Witness Testimony and the Death Penalty: After Troy Davis, a Push for Eyewitness Reform
Nearly a week after the state of Georgia executed Troy Davis, the emotions surrounding his case have calmed. Protestors and reporters have long since dispersed from their vigil outside the prison. The Twitter hashtag #toomuchdoubt — as well as its Wednesday night successor #RIPTroyDavis — is no longer trending. That's not to say, however, that the case won't continue to have an outsized effect on the criminal justice system in the U.S. 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.
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 cop Mark McPhail. But of the nine witnesses who testified against Davis in his original trial, seven would go on to change their mind and recant. As many outside observers pointed out, they were either lying on the stand, or lying now. There are two essential takeaways, then, from Davis' execution: First, that eyewitnesses are extremely unreliable, and second, that because of that unreliability, the death penalty shouldn't hinge solely on eyewitness recall. (Read about whether Davis' execution will bring closure to the victim's family.)
That second point is why Al Sharpton and his National Action Network are now pushing for a new law in the wake of Davis' death. The law would forbid prosecutors from pursuing the death penalty in cases where there was no physical or scientific evidence. Under this law, he has said, "the Troy Davis case would never have been tried as a capital case in the first place."
Eyewitness problems plague non-death cases as well. In fact, the New York-based Innocence Project estimates that it's the single greatest cause of wrongful convictions nationwide. Some 75% of the false convictions they've uncovered not only involved non-matching DNA (the Innocence Project's specialty), but also eyewitness problems: poor handling, poor reliability, police coercion. The stories of hundreds of clients whose innocence was proven by DNA testing make up what Innocence Project co-founder Barry Scheck once referred to as "the greatest data set in the history of our criminal justice system." One clear finding in that data set is that a lot of Scheck's clients who were ruled innocent had also been positively (and ultimately, falsely) ID'd by witnesses in the original trial. As the number of cases where there is untested DNA dwindles in the U.S., Scheck says the Innocence Project is turning its attention to the next great area of need: eyewitness reform.(Read about Davis being executed in Georgia for killing an off-duty cop.)
Just what is so wrong with eyewitnesses? It depends on who you ask. UC Irvine psychologist Elizabeth Loftus has done considerable research into the inherent unreliability of memory, how easily suggestible and completely self-deceptive it can be. Santa Clara County Assistant District Attorney Karyn Sinunu-Towery points to a number of potential variables that might affect a witness' ability to recall accurately: how far away they were from the scene, what the light was like, whether they were afraid, whether they are of a different race than the person they witnessed.
Each one of those factors can contribute to error and the cumulative result, watchdogs say, is an unacceptably high risk that witnesses might get something wrong — a prospect that pleases neither defenders nor prosecutors like Sinunu-Towery. "We had a case a few years ago where there was a bad identification and there was a reversal," Towery says. "We don't want that. Every time there's a wrong identification, it means the real criminal is still out there."
Read about the outrage on the Internet over Davis' execution.
For all the attention placed on the recanting eyewitnesses in the Davis case, there wasn't much coverage of the fact that the witnesses may have been mishandled from the outset. Setting aside the various accusations that police pressured people into saying Davis did it, the police also broke a cardinal rule of witnesses: They allowed these strangers to interact with one another and sync stories. That is, the police actually brought all the witnesses together in the Burger King parking lot where the shooting took place and recreated the crime. Whether by mistake or by design, it had the effect of creating identical eyewitness accounts that hued to a central narrative, rather that revealing the messier vagaries of nearly a dozen people trying to remember what they had seen in a dark parking lots.
"Should never happen." says Sinunu-Towery sharply. "Witnesses need to be able to tell their story alone." Sinunu-Towery says that local law enforcement in her area take this seriously, but even then, it's not always possible to keep witnesses from coordinating their stories. Even if police are a bit late responding to a scene, witnesses tend to start chatting and inadvertently match up their recollections. "I remember years ago there was a double homicide in a bar," she says. "There were a lot of inebriated witnesses, and it was pretty hard to keep them from talking with each other about what had happened." (Read about the failure of a legal 'safety' valve.)
False convictions, however, are not the fault of bad witnesses; they are the result of poorly trained judges and juries. And this is where Davis' case could make a lasting difference. Just two days before Davis' execution, the Innocence Project and a consortium of police and advocacy groups released a study that outlined best practices for lineups. For example, it turns out that if you have a full lineup that doesn't include the actual perpetrator, the witness will often just pick the one person in the lineup who looks closest to the guilty. Among the report's top findings: by far the most reliable practice is the double-blind sequential lineup, where the administrator doesn't know who the suspect is, and suspects or their photos are presented one-by-one instead of in a group.
There are other common-sense reforms that can help the courts use eyewitnesses properly. Standardizing police protocols would clearly help. So would better juror instructions. In California, jurors are told from the outset that eyewitness accounts may be unreliable, that they should be taken with a grain of salt. But not every state is so explicit. Without those wary-sounding juror instructions, many jurors in other states may think, as Sinunu-Towery once did, that the "best evidence in the world was having someone stand up in court and shout 'there's the guy that did it!'" In reality, she says, that could well be the least reliable evidence of the trial.(Read about five historically infamous executions.)
Some jurisdictions are taking action, while others are resisting. Santa Clara County, where Sinunu-Towery works, is one of the leaders in implementing best practices (the county will soon begin videotaping all lineups, for example). But California, under pressure from police groups who don't appreciate lawmakers telling them how to do their job, has blocked some legislative attempts to regulate the eyewitness process more heavily. Florida has been similarly reluctant. In August, New Jersey's Supreme Court ruled that eyewitness identification is routinely flawed, opening the door to statewide reform. Georgia, for its part, instituted reforms in 2008 that were at least partially in response to the already-brewing controversies surrounding the Troy Davis case. But even those, as the Pew Center on the States' online publication Stateline.org points out, were not mandatory.
Activists argue that should be uniform protocols throughout the country for how police handle witnesses and what juries are told about eyewitness reliability. It's something both sides can agree on (for the most part), and would provide an extra insurance policy against convicting the innocent. And, for Davis' family and supporters, it would be a sign of progress, reform and redemption — that perhaps his death was not in vain.
Source
No comments:
Post a Comment