Witness ID errors sparking call for safeguards

| Monday, Oct. 31, 2011

In the weeks after two armed men charged into a Clairton home, held a family at gunpoint and shot a police officer, one victim picked Travis Evans and Myles Hutchinson out of photo arrays as the gunmen.

Except they weren't.

Evans, 20, of Wilkinsburg and Hutchinson, 21, of McKeesport were jailed on charges that they tried to kill Clairton police Officer James Kuzak Jr. on April 4. But Allegheny County Police later withdrew charges, saying the witness was wrong.

Two other men have been jailed in connection with the crime, including one arrested Thursday.

"(The victim) was not being vicious. She was someone who was traumatized, and she did the best she could, but she was wrong," said Evans' attorney, Deputy Public Defender Khadija Diggs.

The mix-up occurred as several states, including Pennsylvania, seek to change witness identification procedures to eliminate wrongful convictions. In August, the New Jersey Supreme Court issued sweeping rules that make it easier for defendants to challenge eyewitness testimony.

In Pennsylvania, state Sen. Stewart Greenleaf, R-Montgomery County, plans to introduce bills that would force police to follow procedures that advocates say would reduce the risk of wrongful arrest while strengthening legitimate cases. The bills spring from a report a Senate-commissioned panel released in September, detailing ideas for justice reform.

The Advisory Committee on Wrongful Convictions spent nearly five years studying, in part, the best investigative and legal practices across the country.

"We want to make sure the criminal justice system is as accurate and efficient as possible," said Greenleaf, who is trying to garner support for his bills. "The committee looked into that, and it turns out, there are some best practices to follow."

Setting procedures

Among the panel's recommendations is the Eyewitness Identification Act, which would establish procedures when police ask witnesses to identify perpetrators. Those include using a double-blind method in which an officer not affiliated with the case conducts a lineup or shows a photo array, and showing suspects' photos one at a time to witnesses.

Iowa State University psychology professor Gary Wells, who pioneered the double-blind idea in 1988, has studied eyewitness identification for 35 years and participated in Pennsylvania's study.

He said of the 274 people exonerated by DNA evidence, 75 percent of cases involved mistaken identification.

In one study, witnesses picked an innocent stand-in as the perpetrator in a lineup 42 percent of the time.

"It's a problematic form of evidence that we need to take careful looks at in improving," Wells said. "There's a gap in how reliable it is and how reliable people think it is."

Training for lineups

The 52-member advisory committee, headed by Duquesne University law professor John Rago, included prosecutors, judges, defense attorneys and police officers. They did not always agree.

Committee member Francis Schultz, president of the Pennsylvania District Attorneys Association, said overhauling the criminal justice system is not needed and police should not be forced to change procedures.

"This would simply put mandates on police, and if it's not done exactly as the statute says, it would prevent juries from hearing credible evidence," said Schultz, the Crawford County district attorney. "Our position is that if police need to do lineups in different ways, let's provide training."

In some towns, getting an officer who's not familiar with the case to conduct a lineup won't work, he said.

"It's simply not practical. Sometimes you have small municipal departments with only two people and departments where everyone knows who the suspect is."

Allegheny County District Attorney Stephen A. Zappala Jr. said he supports some reforms such as the double-blind approach, but he disagreed that changes should be made in court procedure.

Using double-blind

Fox Chapel police Chief David Laux, president of the Allegheny County Chiefs of Police Association, said his department is taping interviews and would not be opposed to using the double-blind method, even it means getting officers from other departments to conduct lineups.

"I want to make sure there's every effort to protect the innocent and make sure the person in the lineup is the right person," Laux said. "Anything that helps to make an airtight investigation, whether that's cumbersome or not, if it helps convict a guilty person, I'm all for it."

In the case against Evans, accused of shooting the Clairton officer, his cell phone might have saved him from trial.

Diggs said phone records proved her client was in Wilkinsburg at the time of the shooting. The witness picked Evans out of a photo array and a lineup. During the lineup, the witness picked Evans, then picked a filler.

"They didn't ask any follow-up questions about the second guy she identified. It wasn't clear what she meant," Diggs said. "But the case would have been held for court, and he would be in jail awaiting trial. Now he's in college."

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