Derrick Williams, 48, was exonerated earlier this month after spending 18 years of a life sentence in prison for a crime he did not commit — making him the 13th man in Florida to be wrongfully incarcerated and released thanks to DNA testing and the dedicated work of the Innocence Project of Florida. The dozen men released prior to Williams had, in total, languished more than two-and-a-half centuries in prison before being proven innocent. According to IPF Executive Director Seth Miller, nine of those convictions — like Williams' — were caused, at least in part, by mistaken identification. And Miller says that same percentage holds true nationally: More than 75 percent of the 268 people in the U.S. who've been exonerated through DNA testing had been wrongly convicted in part because of misidentification — a statistic that now has a pair of FL legislators calling for reform.
Republican Joe Negron is the Senate sponsor of SB 1206, a bill that would mandate new rules for law enforcement officials to follow when conducting photo lineups. A companion bill in the House, the Eyewitness Identification Reform Act (HB 821), sponsored by Democrat Perry Thurston, gives the proposed law an even better shot at passage. Thurston, who's been involved with criminal justice issues for the last two decades, says the bills are a direct result of findings by the newly formed state Innocence Commission that has been investigating "why it is we have innocent people convicted of crimes."
There's no doubt, according to hundreds of scientific studies, that eyewitness identification is often inaccurate — just ask the roughly 200 misidentified and subsequently wrongly convicted people in the U.S. But the Innocence Project says the process can be improved by implementing some pretty simple reforms, like telling a witness that the suspect may or may not be in the lineup, or showing a witnesses one photo at a time instead of a group of photos, or requiring that the person conducting the photo lineup have no knowledge of the case — a few of the things that SB 1206 would mandate. Florida is similar to a majority of states across the country in that there are currently no statewide standards on how to conduct a photo lineup. In fact, a recent IPF survey found that only 37 of the 230 state agencies even have a written policy in place. State Representative Thurston says it's those standards that will make the proposed legislation successful and that now is the time for correcting the "quirks in our system that cause people so much pain and suffering when they're unjustifiably incarcerated."
Both the House and Senate bills call for a uniform, statewide policy that would first and foremost mandate that an independent administrator — a neutral third party — conduct the photo lineup. The Innocence Project's Seth Miller says this would help remove the "suggestiveness" from the witness identification procedure. Because the officer handling the ID process usually knows the identity of the suspect in the photos being shown to the crime victim or witness, there is the chance — whether intentional or not — to pressure or steer the witness to a particular photo. Miller says phrases like "Are you sure?" and "Why don't you take another look" can bias a witness against a certain individual and lead to a mistaken identification. In the case of Derrick Williams, a case Miller worked on for five years, he said the photo lineup contained not one, but two pictures of Williams, significantly increasing his chances of being chosen as a suspect. Miller says showing contemporary photos, one at a time, allows a witness to "compare the picture to what they remember seeing as opposed to what they're seeing in the other pictures."
Prior to conducting a photo lineup, SB 1206 would require that an officer tell the eyewitness that the suspect may or may not be in the lineup; that the administrator does not know the suspect's identity; that they should not feel compelled to make an identification, and that the investigation will continue with or without an ID. The photos used in the lineup would have to be shown to the witness sequentially (one at a time) rather than simultaneously, and a video recording of a live lineup would be required when possible.
Law enforcement agencies across the state are strongly opposed to Negron's bill, including both the Florida Police Chiefs and Sheriffs Associations and the Florida Prosecuting Attorneys Association. They argue that newly adopted FDLE guidelines would accomplish the same thing without imposing a financial burden on smaller agencies that may not have the resources to hire a neutral party to conduct the lineups. However, Miller points to extensive surveys done by the Innocence Project of agencies in other states, including Ohio, North Carolina and New Jersey, where blind administrators are already being used for photo lineups and no one has reported any cost concerns.
The "Analysis and Fiscal Impact Statement" for SB 1206 takes these budgetary concerns into consideration, providing "alternative methods" for conducting eyewitness identification when an independent administrator is not feasible, allowing the smaller agencies more "flexibility." Miller says even something as cheap as manila folders can still achieve "double blind" results for agencies without the resources to hire an independent administrator. In the "folder shuffle" method an investigator places lineup photos in a handful of folders which are then shuffled and given to the eyewitness. Because the administrator has no idea which photos are contained in which folders Miller says there is no room for "suggestiveness."
Pinellas County Sheriff Jim Coats says his department has already implemented most of the requirements set forth in SB1206, with the exception of the third party administrator, but says he is very opposed to the idea of another Tallahassee "mandate." He says the agencies not in compliance need to be given a little "breathing room" to implement the standards, a point Representative Thurston finds interesting. "They're really not disagreeing with anything we're saying," says Thurston. "They just don't want to be required to do it," and would rather "implement it on their own time frame." But Thurston says it's up to legislators to take "bold action," because "this is something whose time has come. We need to do this to not only protect the innocent residents of our society but the potential victims who are out there if we don't get the right person."
The IPF's Seth Miller couldn't agree more. He says failing to get the right person because of misidentification has real consequences for the public, not only for victims but for public safety in general. According to the studies of 267 exonerees conducted by the Innocence Project of New York, in 120 of those cases the true perpetrators were responsible for over 20 murders and 60 rapes. Miller says he would hope that law enforcement would want to make sure they get the right person because "if we have the wrong person in prison the actual perpetrator is out on the street preying on society."
As of this writing, SB 1206 has one more committee stop before heading to the floor; the House bill has two, including a subcommittee chaired by Republican Representative William Snyder. However, the Palm Beach Post is reporting that Snyder is expected to introduce a "strike-all" amendment to HB 821 that would basically "eviscerate" the original bill by removing the requirement that lineups be conducted by "blind," third-party administrators. This amendment would require law enforcement agencies to have a written policy in place addressing only how to make lineup presentations neutral and impartial. Meanwhile, Senator Joe Negron said yesterday that he remains confident that his Senate Bill (1206) will pass with the blind administration requirement still intact.
Representative Thurston says he expects the bills to make it to the governor's desk before the end of the current session. He also says he's been given "no indication that Scott has any problems with the legislation" and hopes he will do the right thing by signing it into law because, Thurston says, "That which we can correct, we should."
This article appears in Apr 14-20, 2011.