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eyewitness identification

Why better eyewitness ID procedures matter

Because bad eyewitness ID procedures can lead to the wrong people being executed.

State Sen. Rodney Ellis, D-Houston, and Rep. Pete Gallego, D-Alpine, stopped short of claiming Texas wrongfully executed suspect Carlos DeLuna for the February 1983 murder of store clerk Wanda Lopez.

Gallego, however, said the way Corpus Christi police handled the suspect’s identification was a “textbook example” of why the system needs to be reformed.

“What appears to be very faulty eyewitness identification was the main evidence used to reach a conviction in this case,” Ellis said in an email.

“… The chief witness appears to have gone back and forth on how certain he was that Mr. DeLuna was the culprit. You cannot have this level of uncertainty in death penalty cases.”

Accounts of the crime, the investigation and DeLuna’s prosecution were presented in a 400-page article published Tuesday in the Columbia Human Rights Law Review. Columbia University Law School authors argue that the crime actually was committed by Carlos Hernandez, a DeLuna acquaintance with a history of convenience store robberies. Hernandez, the article says, boasted of killing the store clerk

DeLuna was executed by injection in 1989. Hernandez died in prison, convicted of a knife attack on a female acquaintance, in 1999.

Of four people who saw events connected to the crime, only one, car salesman Kevan Baker, saw Lopez struggle with her assailant, the journal article says. Baker initially described a man who did not resemble DeLuna but changed his story after police brought DeLuna to the store.

Baker later told researchers he was only 70 percent sure of his identification, the journal says. Had police not told him DeLuna had been apprehended nearby, he would have been only 50 percent certain, he said.

That Columbia Human Rights Law Review article is here. The Trib has an interview with its author, and notes that a Chicago Tribune investigation from 2004 came to the same conclusion. The prosecutor in that case disputes these findings, which as we’ve seen with Todd Willingham and others is not unusual. What’s also not unusual is the fact that there was a questionable eyewitness ID as a key aspect to the state’s case. According to the Innocence Project, of the first 289 post-conviction DNA exonerations in the United States, “Eyewitness Misidentification Testimony was a factor in nearly 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions”. Getting eyewitness procedures right up front can and will avoid this problem. As Grits notes, Texas law-enforcement agencies must have in place by September 1 new procedures developed by the Law Enforcement Management Institute of Texas (LEMIT) at Sam Houston State. Not all of what Ellis and Gallego’s legislation would do is required, however, and there continues to be resistance to these reforms from within law enforcement. We’re heading in the right direction, but we’re not where we need to be just yet. Mark Bennett has more.

One good thing that can be said about this session

A fair number of innocence-related bills have been passed this session. Some of them might have been passed in 2009 had it not been for the voter ID-killing chubfest, for others it was just that the stars finally aligned. Grits and Dave Mann have the details. Hopefully, the voices in Rick Perry’s head are not telling him to veto any of these bills. Each one represents a necessary step forward. Now if we can just make sure that the Forensic Science Commission bill doesn’t get screwed up.

House eyewitness ID bill passes

Another step forward.

The Texas House, aiming to reduce the number of wrongful convictions, approved legislation Wednesday that would require law enforcement agencies to begin standardizing the way eyewitnesses identify criminal suspects.

The unanimously approved bill would require police to adopt written policies to determine how they conduct photographic or live lineups. Agencies would be encouraged, but not required, to develop blind procedures whereby the person administering a live lineup doesn’t know who the suspect is. Judges still would be given wide discretion on what evidence to admit in court.

Rep. Pete Gallego, D-Alpine, said he sponsored the bill to cut down on the leading cause of wrongful convictions. Misidentification of suspects by eyewitnesses is responsible for 75 percent of the convictions overturned by DNA evidence, according to The Innocence Project, a non-profit working to free wrongfully incarcerated people.

Rep. Gallego’s bill is HB215, which now goes to the Senate; the Senate has already unanimously approved Sen. Rodney Ellis’ SB121, which is mostly the same. Assuming nothing unusual, a bill will be on its way to Governor Perry’s desk shortly. Grits has more.

Eyewitness ID reform passes the Senate


As approved 31-0 by senators, Senate Bill 121 by state Sen. Rodney Ellis, D-Houston, will require law enforcement agencies in Texas to adopt best-practice standards for eyewitness identification — in both photo and live lineups — where there is no such law now.

A 2008 study found that only 12 percent of police departments in Texas had any such standards.

“Eighty-six percent of the 44 DNA exonerations in Texas have been due to incorrect eyewitness identification,” Ellis said.

“The Texas Senate today took a very important step toward improving justice in Texas. … It enacts a simple best practice to ensure we have reliable evidence in our courtrooms to ensure the conviction of the guilty and the protection of the innocent.”

That’s one of Sen. Ellis’ package of innocence-related bills, whose House companion has passed out of committee. With any luck, this will be the year that these needed reforms get enacted. Kudos to Sen. Ellis for his tireless work on the subject. The Trib has more.

Eyewitness ID bills advance


Sen. Rodney Ellis’ eyewitness ID bill passed out of committee unanimously, with an an inconsequential cleanup amendment from Sen. Joan Huffman, just as Chairman Pete Gallego’s companion bill passed out of House Criminal Jurisprudence Committee last week. Since that legislation two years ago died because of time as opposed to any vocal opposition (and no one testified against it in either committee this year), that bill appears to have a good chance of passage.

Exonerees who testified had spent between 13 and 30 years falsely imprisoned, and as always their testimony was powerful and moving. It’s quite an honor and a humbling experience to get to work with those guys. I find it unimaginable what’s been taken from them, not to mention the courage it takes to have endured such a trauma and then keep coming down to the Legislature to tell them “Change the system so this doesn’t happen to somebody else.” (Watch the video here; testimony on SB 121 (Ellis) begins at the 58:05 mark.)

Except it is happening somewhere in Texas, arguably, every day Texas courts are open for business. DNA testing has given us a narrow window into the causes of innocent people being convicted – mainly false eyewitness identification, mendacious snitches, false confessions, faulty forensics, and ineffective assistance by defense counsel – but those same types of flawed evidence are every day in a large number of cases that don’t have DNA available to clear the falsely accused of defendant. Eyewitness identification errors were involved in the vast majority of DNA exonerations (75% nationally, 80% in Texas), so this bill arguably is the most important piece of preventive policy legislation on the subject the Lege will consider this year.

Here’s SB121, and here’s some background on Sen. Ellis’ package of innocence-related bills. Though there’s still some resistance to these efforts from law enforcement, hopefully this will be the year this stuff makes it through.

Keeping track of innocence-related bills

From Grits:

The House Criminal Jurisprudence Committee has posted an agenda which includes three important pieces of innocence legislation carried by Chairman Pete Gallego:

  • HB 215 Relating to photograph and live lineup identification procedures in criminal cases.
  • HB 219 Relating to the electronic recording and admissibility of certain custodial interrogations.
  • HB 220 Relating to procedures for applications for writs of habeas corpus based on relevant scientific evidence.

State Sen. Rodney Ellis is carrying the first two on the senate side, while Senate Criminal Justice Chairman John Whitmire has filed a companion bill to HB 220. In the House, Gallego is Innocence Man!

He’s optimistic that these bills, whose effect he describes in more detail, will make it through. There’s a committee hearing for today, so this is a chance for them to progress. Click over for more information.

Ellis’ innocence bills

As he has done for the past several sessions, State Sen. Rodney Ellis has introduced numerous bills that will address issues of wrongful convictions and criminal justice procedures designed to help prevent them from happening.

Ellis is proposing an “Innocence Protection Package,” four bills aimed at decreasing the number of wrongful convictions in Texas. Rep. Pete Gallego, D-Alpine, is the package’s sponsor in the House.

“I tried to pick things that I thought were very much in the mainstream of criminal justice reforms that shouldn’t cost money, that will save money,” Ellis said. “They’ve been well-vetted and (have) broad-based support.”

State lawmakers in 2009 created a panel to examine the issue of wrongful convictions and propose reforms. After a year-long investigation, the 11-member panel of legislators, judges and legal groups last August recommended changes for the 82nd Legislature.

Ellis’ bills include many of the panel’s suggestions, including uniform procedures for eyewitness identification, requiring investigators to record interrogations in serious felonies, streamlining defendants’ appeals for DNA testing, and reorganizing Texas’ indigent defense task force.


Rep. Jerry Madden, R-Plano, who served on the House Criminal Jurisprudence Committee last session, said he could not see a GOP effort to block Ellis’ bills if they are in line with recommendations from the Texas Criminal Justice Integrity Unit, which Judge Barbara Hervey, of the Texas Court of Criminal Appeals, launched in 2008.

That’s good to hear, and I hope the calendar will allow for Ellis’ bills to be heard, since we know that will be the main enemy of any non-budget, non-redistricting, non-“emergency” legislation. Perhaps because there’s no clear partisan dispute on this, the story author decided to give a few paragraphs to some guy who ranted about “technicalities” and the death penalty why we should make it easier to get convictions. I have no idea where such a mindset comes from or why it deserves an airing in a mainstream publication, but by any estimate there are a lot of wrongly convicted people in Texas prisons, which is not only a grievous wrong to them but also represents a lot of other people who have committed crimes and gotten away with it. I’ve never understood why those who complain about the rights of people accused of crimes don’t make that connection. Be that as it may, Grits provides answers to the questions that were asked in the story. One hopes that next time, the reporter will do that as well.

Beyond DNA exonerations

We’re all familiar with the way the Dallas DA’s office has handled using DNA to review cases in which a defendant’s guilt may have been in question. Now that most of the cases in which DNA evidence still exists have been reviewed, they are moving on to other kinds.

The emphasis of the conviction integrity unit established by District Attorney Craig Watkins in 2007 is shifting toward challenging cases where there is no DNA to test, but where questions remain about an inmate’s guilt or innocence.

Without DNA evidence, these cases require more time and can mean investigating a crime that occurred years ago as though it just happened: tracking down witnesses, comparing fingerprints to see if there is a match when one didn’t exist before, seeking new evidence.

Watkins says he hopes his office can use lessons learned during years of DNA testing to improve police work. Bad witness identification, for example, has been a factor in most of Dallas’ DNA exonerations. There are also several cases where prosecutors or police withheld evidence that could have prevented a conviction.

Watkins said his perspective has changed since the unit began. He’s realized that it can do much more than free the innocent.

“At the time, I started out looking at legitimate claims of innocence, and obviously we still do,” said Watkins. “But now, it’s how can we improve prosecutor and police techniques. It’s about the ability to argue for changes in the law.”

This is the future of overturning wrongful convictions in Dallas County.

Grits has more about this. The key point is that DNA evidence only exists in a small number of cases, and it’s relevant in an even smaller number, but the same kind of evidence and procedures that made the DNA-available cases worthy of review – eyewitness identifications, bad arson science, “scent lineups”, etc – exist universally, and should be looked at as earnestly. It may be harder to show anything definitive, but if they do nothing but codify their best practices to avoid arresting and convicting people in the future based on this stuff, it’s well worth it. Now if only other DAs would follow Dallas’ lead on this.

Parker’s crimefighting plan

Tis the season for Mayoral candidates to send out position papers on various issues. I’ve gotten a couple in my mailbox in the past few days and want to spend a little time examining them. First up is Annise Parker’s Plan For 21st Century Policing In Houston. My thoughts on this are as follows.

– I’m in general agreement with the priorities Parker lays out in this document. I daresay I’d feel the same way about Peter Brown or Gene Locke’s as well – I don’t think there’s a whole lot of dispute about the big picture, in that everyone wants more police, better use of technology, better bang for the buck, better coordination among local law enforcement agencies, et cetera. The devil, as always, is in the details. Which leads me to the first point of discussion.

– Like most candidates, Parker wants to increase the size of HPD, but doesn’t go into any detail about the cost:

I will protect the police department budget in this economic downturn.

We learned a hard lesson when the city closed down the police academy to save money during the last major economic downturn in the 1980s. It took years to recover from that mistake. As Mayor, I will do everything in my power to maintain and, if possible, increase the police budget.

Protecting our law enforcement budget without raising taxes is a difficult but necessary balancing act. My 12 years as a City Councilmember and as Controller have prepared me for the challenge. I have a track record of fiscal responsibility, using tough audits to cut millions of dollars in fraud and waste – money that is now funding priorities like police, firefighters, after-school programs and economic development.

Parker goes on to say that she wants to add more cops to the force. There’s broad consensus for that, though given that Houston’s crime rate is down, it’s not clear to me how much more is really needed. Be that as it may, the fact remains that due to pension and salary outlays we’re budgeting a lot more for HPD these days without a significant increase in the size of the force. Adding in more officers will add to these costs, possibly a lot. I don’t know how much you can realistically hope to pay for without putting a tax increase, or at least a new revenue stream, on the table. If we want more police, we need to be willing to pay for it. I’ve heard the “waste, fraud, and abuse” mantra my whole life, and I don’t have a whole lot of faith in it. I believe in Parker’s financial acumen, but I think that only gets us so far.

– Like just about every candidate I’ve interviewed, Parker wants HPD to work more efficiently with other local law enforcement agencies.

I will direct my police chief to develop and implement a plan to better coordinate and cooperate with other local law enforcement agencies.

Dozens of law enforcement agencies have jurisdiction over parts of Houston. Their officers are certified peace officers who can enforce the law. All of our budgets are under stress. It is imperative that we improve coordination among these agencies.

If you’re being robbed, you don’t care whether it is HPD, a sheriff’s deputy or a constable who comes to your aid – as long as they have a badge and a gun and they can keep you safe.

In order to do this, agencies must be able to talk directly to each other. The city has invested in a radio system that will allow many law enforcement agencies to communicate with each other. But the obstacles to improving coordination among law enforcement agencies are less about a lack of technology and more about a lack of leadership and priorities. That’s why I will direct my chief to come up with a plan to work cooperatively with other agencies, and I will personally reach out to other jurisdictions to make it happen.

Again, it’s clear there’s broad consensus on this, and I’ve no doubt that better use of technology can help. What I want to know, though, is what incentive the other agencies – the Sheriff, the constables, Metro, HISD, whoever else – have to cooperate with HPD. The implication of Parker’s scenario is that someone other than an HPD officer could be the first responder. What do we have to offer to them to make that kind of cooperation with us worth their time and resources? I feel like I’ve heard people talk about this for a long time, and beyond the question of radio incompatibilities, it’s not clear to me what’s preventing this from happening now. What do these other agencies think about this?

– I’m totally down with the idea of an independent crime lab, and I agree there’s momentum at the county level to get that done. Funding is always an issue, and I wonder if we may need legislative action as well. If that’s the case, what can we do before the 2011 legislative session, and how can we grease the skids in advance to ensure that the necessary bills get through the process?

– The idea to contract with Harris County for jail services and ultimately eliminate the city’s lockup facility is one place where there isn’t a consensus – Parker and Locke support this concept, Brown opposes it. As I said before, it should be a simple enough matter to ask the county to give us an estimate, and from there we can see if there is a savings to be realized or not. Certainly, we will need to wait until the county gets its jail overcrowding issues under control, and I remain optimistic that this can be done, or at least mostly done, without building a new jail.

– Parker, who is known to be no fan of HPD Chief Harold Hurtt, talks at length about what qualities she wants in the replacement she’ll hire for him. One quality I hope this person will have is a willingness to implement better witness ID procedures, as well as video recording interrogations, which is something he or she will have to do over the objections of one of the unions. I do not understand HPOU’s intransigence on this, and I see it as an economic issue as well as a moral one. Never mind the fact that every innocent person that gets convicted means one more guilty person is free to roam the streets.

– I don’t see anything in Parker’s plan that touches on the subject of immigration, in particular the matter of the 287(g) program, which has come up frequently in the campaign. Not that Parker’s position on this isn’t known, or inconsistent with the other candidates’ positions, I was just a little surprised to see it not get mentioned in this document.

– Finally, I want to stress again that I’m generally in agreement with Parker’s principles here. I obviously have some questions about how she hopes to implement some of her ideas, but that certainly doesn’t mean I think they’re unworthy ideas. I also don’t think there’s anything unusual in the approach of being heavy on goals and light on detailed steps for achieving them; given that several of these ideas would require the cooperation of other governmental bodies and/or non-City of Houston officials, one can’t really be specific about the actions you’ll want or need them to take at this point. These are just my thoughts about these ideas.

I’m working on Peter Brown’s traffic plan next. In the meantime, read Miya’s report from the Young Leaders Mayoral forum on Tuesday night.

HPOU touts its opposition to eyewitness ID reform

Here’s a clip from the Houston Police Officers’ Union publication, Badge and Gun (June/July 2009 issue), written by HPOU President Gary Blankinship, detailing how HPOU successfully helped lead the fight against a couple of bills by State Sen. Rodney Ellis that were aimed at reducing the frequency of unjust convictions. The bills were SB117, which would have required all law enforcement agencies in the state to “adopt and as necessary amend a detailed written policy regarding the administration of photograph and live lineup identification procedures”; and SB116, which would have required them to “provide training concerning the technological aspects of electronically recording interrogations to peace officers and other employees of the law enforcement agency who interrogate criminal defendants or suspects, including juveniles.” Both bills passed the Senate but died in the House during the chubfest.

I find it hard to understand the rationale of a police organization opposing stuff like this, especially the latter bill, but there you have it. The case for better eyewitness ID procedures is really strong, with so many recent DNA exonerations coming in cases where the original conviction hinged on a bad eyewitness ID. Meanwhile, given that the Lege passed legislation to increase the compensation given to those who are freed after being wrongly convicted, you’d think we’d want to take common-sense steps to minimize the amount of money we’ll have to be paying out in the future to these folks. Yet so-called “fiscal conservatives” Dan Patrick and Joan Huffman voted against both these bills, and received kudos from HPOU for their obstructive role. Go figure. Anyway, as far as I’m concerned, one of the best things our next Mayor can do in choosing a new Police Chief is to find someone who will be committed to implementing these sorts of reforms regardless of whether or not the Lege mandates them. It’s the right thing to do on so many levels.

Legislative wrapups

With sine die in the rearview mirror, tis the season for legislative wrapups. Here are a couple I’ve come across.

– First, from Bike Texas, which had the fairly easy task of just following one bill:

The final version of the Safe Passing Bill, SB 488, was passed yesterday [Saturday] by the Texas House. Today, the Senate voted on it, and overwhelmingly voted to pass it.

That was the final step for the bill to complete in the Legislature. Now, it will be sent to Governor Perry, and we are cautiously optimistic that he will sign it into law. We will know the outcome by June 21, the last day the Governor can sign or veto bills.

The 21st is a date that’s circled on a lot of people’s calendars. Next up is ACT Texas, which unfortunately had a lot less to be happy about.

How did the 81st Session go? After all the planning, meetings, hearings, email, office visits, phone calls, amendments, amendments to the amendment, how did things go for the ACT agenda this session?

The bottom line: we didn’t make the kind of progress on clean energy and clean air issues we had hoped to make. ACT bills faced two hurdles that could not be overcome this session. The first was strong industry opposition that both slowed the process (especially getting bills voted out of committee) and undermined the bipartisan support these measures had going into the session. The second was a legislative session that was behind from the beginning and ultimately derailed by a partisan stalemate in the House.

It’s important to note that bills did indeed pass that will continue to move Texas toward a cleaner, healthier future. Over the coming weeks, we’ll take a look at each of the 2009 issue areas in-depth and publish an assessment of how we fared on each. By the end of the month, ACT plans to publish a 2009 Legislative wrap-up.

Follow the link to see the specifics. The death of SB545, the solar bill, is in my mind the biggest disappointment.

Scott Henson had even less reason to be happy.

After all the fawning over Timothy Cole’s family and public declarations throughout the 81st Texas Legislature that the state would act to prevent false convictions, all the major innocence-related policy reforms proposed this year died in the session’s waning hours with the exception of one bill requiring corroboration for jailhouse informants.

Two other pieces of legislation for a brief moment had passed both chambers on Friday as amendments to HB 498, but after a 110-28 record vote approved the measure, Rep. Carl Isett moved to reconsider the bill and it was sent to a conference committee, where the amendments were stripped off for germaneness.

Sen. Rodney Ellis earlier in the day had requested the House appoint a conference committee and approve a resolution to “go outside the bounds” to consider eyewitness ID, but that resolution never came and instead the bill was denuded of all policy substance to become a bill to study whether to study the causes of false convictions.

We didn’t need more study by the Legislature on this issue, we needed action. Eyewitness ID errors make up 80% of DNA exoneration cases and the Court of Criminal Appeals’ Criminal Justice Integrity Unit said it should be the Legislature’s highest priority for preventing false convictions. But unless the issue is added to a call in a special session, at least two more years will pass before the Lege can begin to rectify the problem.

That’s inexcusable. It’s not okay for the Legislature to know that innocent people are being convicted under the statutes they’ve written and simply decline to prevent it.

The irony, as he notes later, is that by adopting HB1736, which increases the restitution made to exonerees, the state has ensured by its inaction that there will be more of them. So much for fiscal responsibility.

– On another single-issue matter, the saga of Gulf Energy, which got screwed over by the Texas Railroad Commission, won the right to sue the RRC to force it to clean up its mistake as SCR72 made it through on the last day. Good luck in court, y’all.

– And finally, a mixed bag from the Legislative Study Group, which I’m copying from email and reproducing beneath the fold.

All in all, the good news of this session is that there wasn’t much bad news – very few truly atrocious bills, the kind we were used to fighting off (usually unsuccessfully) in the Craddick days, made it to the floor, much less through the process. That’s part of what a lot of us hoped for with Joe Straus as Speaker, and up till the voter ID fiasco we got it. The bad news is that there wasn’t nearly enough good news, especially when you consider the number of good bills that were needlessly snuffed at the end thanks to voter ID. I’m not sure which is worse after sine die, feeling like you’ve spent 140 days fighting off zombies, or feeling like a whole lot of potential slipped through your fingers. What I do know is that we need to do better next time, and the fight for that starts now.


Innocence, exoneration, and compensation

We’ve seen all of the stories about inmates being freed from jail in Texas after however many years inside, the result of DNA evidence proving they could not have committed the crime for which they were convicted. But what happens to these men once they are freed? Often, it’s not so good.

Wiley Fountain spent 15 years in a jail cell for a rape he did not commit.

Now the wrongly convicted man is serving another kind of time. He’s free, but he’s homeless.

After squandering nearly $390,000 he received from the state as compensation for his time behind bars, Fountain, 52, spends his days collecting aluminum cans for 35 cents a pound. He spends his nights in a tattered sleeping bag on the asphalt behind a liquor store in a run-down South Dallas neighborhood.

To other exonerees and their lawyers, Fountain is the worst-case example of the need for reforms in how the wrongly convicted are compensated. They are asking the Texas Legislature to increase compensation and to expand its offering of social services to give newly freed men a better shot at a second chance.


[U]nlike parolees, exonerees get almost no help from the state when they first re-enter society.

That could change this year.

State Rep. Rafael Anchia, D-Dallas, filed a bill to increase lump sum compensation from $50,000 to $80,000 for each year of incarceration. The bill also would require the state to pay some of the compensation in annuities, assuring exonerees a lifetime income. The payments would be retroactive to exonerees who already received lump sum payments, including Fountain, and would cease if there was a subsequent felony conviction.

“I don’t imagine any of us locked up more than 20 years have a lot of experience managing personal finances,” said Charles Chatman, who was exonerated in January 2008 after nearly 27 years.

The bill also would provide exonerees the same health insurance given to state employees, a crucial benefit for those who often emerge from prison with severe health problems but no way to get medical coverage.


Exoneration hearings have become common events in Dallas courtrooms in recent years. They’ve also highlighted the lack of social services available to the wrongly convicted.

Such services are commonplace for convicts paroled out of prison. Parolees receive $50 and a bus ticket to anywhere in Texas upon release, and another $50 when they meet up with their parole officers, said Jason Clark, a spokesman for the Texas Department of Criminal Justice.

There are re-entry centers in major cities that offer employment help, counseling and substance abuse treatment, and there are halfway houses for parolees who need additional supervision.

“We’re not releasing people so they can be homeless,” Clark said. “That doesn’t happen.”

But that’s what routinely happens to exonerees, who are released suddenly and with no place to go.

“It’s really terrible,” [Billy Smith, a Dallas exoneree who served about 20 years of a life sentence on a wrongful conviction of aggravated sexual assault,] said. “People who get out on parole have a better chance of getting started on the right foot than a person who has been exonerated.”

I don’t think it’s too much to ask to give people who were wrongly imprisoned at least as much help once released as the people who get out via parole. The state wrecked their lives, and it has a responsibility to try and make them whole again. Grits has more.

On a related note, as we also know, a lot of these men were convicted on the basis of faulty eyewitness testimony. State Sen. Rodney Ellis is the point man in the battle to improve witness identification procedures, but his efforts have been watered down somewhat.

The exonerations have not convinced all police and prosecutors that sweeping changes are needed. They don’t want lawmakers to mandate policies they believe are unworkable, and they fear losing court evidence because of honest police mistakes or technical violations. But leading law enforcement figures have agreed that eyewitness identifications could be improved.

Those pushing for reform, including defense lawyers and public interest groups, want language stiff enough to compel mandatory identification procedures.

Sen. Rodney Ellis, D-Houston, dropped his original version of the bill that would have ordered police agencies to follow specific lineup methods or face exclusion from trial of identification evidence. Gov. Rick Perry vowed to veto any bill that applied laws on evidence exclusion to eyewitness identifications, said Keith Hampton, legislative director of the Texas Criminal Defense Lawyers.

The compromise legislation requires police agencies to have written policies on identifications that reflect the latest scientific research. But it specifies that the judicial rule governing what is admissible evidence does not apply to eyewitness identifications.

“I’m more optimistic [about reform legislation becoming law] than I’ve been in my 19 years in the Senate working on these issues,” Ellis said in an interview last week.

Hampton said prosecutors had gutted the aim of the original bill.

“This is a pathetic response,” he said. “It’s a bill that does nothing.”

Prosecutors do not want real reform, Hampton said, and are conducting a “whisper campaign” to prevent Ellis’ bill from being debated on the Senate floor even if, as expected, it clears committee.

[Edwin Colfax, state director of The Justice Project, a national reform group,] agreed that the original bill was softened by opposition. But he said it would establish a framework for future meaningful change.

“It’s not as if the defense lawyers are not coming off better than they were before,” he said.

It’s possible for something to be better than what we had before and still not be very good. In this case, there’s room for it to be a lot better and yet still not really satisfactory. I don’t know if that’s the case here or not, but I’ll take any step forward if we can get it. Perhaps by demonstrating that the sky didn’t fall, further steps can be made later. At least, we can hope for that

Finally, I recently stumbled across this old Baseball Prospectus article, which illustrates how one cannot always rely on one’s memory to know what actually happened. Check it out.

Your eyes may deceive you

The Chron covers a report by the Justice Project about faulty eyewitness testimony and the many wrongful convictions to which it has led.

Most wrongful convictions in Texas stem from mistaken eyewitness identifications, errors that experts say could have been avoided — or even eliminated — with more sophisticated lineup techniques, according to a report released Wednesday.

Since 1994, DNA evidence has exonerated 39 men convicted in Texas of crimes ranging from kidnapping to murder, according to a report Wednesday by the Justice Project, a nonprofit focused on criminal justice reform.

Six of the cases occurred in Harris County. Each was investigated by the Houston Police Department. Each was built on flawed eyewitness evidence.

“Eyewitness identification is the leading cause of wrongful convictions in Texas and across the country,” said Edwin Colfax, Texas director of the Justice Project, which analyzed the factors that contributed to the wrongful convictions.

“But of law enforcement agencies across Texas, only a tiny fraction have any written policies for these critical investigative procedures and only a tiny fraction have implemented best practices,” he said.


The Justice Project report calls on law enforcement agencies to adopt several procedures, such as documenting the entire lineup process and having an uninvolved or “blind” officer conduct a lineup. It also recommends that witnesses see suspects’ photos one after another rather than at the same time in an array.

There are numerous bills that have been filed to address these points, many by State Sen. Rodney Ellis. The main opposition comes from police departments and District Attorneys, in some cases on grounds of disagreement as to what best practices are, and in some cases on grounds of pigheadedness.

Grits has a link to the full report. He also notes that the wrongful conviction figures are understated:

Ironically, by focusing solely on DNA exonerations, such analyses understate the real number of innocent Texans who’ve been exonerated – 35 were pardoned from the Tulia drug stings, 24 innocents were set up in the Dallas “fake drug” scandal, and another dozen or so were set up by a lying informant in Hearne, an event about which a major motion picture will be released next month.

Add those to the 39 DNA cases the Justice Project examines and the number of recent exonerations easily tops 100. (And it would not be difficult for some law student to spend some quality time on Westlaw to add to the list.)

If even some of the bills that address these issues get passed, it will be a huge step forward. For more on problems with eyewitness identification, Grits has you covered.

On DNA testing and innocence

I’m glad to hear that District Attorney Pat Lykos is going to examine cases of wrongful conviction in Harris County. I’m sure there are plenty more than the five she plans to highlight, but the fact that she wants to focus attention on the issue and to require DNA testing in cases where it may matter is a welcome change from the past.

“We are going to establish clear policies regarding forensics,” Lykos told the Houston Chronicle recently. “In the (Ricardo) Rachell case, there clearly was forensic evidence and it was not tested and the question is, ‘Well, why not?’ ”

She is expected to release today the first-ever postmortem of a wrongful conviction in Harris County, where DNA evidence has exonerated five men in recent years but — until now — has prompted little dissection of what went wrong.

Lykos’ report will detail the factors that contributed to the conviction of Ricardo Rachell, who last year was cleared of the 2002 sexual assault of an 8-year-old boy for which he was serving a 40-year sentence.

The report will provide guidelines that spell out when prosecutors should order DNA tests and also will call for the creation of a regional crime lab, which Lykos has pushed for since her campaign last year.


In the Rachell case, Houston Police Department officers collected a rape kit from the victim and reference samples from Rachell in 2002. But that evidence never was tested until last year, when it pointed to another man who committed other assaults while Rachell was in prison. So far, no one from the District Attorney’s Office has been able to say why the evidence was not tested sooner. Lykos will use the Rachell case to push forward a plan to create a regional crime lab.

“You cannot expect a police department, no matter how large, to oversee a crime lab,” Lykos said.

Just so we’re clear here, Lykos’ opponent, former HPD Chief Clarence Bradford, campaigned on these ideas as well, and had outlined many of these issues well before Lykos was a candidate. Still, I’m very glad to see her take this action, as it is long overdue.

In the Rachell case, Houston Police Department officers collected a rape kit from the victim and reference samples from Rachell in 2002. But that evidence never was tested until last year, when it pointed to another man who committed other assaults while Rachell was in prison. So far, no one from the District Attorney’s Office has been able to say why the evidence was not tested sooner. Lykos will use the Rachell case to push forward a plan to create a regional crime lab.

“You cannot expect a police department, no matter how large, to oversee a crime lab,” Lykos said.

That was a Bradford idea, too. Suffice it to say that the time had come for these things.

The article doesn’t quote from any of the innocence activists, so we don’t know yet how this will be received. On its face, it looks good, and should help avoid bad situations. There are other reforms that can and should be implemented, regardless of whether or not the Lege gets around to compelling them, on subjects such as eyewitness identification, and taping interrogations. But this is a good start.

On the matter of taping interrogations, I strongly recommend you read thie article about an especially egregious case of wrongful conviction in Ohio, in which justice was only (eventually) done because the initial interrogation was recorded, and made it plain to any objective observer that the confession given – by a 12-year-old suspect – was bogus and coerced. I hope it makes you as angry as it made me; be sure to read it all the way to the end for the full impact. Thanks to Grits for the link.