[Vision2020] Exonerations Spur Changes

Sunil Ramalingam sunilramalingam at hotmail.com
Thu May 3 12:20:23 PDT 2007

Thanks for this post, Bruce.

Those who have read Gerry Spence's 'The Smoking Gun' (buy it now at 
Bookpeople!) will recognize Joshua Marquis from that book, and not with 
fondness.  It's not surprising to find him speaking out against improvements 
in identifying people.


>From: "Bruce and Jean Livingston" <jeanlivingston at turbonet.com>
>To: <vision2020 at moscow.com>
>Subject: [Vision2020] Exonerations Spur Changes
>Date: Thu, 3 May 2007 11:58:23 -0700
>The following two news stories should be mandatory reading regarding some 
>problems in our criminal justice system relating especially to eyewitness 
>identifications.  The first article is from today's Washington Post and 
>discusses a nationwide trend toward improving the criminal justice system 
>based on the lessons from the DNA exonerations -- on how those particular 
>prosecutions made the mistake of convicting innocent people.  The article 
>examines the need to make legislative changes in several areas, including 
>both the method of conducting photographic and in-person line-ups, as well 
>as the taping of all police interrogations.  The second article is a very 
>compelling and powerful column by a rape victim, Jennifer Thompson 
>(Cannino), who identified and helped convict the wrong man, twice.  She is 
>mentioned in the Post's more analytical, drier article, but her riveting 
>personal story is the second link.  Both articles are reprinted below the 
>If Senator Schroeder and Representatives Trail and Ringo would begin to 
>think about how to take some of these "lessons from the wrongly convicted"  
>and consider implementing some legislative changes for criminal 
>investigation procedures in Idaho, I think our criminal justice system 
>would be improved.
>Bruce Livingston
>Exonerations Change How Justice System Builds a Prosecution
>DNA Tests Have Cleared 200 Convicts
>By Darryl Fears
>Washington Post Staff Writer
>Thursday, May 3, 2007; A03
>Jerry Miller is the newest poster child of the wrongfully convicted, the 
>200th to be exonerated by DNA evidence -- after he spent 25 years behind 
>bars in Illinois for a rape he did not commit.
>But Miller, a black man, hardly stands out in the crowd of the exonerated. 
>Of the 200 people whose convictions have been overturned as a result of DNA 
>evidence since 1989, 60 percent have been black or Latino, according to the 
>Innocence Project, a liberal organization that works to free the wrongfully 
>convicted. Of those exonerated after a rape conviction, 85 percent were 
>black men accused of assaulting a white woman.
>In contrast, black men are accused in 33.6 percent of rapes or sexual 
>assaults of white women, according to a 2005 Bureau of Justice Statistics 
>study of victims.
>"What it says to me is that, ultimately, if you are a black man charged 
>with sexually assaulting a white woman, the likelihood that you will be 
>convicted, even if you are stone-cold innocent, is much, much higher," said 
>Peter J. Neufeld, a co-director of the Innocence Project who asserted that 
>the 200 exonerations "are the tip of the iceberg."
>The overturning of convictions based on DNA evidence is prompting changes 
>in criminal procedures that reach beyond race. States and cities are 
>starting to enact or consider laws to change decades-old police methods 
>such as eyewitness identifications and police interrogations that lead to 
>"The exonerations have been an extremely important force in getting the 
>legal system to recognize there's a problem," said Gary L. Wells, an Iowa 
>State University psychology professor whose research led to new practices 
>in eyewitness identification. "I've been working at this for 30 years, and 
>before DNA they pretty much ignored the studies."
>In New Jersey, where four convictions were overturned by DNA evidence, the 
>state attorney general issued a directive requiring law enforcement 
>agencies to electronically record police interrogations for all violent 
>crimes to guard against false confessions, said Paul H. Heinzel, a deputy 
>attorney general for the state.
>At least 500 smaller police jurisdictions have begun to tape confessions, 
>and 20 states -- including Maryland, Virginia, California, Florida and 
>Tennessee -- are considering it.
>"Police and prosecutors I've talked to thought it was a good thing," said 
>Sen. Amy Klobuchar (D-Minn.), a former county prosecutor whose state 
>started taping 11 years ago, after a ruling from its supreme court. "It 
>builds police credibility. People talked about it being too expensive. But 
>I would put buying a cheap tape over paying some of these 
>multimillion-dollar wrongful-conviction judgments any day."
>New Jersey also led the way in discarding the old police lineup, in which 
>victims and witnesses identified suspects first from an array of 
>photographs and later from an in-person lineup as detectives intent on 
>solving the case stood by, sometimes offering encouragement. The state now 
>presents individuals -- in person or in photos -- one after the other so 
>witnesses cannot compare one member of a lineup to another, making relative 
>judgments "about which individual most looks like the perpetrator," 
>according to guidelines set by the New Jersey attorney general.
>Bad eyewitness identifications contributed to 75 percent of wrongful 
>convictions in cases that were overturned by DNA evidence, according to the 
>Innocence Project. Georgia, West Virginia, Connecticut, New Mexico and 
>Texas, where 25 convictions were overturned by DNA evidence, are now 
>considering legislation that would similarly change eyewitness 
>Miami is considering an overhaul of its procedures, said John F. Timoney, 
>chief of police. The city now videotapes all confessions. DNA evidence is 
>tested in every rape case. The city has collected more DNA evidence than 
>its labs can test. Timoney said he is in discussions with the district 
>attorney over whether to implement a sequential process for eyewitness 
>Joshua Marquis, district attorney for Clatsop County, Ore., and vice 
>president of the National District Attorneys Association, warned against 
>the new eyewitness procedures. He called the process an unproven fad that 
>could unwittingly set perpetrators free.
>"It's way far from being established that this is the magic bullet," he 
>said, adding that prosecutors want "eyewitness identification that is 
>Miller was a young Army veteran and line cook when he was identified as a 
>rapist and arrested in September 1981. Police said his face resembled the 
>composite sketch created from the memory of the victim, who was attacked in 
>a parking garage and stuffed in the trunk of her car by an assailant.
>Miller protested, saying he was at home watching Sugar Ray Leonard box 
>Tommy Hearns in their famous bout. He offered a witness to corroborate his 
>alibi: his father, who watched with him. "I can remember all of that like 
>it was yesterday," Miller said. "I thought somebody set me up."
>Miller was convicted after witnesses identified him during his trial. 
>Police stored the evidence, including a slip with semen that led to 
>Miller's exoneration. At a news conference last week, the Illinois state 
>attorney general apologized.
>It was not the first apology after a wrongful conviction. Jennifer Thompson 
>Cannino apologized to Ronald Cotton, whom she misidentified in 1984 after 
>she was raped in Greensboro, N.C. Cotton served nearly 10 years before he 
>was exonerated by a DNA test in 1995.
>Cannino, who is white, toured the country with Cotton, who is black, to 
>speak out against eyewitness identifications and composite sketches. She 
>said police helped influence her to choose the wrong man.
>"When you sit down and look at the choices in front of you, the hundred 
>noses, the hundred eyebrows, you try to get the best eyes, eyelashes, the 
>best lips," she said. "When the composite was finished and I was asked, 
>'Does it look like the man who attacked you?' I said, 'Yes, it looks like 
>the man.' "
>Guided by the composite, Cannino said she picked Cotton out of photographs. 
>"I did get verbal and nonverbal encouragement: 'Good job. Way to go,' " she 
>said. "In the lineup, I looked for somebody who looked like the photograph. 
>And Ronald Cotton was doomed."
>In a second trial three years later, she continued to insist that Cotton 
>raped her, even when the true rapist came forward. DNA testing confirmed 
>the second man's guilt.
>"Thank God the investigator in my case felt that he needed to hold on to 
>evidence," she said. "Had it not been for that, Ron Cotton would still be 
>in prison today."
>  'I Was Certain, but I Was Wrong'
>New York Times OP-ED Sunday, June 18, 2000
>     In 1984 I was a 22-year-old college student with a grade point average 
>of 4.0, and I really wanted to do something with my life. One night someone 
>broke into my apartment, put a knife to my throat and raped me.
>     During my ordeal, some of my determination took an urgent new 
>direction.  I studied every single detail on the rapist's face. I looked at 
>his hairline; I looked for scars, for tattoos, for anything that would help 
>me identify him. When and if I survived the attack, I was going to make 
>sure that he was put in prison and he was going to rot.
>     When I went to the police department later that day, I worked on a 
>composite sketch to the very best of my ability. I looked through hundreds 
>of noses and eyes and eyebrows and hairlines and nostrils and lips. Several 
>days later, looking at a series of police photos, I identified my attacker. 
>I knew this was the man. I was completely confident. I was sure.
>     I picked the same man in a lineup. Again, I was sure. I knew it. I had 
>picked the right guy, and he was going to go to jail. If there was the 
>possibility of a death sentence, I wanted him to die. I wanted to flip the 
>     When the case went to trial in 1986, I stood up on the stand, put my 
>hand on the Bible and swore to tell the truth. Based on my testimony, 
>Ronald Junior Cotton was sentenced to prison for life. It was the happiest 
>day of my life because I could begin to put it all behind me.
>     In 1987, the case was retried because an appellate court had 
>overturned Ronald Cotton's conviction. During a pretrial hearing, I learned 
>that another man had supposedly claimed to be my attacker and was bragging 
>about it in the same prison wing where Ronald Cotton was being held. This 
>man, Bobby Poole, was brought into court, and I was asked, "Ms. Thompson, 
>have you ever seen this man?" I answered: "I have never seen him in my 
>life. I have no idea who he is."
>     Ronald Cotton was sentenced again to two life sentences. Ronald Cotton 
>was never going to see light; he was never going to get out; he was never 
>going to hurt another woman; he was never going to rape another woman.
>     In 1995, 11 years after I had first identified Ronald Cotton, I was 
>asked to provide a blood sample so that DNA tests could be run on evidence 
>from the rape. I agreed because I knew that Ronald Cotton had raped me and 
>DNA was only going to confirm that. The test would allow me to move on once 
>and for all.
>     I will never forget the day I learned about the DNA results. I was 
>standing in my kitchen when the detective and the district attorney 
>visited. They were good and decent people who were trying to do their jobs 
>-- as I had done mine, as anyone would try to do the right thing. They told 
>me: "Ronald Cotton didn't rape you. It was Bobby Poole."
>     The man I was so sure I had never seen in my life was the man who was 
>inches from my throat, who raped me, who hurt me, who took my spirit away, 
>who robbed me of my soul. And the man I had identified so emphatically on 
>so many occasions was absolutely innocent.
>     Ronald Cotton was released from prison after serving 11 years. Bobby 
>Poole pleaded guilty to raping me.
>     Ronald Cotton and I are the same age, so I knew what he had missed 
>during those 11 years. My life had gone on. I had gotten married. I had 
>graduated from college. I worked. I was a parent. Ronald Cotton hadn't 
>gotten to do any  of that.
>     Mr. Cotton and I have now crossed the boundaries of both the terrible 
>way we came together and our racial difference (he is black and I am white) 
>and have become friends. Although he is now moving on with his own life, I 
>live with constant anguish that my profound mistake cost him so dearly. I 
>cannot begin to imagine what would have happened had my mistaken 
>identification occurred in a capital case.
>     Today there is a man in Texas named Gary Graham who is about to be 
>executed because one witness is confident that Mr. Graham is the killer she 
>saw from 30 to 40 feet away. This woman saw the murderer for only a 
>fraction of the time that I saw the man who raped me. Several other 
>witnesses contradict her, but the jury that convicted Mr. Graham never 
>heard any of the conflicting testimony.
>     If anything good can come out of what Ronald Cotton suffered because 
>of my limitations as a human being, let it be an awareness of the fact that 
>eyewitnesses can and do make mistakes. I have now had occasion to study 
>this subject a bit, and I have come to realize that eyewitness error has 
>been recognized as the leading cause of wrongful convictions. One witness 
>is not enough, especially when her story is contradicted by other good 
>     Last week, I traveled to Houston to beg Gov. George W. Bush and his 
>parole board not to execute Gary Graham based on this kind of evidence. I 
>have never before spoken out on behalf of any inmate. I stood with a group 
>of 11 men and women who had been convicted based on mistaken eyewitness 
>testimony, only to be exonerated later by DNA or other evidence.
>     With them, I urged the Texas officials to grant Gary Graham a new 
>trial, so that the eyewitnesses who are so sure that he is innocent can at 
>long last be heard.
>     I know that there is an eyewitness who is absolutely positive she saw 
>Gary Graham commit murder. But she cannot possibly be any more positive 
>than I was about Ronald Cotton. What if she is dead wrong?
>Jennifer Thompson is a homemaker in North Carolina and does volunteer work 
>with abused children.

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