch of the attacker, she said, laughing to break the tension, “All I can remember is his pathetically tiny dink.”

At Henry’s sentencing hearing in November 1983, a number of trial complainants testified regarding the “severe psychological damage” he had inflicted on them. Sleeping with lights on ever since; eyeglasses, too. Nightmares. Weight loss, weight gain. Failing grades, lost semesters.… Self-blame, thoughts of suicide. Fear, fear, fear.

The following day, the trial judge ruled in part as follows:

Six of the eight complainants testified in these proceedings about how the attacks affected their lives. It is devastating enough to be assaulted, but it must be equally repulsive for them to endure cross-examination, at trial and on this application, by the very person who committed these deplorable acts. They are to be commended for seeing this matter through to the bitter end….

 

Society must be permanently protected from this man’s predatory behaviour. There are no redeeming features to rule otherwise. I therefore sentence him to detention in a penitentiary for an indeterminate period.

 

In response to letters I wrote to several of the trial complainants, two replied, angrily denouncing me and warning me not to harass or “re-victimize” them or the others. Though I made it clear that I had, as yet, no opinion regarding Henry’s guilt or innocence, they insisted that–acquittals notwithstanding–he was guilty as sin: “He got off on a technicality. Everyone knows that.”

On May 19, 2011, the B.C. Ministry of Public Safety and Solicitor General wrote me as follows:

Re: Victim Court Support Programs

 

Many of the complainants in this matter have advised that they do not want you to contact them or anyone related to them with regard to Ivan Henry or your writing project. This includes any form of contact, by way of example but not limited to mail, phone, email, in person, through another party. In case you are not aware, there is a ban on disclosure of the identity of the complainants.

 

I trust you will respect the wishes of the complainants and we ask that you make no future attempts to contact them.

Whether some others of the “Henry” complainants were willing to speak to me, I have no way of knowing. What I do know, based on the blasts levelled at me, is that, for at least two of them, the mental pain inflicted on them thirty years earlier is still very visceral and close to the surface.

In June 2000, rape victim Jennifer Thompson—her real attacker having just been arrested, years after another man. Ronald Cotton, was found guilty—wrote in a New York Times op-ed piece:

I studied every single detail on the rapist’s face. I looked at his hairline; I looked for scars, for tattoos, for anything that would help me identify him. When and if I survived the attack, I was going to make sure that he was put in prison and he was going to rot…. I knew this was the man. I was completely confident. I was sure….

 

Eyewitnesses can and do make mistakes….

 

Ronald Cotton and I are the same age, so I knew what he had missed during those 11 years. My life had gone on. I had gotten married. I had graduated from college. I worked. I was a parent.

 

Ronald Cotton hadn’t gotten to do any of that.

Many years passed before Thompson worked up the courage to go public; to expose her “crime”—that of mistaken identity—to the world. First, she had to confront the horrific ripple effects of what she had done: condemned an innocent man to jail for life. 4000 days of his precious life and counting. Had it not been for the scientific “magic” of DNA, he’d have rotted inside forever.

How did Jennifer come to forgive herself? Two years after the exoneration, she met Ronald Cotton and he forgave her. “I want you to have a good life,” he said, “we’re both victims of a flawed system.”

As Jennifer wrote in that same article,

Mr. Cotton and I have now crossed the boundaries of both the terrible way we came together and our racial difference (he is black and I am white) and have become friends. Although he is now moving on with his own life, I live with constant anguish that my profound mistake cost him so dearly. I cannot begin to imagine what would have happened had my mistaken identification occurred in a capital case.

Today, Jennifer Thompson-Cannino lives in North Carolina with her family. She speaks frequently about the need for judicial reform, and is a member of the North Carolina Actual Innocence Commission, the advisory committee for Active Voices, the Constitution Project, and Mothers for Justice. She writes and speaks regularly about the deficiencies inherent in eye-witness identification.

At the latest Innocence Network Conference in Charlotte, North Carolina, I asked Jennifer whether her message of forgiveness and redemption extends to the guilty as well as the innocent. “Absolutely,” she said. Her meeting with Cotton raised an important question in her mind: If he could forgive her, could she forgive Bobby Poole, the actual perpetrator? “Forgiveness is not about excusing the crime, it’s about power and letting go”:

I realized Bobby Poole still had a hold on me after all these years, and that the anger that lived in me had completely changed the way I looked at the world, at what was possible.

Shortly after meeting Cotton, she wrote to Poole, requesting, in the interests of restorative justice, a meeting. Poole died of cancer shortly thereafter, never having replied.

Closing Thoughts

What allows some victims to move on, and others to remain stuck in the past—in the grips of the horrible trauma they experienced? Obviously, as Shawn Achor says, positivity comes more naturally to some people than others. So many factors come to bear: family history and personal experiences; personality; social network; physiological make-up; etc.

However, Achor says that “happiness is not just a mood—it’s a work ethic”:

While we each have a happiness baseline that we fluctuate around on a daily basis, with concerted effort, we can raise that baseline permanently so that, even when we are going up and down, we are doing so at a higher level.

 

How sad that any of the trial complainants in the Ivan Henry case remain consumed, three decades later, by anger. What concerns me is whether the State–instead of focusing on paying Henry the compensation he so justly deserves–is enabling/encouraging that very mindset. By propagating the view that Henry is de facto guilty; by using that stance as a shield against his civil claim, the State is fostering a climate totally at odds with the victims’ pursuit of that Third Path.

On a related note, the Conservative government is supporting Bill C-479, a private member’s bill aimed, among other things, at giving victims better access to parole board hearings and requiring parole boards to make a greater effort to allow victims and their families to present statements during hearings or provide written or recorded submissions: http://www.theglobeandmail.com/news/politics/ottawa.

Fair enough that the victim has input at the time of sentencing, but the Conservatives should not be taking steps to enhance the victim’s role post-conviction.

The only two issues relevant to the early release of offenders—the rehabilitation (or otherwise) of the offender, and public safety—reflect, precisely, the two pillars of Corrections Services of Canada’s mandate. In other words, once an offender enters the Corrections system, his/her release plan are to be governed solely by those two considerations.

Victim Services in effect accused me of “re-victimizing” the Henry complainants. Surely, by moving to expand the role of victims at parole hearings even further than it already is, Bill C-479, if passed into law, would do precisely that.