Public hearing on eyewitness ID model policy

Photo via Slate

Yesterday as part of my day job, I attended a remarkable public hearing at the capitol by the Law Enforcement Management Institute of Texas (LEMIT) out of Sam Houston State University, held to accept comments on their draft model policy on police eyewitness identification procedures, which they're statutorily required to finalize by the end of the year. (I uploaded written comments on the policy from the Innocence Project of Texas, authored by yours truly, onto Google Documents, for anyone interested in more detail.)

A handful of law-enforcement interests were there with critical messages (most notably Houston police detective Mark Holloway, who held his witness card so he could testify at the end of the hearing without rebuttal). But the drama was provided by seven exonerees who between them had spent 169 years in prison for crimes they didn't commit based on erroneous IDs. I've now sat through perhaps two dozen or more hearings, meetings and other events over the years where these fellows or their fellow exonerees tell their stories, and it never ceases to be moving for me. I forget, though, how powerful these stories can be for folks hearing them first-hand for the first time. And they clearly had an effect on both the LEMIT staff and even the cops who testified. (Detective Holloway said with a sigh as he began his testimony that it had been a "rough afternoon.") LEMIT's Rita Watkins and several folks testifying apologized on behalf of the system to the exonerees.

As an aside, I can't tell you how proud I am of the exonerees who've consistently remained active as various innocence-related bills wended their way through the legislative process over the last several sessions, and now even at the level of implementation after the eyewitness reform bill passed. Yesterday those there were Charles Chatman, Johnny Pinchback, James Giles, Billy Smith, Christopher Scott, Cornelius Dupree, and Johnnie Lindsey. Their stories help ground such events - which could be dry and technocratic, if the cops had their way - in the real-world consequences that befall when the systems established to protect against false convictions fail to filter out erroneous testimony.

Perhaps even more dramatic was testimony from the very first witness, Michele Mallin, the rape victim who falsely identified Timothy Cole, along with Cole's half-brother Cory Session (my colleague at the Innocence Project of Texas). Cory told LEMIT that his family had reconciled with and embraced Michele because everyone knew that the false conviction resulted from a biased and flawed system, not any malice or ill-will on her part. The photo array Michele viewed wouldn't remotely pass muster under the new standards, and confirming statements by the police that she'd picked the right guy wouldn't have been allowed. She emphasized that she never knew about certain exculpatory evidence - e.g., that Timothy Cole was an asthmatic non-smoker while the man who raped her was a chain smoker. She pleaded with the LEMIT staffers - who were all attentively on the edge of their chairs - to use the best science possible in developing the policy.

Dr. Karen Amendola urged LEMIT to prioritize sequential administration (i.e., showing the photos one at a time), declaring that the recent million-dollar study (pdf) from the American Judicature Society (see Grits' discussion here) not only confirms virtually all the other research but in terms of methodology and resources is the best, most comprehensive field study we're likely to ever get. Houston PD Detective Mark Holloway lamented that there are only 7 field studies and 65 lab studies showing sequential presentation to be preferable, saying more research is needed. But Amendola told LEMIT there was plenty of research to go on now.

ACLU of Texas suggested that the language on interpreters be changed from requiring someone who is "fluent" to requiring certification as an interpreter, citing a couple of common certification bodies.

Rebecca Brown from the national Innocence Project has likely forgotten more about lineups and eyewitness identification issues than I will ever know, so I was especially glad she came into town to participate, walking the LEMIT academics through where their draft follows current research and best practices and where it veers off track. She emphasized that the body of the policy needed to be more detailed, that there's no reason to prefer live lineups over photo arrays (as the draft model policy inexplicably did), and that "fillers" should be chosen to match the witness description of the suspect, NOT the suspect themselves. She included a lot of other detail, as well, that I'm afraid didn't make it into my notes. (Advocates in Texas relied on the expertise of the national Innocence Project folks pretty heavily in vetting these policies, and I couldn't be more grateful for their enthusiastic assistance.)

A representative of Texas Association Against Sexual Assault was generally in favor of the policy but was worried that sexual assault victims might be uncomfortable if a lineup procedure is recorded. He suggested an opt out on recording specifically for sexual assault victims. The TX Police Chiefs Association expressed a similar concern about victims and recording lineup presentations.

I began my comments by reminding the LEMIT folks that modern memory research has found eyewitness evidence is in many ways a form of "trace evidence," and like other trace evidence it can be easily contaminated during the collection process. I offered a conservative guess that, according to the best estimates, somewhere between 2,000 to 3,000 innocent people are presently incarcerated in TDCJ, and faulty eyewitness identification was the cause in 75-80% of the cases.

I quickly walked through IPOT's specific concerns from our written comments, and in closing reminded the academics that, despite pleas for flexibility from law enforcement, their model policy will not be binding. Departments who think their special circumstances justify ignoring the science can adjust their local policies accordingly, but LEMIT is charged with creating a model based on the current science and best practices as they're presently understood. If they do that, they'll create a model not just for Texas departments but something that will have national import.

A couple of statements from LEMIT staff make me hopeful the current draft will be improved. Dr. Phillip Lyons spoke up specifically to say they planned to re-include much of the detail that had been omitted from an earlier draft circulated to the working group they'd convened in Huntsville, much of which had been relegated to an appendix. Doing so will allay quite a few concerns. And LEMIT chieftan Rita Watkins responded to the Detective Holloway at the end of the meeting to say they intended to stick with sequential presentation in their model policy because it's what the best science says to do at the moment.

If they follow that standard on the handful of decisions still confronting them (at least the ones raised at the hearing), Grits, and more importantly the innocence-related groups represented at the hearing are likely to be pleased with the final model policy. The devil is in the details, though, and you never know until the final version is released. Anyway, I left the event feeling optimistic about the process and content of the model policy so far.

You can watch the three-hour hearing online here.