Rhode Island Legislators Propose Improved Eyewitness Identification Methods

A recent article published in the The Providence Journal discusses the importance of legislation that would improve eyewitness identification methods in the state of Rhode Island. In the wake of a 2007-2008 survey conducted by the Rhode Island Office of the Public Defender, which reported that there have been at least seven cases of wrongful convictions as a result of faulty eyewitness IDs, Rhode Island legislators have proposed a bill that would require law enforcement agencies to follow more stringent eyewitness identification policies. Out of the 42 law enforcement agencies that responded to the survey, only 3 have written policies outlining proper eyewitness ID procedures. The legislation proposes a statewide standard for proper procedures. One of the sponsors of the bill, Sen. Harold M. Metts, (D-Providence) believes law enforcement agencies should implement best practices. “Anything to enhance the process, that’s what we need to do,” Metts said.

Both law enforcement agencies and attorneys understand the persuasive force of eyewitness testimony in the courtroom. Many social scientists, however, are skeptical of such evidence. According to the article, “Social scientists say stress, gaps in memory or the desire to make an identification at all costs can lead to mistakes.” With these factors in mind, the proposed legislation would mandate certain practices, such as live and photo lineups that include “fillers” who fit the suspects general characteristics.

The article also examines the experience of Brown University student Reade Seligmann. In 2006, Seligmann learned the consequences of misidentification firsthand when he and two Duke lacrosse teammates were wrongfully accused of raping an exotic dancer who picked them out of a faulty photo array made up of only Duke lacrosse players. According to data compiled by the New York based Innocence Project, 79 percent of the 252 people exonerated through DNA evidence were convicted on the basis of faulty eyewitness identification. “When you have your life taken out of your hands, it’s terrifying,” said Seligmann.

http://www.projo.com/news/content/EYEWITNESS_ID_05-16-10_L6I5777_v39.88b4f80.html#

DNA Access Law Passed in Alaska

Today, the Alaska State Legislature passed legislation granting access to post conviction DNA testing. Additionally, the law will require the preservation of evidence following a conviction. This milestone legislation is a significant step forward for inmates seeking post conviction relief through DNA testing, many of whom did not have the technology available at the time of their trial. The success in Alaska leaves only two states without such laws, Massachusetts and Oklahoma. A link to the legislation is provided below.

http://www.legis.state.ak.us/basis/get_bill.asp?session=26&bill=SB+110

NEIP Exoneree to speak before the Boston Rotary Club

NEIP exoneree Dennis Maher will be speaking before the Boston Rotary Club to discuss the many issues involved with wrongful convictions as well as his own 1984 wrongful conviction. Additionally, Mr. Maher is expected to address the problem of Massachusetts’ DNA access laws and the importance of the legislation. The event will be taking place at the Boston Park Plaza Hotel on Wednesday, May 12th from 6 to 7:30.

Background:
Dennis Maher was convicted in two separate trials of attacks on three women. In March 1984, he was found guilty of the rape and assault of two women in Lowell on consecutive evenings in November 1983. In April 1984, he was convicted of the August 1983 rape of another woman in Ayer. After the second trial, Maher was sentenced to life in prison. Under Massachusetts law in effect at the time of his convictions, he was also civilly committed to Bridgewater Treatment Center. Maher, a U.S. Army sergeant at the time of his arrest, had always asserted his innocence and wrote to The Innocence Project for help. The Innocence Project tried repeatedly to gain access to the biological evidence collected from the victims, but was told that the evidence couldn’t be found. In 2001, NEIP located long-misplaced evidence from the Lowell trial in the basement of the Middlesex Superior Court. In December 2002, DNA test results excluded Dennis Maher as the source of semen on the evidence. After Maher was excluded as the source of semen in the Lowell case, in February 2003, the Middlesex District Attorney's Office located at the Ayer Police station a slide prepared from the rape kit of the Ayer rape victim. This slide was submitted for DNA testing and Maher was again excluded as the source of semen. Dennis Maher was exonerated in April 2003 after 19 years in prison. He was represented by NEIP attorneys and by the Innocence Project in New York.

New England Innocence Project Exoneree Dennis Maher Calls for Massachusetts to Pass Crucial DNA Laws

Dennis Maher was convicted and sentenced to life in prison for committing three rapes in 1983. In 2003, after spending 19 years behind bars, Dennis was freed because DNA tests proved that he was innocent of the crimes. In a recent editorial in The Patriot Ledger, Maher emphasizes the importance of access to DNA testing for inmates with claims of actual innocence. In Maher's case, it took an extra six years to get the DNA tested because Massachusetts is one of only three states that lack a post-conviction DNA access law. Maher says, "That needs to change this year."

Maher also refers to a report released by the Boston Bar Association Task Force to Prevent Wrongful Convictions in December 2009, which is entitled "Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts." The Task Force was composed of police, prosecutors, defense attorneys and former judges, including four New England Innocence Project board members. Along with a variety of other recommendations for increasing the accuracy and reliability of the results the criminal justice system produces in Massachusetts, the Task Force calls for the creation of a statute providing defendants with claims of factual innocence with post-conviction access to and testing of forensic evidence and biological material (and for preservation of biological material).

Link to Maher's op-ed:
http://www.patriotledger.com/opinions/x1685419828/COMMENTARY-Time-for-a-law-granting-DNA-testing-to-prisoners


Boston Bar task force report:
http://www.bostonbar.org/ebusiness/bbapublications/newsreleaseitem.aspx?ID=7

Bermudez Exoneration Brings Hope for the Factually Innocent

Justice John Cataldo of the New York State Supreme Court recognized a judicial basis for claims of actual innocence this month when he overturned Fernando Bermudez' conviction. The decision, rendered on November 12, moves the state of New York closer to recognizing actual innocence as grounds for appeal. Justice Cataldo wrote, “I find the due process clause of our state Constitution requires a procedural mechanism be provided for an incarcerated defendant to bring a post-conviction motion upon a claim of actual innocence.”

Bermudez was convicted in 1992 of fatally shooting a sixteen-year-old in Greenwich Village. Five witnesses spoke against him at trial. No physical evidence tied him to the crime. In 1993, all five witnesses recanted their testimony, claiming that they were manipulated by prosecutors and police. They have stuck to their recantation ever since, and Bermudez has been petitioning to have the state court re-evaluate the evidence in his case since that time, but to no avail. The justice system seems to view recantations as inherently untrustworthy. A 1995 judge called the five who recanted in Bermudez' case simply too many to believe. Bermudez has stuck to his original story all along-- he did not know the victim, he had no motive to kill him, and he was elsewhere with friends at the time of the murder. Two friends spoke to his alibi, and have consistently maintained their testimony.

Legislation has also recently been brought in the state of New York that would amend the criminal procedure law to include a definition of actual innocence and the grounds by which a judge could vacate a sentence due to actual innocence.

The New York Times, November 22, 2009: Hope for the Wrongfully Convicted
The New York Times, April 13, 2007: Accusers Recant, but Hopes Still Fade in Sing Sing
New York State Senate: Actual Innocence Justice Act of 2009
State of NY v. Fernando Bermudez: Decision and Order, November 12, 2009

Dog "Scent Line Ups" Unreliable and Misused

The New York Times today reported on the phenomenon of dog "scent line ups", in which a dog is exposed to a scent from a crime scene and then walked past vials containing swabbed samples from suspects and non-suspects. The dog indicates to the handler that it has reached a match, by stiffening its back or barking. Using dogs to follow scents has long been a practice of law enforcement officials, and is still employed by the FBI. But even the FBI agrees that dog scent line ups should not be used as the primary piece of evidence against a suspect. Dogs are liable to suggestion by their handlers, smells are often easily mixed and difficult to distinguish, and handlers may misinterpret their dog's signals. Many states do not accept scent line ups as evidence, but several do, including Texas, Florida, New York and Alaska.

New York Times: http://www.nytimes.com/2009/11/04/us/04scent.html?_r=1&ref=us

Northwestern Law Launches Center on Wrongful Convictions of Youth

Northwestern University School of Law has launched a new joint project between the Center for Wrongful Convictions and the Children and Family Justice Center. The Center for Wrongful Conviction of Youth (CWCY) will address the specific concern of exonerating and advocating for children and adolescents who are wrongfully convicted. Children and adolescents are particularly susceptible to police coercion and false confession. A Miranda warning is often not enough for a child or adolescent to adequately understand the ramifications of their words and actions while in police custody.



Media pages for CWCY:

CWCY.org

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Co-Founder Steve Drizin's article on The Huffington Post