Friday, August 13, 2010

Whenever you have an innocent person convicted, you have a triple tragedy.

Meet Michael A. Green. The NY Times has an article up detailing Green's case of being wrongfully convicted for rape and serving 27-years before recently having his conviction overturned.

Green, who is now 45, was convicted when he was 18 for the rape of a white girl in Texas. It is a sad tale, especially when you read about what happened to Green in jail. He talks about how he became so angry and violent that his constant fighting led him to very early on (1985) be confined to a segregated unit, where he spent all but 2 hours a day in his cell. He spent the last 25 years like that, agonizing day after day about what had gone wrong...why he had been convicted for something he did not do.

So what's the problem? A simple one: human memory. See...Green was convicted the way many people are: by eyewitness testimony. But as we all know, we don't alway see what we think we saw. Much like Bushwick Bill once sang, our minds can indeed play tricks on us. With every year that passes we are seeing more and more exonerations of people who were convicted, in large part, because victims got on the stand and testified that they were absolutely sure the Defendant was the one who robbed/raped/shot/etc. them.

The sad truth is that often, these victims and eyewitnesses are wrong.

Long before DNA was introduced, studies of wrongfully convicted people had shown that eyewitness identification was implicated in the majority of such cases. Wells at 48, e.g. Borchard, E., Convicting The Innocent: Errors of Criminal Justice, New Haven, CT: Yale University Press (1932); Frank, J. & Frank, B., Not Guilty, London: Gallanez (1957); and, Huff, R., Rattner, A., & Sagarin, E., Guilty Until Proven Innocent, Crime and Delinquency, 32, 518-544 (1986).

But it was with the advent of forensic DNA testing that we have been able to definitively uncover cases of wrongful convictions. According to The Innocence Project, 179 of the first 239 DNA exonerations were cases in which eyewitness misidentification was the central cause. That means that approximately seventy-five percent (75%) of wrongful convictions involve mistaken eyewitness identification.

In fifty-percent (50%) of those 179 cases, eyewitness misidentification was the sole cause for conviction. That means that eyewitness misidentification is the sole cause for approximately ninety percent (90%) of the DNA exonerated wrongful convictions. There can be no question that science has proven, and continues to prove, that not only are eyewitness identifications unreliable, but they also are often the sole reason why people are wrongfully convicted. (see Innocence Project website at

In our legal system, one of the most important cases regarding eyewitness identification is the SCOTUS case of Neil v. Biggers, 409 U.S. 188 (1972). In Biggers, SCOTUS set the standard for the admissibility of testimony concerning an out-of-court identification of an accused. The Biggers standard is that where there is a very substantial likelihood of misidentification, such likelihood violates the accused’s right of due process.

The Biggers court set up a two-pronged analysis. First, was the eyewitness identification unduly suggestive? Crap like roll-up IDs (driving a victim up to a Defendant in handcuffs or vice-versa), single-person show-ups, single-person photo IDs, improper photo arrays (all white, but one black person in lineup when the suspect is alleged to be black) are pretty much disfavored automatically. However, the Biggers two-pronged test says just because the procedure used for the identificiation was unduly suggestive, it doesn't mean it's not admissible. Courts must then move to the second prong of the Biggers test, which is to consider the "totallity of the circumstances." How does one do that? The Biggers court said you do that by considering the following factors: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of the witness’prior description of the criminal; 4) the level of certainty demonstrated by the witness at the confrontation; 5) the length of time between the crime and the confrontation.

Due to the biological nature of the DNA evidence that has led us to uncover most wrongful convictions we know of, a large majority of these DNA exonerations deal with cases involving sexual assault. In other words, in the vast majority of these cases where we know mistaken eyewitness identification has played a major role, the mistaken eyewitnesses have most likely: 1) been in close proximity to the criminals; 2) experienced heightened degrees of attention; and, 3) had ample opportunity to observe the criminals. Since these cases resulted in convictions, we can assume that the degree of certainty with which these eyewitnesses made their misidentifications was high. In short, science has proven the second prong of Biggers and its consideration factors obsolete.

So consider, if you are one those folks dropping comments over on SCNow about how Joe Blow should fry or be hung every time there's an article posted about a crime or a criminal trial, stop. Take a deep breath. Realize that science is proving to us every day, that the people most likely to know what happened during any given crime, are often dead wrong. And if they're dead wrong, what's the likelihood of you being wrong? We don't know what you would think of those odds, but we bet you wouldn't be willing to bet your next paycheck on them.

As for Mr. Green, he's trying to decide whether or not to take an offer from Texas of $2.2 million or sue. Green says it's hard to put a price on what happened to him and he has concerns about not having what happened to him exposed in court. While he ponders that decision, Green will pass his time working to free other wrongfully convicted people as a clerk with the Innocence Project. Green will probably also spend some time thanking his lucky stars that he was convicted in the circuit where Patricia Lykos was elected DA.

In 2008, Patricia Lykos, a former judge and police officer, was elected district attorney, and one of her first acts was to reverse the office’s longstanding reluctance to admit mistakes. She assigned two assistant district attorneys and an investigator to do nothing but comb through about 185 cases involving requests for DNA tests as well as about 75 other innocence claims. So far, the unit’s work has led to the release of three men, including Mr. Green.

Ms. Lykos has been pushing for a new regional crime lab to help expedite the cases. Not only were innocent men imprisoned, she said, but the victims were denied justice and the actual culprits remained free to commit other crimes. “Whenever you have an innocent person convicted, you have a triple tragedy,” she said.
That, my friends, is what a prosecutor is supposed to be about: Justice. Hoozaahs for Mrs. Lykos. It's refreshing to see a former cop and Judge who has gone into prosecution and carries with her such ideals. As one of the Assistant DAs Lykos assigned to the case, Alicia O'Neill noted, having Green walk out of jail "It's what you go to law school for." Damn right it is.

None of the above should be considered legal advice. It is being offered purely for entertainment purposes only. If you need legal advice, you need to contact an attorney. Support Freedom, Liberty and the Constitution...hire an attorney.

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