Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

Several people have already discussed the case of Timothy Cole. Cole was a Texas Tech student when he was convicted in 1985 of rape and sentenced to 25 years in prison. Cole died in 1999 from asthma complications. He maintained his innocence, even it meant he wouldn't be paroled. His family never doubted, and never gave up.Their results paid fruit in 2003 when DNA evidence cleared him, and pointed to the guilt of another man. As with over 75% of wrongful convictions, this one involved a bad identification.

The identity of the actual rapist was not a mystery. He had been trying to admit his guilt for several years. Although its rare that someone would admit to committing such a serious offense, investigators didn't believe him. They probably didn't care - after all, they had a conviction in the case. When the DNA evidence came back his confession could no longer be ignored.

Cole's family initiated a court of inquiry in Travis County, and presented evidence seeking Cole's exoneration. They were successful, and former Court of Criminal Appeals justice Charlie Baird granted the request. The family will not seek a pardon from Governor Perry, and also seek to have the conviction expunged from his record. Even though he's no longer with us, it is a formal recognition that he is in fact innocent, and should have never been convicted.

In connection with the hearing, Cole's family appeared at the legislature, and received what has been described as a truly warm reception. Several bills have already been introduced dealing with innocence issues, and maybe this year they have a chance of passage. It helps to put a face on an issue. Several other exoneree's also were in Austin to support the bills. While I'm all for anything that possibly prevent the conviction of an innocent person, I have doubts about how effective these bills will be without a fundamental shift in the system.

Mistaken identifications have been targeted as a major cause of wrongful convictions.  Some states and local police departments have changed the way line-ups are conducted. With traditional line-ups, the danger is that the individual who most closely resembles the assailant will be picked. An identification can almost be assured by the other pictures included in the line-up. That appears to be what happened with Cole; it was either going to be him or no one. Research has shown that showing pictures one at time will improve accuracy. Other changes include having an investigator not associated with the case do the lineup so there is no way to influence the selection.

I have no doubt such changes will improve the process. Even with better procedures though, I think you still have to accept that mistakes are going to be made. Human memory is not like a camera; you cannot simply go back and recreate what you saw. It is influenced by a number of variables. most of which you are not aware of. The bottom line is that identifications are not perfect, and everyone seems to know that except prosecutors and investigators. Personally, I think they know it, they just don't care. The easy way to close a case is with an identification. Usually any further investigation stop, and the case is closed. Often times, as in Cole's case, investigators ignore evidence which should have caused them to question the identification.

Maybe we need a corroberation requirement, like we have with accomplice witnesses. You cannot obtain a conviction without other evidence that supports guilt. Over time, perhaps that would cause a change in tactics. Instead of throwing someone into a line up with nothing more than a hunch, maybe they would wait until they had other evidence. More importantly, maybe investigation would continue after the identification is made. Identifications would be treated as nothing more than circumstantial evidence.

Until we recognize the inaccuracy of identifications, the problem is going to remain. No matter how many cases of mistaken identification  are reported, police and the general public still believe its accurate. The tendency is to look at those cases as aberration. If we could ever get accurate statistics, the truth may be that an accurate identification is the exception. After all, think of all the things going in most crimes; its no wonder that the ability to accurately recall what someone looks like is diminished.

I hope these changes come about. However, I also hope that's not the end, and everyone expects the problem is fixed. As long as police can close a case without a substantial amount of work they are going to do; its only human nature. Cases will continue to be closed with identifications, and probably many will be wrong. We still have a long way to go.

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I've written before about the unreliability of eyewitness testimony. Most people (including jurors and prosecutors) believe eyewitness testimony is generally reliable. In fact, most prosecutors are ecstatic when they have a case with an eyewitness. We have seen countless examples during the last several years of identifications that were clearly wrong. Even with that knowledge, the reliability of eyewitness testimony is still accepted, and difficult to overcome.

A humorous example of a mistaken identification occurred in a Dallas Courtroom. The following is from a story in Texas Lawyer:

On Nov. 11, George Milner Jr., a partner in Dallas' Milner & Finn who many consider the dean of the Dallas criminal-defense bar, was defending Marc Needham, who was accused of misdemeanor deadly conduct. According to a trial transcript, when Dallas County Assistant District Attorney Brian Poe asked a witness during direct examination to identify the defendant, she pointed to Milner. Poe asked her if she was sure, to which she replied: "He's the only one in the blue suit with blue tie. He stood up and objected. Him -- that's him there." After Poe passed the witness, Milner didn't miss a beat, telling Dallas County Criminal Court No. 6 Judge Angela King: "Your honor, first of all let me enter a plea of not guilty." Then Milner began cross-examining the witness. When Milner asked her what she remembered, she said: "Well, sir, I hate to tell you this, but the first thing I heard was you pointing a gun at me and saying, 'Now do you want to F with me?' Don't you remember that?" "No. My memory is about like yours," Milner said. "No, mine is very sharp, sir," the witness replied. During redirect examination Poe asked the witness, "Would you be surprised that the person you've been talking to for the last 25 minutes is actually named George Milner? He's a prominent attorney here in town, and he represents Marc Needham?" The witness replied, "Well, that's a good trick they played, because he looks just like him to me." The jury found Needham not guilty. Poe believes the reason the witness misidentified Milner is she saw him when she testified at a grand jury hearing. For Milner, it was just another great story he has accumulated during his 50 years practicing criminal law. "It was funny -- one of those once-in-a-lifetime deals," Milner says. "There's no rule as to what you do when that happens."

This case points out something more than the unreliability of eyewitness testimony. It points out something all defense lawyers know - the witness knows someone seated at the other side of the table is the defendant. It's generally not to hard to figure out which one it is - you can usually tell which one is the lawyer and which one is the defendant. Here, the witness was apparently confused. There is no doubt she wasn't basing her identification on what she saw at the time - she was basing it on who in the courtroom was fit the description the best.

This also points out a problem with lineups - witnesses pick the person who best fits the person they saw. This is why everyone recommends sequential lineups, where the witness is shown one picture at a time.

One of the things that bothers me about this case is the action of the prosecutor. The job of the prosecutor is to see that justice is done. If the only evidence was the victim's identification, is it justice to prosecute someone whose identity is suspect? Too often prosecutor's rely on juries to make the decision on guilt, and they did so here. In doing so, they abdicate their responsibility. More importantly, most jurors believe prosecutors have no doubt about a defendant's guilt. Too often, that enters their decision, and could have done so in this case. Thankfully jurors saw the case for what it was, and returned a not guilty verdict.

I wish that the more of these stories that come out, the more the public would start question the reliability of eyewitness identification. Unfortunately, there hasn't been much impact so far, and I don't see it changing. That is why it is critical that we adopt practices that will ensure identifications are as accurate as possible.

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