Fugitive Man

by Cromwell, Robert;

  (Bad) Informants

  Bad Lawyering

  My experiences in the last 30 years validates those findings. The following explains each of the listed causes.

  EYEWITNESS MISIDENTIFICATION

  In 553 of the 1,733 exonerations recorded by the National Registry of Exonerations, mistaken witness identification was a factor. And in nearly 75% of the wrongful convictions overturned by DNA evidence, mistaken witness identification played a pivotal role. It is the single most prevalent factor leading to false convictions.

  Great import is placed on the testimony of eyewitnesses. In many courtroom trials, eyewitness testimony is the only “substantive” or non-circumstantial testimony offered and is the primary reason for conviction. That is problematic in that the certainty by which an eyewitness identifies a suspect has no relationship to the identification’s accuracy, nor does the detail a witness conveys. Just because someone is sure they’re identifying the right person doesn’t mean that they are any more accurate than the witness who says, “I think that’s him.” Additionally, cross-race identification is particularly difficult. For example, if you’re black, you generally don’t remember and recognize white people as well as you remember and recognize fellow black people. The overriding memory is the fact that the person was a different color than you. It’s true for all races and makes visual identification of suspects challenging.

  Many people believe memory acts like a camera or video recorder. That’s not the case.

  Memories of faces are reconstructed from clues that reside in several places in the brain. Sometimes, those clues, intentionally or not, come from the police or prosecutor. Without intending to, an investigator or prosecutor may provide clues to the suspected perpetrator’s appearance that become logged into the witness’s mind and become a memory of what the witness thought he or she observed.

  Eyewitness identification is usually obtained through a lineup, which can be conducted by an actual “lineup” of six people (as you often see in many movies and TV shows, but in reality is hardly ever used), or more frequently through the viewing of a photo lineup, which traditionally is a compilation of six photographs on a single sheet where the photo of the suspect is randomly placed amongst five other photos of individuals bearing similar characteristics.

  All lineups need to be consistent and fair. The suspect should not be in any way highlighted. In some cases, the suspect appears on glossy photo paper, while the five “fillers” are featured with matte finish photo paper. Sometimes, the “fillers” are standard police booking photos, while the suspect’s photo is taken in a more casual, non-structured setting. Those situations highlight the suspect, lead to false identifications, and should invalidate any identification.

  Another issue revolves around the presentation of the photo lineup. When the investigator hands the folder containing six photographs, sometimes known as a “six-pack,” to the witness, non-verbal communication may be occurring without the knowledge of the investigator or the witness. The investigator’s visual focus may inadvertently “point out” the suspect. The way the six-pack is handled may somehow highlight the suspect. The whole process is rife with potential flaws.

  Randy Means is an attorney who for 25 years has been a partner in a nationally recognized law enforcement training and consulting company. For 20 years Randy was also the primary legal and risk management trainer for the International Association of Chiefs of Police (IACP) and has provided training at multiple national conferences of the FBI National Academy Associates. Randy is also the past head of the National Association of Police Legal Advisors and has provided instruction in every state in the U.S. and Canada. I have tremendous respect for Randy, his opinions, and his awareness of cutting-edge law enforcement issues.

  I asked Randy to review all the recommendations I make in this chapter. After reviewing my recommendations, Randy advised me he agreed with them all except my witness identification recommendations. After reviewing Randy’s take on the issue, I deleted my explanations of the best eye-witness procedures and have provided Randy’s. They make more sense.

  Randy stated, “I think you should recommend that we not use body lineups at all (we haven’t anyway for about 30 years, as you noted) nor should we ever use a single six pack – for the same reason in both cases. In either case, the eyewitness (who knows our suspect must be in the array, despite our statement that he may not be, or why are we doing this at all) will be trying to find the guy in the lineup who looks the most like the perpetrator. Obviously, even if the eyewitness “succeeds” in this endeavor, this is not a good identification process.”

  Randy continued, adding his logical solution to this identification problem: “I think you should recommend that all lineups be photo lineups and that all of them should be conducted by sequential one-at-a-time presentation of a large number (like 20-30) photos without the eyewitness knowing how many photos there will be. In fact, we should tell the eyewitness that there will be a large number of photos, that the suspect may or may not be among them, and that they eyewitness will not know when the end of the presentation is coming – at a point we’ll simply say, “that’s it.” If no one has been identified, then so be it – and that’s the end of the line. If the eyewitness wants to try again, we would use all the same photos as in the first sequential display, with additional (new) photos interspersed (increasing the overall number of photos by quite a few) and with a shuffling of the deck.”

  Randy added, “Any use of a six pack display would be a sequential display of multiple six packs (maybe 4-5) with instructions to the eyewitness that we will be showing him or her a large number of pictures, presented six at a time, that a suspect may or may not be among them, and that the eyewitness will not know when the process is coming to an end until we say, “that’s all.”

  The only reason I’m suggesting the use of six packs at all is because a lot of photo array software is set up for six packs – our traditional arrangement.

  So, under this recommendation, we would never use a single six pack approach.”

  The fairness and quest for accuracy offered by Randy’s suggestions make great sense and would provide very strong evidence when an identification is made. As with other identification procedures, the entire process should be video recorded.

  My home state of New Jersey is ahead of its time with regard to eyewitness testimony. In 2011, the New Jersey Supreme Court declared New Jersey’s standards for eyewitness testimony were unreliable. (State v. Henderson; 2011 N.J. Lexis 927, 8/24/11)

  In their decision, the N.J. Supreme Court examined scientific research on eyewitness identification and found current practices were not reliable and did not deter inappropriate law enforcement conduct. They also determined that the entire process gave the jury the impression that they should be able to judge the reliability of the eyewitnesses’ testimony even though they do not have the innate capability of doing so. The court ruled that the scientifically based pros and cons of eyewitness identification be thoroughly explained to the jury when eyewitness testimony is employed. That explanation must offer these questions the jury should consider:

  Was the lineup administered using a third-party (double blind) process and was the witness advised that the actual suspect may or may not be in the lineup?

  Did the police not provide feedback suggesting the witness selected was the “right” person?

  Did the police make notes on the witness’s level of confidence in making the identification?

  Was the witness exposed to the suspect on multiple occasions, which would highlight the person as the likely correct suspect in the lineup?

  Was the witness under a high level of stress when witnessing the crime?

  Was a weapon used?

  How much time did the witness have to observe the suspect?

  How far was the witness from the suspect when viewed, an
d what were the light conditions?

  Was the witness exposed to factors that would make the identification more difficult, such as the mental state of the witness, was the witness using alcohol or drugs, or were there eyesight impediments, etc.?

  Did the suspect appear to be wearing a disguise at the time of the crime, or did the suspect have different facial features at the time of the crime, such a beard, mustache, dyed hair, etc.?

  What was the length of time between the crime and the identification?

  Was the witness of a different race that the suspect?

  These questions, and the explanations associated with them, encourage law enforcement to follow progressive guidelines, including the video recording of the entire identification procedure, to insure that the identification process is conducted in the most accurate and just way possible. New Jersey’s identification standards should be embraced throughout the U.S. as being in justice’s best interest.

  A note on video recording: Video recording the interviews of suspects, as well as witnesses, allows the jury to observe the demeanor and behavior of the investigator(s) conducting the interviews. In the case of witnesses, the jury can observe for themselves how the information obtained was accomplished without inappropriately leading or suggestive questions, observations, or coercion. In the case of suspects, video recording of the entire interview, from start to finish, demonstrates the voluntary nature of the interaction between suspect and interviewer, as well as the specific, detailed information obtained. The video recording ultimately becomes the prosecution’s best evidence as to the strength of the evidence and the likely culpability of the suspect.

  I believe the time will come when the majority, if not all, of police interactions with the public are recorded, capturing critical incidents, arrests and most every other facet of the police officer’s profession. And, as select videos are made available to the public, the public will finally see how very difficult it can be to be a police officer and how most officers are there to serve the public and do so with bravery and integrity. It will also allow for the demonstration of the unfiltered police officer’s perspective of incidents, rather the potentially incomplete and out of context video provided by nearby witnesses or accomplices. The police-worn cameras clearly demonstrate transparency and accuracy by the police employing those cameras.

  Video recorders attached to officer’s collars or on special glasses were tested in Rialto, California, in 2012. A year after the implementation, use of force by officers fell by almost 60 percent. Further, complaints against officers fell an amazing 88 percent. (Zack Peterson, Tampa Bay Times, 7/5/14) Sounds like a no-brainer that the police and the public would be well served by police wearing video recorders.

  The presence of the camera can have a cooling effect on everyone present. Officers are less likely to encounter physically hostile resistance when the potentially violent individual knows a camera is watching. It can also cool the officer in those heated moments that sometimes unnecessarily escalate to violence.

  A suspect I was taking into custody once punched and fought with me. While I attempted to place him in handcuffs, he continued to fight, and I was forced to take him to the ground, causing his head to hit the sidewalk and bleed. I did what was appropriate in the situation, using only necessary force and immediately rendered appropriate first-aid, but was still concerned that the guy might have sustained a head injury that would result in him requiring hospitalization and then, with the help of a handy personal injury or civil rights attorney, the filing of a complaint against me. I would have paid for a video recording of the incident, as that would have quickly demonstrated the subject’s assault on me followed by my proper reaction and justified use of force.

  I’ve read that police departments in the U.S. pay approximately $2 Billion in department liability costs and settlements annually. The embracing of this new video technology throughout the country will save the departments and officers’ money and prevent many unnecessary complaints. In the long run, it’s good for the public and good for the police.

  NOT VALIDATED OR IMPROPER FORENSIC SCIENCE

  In 49 percent of DNA-related exonerations and roughly 25 percent of all exonerations, not validated or improper forensic science contributed to wrongful convictions. (In most cases, DNA testing is not an option because no evidence containing DNA is recovered from the crime scene.)

  While DNA is absolutely accurate, in many states, some so-called scientific techniques are employed but not scientifically validated, such as hair and fiber comparisons. Great import is given to hair comparison, which ultimately is not nearly as definitive as once thought, though it’s still sometimes good for determining racial group, the identification of added chemicals, i.e. dye or bleach, and sometimes as a source of DNA, if the hair root is available. In 2012, the Justice Department announced it was conducting a review of thousands of criminal cases, dating back to 1985, where hair and fiber analysis led to convictions. Inquiries determined a lack of consistency in the examination of hair and fibers and pointed out that any two hair and fiber experts might not agree on the other’s findings.

  Adding to the problem are identification experts who sometimes testify to “facts” that are without clear scientific basis. In rare circumstances, forensic specialists have actually engaged in misconduct, providing prosecution-supporting testimony without basis. That behavior is rare, but must be considered.

  Ultimately, the solution is appropriate scientific oversight and government-funded research to validate standard forensic methods, tests, and testimony.

  FALSE CONFESSION/ADMISSION

  People occasionally confess to crimes they did not commit. As counterintuitive as that might sound, it’s a fact. The reasons are varied. Sometimes, the person is mentally unstable due to mental illness or substance abuse, and in trying to please, they’ll say anything they’re asked to say. Sometimes, an intensive interrogation/interview leads the person into agreeing to anything the interviewer says, just to get the interview over. Sometimes, the interviewee thinks it’s in his best interest, based on what the person conducting the interview says or “sells” to him. Sometimes, the interviewee is drunk or high during the interview and willing to confess to anything. Sometimes, details of the crime are inadvertently supplied to the interviewee by the interviewing officer and end up being seen later as an admission when the interviewee repeats what he’s been told. Sometimes, the interviewee is scared of the interviewer and feels threatened into providing a false confession.

  In 221 of the 1,733 reported exonerations, false confessions contributed to the conviction.

  There’s a simple solution to the issue. Record all custodial interviews. The whole interview. From the interview’s start until its conclusion, the conversation should be recorded and, preferably, captured on video. Let the judge and jury hear and see what was said.

  There was a time when people would argue that the cost and inconvenience of recording all such interviews would be prohibitive. Not anymore. High quality recording capability resides in most smart phones, and digital recorders are inexpensive. Ultimately, a recording provides the best evidence to play for a jury and prevents allegations of police harassment or mistreatment, as the recording gives proof of how a suspect was treated while being interviewed. It also proves to the jury what the subject actually said, preventing the defense attorney from claiming his client’s words were misquoted or misconstrued. It’s in the best interest of justice for both the prosecution and the defense.

  In some states, recording of custodial interviews/interrogations is mandatory. In 2014, the US Department of Justice made the recording of custodial interviews required by DOJ enforcement agencies, including the FBI, DEA, BATF and the Marshal’s Service. Once the practice is in place, many investigators recognize it as a valuable tool and embrace its use. It really should be the standard for all law enforcement agencies. It’s the best evidence of what wa
s actually said.

  In my interview of Marcus Hamilton back in 1987, I did not have the benefit of recording the interview. At the time, the FBI simply didn’t record interviews. I wish we had, as Special Agent Phil Stukes and I spent a long time developing rapport to get Marcus to tell us about killing the victim, and the jury would have heard a pleasant, even friendly conversation that resulted in Marcus Hamilton admitting to a horrific killing. The defense tried to suppress the confession in a pre-trial hearing, but the confession was ruled as voluntary and was presented to the jury. There would be no need for a suppression hearing if the interview was recorded. If for some reason the confession had been suppressed, there’s no telling if Marcus would have been convicted. Recording interviews really makes good sense and is in the best interest of justice.

  GOVERNMENT MISCONDUCT

  I’ve been around law enforcement all of my life. My older brother David retired a captain after 28 years on the Princeton Township (NJ) Police Department. He was my role model and inspired me to pursue a law enforcement career. Also, my grandfather was a long-time Princeton Borough police detective, who even did some counter-espionage preliminary inquiries for the FBI during World War II. (I’ve got the letters.) I’m a Life Member of the International Association of Chiefs of Police (IACP). Between my police, NCIS, and FBI experience, I know and have worked with law enforcement officers all over the country. The overwhelming majority of police officers are professionals who work in an ethical and honest manner seeking justice while endeavoring to take violent people and people who prey on the public off the street.