Forensic hypnosis largely dead in Texas but junk evidence still travels like zombies through the court system thanks to the CCA

Exciting news: Texas DPS has ended the use of forensic hypnosis among the Texas Rangers, the Forensic Science Commission's Lynn Garcia told the Texas Homeland Security and Public Safety Committee yesterday. Your correspondent broke the news on Twitter; see Dallas News coverage here. 

The Dallas News had previously reported that the Texas Rangers and the Harris County Sheriff's Office were the last agencies in the state with peace officers carrying hypnosis certifications. Those must be renewed every two years. But Harris County Sheriff Ed Gonzalez said on Twitter his agency doesn't use it anymore, either, so it's possible the last practitioners of forensic hypnosis in the state are all now offline. Certainly the most prolific among them at the Texas Rangers have been permanently benched.

There was a time not long ago when this practice was more widespread; today, it's largely a source of derision and few if any agencies practice it any longer. It was the junkiest of junk sciences I've ever encountered, and Grits has seen some.*

Still, discredited though it was, Texas officials weren't about to ban this junk science technique from the courtroom. The Forensic Science Commission determined they had no jurisdiction to consider hypnosis. Legislation was filed in the Texas Senate in 2019  to banish the practice from courtrooms, but, the committee chair wouldn't give it a hearing. Then the technique was challenged under Texas' junk-science writ, which should have been the end of it. But it was a death penalty case and the Government Always Wins faction on the Court of Criminal Appeals flexed their muscle, declining to apply the writ without giving an explanation.

After the US Supreme Court declined to take up the issue - unsurprising, since the junk-science writ is a state law with no explicit federal skin in the game - efforts to banish forensic hypnosis appeared to be stymied.

The decision by DPS to end the practice came like a bolt from the blue; most folks thought they wouldn't end it unless they were forced to do so. Apparently, someone internally simply decided the technique could no longer be justified. I'd love to know the backstory (off the record tips welcome!). The hypnosis program apparently ended in January but the agency never announced it.

Your correspondent takes some pride at raising the profile of this issue. In the Texas political realm, the topic was first raised in a 2017 Reasonably Suspicious podcast segment brought forward by my co-host Amanda Marzullo on the Charles Don Flores case, the one that SCOTUS later declined to review.

This piqued my interest and Grits followed up with a research primer on the subject that exposed the charlatanism underlying the practice. I purchased a copy of the book used to train forensic hypnotists under TCOLE's training curriculum. It included favorable references to occult practices like "automatic writing," portrayed memory as the equivalent of a videotape that hypnotists could simply play back, and encouraged "age regression" to recall long-ago events. Mandy and I began to follow the Flores case on the podcast.

I pitched the story to Lauren McGaughy at the Dallas News who ably picked up the ball, first publishing a preliminary assessment in 2018. This raised the profile of the topic in state government - helping me convince state Sen. Juan "Chuy" Hinojosa to file his roundly ignored legislation in 2019. Meanwhile, the courts were mimicking the iconic monkeys who see, hear, and speak no evil. 

Then, last year, the Dallas News published a major two-part feature McGaughy co-reported with Dave Boucher called "The Memory Room." They spent months pursuing open records requests and dove deep into DPS practices and TCOLE records, revealing details no one outside those agencies knew. It was hard to imagine how responsible decision makers, after reading this damning assessment, could continue to let cops hypnotize witnesses.

Still, Grits wasn't sanguine the Legislature would even take up the topic; the same chairman who wouldn't give the bill a hearing still runs the committee, and the Court of Criminal Appeals' failure to take up the cause seemed to have shunted the issue to the back burner for state government. 

DPS ending its hypnosis program changes the landscape, surprising all observers and opening up new opportunities. If neither they nor HCSO any longer use hypnosis, Texas can now shut down the practice entirely. Reported McGaughy, "Texas remains the only state known to have an active certification program for law enforcement officers to learn hypnosis and is also the home to likely the nation’s only extant police organization for investigative hypnotists."

There's no need for that certification program now and the Legislature should eliminate it as part of the TCOLE Sunset bill. This is EXACTLY the sort of thing the Sunset process was created to do: Extinguish outdated, anachronistic, and unnecessary programs.

Here's the rub: Even if the Legislature ends the certification, there are still numerous cases - nobody knows how many, but including Mr. Flores' death-penalty case - marching forward through the system like zombies based on past convictions secured using this practice, and more people locked up in TDCJ or on parole whose convictions were tainted by the same junk science.

I'm not a lawyer but Grits doesn't know if there's any way to help those folks if the CCA won't apply the junk-science writ. I suppose the Forensic Science Commission's jurisdiction could be expanded to evaluate this now-mostly-dead forensic method so that courts would have a basis to revisit it. But that's an open-ended, speculative process that could take years. It seems like waste of time when the CCA could already have done the right thing, and still could.

Grits' takeaways: The Texas Legislature should both abolish the hypnosis-certification program (TCOLE's Sunset review is remarkably well-timed for this purpose) and expand FSC jurisdiction to evaluate forensic hypnosis. The Texas Rangers may have stopped using this particular junk-science technique, but the topic won't finally go away until the courts do.

* I was Policy Director at the Innocence Project of Texas for 8 years and conceived of and negotiated with prosecutors to pass Texas' junk-science writ. The only bogus "science" I've seen that's arguably as junky as forensic hypnosis was dog-scent lineups, and the CCA got rid of that abomination.

CCA passes on judging forensic hypnosis, paroled but still imprisoned, Ken Paxton's 'lonely and misguided' crusade, and other stories

Here are a few odds and ends that merit Grits readers' attention:

On the absurdity of keeping 15k already-paroled prisoners in TDCJ so they can do treatment by correspondence

The Marshall Project's Beth Schwartzapfel has a story on an ongoing problem that's taken on new life in the coronavirus era: More than 15,000 Texas prisoners have already been paroled but can't leave prison because they haven't completed required treatment programming and the state underfunds it so badly there's a massive waiting list. This is pointless and stupid in the best of times, but at a moment when 1,299 TX prisoners have been diagnosed with COVID-19 and another 48,674 inmates are on precautionary lockdown because of the virus, it makes even less sense. According to the article, TDCJ has already stopped doing these treatment programs in person and has switched to correspondence courses where prisoners work on written packets in their cells. If that's the case, why not parole them and let them complete the packets at home?

Ken Paxton's 'lonely and misguided crusade' against Rosa Jimenez

Attorney General Ken Paxton won't drop his federal appeal in Rosa Jimenez's habeas corpus writ, even though DA Margaret Moore has finally, belatedly, acknowledged that the evidence used to convict her was flawed and she deserves a new trial. What a strange situation! Moore's position is hardly progressive. She insists she will retry Jimenez despite the fact that the forensics used to convict her was flawed and there was no other accusatory evidence in the case. But Paxton's position is nonsensical; a Statesman editorial dubbed it a "lonely and misguided crusade." All sides have briefed Judge Lee Yeakel, with Paxton arguing for maximum harshness. Her attorneys, by contrast, "urged Yeakel to allow Jimenez to leave prison on a personal recognizance bond while the appeal continues, arguing that COVID-19 puts her life at risk because she has stage 4 kidney disease." Grits has no idea what Paxton thinks he's trying to accomplish here. It's one of the weirdest legal postures I've seen a Texas AG take in the three decades I've been following state politics.

Man exonerated of drug charges after DNA evidence disproved faulty eyewitness testimony 

In Houston, James Harris has been exonerated of drug charges eleven years after his false conviction based on erroneous eyewitness identification. DNA testing finally exonerated him. Long-time Grits readers know that the Legislature enacted solid guidelines for how police conduct eyewitness identification procedures, but Texas courts have ruled that such testimony still can be used to convict even if police do not follow them. Harris was both more persistent than most people, pursuing the case for years after he got out of prison, and also incredibly lucky that DNA evidence, which is unavailable in most cases, was able to exonerate him. Most people who're falsely convicted under these circumstances have no way to clear their name.

CCA judges decline to judge forensic hypnosis

The Texas Court of Criminal Appeals declined to rule on the merits of forensic hypnosis in the case of Charles Don Flores. Instead, they said he could not use the state's junk-science writ to challenge his conviction, but did not articulate a reason why - classic outcome-oriented judging to uphold an execution from the Government-Always-Wins faction on the court. See their ruling, coverage from the Dallas Morning News, and prior Grits coverage of forensic hypnosis rounded up here.

COVID cases in Texas jails continue to skyrocket

As the number of state prisoners diagnosed with COVID continues to rise, so too does the number in county jails. As of Monday, 5/4, Texas jails were up to 980 inmates diagnosed with the virus, according to the Texas Commission on Jail Standards, up from 142 on April 17. That's a 590% increase in about 2-1/2 weeks. Harris County, which leads the state in inmates diagnosed with COVID at 449, just reported its first inmate death from the virus.

Overdoses spike nationally

Grits had mentioned earlier Travis and Williamson Counties had seen a spike in opiod overdoses. It turns out, the same is true nationwide, in part attributable to lack of access to treatment services thanks to the COVID shutdown. This article from The Daily Beast provides more detail.

Innocence Project Math 101: Why it's certain eyewitnesses are still sending innocent people to prison in Texas

Our friends at the prosecutor association want to pretend Texas has solved its problem with eyewitnesses falsely identifying innocent suspects after the state passed non-binding guidelines for police lineups in 2011. Shannon Edmonds last night was crowing on Twitter that the last exoneration based a false ID in Texas was in 2010, and the state had solved the problem in 2011.

This is such a disingenuous claim I thought I'd dissect it without the 140 character limitations.

Texas hasn't seen more eyewitness-based exonerations because we've run out of old DNA cases. Those offered a unique window onto false convictions from which we have learned many lessons. But now that there aren't more of them, it's disingenuous bordering on mendacious to pretend that there aren't more false convictions happening.

All of the false ID cases where someone was exonerated by DNA happened because biological evidence still existed from an old, pre-DNA-era conviction that was available for testing. In new cases, DNA testing will (eventually, hopefully) happen as a matter of course where that's possible. Those DNA exonerations were a one-time thing: A window onto the system's failures provided thanks to the advance of technology.

But here's the rub: DNA evidence only exists in about 10 percent of violent crimes. And in those older cases, in the overwhelming majority of instances, biological evidence had been destroyed or damaged and could not be tested. Evidence was only available in a tiny fraction of cases, and even then, prosecutors fought tooth and nail to keep from having it tested. So for every person exonerated by DNA, there are dozens more whose false convictions could never be discovered because the evidence doesn't exist.

This is Innocence Project Math 101.

The existing crop of DNA exonerees is not remotely all the innocent people who've been falsely convicted, they're just the lucky few who could prove it.

DNA exonerations should be viewed much like a poll. A pollster may interview 500 people to gauge the opinions of 5 million. Because we know there are other criminal cases using the same, flawed evidence as in the exonerees' cases, we can infer that the problem exists more broadly in the same way a pollster can say that X% of people approve or disapprove of the president based on a small sample.

What we learned from that DNA "poll" is that faulty eyewitness IDs are the most common causes of false convictions. And studies show that those errors are reduced, but not remotely eliminated, if cops use the best practices promoted in the 2011 Texas legislation. Error rates are still significant.

Because the same practices that caused false convictions in the DNA exonerations are still being used (the guidelines are not mandatory) - and because best practices only lower the error rate, they don't eliminate it - it's a logical fallacy of the highest order to pretend that, because DNA exonerations have stopped, so have false convictions. They've just become invisible again without the fortuitous window DNA provided.

TDCAA was reacting to a New York Times story about false identifications when suspects are allowed to page through mug shot books, as is common in many jurisdictions across the country. Dallas PD was identified as a department that forbids the practice because it leads to false accusations.

The story cited a study out of Houston which analyzed whether photo lineups should be simultaneous or sequential and whether confident witnesses are more likely to be accurate. Study authors parsed data to say that simultaneous is probably better and confident witnesses are more likely to be accurate - a finding they admit contradicts "[l]aboratory-based mock crime studies."

Shannon disputed the Times' take on that research, quoting the study authors' conclusions that “eyewitness confidence is a highly reliable indicator of accuracy.”

However, there's a LOT of error still being made by witnesses: The Times mentioned one cohort in the Houston study in which 47 percent picked the wrong suspect, but overall, 29 percent of witnesses chose a filler from the lineup, while 32 percent chose a suspect. (The Times also pointed to a meta-analysis of a large number of studies that found witnesses pick the wrong person 37 percent of the time.)

One shortcoming of this analysis: The study operated under a baseline assumption that if the suspect is chosen, it's an accurate ID. That's a dubious, self-fulfilling prophecy. Some of those choices were likely errors, too. When a suspect picks a filler, the detective knows it's wrong. The innocence problem arises when the wrong suspect is in the lineup in the first place and a witness picks them.

Confident witnesses were more likely to pick the person the officer considered a suspect, but there were also less confident witnesses who did so, and some highly confident people picked fillers.

And some of the error was generated by police.

The Houston study evaluated both "blind" and "blinded" lineups. "Blind" means the officer prepares the array and shows it to the witness in a fashion so that they can't view what the witness is looking at. "Blinded" means one officer prepares the array and another detective who does not know the identity of the suspect administers it. Both methods are allowed under Texas law.

It turned out, an independent panel not involved with the crime could pick the suspect out of "blind" lineups 28 percent of the time! (It would only be 1/6 if it were random.) So the arrays themselves were biased. Researchers hypothesized that cops took more care to prepare photos where the suspect doesn't stand out if they know another officer will see their work.

Texas courts won't exclude even the most biased lineups. For example, in 2017, Grits discussed a case in which the witness described a suspect as wearing a red hoodie, and police made him put one on before having his photo taken; he was the only one dressed that way in the photo array. But the 14th Court of Appeals said the testimony was okay because the Legislature made eyewitness procedures guidelines instead of requiring them, and courts had always let it in before.

It's not that reformers didn't want best practices to be mandatory back in 2011. But the DA's association and law enforcement interests fought vigorously against it, and the Lege bowed to their wishes. Hence, biased lineups continue to taint the system. That's what's disingenuous about TDCAA's faux concern over valid lineups - they're the ones whose regressive advocacy ensured bad lineups would continue to be used in court, even after the 2011 law.

RELATED: From the New York Times: "Jazmine Barnes case shows how trauma can affect memory."

November Reasonably Suspicious Podcast: Let me be your lawyer dog, or I won't be your man at all ...

Check out the November edition of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice policy and politics. We're coming out a little early this month to keep things on the right side of the Thanksgiving holiday. You can listen to the latest episode here, or access it on all the usual channels: iTunes, Google Play, YouTube, or SoundCloud.


If you haven't subscribed yet, take a moment to do so now to make sure you won't miss an episode. Topics this go-round include:

Top Stories

• The Louisiana Supreme Court said a man who told police "Why don't you just give me a lawyer, dawg?" wasn't really asking for a lawyer. But this is common. A recent Texas case denied an attorney on the same basis.
• Risk assessments have come under fire from liberals for generating racial disparities. What are the implications for using them as part of Harris County bail reform?

Game Segment: Tea Leaf Reading
Looking forward to criminal-justice-related interim charges at the Texas Legislature.

• Appropriate treatment, services to offenders aged 17-25 to reduce recidivism, future crime. (See an earlier podcast segment on the topic.)
• Ineffective Assistance of Counsel: Front-end and back-end solutions.

Death and Texas

• US Supreme Court hears oral arguments in Ayestas v. Davis, seeking funds for investigation into an ineffective assistance claim.
• A state district court considers Ex Parte Flores in which the key eyewitness was subjected to hypnosis before changing her ID of the suspect. She at first told police the suspect was a white man with long hair. Mr. Flores is an Hispanic man with short hair.

The Last Hurrah
Rapid fire quick takes:

• USDOJ deleted 70% of tables from the newest edition of the national Uniform Crime Reports.
• A new study says police bodycams haven't changed police behavior. Why is that?
• Rent to own furniture companies as modern debtors prisons.

Governor signs omnibus innocence bill to track informants, record interrogations

Governor Greg Abbott today signed HB 34, Texas' latest omnibus innocence legislation. Grits explained in this post why the eyewitness ID reforms are minimalist, at best, and avoid confronting the reasons flawed identifications still make it into court. In the latest Just Liberty podcast, Mandy Marzullo had this to say about the other key provisions from the bill:

[The] two big provisions that you want to pay attention to are the provisions that deal with recorded interrogations.  Going forward right now, law enforcement will have to record all of their custodial interrogations that deal with major felony offenses which is a huge coup.  Although a lot of law enforcement agencies say that they record their interrogations as a matter of best practice, what this means is that they have to do it.  And, they have to do it every time.  So, it’s a big deal for Texas.

The other issue is informant reform, another big piece of this legislation that requires district attorney’s offices track their use of informants. ... Informants are typically people who are in the jailhouse who report to law enforcement that a defendant confessed to a crime.  And, they testify to this confession.  So, as you can tell, just from the outset, you’re dealing with someone who does not have firsthand knowledge of an offense.  So, it is highly unreliable information to begin with.  And then, it’s incentivized testimony that usually they’re giving their testimony in exchange for some benefit.  And what the tracking does is it allows us to know how often the same person is getting favorable treatment from the prosecution.

Court trends advise tempered enthusiasm for HB 34 eyewitness ID reforms

Does this sound like a suggestive photo array to put before a witness?

A witness described being robbed at gunpoint by a “[b]lack male, around 6-foot tall, 160 to 170 pounds, wearing a red hoodie and dark pants.” A suspect is arrested who wasn't wearing a red hoodie but had one in his bag. In the photo array shown to the witness, the suspect was wearing a red hoodie but the others were not. The witness picked out the suspect, but on cross-examination admitted her "best memory" of the defendant was of his red hoodie. On re-direct, the prosecutor gets her to say she clearly remembered his face as well and that was the basis of her identification.

This is the kind of suggestive lineup that, when your correspondent was Policy Director for the Innocence Project of Texas, we found to underlie false convictions of exoneree after exoneree. But the Fourteenth Court of Appeals found that lineup was permissible in Fisher v. State. And though IANAL, Grits considers it perfectly in line with Texas Court of Criminal Appeals jurisprudence on the topic. They've created a five pronged balancing test and flagrantly ignoring one of the prongs is generally outweighed by even minimal compliance with the others.

That's what makes Grits pessimistic, sad to say, that changes to the law passed this session regarding eyewitness identification standards will keep questionable IDs out of the courtroom. As Elizabeth Loftus, a pioneer of experimental research on eyewitness identification, wrote in her classic text, Eyewitness Testimony (p. 9): "Juries have been known to accept eyewitness testimony pointing to guilt even when it is far outweighed by evidence of innocence." That's been true of several prominent Texas exonerations in which jurors believed erroneous eyewitness testimony over valid alibi testimony. So keeping flawed and biased eyewitness testimony out of earshot of jurors is the only real way to prevent the error.

Under HB 34, the model policy recommended to Texas law enforcement agencies would require that photos in a lineup array:

(i) are consistent in appearance with the description of the alleged perpetrator that was provided by a witness; and
(ii) do not make the suspect noticeably stand out;

But that's only a recommended policy, they're not obligated to adopt it. And as the 14th Court of Appeals pointed out, "the clear weight of Texas authority" leans toward allowing identifications into evidence, even when lineups exhibit those obvious flaws. In Fisher, the defendant was the only person in the lineup wearing a red hoodie similar to the one described by the witness in a statement. Indeed, since he wasn't wearing the hoodie when he was arrested, police appear to have had him put it on for purposes of taking the photo. So making the subject stand out because of the hoodie may even have been intentional. No matter. Though IANAL, Grits sees nothing in HB 34 which would cause Texas courts to begin excluding testimony based on these sorts of flawed ID practices.

The Texas District and County Attorney Association's brief commentary on the case demonstrates how easy it would be to avoid these problems:

Good procedures at your jail can ensure that the photos used in lineups aren’t subject to attack this way. The modern trend seems to be the use of a towel or smock to ensure that witnesses don’t fixate on the shirt worn by the suspect.

Even so, the Court of Criminal Appeals has balked at excluding testimony based on suggestive IDs, despite evidence that they underlie so many false convictions. And the Legislature has refused to put teeth into eyewitness ID reforms by applying Texas' statutory exclusionary rule when proper procedures aren't followed. So Texas courts go forward knowing that some percentage of erroneous IDs and false convictions could be prevented if the Legislature or the CCA would just put their foot down.

Making it all advisory, suggested policies, etc., without having the exclusionary rule apply or even requiring jury instructions when suggestive lineups are allowed into evidence means these reforms don't have a lot of teeth. One supposes they contribute to a general professionalizing trend in law enforcement, but they explicitly don't require it. And judging from the workaday ruling in Fisher v. State, the courts aren't about to demand it on their own.

Three good bills in CrimJur committee Monday

Looking at the agenda for Monday's Texas House Criminal Jurisprudence Committee, here are three items which merit Grits readers attention. (Not that there aren't other important bills up that day, these just jumped out at me as particularly noteworthy.)

First, the big innocence-related bill of the year:

HB 34 (Smithee) Relating to measures to prevent wrongful convictions. This bill came out of the Timothy Cole Exoneration Review Commission recommendations and is being carried by that group's chair. It requires tracking and disclosure of confidential informant arrangements, recording of custodial interrogations, and requires law enforcement agencies to adopt the model eyewitness ID policy created by Sam Houston State's Law Enforcement Management Institute of Texas (LEMIT) instead of each coming up with their own. These are modest but important reforms, the most obvious next steps in the Legislature's decade-long, bipartisan effort to prevent false convictions.

Grits is also a big fan of another bill on the agenda Monday, HB 1465 (Moody) which tells judges to waive court costs if they determine a defendant is indigent. This makes loads of sense. If they're indigent, after all, they cannot pay.

One passing thought, though: On the House floor, Rep. Andrew Murr included an amendment to HB 351 (Canales), which earlier passed out of the same committee, to say courts could charge a "reasonable" fee if they assign an indigent person community service. Language in those two bills may need to be reconciled if both make it all the way through the process.

Finally, this blog doesn't generally follow capital issues, but I'm interested in HB 3054 by Herrero/Smithee requiring unanimity changing faulty jury instructions for imposing the death penalty in capital cases and allowing lawyers to inform the jury of the implications if they can't agree. (Presently, that's not allowed.) As it happens, yesterday Grits met a gentleman who announced he's from the "Fully Informed Jury Association." He was a conservative at the capitol for the asset-forfeiture subcommittee hearing. I know next to nothing about his group, much less if they're even aware of HB 3054, but it's almost like informing jurors about the power they wield is a theme in the air this week. I'm looking forward to hearing debate on this bill Monday.

A first look at Exoneration Review Commission recommendations

See the new report from Texas' Timothy Cole Exoneration Review Commission, released this week. Let's review their main proposals:

ELECTRONIC RECORDING OF INTERROGATIONS 

I. Require either audio or audiovisual electronic recording of interrogations by law enforcement agencies when investigating all felony cases. 

II. Require recording to begin when the suspect enters the interrogation room. 

III. Enforce compliance with new recording requirements by permitting the admission of an unrecorded statement only if the judge finds good cause for the failure to electronically record the statement, and establishing a presumption that an unrecorded statement is inadmissible as evidence if the judge finds that no good cause exception applies. 

This is a much needed reform. According to the report, 68 percent of Texas law enforcement already have capacity to record some interrogations. So this recommendation would pick up those other stragglers and make the policy's application uniform across the state.

The commission recommended recording interrogations for all felonies instead of only serious violent felonies, as suggested in compromise legislation that failed in the past. But, as a dissenter pointed out, given how cheap and ubiquitous recording equipment is in the 21st century, there's really no good reason not to do it for misdemeanors, too. This is as much a best-practice as a reform, since recorded statements from a witness are superior evidence to written confessions. A stakeholder survey whose results were published in the report found that 88 percent of judges and 85 percent of police at NON-recording agencies thought recorded interrogations were beneficial; 72 percent of prosecutors and 70 percent of defense attorneys agreed.

FALSE ACCUSATION/INFORMANT REGULATION  

I. Require prosecutor offices to have written policies on tracking and disclosure of impeaching information on jailhouse informants.  

II. Permit the admissibility of jailhouse informants’ complete criminal history, including criminal charges that were dismissed or reduced as part of a plea bargain. 

III. Require prosecutor offices to establish an internal system to track the use of jailhouse informants including, but not limited to, cases in which the jailhouse informant offered testimony and the benefits provided in those cases. 

These important suggestions represent the minimum necessary just to evaluate the problem. Transparency is a first step toward reform, not an end game. But these would be a good start. The Tarrant County District Attorney, the report noted, implemented precisely this sort of tracking system in June 2016.  In Grits' view, there's no reason to limit such a tracking system to "jailhouse informants," but instead anyone who trades testimony for leniency should be included in the system.

OTOH, they famously had such an informant tracking system in Orange County, CA, too, they just used it to aide in perpetrating abuses instead of documenting and rectifying them. So, while tracking informant use is a fine suggestion - and I believe the information generated could better inform a future round of more substantive reforms - these recommendations won't prevent some of the worst abuses which arise from prosecutors trading dismissals or sentence reductions for testimony.

FAULTY EYEWITNESS IDENTIFICATION  

I. Require training for law enforcement officers on eyewitness identification procedures. 

II. Require making juries aware of prior identifications of the suspect by the witness when an in-court identification is made.  

III. Require law enforcement agencies to adopt the Bill Blackwood Law Enforcement Management Institute of Texas Model Policy. 

Here, Grits wishes the commission had dug in more deeply. The biggest problem with the eyewitness ID law we passed in Texas is that there's no enforcement mechanism. If police don't follow best practices, the questionable ID cannot be excluded. And the statute includes no jury charge or other mechanism to highlight the use of problematic testimony to a jury, whom studies show are highly likely to accept eyewitness identifications as "gold standard" testimony. A recent dissent from Court of Criminal Appeals Judge Elsa Alcala demonstrated how and why problematic ID practices have been allowed to continue by Texas courts even after reform legislation had passed. In that case, an identification was allowed even though the defendant was the "sole one in the photo array matching the physical description of the shooter."

Grits isn't saying these recommendations are bad ideas; I support them. But it's one thing to require agencies to put good policies down on paper, and quite another to penalize them effectively if they then choose not to follow them. That's where Texas has fallen down.

FORENSIC SCIENCE PRACTICES  

I. Encourage the Texas Forensic Science Commission to investigate and consider promulgating policies regarding the use of drug field tests used by law enforcement agencies.  

II. Encourage the Texas Forensic Science Commission to investigate and consider promulgating policies regarding the process of crime scene investigations.  

III. Recommend that crime labs in all cases moving forward complete testing of substances in all drug cases regardless of the results of a drug field test, and that crime labs go back through previous cases in which the collected substance was not confirmed by lab testing.

These recommendations are aimed at the exonerations out of Harris County of drug defendants accused by faulty field tests. Many defendants have been falsely accused, jailed, and pled guilty to get out before the crime lab could reach exonerating results, sometimes months or even years later.

Again, Grits finds these recommendations too tepid. Perhaps most critically, they made no suggestions for rectifying notification issues regarding large-scale forensic errors. Many defendants never discover they might be eligible for habeas corpus relief, and there are plenty of systemic actors - especially among tuff-on-crime prosecutors and the Government Always Wins faction at the Court of Criminal Appeals - who would prefer they never do. The first step toward securing justice for them would be to make sure they're aware of their situation.

On the failures of Texas' eyewitness ID reform, when innocent people plead guilty, pondering immigration policy, and other stories

Here are a few odds and ends to clear Grits' browser tabs of brief items which merit readers' attention:

Report confronts sexual assault in Texas prisons
Grits will have more on this soon, but for now here's the link to a new report from the Texas Association Against Sexual Assault and the Prison Justice League on sexual assaults in Texas prisons - one of the first in-depth looks at the issue since Texas agreed to comply with the federal Prison Rape Elimination Act. MORE: See coverage from the Houston Press and the San Antonio Current.

TX eyewitness reform didn't stop suggestive IDs, photo arrays
In a recent dissent, Judge Elsa Alcala effectively showed why and how Texas' eyewitness identification reforms have failed to stop convictions based on biased lineups, in this case where the suspect was the "sole one in the photo array matching the physical description of the shooter." See the majority opinion, which mostly relied on outdated criteria from older cases that predated modern best practices in this area.

Concerns over cell-phone location data legitimate, non-partisan

In Texas, lots of folks were concerned about privacy of cell-phone location data long before the recent presidential election, including loads of conservatives. So I hate to see the push for federal cell-phone privacy legislation cast in terms of fear of Donald Trump. Grits wasn't any more happy when it was the Obama Administration pushing to maximize government surveillance powers.

When innocent people plead guilty
Reported AP, "Last year, 68 out of 157 exonerations [nationwide] were cases in which the defendant pleaded guilty, more than any previous year. That's 43.3 percent, for those keeping score at home.

'Detached from reality' Crime and public perception
Following up on their own poll, discussed here on Grits, the Pew Research Center explored why "Voters perceptions of crime continue to conflict with reality." Gallup over the years has continuously found that voters perception of high crime is "detached from reality." At Vox, German Lopez has explored this odd and persistent phenomenon. The Brennan Center has found that headline mentions of murders in newspapers did not decline along with the volume of murders themselves. In this election we saw that misperception brazenly exploited by the President-elect, who went around claiming violent crime was at a 45 year high when the opposite was true. By the time he trotted that one out, he had told so many flat-out fabrications that the media''s fact checking seemed tired and pro forma, as do hubristic pretensions that media will now solve misconceptions they've actively created.

Okie Governor leading by example on criminal-justice reform
Read Oklahoma Governor Mary Fallin on the recent election and criminal justice reform. She's saying the sort of things while in office that Texas Gov. Rick Perry waited to embrace until after his departure. Voters in her state just overwhelmingly voted to reduce penalties for low-level drug possession from a felony to a misdemeanor. The Lone Star State should follow suit, or Oklahoma may soon supersede the Texas GOP when it comes to Right on Crime bona fides.

Pondering immigration, walls, symbols, and public opinion
Here's the problem with the Trumpian plan to deport "criminal" immigrants: After years of the Obama Administration aggressively enforcing their "Secure Communities" program - a ham-handed operation which never worked well and of which Grits was never a great fan - there aren't nearly 2-3 million of those left to deport. (Immigrants commit crimes at much lower rates than citizens. Foreign nationals account for 16 percent of Texas' population, for example, but only eight percent of arrests.)

Will "I'll do what Obama did," plus spending $10-20 billion (or whatever figure) on an American Great Wall, be enough to satisfy voters spurred to the polls by anger over Latin American immigration? Perhaps rebranding the policy as Republican will allow pols to declare victory and stop fighting, the way Texas Rs seem ready to declare victory on border security and spend the money on something else. The campaign is over now and governing requires confronting reality. Grab some popcorn and stay tuned.

In Texas, that reality includes the fact that undocumented immigrants make up more than eight percent of our active labor force. When push came to shove, while some Texas Rs have indulged in nativist rhetoric during campaigns, most have always understood and respected core interests of the business community when governing. At first blush, that seems to be the approach the president-elect will take: Talk big, wait for public discord to die down, then declare victory without really having changed anything and move on. While essentially frivolous as a border security suggestion, perhaps a "Great Wall" will serve a more important purpose as a tangible, lasting symbol. Who knows? Maybe that's what's necessary to sell Obama's immigration policy as a Republican solution that the president-elect's still angry base will accept.

Court okays voice recognition testimony 20 years after fact

When stare decisis and science conflict, case law tends to trump.

A case in point: The Texas Fourteenth Court of Appeals upheld a capital murder conviction (life sentence) in August in which the main inculpatory evidence was a voice identification made by a witness 20 years after the crime occurred. Since the standard of review was "abuse of discretion," the justices felt compelled to defer to the trial judge's ruling, which relied on a 1972 Supreme Court precedent, Neil v. Biggers. But Chief Justice Kem Thompson Frost offered up a concurrence suggesting the law and science are out of whack:

In  the  forty-three  years since  the Supreme Court of the United States articulated the Biggers factors, scientists have been studying whether these factors accurately predict the reliability of a witness’s identification. The findings raise concerns. Studies are ongoing, but the research results in hand tend to undercut confidence that the Biggers factors are truly indicia of reliability. The scientific literature suggests that though some of the Biggers factors relate to the reliability of a witness’s identification, others do not. Empirical research seems to be revealing that some of the factors may not be good indicators of reliability.

Chief Justice Thompson Frost adumbrated a sampling of research demonstrating why the factors judges are told to consider in Biggers don't jibe with modern science, much of which also relates to shortcomings in eyewitness testimony. In the end, though, she concluded that "Even though the scientific literature calls into question the validity of the Biggers factors, this court is bound to consider them" and, ultimately, to defer to the trial court. There's little question, though, that the Chief Justice has identified a rather junky brand of evidence which deserves closer scrutiny than it has heretofore received.

Via TDCAA.

Reviewing 2015 criminal justice reforms, and other stories

Here are several recent stories which merit Grits readers' attention:

Reviewing criminal justice bills from 84th Texas Legislature
See the Texas Criminal Justice Coalition's 84th session wrap-up document.

Debating legacy of Texas 2007 de-incarceration reforms
The Texas Criminal Justice Coalition's Ana Correa and Marc Levin from the Texas Public Policy Foundation co-authored a column which implicitly replied to an earlier guest column minimizing the importance of reform measures passed eight years ago. Grits earlier offered my own rebuttal to the piece.

Too many jails get loophole in bill requiring in-person visitation
The bill to preserve in-person visitation at county jails was a bit of a mess, reported the Dallas News, leaving room for counties to game the system and pretend they're already invested in new systems to get in under an arbitrary deadline. There should be some means to go back and force these agencies to enable in-person visits, especially for those who announced their interest in changing over only after the bill was filed.

Sheriff blames deputy's murder on Black Lives Matter
A mentally ill man shot a Harris County Sheriff's Deputy and the Sheriff blamed the Black Lives Matter movement based on exactly zero evidence. The Harris County Sheriff runs the largest mental hospital in Texas, but he ignores the mental illness angle and blames his political enemies. Pathetic.

Hands up!
Two Bexar County Sheriff's deputies shot a man who supposedly had his hands up at the time. KSAT-TV paid $100 for cell phone video of the killing, which seems to have the Sheriff's Office more hot and bothered than what their employees did.

Kids or Criminals?
That was the title of a Dallas Morning News feature on youth who grow up incarcerated.

Be sad - but not scared
Here's a good editorial from the Fort Worth Star-Telegram putting coverage of violent crime into perspective.

Oliver Sacks on the reliability of eyewitnesses
Neuroscientist Oliver Sacks passed away recently and his death reminded me of an excellent short essay he wrote a couple of years back on the reliability of eyewitness identification. I've read several of his books; his passing was a loss.

CORRECTION: An earlier version of this post misread data from a DPS gang assessment report and that sub-item has been removed as has the reference to it in the headline. Grits regrets the error.

Eyewitness ID lesson: 'Anything you try to change, there's going to be a backlash'

Scripps News Service posted a feature yesterday by Isaac Wolf titled, "Dallas leads the way in addressing wrongful convictions," crediting outgoing Dallas DA Craig Watkins and former police chief David Kunkle in particular for implementing science-based eyewitness identification standards before the Texas Legislature required departments to create such policies. The story concluded:

[Dallas police Lt. David] Pughes knew he would face belligerence when he walked into a training session in the spring of 2009. The officers were eager to defend their integrity and worried that his system would make it harder to get evidence.

As Pughes fired up his Powerpoint, Det. Steve L’Huillier interrupted from the front row. With nearly 30 years on the force, L’Huillier was insulted. “How dare you accuse us all of wrongdoing?” L’Huillier said. “If we had a few cases that resulted in wrongful convictions, that’s a tragedy.” Those were rare exceptions, he argued.

But police had no experience from an eyewitness perspective, Pughes told them. “Once you are able to sit in their chair, walk in their shoes for a minute, the officers came to the realization that picking someone out of a lineup is much more difficult than what you’d think on the outside looking in,” he said.

State lawmakers saw wisdom in the new system too and proposed witness identification reform across Texas. A vigorous lobbying campaign by the Houston Police Union opposed it and the bill failed. But a similar measure succeeded two years later.

A survey last year by the Police Executive Research Forum found that more than two-thirds of police departments in the U.S. still don’t take the most basic step to reduce errors in witness identification: requiring a person unfamiliar with the case to show the lineup. Brandon Garrett, a University of Virginia law professor and expert on wrongful convictions, has watched the opposition succeed time and again. “It’s kind of remarkable how long it takes to make changes that really help the police,” he said.

Kunkle retired in 2010, and this fall Watkins lost a contentious bid for reelection. But their work left an indelible mark, including on Dallas homicide detective Scott Sayers, who had opposed the ID changes. Sayers, who joined the force in 1995, was convinced that killers would get away with their crimes. “In the end, I think that was false,” Sayers says now, adding that the system also better protects officers from court challenges.

Which doesn’t mean the going will be any less contentious next time. “Anything you try to change,” he says, “there’s going to be backlash.”

Dallas PD changes policy to enable police coverups after shootings

Regular Grits readers will recall the recent episode in Dallas where a police officer shot a mentally ill suspect, claiming he feared for his life. His partner said in a written report that the man had rushed at them with a raised knife when, in fact, a neighbor's surveillance video showed the fellow had first backed away then stood calmly with his hands to his side. DPD fired the officer and suspended his partner for 15 days.

Now, though, rather than beef up penalties for officers caught testilying, Dallas Police Chief David Brown has succumbed to pressure from the police union and changed the rules so that officers can no longer be questioned about shooting incidents until 72 hours after they happen. The Dallas News story ("Dallas Police Chief David Brown quietly changes shooting investigation policy," Nov. 27) announcing the new policy opened thusly:

Any Dallas officer involved in a police shooting — whether the officer fired a weapon or witnessed the gunfire — will now have the right to remain silent for 72 hours under a new department policy.

And even before they give a statement about the shooting, the officers can watch any available video before they give a statement.

Previously an officer who witnessed a shooting typically would have been required to give a statement to police investigators within hours of the event. And the officer who fired, while not required to speak right away, typically did so. The new policy now requires the firing officer to wait at least three days before giving a complete statement to investigators.

Chief David Brown quietly made major policy change less than a month after surveillance video went public in October that showed an officer shooting a mentally ill man for no apparent reason — contrary to a witnessing officer’s account that led to a felony charge against the victim.

“It is my belief that this decision will improve the investigation of our most critical incidents,” Brown said in an emailed statement.

An attorney for the shooting victim, who survived, said the policy will give officers involved in unjustified shootings time to make excuses.

But memory experts side with the chief.

Alexis Artwohl, a nationally known behavior consultant for law enforcement agencies, said studies show officers need rest before they can accurately recount traumatic events.

One wonders, if "memory experts" say this is the better way to go, why isn't the same courtesy extended to suspects so their memory can be similarly improved? I'm sure suspects in criminal cases would be less likely to give contradictory statements if they could wait three days and review all the evidence accumulated against them with their lawyers before talking to police. What's good for the goose ...

An attorney for Bobby Bennett, the man shot in the October incident, correctly identified the real reason the police union pushed for the change and pointed out the obvious hypocrisy:

Don Tittle, one of Bennett’s attorneys, called the policy change “maddening.” Give police officers enough time, evidence and lawyers, and all their statements will sound alike and justify a shooting, he said.

Plus, he said, any other witness to a crime is asked to talk to officers at the scene, he said.

“If the goal is to seek the truth in an incident, then why would a witness to a police shooting be treated differently than a witness to any other incident?” he said. “No other witness is told, here, you have three days to get back to us. And, by the way, here is a copy of all the video of the incident so you can get your story straight.”

Grits doesn't buy for a moment the argument that the policy stems from memory science - where is the science that says people remember an incident better three days later compared to soon after it happens? A few hours later? Perhaps. Three days later? No way. By that time, one's memory begins the process of self-reinforcing a version of events that may or may not conform to what actually happened. (For more on the brain science behind that process, see here, here, and here.)

The "memory expert" quoted by the Dallas News is not a memory expert at all but a consultant who co-authored a book on how police officers can "survive" the emotional and legal aftermath of deadly shootings. Looking through her website and linked publications, one is struck by the one-side analysis. Yes, memory is less certain than was once thought - which is why we've witnessed so many DNA exonerations based on faulty eyewitness identification - but she never takes the next step to apply that observation to suspects, witnesses, or for that matter victims of police shootings. Her schtick is all about protecting the cop from negative consequences after a shooting occurs, right or wrong.

In a blog post on Friday, Dallas attorney Robert Guest made the obvious comparison to how police treat suspects: "This traumatic-event-impairs-memory theory could impact other cases as well. Take family violence cases, if we can’t trust officers memory of traumatic events how we can trust those who got in a fight with their spouse?" Guest sums up what's going on in the Bennett episode from a non-cop's perspective: "If you work in criminal justice long enough you see situations in which rules are broken often. Defendants break rules and face the unbridled wrath of the criminal justice system (which seeks to take their money, time, and sometimes freedom). But what happens when the Government breaks rules? More often than not, the government changes the rules so that they don’t get caught again." That's precisely what Chief Brown did here.

This shooting and the coverup that followed by the shooter's partner was an embarrassment for the Dallas Police Department, but not nearly as embarrassing as this shameless change in departmental policy. Just pathetic.

MORE: From Defending People and Simple Justice.

'Brady' violation resulted in directed acquittal but failed to garner state-bar sanction

The Houston Chronicle brings word of a remarkable case of prosecutors allegedly woodshedding an eyewitness and withholding exculpatory evidence ("Innocent Texas City man wants $3 million after 10 months in jail," July 15). The conduct was so egregious the judge ordered a directed verdict in favor of the defendant. Robert Stanton's story opened:

A Texas City man who spent 10 months in jail for a crime he did not commit has filed a $3 million federal lawsuit against officials in Galveston County and Texas City.

Joshua Bledsoe was released from custody in June 2011, when state District Judge Susan Criss issued a direct verdict in his favor. The acquittal was ordered on grounds that former Assistant District Attorney Jon Hall and the DA's Office withheld exculpatory evidence, according to the lawsuit filed Feb. 21, 2013.

A directed acquittal specifically because of concealing exculpatory evidence is a rare bird indeed, in part because evidence concealed isn't available at trial to contradict the prosecution's case. It's usually discovered long after the fact when the damage has been done. Bledsoe's attorney must have done a fine investigation to pull that out of a hat. Here are the specifics of the alleged Brady violation, again from the Chronicle:

According to the original petition, Bledsoe's attorney Taft L. Foley II obtained a 911 tape with eyewitness Tina Mullins, who told the dispatcher that the suspects were wearing ski masks. She later identified Bledsoe in a photographic lineup.

The lawsuit charges that Texas City police and the DA's Office pressured Mullins into identifying Bledsoe. Mullins is not a party to the lawsuit.

"The defendants deliberately and maliciously caused the prosecution to commence by deliberately and intentionally fabricating some evidence, by deliberately and intentionally withholding some critical favorable evidence and by deliberately and intentionally mischaracterizing some critical evidence in their possession, custody and control," the lawsuit states.

Where's the state bar on this, one wonders? The directed acquittal two years ago specifically based on grounds of withholding exculpatory evidence ought to make the disciplinary committee's job pretty easy, but according to the state bar website Jon Hall has never been sanctioned.

UPDATE: More on this case.

Reporters explore likely actual-innocence cases

This week saw a pair of stories by two of the state's top reporters on criminal-justice and innocence issues - Pam Colloff at Texas Monthly and Brandi Grissom at the Texas Tribune - about two possible actual innocence cases:

• Texas Monthly: Reasonable Doubt: The Manuel Velez Case
• Texas Tribune: Years after innocence finding, inmate remains in prison

The Velez case described by Colloff hinges on flawed forensics related to "shaken baby syndrome" and woefully ineffective assistance of counsel. A habeas writ on the capital case has been heard by the district court and findings must be submitted to the Court of Criminal Appeals this week.

Ben Spencer's case, as described by Grissom, involved a murder conviction 26 years ago in Dallas based on a jailhouse snitch and impossible eyewitness IDs made from 100 feet away in the dark. Though a district judge recommended habeas relief, the CCA denied it which leaves a commutation by Governor Rick Perry as the only possible avenue for redress unless new evidence is discovered.

Todd Willingham, Carlos DeLuna, touted as innocent Texans executed

Two items deserve Grits readers' attention related to possible false convictions that ended in Texas executions.

First, Todd Willingham's family, in conjunction with the national Innocence Project, is seeking a posthumous pardon, according to reports from numerous sources (e.g., see reports from the LA Times, the Texas Tribune and the Houston Chronicle). The national Innocence Project has posted documents related to the pardon application on this page. The news comes on the heels of additional coverage out of the LA Times about the review of old arson cases spawned by the Forensic Science Commission's report on the Willingham case. And the new state fire marshal has said he'll use the FSC report to revamp his agency's training and instruction protocols. So whether Willingham ever secures a posthumous pardon - and while Rick Perry is Governor, one tends to doubt the prospects - there's already a significant positive legacy stemming from this possible false execution. It will be interesting to see how the Board of Pardons and Paroles will respond.

Meanwhile, "In May, the Columbia Human Rights Law Review dedicated an entire issue to the story of Carlos DeLuna, who was executed by the state of Texas in 1989," reported the Boston Review on Oct. 22. "The article, “Los Tocayos Carlos: An Anatomy of a Wrongful Execution,” forthcoming as a book, runs 434 pages long, reads like Truman Capote’s In Cold Blood, and is groundbreaking in its detail and scope. Its conclusion: Texas murdered an innocent man." I haven't read Los Tocayos Carlos but the summaries I've seen (see prior Grits coverage), including the bullet points highlighted by the Boston Review, make it sound as though the case for his innocence may be more compelling, even, than for Willingham. In the Willingham case, no one could definitively say he didn't do it, merely that the arson testimony convicting him was hokum.. In Carlos DeLuna's case - which was based in part on a sketchy, cross-racial eyewitness identification - basically another man went to his grave saying "I did it." The case for DeLuna's innocence seems to be strong, though I'd want to read, or at least peruse (I won't pledge to review the thing!), the daunting tome that's been published before judging their conclusions.

IPOT study to grade Texas eyewitness ID policies at local police, Sheriffs

The Texas Tribune this morning published a story about a research project your correspondent is spearheading on behalf of my employers at the Innocence Project of Texas to analyze new eyewitness identification policies which Texas law enforcement agencies were supposed to adopt by September 1 of this year. The story by Brandi Grissom opened:

The Innocence Project of Texas is preparing to grade about 1,200 law enforcement departments statewide on their compliance with a law that requires police agencies to adopt eyewitness identification policies.

“Unless somebody is really grading their papers, nobody knows whether the law is really being implemented,” said Scott Henson, a policy consultant for the Innocence Project.

Last year, Texas legislators approved a measure that required police agencies to adopt policies meant to prevent faulty eyewitness identification in criminal cases. Under the law, departments were required to adopt a written policy by Sept. 1. Last week, the Innocence Project sent the departments letters requesting copies of their lineup policies.

Faulty eyewitness identifications are the leading cause of wrongful convictions, according to the New York-based Innocence Project. In 297 DNA exonerations across the nation, the Innocence Project reported, mistaken identifications contributed to 75 percent of the wrongful convictions.

In Texas, faulty eyewitness identification contributed to wrongful convictions in 40 of the 52 DNA exonerations, according to the National Registry of Exonerations.

“There’s almost nothing more powerful in a courtroom than eyewitness testimony,” Henson said.

The story quoted Assistant Chief Bryan Carlisle of the Shenandoah Police Department, "who has been traveling the state conducting training for the Texas Police Chiefs Association," declaring that “We really thought as a profession we had been doing right,” but “Now, science has caught up and said, ‘Hey, there really is a better way to do this.’” He hoped, as do I, that "what they’ll find is that most agencies are in compliance with the law."

As background, regular readers may recall that:

Legislators instructed the Law Enforcement Management Institute of Texas at Sam Houston State University to develop a model policy on eyewitness identification that departments could use as a template.

That policy sets out guidelines for conducting lineups in a way that does not suggest to witnesses whom they should select. Those guidelines are the criteria against which the Innocence Project of Texas plans to judge the policies that departments have adopted, Henson said.

Among other things, the criteria include ensuring that the person presenting the photos does not know who the suspect is, asking witnesses how confident they are that the person they identified is the same one they saw at the crime scene, giving witnesses instructions that include letting them know the perpetrator may not be among the choices presented, showing potential suspects sequentially instead of simultaneously, and choosing subjects for the lineup who have similar characteristics to one another and to the suspect described.

Texas' new law allows agencies to diverge substantially from the "model policy" when crafting their own local standards. So it's possible for departments to comply with the law but still avoid adopting best practices. The IPOT analysis will grade departmental policies based on compliance with the LEMIT model policy, weighting its components based on the most critical elements identified in the research on eyewitness identification practices. Anecdotally, many departments have welcomed LEMIT's legislatively mandated advice, while others have been more resistant. Until the policies come in and are analyzed, though, there's no way to know which how many agencies adopted key elements from the model policy and how many failed to do so.

IPOT's open records requests apparently began to hit yesterday. As of this morning, we'd already received policies from 77 departments at a dedicated email address set up for the project.

Notably, though the best practices promoted in the model policy will significantly reduce eyewitness errors, but they will not eliminate them. That's because eyewitnesses, especially when they did not know the perpetrator before the crime event, tend to make relative judgments, and one lineup member will always look more like the perpetrator than the others, even when the actual perpetrator is not in the lineup. The most comprehensive field study on the topic found that, even using best practices including sequential presentation, 12.2% of eyewitnesses chose a filler instead of the suspect. (And of course, it's impossible to say how many suspects chosen were really the wrong person.) So requiring new policies won't be a panacea, but it's an important first step toward reducing eyewitness errors and, by extension, the rate of false convictions based on them.

Latest DNA exoneration based on flawed eyewitness ID from 1989

Via AP, here are details ofthe latest Texas DNA exoneration out of Fort Worth of a fellow convicted based on faulty eyewitness identification:

A man who spent more than two decades behind bars was freed Friday after DNA evidence cleared him in the rape of a 14-year-old Fort Worth girl.

David Lee Wiggins was convicted and sentenced to life in prison in 1989, although neither of the two fingerprints found at the scene matched his. The girl, whose face was covered during most of the attack, picked Wiggins out of a photo lineup and then a live lineup, saying he looked familiar.

But DNA testing earlier this month excluded Wiggins as the person who committed the crime. Tarrant County prosecutors said DNA evidence demonstrated his innocence.

State District Judge Louis Sturns in Fort Worth freed Wiggins on a personal bond after approving a motion to overturn his conviction. Before the crime is officially cleared from his record, the Texas Court of Criminal Appeals must accept the judge's recommendation or the governor must grant a pardon. Either step is considered a formality after the judge's ruling.

"I hold no bitterness," Wiggins said in court after the judge's ruling. "I'm thankful to Jesus Christ. He said he could move mountains, and surely this was a mountain. ... And to the victim: I'm not mad at you. I don't hold you responsible."

The packed courtroom then erupted into applause and people rose to their feet. Wiggins later hugged his relatives and some other men who have been freed from prison after DNA evidence exonerated them in recent years. About a dozen of them attended the court hearing to support Wiggins.

"We draw strength from each other," said Charles Chatman, who was freed in 2008 after serving nearly 27 years for a rape he did not commit. "We're the only people who know what we are going through."

Grits offers hearty and heart-felt congratulations to Wiggins and his attorneys. See a related editorial from the Fort Worth Star-Telegram and coverage from the Texas Monthly Daily Post blog.

How best to tell jurors about shortcomings of eyewitness ID

Texas law enforcement agencies must have eyewitness ID policies in place by September 1 of this year which may, but are not required to, follow a "model policy" developed by the Law Enforcement Management Institute of Texas at Sam Houston State University. The Texas Court of Criminal Appeals has said that when police don't follow (an undefined set of) best practices, judges would be guilty of abuse of discretion if they don't allow a defense expert to explain the problems with eyewitness IDs. Even if agencies don't adopt the full model policy, however, and judges allow such experts, Texas statutes and case law mandate no special jury instruction regarding eyewitness testimony. Remarkably, in New Jersey, the Supreme Court recently took it upon itself to issue such a requirement. Reported the New York Times (July 20):

Almost a year after the New Jersey Supreme Court made a sweeping ruling aimed at resolving the "troubling lack of reliability in eyewitness identifications," it issued instructions ... for judges to give jurors to help them better evaluate such evidence in criminal trials.

A judge now must tell jurors before deliberations begin that, for example, stress levels, distance or poor lighting can undercut an eyewitness's ability to make an accurate identification. 

Factors like the time that has elapsed between the commission of a crime and a witness's identification of a suspect or the behavior of a police officer during a lineup can also influence a witness, the new instructions warn.

And in cases involving cross-racial identifications, judges were directed to tell jurors that "research has shown that people may have greater difficulty in accurately identifying members of a different race."

"You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness's identification," the instructions say.

The new instructions caution jurors that eyewitness testimony must be scrutinized carefully.

"Human memory is not foolproof," the instructions say. "Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex."

The new instructions, which take effect on Sept. 4, address the problems the State Supreme Court identified last August in a unanimous ruling that concluded that the traditional test for reliability of eyewitness testimony, which the United States Supreme Court set out in 1977, was outdated and should be revised.

Although it applies only in New Jersey, the ruling was widely heralded for containing the most exhaustive review of decades of scientific research on eyewitness identification.

The new instructions are expected to be influential as other state courts look to revise their approach to eyewitness identification, several legal experts said. 

Erroneous eyewitness testimony has been by far the most common cause of false convictions among DNA exonerees and these instructions go a long way toward reducing the chance of false convictions. Though falling short of requiring corroboration of eyewitness testimony - which Grits thinks is justified when the witness had never previously seen the defendant - these sorts of cautions go a long way toward rebutting false assumptions by jurors which have contributed to so many high-profile miscarriages of justice.

The New Jersey jury caution could have implications for Texas courts as well. The Court of Criminal Appeals cited the New Jersey ruling in their own landmark eyewitness ID case last year, State v. Tillman. The Tillman case said judges abuse their discretion if they don't allow expert witnesses to educate jurors when police fail to follow best practices, but the ruling did not identify in detail just what those best practices are. Arguably the SHSU model policy provides significant guidance, but the New Jersey rulings provide an especially strong basis for making such a judgment.

Ironically, Texas' statute was designed to give more deference to law enforcement, but the Tillman case means when proper procedures aren't followed, counties must pony up (in indigent cases) for a defense expert. By contrast, New Jersey's approach informs the jury of essentially the same limitations on eyewitness testimony without having to pay for additional expert testimony. Despite the Texas Legislature's intention to cater to law enforcement by not including a jury instruction, New Jersey's approach - creating a hard and fast rule - would probably be simpler for police, prosecutors and jurors alike.

Posthumous exoneree Tim Cole's memory honored in Lubbock

In Lubbock, the city has approved a memorial for Timothy Cole, who died in prison after being falsely convicted of rape and was later posthumously exonerated. Reported the Lubbock Avalanche Journal:

A bronze relief sculpture and granite marker will pay permanent tribute to Timothy Cole, just blocks away from the Texas Tech bar district where he was arrested for a crime he didn’t commit.
His brother, Cory Sessions, helped sway the Lubbock City Council to support the memorial to his brother, who died imprisoned in 1999 after being wrongfully convicted in the 1986 sexual assault of a fellow Tech student.

“Tim may be remembered for things that happened after his life, but we remember him for what happened during his life,” Sessions said Thursday morning at the council meeting. “The most important part of his headstone is the dash, and that’s what we remember Tim by.”

The council approved a renewed proposal by Councilman Todd Klein to honor Cole with a memorial on city property to be designated as a park at 19th Street and University Avenue.

Klein designed the proposal with the help of attorney Kevin Glasheen, who has represented several wrongfully convicted people seeking compensation, including the Cole family.

Glasheen said his firm would pay the estimated $25,000 for the monument, a granite marker with a bronze relief sculpture of Cole and text similar or identical to the text on a state historical marker located near Cole’s Fort Worth grave site.

He praised Cole for his demonstration of character throughout his trial and imprisonment, recalling how Cole would not admit guilt even if it meant he had a chance for parole.

“That kind of character and integrity is worthy of honor,” Glasheen said.