By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
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.
"I am sorry of the way it happened, the way I did it. I love you very much. Will you see me again?" But he also said if she went to police he'd kill her.
Sharon did a composite sketch and, at the encouragement of police, taped his phone calls, which continued for a month.
In late August, a Garland detective showed Sharon six photos. She didn't pick out any of the men. Later that afternoon, Sharon was shown a live lineup with the same six people. This time Sharon picked out 24-year-old David Shawn Pope.
Pope, who had no criminal background, went to trial on February 4, 1986. Officer William David Thurman testified that he had been on patrol at 6:30 a.m. on August 28 when he saw Pope on foot in the Eastgate Apartments.
A house painter, Pope had been evicted from the apartment complex for not paying rent. On August 28, Pope told Thurman he was living off and on with a friend and out of his car and had taken a shower at the complex gym that morning.
Thurman called another officer, who thought Pope resembled the description of the rape suspect. When Pope consented to a search of his vehicle, police found a pair of white pants, a knife and other things in the trunk.
At first, Sharon didn't pick Pope out of the photo array, which all but screamed he was the suspect: Five men were photographed in front of blue backdrop wearing white overalls. Pope was photographed in a T-shirt, standing in front of a tile wall at the jail. But Sharon said she wasn't sure.