Conn. Hosts National Conference on Eyewitness ID Mistakes and Protocols

When an intruder broke into Jennifer Thompson's home while she was sleeping in 1984, put a knife to her throat and sexually assaulted her, she vowed to not only survive, but to remember his face so he would be captured.

"I knew I was going to be raped. I didn't know if I was going to die. I decided if there is a way to survive this – I will," Thompson said. "I would look at his face and memorize it, I would memorize his nose, look in his eyes, listen to his voice and remember what he was wearing."

Thompson eventually got a chance to flee, and ran to a neighbor's house for help. Police asked Thompson if she got a good look at the man, and based on her description, an artist came up with a sketch, which was distributed in the media. A tipster thought the sketch looked like Ronald Cotton. Police asked Thompson to look at a photo array of possible suspects and initial the photo of her attacker, and she identified Cotton, who was ultimately convicted and spent 11 years behind bars.

But Cotton was innocent all along, and it wasn't until 1995, with the help of a DNA test that authorities learned Cotton was the wrong man. The real perpetrator was a man named Bobby Poole.

Thompson, of North Carolina, was among the speakers at the first National Symposium on Eyewitness Identification Reform, a two-day event at Yale Law School which started June 28. About 160 people from 23 states were in attendance, and included judicial officials, law enforcement, prosecutors, defense attorneys and policy makers.

According to event organizers, eyewitness misidentification in is the single greatest contributing cause of wrongful convictions in the country, and played a role in 71 percent of convictions later overturned because of DNA testing. The event included speakers from around Connecticut and the nation. "I fell into a black hole – I suffocated and became paralyzed with guilt and shame," Thompson told those attending the event.

Thompson later met with Cotton, who told her he had forgiven her years ago. "We had all been failed, had all been harmed, and I became the face for wrongful convictions," Thompson said. "It is important we lay the blame on the real perpetrator, the guilty person. For every wrongful conviction we have, a family is harmed. Keep in the back of your minds, those victims who have been failed. I hope my story has touched a place in your heart."

Protocol Change

In 2012, Connecticut lawmakers passed legislation called "An Act Concerning Eyewitness Identification Procedures," which was based on the recommendations of a Connecticut Eyewitness Identification Task Force.

Now in Connecticut, rather than a simultaneous photo array being presented, a witness is asked to view one photograph or person at a time. To avoid the possibility of a witness being swayed or prompted by the person showing them the photographs, an officer or detective who isn't involved in the investigation, and who doesn't know which individual is the suspect, presents photographs.

A witness is told the perpetrator may or may not be among the persons shown. Witnesses are told police will continue to investigate the offense regardless of whether the witness makes an identification.

Michael Gauldin, a retired Burlington, North Carolina police chief, who worked on the Thompson case, told those in attendance he helped send an innocent man to prison. "It is vitally important for law enforcement to know how easily this can happen," Gauldin said. "I was instrumental in a young man losing 11 years of his life. I don't have words to describe how I feel. I remember telling Jennifer [about the mistake], and her screaming and crying, asking 'How could this happen?' I hope to prevent this from ever happening again."

According to Gauldin, "a faulty line-up" was a contributing factor in that case. "All of us were convinced we had the right man," Gauldin said. "A wrongful conviction destroys people and families, and this is something you need to be concerned about."

Dennis Maher of Massachusetts spent 19 years in prison after rape victims identified him in photographic lineups as their attacker. Maher is also innocent, and he was finally exonerated in 2003 after 19 years, again with the help of DNA evidence. An emotional Maher told symposium attendees, "I really appreciate the changes you have been making."

Gary Wells, a social sciences professor at Iowa State University, a panelist, said police can't control factors like the view a witness got of a perpetrator, or a victim's focus on a weapon during a stressful event.

Wells said studies to determine eyewitness accuracy include creating staged events for unsuspecting people, then asking them to identify the "perpetrator." According to Wells, eyewitnesses tend to select the person most like the perpetrator relative to the other members of a lineup.

"In the absence of the guilty person, people go to the next best person who looks the most like them," Wells said. "Someone will always look more like the perpetrator than the remaining members of the line-up."

Wells agrees with the practice of telling the witness that the suspect may not even be included in the line-up. If a detective involved in the case is present, a witness may pick up on that person's reactions, Wells said, so it is best to have a neutral person presenting photos. "If the witness gets any confirmation, they claim they are more confident, and it manufactures false certainty," Wells said. "That is why a neutral administrator is needed."

'Take Precautions'

William Brooks, police chief in Norwood, Massachusetts, and an executive board member of the International Association of Chiefs of Police, said it is important to tell witnesses police will keep investigating a crime regardless of the outcome of the photo viewing. He said it's also important to tell a witness he or she may be called in periodically to view photos.

"It is really important to take precautions – we want to make sure we don't incarcerate a person who did nothing wrong, and then the real perpetrator is out on the street," Brooks said. His department videotapes the showing of photographs to witnesses, so police won't be questioned later in court about what transpired during the process, as defense attorneys may claim a witness was prompted in some way.

Connecticut Chief State's Attorney Kevin Kane, who attended the event, said the new protocols illustrate how much police want procedures that give the best chance of accurate identifications. "The most important issue is not giving feedback to the witness, and having the witness give a statement of how confident they are [about an identification] immediately," Kane said.

Kane called the Connecticut Police Officer Standards and Training Council's current policy on eyewitness identification a good one which is based on research. Thomas Flaherty, executive director of POSTC in Connecticut, said he hopes the symposium will provide "opportunities for other jurisdictions throughout the country to share their experiences, discuss new approaches and examine emerging issues in the field."

Sherry Haller, executive director of The Justice Education Center Inc. in West Hartford, an organizer of the event, said she believes Connecticut's eyewitness identification model is one of the most comprehensive in the country, due to the collaboration of the task force members, which included members of the justice system, academia and law enforcement.

According to Haller, while the task force will formally disband at the end of June, there is strong interest among members to continue working together. Police departments from around Connecticut will send to POSTC data on eyewitness procedures for research purposes, she said.

"On the national front, the Innocence Project will continue its important work in states and jurisdictions throughout the country to develop policy and judicial reforms," Haller said.