Carlos DeLuna

Los Tocayos Carlos, a book-length monograph and comprehensive website published by the Columbia Human Rights Law Review, helps answer these haunting questions. Based on one of the most thorough investigations of a criminal case in U.S. history, the groundbreaking article by Columbia Law School Professor James Liebman and a team of students uncovers evidence that Carlos DeLuna, a poor Hispanic man with childlike intelligence who was executed in Texas in 1989, was innocent.

All the evidence is available here: http://www3.law.columbia.edu/hrlr/ltc/ for readers to explore, and decide for themselves: crime-scene photos, law enforcement and court records, newspaper and TV coverage, police audiotape of the manhunt ending in DeLuna’s arrest, videotaped interviews, interactive map and much more.

Click here to read more: http://www3.law.columbia.edu/hrlr/ltc/

In the early nineteen-nineties in rural Noxubee County, Mississippi, two young girls were – in separate crimes occurring approximately a year and a half apart – abducted from their homes, sexually assaulted, manually strangled and dumped into nearby pools of water.  In each case law enforcement arrested a perpetrator almost immediately, and the prosecution announced that it would seek the death penalty in each case.  As a result, Kennedy Brewer was convicted and sentenced to die by lethal injection; Levon Brooks was convicted and sentenced to a term of life without the possibility of parole.  Combined, the two men would spend over thirty years in prison.

Both men are innocent.

Mississippi Innocence documents the story behind their wrongful convictions, the path that led to their exonerations in the spring of 2008, and their lives upon their return to the free world.  The film uses interviews with the key players involved in both the conviction and exonerations, as well as lengthy interviews and footage of Brooks and Brewer and their families, to tell fully and for the first time the depth of their – our – tragedy.  The film channels the organic power of these two innocence narratives so that viewers will experience a range of emotions – some that will challenge assumptions and force re-thinking long-held conceptions about the criminal justice system; others that will strengthen faith in the ability of individuals to survive and endure; while still others will generate shock and outrage.  In the end, the film will raise awareness, provide an opportunity for intelligent dialogue, and, in the end, offer a way forward.

Read more about the film here: www.mississippiinnocencefilm.org

www.pbs.org/frontline/real-csi

Evidence collected at crime scenes—everything from fingerprints to bite marks—is routinely called upon in the courtroom to prosecute the most difficult crimes and put the guilty behind bars. And though glamorized on commercial television, in the real world, it’s not so cut-and-dried. A joint investigation by FRONTLINE, ProPublica and the Investigative Reporting Program at UC Berkeley examines the reliability of the science behind forensics in “The Real CSI,” airing Tuesday, April 17, 2012, at 10 P.M. ET on PBS (check local listings).

FRONTLINE correspondent Lowell Bergman finds serious flaws in some of the best known tools of forensic science and wide inconsistencies in how forensic evidence is presented in the courtroom. From the sensational murder trial of Casey Anthony to the credentialing of forensic experts, Bergman documents how a field with few uniform standards and unproven science can undermine the search for justice.

The investigation follows a landmark study by the National Academy of Sciences that called into question the tenets of forensic science. For the first time, Harry T. Edwards, a senior federal appellate court judge and co-chairman of the report, sits for an interview to discuss what the report means. He tells FRONTLINE that these television dramas often exaggerate or misrepresent the reliability of forensic evidence, including one of the most called-upon of the forensic techniques, fingerprint identification.

“If what some people are saying, it works because we’ve gotten convictions, … that’s not proof that the discipline is undergirded by serious science,” Edwards tells FRONTLINE. “It’s been inaccurate and wrong for many years. It doesn’t become better because it’s many years. It’s just many years of doing it incorrectly. … And the stakes are too high. When you’re talking about prosecution, incarceration, the stakes are too high.”

In this hour, FRONTLINE examines one of the most high-profile terrorist investigations since 9/11: the case of Brandon Mayfield, an attorney who was wrongfully identified and arrested as a suspect in the Madrid commuter train bombings after the FBI erroneously matched his fingerprint to a partial print found at the scene. The case exposed the weaknesses of fingerprint identification, causing the FBI to change the way its examiners testify about the reliability of forensic  fingerprinting. Bergman interviews the fingerprint expert selected by Mayfield’s defense, the independent examiner Ken Moses, who concluded it was a positive match for Mayfield, but later admits that he and the three other examiners who looked at the prints were wrong. The Mayfield case highlights the weak link in fingerprint analysis—the examiner, whose work is not done by a computer, as seen on TV, and can be influenced by unconscious bias.

The reporting reveals that bite-mark identification is another one of several seriously flawed forensic tools used in criminal investigations. “What we’re talking about with forensic science is systemic failure,” Innocence Project co-founder Peter Neufeld tells Bergman. “We’re talking about using techniques, using equipment that’s never been validated scientifically.”

In the small town of Brooksville, Miss., FRONTLINE explores the errors that led to the convictions of two innocent men, whose convictions in part were based on faulty bite-mark testimony. “There have been a number of people who were convicted based on bite-mark testimony, who were sent to death row or sent to prison for life,” says Neufeld. “And in each of those cases, a whole group of forensic odontologists, or dentists, said they were absolutely certain that this was the guy, … and they were absolutely wrong.”

Nowhere in recent history has forensic evidence been more prominent than in the trial of Casey Anthony, who was acquitted of the first-degree murder of her 2-year-old daughter, Caylee Anthony. Based on a smell from the trunk of Casey Anthony’s car and using an expert in “the odor of the dead,” the prosecution set out to convince the jury that the stench was that of a decaying body. In total, 37 expert witnesses from more than a dozen areas of forensics testified, with the defense challenging with forensic experts of their own. “This case utilized every single type of forensic science. … They threw a bunch of stuff against the wall, and they were hoping something would stick, and none of it did,” says defense lawyer Jose Baez.

FRONTLINE also examines what it takes to become credentialed in forensics by the American College of Forensics Examiners International (ACFEI). “It was like an open-book exam basically, and I passed,” says Leah Bartos, a journalism graduate student at UC Berkeley, who demonstrates that for $660 and a few hours taking an open-book exam online, she became certified as a forensic consultant by ACFEI. Bergman’s interview with former CEO John Bridges indicates that 99 percent of those who apply online will become certified by the organization. “There can be no meaningful exam that has a 99 percent pass rate,” admits forensic guru and ACFEI spokesman Cyril Wecht, whose signature appears on ACFEI certificates.

“The Real CSI” is a FRONTLINE production in collaboration with ProPublica and the Investigative Reporting Program at UC Berkeley. The Real CSI is part of an ongoing look at forensic science that has engaged FRONTLINE and its partners over the last two years. The producers and writers are Andrés Cediel and Lowell Bergman. The correspondent is Lowell Bergman. The reporter for ProPublica is Leah Bartos. The series senior producer of FRONTLINE is Raney Aronson-Rath. The executive producer of FRONTLINE is David Fanning.

FRONTLINE is produced by WGBH Boston and is broadcast nationwide on PBS. Funding for FRONTLINE is provided through the support of PBS viewers and by the Corporation for Public Broadcasting. Major funding for FRONTLINE is provided by The John D. and Catherine T. MacArthur Foundation and by Reva and David Logan. Additional funding is provided by the Park Foundation and by the FRONTLINE Journalism Fund. FRONTLINE is closed-captioned for deaf and hard-of-hearing viewers by the Media Access Group at WGBH. FRONTLINE is a registered trademark of the WGBH Educational Foundation.

ProPublica is an independent, nonprofit newsroom that produces investigative journalism in the public interest. In 2010, it was the first online news organization to win a Pulitzer Prize. In 2011, ProPublica won the first Pulitzer awarded to a body of work that did not appear in print. ProPublica is supported primarily by philanthropy and provides the articles it produces, free of charge, both through its own website and to leading news organizations selected with an eye toward maximizing the impact of each article. For more general information, please visit www.ProPublica.org.

On Wednesday, March 21, 2012, at 5:30 p.m., the American Constitution Society for Law and Policy (ACS) will host A Long Road to Innocence: A Screening and Dialogue Around Mississippi Innocence. Last month, a Mississippi district attorney secured a conviction for murders that were committed more than 20 years earlier. Many would suggest that justice, like an old adage offers, is better late than never. However, in this case, also more than 20 years ago, two men were deemed responsible for these murders; Levon Brooks was sentenced to life in prison and Kennedy Brewer was sentenced to death. The two men were exonerated and released from prison in 2008, having spent a combined 32 years incarcerated for crimes they did not commit. For Brooks, Brewer, and the victims, justice came very late, so is this even justice at all?

Mississippi Innocence explores this question and others as it tells the story of Brewer and Brooks. Have the close to 300 DNA exonerations since 1989 demonstrated the need for additional practices and policies that would prevent wrongful convictions? As eyewitness misidentification is the leading cause of wrongful convictions, did the Supreme Court just increase the likelihood of such convictions with its decision in Perry v. New Hampshire? Where are the checks on overzealous law enforcement and prosecutors, faulty forensic science, false confessions, and informants that also lead to wrongful convictions? Importantly, how can our criminal justice system chart a path forward that guarantees accountability and basic fundamental fairness for all?

Reception (5:30 p.m.)

Introduction (6:00 p.m.):
Caroline Fredrickson, President, American Constitution Society for Law and Policy

Remarks:
Congressman Bennie Thompson (MS-2), (Invited)

Screening of Mississippi Innocence (60 min)

Q&A will feature:

• Moderator, Garrett Epps, Professor of Law, University of Baltimore School of Law
• Tucker Carrington, Director, Mississippi Innocence Project; Co-Producer, Mississippi Innocence
• Kennedy Brewer, Exoneree
• Levon Brooks, Exoneree

You can read more here:

http://www.theagitator.com/2011/10/17/jim-hood-and-that-other-guy/

“MISSISSIPPI INNOCENCE”

The award-winning documentary, prepared by Ole Miss filmmakers and spotlighting the success of the Law School’s Innocence Project in freeing two Noxubee County men wrongfully imprisoned after murder convictions, will be shown and discussed by principal characters in the cases.  After the screening there will be a panel discussion moderated by civil rights and defense attorney Rob McDuff — and including former Supreme Court Judge Fred Banks, Radley Balko of The Huffington Post, Campbell Robertson of The New York Times, and Joe York, director of “Mississippi Innocence.”

For more information about the film, please visit:

www.mississippiinnocencefilm.org

On Aug. 9, The Huffington Post reported on the case of Leigh Stubbs, a Mississippi woman serving a 44-year sentence for assault and drug charges. Stubbs was convicted in large part due to the testimony of Michael West, a disgraced bite mark specialist. Though West has been largely discredited, prosecutors and state officials in Mississippi (and to a lesser extent in Louisiana) continue to defend convictions won based on his testimony.

In Stubbs’ case, West presented two key pieces of evidence. The first involved the bite mark wizardry that made him famous, and then infamous: West claimed to have found bite marks on alleged victim Kim Williams that medical personnel hadn’t seen. He then used a dental mold of Stubbs’ teeth to perform an analysis on the marks, and would later testify that it was a “probability” that Stubbs had bitten Williams.

FABRICATING EVIDENCE

On Wednesday, forensic specialists Mike Bowers and David Averill posted a video recording of West’s examination of Williams on their site, Bitemarks.org. In his initial examination, West claims to have “missed” the evidence of a bite mark. He testified he found it in a a subsequent examination performed days later. That examination is depicted in the video below. Note that at the 50-second mark, a bite mark appears in Williams’ skin, seemingly out of nowhere.

WATCH the examination:

Examination Video

On their blog, Averill and Bowers explain how that mark appeared:

In his second video taken 5 days later on March 15th the area that West says “that the bitemark is no longer visible due to the nurses taking such good care of the victim and using lotion on her skin.” West then proceeds to tamper with the evidence by actually imbedding a stone cast of Leigh Stubbs teeth into the comatose victims hip resulting in a fabricated bitemark on the skin of the victim.

In a phone interview Wednesday afternoon, Bowers said the video above may depict a number of crimes. “The tampering with the evidence on the skin is likely a crime. But to create those marks on a woman who was comatose, and who hadn’t given consent, is also an assault,” Bowers said.

West, who is a dentist and not a medical doctor, also performed a vaginal exam on Williams without her consent, though he did presumably have approval from law enforcement officials.

This isn’t the first video evidence that may show West creating bite marks on an alleged victim. In 2009, this reporter examined a Louisiana case from 1993 in which a video recording shows West repeatedly jamming a suspect’s dental mold into the corpse of a young girl. In that video, bite marks also mysteriously appear on the girl’s cheek that aren’t present earlier in the video. (While bruises can appear on a body after death, bite marks are abrasions, and generally cannot.) In that case, Jimmie Duncan was convicted of killing young Haley Oliveaux, and was sentenced to death. West’s exam was the only physical evidence suggesting Duncan had murdered Oliveaux.

WARNING: Some readers may find the video below disturbing.

West\’s Examination of H.O.

West doesn’t deny any of this. In his court testimony in the Stubbs case, and in a 2009 statementto the Jackson Clarion-Ledger in response to the Duncan case, West claimed that this is simply how he identifies and matches bite marks.

“He says he’s the only one who can see these marks,” Bowers said. “And that when he pushes the cast into the skin, he says he’s just enhancing marks that are already there.” Of course, once West has altered the marks in the skin with a cast of the suspect’s teeth, he has not only made the marks conform to the cast, he has also altered them so that no other expert can then second guess him as to whether they were bite marks in the first place.

Bowers and other forensic specialists say West’s “technique” is at minimum malpractice, and that it’s likely criminal evidence tampering. Yet those methods were accepted as evidence in criminal courts for more than a decade, and have still yet to be discredited by a court in Mississippi or Louisiana.

VIDEO ENHANCEMENT

The other damning testimony West gave in the Stubbs case was his analysis of a grainy security camera video taken of a motel parking lot. Prosecutors sent the video to the FBI, which sent back a report stating there was very little the agency could discern from the video. But district attorney Dunn Lampton (who passed away earlier this month) also sent the video to West, who claimed he was able to “enhance” the video using consumer software. Averill and Bowers have also posted that video on their blog:

Security camera video from motel parking lot

From this video, West testified that he could see two separate figures entering and leaving the frame, that they were wearing different clothing (one shorts, the other blue jeans). While the FBI could only determine that someone had removed perhaps a bag or suitcase from a toolbox in the truck bed, West claimed that through enhancement, he could make out hair, legs and blue jeans, leading him to conclude that the object being removed was clearly a body. West also claimed he could read the body language of one figure in the footage. He testified that she appeared “anxious,” and was exhibiting the sort of adrenaline-fueled “fight or flight” response one shows after committing a crime.

LINGERING CONVICTIONS

Michael West’s bite mark testimony was also the main reason Kennedy Brewer and Levon Brookswere convicted in the rape and murder of two young girls in the early 1990s. Both men were exonerated by DNA testing in 2008 after serving more than a decade in prison. A third man, Albert Johnson, later confessed to both crimes.

Though West no longer testifies in court, law enforcement officials in at least two states have so far continued to defend his testimony. As HuffPost reported on Monday, Mississippi attorney general Jim Hood defended the Leigh Stubbs’ conviction to a Hattiesburgh, Miss., television station just last week. Hood’s office has also fought attempts to throw out West’s testimony in the conviction of Eddie Lee Howard, who was sentenced to death in 1994 for the rape and murder of an elderly woman. As in the Jimmie Duncan case, West’s testimony was the only physical evidence from the suspect found on the victim. Both Howard and Duncan are still on death row.

Read article on Huffington Post here.

August 29, 2011

A widening scandal involving two longtime expert witnesses may become an issue in Mississippi’s race for attorney general this fall. Incumbent Attorney General Jim Hood has long defended two prolific but controversial forensic specialists who have come under fire in recent years: medical examiner Steven Hayne and forensic dentist Michael West.

West has testified in about a hundred cases over the years, and Hayne has testified in thousands. Critics have alleged for years that the two are guns for hire, willing to say on the witness stand whatever prosecutors need in order to win a conviction.

In 2008, two men — Kennedy Brewer and Levon Brooks — were exonerated by DNA testing in the rapes and murders of two little girls in the early 1990s. Combined, the two served more than 30 years in prison and Brewer was nearly executed. In both cases, Hayne and West claimed to have found bite marks on the victims’ skin that no other medical personnel saw. In both cases, West then claimed to have used his now-discredited bite mark expertise to match those bite marks to the prosecution’s chief suspect. A third man, Albert Johnson, was later arrested and confessed to both crimes.

Hood’s opponent this fall is Steve Simpson, a former prosecutor and circuit court judge who served most recently as the head of Mississippi’s Department of Public Safety. It was in the latter position that Simpson effectively terminated Hayne in 2008, ending the doctor’s 20-year near-monopoly on the autopsy referrals Mississippi prosecutors and coroners send to forensic pathologists.

West has been widely considered a fraud for some time, and hasn’t testified in Mississippi courts in several years. But there are still people in prison based on his testimony, and Hood continues to defend those convictions, including the conviction of one man sitting on death row.

Earlier this month, I wrote about Leigh Stubbs, a Mississippi woman serving a 44-year prison sentence for assault and drug offenses. Stubbs was convicted based primarily on testimony from West. In Stubbs’ case, West gave the kind of bite mark testimony for which he has become infamous, but also claimed he could “enhance” a grainy security video that even the FBI crime lab said was useless.

Last week, Hood responded to the Stubbs case on a local television station, saying that there was other evidence of Stubbs’ guilt than West’s testimony, though he didn’t say what that evidence was.

Hood also told the TV station that his office is looking into 20 cases that may have been tainted by West’s testimony. That’s interesting, because it’s the first time a Mississippi state official has made any mention of a voluntary investigation into either Hood or West. In the past, they’ve waited for defense attorneys or organizations like the Innocence Project to bring challenges case by case — and then typically opposed those challenges. But when Hood’s office was asked for a list of what cases they’re investigating, or if The Huffington Post could speak to the attorney in charge of the investigation, they simply responded, “We cannot release any of the information you are requesting at this time.”

In the past, Hood has been open, a critic might even say self-promoting, about his office’s investigations. So it’s odd that he’d be secretive about this one.

“If there’s some sort of investigation or review of West cases going on, this is the first I’ve heard of it,” Simpson said. “And I don’t know why you do it in secret. I’d certainly be interested to know what cases they’re looking at, and what sorts of resources they’re using.”

Hood and Simpson butted heads last year over Hayne, the industrious contract medical examiner Simpson effectively fired the year before. According to his own court testimony, Hayne did somewhere between 1,500 and 1,800 autopsies in Mississippi per year, every year, for nearly two decades. To put that number into perspective, the National Association of Medical Examiners recommends a single doctor do no more than 250 autopsies per year. Hayne also isn’t certified in forensic pathology by the American Board of Pathology, which is generally recognized as the only reputable certifying agency in the field.

Hayne’s workload and the scientific validity of his testimony have been criticized by numerous peers and colleagues over the years, culminating in a 2008 Mississippi Supreme Court decision (PDF) throwing out the murder conviction of 13-year-old Tyler Edmonds, who was accused of holding a gun with his sister and simultaneously pulling the trigger, killing his sister’s husband while he slept. Hayne testified that he could tell by the victim’s bullet wounds that there were two hands on the gun that fired the fatal bullets.

Hayne has since resigned from the National Association of Medical Examiners in the face of an ethics inquiry.

In 2008, Simpson effectively terminated Hayne, and said until he could hire an official state medical examiner, Mississippi would send its autopsies to a private firm in Nashville, Tenn. The state medical examiner’s office, which is tasked with overseeing the autopsies carried out on a local level, had been vacant for 15 years until Simpson hired Dr. Adel Shaker last year.

The last two people to hold that position, Emily Ward and Lloyd White, aghast at how autopsies were being conducted in the state, had tried to implement some reforms … and were effectively chased out of the state by West, Hayne and their allies in the coroner’s and district attorney’s offices. With the office vacant, there was no one to question how post-mortem examinations were assigned and performed.

“I hired Mississippi’s first state medical examiner in more than a decade. Jim Hood fought me on that,” Simpson told The Huffington Post. “I’d be delighted for this to become a campaign issue.”

In fact, in 2009, Hood assisted the state’s coroners and prosecutors with a plan to bring Hayne back, even after Simpson had fired him. Hood issued an opinion allowing Mississippi counties to become independent districts for the purpose of conducting death investigations, essentially allowing them to ignore Simpson’s directive removing Hayne from the state’s list of medical examiners qualified to perform autopsies. Simpson then went to the state legislature, where he got a bill introduced that would require anyone performing autopsies for the state to be certified by the American Board of Pathology. Hood actively lobbied against that bill, and even sent out an email derisively referring to the bill as “an Innocence Project bill” and “potentially harmful legislation.”

“I was really pretty shocked to find out that Hood was working against me on that,” Simpson said. “All this legislation said was that anyone who performs an autopsy for a county in Mississippi must meet the minimum standard of board certification. And Hood tried to have that bill defeated.”

The bill passed, barring Hayne from doing any more autopsies in the state. Hayne is still free to testify, however, and still takes the stand regularly in Mississippi, mostly to testify in retrials of cases in which he has already testified, and the backlog of over 600 cases he had when he was terminated. He has also begun advertising his services to the state’s defense bar.

While Mississippi’s Supreme Court threw out Hayne’s testimony in the Edmonds case, it has also repeatedly ruled in subsequent cases that Hayne is still qualified and permitted to testify in the state’s courts, and that questions regarding the reliability of his testimony alone are not enough to reopen old cases.

Simpson says that if elected, he’d be open to challenges in cases involving Hayne or West. “I’m a former prosecutor and a former judge, and I know that in many of those cases, you’re going to have other incriminating evidence,” he explained. “It’s rare that guilt or innocence would turn on a medical examiner’s testimony. But it can certainly happen. And we’ve had these exonerations, which shows that it has happened. So in those cases where Hayne or West was the key part of the prosecution’s case, I’d certainly be open to reviewing them.”

But Simpson stopped short of promising a thorough investigation. “I don’t think it’s the job of an attorney general to conduct that kind of investigation. It’s great that we have groups like the Innocence Project, and it’s up to them and defense attorneys to find and bring these cases,” Simpson said.

But critics say waiting on overworked defense attorneys and advocacy groups with limited resources to bring cases one at a time misses the urgency of the problem. “We have three attorneys on staff, who also teach at the law school,” said Tucker Carrington, director of the Mississippi Innocence Project. “Other states have had these types of investigations after discovering forensics fraud or major flaws in the criminal justice system. The Mississippi Constitution gives the attorney general almost unfettered discretion to protect the public.”

Carrington points out that Attorney General Hood has used that authority to launch a number of high-profile investigations into corporate fraud. “You have to believe that decades-long forensic fraud is as important as people getting ripped off by Bell South on their cell phone contracts. And this is worse in that the fraud was abetted by the state, and that people are in prison because of it. So not only is it possible, I think the attorney general has a particular responsibility to do something about it.”

Carrington says Simpson deserves credit for what he has done already: “He completely reformulated how the state medical examiner is hired and fired. That’s all now done by an independent board. It has completely de-politicized the process, which is exactly what was needed.” But Carrington adds, ” Simpsondid recognize the scope of the problem. It’s Inconsistent to say we had this huge problem that needed to be corrected going forward, but then to play down the population of people who may have been affected by the problem — the people who may have been wrongly incarcerated.”

Paradoxically, the sheer magnitude of the problem may be what prevents even well-intentioned public officials from looking into it. Hayne testified in an estimated 70 percent of the state’s homicide cases over about a 20-year span. He also testified in hundreds of civil cases — mostly wrongful death and medical malpractice lawsuits. In a state that has seen a number scandals involving the plaintiff’s bar, those latter cases could bring more scandals — scandals that could implicate public officials. One critic, a doctor who moved to Mississippi from the East Coast, told me quite bluntly that, “in Mississippi, the cause of death is open to the highest bidder.” (That doctor incidentally, was later arrested and charged by the U.S. Attorney for the Northern District of Mississippi for violations of the Mann Act. U.S. District Judge Neal Biggers later dismissed the charges, calling the case “manufactured,” the attempts to railroad the doctor “blatant,” and added that, “something is going on here that is not on the surface.”)

Hayne also performed the autopsies in countless cases where someone died in police custody, invariably concluding that the deaths were accidental, suicides or from natural causes. In other cases, many times involving poor or powerless people, Hayne diagnosed natural causes or suicide where other medical examiners subsequently found evidence of homicide.

As for West, he has testified in dozens of cases, but has also consulted in child abuse or child custody investigations. There are at least two people still on death row based on questionable bite mark evidence from West and Hayne (one in Mississippi and one in Louisiana). There are at least two other men on death row due primarily to testimony from Hayne that has since been called into question by other, more credible forensic pathologists.

A thorough investigation into the damage these two and their enablers in the coroner’s and DA’s offices have done could send fissures racing to the very foundation of Mississippi’s justice system. It could cause the reopening of hundreds of criminal cases and cast a shadow on the integrity of the state’s civil justice system. It could also implicate a number of public officials and politicians. All of which is precisely why it needs to happen. And all of which is precisely why it probably never will.

 (Trenton, NJ – August 24, 2011) — Today the New Jersey Supreme Court issued a landmark decision requiring major changes in the way courts are required to evaluate identification evidence at trial and how they should instruct juries.  The new changes, designed to reduce the likelihood of wrongful convictions by taking into account more than 30 years of scientific research on eyewitness identification and memory, require courts to greatly expand the factors that courts and juries should consider in assessing the risk of misidentification.

“Today the New Jersey Supreme Court has said that the legal architecture set by the U.S. Supreme Court 30 years ago to evaluate identification evidence must be renovated. This is a decision that will ultimately affect every state and federal court in the nation,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.  “The court has recognized the tremendous fallibility of eyewitness identifications, and based on the most thorough review of scientific research undertaken by a court, has set up comprehensive and practical guidelines for how judges and juries should handle this important evidence.”

The court’s decision requires judges to more thoroughly scrutinize the police identification procedures and many other variables that affect an eyewitness identification.   The court noted that this more extensive scrutiny will require enhanced jury instructions on factors that increase the risk of misidentification.  These factors include:

• Whether the lineup procedure was administered “double blind,” meaning that the officer who administers the lineup is unaware who the suspect is and the witness is told that the officer doesn’t know.
• Whether the witness was told that the suspect may not be in the lineup and that they need not make a choice.
• Whether the police avoided providing the witness with feedback that would cause the witness to believe he or she selected the correct suspect.  Similarly, whether the police recorded the witnesses’ level of confidence at the time of the identification.
• Whether the witness had multiple opportunities to view the same person, which would make it more likely for the witness to choose this person as the suspect.
  • Whether the witness was under a high level of stress.
  • Whether a weapon was used, especially if the crime was of short duration.
  • How much time the witness had to observe the event.
  • How far the witness was from the perpetrator and what the lighting conditions were.
  • Whether the witness possessed characteristics that would make it harder to make an identification, such as age of the witness and influence of alcohol or drugs.
  • Whether the perpetrator possessed characteristics that would make it harder to make an identification.  Was he or she wearing a disguise?  Did the suspect have different facial features at the time of the identification?
  • The length of time between the crime and identification.
  • Whether the case involved cross-racial identification.

To provide courts with these more enhanced jury instructions, the court gave the Criminal Practice Committee and the Committee on Model Criminal Jury Charges 90 days to submit proposed revisions to the current jury instructions on eyewitness identification, specifically directing them to consider the model jury instructions submitted by the Innocence Project.

The court’s decision stems from the 2004 conviction of Larry Henderson, a Camden man who received an 11-year prison sentence for reckless manslaughter and weapons possession related to a fatal shooting in January 2003. He appealed the photo lineup procedure because officers failed to follow the New Jersey Attorney General’s Guidelines, issued in 2001, for conducting identification procedures. The appeals court agreed and ordered a new hearing on the admissibility of the photographic identification of Henderson.  Before that could occur, the state appealed, and the New Jersey Supreme Court decided that an extensive inquiry into witness identification procedures currently used by law enforcement was necessary.

The New Jersey Supreme Court appointed a Special Master to review the legal standard for the admissibility of eyewitness testimony known as the “Manson test,” established by the United States Supreme Court in 1977 and fully embraced by 48 out of 50 states, including New Jersey in 1988 in State v. Madison.  In addition to the parties to the litigation, the court invited the Innocence Project and the Association of Criminal Defense Lawyers of New Jersey to participate in an inquiry by the Special Master who considered over 200 scientific studies and heard from some of the nation’s most respected experts on eyewitness identification before issuing findings to the court in June 2010.

The court remanded the Henderson case back to the trial court for further review in accordance with the decision.  The decision will apply to all future cases, but will not be applied retroactively with the exception of the companion case, State v. Chen, in which the court held that suggestive identification procedures that resulted from private actors would also be subject to court scrutiny to ensure the reliability of the identification.

A copy of today’s decision is available at

http://www.judiciary.state.nj.us/opinions/supreme/A808StatevLarryHenderson.pdf .   A copy of the legal findings that the Innocence Project submitted to the court, which includes the model jury instructions, is available at http://www.innocenceproject.org/docs/Henderson_Proposed_Legal_Findings_Innocence-Project.pdf

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of the 273 convictions overturned through DNA testing.  Additional information about eyewitness misidentification is available at http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php.

Contact:  Paul Cates, 212-364-5346, cell 917-566-1294, pcates@innocenceproject.org