Eyes don't always have it

Eyewitnesses can be sure but still be wrong on ID

BY FRANK GREEN TIMES-DISPATCH STAFF WRITER     Jan 28, 2002

Ronald Cotton forgave rape victim Jennifer Thompson for mistakenly identifying him as her attacker, sending him to prison for 11 years. Now, they are friends.

They lost some of the best years of their lives, more than a decade each. Jeffrey Cox of Quinton is a heating and air-conditioning man; Marvin Anderson of Hanover County, a truck driver; and Ronald Cotton, of Mebane, N.C., a machine operator. They have little in common aside from long, unwarranted stretches in prison. It appears that presumably honest and well-intentioned citizens mistakenly identified them as violent criminals. As tragic as their stories are, they are the lucky ones. There are others imprisoned on mistaken identifications who will not be proven innocent. Mistaken eyewitnesses, many of them adamant about their identifications, are the top reason innocent people wind up behind bars. How is it possible for a witness to be so certain, yet so wrong, when the stakes are so high? It's easy. Just ask Jennifer Thompson of Winston-Salem, N.C. She was the rape victim whose testimony sent Ronald Cotton to prison for 11 years. "I was positive. I couldn't have been more certain of anything in my life," Thompson said of her identification of Cotton as the lone rapist. She had carefully studied the face of her attacker. Yet, she testified, she had never seen another suspect in the case, Bobby Poole. And, she said, "there was never a moment when I questioned myself - not ever was there a moment when I thought I made a mistake." Then, in 1995, DNA tests proved her to be wrong. Cotton was innocent. Poole was the rapist. How can it happen? The short answer, said Gary L. Wells, a professor at Iowa State University and an expert on witness identification, is that eyewitness identification is unreliable under certain conditions yet highly persuasive to jurors. The degree of confidence shown by the witness may sway a jury, but it has no bearing on accuracy. If eyewitness testimony were more reliable, then its persuasiveness would not be such a problem. If it were not so persuasive, then its unreliability would not be such a problem, he said. Dr. Edmund S. Higgins, a Charleston, S.C., psychiatrist who has studied wrongful convictions, says memory is not permanent. It can change over time without a witness being aware of it. Even the initial memory can be inaccurate because of stress and trauma, poor lighting and other factors. Also, Wells said, in a sense, memory is like trace evidence such as fingerprints, blood and fibers, in that it "can be tampered with, destroyed, lost distorted or contaminated by the process used to collect it." Cox was identified by two witnesses who were themselves facing criminal charges. Betty Layne DesPortes, one of Cox's lawyers, said, "Certainly nothing Jeff did put him in the crosshairs [of the police]. Here he was - a guy from New Kent being identified for a Richmond murder." "If it can happen to Jeff, it can happen to anybody," warned DesPortes.

According to the Innocence Project, of the first 70 prisoners in the country freed by DNA testing, 61 were wrongly convicted at least in part because of mistaken identification. In a study by Higgins of 316 prisoners found to be innocent, 184, or 58 percent, were convicted because of erroneous eyewitness identification. Tim Murtaugh, spokesman for Virginia Attorney General Jerry W. Kilgore, said, "We have no evidence that convictions based on mistaken eyewitness evidence is a common problem. It's a rarity. But certainly, you're dealing with human beings, and human beings make mistakes." Murtaugh said that is why Kilgore supports the use of technological advances such as DNA to support the testimony of witnesses. Contributing to the problem, Wells said, is that, in many police agencies, witnesses are asked to look at photo or in-person lineups that usually involve six or more photos or possible suspects. He said the cognitive process underlying recognition memory is complex, but there is one process that is simple to understand: People have a tendency to pick the person who looks most like the offender compared to the other members of the lineup. "Controlled eyewitness experiments consistently show that the most difficult problem for eyewitnesses is recognizing the absence of the offenders because, even when the offender is not in the lineup, there is still someone who looks most like the offenders," Wells wrote in a recent paper. Investigators can compound the problem, reinforcing the error by telling the witness, or even unconsciously suggesting, they picked out the "right" suspect. In the Thompson-Cotton case, when Thompson picked out Cotton's photo, detectives turned to her and said, "That's the guy we thought it was," Wells wrote. In 1984, Thompson was a 22-year-old student at Elon College who lived alone in a Burlington, N.C., apartment when she was raped. Police drew a composite sketch of her attacker, and she said the face on the sketch, which differed from her attacker, became, in her mind, the face of the rapist. The sketch ran in the local newspaper, and a caller phoned police to report that it resembled Cotton. Cotton had been convicted earlier of breaking and entering and assault with the intent to commit rape. Police believed he was a good suspect. Based on her new mind's-eye view of the suspect, Thompson picked Cotton's photograph out of a lineup of photographs police presented to her. It was his face that now became the face of the rapist. She positively identified him as the assailant in the 1984 trial, and he was convicted. Cotton said he could not understand how she could identify him. While in prison, Cotton heard of another inmate, Bobby Poole, bragging that he had committed the rape of Thompson. Cotton won another trial; during it, Thompson was asked if Poole was her attacker. "I said, 'I've never seen him before in my life. I don't know who he is.'" Cotton remembers Thompson pointing him out in the courtroom at the first trail. "I just couldn't believe it. I know people can get people mixed up," especially people of a different race, he said. Nevertheless, "I just couldn't believe it. I was angry. She's got the wrong one. She has it all wrong." He was convicted a second time. But, in 1995, DNA tests proved that Cotton was innocent and Poole, who has since died in prison, guilty. The news shocked Thompson and moved her to meet with Cotton in 1997. Cotton forgave her, and the two are now friends. Cox spent nearly 11 years in prison for a Richmond murder after two eyewitnesses identified him as a participant in the slaying. Anderson spent 15 years in prison when an Ashland rape victim identified him as the suspect. Both were apparently cleared recently, Anderson by DNA and Cox when a renewed investigation cast doubt on his guilt and led to the arrest of another suspect. Cox was freed from prison last year. Anderson was already on parole when the DNA tests were run. Hanover Commonwealth's Attorney Kirby H. Porter is waiting for further DNA test results before deciding whether to join in a petition to the governor for a full pardon for Anderson. The witnesses in their cases either could not be reached or declined to comment.

In the Anderson case, according to the Innocence Project, a color photograph from Anderson's employer - Anderson had no convictions so no mug shot was available - were shown to the victim, along with a half dozen other black and white photographs. The victim picked Anderson as her attacker. An hour later, she picked him out of a lineup. Anderson was the only person in the lineup whose photograph was in the array she had been shown earlier. Anderson recently declined to comment on his case. However, last month, he told The Times-Dispatch he did not blame the victim for making a mistake. "I have no animosity toward her. Here's a woman that was attacked, beaten and raped," he said. "She was confused about a lot of things." In Cox's case, his lawyers said the two eyewitnesses could not make a positive identification of him from photographs, so police arranged for them to see him in person when he was led through a door into Richmond General District Court in handcuffs by deputy sheriffs. As far as Cox is concerned, the security measures meant he was a criminal who must have been guilty of something. "Anybody led through that door would have been convicted," he said. One of the witnesses did identify Cox that day, and the other identified him at his one-day trial. Cox remembers their identifying him. "You got people up there saying something that's not true. . . . It was a traumatic experience. How do you unprove it? I wanted to speak up and say, 'That isn't true!'" but he couldn't. "I can't really hold any animosity toward them. I don't really know the story" of how they came to identify him, he said. His lawyer, DesPortes, agreed. "We don't really know the circumstances yet as to how the identification was made." "Was there some suggestiveness in the process, in which case you wouldn't even be able to fault the witnesses for making a mistake?" she said. "It may be that it was purely a mistake. An absolute mistake. We do know that neither of the witnesses knew Jeff, and they had no animosity toward him."