The most stunning thing about the Thomas McGowan case, as mentioned below, is “how normal it is,” says Jason Kreag, staff attorney with The Innocence Project of New York. Kreag just arrived in Dallas so he could appear with McGowan at a hearing tomorrow afternoon in the courtroom of Judge Susan Hawk.
McGowan was convicted in 1985 of burglary and aggravated sexual assault and given two life sentences -- all because the Richardson police had his photograph from a traffic stop and used it in a photo line-up. And because a detective with the Richardson police department said something that pushed the victim into making a misidentification of the man who attacked her.
“He was picked out of a line-up with seven photos,” Kreag tells Unfair Park. “When the victim viewed the line-up, she initially said, ‘I think that’s him.’ The detective said something like, ‘You have to be sure -- yes or no?’ One would think that’s what the detective should do, because we want them to be sure. But it’s clear now that the statement forces the witness to make a decision. It was unduly suggestive and the foundation for the entire conviction."
Twenty-three years ago, McGowan was a 26-year-old day-laborer convicted of burglary at age 17 in Wichita Falls and no longer under court supervision. “He had fulfilled his probation,” says Kreag. The assault occurred on May 7, 1985. The victim, who was white, arrived at her Richardson apartment in mid-afternoon and discovered a black man ransacking her home. The attacker assaulted her and left with a few items, including a stereo and a TV, says Kreag.
McGowan was arrested the next day, for driving with a suspended license.
“That’s how his photo came into the police department’s possession,” says Kreag.
The victim was taken to Parkland Memorial Hospital. About 10 days later, she viewed a photo lineup and tentatively identified McGowan.
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Based on that identification, McGowan, represented by a public defender, went through two trials. The only other evidence: Two witnesses at the apartment complex testified that a car parked in the parking lot was similar to one McGowan was driving at the time. He was convicted of burglary and given a life sentence, and given another life sentence on the aggravated sexual assault.
McGowan has been incarcerated ever since July 1985. He asked for The Innocent Project’s help and recent DNA test results proved that he could not have committed the crime.
Research on identification by eyewitness indicates now that detectives must be extremely careful with the language they use while showing photo line-ups. “It’s now recommended that police should ask the witness, ‘Please state in your own words how certain you are,'” says Kreag. “But for that one statement from the detective, when the victim was expressing some doubt, Mr. McGowan may not have spent 25 years in prison for something he wasn’t involved with in any way.”
Kreag expects McGowan to walk out of the Frank Crowley Courts Building tomorrow a free man, as long as the Court of Criminal Appeals agrees. --Glenna Whitley