The Mid-Atlantic Innocence Project (MAIP) has lent its support to the District of Columbia’s proposed Eyewitness Identification and Procedures Act of 2008. The act, which is intended to help prevent wrongful convictions, would require DC Police to use double-blind, sequential identification procedures. Under these procedures, photo arrays and live lineups are conducted by police officers who do not know which participant is the suspect under investigation. In addition, potential suspects are shown to the witness one at a time, rather than grouped together.

"The existing safeguards, [such as] tenacious defense attorneys, careful prosecutors, [and] thorough courts…are not sufficient to prevent eyewitness error," said Shawn Armbrust, Executive Director of MAIP. Misidentification by eyewitnesses has played a role in more than 75 percent of DNA exonerations in the United States to date.

The local United States Attorneys’ Office and the District’s Attorney General assert that misidentification is not a problem in the District. They point to the fact that only a single defendant has been exonerated in the District of Columbia.

Proponents of the new law are not so easily swayed. They contend that exonerations are nearly impossible to achieve in DC, even in DNA cases, because of narrowly drawn evidence retention laws and poor management of stored evidence. More compelling, they say, is the multitude of cases in which patently questionable identifications were admitted into evidence. Chief among them was the case of Steven Dewitt, a District man who was convicted of murder in 1991. DeWitt was imprisoned based on the testimony of two witnesses to a 15 second crime.

One witness, in viewing the photo array, picked Dewitt’s picture and said, "this looks like the guy I saw." Later, at trial, this witness identified Dewitt by saying "I guess this guy over here." The second witness failed to pick Dewitt in the initial photo spread and picked Dewitt only in a live lineup in which Dewitt was dressed in clothing similar to that the witness reported seeing during the crime. Despite the obvious flaws in both procedures, both identifications were admitted at trial and led to Dewitt’s conviction. His innocence was not proven until more than 13 years later.

Double-blind, sequential testing corrects many of the problems observed in misidentifications. The possibility of inadvertent persuasion or reinforcement by the administering officer is eliminated by using an officer not associated with the investigation. Showing a witness the suspects sequentially, instead of in groups, ensures that the witness is forced to make a decision on each photo or individual rather than selecting the closest match within the group.

The legislation pending in DC is among the most comprehensive in the nation.

"Eyewitness testimony is among the most compelling evidence of guilt or innocence," said Armbrust. "It’s our responsibility to do all we can to reduce the chance of error."

Armbrust will be a part of a panel discussing the Eyewitness Identification Act on October 29, at Venable LLP. If you are interested in attending and would like more information, please click here.

On October 16, 2008, James L. Owens became the seventh man in Maryland history to be exonerated by DNA evidence. Owens served more than 20 years for the brutal stabbing and strangling of a 24-year-old woman from Southeast Baltimore.

At his 1988 trial, the prosecution alleged that Owens and another man, James Thompson, had attempted to burglarize the home of victim Colleen Williar. Thompson testified that he was present when Owens raped and murdered Williar in her bed. While Owens was never found guilty of rape, he was convicted of the murder. He became the first man to be sentenced under Maryland’s life without parole statute.

Thompson recanted his testimony almost immediately after the trial, but Owens remained in prison.

Owens never stopped professing his innocence, but it took 18 years for his pleas to be heard. While the alleged murder weapon and other physical evidence had been destroyed by the Baltimore Police, a sperm sample taken from the victim was located. DNA testing revealed that the rapist was neither Thompson nor Owens. Thompson’s testimony and the state’s theory were discredited, and Owens’ conviction was vacated.

Although the prosecution had the opportunity to pursue a new trial, Thompson refused to testify against Owens a second time. In addition, five other witnesses had died in the 18 years since the crime. Confronted by these facts, and by the truth of DNA testing, the prosecuting authorities elected to drop all of the charges. James L. Owens left prison as a free man.

"You can’t give me that time back," James Owens said shortly after being released. "You can’t give me that back. That’s all I got to say."

Dr. Gary Wells, a distinguished Professor of Psychology at Iowa State University, is a leading researcher in the field of eyewitness memory.  Dr. Wells has authored over 170 articles and chapters and two books, with most of his work focused on the reliability of eyewitness identification.  Much of his research has been focused specifically on police procedures that affect the reliability of eyewitness identifications.

Below is Dr. Wells' testimony in support of an Eyewitness Identification Bill proposed to the DC City Council in 2004.  The hearing took place on November 15, 2004, and the entire hearing is available here, in ten segments.  The links that follow connect directly to the DC City Council's archive of public proceedings.

Part I
The Eyewitness ID Bill is introduced at approximately 5:40 minutes into Part I, and Dr. Wells' testimony begins shortly thereafter, continuing through Part II and into Part III.

Part II
Dr. Wells' testimony continues through Part II.

Part III
Dr. Wells' testimony continues through Part III.

            Many of you attended our First Annual Awards Luncheon and heard exonoree Marvin Anderson and former Virginia Governor Mark Warner speak about the ongoing project in Virginia to perform post-conviction DNA testing in nearly 1,000 old cases.  During Warner's tenure in office, five innocent men were cleared of rape charges based on DNA evidence that had unexpectedly been saved in files kept by the Virginia Department of Forensic Science (DFS).  In 2005, Gov. Warner made history when he ordered DFS to perform post-conviction DNA testing in every case in which such evidence had been saved. 

            Since that time, the Forensic Science Board (FSB) has been tasked with establishing a system for evaluating the physical evidence and developing a protocol for notifying the affected defendants of the DNA testing.  MAIP has been intimately involved in this process.  Our main goal has been to ensure that legislators and members of the FSB understand the importance of notifying the affected defendants that the DNA from their cases is being tested and advising them of the potential legal consequences of that testing.  Unfortunately, the FSB narrowly voted down MAIP's proposed plan, which involved having a network of MAIP-trained pro bono attorneys locate and notify each defendant whose case was subject to testing.  Instead, FSB has begun the work of notifying these defendants by mail, using addresses that MAIP fears will in many cases be too outdated to be effective. 

            In these letters, the FSB provides defendants with MAIP's contact information.  In addition, the FSB may rely on pro bono attorneys trained and recruited by MAIP to notify those defendants whose letters are returned as undeliverable and who cannot be located by the Virginia Department of Corrections or the Virginia State Police.  In order to handle the anticipated influx of requests, we have assembled a group of more than 200 attorneys who will assist in the representation of these men and women.  Additionally, to ensure that these attorneys are well versed in the post-conviction process, MAIP is arranging training sessions for the pro-bono advocates.  Please email Shawn Armbrust at sarmbrust@exonerate.org if you are interested in participating in this project.

 Click here to read the Washington Post's article on this unprecedented re-testing project.

MAIP is proud to announce that on August 5, 2008, Aaron Michael Howard walked out of prison as a free man for the first time in nearly twenty years.  New evidence uncovered by Howard's attorneys - led by MAIP Board Member Seth Rosenthal - disproved the eyewitness testimony used to convict Howard at trial and established Howard's innocence of the 1988 murder of Bobby Parker in the District of Columbia.  With the pro bono resources of Rosenthal's firm, Venable LLP, and additional financial support from MAIP, Rosenthal obtained affidavits from Howard's co-defendants that cleared him of any blame.  The new evidence was so persuasive that it caused the Metropolitan Police Department detective and the lead prosecutor on the case to believe in Howard's innocence. 

            Howard leaves prison a free man, but he will not be considered "exonerated" in an official sense.  Despite the lead prosecutor's belief in Howard's innocence, the United States Attorney's Office for the District of Columbia remained intent on protecting his conviction.  The Office's stance led the lead prosecutor to withdraw from the case.  Facing the prospect of a lengthy evidentiary hearing, and having already spent two decades in prison, Howard entered into an agreement by which he accepted a conviction for manslaughter without admitting guilt and thus earned immediate release for the time he had already served.