Dallas Morning News



18 Dallas County cases overturned by DNA relied on heavily eyewitness testimony

Sunday, October 12, 2008
By STEVE McGONIGLE and JENNIFER EMILY / The Dallas Morning News


Wiley Fountain was the obvious choice among the six Polaroids police assembled for the rape victim to view.

He was the only man wearing a dark baseball cap and light-colored warm-up suit, similar to what the attacker had on. He fit the rapist's description "to a T," a Dallas police officer later testified. The victim was sure. Prosecutors believed her. So did the jury. But all of them were wrong.

Wiley Fountain 2002
After spending 15 years in prison for a false conviction, Wiley Fountain waited for his sister to pick him up from Dallas' Lew Sterrett Justice Center.
In September 2002, after Mr. Fountain had spent 15 years in prison, DNA testing proved his innocence. Today, he is free but homeless, scrounging for aluminum cans on the rugged streets of South Dallas.

The story of his wrongful conviction and that of 18 others is lifting the curtain on criminal justice in Dallas County, which has led the nation in DNA exonerations since 2001. In every instance but one, a Dallas Morning News investigation found, police and prosecutors built their case on eyewitness accounts, even though they knew such testimony can be fatally flawed.

Research has long shown that memory is both fallible and malleable. Initial recollections can be wrong, especially when a victim must identify a stranger, and even more so if the stranger is of a different race.

If a victim later believes that a suspect, such as someone seen in a lineup, was the attacker, the brain can rewrite history and create a false memory that is as vivid and convincing as if it were real.

In such cases, witnesses can give false testimony with complete confidence. And nothing convicts like a confident eyewitness.

Officially, law enforcement has said the false convictions were tragic aberrations. No one has been charged with lying or disciplined for incompetence or negligence in connection with the DNA exonerations.

An eight-month review by The News of previously closed prosecution files found, however, that the faulty identifications were the predictable consequences of a criminal justice system that ignored safeguards meant to protect the innocent. The files reveal a law-and-order machine that focused on securing and bolstering eyewitness testimony, regardless of the victim's doubt or the lack of corroborating evidence.

Wiley Fountain 2008
Six years after his DNA exoneration, Wiley Fountain is free but homeless, saving cans to survive on the streets of South Dallas. In 1986, Mr. Fountain fell victim to a false rape conviction as a result of a flawed photo lineup.

That may be starting to change. In January 2007, Craig Watkins became the state's first elected black district attorney and quickly focused on wrongful convictions. The issue resonated with the former defense lawyer. He was also the first district attorney in memory with no ties to the prosecutor's office and has shown he is not afraid to re-examine its past.


So earlier this year, Mr. Watkins granted a request from The News to review prosecution files to analyze the root causes of the wrongful convictions. Reporters also consulted more than 70 current and former prosecutors and police officers, defense lawyers, judges, jurors and exonerees, as well as legal scholars and those who pursue wrongful conviction cases.

In addition to an almost slavish reliance on eyewitness testimony, a review of the Dallas County DNA cases showed that:

• Thirteen of the 19 wrongly convicted men were black. Eight of the 13 were misidentified by victims of another race. Police investigators and prosecutors in the cases were all white, as were many of the juries of the 1980s.

• Police officers used suggestive lineup procedures, sometimes pressured victims to pick their suspect and then cleared the case once an identification was made.

• Prosecutors frequently went to trial with single-witness identifications and flimsy corroboration. Some tried to preserve shaky identifications by withholding evidence that pointed to other potential suspects.

• Judges, governed by case law that has not kept pace with developments in DNA testing or research on eyewitness testimony, routinely approved even tainted pretrial identifications as long as an eyewitness expressed certainty in court.

As a result, victims who sought only justice sent innocent men to prison while the real criminals went free and committed other violent crimes. Taxpayers spent more than $3 million in compensation and incarceration for the Dallas County cases alone. (Seventeen exonerations have occurred elsewhere in Texas.) And some of the discredited police practices continue to this day.

"It's almost like it's the whole system," Terri Moore, Mr. Watkins' top assistant and a former federal prosecutor, said when presented with the newspaper's findings. "Everybody drops the ball somewhere, starting with the police investigation. And we just take the case and adopt what the police say."

Golden testimony

Eyewitness testimony is the crack cocaine of the criminal justice system.

Law officers know the potential risks but are addicted to its power to convict.

"Eyewitness testimony was gold," said Kevin Brooks, who heads the district attorney's felony trial bureau. "If the witness said they saw it, they saw it."

Misidentifications have been cited as a key factor in an estimated 75 percent of the 220 wrongful convictions exposed by DNA testing nationwide since 1989. No local jurisdiction other than Dallas County has had as many surface since 2001, when state law allowed testing for prisoners.

Two things are clear: Dallas County did a better job than most of preserving biological evidence, and all but five of the wrongful convictions occurred under the late District Attorney Henry Wade.

Mr. Wade felt crime victims deserved their day in court. If a victim was positive of an identification, that was usually good enough for him and his prosecutors.

"No one ever thought a one-eyewitness case was good," said Joe Kendall, a Wade prosecutor from 1980 to 1982. "But if you had a one-eyewitness case, and it was a rape case, and the victim said that's the one, you couldn't dismiss."

The Wade era, from 1951 to 1986, was marked by take-no-prisoner trial tactics, conviction rates that topped 90 percent and record-length punishments.

Attorneys and investigators who work to free the innocent contend that such an adversary mentality contributes to wrongful convictions.

"We are dealing with a deeply entrenched institutional attitude towards criminal justice that works on an us-vs.-them philosophy," said Amarillo attorney Jeff Blackburn, chief counsel for the Innocence Project of Texas. "It cares about convictions because that gets you a bigger budget and re-elected."

Bill Hill, the only surviving Wade protégé who was district attorney before Mr. Watkins, said he was confident his assistants verified the accuracy of all eyewitness identifications.

"I had no reason to believe any of my prosecutors ever did anything that would subject an innocent man to jeopardy," Mr. Hill wrote in an e-mail to The News. "Matter of fact, I would be devastated to find out they had done that."

When told his office prosecuted one of the 19 DNA exonerees, Andrew Gossett, Mr. Hill said the two prosecutors on the case were incompetent holdovers from the previous administration.

Dallas County is not unique in its approach to eyewitness testimony. Most prosecutors across the U.S. have maintained an equally deep devotion despite the swelling number of wrongful convictions exposed by DNA testing.

"These are systemic problems, absolutely," said Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University law school. "And they are closing their eyes to it. They are not doing so in bad faith. They are doing so because they really believe it."

Eyewitness testimony is not always flawed, but no one really knows how often it's wrong. But because the same identification procedures were routinely used in cases that lacked biological evidence to test, Mr. Watkins said, the number is "a lot more than 19."

It is likely, he said, that an innocent person has been convicted by faulty eyewitness testimony during his first two years in office. He is trying to instill in his prosecutors the need to be more skeptical and to seek out corroboration, Mr. Watkins said.

"We know that eyewitness identification is faulty," he added.

Troubled lineups

Mr. Fountain's case epitomized many of the shortcomings The News found.

His was one of 14 DNA-based exonerations that relied on a photographic lineup, by far the most widely used identification method by police.

Photo lineups gained popularity after the U.S. Supreme Court ruled in 1967 that suspects in live lineups had the right to have an attorney present. Photo arrays are usually shown outside the presence of defense attorneys and with no audio or video recordings.

Typically, six mug-shot photos are arrayed in two rows of three for a victim to view. Dallas and many other police departments use computer programs to generate "filler" photos for lineups based on general descriptions entered by a detective.

As in Mr. Fountain's case, questions persist about the fairness police officers demonstrated in obtaining identifications from photo lineups.

Mr. Fountain's photo was shown to the victim four hours after the rape. The case was marked "cleared" by the lead detective the following day. The only other evidence presented at trial was a blood-typing test that concluded no living person could be eliminated as a suspect.

A review of the photo lineups in the other DNA exonerations showed that one wrongly convicted man from Dallas County was a former neighbor of the victim. Another worked at the same business. A third had the same name as a man the victim knew was a suspect. Four men were suspects in other unsolved crimes.

All but one of the exonerated men had prior arrest records – and booking photos that could be used in lineups.

The lead detectives were nearly all seasoned veterans. Two had two cases each with faulty photo identifications. Another had shown photo spreads in the Lenell Geter case, one of Dallas County's most infamous wrongful convictions.

Police insist that faulty identifications from photo lineups are almost always the result of human error, not intentional bad faith.

"Everyone gets sloppy," said P.E. Jones, a retired Dallas robbery and homicide detective. "You think you have a slam-dunk case, and so you don't go in there and dot your I's and cross your T's. And all of a sudden, it comes back to bite you."

Critics contend photo arrays are inherently vulnerable to manipulation: the detective's body language, the instruction the witness receives, feedback provided by officers if an identification is made.

"I call them misconduct identifications," the Innocence Project's Mr. Blackburn said. "I have yet to see one of these eyewitness IDs that goes wrong that didn't have some element of deliberately suggestive behavior going on by the cops."

After one witness hesitated to identify exoneree Patrick Waller from a photo lineup, prosecution notes show, the lead detective pointed to Mr. Waller's picture and said two other eyewitnesses had identified him. The witness remained uncertain and was not called to testify at trial. Mr. Waller spent 16 years in prison before DNA exonerated him in July. The real criminal later was imprisoned for burglary.

Jim McCloskey, a nationally known prisoner rights' advocate, said his investigations of wrongful convictions nationwide often involve photo lineups that appear to be the result of police officers coaxing witnesses.

"Who looks most similar to the suspect?" said Mr. McCloskey, executive director of Centurion Ministries Inc. of Princeton, N.J. "These conversations go on, and they evolve until before you know it they have got themselves an ID. Now they've got the guy [witness] locked in, and he's afraid to go back."

Little training

The use of arrest photos – with height lines in the background or departmental identification placards in front – can suggest involvement in crime.

The angle at which a photograph is taken can distort a subject's true size. A photo's age can obscure physical changes. The exposure can make skin tones darker.

Exoneree Donald Wayne Good, in a federal civil rights lawsuit, accuses an Irving police detective of deliberately underexposing his lineup photo to obscure a facial scar and tattoo. Mr. Good spent 21 years in prison before being freed in 2004.

Attorneys for the detective and the city have denied that Mr. Good's placement in the lineup was retaliation for his lack of cooperation in another case.

Five other exonerees have sued the cities of Dallas, Irving and Garland, claiming that a lack of formal identification policies and inadequate police training and supervision demonstrated "deliberate indifference" to their civil rights.

Most police agencies don't have written policies on identification techniques, and police officers receive little formal training. Only five police departments in Dallas County, including the Dallas Police Department, provided The News with written policies regarding eyewitness investigations.

Dallas Police Chief David Kunkle said investigators sometimes were too focused on their suspect and ignored signs that someone else could be guilty. That, in combination with bad witness identifications and prosecutorial misconduct, contributed to the wrongful convictions, he said.

Law enforcement agencies have generally resisted calls to overhaul their identification procedures and to use a sequential blind method. In it, photos are shown one at a time, instead of simultaneously, by an officer not involved in the case.

Social scientists have touted the sequential procedure for 20 years, and a U.S. Justice Department task force recommended it in 1999.

A bill that died in the Texas Legislature last year would have created a task force to draft voluntary guidelines for sequential blind procedures.

Dallas police have said for nearly two years they would participate in a pilot project to use the sequential blind approach in some felony cases, but the project has yet to begin.

Brad Lollar, a Wade prosecutor from 1978 to 1982, said he did not grill police investigators about how they obtained a victim identification.

"You'd ask them just to make sure there wasn't any deviation from the script," he said. "The script was always, 'No, I didn't tell her. No, I didn't indicate. No, I didn't point out any particular photograph.' "

By the time a case got to trial, it was not unusual for the eyewitness to have seen the defendant multiple times either through photos or in person. Social scientists describe this as "confirmation bias," saying it shores up a shaky identification.

"There is nothing as dramatic as being in front of a jury and that witness says 'That's the man. I will never forget his face,' " said Mr. Brooks, a veteran Dallas prosecutor. "The impact that has on a jury is unreal."

Assembly-line justice

If an eyewitness exhibits certainty, records and interviews show, judges do not suppress a prior identification no matter how the photo lineup was conducted.

"The fact that some particular process might not have been as pristine as we'd like it to be does not in and of itself make them wrong," said state District Judge John Creuzot.

U.S. Supreme Court decisions in the 1960s and 1970s set a high bar for withholding an eyewitness identification from a jury. And in 1975, the Texas Legislature amended state law to make it easier to prosecute sexual assaults without evidence to corroborate eyewitness testimony.

The law was part of a national effort by women's groups to remove provisions deemed unfair barriers to the prosecution of sexual assaults. Each of the 19 Dallas County DNA exonerations occurred after that law change.

In Mr. Fountain's 1986 trial, state District Judge Jack Hampton sanctioned the victim's identification, even though defense attorney Mike Rodgers called it "the most suggestive photo spread I've ever seen in my life."

It didn't matter that Mr. Fountain wasn't wearing blue jeans under the warm-up suit as the victim had described. Or that there was no incriminating medical evidence. Or that Mr. Fountain had an alibi affirmed by his teenage cousin.

Once he was identified, police declared him guilty and prosecutors built a case around the victim's testimony. That, says Ms. Moore, first assistant to Mr. Watkins, is "the assembly line" of criminal justice.

The lead prosecutor in the case said she didn't doubt the victim and was not bothered by the way the photo lineup was constructed.

"I would say, knowing what I know now, that's not good procedure," said Lana Myers, now a felony court judge. "But then, she was believable to me. Obviously, she believed he was the one."

One juror, Michael Reeb, said any doubts about the prosecution's case were overcome by the testimony of the victim, a young clerk pregnant with her third child.

"It came to the point where she's identified him. I don't know what he's done with the pants, but let's go with the identity," Mr. Reeb said.

The jury convicted Mr. Fountain and sentenced him to 40 years in prison.

Once behind bars, Mr. Fountain said, he devoted himself to regaining his freedom. He wrote letters to the trial judge, the district attorney, anyone he thought might listen.

No one did until the results of a series of DNA tests finally proved Mr. Fountain's innocence.

A life unraveled

Life outside prison has been bumpy.

Mr. Fountain said he collected $190,000 in compensation from the state, gave most of it to his family, and a girlfriend drained the rest from his bank account.

"I was a fool for letting her know the number," he said.

Mr. Fountain took to the streets after his mother died in 2005. He sleeps in an abandoned house and spends his days collecting cans to sell to scrap yards along South Lamar Street. On a good day, he said, he can make $40, which he spends on fast food and beer.

Sometimes he stays at his sister's home in Seagoville, but never long. He said he refuses to ever again live under someone else's rules.

Looking back, the gaunt 52-year-old in ripped pants and a grimy T-shirt said the justice system never gave him a chance.

"Back then, all they needed was testimony of the victim," he said. "If the jury believed that, they didn't need nothing else."

smcgonigle@dallasnews.com; jemily@dallasnews.com

Eyewitness ID
Truth in Justice