Wednesday, March 30, 2005

Mistaken eyewitness identification is the major reason innocent people have been sent to prison in Virginia, a two-year study of 11 wrongful convictions concludes.

Preventing such tragedies could be as simple as changing police procedures or as expensive as improving the quality of legal help given poor people in Virginia, which pays court-appointed lawyers the lowest fees in the nation.

These findings and recommendations are included in a 134-page report to be released today by the Innocence Commission for Virginia, a collaborative effort of The Mid-Atlantic Innocence Project, the Administration of Justice Program at George Mason University and The Constitution Project.

The 11 selected cases involved serious felonies that occurred since 1980. Each innocent person was either pardoned or cleared by a court, or a prosecutor conceded that the wrong person had been convicted.

The 11 spent a total of 118 years behind bars. In many cases, the true perpetrators remained free when innocent people were sent to prison.

"This is as much about crime reduction as it is about how to protect the innocent," said Jon B. Gould, George Mason University professor on the commission's steering committee.

Gould and lawyer Donald P. Salzman, also on the commission's steering committee, said the commission was making no statement on how many, if any, innocent people remain in Virginia prisons.

Nine of the 11 cases studied involved mistaken identification by victims or other eyewitnesses, particularly when the eyewitness was of one race and the alleged perpetrator of another.

"Suggestive," or otherwise poor, police procedures used in photo lineups also played a part.

Many departments in the state still show eyewitnesses a spread of suspect photos simultaneously, rather than one at a time. Studies have shown eyewitnesses make fewer errors when shown photos one at a time.

The commission also was critical of what it called "tunnel vision" by police when investigating a crime. In such cases, police might ignore evidence pointing to a suspect other than the one they believe to be guilty.

Also cited was the failure of prosecutors to disclose to defense lawyers evidence favorable to defendants. In some cases, the prosecutors were unaware police had such material.

The commission made a series of recommendations it believes could dramatically reduce the risk of wrongful convictions. Among them:

• Videotape interrogations of all suspects in serious felony investigations.
• Train law-enforcement officers to avoid "tunnel vision" when investigating crimes.
• Pay lawyers representing indigent defendants enough to ensure effective and adequate representation.
• Allow those who pleaded guilty to petition the courts for a chance to prove their innocence. At least two of the 11 wrongfully convicted men had pleaded guilty.
• Have localities maintain an open-file policy in which prosecutors share with the defense all the information that law enforcement and prosecutors have collected, with the exception of information that could endanger witnesses or jeopardize public safety.

The innocence commission's concerns were somewhat addressed in recent years when the Virginia General Assembly:

• Strongly encouraged police and sheriff's departments to show crime victims and witnesses mug shots one at a time, or sequentially, instead of a group of photographs at once.
• Established an indigent defense commission to improve the quality of legal representation given defendants too poor to afford their own lawyers.
• Relaxed the state's draconian 21-day rule. Previously, any evidence of innocence was prohibited from ever being heard in a state court if discovered more than 21 days after sentencing. Now, DNA evidence is exempt from that prohibition, and those who did not plead guilty to crimes have one chance to introduce new, nonbiological evidence of innocence.
• Stopped penalizing prisoners who seek a new appeal after their appeals were tossed out because of lawyer error. Essentially, the Virginia Supreme Court used to allow inmates just one civil challenge to their criminal convictions, and asking for a belated appeal because of lawyer error used that one chance. Now, such an appeal does not count against the inmate.

Commission members said yesterday that while the changes are laudable, they do not go far enough.

Lynchburg Commonwealth's Attorney William Petty, a member of the Virginia State Crime Commission, said he has not read the report and could not comment on it.

However, he said he already has an open-file policy at his office and noted that other prosecutors in the state do as well. "In almost every case, they can come by and look at my file. The thing that shocks me is I have very few attorneys that take me up on that," he said.

Petty said some prosecutors do not share their files.

However, state law requires authorities to make known to the defense any material favorable to the defendant concerning his or her innocence, or that would help them during sentencing.

The prosecution must be informed of any alibi defense and any reports from expert witnesses, and whether the accused plans to use an insanity defense, Petty said.

Gould said that during this year, he hopes to meet with lawmakers, judges, bar associations, law-enforcement officials and anyone who can help bring about changes.

"We are willing to meet with anyone who wants to talk with us," Gould said.

Steven D. Benjamin, a Richmond lawyer on the commission's advisory board, pointed out that one of the 11, Jeffrey Cox, was driving to work in New Kent County in 1990 when he was stopped and arrested for the abduction and murder of a 63-year-old Richmond woman.

Cox, Benjamin said, wasn't exonerated until 2001. "It could be any one of us," he warned.