November 8, 2007
By Michael Edwards, Savannah Morning News
"The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification."
These are not my words or those of Barry Scheck or any of the witnesses who have appeared before the Eyewitness Identification Study Committee conducting hearings in Atlanta. These are the words of the United States Supreme Court 40 years ago in U.S. v. Wade.
Since 1992, there have been 208 DNA exonerations and more than 75 percent of those cases involved mistaken identification as a cause of the wrongful conviction. There have been six Georgia exonerations since 2002, including two here in Chatham County, and every one of those six cases involved mistaken identification.
All told, innocent American citizens have spent centuries in jail for crimes for which they are actually innocent. Those are only the ones so far discovered. Posturing aside, these are startling facts that should give pause to even the most strident law-and-order proponent.
Framing the issue as one of "finding holes and slip-ups" is disingenuous. Consider that while many of the 208 (and how many more?) innocent people were spending years languishing in prison for crimes they did not commit, actual perpetrators were continuing to prey on the community, committing additional offenses, violating and even killing other innocent victims.
In two of the six Georgia exonerations, the same testing that freed an innocent man led to the arrest of the real criminal. In one of those cases, that of Robert Clark, the man who really committed the rape for which Mr. Clark spent 24 years in prison, went on to commit at least four other violent sex crimes.
Six more women were violently attacked by Bobby Poole, the North Carolina man who raped Jennifer Thompson Canino, the courageous woman who spoke to legislators in Atlanta recently. While Bobby Poole was free to victimize these women, Ronald Cotton sat in prison for 11 years - misidentified and completely innocent.
Consider that after spending nearly 18 years and nearly 25 years in prison for crimes they did not commit, Clarence Harrison and Robert Clark each received compensation from the State of Georgia in excess of $1 million dollars. Does it not make sense for Georgia to be proactive and put those kinds of dollars toward enhancing law enforcement procedures, reducing the dangers of wrongful convictions and avoiding future compensation for exonerated citizens?
Noting the dangers of mistaken identification, the Georgia Supreme Court recently stated that "the idea that a witness's certainty in his or her identification of a person as a perpetrator reflected the witness's accuracy has been flatly contradicted by well-respected and essentially unchallenged empirical studies."
Courts around the country, including here in Georgia, have been frank in acknowledging that law routinely lags behind science. This is clearly true with eyewitness identification.
More than three decades of scientific research has produced volumes of those studies discussed by the Georgia Supreme Court. In 1999, the U.S. Department of Justice issued a law enforcement guide recommending many of the procedures the Eyewitness Identification Study Committee is hearing about now.
The authors of that guide included the chief prosecution office in the country with participation by and recommendations from the National Sheriffs' Association, International Association of Chiefs of Police, National District Attorneys Association and many other law enforcement agencies.
No one believes that law enforcement seeks to intentionally create misidentification, but only the most Pollyanish can deny that common law enforcement practices can result in misidentification. Improving eyewitness identification procedures is no defense ploy; it is an effort to insure that law enforcement has access to the best and most current science, that justice is served and that Georgia law is followed.
The Georgia code says it best - the object of all legal investigation is the discovery of truth.
_____________________________________________________ Michael L. Edwards is the Circuit Public Defender for the Eastern Judicial Circuit and past president of the Georgia Association of Circuit Public Defenders. He is President-elect of the Savannah Bar Association.