Race sometimes a problem in eyewitness IDs
Posted August 10, 2008
Winston-Salem, N.C. — In the midst of being raped, Jennifer Thompson-Cannino told herself to pay attention to details that would allow her to identify her attacker.
She was able to give police in North Carolina a description that led to a sketch of the suspect. Then she identified a man from photographs, picked him out of a lineup and told jurors she was certain he was the rapist.
That man, Ronald Cotton, received a life sentence and spent more than 10 years in prison before DNA testing cleared him of the crime.
Now victim and the innocent man she helped convict are writing a book together.
Thompson-Cannino, who is white, had mistakenly picked out one black man; another was guilty of the crime.
"Between the composite sketch and the photo identification, I had messed it up," she said, recalling the 1984 rape and its aftermath. "By the time I got to the physical lineup, Ron Cotton had become my attacker, and that was that."
As she came to learn, she was not the only one to make a mistake so devastating that it deprived someone else of his freedom.
Since 1991, 218 people have been exonerated through DNA testing, and in more than three-quarters of the cases, mistaken eyewitness identifications were crucial in the wrongful convictions, according to The Innocence Project, a legal group that has sought genetic testing and led the charge to free innocent inmates.
The North Carolina Project on Actual Innocence, based at the Duke University School of Law, has helped The Innocence Project exonerate inmates, including Dwayne Dail, of Goldsboro, and Darryl Hunt, of Winston-Salem. DNA evidence cleared the men, both of whom spent 18 years in prison. Dail had been convicted of rape and burglary; Hunt, of murder and rape.
Nationally, roughly seven dozen – nearly half – of the cases where The Innocence Project has helped free an innocent person, involved a person of one race wrongly identifying someone of a different color.
Even people with training in law enforcement confront the difficulty of accurate identifications. Boston Police Sgt. Gregory Gallagher, who is white, identified Stephan Cowans, who was black, as the man who shot him twice with Gallagher's own police-issue gun in 1997.
Several years later, testing on a sweat shirt, cap and glass that the suspect wore or touched ruled out Cowans as the shooter. His case was also plagued by misidentification of a fingerprint.
Cowans was released from prison after serving 5 1/2 years. He was found shot to death in his home last year.
This year, North Carolina became the first state to standardize identification procedures. That includes preventing the police officer who is investigating the crime from conducting photo identifications with witnesses and requiring that lineup photographs be shown one after another rather than in groups of six.
The American Bar Association, meeting in New York, is considering whether to recommend that judges use their discretion to make juries aware of the problems that can plague cross-racial identifications.
California, Massachusetts, New Jersey and Utah already employ such instructions in some cases.
"The majority race is not as good at identifying minorities as it is its own race. This is hard-wired in some way that we don't completely understand. But the phenomenon should be presented to the jury," said Barry Scheck, co-founder of The Innocence Project.
Prosecutors, however, do not want judges to raise the issue with juries.
"This is not an appropriate area for judges to go into," said Josh Marquis, district attorney in Astoria, Ore., and a member of the executive committee of the National District Attorneys Association. "Yes, eyewitness ID across races has its issues. But is there a rampant problem to the degree that we need to get judges to start telling juries this is the law? No."
Some criminal justice experts believe that mistakes are so pervasive that nothing short of wholesale reforms in identification procedures will fix the problem.
New software that was on display at the ABA's annual meeting allows witnesses to use police laptop computers to identify photos of suspects in programs that do not vary from investigator to investigator or witness to witness.
The entire session is recorded and defense lawyers are able to obtain digital copies of the photos and the audio. Defense lawyers have complained in the past that authorities often do not turn over the photos used to identify suspects, leaving them no way to measure if the process was tainted.
Thompson-Cannino was 22 when she was raped. She is now the mother of 18-year-old triplets in Winston-Salem. She was changing the sheets on their beds when she spoke to The Associated Press by telephone recently.
Her experience has made her an advocate for criminal justice reform.
She and Cotton, who also lives in North Carolina, are at work on a book called "Picking Cotton," that is to be published next year.
"It's a memoir of our journey through the system, also of forgiveness and redemption," she said.