Baltimore Sun, USA
12-27-08
Photo lineups criticized
City police pushed to take extra steps to ensure fair process
By Melissa Harris
Public defenders are calling on Baltimore police to overhaul the way victims and
witnesses pick suspects from photo lineups to ensure detectives can't influence
the results.
Police made some revisions last month, but Baltimore Innocence Project director
Michele Nethercott and city Public Defender Elizabeth L. Julian want
investigators to incorporate more aggressive reforms made in other states into
their policies.
City public defenders want the photos of possible suspects shown one at a time,
rather than in a group of six. When viewing photos one by one, witnesses would
have to repeatedly recall the event, rather than compare the pictures and choose
someone that most resembles the person they saw, said Gary L. Wells, a
professor of psychology at Iowa State University and expert on witness
identification.
Defense attorneys also want the police to require that the person showing the
photos not know the identity of the suspect. That way, there's no chance that an
unintentional cue - such as a sigh of relief after a witness identifies the suspect could increase a victim's confidence and prejudice her testimony at trial.
These changes are important, defense lawyers say, because about threequarters of the more than 200 people exonerated by DNA evidence nationwide
were convicted largely based upon witnesses' and victims' identification.
It's harder to get an identification when the person administering the test "doesn't
have a stake" in the outcome, Julian said. "But it's proven to be more accurate.
As defense counsel, we don't want less IDs. We want more correct IDs, and
everyone should be concerned about justice."
Jim Green, deputy legal counsel for the Police Department, said the changes
advocated by Julian and the Innocence Project are neither necessary nor
practical.
He said the department doesn't have the resources to hire a team of independent
photo array administrators.
Police policy requires:
• That detectives warn witnesses before photos are shown that a suspect might
not appear in the array.
• That all arrays be submitted into evidence, including ones in which the suspect
wasn't identified.
• That the innocent people included in the array - so-called fillers - have a similar
appearance to the suspect.
The Police Department "believes in its current system," and its revised policy
continues to "promote fairness and accuracy," Green said, adding that he
consulted with two division chiefs in the state's attorney's office before issuing the
new rules.
Technique in use
New Jersey, North Carolina, Boston and Hennepin County, Minn., which includes
Minneapolis, have adopted a newer, "double-blind, sequential" technique being
pushed by Nethercott and Julian, Wells said. Under this system, witnesses are
shown photos separately, in sequential order, and by someone who doesn't know
the identity of the suspect.
Even though this method isn't policy, some city prosecutors are asking police to
use it. The technique is most helpful in carjackings and robberies, in which the
victim and attacker are often strangers and a correct identification is critical, said
Andrea Mason, a supervisor in the state's attorney's firearms unit.
"I've had cases where the identification is suspect," Mason said. "And I don't
mean to criticize detectives because the transcripts seem to suggest that
unconsciously they're signaling somehow. ... There have been situations where
the person ID'd couldn't possibly have done it. He was in jail. Or he was dead."
City State's Attorney Patricia C. Jessamy said she supports her prosecutors'
requests for different procedures when they feel it's necessary, a spokeswoman
said. Jessamy plans to discuss this issue at a meeting with police Commissioner
Frederick H. Bealefeld III in January.
Uniform standards
This year the Maryland General Assembly took a step toward uniform standards
by requiring every police department in the state to write down its witnessidentification procedures and submit them to the Maryland State Police. They are
due Jan. 1.
Baltimore turned in its new rules this month because the agency had been
researching the issue long before the legislature acted, Green said.
Last year, Green and Bealefeld flew to Chicago to hear the results of the first
field tests comparing the double-blind, sequential method with the traditional
approach. The study found the newer method didn't work as well as expected,
but critics say the test was flawed.
"What this study has done is make the sequential aspect of this more
controversial," Wells said. "What should not be controversial in the least is the
double-blind. It is a staple idea in science. The only way you can assure that a
test was done objectively is that it was done by someone who does not know the
so-called correct answer."
The case of Jennifer Thompson Cannino illustrates what can go wrong when the
test-giver knows the "correct answer." In 1984, Cannino, then a student at Elon
College in North Carolina, was raped by an intruder in her off-campus apartment.
Eleven years later, DNA evidence proved that she had identified the wrong man,
No. 5 in the police lineup, as her assailant while the real attacker went on to rape
six other women. After making her choice, the detective investigating the case
told her, "Good job," which had assured her that she picked the right man.
Similarly, in a Baltimore County case, a rape victim picked Bernard Webster out
of a photo array, as did two witnesses who said they saw him at the victim's
Towson apartment building.
Webster served 20 years in prison before Nethercott, his attorney, uncovered a
slide from the rape kit in a Greater Baltimore Medical Center pathology lab, and
the results of a DNA test exonerated him.
Now Nethercott has turned her sights on helping Tavon Mints. Mints, now 27,
pleaded guilty in 2002 to the killing of Michael C. Hargrove, 30, a father of three
struck by an errant bullet as he looked out his apartment window after hearing
shots. Kevin A. Pearson, 19, who was outside, also was killed.
Nethercott said Mints agreed to a plea under strong advice from his defense
attorney, who has since died. Had a jury convicted Mints, he faced the possibility
of two life sentences, rather than the deal he accepted: a life sentence with all
but 30 years suspended.
Lineup questions
During the investigation, three people identified Mints in photo arrays. According
to Nethercott, however, two of those witnesses first told police that the two
gunmen wore bandannas over their faces and that they couldn't make an
identification.
The third witness, Gregory William Brown, 34, identified two other people in a
photo array - No. 2 and No. 4 - before calling out No. 5, who was Mints.
Nethercott is planning to argue that Mints' attorney failed to do his job by not
challenging prosecutors and witnesses on the reliability of the identifications.
"Someone once told me, 'Baltimore City is a great system for the guilty, and God
help you if you're innocent,'" Nethercott said.