Faulty lineup procedures led to conviction of innocent Dallas man for rape 23 years ago

There was much talk at the innocence conference in Plano about Thomas McGowan, who should walk out of prison today a free man after an improper photo lineup led to his wrongful conviction for rape more than two decades ago. See initial coverage at the Dallas News, and here are substantial excerpts from a press release issued by the Innocence Project:

Thomas McGowan, who has spent 23 years in prison for a Dallas County rape and burglary that DNA testing now proves he did not commit, is expected to be released from prison tomorrow, according to the Innocence Project, which represents him.

In two separate trials in 1985 and 1986, McGowan was convicted of aggravated sexual assault and burglary and sentenced to two consecutive life terms in prison. DNA testing on a rape kit collected from the victim proves that he was not the man who broke into her home in May 1985, stole several items and raped her.

A hearing is set for 1:30 p.m. Wednesday (April 16) before Judge Susan Hawk in 291st District Court, on the 7th floor of the Frank Crowley Courts Building (133 N. Industrial Blvd. in Texas). McGowan and his relatives – with Innocence Project Co-Director Barry Scheck and Staff Attorney Jason Kreag – will speak to reporters outside the courthouse after the hearing.

McGowan will be the 25th person in Texas – and the 13th person in Dallas County – proven innocent through DNA testing after eyewitness misidentification led to a wrongful conviction. (Click here for short background on each of the previous 24 cases in Texas where DNA testing overturned wrongful convictions that were caused by eyewitness misidentification.) Overall, 31 people have been exonerated through DNA testing in Texas, 14 of them in Dallas County.

“Thomas McGowan was in his mid-20s when he was arrested, and he’ll turn 50 later this year. He has lost nearly his entire adult life to a wrongful conviction that could have – and should have – been prevented,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “This is the 25th case in Texas where DNA proved that eyewitness identification was incorrect. How many more people need to lose years or decades of their lives before the state implements simple reforms that are proven to make eyewitness identification more accurate?”

The victim in McGowan’s case initially viewed a live lineup with three men who police thought might be suspects in the crime and three “fillers.” She did not identify any of the men as her attacker. Later, she was shown a photo array with seven photos – but there were effectively only three photos in the array, since two of them were photocopies of photographs, one was a black-and-white photo (all the others were in color), and one was marked “Garland Police Department” (while the remaining three were marked “Richardson Police Department,” which is where the crime took place). The victim said she “thought” the man in one of the three photos was her assailant, and the police officer administering the lineup told her “You have to be sure, yes or no.” When she testified in court, the victim recounted the officer’s instructions: “He said if I was going to say it was somebody, if I was going to say it was that picture, I had to be sure. He said I couldn’t think it was him. He said I had to make a positive ID. I had to say yes or no.” After hearing the officer’s instructions, the victim said the man in the photo – Thomas McGowan – was “definitely” the man who attacked her. The victim’s identification of McGowan was the central evidence against him.

Decades of scientific research show that instructions or feedback from an officer administering a live or photo lineup can significantly impact whether a witness identifies the wrong person.

“Just a few simple words can change everything. In this case, a few words from the police officer administering the lineup cost Thomas McGowan 23 years of his life,” Scheck said. “The officer forced the victim into certainty when she wasn’t sure whether Mr. McGowan was the perpetrator. While we sometimes hear of outrageous lineup procedures, improperly pushing a witness into certainty is much more common.”

By pushing the witness into certainty, the officer administering the lineup also apparently confirmed that she was selecting the man police suspected was the perpetrator. “If she had chosen one of the filler photos and said she ‘thought’ he was the perpetrator, the officer almost certainly would have told her that she should move on if she isn’t sure. Instead, the officer’s statements induced her to identify Mr. McGowan,” Scheck said.

The officer administering the lineup should have asked the victim to describe in her own words how sure she was that the man in the photo was the perpetrator, and all of the photos in the array should have been similar (so that the victim didn’t rule out several of them immediately). These are among the practices that have been shown to reduce the chance of incorrect identifications, based on social science research and best practices developed by police departments nationwide. Witnesses should be told that they will be asked to describe, in their own words, how confident they are in selecting a suspect, and they should also be told that the perpetrator may not be in the lineup and the investigation will continue if they are unable to identify someone in a lineup. Live or photo lineups should also be administered by an officer who does not know who the suspect is and who the “fillers” are. When live or photo lineups are administered by an officer who doesn’t know which photo is the suspect, the officer is not able to lead the victim into identifying anyone. ...

Before his arrest, McGowan graduated from Ryder High School in Wichita Falls, Texas. His photo was in the police system because of a minor traffic violation. While in prison, he took vocational courses and worked as a custodian. After his release, he plans to live in Dallas County with relatives.

In addition to Scheck and Kreag, Robert Hinton is co-counsel on the case. Cardozo School of Law clinic students Alisa Levien and Kristin McDermott worked on the case at the Innocence Project. DNA testing in the case was conducted by Orchid-Cellmark.

Innocence Project of Texas Executive Director Natalie Roetzel and Senior Counsel Jeff Blackburn will attend Wednesday’s hearing, along with several Dallas County men who have been exonerated through DNA testing in recent years.