October 22, 2012 By Wayne Hanson
Jennifer Thompson was raped, she explains in a video on the Innocence Project website, and while her assault was going on, she set about memorizing her assailant's face, eyes, voice, etc. Later, in a series of photos, and then in a suspect lineup, she identified Ronald Cotton as the perpetrator with a great deal of certainty. Only later, after Cotton had served 11 years in prison, did DNA evidence prove he was not guilty. Instead, DNA evidence proved that another man, Bobby Poole, was Thompson's assailant.
When Thompson learned that Cotton had been exonerated by DNA evidence, it shook her certainty. "I can remember thinking to myself," she says in the film, "… if it wasn't Ronald Cotton, then maybe everything I thought was true, is not true."
"Every wrongful conviction is an absolute tragedy," said Stephen Saloom, policy director of The Innocence Project, "but identifying a wrongful conviction with the level of certainty that DNA evidence can provide is also a huge opportunity to understand what tends to mislead police, prosecutors, judges and juries into thinking that an innocent person was guilty beyond a reasonable doubt."
Because of Thompson's story and others like it, eyewitness identification and procedures surrounding it has come under increased scrutiny. Cotton and Thompson, for example, have since teamed up to help reform eyewitness identification procedures. That's important since, according to Saloom, 75 percent of those convicted -- and who were later exonerated by DNA evidence -- were misidentified as the perpetrator by an eyewitness. And those faulty identifications may have been influenced by flawed procedures.
Suspect lineups are more accurate, for example, if the officer who administers the lineup does not know who the suspect is, and the witness is informed of that fact. That helps prevent the witness from asking the officer to confirm or negate the choice, and prevents the officer from making suggestions -- or statements the witness might interpret as suggestions. The video also presents five other procedures that can adversely influence a witness's objectivity. "There is 30 years of peer-reviewed research," said Saloom, "demonstrating that with small changes to eyewitness identification procedures, we can greatly enhance the accuracy of eyewitness evidence."
While erroneous eyewitness identifications are the basis of the bulk of wrongful convictions, 25 percent of those later proved innocent have falsely pled guilty. Take Damon Thibodeaux, 38, of New Orleans, for example. He was released last month, the 300th convicted felon proved innocent by DNA evidence.
Thibodeaux, according to The Times-Picayune, spent 15 years on death row after pleading guilty to the murder of a 14-year-old girl. He tried to recant following his guilty plea, but it was too late.
But why would someone plead guilty to a crime they didn't commit? Aside from those who may be insane or seeking publicity, some may plead guilty as part of a plea bargain. Others may confess just to stop the interrogation. Here the story gets a bit more complex. In Thibodeaux's case, for example, his nine-hour interrogation was not recorded.
"Through these DNA exonerations," said Saloom, "we've been able to recognize that this happens -- that the phenomenon of false confessions is far more prevalent than we ever realized. Fortunately there's one simple and readily available means of enabling ourselves to understand that the confession might be false. And that is by recording the interrogation in its entirety."
Saloom says that while taping interrogations were pushed at first by the defense bar, more police officers have embraced it, as it shows what happened, and prevents later attacks on the officer's integrity. The entirety of the interrogation is there for anyone to observe.
Justice is flawed. Trials are not perfect, and -- except for those argued by Perry Mason -- they never were. A judge or jury must make the best decision they can, given the available evidence, and for the most part, they do so. But when a suspect confesses, or when a victim memorizes her attacker's face and voice, then identifies him -- that would seem to be the strongest proof of all. But DNA evidence, if available, cuts through the usual procedures -- the adversarial system of defense and prosecution, of evidence presented, juror opinion, and all the other trappings of a trial designed to be fair, but subject nevertheless to the shortcomings of human beings.
While DNA evidence has proven at least 300 miscarriages of justice, the benefits of DNA evidence go far beyond those individuals. An estimated 2.3 million prisoners are locked up in state and federal prisons as of 2008, and most of those, it must be presumed, were proven guilty beyond a reasonable doubt. But DNA evidence has brought procedures -- long thought unimpeachable -- under scrutiny. It can be assumed that some of the same procedural shortcomings of cases in which the convicted were later exonerated by DNA evidence, also apply in other cases in which there was no DNA evidence. And therein lies the opportunity for improving procedures and thus justice itself.
"DNA is still new," said Saloom, "and the lessons are being applied to all cases not just that small fraction where DNA is available. And when those lessons are applied, we have a better justice system … and it really builds public confidence in the criminal justice system."
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