By Edwin Colfax
Two more tragic injustices have been uncovered in Houston in the span of a week, just as a panel created by the Texas legislature prepares recommendations on how to prevent wrongful convictions.
On July 23, Allen Wayne Porter was released from prison after DNA testing and other new evidence proved he did not commit the 1990 rape for which he was sent to prison 19 years ago. One week later Michael Anthony Green was released after spending 27 years in prison for a rape he did not commit.
It now appears that the victims in these cases may never get the justice they are due. Although the actual perpetrators have been identified, they cannot be prosecuted because the statute of limitations has expired.
In both cases, Harris County prosecutors were instrumental in developing the exonerating evidence and supported the releases – a remarkable change from the previous D.A.'s handling of innocence cases. The potential for a new era of cooperation among at least some prosecutors is most welcome, and critical to efforts to rescue the innocent from prison. Just as important, however, are the changes needed to prevent these wrongful convictions from happening in the first place. Such reforms are not being implemented in most parts of Texas, and putting those safeguards in place needs to be a top priority of the state's leaders.
Last year the Texas Legislature created the Timothy Cole Advisory Panel on Wrongful Convictions, which will present its recommendations in advance of the 2011 legislative session. Among the panel's key objectives is improving the reliability of eyewitness evidence, a factor in 85 percent of Texas DNA exonerations.
The eyewitness procedures used against Green, for example, show how poor eyewitness identification procedures compromise the accuracy and reliability of evidence. The results are devastating for the wrongfully convicted, and public safety is threatened when the actual criminals are unintentionally left on the street.
Shortly after the rape, Houston police stopped Green and another man while walking home, and the two didn't object to participating in a “show-up” procedure with a crime victim. When police brought the victim to look at the two, she said neither was among her assailants, and they were released.
A week later, Green was caught driving a stolen car, and police quickly suspected him of the rape. Despite the fact that the victim had already failed to identify Green in person during a “show up” shortly after the crime, Green was put in a photo lineup. This time the victim identified him as a perpetrator, and also picked him out of a live lineup later that same day. Despite the lack of any physical evidence tying Green to the crime scene, the victim's mistaken identification led to his conviction and 75 year sentence.
Scientists studying eyewitness memory have established that allowing repeated presentations of a suspect to a witness greatly compromises the reliability of any subsequent identification. In part because of what scientists call unconscious transference, it becomes unclear whether the suspect is familiar to a victim from the crime, or from a previous identification procedure. Based on the chain of events that led to the victim's identification of Green, this clearly seems to be a factor. Further, there is every indication that the officers who presented the lineups to the victim were heavily involved in the case and already suspected Green. Experts have long noted that officers who are aware of which person in a lineup is the suspect can inadvertently (or even intentionally) cue the witness toward the suspect. A more carefully designed protocol is essential to ensure objectivity and reliability.
States such as North Carolina, New Jersey, Wisconsin and others have recognized the importance of careful protocols for collecting eyewitness evidence, and have passed laws ensuring that scientifically sound procedures are used to ensure maximum reliability and objectivity. Despite the importance of proper procedures for eyewitness accuracy, an extensive survey of Texas law enforcement departments by The Justice Project revealed that only 12 percent had any written policies on lineup procedures, and only a tiny fraction have implemented scientifically valid best practices for gathering identification evidence from eyewitnesses.
Even prior to the latest exonerations in Houston, Texas already led the nation with 40 wrongful convictions exposed by DNA evidence, and in the span of a week two more wrongfully convicted men were freed based on DNA testing and other evidence of innocence. These two most recent cases are painful reminders of how slowly Texas has been to implement reforms that can prevent such horrible injustices.
Texas cannot do without eyewitness evidence, so it is essential that steps be taken that are necessary to make sure that evidence is as accurate as possible. No reforms can guarantee that mistakes will not be made. When poor procedures lead to preventable errors, however, the failure to implement needed reforms is itself a crime.
Edwin Colfax is Texas Policy Director for The Justice Project.