Palm Beach Post, FL
05-02-07
Witness ID can make, break case
By Susan Spencer-Wendel
Palm Beach Post Staff Writer
WEST PALM BEACH — The No Trespassing sign is tacked front and center of
the gray rental unit on Fifth Street. A diaper, soda cans, a bottle of Wild Irish
Rose lie out front.
There was a drive-by shooting right here, a year ago now. Another in the numb
succession of unsolved crimes around Tamarind Avenue.
But this shooting, it seemed, would be different.
There was an eyewitness who stared the shooter in the face. A credible woman
willing to cooperate with police, to point out a stranger in a photo lineup and say:
He did it.
Brandon J. Williams was charged with first-degree murder and jailed for the
shooting of 24-year-old David Paulk. He was one of the first catches of the
Violent Crimes Task Force, a swift, impressive arrest for the new team.
In the end, though, the case would crumble. The reliability of eyewitness
identification would again be questioned, along with the quality of the lineup used
in the case — a lineup a trio of eyewitness ID researchers say is clearly biased.
"Exonerated by DNA"
The headlines come pretty regularly now.
Just last month, the 200th person cleared of a crime: a Chicago man who spent
half his life in prison for rape — before DNA proved he didn't do it. Long after an
eyewitness swore he did.
The Innocence Project of New York, a national public policy group, reports that
mistaken eyewitness identification has contributed to 77 percent of its 200
exonerations — clearly, the leading cause of wrongful convictions.
This chilling trend has at least 12 states this year considering legislation to
improve the accuracy of eyewitness identification. Nine states are considering
creating innocence commissions to dissect how wrongful convictions happened.
Six states already have them.
There was a bill in the Florida Legislature this year to create an innocence
commission here, but it did not pass. There also was a bill that would require
Florida to pay wrongfully convicted people $50,000 per year of their
incarceration.
After DNA exonerations began in 1989, then-U.S. Attorney General Janet Reno
convened a team of researchers, police and prosecutors and asked them to
make recommendations for improving eyewitness ID procedures. The National
Institute of Justice published in 1999 a guide for law enforcement, recommended
protocols to be followed, including ones for composing lineups.
Recommendations that were not followed in Williams' arrest.
Suspect, vehicle observed
It was near dusk the day of the shooting, and David Paulk stood outside with
neighbor Kendra Freeman talking about her car. A dark SUV with large, chrome
rims rolled past and stopped. At least one of the passengers fired, splattering
bullets anywhere. Two blasted into Paulk.
Freeman ducked down beside her car, uninjured. But first, she saw the shooter,
she told police.
He was a light-skinned black man. Young, in his 20s, with a baseball cap that fell
off when he fired. He had a "low cut," that is, very short hair, no ponytail, no
braids, she would later recount. No facial hair. Freeman worked with a police
artist that night to come up with a composite sketch of the shooter.
The morning after Paulk's shooting, there was another shooting two blocks away.
An assault rifle sprayed bullets all about Third Street.
The target? A black Chevrolet TrailBlazer with large chrome rims driven by
Williams, then 23. "It's the car from last night!" Williams and others have said
they heard over and over.
Williams was slightly injured and taken to a hospital. Task force detectives
followed and immediately noted that his light skin fit the eyewitness' description
from the night before.
The detectives took photos of Williams: One with his hair pulled back, a second
with it loose, inches of curls springing out all over his head. Despite his shock of
hair and mustache, he was a prime suspect.
Within hours, a task force analyst assembled a six-photo lineup with Williams' on
the bottom left, position No. 4. He is clearly the lightest-skinned black man in the
array.
"It looks like a spotlight shining on my client," defense attorney James Eisenberg
would later argue.
It was a picture taken more than five years earlier for Williams' Florida ID card.
The National Institute of Justice guide recommends investigators select a photo
that shows the suspect's appearance at the time of the crime. It also
recommends that no photo in the lineup stand out in any way.
Eyewitness Freeman looked at that color lineup less than 24 hours after she saw
the shooter. Without hesitation, she pointed out position No. 4, Williams,
according to a police report.
"This was the person that I saw," she said, according to a brief statement
recorded by a detective at the time.
Lt. Mike Wallace, head of the Violent Crimes Task Force, said the sheriff's office
used an older photo of Williams because no other photo of him suitable for a
lineup was available.
But there were at least three mug shots of Williams, from previous arrests on
drug and theft charges. One of those was less than a year old.
Wallace said he saw the lineup before a detective showed it to eyewitness
Freeman. He said he noticed nothing glaring. "Put it this way: I didn't look at it
and say 'Oh, God,' " Wallace said. "I thought it was good."
Flaw found in lineup
Three eyewitness researchers looked at Williams' lineup at the request of The
Palm Beach Post.
All noticed something glaring.
Given only the eyewitness' description of a light-skinned man, the photo on the
bottom left, position No. 4, clearly stands out, they said.
Decades of empirical study suggest that mistaken eyewitness identification is
more likely to occur when a suspect stands out in a lineup.
Dr. Ronald Fisher is a psychologist at Florida International University. He
contributed to the National Institute of Justice guide on eyewitness evidence.
Fisher believes a majority of people would pick position No. 4, Williams. "It's not
an outlandishly suggestive lineup, but it certainly is suggestive," Fisher said.
"Remember, police are interested in closing cases ... constructing photo lineups
where a witness will pick the suspect."
His FIU colleague in eyewitness ID research, Dr. Steve Charman, also said he
thought the lineup was biased toward position No. 4.
One of America's most prominent eyewitness researchers, Dr. Gary Wells of
Iowa State University, has studied lineups for decades. Wells co-chaired the
panel that wrote the National Institute of Justice guide. Wells heard the
eyewitness' description, then looked at the Williams' panel of pictures via e-mail.
He replied: "If number four (lower left) was the suspect, then this is a terrible
lineup."
Witness begins to wonder
Police charged Brandon Williams with first-degree murder and arrested him in
Pensacola days after the shooting. The only evidence: Freeman's ID.
Williams' arrest made the news. Eyewitness Freeman says she never saw the
mug shot in the news, but heard from Paulk's family and neighbors that the man
arrested had a lot of hair.
Freeman began to wonder whether they got the right guy.
She says today she told detectives that the lineup photo she selected looked
most like the shooter, but minus the hair. The shooter she saw had a very close
cut.
"It was always about the hair," Freeman says. "I mean I was real specific about
that that night when I pointed him out."
Williams talked to police again.
According to a transcribed statement, he told a task force detective he was home
getting "geeked out" on cocaine with the SUV's owner the night Paulk was shot.
And that he drove into the neighborhood the next morning to buy more drugs and
got shot at.
The detective told Williams a witness had picked him out of a lineup as Paulk's
shooter.
Williams denied it.
"This has just got to be some sort of misidentification?" the detective queried.
"Exactly, there has to be. I didn't murder nobody, man," Williams said.
First, witness picked no one
Police had a credible, believable witness in Kendra Freeman.
Both they and lawyers have said they were impressed with the 32-year-old. She
is well-spoken, clear-headed, a mother who has worked a steady job for years
and served in the U. S. Navy.
Freeman looked at one police lineup the night of Paulk's shooting and did not
select anyone. This boosted her credibility: She wasn't prone to pick just anyone.
They had confidence in her.
But her confidence in her ID was shaken.
Freeman says she repeated to investigators that if the man arrested had a lot of
hair, he couldn't be the guy. And she told Paulk's family members of her doubts,
then let things lie.
Williams remained jailed for six months.
Defense attorney Eisenberg filed a motion to suppress the lineup, asking a judge
to toss it out because it was suggestive of Williams, the only one with light skin.
In late October came the hearing before Circuit Judge Stephen Rapp. The judge
listened to the arguments, looked at the photos and said it wasn't the best lineup
he had seen and wasn't the worst. The police, Rapp said, had done nothing
inappropriate.
But Rapp would never have to rule on what to do with it.
Because Freeman was in court at the suppression hearing.
"I see this guy sitting there with this bunch of hair and it's not him. It's not who I
saw," she says today. "When I walked into the courtroom, I knew then they tried
to pin it on that kid right there. ... I knew that then, as soon I walked in there."
As Freeman testified, Assistant State Attorney Kirk Volker asked her if she saw
the man in the courtroom who did the shooting.
No.
Days later, the prosecutor sent an investigator to talk with Freeman, to see if she
changed her mind about her ID because she was scared or had been
threatened.
No.
A detective at the hearing, though, testified that Freeman seemed fearful after
making the ID and asked if people were going to come to get her after she picked
the picture.
But now, Freeman says, if anything, she wanted to help end violence in the
neighborhood.
"You can't just go and shoot whatever and everybody's too scared to say
anything," she says. "I wasn't scared to stand up. I want to stand up, but I want
the right people to get caught."
In the end, Volker had to drop the first-degree murder charge against Williams.
Freeman says in retrospect, it seemed like police were trying to hurry up and
solve the crime. That she saw the shooter in passing, but wasn't sure back then
she could ID the person in a lineup. "I told people ...'I don't know if I could see
him and say "that's the guy that did it," ' " she said recently.
Her statements today contradict her statements documented by police in reports
and recordings at the time of the shooting.
Today, when Freeman looks at the lineup, she says she picked the man in
position No. 4 because of his eyes, they looked so similar. And the man's light
skin tone.
"Maybe if all of them were the same complexion, then maybe he wouldn't have
stood out so much," Freeman said.
How to scan lineup an issue
The lineup Freeman viewed is called a "six-pack."
Six faces side-by-side. Six faces to scan, to compare, as she did. Is it better to
look at the faces all together? Or to look at the faces one at a time?
Simultaneous or sequential lineups, as the researchers call it. The question is a
major topic of eyewitness research today. Soon, in various U.S. cities, a pioneer
study by the Institute of Forensic Science and Public Policy will test it in real-life
criminal cases.
A spokeswoman for the Florida Department of Law Enforcement said the agency
is unaware of any efforts under way in Florida to study the reliability of
eyewitness identification.
Locally, the chief prosecutor of felonies in Palm Beach County said eyewitness
identification is often corroborated and proven a correct, reliable keystone of
many cases. Assistant State Attorney Alan Johnson said his office vets
eyewitness cases brought in by police and, in dubious ones, does not file formal
charges.
Ex-suspect fears revenge
Brandon Williams says he has never met or talked to Kendra Freeman.
But he'd like to thank her for being honest.
He says he spent most of his months in jail in solitary confinement, behind a solid
steel door for his own protection from other inmates. Once, he said, people who
knew Paulk threw hot water at his face.
"That's the scary part about it, being in there. I got people who think I did this
crime, and they are out to hurt me, but I don't know what they look like. I don't
know who to protect myself from," Williams said.
Behind a steel door, there's a lot of time to think.
He says he was shot at because he was in the wrong place, at the wrong time,
doing the wrong thing, buying drugs. "I thought, 'I've finally made a mistake that
could cost me the rest of my life.' "
Today, Williams lives locally and works helping to fix up houses, trying to stay
clean.
While he was in jail, his attorney sent him a black-and-white copy of the photo
lineup. He immediately noticed he was the only light-skinned one in it. He will
pursue a lawsuit over the lineup with attorney Val Rodriguez. With it, Williams
said, he hopes to change the procedures used in his arrest.
Meanwhile, victim David Paulk's parents say they believe their son was not an
intended target. He was a peaceful man, they say, who worked a steady
landscaping job, came home every day and ate Oreos. He was a musician due to
sign a rap contract soon.
Paulk, too, then, was in the wrong place at the wrong time.
Paulk's family and police still believe Williams was involved. The eyewitness saw
him, after all.
"How could she pick him out of a lineup and then change her mind?" mother
Stephanie Brooks asks rhetorically. "It just didn't make sense."
Paulk's parents said they know of no one else likely to be arrested for killing their
son. And fear that prospects of this shooting being different, being solved, are
gone.