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False witness: Mistaken eyewitness testimony is far too common in wrongful imprisonment cases
Within the past few weeks, two Houstonians have been released from prison after serving a total of 46 years between them for crimes they did not commit. Allen Wayne Porter, then 20, was convicted in 1990 of rape and robbery and served 19 years of a life sentence. Michael Anthony Green went to prison for aggravated sexual assault in 1983, at age 18, and served 27 years of a 75-year sentence.
Both had been convicted on faulty eyewitness testimony, and both were exonerated on the strength of DNA evidence, thanks to the Post Conviction Review Section of the Harris County District Attorney's office, a group of attorneys and investigators formed last year by DA Pat Lykos to examine inmates' credible claims of innocence.
While there are many mistakes, omissions and sloppy practices that can contribute to wrongful convictions, one of the most serious and widespread problems is mistaken or flawed eyewitness identification. Of the 43 DNA exonerations in Texas, the most of any state, more than 80 percent were due to mistaken eyewitness identification, as were all nine of the Houston Police Department's DNA exonerations.
Jeff Blackburn, general counsel of the Innocence Project of Texas, cited the Green case as a "perfect example of the damage caused by a broken system that our leaders have refused to fix. The infuriating thing is, we already know what the solution is. Until a law is passed that requires police to conduct these identifications correctly, innocent people will continue to be convicted and guilty people will go free."
Sen. Rodney Ellis, D-Houston, would agree with that sentiment. He has been trying to do just that on the state level since 2005.
Last session he sponsored legislation to require Texas law enforcement agencies to adopt written eyewitness identification procedures based on best practices. It failed, but the Legislature did establish an advisory panel that is currently studying factors that lead to wrongful convictions, and will present its recommendations in the next several weeks.
Fortunately, this is one area that is not difficult to address. As attorney Bob Wicoff, who represents Green, told the Chronicle, solutions already exist for many of the questionable procedures that lead to wrongful identification.
"We're never going to eliminate all the problems," he said. "But there are technologies available and there are many things we can do."
Indeed, there is movement out there: The Innocence Project of Texas has made some recommendations for legislative reforms dealing with eyewitness misidentification. They include the following measures:
Using a double-blind procedure for live lineups and photos, where the officer does not know the identity of the suspect, so is not signaling, either intentionally or unknowingly, who the suspect is;
Instructing the witness that the suspect may or may not be present in the lineup so that the witness will not feel compelled to select someone;
Presenting the lineup individuals sequentially rather than all together, shown to significantly decrease the likelihood of misidentification;
Collecting a statement from a witness making an identification, in which the witness can express his or her level of confidence in the identification, which provides valuable information to investigators.
When the state Legislature reconvenes in January, it faces a busy agenda. But it will also have at hand some practical, inexpensive recommendations to overhaul a seriously flawed system that brings discredit on us all. It should be given a high priority.
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