Mistaken identifications by victims and eyewitnesses annually send too many people to jail for crimes they didn't commit. In Texas, legislation to address the problem was introduced last month, but justice advocates claim it doesn't go far enough.
On March 22, 1984, two teenage girls were walking home from a store in the Oak Cliff neighborhood of Dallas, when they were confronted by a man with a gun.
“Follow me,” he told them, “Or I’ll shoot.”
He took them to a nearby field, raped them, and fled on foot.
Several days later, Johnny Pinchback was driving a friend’s Datsun 280Z through an apartment complex parking lot, when one of the girls, who happened to live in the complex, spied Pinchback. Believing he was her attacker, she jotted down the license plate number.
The following day, Pinchback’s friend, the Datsun’s owner, called Pinchback on the phone.
Saying, “you’re not going to believe this, ” the friend reported he had been visited by police who asked for the name of the man seen driving his car the previous evening. The man, according to the police, was the principal suspect in the rape of two young girls.
Pinchback recalled that he was shocked, but thought the situation would quickly resolve itself.
“When I found out that I’d been accused, I called [Dallas Police] Crimes Against Persons [division] and said, ‘I didn’t do this; I had nothing to do with this,'” he said in an interview with The Crime Report.
The detective told Pinchback to come down to police headquarters “so we can get this sorted out.” The officer took a couple of photos of Pinchback, and said that he was free to go.
A few days later, two officers arrived at his mother’s house with a warrant for Pinchback’s arrest, explaining there were some unpaid tickets he had to resolve.
Fingered in a Photo Lineup
But once he was in jail, however, he was charged with two counts of aggravated sexual assault. Each of the teens had selected Pinchback as their attacker from a photo lineup.
Still maintaining his innocence, Pinchback was convicted in October 1984 and sentenced to 99 years in prison.
“(Even) after I was sent to prison I still couldn’t believe it,” he says now. “99 years for something I didn’t do. This can’t be real. I was devastated.”
On May 12?27 years after he was sent inside?Pinchback finally walked out of prison a free man.
Pubic hair clippings collected after the 1984 crime had finally been tested – at the behest of the Innocence Project of Texas and with the blessing of the Dallas County District Attorney’s Conviction Integrity Unit. The male DNA profile did not match Pinchback.
The real perpetrator has yet to be identified.
Pinchback is the 44th Texas inmate to be exonerated based on DNA evidence, and among the vast majority of Texas exonerees who were originally sent to prison based on a faulty eyewitness identification.
“In Texas, flawed identifications are a very serious problem; 86% of the state’s…DNA exonerations involved a mistaken eyewitness identification,” says Houston Democratic state Sen. Rodney Ellis, a veteran lawmaker with a passion for criminal justice issues who sits on the board of the New York-based Innocence Project.
“While the wrong man was incarcerated, the real perpetrator [is] on the street, free to commit more crimes and harm more victims.”
Many lawyers and criminal justice advocates agree that faulty eyewitness IDs are a big problem in Texas. Yet, as the number of exonerated inmates continues to grow (Pinchback is the second man exonerated this year), there has been little consensus on how to address the issue.
Texas lawmakers last month passed a measure that Ellis and his allies say will go a long way to reducing the number of mistaken IDs, by requiring police departments across the state to adopt policies that govern live and photo lineups based on best practices gleaned from years of research into human memory.
“I truly believe this bill will increase public safety, reduce wrongful convictions and ultimately reduce the amount of money the state spends to compensate the wrongfully convicted,” Ellis wrote in an email to TCR.
But not everyone agrees.
Defense attorney Jeff Blackburn, founder and general counsel for the Innocence Project of Texas, believes the measure (Texas House Bill 215) “standing alone, will accomplish approximately nothing.”
In fact, disagreement among advocates about the right way to approach the problem of mistaken IDs? by requiring police departments to adopt procedures, but without including any sanctions for noncompliance?leaves many criminal justice reformers wondering whether the new Texas law will actually do anything to curb the problem.
A National Problem
The problem is not confined to Texas. Nationally, at least 75% of more than 250 wrongful convictions involves “at least one mistaken eyewitness identification,” says Steve Saloom, policy director of the Innocence Project in New York, which fights similar cases across the country. “(We) want to see improved eyewitness ID procedures at all times, everywhere.”
Part of the problem of mistaken identifications lies in the fact that many police agencies do not have standardized best-practice policies regarding the conduct of live and photo lineups that are based on best practices. There is no reason why such policies can't be applied, notes Saloom, considering there have been more than three decades of research on the “fallibility of human memory.”
According to a 2008 study from The Justice Project, a nonprofit that works to increase fairness in the criminal justice system, just 88 of 750 Texas police agencies who responded to a request for information on their lineup procedures actually had any written protocols for the administration of lineups.
Among the small number that did have such protocols, The Justice Project found that the existing policies were “largely inadequate” to fight faulty IDs.
Inadequate policies generally take for granted the idea that human memory works like a camera, which it does not, Iowa State University professor Gary Wells told Texas lawmakers in 2008. Rather, he said, memory is an active reconstruction process—meaning that what “we expect [to see] affects what we think we see.”
Wells told the Texas Criminal Justice Integrity Unit, a group of judges, lawyers and lawmakers who consider ways to improve Texas’ criminal justice system, that ensuring police follow best practices when dealing with witnesses to crime is crucial. .
That’s exactly what the new Texas law seeks to do. Under the new law (which is still awaiting the signature of Gov. Rick Perry), the Bill Blackwood Law Enforcement Management Institute at the Sam Houston State University, created by state lawmakers in 1987 to provide management training for police officials across Texas, will devise a “model policy” that is based on “credible field, academic, or laboratory research on eyewitness memory” – such as Wells’ work – to include “best practices” that aim to reduce mistaken IDs.
The policy should include procedures for “blind” administration by a person not aware of which photo (or person, in the case of a live lineup) is the suspect; and should address what instructions are given to a witness (best practices dictate that the witness should be told that the suspect may not appear in the lineup, for example), and how lineup evidence is preserved.
The law will also require all Texas police agencies to adopt the model Blackwood policy or their own independent version of it (based on the same principles) no later than Sept. 1, 2012.
Notably, however, it is what the new law doesn’t do that has frustrated many criminal justice reformers.
The law does not provide any sanction for police agencies that fail to adopt these best practices or the model policy. Moreover, the law still allows for lineup evidence gathered outside of best practices to be admitted as evidence in court.
That last point, says the Innocence Project of Texas’ Jeff Blackburn, is “simply ridiculous.”
“It’s appealing to the better angels of a policeman’s nature, and I’ve yet to find any good angels there,” he says. “In fact, the whole history of this state is that of resistance by police and prosecutors to any change at all, no matter how overwhelming the evidence to support it is.”
The reality, says Blackburn, is that once an eyewitness ID is made in court it has a profound impact on the jury – and devising a law that will still allow any ID to come into evidence, regardless of how it was obtained, is just dangerous.
The Texas Innocence Project, he says, has worked to free eight of Texas’ 45 DNA exonerees (each of the eight was a victim of mistaken ID), and has handled at least 150 additional cases involving mistaken ID.
Advocates and lawmakers in Texas, he argues, have been entirely too deferential to police and prosecutors, who have fought the inclusion of these more stringent measures, and are now congratulating themselves on passing a bill that will do nothing to stop the problem.
“The exonerees should be insulted” by the new law, says Blackburn.
Ellis says he would have “preferred stronger remedies” for noncompliance, but notes those remedies were opposed by prosecutors and police in the state. Had those measures been included, he wrote in an email, the bill simply would have died.
And Ellis remains optimistic that this law will have a positive impact.
“There will be a strong incentive for law enforcement agencies to adopt best practice in lineup procedures because there will be a statewide model policy to which their policy can be compared,” he wrote.
“If a police officer doesn’t follow his department’s lineup procedures, that fact can be discussed in court; and now the jury and judge will know when best practice were not followed.”
Blackburn and others, however, don’t believe this is sufficient to turn the tide in Texas.
“In most of the counties of this sprawling state, people don’t care much about what a defendant’s lawyer does.” Blackburn declared. “And if that defendant is black or brown, they’re going to prison. That’s the reality of this state. Unless we punish bad behavior, it will persist. And in this state there’s no will to punish bad prosecutor or police behavior.”
The Innocence Project’s Saloom acknowledges that there were barriers to passing a more restrictive measure.
“This is the best legislation, and the most effective, that the…process would allow for this year,” he says. “The fact was that the legislature was not ready to require this of all police departments statewide and to create sanctions [for noncompliance]. That’s just the way it is.”
Still, he’s taking a glass-half-full view of things. He believes that, statewide, there are plenty of police departments that do support the measure and he believes that defense attorneys can make a difference in whether substandard IDs are allowed into evidence.
“If you’re going to get hammered by defense attorneys for not following best practices,” prosecutors might not only think twice about offering an ID, but also may apply pressure on their local police to make sure they’re in compliance with the law,” he says.
“Police across Texas will adopt procedures and where they don’t there will be some pressure from the legal system to push that along. It might be that legislation can make a dent in the problem. This is an important step in what is an incremental process.”
Rhode Island Approach
Saloom points to Rhode Island as an example of good policy that can come from what appears to be a relatively weak law.
In 2010, Rhode Island lawmakers passed an eyewitness ID task force bill that he says was “very watered down.” But by the time the task force, made up of lawyers and police, finished their work, a strong framework for addressing the problem of faulty IDs emerged.
“It looked weak, but it gave police and prosecutors an opportunity to get there on their own. It allowed them to embrace [reform],” Saloom says. “They decided….why not [embrace strict changes]? Because up in Rhode Island, they realized that they want to catch the right people.”
Rhode Island joins at least nine other states that have embraced eyewitness ID reform, providing strict guidelines for administering lineups. Two of these states, North Carolina and Ohio, also include remedies “for noncompliance for consideration by the court,” according to a snapshot of eyewitness ID policies compiled by the Innocence Project.
Johnny Pinchback hopes that the state of Texas will do as much as it can to fix the problem of mistaken IDs, the problem that sent him to prison for nearly three decades.
In fact, Pinchback was helped to freedom by another Texas exoneree, Charles Chatman?also a victim of mistaken ID, which sent him to prison for 27 years for a rape he did not commit (he was released in 2008, the 14th Dallas man to be exonerated based on DNA evidence since 2001)?who met Pinchback in prison.
Once he was freed, Chatman hounded the IPOT to take up his friend’s case. Now, Pinchback says, he would like to help pay forward that favor. There were times in prison, he said, where his situation felt so dire that he would “pull the cover over my head and cry” at night, in the dark of his cell.
But now, he says, he will work to get attention paid to the plight of other wrongly identified prisoners.
Indeed, there are likely thousands of them, says Blackburn.
Conservative estimates suggest that 1% of Texas’ prison population (roughly 167,000 inmates) were wrongfully convicted. If even that modest guess is correct, that means more than 1,600 inmates in Texas prisons are innocent of the crimes they were convicted of.
However, Blackburn suspects the number may be as high as 4%, based on the number of cases that his group sees. Right now the group has 430 open cases.
“That’s a staggering number,” he says.
ED NOTE: for a complete text of Texas House Bill 215, read here.
Jordan Smith, winner of last year’s John Jay/Guggenheim Award for Excellence in Criminal Justice Journalism, is an investigative reporter for the Austin Chronicle. She welcomes reader comments.