Chains of Evidence

She had no concerns about the police lineup. "I guess at the time it wasn't unusual to me," Myers says, adding that victims often would forget to mention a significant physical feature like facial hair.

Are they forgetting? Is it possible to make a positive identification when such a salient fact is left out?

Myers had never talked to Fountain, but she has apologized to two other men exonerated by DNA. After her election to the bench, Myers presided over hearings on their requests to have DNA tests; against the wishes of the District Attorney’s office, Myers ordered the tests. At their exoneration hearings, Myers apologized to them on behalf of the state of Texas.

The conviction of Entre Nax Karage, sent to prison in 1994 and exonerated in 2005 for the murder of his 14-year-old girlfriend, was based on false testimony by police investigators. But in the dozen other exoneree cases, juries put their faith in the victims who identified their attackers.

Though experts have long understood the fallibility of witness identification, the system still operates much as it did decades ago.

"We know that eyewitness identification is unreliable, especially under stress," Lesser says. He calls that the single most common denominator in all wrongful convictions. "We know that techniques that police use for lineups can be suggestive. It's awfully hard for a jury when the witness can say, 'That's the man who raped me. His face is ingrained in my memory.'"

Eyewitness memory is "trace evidence, malleable and contaminatable, like blood on the ground," says Professor Roy Malpass of the University of Texas-El Paso. "Some of the procedures that law enforcement uses actually contaminate the memory."

Each time the victim or witness is shown a suspect's photograph, it destroys the usefulness of any subsequent pictures, Malpass says. Does the victim remember the suspect from memory, from the photo, from the lineup, a pretrial hearing, at trial?

Gary Wells, professor of psychology at Iowa University, has studied eyewitness identification for more than 30 years. "It has two properties," Wells says. "It's readily believed by judges and juries, especially if the witness indicates they are confident or certain of their ID. But it's also highly unreliable. Even without DNA, we could have predicted about three out of every four [false convictions], maybe a bit higher, would be cases with mistaken identification."

Once convicted, except for DNA evidence these men had virtually no hope of being freed.

"I don't see courts doing very much about [witness misidentification]," Wells says. "They are not sure what to do. I think courts could be more critical, more demanding of the standards that this kind of evidence needs to pass before it's admitted at trial. In the long run, the solution is going to be in reforming police practices and how they do these lineups."

Wells has been pressing police departments to use only double-blind lineups, shown to the victim by an officer who doesn't know who is the suspect and who are fillers. That eliminates unconscious cues from investigators.

The filler photos should be chosen by an officer of the same race, since such an officer is likely more sensitive to differences in features, Malpass says, and the strength of the witness' response should be recorded.

Wells says the police should never do a photo lineup until they have developed enough other evidence that indicates they are on the right track. "They should have pretty good evidence before they put an innocent person in jeopardy," Wells says.

Wells has met with the Dallas Police Department and says they are "eager" to set up a double-blind system. "I don't think they want this [false convictions] to repeat itself."

On July 24, 1985, Sharon L., 38, was shaken awake about 6 a.m. by a stranger standing over her, his exposed penis thrust in her face and one of her own steak knives at her throat. He had slipped in through an unlocked sliding door on the balcony of her second-floor apartment in Garland.

The man raped Sharon and shut her in a closet. She waited a few minutes and, hearing nothing, opened the door.

Police arrived by 6:35 a.m. Sharon described the man as white, about 5-foot-8, 140 pounds, athletic, tanned and with very blond hair. He'd been wearing no shirt, just light-colored or white jeans.

While she was talking to the officer, Sharon's phone rang. "Who is there with you?" She recognized the rapist's voice.

That began a bizarre series of phone calls from the rapist, who said he lived in her complex and had been watching her from his apartment. He told Sharon that about 1 a.m., he had climbed a tree to her second-floor balcony and entered the apartment sliding door, which she had left open.