Execution Watch

By Elizabeth Ann Stein

Producer, EXECUTION WATCH, KPFT-FM

There is "nothing more convincing [to a jury] than a live human being who takes the stand, points a finger at the defendant, and says 'That's the one!'" wrote former US Supreme Court Justice William J. Brennan.

Too bad. Really. Because eyewitness identifications are so often off, they’re a major cause of wrongful convictions.

Take the case of Jonnie Earl Lindsey, freed in September after spending a quarter century in Texas prisons for a rape DNA tests prove he did not commit. The jury that convicted him based its decision on eyewitness identification that turned out to be inaccurate, coming as it did from photo lineups in which police used questionable procedures.

The human misery generated by wrongful convictions like Lindsey’s is painful to consider. Folks might comfort themsleves by thinking, now that the problem has been identified police are correcting it.

Folks would be thinking wrong, according to a new study by the Justice Project.

Just 12 percent of Texas law enforcement agencies have adopted written guidelines for conducting photo or live lineups, according to the Project’s research on Texas criminal justice procedures. Of the few existing written procedures, many are so vague and incomplete they are of limited use.

If the Justice Project’s findings stand up to further scrutiny, their significance is profound: Of the 38 Texas wrongful convictions uncovered by DNA testing, 82 percent were based largely or exclusively on incorrect eyewitness identifications.

Worse, at least one probable wrongful conviction in Texas stemming from faulty eyewitness testimony is beyond the reach of  DNA testing.

Former Bexar County District Attorney Sam Millsap now acknowledges that Ruben Cantu of San Antonio may have been innocent of the 1984 murder for which he was convicted. The jury in his case relied heavily on the testimony of a single eyewitness, who later recanted,

No amount of DNA testing can help Cantu. Texas executed him in 1993.  

The good news is that best practices have been developed, and proven effective, in boosting the reliability of eyewitness testimony. The bad news is that only 7 percent of Texas departments have incorporated them into their written policies. Seven percent.

How could Texas law enforcement agencies not consider it an urgent priority to adopt procedures to avoid tragic, wrongful convictions like Lindsey’s? They need to wake up – slap themselves upside the head if need be – and put the best practices to work in conducting photo and live lineups.

Otherwise, they’ll have no one but themselves to blame when the public’s already shaky trust in law enforcement becomes so low, not even a misdirected eyewitness could detect it.

* * *

A file containing the full report, “Eyewitness Identification Procedures in Texas,” is at http://www.thejusticeproject.org/wp-content/uploads/texas-eyewitness-report-final2.pdf .  The Justice Project is a non-profit, non-partisan group established to improve fairness and accuracy in the criminal justice system.

Elizabeth Ann Stein produces EXECUTION WATCH on KPFT FM Houston 90.1, HD-2 and www.executionwatch.org. The program, hosted by Ray Hill, airs at 6 p.m. Central Time any day Texas executes someone. It is designed to counteract the virtual news blackout in the mainstream media when prisoners are executed. She has worked as a political reporter for United Press International, police reporter at a daily newspaper, and an editor for PC Week.

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