Folio Weekly Article - Janet Johnson - Published November 22, 2011

Do You See What I See?
Flawed eyewitness testimony is forcing change in police departments around the country. Why not here?

by: Susan Cooper Eastman

It was just after 7 a.m., and James and Mary Ann Stephens were already up and dressed and taking advantage of the Ramada Inn’s free continental breakfast. It was a Sunday morning, the first of the couple’s Florida vacation, 360 miles south of their tiny hometown of Toccoa, Ga. They fixed two cups of coffee and took a muffin each, along with a complimentary copy of The Florida Times-Union. As they walked down the breezeway back to their motel room, Mr. Stephens later recalled, a tall, skinny, young African-American man came walking toward them.

   Suddenly a pistol was pointed at Mary Ann, only 16 inches from her face, and the man was demanding her purse. When she shook her shoulder so that her straw bag would slip down her arm, the man fired what looked to Stephens like a double-barreled Derringer. The bullet hit the bridge of Mrs. Stephens’ nose and entered her skull, killing her instantly. The whole incident, beginning to end, took five seconds. Stephens’ wife of 30 years, Mary Ann Stephens, 64, was gone forever.

   As sirens wailed, a series of BOLOs crackled over police radios. “The suspect is going to be a skinny black male wearing dark shorts, shirt unknown, a hat, last seen running southbound, possibly using a Derringer-type weapon,” went one of the early broadcasts. Later reports added the suspect was wearing a dark shirt and a “fish-like-style hat” with a narrow cloth bill.

   Officer Thomas Martin admitted during his deposition that he approached 15-year-old Brenton Butler because he was walking along University Boulevard near the Ramada Inn, and the original BOLO (Be On the Look Out) description hadn’t given police a lot to go on. But Butler was black. He was skinny. He was wearing dark slacks. Officer Martin approached the youth and told him about the murder. He asked if Butler would mind talking to detectives to tell them anything he might have noticed. Butler got into Martin’s squad car and the officer drove him over to the motel. As soon as Stephens caught sight of him, even from 50 feet away, he was certain he was the gunman. “That’s him,” he told detectives.

   Stephens’ certainty never wavered. At trial, when prosecutor Laura Starrett asked Stephens if the man who killed his wife was in the courtroom, Stephens pointed a finger at the bespectacled teenager. Asked if he had any doubt, Stephens’ response was resolute. “There is no doubt in my mind.”

   Stephens was wrong, however. Butler was acquitted, and two other men were ultimately convicted. The state attorney and the sheriff even issued formal apologies to Butler, admitting that he’d been an innocent kid caught in the system. But Stephens’ testimony was powerful. It kept the teen in jail for six and a half months, despite his claims he’d been beaten by detectives, despite photographs that appeared to back up that claim, and despite a signed “confession” in which the details didn’t come close to matching the particulars of the crime.

   Eyewitness testimony was all that held the case together, but for a while, it was enough. Stephens was so sincere. So certain about Butler. So wrong.

  The faulty eyewitness testimony of James Stephens in the Brenton Butler case has become a classic in the annals of eyewitness fallibility, partly because of Stephens’ certainty and partly because Butler might have spent the rest of his life in prison for a crime he didn’t commit.

   Human memory is capricious, even in ordinary circumstances. (Did you turn off the stove? Can you remember that person’s name?) When there’s a weapon involved in a crime, it attracts almost all of a person’s focus. Remember the detail in Stephens’ description: a double-barrelled Derringer? For reasons both practical and instinctual, the focus in such moments isn’t a face or even what the assailant is wearing; it’s the immediate threat — the gun, the blade. Stephens admitted as much when he was questioned at the second murder trial. Asked about his initial misidentification of Butler, he snapped, “Suppose you had to stand there with your wife and watch her brains get blown out?”

   Stephens’ answer reflects not only the grief and rage that cloud such a moment, but the very reason eyewitness testimony is unreliable. It’s difficult for a jury to discount such testimony, however. Stephens wasn’t lying, after all. He was absolutely convinced Butler had killed his wife.

   Stephens’ certainty also convinced police. So sure were they that Brenton Butler was their man, they didn’t even bother dusting the murdered woman’s purse for fingerprints until a few weeks before his trial. (The prints recovered belonged to Juan Curtis, one of two men eventually convicted of the crime.)

   Stephens is hardly the only witness to be both certain and mistaken. Eyewitness misidentification is the single biggest factor in wrongful convictions. Of the 273 defendants exonerated in the United States by DNA evidence since 1992, 75 percent of cases involved faulty eyewitness testimony. And some studies have found as many as one in three eyewitness identifications are false, likely sending innocent people to jail. Police know this, and some departments have tried to tighten up procedures for identifying suspects. Other departments are being forced to make changes. A landmark ruling by the New Jersey Supreme Court in August criticized the “troubling lack of reliability in eyewitness identifications” and set new guidelines for the kinds of answers judges can consider and juries can demand when evaluating the reliability of witness testimony. The guidelines, which incorporate decades of research into human memory, dovetail with several new studies, including a report released in September by the American Judicature Society. That report, based on actual, in-the-field criminal investigations, found small changes to the way police handle lineups can dramatically reduce the rate of misidentifications.

   Chief among the report’s recommendations is that photographs of suspects be presented sequentially, rather than as a group. The report also recommends “double-blind” identification sessions, in which the officer presenting the photographs has no knowledge of the crime or a possible suspect. Both practices decrease the pressure on witnesses to pick someone, and guard against the unintentional bias of police officers.

   The New Jersey ruling incorporates these two recommendations, along with another key suggestion: that lineup administrators rate the certainty of witnesses. Researchers have found that once a witness has identified someone in a lineup, their conviction that they’ve picked the right person increases dramatically. By requiring law enforcement to rate how the witness felt at the outset, the court hopes to diminish the impact of self-reinforced certitude.

   Although the court’s recommendations only affect law enforcement in New Jersey, they are expected to influence other  jurisdictions. Tucson, San Diego and Charlotte, which participated in the AJS study, are all weighing the proposals. Pressure is growing in other Northeastern jurisdictions, particularly New York, to follow New Jersey’s lead.

   But while these policies are the new standard in New Jersey, and the expected future at law enforcement agencies around the country, they are not currently in use at the Jacksonville Sheriff’s Office — and there are no plans to change that.

  Jacksonville Undersheriff Dwain Senterfitt calls the May 2000 Brenton Butler case a learning experience. He says it forced the department to be more rigorous in building cases, no longer relying on eyewitness testimony alone, but adding it to a wealth of other evidence in a case. He also believes the JSO is ahead of the curve on reforming police procedures to obtain more accurate eyewitness identification. Senterfitt notes that administrators of a lineup are instructed to scrupulously avoid making comments on witnesses’ choices or pressuring a witness into making decisions. JSO informs witnesses that the suspect may not be in the lineup at all, and emphasizes that it’s just as important to protect the innocent as to put the guilty in prison.

   Other Northeast Florida sheriff’s departments do the same. Clay, St. Johns and Nassau all require that photographs used in a photo lineup be similar in size and coloring, and that all of the people closely match the suspect in appearance.

   And all sheriff’s offices employ the sequential photo lineup — at least in theory. In practice, however, there is great variability. Clay County allows officers to present photos either as a group or one at a time. The Jacksonville Sheriff’s Office has a policy of sequential photo lineups, but Senterfitt says JSO officers simply hand the witness a shuffled packet of photographs and then give him or her control over how they’re viewed. The witness is free to page back and forth through the photos, comparing and contrasting the images.

   A sequential lineup is preferred by memory experts because it’s designed to force the witness to compare an individual photo against their memory of the perpetrator. When presented with several photos simultaneously, a witness tends to compare one person to another, and choose the one that most closely resembles her or his memory.

   As for “double-blind” lineups, in which the administrator is unfamiliar with the case, and doesn’t even know if there’s a suspect in the lineup, only the Nassau County Sheriff’s Office policy specifies it as the “preferable” scenario. Clay County allows for double-blinds but does not require them; St. Johns makes no mention of them. In Jacksonville, double-blind lineups are not used.

   Undersheriff Senterfitt says he’s proud of JSO’s policies and underscores the professionalism of his officers. But he resists the idea of changing JSO procedures to be in accordance with current research or the dictates of the New Jersey court.

   Senterfitt says implementing double-blind lineups presents logistical difficulties. “Not to say we don’t use it sometimes,” he says. “I just don’t want it to be in the policy that we have to use it. If it’s 2 a.m., and all I have there are detectives that are working the case, it’s just not logistical to bring somebody else in [for] an identification.”

   But defense attorney Richard Kuritz dismisses this argument. He points out that JSO is a large police department with a lot of resources. “If there can be four or five law enforcement officers present at a DUI stop,” he says, “there’s no reason why, in a homicide or some other serious case, they can’t get someone to come in on it.”

   And in practice, the JSO’s policy may not be as rigorous as Senterfitt suggests. Defense attorney Janet Johnson says witnesses have told her in deposition that JSO officers or detectives will tell them when they’ve identified the person who’s the main suspect. “Afterwards, I’ve had people tell me that they’ve said, ‘That is the guy,’ ” she says. “It reinforces their decision,” she says, increasing their certainty to 100 percent.

   Kuritz agrees that the difference between policy and practice can be vast. Although policy at all four sheriff’s offices says that the people picked for a lineup must resemble the prime suspect, Kuritz says that’s not always done. He even tried one case in which the JSO, having settled on a different suspect than the one initially identified by their witness, testified the original lineup wasn’t good because the photos didn’t match the suspect.

   “They were waffling and backtracking and doing whatever they could to support the new theory for the prosecution,” he recalls. “They said the people in the lineup didn’t look alike. [But if their original] theory had remained the same … I’m sure they would have said that the photo lineup was good.”

   One way jurors can gauge the reliability of witnesses’ identification is to know how the witness reacted to the lineup and exactly what was said to them during the process — in other words, a recording. It’s among the ideas put forth in the recent New Jersey court ruling. Senterfitt seems almost offended by that idea. “I don’t think it’s necessary,” he says curtly. “I have faith in my detectives.”

   Kuritz points out that an officer’s behavior doesn’t have to be blatant to have influence, though. “It’s little things — subtle behavior, movement, voice inflection — that can be picked up on by somebody else,” he says. “It may not be intentional by law enforcement officials, but the person who is listening may misconstrue what is happening and think they are being given a message.”

   Recording the lineup would eliminate those questions and give everyone a concrete record of the process. “We are in such a technological era. I can video-record you doing a photo spread on my phone, and we could download it and have it forever,” says Kuritz. “Why would they not want to ensure the integrity of the process?”

  Change comes slowly to Northeast Florida. This is a place, after all, that’s still arguing over whether it’s appropriate for a high school to be named after a Grand Wizard of the Ku Klux Klan. Absent pressure from the outside, it’s unlikely police procedures will change.

   But there is outside pressure building. In December 2009, in the wake of 13 overturned convictions — mostly death row and life sentences — a group of 68 judges and attorneys petitioned the Florida Supreme Court to investigate. Florida Chief Justice Charles Canady established the 23-member Innocence Commission to investigate the reasons behind the wrongful convictions and to suggest reform. The commission began work in July 2010, and will issue its final report in July 2012. Its proposals may include statutory changes for the Florida Legislature to consider, changes to court procedures or even a suggestion that the state attorney general set statewide standards, as has happened in Wisconsin, Ohio and North Carolina.

   Seth Miller, executive director of the Innocence Project of Florida, whose work with DNA evidence led to the release of 13 men in recent years, would like to see statewide standards forced on Florida law enforcement. In fact, he says, the guarantee of equal justice demands it. But he’s not optimistic. He doubts the legislature has the stomach to dictate law enforcement policy, and despite the dramatic rate of overturned convictions, there may not be enough institutional pressure for wholesale change.

   “There is not a framework in Florida to make sure all of the agencies in the state not only have a policy on witness identification, but have the best policy, and that it is uniform across the state,” Miller says. “You shouldn’t have the luck of the draw when you are a suspect in a crime.”

Susan Cooper Eastman

[email protected]

http://www.folioweekly.com/folio1122wkl013.php