Thursday, March 17, 2011

Texas Senate approves eyewitness ID legislation

State Sen. Rodney Ellis' eyewitness ID legislation passed the Texas Senate yesterday unanimously, with Ellis moving to pass the bill in the memory of Timothy Cole. See coverage from:
The bill plugs a gaping hole in the public-policy landscape at local police departments, requiring the creation of written policies (88% of departments don't have them) and airing the inadequacies of lineups in court when agencies don't follow them. The bill would also commission the Bill Blackwood Law Enforcement Management Institute at Sam Houston State University to commission a model policy for guidance based on established best practices, but departments are free to deviate as they see fit. I know criminal defense attorneys who are disappointed with the "remedy" for noncompliance: They can tell jurors, but there's not an explicit jury instruction, much less suppression of witness identification, if written policies aren't followed. In that sense, it's a "weak" bill in terms of what new tools it grants the defense bar in court. But in terms of actually preventing false identifications, putting established procedures in writing is a big deal, since after all the vast majority of criminal cases don't go to trial.

Changing what happens at the street-level in law enforcement can be as much about changing attitudes as rules. In many jurisdictions, the necessity of enacting a policy will force departments to think concretely about eyewitness identification issues for the very first time. As that happens, one hopes that discussion behind the scenes in agencies across the state will greatly assist in changing the ground-level culture of how lineups are handled. After all, it's not like most cops want to pick the wrong guy.

Will the bill stop misidentifications? No. Such errors occur too frequently, and in fact are far and away the leading single cause of false convictions. Memory plays tricks and errors happen too often. But the legislation would establish some baseline uniformity and professionalism regarding how lineups are handled, taking important first steps that wouldn't otherwise happen at most agencies without a law.

See related Grits posts:


Anonymous said...

Those eyewitnesses didn't really see what they claimed they did. If people would only understood that, we could open the doors to the prisons and set the innocent free.

Anonymous said...

" I grew up watching Perry Mason, and I knew when the victims saw me in court they would say, that is not the guy" besides he went on "justice always prevailed" these are the words of a man who spent nearly 3 decades inside a Texas prison for a crime he did not commit...

Those are the words of my friend Cornelius Dupree, he spoke them to me on a rec. yard 3 years ago and they still ring in my ears, only today they carry a different weight. They now carry the weight of legislation. Cornelius your faith, truth and courage are now part of Texas Criminal Justice legacy.... Perry Mason would of been proud of you.

Anonymous said...

I never believe an eyewitness.

Gritsforbreakfast said...

"I never believe an eyewitness."

Most are reliable, the question is can you trust just one to such a degree that it is proof beyond a reasonable doubt?

In the Bible, Moses, Jesus and the Apostle Paul all said there should be at least two witnesses to sustain a conviction for any offense. (See links to references compiled here.) Witness unreliability was partly why. People make mistakes. Some also make false accusations for self interested reasons, like snitches (e.g., Judas exchanging an eyewitness ID for 30 pieces of silver), but that's a separate issue.

Anonymous said...

Like in some of countries where if a man didn't witness a rape the word of a woman was inadmissible.

How many criminals wait for a quorum of two witnesses before acting?

Anonymous said...

Like in some of those countries where, if a man didn't also witness a rape, the word of a woman was inadmissible.

How many criminals wait for a quorum of two witnesses before acting?


Thomas R. Griffith said...

Hey Grits, regarding the unreliability of a single eyewitness and the need for additional eyewitnesses. The following is long as to avoid being vague.

My HPD Police Incident Report is a poster child for some of the reasons as to why it really doesn’t matter if this bill is weak or strong due to failing to address enhancing penalties for knowingly and willingly filing a false report and/or subsequent aggravated perjured testimony by crime victims. Despite this, I’m very happy to see Texas trying to “do the right thing” vs. it just being some sick D. A’s. in house motto.

Here is an example: the robbery victim is shown to have described the gunman (pg. 2.003) as a white male with a black .22 or .25 cal revolver with a two inch barrel, 5’09, 140 lbs., straight black shoulder length hair, with no mustache and no additional witnesses listed. Two days later he is shown “positively” identifying a white male, 5’10, 125lbs., wavy sun-streaked brown collar length hair, with a mustache. He “tentatively” identified the person test driving my fathers vehicle as one of the three suspects as: white male, 6’01, 180 lbs. straight black short hair despite his DL and police photo showing him as 6’, 165 lbs., with curly blond short hair.

Moments afterwards, one of the (4) detectives (Mr. John W. Clinton turned lawyer, turned Judge) is shown confronting him about ‘one’ of the gross discrepancies the ‘black’ hair (pg. 2.009). The crime victim is shown changing the descriptions to: “…the gunman had brown hair, straight and medium long.” “The taller suspect had blond wavy hair and the third had dark brown hair.” This is where the taxpayer and voter would assume that no charges could be filed and the detectives would send everyone home as they continue to investigate. Wrong. The crime victim says, “there is another person that saw the three”, whom is shown to have later “positively” identified the gunman from a photo array.

Mr. Clinton is shown on (pg. 2.008) talking it over with the DA and charges were expected. At trial, the crime victim pointed at me and said, “that’s him but his hair is different.” Combine that with the fact that Judge Hearn allowed ADA. Mr. Casey J. O’Brien to place a black .38 cal. Rohm revolver with a 5 or 6 inch barrel in front of the jury and you see a criminal justice system chocked full of corrupt individuals hell bent on “doing the right thing.” Ad this to the Divorce & Will attorney (Mr. Danny Jackson) that allowed himself to be retained by my family despite never, ever, ever handling a felony case much-less taking one to a jury trial and you see a stacked deck.

To this day I’m still asking the same old questions: *Is it ok if 5 Discovery Motions filed on my behalf 30 days before the trial date to contain ‘Orders” that were never Agreed upon or Denied by the presiding judge? *Is it ok for the ADA to display a bazooka or a grenade before a jury in a case involving a butter knife? *Is it ok that there are no records showing where O’Brien obtained this ‘Mystery’ gun from, where it was ‘checked out’ from, where it was checked back in, where it was stored for 10 years and the method / location of its destruction? *Is it ok that charges were sought and filed despite the gross descrepentcies in the descriptions and the victim changing the ‘original’ to a set that still isn’t even close?

Sadly, the most disturbing of all is that since the case has nothing to do with Minorities, DNA, Death Row or an Open Case, is fails to be considered for re-vetting and was denied a Regular Full Pardon and never qualified for a Full Pardon –for innocence. So as you can see, it’s the historically and systematically ignored Victims of the System that will have the hardest time accepting the fact that a weak-ass Bill will prevent history from repeating itself while the taxpayer blindly picks up the tab. I guess something is better than… I can’t say it. Thanks.

Gritsforbreakfast said...

How 'bout corroboration for a single witness? Maybe the second witness is a crime lab expert. The point being, when the witness didn't previously know the defendant, one datapoint is simply inadequate.

Unknown said...

If that's not legislation of the healthiest sort, I'll just ship off and join the movers in Vancouver. Anything that can help innocent people be freed from false identifications and life altering consequences is a plus.