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I admit I've been skeptical about the movement to reform eyewitness procedures. My belief was that you would end up with a bunch of nice policies and procedures that no one followed.  Other than a confession, an ID is the easiest way to solve a case, and i could not envision the police accepting anything that made their jobs harder.

It appears I was mostly right. Except for a few of the more progressive departments, it appears most agencies had no intention of seriously implementing any changes. However, they may not be getting a pass. Thanks to Scott Henson (who is the innocence Project's representative on the group charged with coming up with model policies), we have a somewhat behind the scenes account of the first meeting of the working group. Here's part of Scott's account of the meeting:

Some law enforcement folks at the event seemed to be in a state of denial. The police chiefs association argued that the draft LEMIT policy was too detailed, including elements that shouldn't be considered "policy" but fall more in the realm of "procedures." This struck me as downright bizarre, not only because LEMIT was charged with creating a "detailed written policy," but because the statute in at least four different places directed them specifically to write "procedures" for various aspects of live lineups and photo arrays. The distinction being suggested by law enforcement interests would contradict the plain language of the statute (in case anybody cares about such things).

Indeed, hanging their hat in part on this spurious distinction between policies and procedures, a breakout group made up of law enforcement folks declined to come up with specific recommendations during the working group meeting, apparently hoping they could slow-walk the matter and delay the process. But SHSU must soon publish their draft in the Texas Register so they can receive formal public comment and finalize it by a statutory deadline in December. Participants in that subgroup were encouraged to stay after the event to complete their recommendations or to provide them via email in the next couple of weeks.

Court of Criminal Appeals Judge Barbara Hervey spoke up to debunk complaints that blind administration would be too difficult for small agencies to implement, demonstrating the simplicity of the "folder method" of blind administration, where photos are placed in file folders, shuffled, and presented sequentially so that the officer administering the procedure doesn't know which one is the suspect. That method was suggested by LEMIT as an alternative for smaller agencies to a truly blind administrator who's not one of the investigators in the case. In serious cases, though, if an agency is so small it can't provide a blind lineup administrator, they probably should be calling in the Texas Rangers or seeking help from larger agencies.

It appears many agencies were viewing the reforms as "suggestions" - which they didn't have to follow if they didn't want to. I can't say that's too surprising since it's not unusual for those in law enforcement to believe the law doesn't apply to them. But that's a discussion for another day.

I now have some hope that there will be changes. While I don't think they will go far enough, it's at least a start. If only a handful of people are spared from a wrong ID that's progress. However, until there is a legitimate enforcement mechanism, we are not going to get where we need to be. I guess you have to take baby steps - and I'm glad to see we are at least taking those.

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This is a guest post by Allison Gamble. She can be reached at alliegamble812@gmail.com

Forensic Psychology and the Criminal Justice System

 Dating back to the late 19th century, the field of forensic psychology adds another profound dimension to the criminal justice system. Forensic psychologists are combined criminal justice experts and psychologists. They can be trained in clinical, social, or any other branch of psychology. To be credible and useful as expert witnesses, they must also be familiar with the law and the workings of the judiciary system in order to interpret psychological findings and information for use in legal contexts.

 This interpretive role is forensic psychologists' primary legal function. They are often called upon to evaluate defendants' capability to stand trial, or determine their sanity at the time the crime was committed. They also provide psychological services within the legal context including assessing witness credibility, making treatment recommendations, conducting adult and juvenile pre-sentencing evaluations, and counseling offenders on probation.

 All these services provide a jury with insight into defendants' state of mind. Besides the value of such insight to court proceedings, the specialized psychological perspective enables authorities to appropriately handle and treat mentally ill defendants and rehabilitate offenders. Combining the science of psychology with the system of criminal justice results in a more effective judicial system able not only to punish offenders but facilitate the mental health help they may require.

 One example of a case in which forensic psychology has played a significant part is the case of 42-year-old David Tarloff. Tarloff was on trial for murdering a doctor who shared an office with Tarloff's intended victim, Dr. Kent Shinbach. Tarloff, who has a history of obsessive behavior, had been diagnosed with paranoid schizophrenia, and repeatedly committed over the course of his life, intended to rob Shinbach of $50,000. This money would help him to remove his mother from a nursing home and take her on a trip to Hawaii. To aid in the robbery, he brought a meat cleaver with him to Shinbach's office. Upon arrival he encountered Dr. Shinbach's office mate, Dr. Kathryn Faughey. Convinced she was about to take his life, he cut Faughey 15 times with the meat cleaver, killing her.

 After the murder, Tarloff fled but was later captured by police when his palm prints were matched to prints on a suitcase filled with women's clothing left at the scene. When brought to court, he filed a plea of not guilty by way of insanity. He claimed he was temporarily insane, and was therefore not responsible for his actions. As evidence of this, he produced 10,000 pages of psychological records attesting to his mental instability, as well as his record of multiple arrests for assault and threatening homicide.

 The judge dismissed Tarloff's claim of temporary insanity because of a surveillance tape which showed him scoping out an escape route from the office, indicating premeditation of the crime. He was instead deemed mentally incompetent, which meant that he was unable to stand trial because he couldn't comprehend what was happening in the court proceedings. After a year in a state psychiatric hospital, he was assessed as able to stand trial.

 However, once he was taken to the courthouse, he refused to leave his holding cell. The judge ordered him back to the hospital, where he proceeded to remove his clothing and run naked around the ward. Again the judge ruled Tarloff mentally incompetent. He underwent a second psychological assessment, during which he refused to say a word. Officials at the hospital refused to divulge information about Tarloff to avoid running afoul of confidentiality laws, and ultimately Tarloff was deemed mentally incompetent for a third time.

 Without the assistance of forensic psychologists in this case, a man who was clearly not fit to stand trial could have been convicted of murder, when what he really needed was serious psychiatric help. Forensic psychologists are absolutely essential in high-profile cases such as this, as well as more routine ones. While the image of forensic psychologists as ace investigators with uncanny insight into the minds of criminals may be played up by popular crime dramas, their pivotal role as facilitators of fair and conscientious legal proceedings can't be underestimated.

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I didn't consider it a big surprise that that the Georgia Board of Pardons and Paroles denied clemency for Troy Davis.I haven't reviewed the evidence, and I have no idea whether he is guilty or innocent. But I don't think that should be the point. If we are going to impose the ultimate punishment and execute someone shouldn't we be absolutely certain they are guilty? If there is any reasonable possibility that they aren't, the costs of making a mistake are simply to high.

I've said before that I believe we are all going to be judged on the decisions and choices we make. And I don't think you get a pass on something like this by claiming  "I was just following procedure(or the law)".  That is nothing more than passing the buck - in the end, no one is responsible. The jury can say we decided the case based on what was presented, the State can say we presented the evidence we had, and the courts can say we reviewed the record. Once the case is affirmed, the courts can fall back on the finding that the defendant has not met the legal burden the law requires. In the end, a case can go all the way through the process even though people have serious doubts about guilt of the defendant.

It's no secret that I don't support the death penalty. My beliefs are both practical and religious. They system in place is too prone to mistakes to impose the ultimate punishment - mistakes which we have seen over the last few years. That is coupled with a belief in the sanctity of life, and produces a pretty strong opinion. I realize others don't share my views, and that's fine. But I don't see how even the most hardened death penalty proponent can endorse executing anyone whose guilt is not absolutely certain.

I don't know any of the people involved, but I doubt few will lose any sleep over their decisions. Either they don't care, or they rationalize it away. Unfortunately, the review system provides plenty of ways to do that.

If we are going to have the death penalty, there should be final review aimed at answering the question whether there is an chance the defendant is guilty. If there is, don't execute them. Doing so only ensures that at some point a mistake will be made - a mistake that can never be undone.

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Although you wouldn't know it by news coverage, today is Constitution day. You would think this would be an important date, but that's not the case. Americans seem to have taken the Constitution for granted. The results is apathy. Blatant violations of the constitution are met with little more than yawns - or tirades by a few who no one listens to.

That's not to say Americans are ignorant of the constitution. They are quick to raise it when it's important to their particular cause. Look at those advocating gun rights, or freedom or religion. The problem I see is that people don't see the constitution as a whole. They argue for the right to possess AK-47's, but ignore blatant violations of the right to free from unreasonable search and seizure. Unless of course the government decides to come search their house.

Catholics  have coined a phrase "cafeteria catholics" - those people who pick and choose which part of church doctrine they are going to accept. That's a different discussion, but there are very few who accept church doctrine across the board - for example the right to life, which includes not only abortion but also the death penalty. The same -is true for the constitution - we have people who pick and choose what provisions they support - the rest they either ignore, or want to change.

The constitution was adopted as a complete document - after full and complete discussion and argument. It wasn't a guide for best practices, but a guide for the minimal guarantees all Americans should have. It has power only as long as it is honored in its entirety. 

So on constitution day, how about we read the constitution, and renew our commitment to it. In case you don't know where to find, here's a link.

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Thanks to the Attorney General opinion the Forensic Science commission officially closed the lid on the Willingham investigation. A supposed bright spot is the decision by the State Fire Marshall's office to review old cases. Admittedly I have been suggesting that for a long time. The question I have is whether the Fire Marshall's office is the proper entity to review cases. An even more important question is what happens when they find a case that is based on faulty testimony.

As for the first question, I have already criticized the Fire Marshall's office for their support of the Willingham investigation. While it 's admirable to not abandon a sinking ship, they lost all credibility by trying to defend an investigation that cannot be defended. The whole reason for reviewing old cases to determine what impact the the false assumptions used by investigators had. If the Fire Marshall's doesn't accept the premise that false assumptions and bad science were used, then how effective can their review be?

The second question is more basic - what happens if they actually find an investigation was flawed. As I pointed out earlier, relief through the courts may now be non-existent. If the court's won't grant relief what is left - an apology - oops, sorry your going to have to stay in prison even though you probably aren't guilty. I suppose the parole board/governor could grant relief, but I'm not  holding my breath on that.

A thorough review of old cases is a good first step. But it is only a first step. We already know what they are going to find - lots of people that shouldn't  have been convicted. Unless we come up with a way to fix that problem then review is nothing more than a  useless academic exercise.

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If you believe Rick Perry he just decided recently he would run for President. Putting aside the question of whether you can ever believe any politician, I think his handling of the Willingham investigation shows he has  planning this for a long time.

Sam Bassett - the first chairman of the Texas Forensic Science Commission - recently spoke out and provided insight into the maneuverings that led to his dismissal. Bassett was called to the governor's office in February 2009 and questioned about what the commission was doing. The authority to conduct the investigation was questioned, and the governor's assistant general counsel criticized it as a waste of taxpayer money. Bassett indicated he thought they had authority, but said he would do some checking, which he did. What was frustrating to Bassett was that the Attorney General's office was acting as their counsel, and voiced no concern about jurisdiction. The same attorney general's office that recently concluded they had no such jurisdiction.

Bassett was also asked about the motivation behind replacing him with John Bradley, and noted that Bradley not only repeated Perry's description of Willingham as a monster, he also adopted the governor's position on jurisdiction. While admitting he was naive, he now concedes he obvious - which is that Governor Perry was doing everything possible to derail the investigation.

Which brings the question of why he was so concerned. It's doubtful he was concerned about the effects the investigation would have on his future in Texas - that was already solid, and his constituency appears unconcerned with the occasional execution of an innocent person. It might be an issue nationally though - even though it hasn't gotten much traction yet.

So had Perry already made the decision to run in February 2009? It certainly explains his heavy handed action in derailing the Willingham investigation. The question now is what impact that will have on his national persona.

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The Amanda Knox case appears to be a never ending. She was convicted in 2009 in an Italian court of murdering her roommate. At the trial the prosecution used DNA evidence, which showed that both Knoxs and the victim's DNA was on the knife that was believed to be the murder weapon. There was also DNA from the victim and a co-defendant found on a bra clasp. That evidence was subsequently called into question.

A court ordered review of the evidence questioned the validity and reliability of the evidence, as well as raised questions of contamination. Did you get that? Yes, the court appointed an independent expert to review the evidence after the conviction. Something that is virtually unheard of in the United States.

Predictably, the prosecution questioned the independent expert, and wanted to have their own expert re-examine the evidence. That request was denied. Again, something unusual for this country.

I have no idea how the Italian justice system operates, or how the case got to this point. My interest has been in the forensics, which was always a critical part of the government's case. As I have suggested before, there are always problems when the justice system turns to science to decide guilt or innocence. In the United States, we have yet to come up with a solution for the situation present here – namely, the subsequent discovery that the forensics was faulty. It appears they take that far more seriously in their places.

I wonder what would happen in the United States if trial judges showed the same concern for the integrity of the conviction. Far too often, once a defendant is convicted that is the end of it and everyone moves on to the next case. It takes a monumental development to undo a conviction, even when everyone recognizes there are problems with it. A good first step would be for the court to appoint its own expert, and not rely on dueling experts presented by the prosecution and the defense.

I don't know how it will all turn out. The fact that the evidence is being re-examined is significant though and something we can learn from.

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