Richmond Times-Dispatch

Mar 16, 2003

Eyewitness ID fallibility shown

BY FRANK GREEN
TIMES-DISPATCH STAFF WRITER

The degradation went beyond rape and sodomy.

It lasted for hours. When it was over, the victim fled home on foot, bruised, soiled and naked. She told police the sadist said he had a white girlfriend.

Marvin Lamont Anderson had a spotless record, but he lived near the victim, and he dated a white woman. Police included his photo in a spread. The victim picked out Anderson's picture.

An hour later, she picked him out of a lineup.

The photograph of the man who raped and tortured the petite, blue-eyed blond was in the photo spread. But his name is John Otis Lincoln.

It was Lincoln who dragged the woman into the woods the night of July 17, 1982.

Anderson was at his mother's house washing his car.

"It is the only case in America - of all the DNA exonerations - where the real perpetrator was shown to the victim, and instead she picked an innocent guy," said Peter Neufeld, one of Anderson's lawyers and co- founder of the Innocence Project.

Anderson was sentenced to 210 years in prison on the mistaken identification. He spent the next 15 years in prison. Just 19 years old, he cried when the verdicts were read.

Lincoln briefly fled town after the rape, chuckling, no doubt, at his good fortune.

Twenty-one years later, however, Anderson is one of 123 people nationwide cleared of crimes by DNA, and Lincoln is scheduled to be sentenced next week for the 1982 crimes. A bill is now before Gov. Mark R. Warner to award Anderson $1.2 million for his wrongful conviction and imprisonment.

There are lessons to be learned from what happened to Anderson. But at least one has been rejected by the same legislators who recently approved Anderson's compensation.

The case also illustrates the fallibility of eyewitness identification, the danger of relying solely on one eyewitness for a conviction and the risks of using poor police photo spread techniques.

In the meantime, there are, no doubt, other innocents in prison not fortunate enough to have DNA as a key to freedom. Virginia authorities and courts are not disposed even to hear their claims, much less do something about them.

. . .

The attack occurred in a wooded area in Ashland near the apartments where the victim lived. After the assailant left the scene, she ran home and called police.

Ashland police officer W.L. Anderson, no longer with the force, was first to arrive at the apartment. He spoke with her there and later at the hospital. He learned that the assailant knew enough about the victim to suggest he lived near her and that he had said he had a white girlfriend.

Officer Anderson, who is black but is no relation to Marvin Lamont Anderson, then began asking around about black men living with white women at the apartments. Anderson's name came up.

Anderson, then 18, had no police record. He was a volunteer firefighter and worked at Kings Dominion. He lived in one of the apartments near the victim with his girlfriend, Stephanie Lynn Parker.

Authorities went to Kings Dominion and copied an employee photograph of Anderson, which was included with other mug shots shown to the victim. Anderson's photo, however, differed from the others - it had numbers on the bottom.

And according to Neufeld, the Kings Dominion photo was in color, while the police mug shots were black and white.

It was widely suspected in the black community that Lincoln was responsible, Anderson recalled. Lincoln had been seen stealing the 10-speed bicycle used in the crime just a half hour before he met the rape victim.

Anderson found out about Lincoln's possible involvement from his mother when he was released on bond. He was having a hard time getting the police or even his own lawyer to look into Lincoln. For one thing, police at the time said the victim had had a chance to identify Lincoln in the photo spread but had chosen Anderson instead.

Police, however, should not have permitted a photograph different from the others to be used in a photo spread, an expert on witness identifications said.

Dr. Ronald P. Fisher, a psychology professor at Florida International University, said, "There should either be a homogenous appearance of the photographs, or at least enough variation across all of the photographs, so that the suspect's photo does not stand out."

Fisher has studied eyewitness identification and the methods police use for photo spreads.

Also, experts say it is difficult to identify a stranger one just has met under the best of circumstances. It is easy for an eyewitness, particularly one caught in the emotional fog and trauma of a violent crime, to err when identifying a suspect.

Identifications of a member of one race by a member of another are particularly difficult.

Once the mistake has been made, however, the witness, who now believes the incorrectly identified person is the assailant, rarely has a change of mind.

Kirby Porter, the current commonwealth's attorney in Hanover County, said the victim in the case does not wish to talk to the news media. She admitted, this year during Lincoln's trial in which he was convicted of raping her, that she erred.

. . .

Incorrect eyewitness identification is the number one cause of wrongful convictions, according to the Innocence Project, which has tracked more than 100 cases of DNA proving wrongfully convicted persons innocent.

Yet, eyewitness testimony is widely believed by the public to be the most reliable of evidence, particularly when the witness is stridently certain of the identification.

The victim in Anderson's case told the jury in 1982: "There is no doubt in my mind, whatsoever."

Because of the identification, Neufeld said, police developed "tunnel vision" about the case and ignored the strong evidence against Lincoln.

Police testified Lincoln's photo had been in the photo spread with Anderson's photo the victim was shown three days after the attack. More than 20 years later, however, Officer Anderson testified at Lincoln's trial he did not know if Lincoln's photo was in that spread.

Dr. Gary L. Wells, a psychology professor at Iowa State University and an expert on eyewitnesses, said: "It makes much more sense to me if Lincoln's photo was not in the spread. Witnesses tend to select the person who looks most like the culprit relative to other people in the spread."

"So, one possibility is that Anderson simply looked more like Lincoln than did any other member of the spread," he said.

"Further complicating matters is the almost certain fact that the detective who administered the spread was the case detective. Hence, he knew damned well who he wanted - hoped, expected - the witness to identify," Wells said.

"This type of expectation can be communicated consciously or not and intentionally or not to the witness. This is why I am pushing so hard for double-blind lineups procedures where the person who administers the lineup or spread . . . does not know which person in the lineup is the suspect and which persons are merely fillers," Wells said.

At a pretrial hearing in 1982, the victim testified that, "I, uh, went through the photographs and then I came to his picture and I just went into hysterics and I just threw it over my shoulder . . . because I didn't want to look at it."

Anderson was arrested at his job and taken to the county jail, where a lineup of five inmates, a police officer and Anderson was arranged.

A Hanover investigator testified the victim "told me she'd never forget him as long as she lived." She picked Anderson out of the lineup.

The investigator said that after she left, he returned to the lineup room where "Mr. Anderson broke down and said 'My God, she's picked me,' and started crying."

. . .

Neufeld said the police erred when only one man whose photograph was shown to the victim also appeared in the lineup: Anderson.

Neufeld contends that were it not for racism, Anderson's photo never would have been shown to the victim causing the error in the first place.

Anderson was a black man with a white girlfriend accused of raping and abusing a young white woman, he argued.

He was prosecuted by a white lawyer and convicted and sentenced by a white judge and jury. His alibi witnesses - the jury had to weigh their testimony against the victim's - were Anderson's white girlfriend and three black people.

But Ramon Chalkley, who prosecuted the case, said last week that authorities acted in good faith and that no racism was involved.

Chalkley told Judge Richard H.C. Taylor at Anderson's 1983 sentencing that "it was purely a question of do you believe [the victim] in this case, and the 12 people selected from this community said yes, we believe her."

Neufeld said several prospective black jurors were excused from participating in the jury by the prosecutor. Chalkley said last week it was possible several blacks were excused - but they would have been excused for race-neutral reasons.

According to the transcript, at the outset of Anderson's trial, prospective jurors were asked if they could render a fair verdict in a case where the alleged rapist was black and the victim was white and where the accused was also living with a white woman.

The jurors all indicated they could.

Anderson's trial attorney, Donald M. White, himself black, cautioned the all-white jury that "it's going to be a very emotional situation that you're going to be confronted with, but we're going to ask you to divest yourself of any prejudices that you might have . . . "

Witnesses for the state were the victim, Officer Anderson and Investigator Marshall Bailey. A forensic scientist, Mary Jane Burton, testified that because of the victim's blood type, she was unable to determine a blood type for the rapist. DNA testing was not available in 1982.

. . .

While Burton's role in the case was negligible, her involvement would prove pivotal for Anderson years later.

The defense elicited testimony from five witnesses, including Anderson's girlfriend and mother. Four of the witnesses said Anderson was washing his car at his mother's house the night of the attack.

In his closing arguments, Chalkley reminded the jurors that the assailant had said he had a white girlfriend and that Anderson had a white girlfriend as well.

That prompted an accusation from White that Chalkley was attempting to stir up bias, which, in turn, prompted an immediate objection and denial by Chalkley.

In any case, the jury convicted him of all counts and recommended a 210-year sentence Taylor later imposed. Anderson was sent to prison.

Chalkley, who left the Hanover commonwealth's attorney's office for private practice in 1984, said he does not see how Anderson's conviction could have been prevented at the time, because DNA testing was not available.

He noted that "there are studies that say eyewitness identification at times of stress - especially cross-racial identification - is not very reliable."

A rule barring the conviction of someone strictly on the identification of one eyewitness would have grave consequences, Chalkley said. "It would almost be a free game for those who want to prey upon the weak in society. Those crimes are one-on-one."

A bill that would have made it possible for prisoners to ask the Virginia Supreme Court for a hearing on "actual innocence" based on newly discovered evidence did not gain enough support for passage in this year's General Assembly session.

As a result, anyone discovering evidence of innocence more than 21 days - soon to be 90 days - after final judgment in a case cannot get the evidence before a state court. Authorities argue that in cases where strong evidence of innocence surfaces, a petition for a pardon or clemency from the governor is the correct way to address it.

It did little good for Anderson, however, who unsuccessfully appealed to then-Gov. L. Douglas Wilder.

DNA evidence is the only exception to the newly discovered-evidence ban in Virginia. That proved a godsend for Anderson, but it does little to help the innocent in cases where biological evidence is either not available or not germane to the question of guilt or innocence.

In 1988, Lincoln appeared before Taylor and admitted he committed the crimes. However, he either was unwilling or unable to provide much detail about the crimes. Taylor did not believe him, and the convictions stood. Then Anderson's appeal to Wilder failed.

Anderson began seeking DNA testing in the early 1990s as it was coming into wide use in criminal cases. In 1994, Neufeld and the Innocence Project agreed to take his case. They initially were told all the evidence had been destroyed.

Anderson was paroled in 1997. Though he was free, he faced a lifetime of supervision. He continued to fight to clear his name.

In 2001 Paul B. Ferrara, director of the Virginia Division of Forensic Science, told Neufeld he'd found some biological material from the case attached to paperwork filed by Burton, the forensic scientist on the case.

The Innocence Project sought DNA testing and Porter, the current Hanover commonwealth's attorney, agreed. But Ferrara's boss would not permit testing without the governor or a court directing it.

However, the General Assembly just had passed a law granting inmates such as Anderson the right to DNA testing. The test was conducted, Anderson was cleared, Lincoln was implicated, and Lincoln - already in prison for another assault - was convicted.

Chalkley said: "It's just a classic case of misidentification, and I don't think any defense attorney in the world was going to shake her identification. There was certainly every reason in the world for the jury, the police and myself to believe her identification."

"I know why he was targeted," he said. "Mr. Anderson, unfortunately, had a white girlfriend."

Anderson has no hard feelings toward the victim, though, as of last week, she had not apologized to him.


Contact Frank Green at (804) 649-6340 or fgreen@timesdispatch.com


Eyewitness ID
Truth in Justice