Sun-Sentinel.com, FL
10-29-07
Broward public defender urges police to reform lineups for suspects
By Tonya Alanez | South Florida Sun-Sentinel
When a bad ID by an eyewitness can land an innocent man in prison for almost
14 years, it's time to kick-start change, says Broward Public Defender Howard
Finkelstein.
Trying to remove bias from what he says can be misleading police-lineup
procedures, Finkelstein sent a letter last week to Broward law enforcement
officials suggesting reforms. This action brings Broward in line with a growing
national movement to prevent mistaken witness identification.
The DNA exoneration last month of Larry Bostic, 50, of Fort Lauderdale,
prompted Finkelstein's Oct. 23 letter.
A Broward judge tossed Bostic's prison sentence — 13 days shy of its
completion — after DNA tests showed he was not the man who raped a Fort
Lauderdale woman in 1988.
Bostic's accuser recently told an investigator she never saw her rapist. She
picked Bostic out of a photo lineup, she said, because she had seen him in the
neighborhood in the days before the attack.
Simple extra precautions could keep this from happening again, Finkelstein said.
"These procedures will impact the human cost of misidentification," he said. "This
isn't about pointing the finger at law enforcement. This is about making sure the
methodology and the systems we employ are designed so innocent people don't
get ensnared in our system."
Bostic is the 208th person nationwide to be cleared of a wrongful conviction by
DNA, according to the Innocence Project, a New York-based legal advocacy
group. Mistaken identification is the common thread in 75 percent of those cases,
the group said.
Most of Finkelstein's proposed changes spring from the work of Gary Wells, a
psychology professor at Iowa State University who has studied the reliability
of eyewitness identification for three decades.
One of the greatest fallacies about it is its reliability, Wells said. "It's highly
persuasive," he said, "but it's more persuasive than it is reliable."
In Broward County, witnesses look at photo lineups in groups of six, often
referred to as a six-pack. A suspect's mug shot is included with mugs of five
other people who look similar.
Finkelstein is asking for witnesses to look at mug shots one at a time.
"When they're handed individual pictures, they're concentrating on the picture in
front of them and the image that they have in their mind, as opposed to trying to
compare and contrast ... and trying to decide who looks most like the person, in
their mind," said Broward Assistant Public Defender H. Dohn Williams, who
researched the topic with Finkelstein.
Finkelstein is also asking that witnesses be told, before viewing a lineup, that the
suspect may not be included.
Otherwise, according to Wells, the expert, witnesses feel pressured to decide on
one person and home in on the person who looks most like the perpetrator,
rather than relying on true recognition. "I call that a relative judgment," he said.
"Because what they're doing is deciding who looks most like the perpetrator
relative to the other lineup members."
Broward Sheriff Al Lamberti and Fort Lauderdale Police Chief Bruce Roberts
each received the letter and were reviewing it, their spokesmen said Friday.
"If we had concerns about the procedure, we would have changed the
procedure," said Elliot Cohen, spokesman for the Broward Sheriff's Office. "But
new ideas and new proposals are always worth looking at, and we'll take it in that
spirit."
A year ago, the Broward State Attorney's Office initiated discussions with the
Sheriff's Office about modifying its live lineup procedures.
Brian Cavanagh, supervising prosecutor in the homicide unit, advocates allowing
witnesses to explain their certainty or uncertainty.
The current live lineup procedure is problematic, he said, because it's an "all-ornothing" approach where witnesses must identify someone with certainty.
"Not everybody gets as clear a view as we would like them to get," he said.
"Maybe they get a partial glimpse or a profile. Well, partial identification is better
than none, especially in conjunction with other evidence. Life is not an all-ornothing proposition."
Sixteen states considered legislation this year to prevent mistaken witness
identification. Most recently, North Carolina lawmakers, in the wake of the Duke
University lacrosse case, set procedures that law enforcement must follow when
conducting a lineup.
Police there had used a flawed photo lineup to indict three players accused of
sexually assaulting a woman at a team party in March 2006. They had included
only Duke lacrosse players in the lineup they showed the alleged victim. In April,
the North Carolina Attorney General's Office dropped all charges against the
three players.
Tonya Alanez can be reached at tealanez@sun-sentinel.com