Modesto Bee, CA
11-13-07
MISTAKEN IDENTITY
An innocent man spent weeks in jail after the Modesto victim of an attempted
robbery id'd him. But the victim was wrong.
By EMILIE RAGUSO
eraguso@modbee.com
Richard Houston Jr. left his house in northwest Modesto one cool August night
heading for a party. By morning, he had been arrested on suspicion of armed
robbery after a victim said he was "100 percent sure" Houston was his assailant.
The victim was wrong. Houston spent nearly two months in jail.
The Stanislaus County district attorney's office dropped the charges against
Houston a day after Deputy District Attorney Nate Baker watched a surveillance
tape from a store where the victim saw the gunman before the crime. Houston,
Baker determined, could not have been the robber. No one else has been
arrested.
"I felt reborn when I walked through the gate," said Houston, 20, about his
release from the Stanislaus County Public Safety Center. Houston splits his time
between Modesto, where his stepmother lives, and his father's home in Stockton.
"I spent 55 days in jail. That time's double when you're in there for nothing."
Law enforcement officers stress that most arrests are good. Houston's arrest,
however, illustrates the risks of eyewitness identification.
Mistaken eyewitness identifications contributed to more than 75 percent of the
208 wrongful convictions overturned by DNA evidence in the United States since
1989, according to the Innocence Project, a nonprofit legal clinic at the Cardozo
School of Law in New York City. Eight of the nine California exonerations relied
on eyewitness identification.
Psychologists who study memory say it isn't as reliable as most people, including
police and prosecutors, assume.
"We put more faith in eyewitness identifications than we should," said Daniel
Reisberg, a professor of cognitive psychology, perception and memory at Reed
College in Portland, Ore. He testifies in court as an expert in these areas. "Juries
put a lot of faith in eyewitness identifications. They're the second most powerful
form of evidence, with first place going to a confession. They're next in line as the
best way to persuade a jury."
'Empty your pockets'
Sometime before 2 a.m. on Aug. 15, a 45-year-old man left his home near
Cheyenne Way and Prescott Road in Modesto to buy cigarettes at Stop N Save
Liquors. The man's name has been withheld at his request. About 2:20 a.m.,
while walking home from the market at 1701 Standiford Ave., he heard noises in
the bushes. Two people stepped onto the sidewalk.
"Empty your pockets," said one, wearing a hat, a white mask, a white shirt and
dark pants. The other was wearing dark clothing and a dark mask. Both were
black, the victim said, in their 20s and about 6 feet tall. He recognized the
gunman as someone he'd seen at Stop N Save.
"I start screaming, 'Help!' I see a gun pointing at me," the victim said. "I don't
know if these people will shoot or not. All these things are going through my mind
fast."
He ran south on Carver and flagged down a police officer. Nearby, at 2:22 a.m.,
Modesto police Sgt. Ed Steele heard a broadcast about the robbery attempt,
according to his police report. Steele drove north on Prescott from Standiford to
look for suspects. Houston had watched TV for most of the day at his
stepmother's house Aug. 14, a Tuesday. About 1 a.m. Wednesday, his best
friend, Angel Mota, called to see whether Houston wanted to hang out. About 2
a.m., Houston left his stepmother's home, near Standiford and Prescott, to walk
to Mota's, just north of Pelandale Avenue off Prescott. As he walked, Houston
talked on his cell phone to a friend who told him about a party off Tully Road.
Steele was on Prescott when he saw Houston: a black man in a cap, white shirt
and dark pants walking north on Prescott near Snyder Avenue. The description
of the gunman matched the man walking, according to Steele. Houston was
coming from the direction of the crime and Steele said Houston jumped over a
wall when Steele was following him, which Houston denies. Steele said he
watched Houston run to a house on Floral Court, which turned out to be Mota's,
then called for backup. Police took extra precautions because a handgun had
been used in the robbery attempt.
Houston said he had seen a police officer following him but thought the officer
had driven away. He walked out of Mota's front door when his friend, waiting to
pick them up, asked whether Houston could see all the police outside. Houston
found guns drawn on him; he was handcuffed and placed in a police car. Officers
did not tell him why they stopped him, he said.
Officers brought the victim to Mota's. They held spotlights on Houston while they
pulled his shirt up over his nose and his cap down over his eyes. Police told the
victim that Houston might not be the assailant and that there was no pressure to
identify him. This disclaimer, called a Simmons Admonishment, is required during
"field show-up" identifications like this, said police Sgt. Craig Gundlach.
The victim told police he was sure Houston was the man who tried to rob him.
Police took Houston to the station and arrested him within a few hours.
"When Houston came out, the guy fit almost exactly who I saw," the victim said
last week. "I was pretty certain. I was as close to certain as I could be that he
was one of the assailants."
The eye is not a camera
Popular models of human behavior, which posit that the eye is a camera and that
memory is a tape recorder, are simply incorrect, said psychologist Robert
Shomer, a former instructor at Harvard and now a consultant in Southern
California.
"It's completely bogus. The fact of the matter is that people's faces are
nonimperishably stored. Memory is very dynamic and changeable," he said. Just
showing a victim a suspect can change a person's memory of his attacker. Field
show-ups are particularly problematic, because the victim is viewing someone in
handcuffs, surrounded by police, usually within an hour of the crime. "Once you
run a person through a suggestive eyewitness identification process (such as a
field show-up), you've altered the evidence irretrievably. There is no mental
eraser."
Field show-ups used to be universally reviled by researchers because of the
suggestive atmosphere, said psychologist Reisberg, but recent studies have
found that victims also tend to be more cautious about making identifications
during them.
"It's hard to maintain the claim that across the board it's a bad procedure," he
said.
Many factors can influence how well witnesses remember. High levels of stress,
for example, have been shown to make it harder to recall an event accurately. A
2004 study on more than 500 military personnel found that subjects who
underwent high-stress interrogations were much less likely, 24 hours later, to be
able to identify their interrogators than those whose sessions did not include the
risk of violence.
"Weapon focus" also plays a major role. Repeated studies have found that
people are much more likely to remember an assailant's face if no weapon was
present during an attack. The weapon is like a "visual magnet," said psychologist
Shomer, drawing attention from its wielder.
Accurate memory of an attacker's face depends on how long a victim saw the
attacker, too. Research has shown that witnesses tend to overestimate the
length of stressful events and think they saw a perpetrator for longer than they
did, according to several studies by forensic memory expert and University of
California at Irvine Professor Elizabeth F. Loftus. This can lead them to feel more
sure about an identification than they should and, in turn, encourage inflated
confidence in police, attorneys or juries.
Race has been shown to have a huge impact on the ability to remember faces
accurately. During the attempted robbery for which Houston was booked, the
assailants were black and the victim was not. People generally have a hard time
distinguishing faces of people of races other than their own, said psychologist
Reisberg. This can wreak havoc for victims during eyewitness identifications.
"If you've got a (lineup) situation in which the actual perpetrator is not present,
the risk of a bad pick goes up by almost 60 percent when it's cross-race
identification," he said.
As his days in jail stretched into a second month, Houston said he thought there
was a good chance he'd be convicted of a crime he never committed.
"I thought I was going to get charged for the whole thing," he said. His father,
Richard Houston Sr., visited often and reminded him not to respond to inmates
who tried to pick fights. "My dad wouldn't let me get depressed."
In jail, Houston learned to hate 26-hour lockdowns, the spoiled milk and bugs in
his beans, and guards who treated him like a guilty man. Once, when his father
was leaving after a visit, he cried for the first time since his parents' divorce in
2000.
"It was all cool through the whole visit," Houston said. "Then he had to make it all
movie scene. He put his hand on the glass. I thought, 'Why should I have to
touch my dad through glass?' "
Houston and his family could not afford his bail.
Since his release, Houston said he's taken more time to look at the stars. One
day, he sat in the rain for an hour just because he could. He's been playing with
his new pit bull puppy and writing about what happened. He's also looking for
work. He was supposed to start a job days after his arrest; the position wasn't
open when he got out.
Houston said the relief of his release outweighs any anger he felt at being locked
up. His father is not so forgiving.
"It was blatant that they tried to frame him," he said. "They tried to frame him and
tried to push him through the court, to take a plea."
Watching Houston sit in jail, said best friend Mota, undermined what little faith he
had in the justice system. He watched Houston get arrested after Mota was
forced, along with Mota's 15-year-old brother, to stand in a lineup outside his
home. The same night, Mota saw his dog pepper-sprayed and a light on his
house broken by police. The police, he said, decided Houston was the robber,
then failed to pursue evidence that might have freed him.
"How do you arrest somebody and make them your No. 1 suspect so fast? There
has to be further investigation," he said.
Several elements from Aug. 15 still don't add up. In early November, the victim
said he told police the night of the attack he had seen his assailants at Stop N
Save. This information was not in Steele's police report. Police said they did not
learn this until early September, when the victim approached police at the
Stanislaus County Courthouse and said he wanted to add to his statement.
Houston had been in jail for three weeks.
Had police known the assailants were at the market, they would have scrambled
to watch the surveillance tape, Steele said Sunday.
Even after the victim told police about seeing the robbers earlier, it took more
than a month for someone to track down the store surveillance tape, despite
efforts by Houston's defense attorney, Robert Schell, to see it sooner. It usually
takes about two weeks to get this kind of evidence, said Baker, the deputy district
attorney. After waiting for the tape for three or four weeks, Baker said, he learned
that the police detective charged with getting the tape had been out of the office
on training or vacation. Baker rushed to pick up the tape and watch it; Houston
was released the next day.
Putting together a puzzle
Eyewitness identification is just one piece of evidence police gather when they try
to connect a suspect to a crime, Gundlach said. They evaluate whether someone
matches the suspect's description. They consider the time and location of the
crime and whether a suspect was nearby. They look at someone's behavior to
see whether it's suspicious.
"The test comes back to what's reasonable to the officer," he said. "There was
plenty of information that night to think that (Houston) could have been the right
guy."
But although Modesto police followed procedure, an innocent man spent nearly
two months in jail. Recent studies on memory, lineup structure and identification
techniques have urged more stringent guidelines for law enforcement. Several
states have adopted such guidelines. California was not among them. For many
agencies, however, there just isn't time to gain a deep understanding of how
memory works.
"Police are responsible for knowing 43 million different things," said psychologist
Reisberg. "How to recognize different kinds of weapons, drive really fast if you're
chasing somebody, understand search warrants and probable cause. We're
asking them to do one hell of a difficult job."
Cadets at the Ray Simon Regional Criminal Justice Training Center in Modesto
receive 31⁄2 pages of reading on eyewitness identification procedures; most of
what they learn happens after they graduate from the academy, said director Lt.
Jim Gordon. He said the academy would consider assigning a research paper on
memory and eyewitness identification to cadets.
Some experts say it's not enough. With few exceptions, the legal system has not
conducted research on eye- witness evidence, has never conducted an
experiment on memory and has no scientific theory about how memory works,
according to one of the leading experts on memory research, Gary L. Wells, a
professor at Iowa State University.
"Police receive inadequate or no training in carrying out reliable and valid
eyewitness identification procedures," said psychologist Shomer.
But for the wrongfully accused who wind up in Houston's shoes in Stanislaus
County, there's a chance their innocence could be overlooked. In her experience,
situations such as Houston's happen at least several times a year, said Martha J.
Carlton-Magaña, a Modesto defense attorney who worked for the Stanislaus
County public defender's office for two decades before retiring in April. It's
impossible to know for sure how often this happens, because DNA evidence,
which isn't available in most cases, is the primary tool for exonerations.
Houston, she said, should consider himself lucky. Many defendants represented
by public defenders never get to tell their side of the story; the office doesn't have
the budget for an interviewer and attorneys barely get to look at their clients' files
before court appearances, she said. People often sit in jail longer than they
should, she added, because lawyers do not appear during arraignment, where
they would have the chance to request a bail reduction or that their clients be
released on their recognizance.
"Our system is broken in this county because we don't have the checks and
balances in place that we should," she said.
Chief Deputy District Attorney John Goold said Houston's release shows the
opposite.
"As much as possible, we can't have people in jail who did not commit crimes.
When it happens, we want to find out as soon as possible," he said. "In all
honesty, you have to say the system as a whole worked, even though he had to
spend some time in jail."
Bee staff writer Emilie Raguso can be reached at eraguso@modbee.com or 5782235.