TROY DAVIS: A CALL FOR CRIMINAL PROCEDURE REFORM

Man Sentenced to Die on Basis of Eyewitness Testimony

On September 21, 2011, the United State Supreme Court denied Troy Davis a stay of execution. One hour later, Davis was executed by lethal injection.

The Troy Davis case drew global attention and compelled hundreds of demonstrators to travel to Georgia to assist in the fight for Davis’s exoneration.

The Davis case was far from the typical death penalty case. Death penalty protestors were supported by legal experts, celebrities and elected officials – even death penalty proponents.

The public outcry was due, in large part, to the evidence (or lack thereof) that Davis was convicted on.

Davis was convicted in 1991 of the 1989 shooting death of a Georgia police officer.

At trial, the prosecution failed to present any physical evidence linking Davis to the crime – there was no DNA evidence and the murder weapon was never found. The state’s attorneys relied instead on the testimony of nine witnesses, seven eyewitnesses and two prison snitches.

Following Davis’s conviction, seven of the nine witnesses recanted their testimony, and nine other witnesses implicated another man in the shooting.

Davis steadfastly maintained his innocence and urged the victim’s family to continue their search for the truth.

Many believe Troy Davis to be one of numerous individuals wrongfully convicted as a result of eyewitness misidentification. NAACP Dircector Benjamin Jealous said, “In death, Troy Davis will live on as a reminder of a broken justice system that kills an innocent man while a murderer walks free.”

Eyewitness Identification Unreliable

Eyewitness misidentification is, in fact, the leading cause of wrongful conviction. To date, a total of 250 wrongly accused have been exonerated, using post-conviction DNA testing. Approximately 76% of the 250 wrongful convictions involved eyewitness misidentification, including the following:

• In May 1979, Gary Dotson was convicted of rape and aggravated kidnapping on the basis of eyewitness misidentification. After spending ten years behind bars, the eyewitness recanted and Dotson was exonerated using post-conviction DNA testing.
• In 1983, Ronnie Bullock was convicted of impersonating a police officer and raping two young girls. He was identified by a police officer based on a composite sketch and was then misidentified by both victims in a line-up. He spent more than ten years behind bars, before being exonerated through DNA evidence.
• In 1985, Kirk Bloodsworth was convicted of raping and murdering a nine-year-old girl, after an anonymous witness claimed to have seen Bloodsworth with the child. Bloodsworth spent eight years in jail and was the first innocent man to serve time on death row, before being exonerated by DNA evidence in 1993.
• In 1988, Vincent Moto was walking with his baby in Philadelphia when he was identified by the victim of a rape that had occurred five months earlier. He was convicted solely on the basis of the victim’s identification. More than eight years later, DNA evidence proved Moto’s innocence.

It is expected that many more innocent men still wait behind bars.

DNA testing is generally available only in murder or sexual assault cases, where genetic material has been collected and retained. “There is no question that there are many more mistakes that we will never know about because there is no DNA in those cases,” said Edwin Colfax, researcher for The Justice Project. Rob Warden, executive director of the Center for Wrongful Convictions agrees, adding, “We’ve shown how unreliable eyewitness testimony is in sexual assault cases. . . it’s no doubt les reliable in an armed robbery case than in a sexual assault case.”

Eyewitness Reform

I recently observed a live lineup at the Salt Lake City Metro Jail. Inmates were offered king-sized candy bars in exchange for their participation in the lineup. The suspect was marched into an interrogation room, side-by-side with five volunteer inmates. Each participant was then directed to step toward the glass, turn to the side, and speak, in order to enable the witness to identify the suspect both by sight and by sound.

The traditional lineup I observed is standard practice for many police agencies, but scientists and scholars have suggested several changes to the procedure to increase reliability:

• Photo and live lineups should be conducted with one participant or photo at a time, rather than a group of individuals at once. The witness should make a decision on each individual before being shown the next individual.
• Phone and live lineups should be conducted by an officer who is unaware of the identity of the suspect.
• Appropriate instructions should be given to limit racial bias.
• Witnesses should be instructed on the fact that the actual perpetrator might not be in the lineup and that they should not guess.
• Every lineup should include at least five individuals, other than the suspect, who fit the description of the perpetrator.

In addition to Salt Lake City’s flawed approach to live lineups, I have been involved with cases in which officers have employed a far more concerning identification technique – the witness show-up. In one case, police officers asked a witness to show up at the location where a suspect was apprehended to see if the witness could identify him. The suspect was handcuffed and surrounded by police officers and patrol vehicles when the witness arrived.

Despite the proven unreliability of witness identification, it is estimated that less than 15% of police agencies have made changes to their identification techniques to align their procedures with the best science and practices.

adley Balko, senior editor at Reason magazine, wrote, “DNA testing has exposed some gaping flaws in the system, calling into question traditional assumption on the value of eyewitness testimony . . .Instead of falling back on groups like the Innocence Project to serve as unofficial checks against wrongful convictions, lawmakers, judges and law enforcement officials should be looking at why there’s so much work for these organizations in the first place.”

Proper reform could substantially reduce the wrongful conviction rate. I would encourage courts, legislatures, law enforcement agencies and prosecutors to establish policies aimed at preventing further injustice.

RESOURCES

• http://www.innocenceproject.org
• http://huff.to/mBlMkJ
• http://bit.ly/8b6azo
• http://bit.ly/ylLk6m
• http://bit.ly/FPUK5C
• http://bit.ly/FRoIKQ
• http://bit.ly/FREa5R