Advancing Justice in Kentucky
By Gordon Rahn, Kentucky Innocence Project
(footnotes have been removed for podcast)
There is an old adage that says “if it ain’t broken, don’t fix it.” But we all know that everything can be improved upon, and that was the underlying theme of the Advancing Justice Conference held November 16, 2007 at the Brandeis School of Law on the campus of the University of Louisville. Hosted by U of L’s law school and sponsored by Chase College of Law at Northern Kentucky University, the University of Kentucky College of Law, the Masters Program in Criminal Justice at Eastern Kentucky University’s College of Justice and Safety, and DNA Diagnostics Center of Fairfield, Ohio, the conference brought together stakeholders in the criminal justice system in Kentucky to discuss ways to improve the system to insure innocent Kentucky citizens are not sent to prisons for crimes they did not commit and to increase the chances of putting the guilty person behind bars.
As of this writing, 208 men and women have been exonerated in the United States by post-conviction DNA testing. Two Kentucky men have been released from incarceration and their charges dismissed due to DNA testing: William Gregory of Jefferson County and Herman May of Franklin County. May, a client of the Kentucky Innocence Project, was immediately released from prison on September 18, 2002, when the trial court entered its order saying, “This Court also finds that results of the tests are of ‘such decisive value or force…that it would probably change the result if a new trial should be granted.’”
The key to insuring that more men and women like William Gregory and Herman May do not get sent to prison for something they did not do, as was emphasized at the conference, is to learn from “The Innocents”. Learning those lessons does not mean pointing fingers but identifying the areas where mistakes are being made and then doing everything possible, as a criminal justice system and as a society, to make sure those mistakes do not repeat themselves and, at the very least, minimize the opportunity for mistakes to happen.
So, what kind of lessons can we learn from The Innocents? First and foremost, besides the human tragedy that occurs in every such case (more on that later), is the fact that almost 80% of the 208 DNA exonerations have involved mistaken eyewitness identification. In both the Gregory case and the May case, eyewitness identification was a major factor in their convictions.
Gary Wells, a professor of psychology at Iowa State University, spoke to the approximately 75 people who attended the conference about the many factors that can lead to mistaken eyewitness identification. Wells discussed the many problems associated with the most common identification process used by law enforcement across the country today: the photo lineup. In a photo lineup, a witness is shown 6-8 photos. The lineup may or may not include the suspect; it is suggested that the individual showing the lineup explain that to the witness. The witness looks at all of the photographs and then, more often than not, points out an individual that he identifies as the person he saw commit the crime. Seems simple enough.
That is, until you review the empirical data Wells and his colleagues have collected over the years. Professor Wells, who has studied the issue for more than 25 years, has developed a theory he calls “relative judgment” based upon the data. The theory is relatively simple: eyewitnesses tend to identify the person from the lineup who, in the opinion of the eyewitness, looks most like the culprit relative to the other members of the lineup. An example of relative judgment may have come into play in Herman May’s case when the investigating detective flew to California to show the vacationing victim a photo lineup. The young woman first picked out three pictures from the lineup saying they resembled her attacker, and after studying all three for some time, she finally picked Herman.
In Wells’ studies, if the suspect was removed from a photo lineup, a large percentage of the witnesses selected another photo rather than making no choice at all. Witnesses want to do the right thing and often think that a suspect must be in the lineup, despite warnings that he might not be.
And that is another problematic area identified by Wells: the unintentional, or sometimes intentional, suggestive support often given to the witness by the officer conducting the lineup. Through questions or phrases such as “Are you sure?”, “Take another look just to make sure,” or “Great job! You got him!” the witness can be led to identify the suspect not through confidence but through suggestiveness. Or, as in the last phrase, the witness’ confidence in the identification is bolstered and has a carry over affect to the courtroom.
Professor Wells has become one of the nation’s leading experts supporting eyewitness identification procedural reform. His recommendations, accepted and adopted by many jurisdictions in the country, include:
1) Use a double blind procedure, meaning that the individual conducting or administering the photo, or even live, lineup has no idea as to who the suspect is;
2) Have the administrator of the lineup advise the witness that the suspect may not be in the lineup and have the witness sign an acknowledgement of being so advised;
3) Use a sequential photo pack, rather than a simultaneous photo lineup, where the witness looks at the photos one at a time and gives either a yes or a no to that individual, thus avoiding the relative judgment quandary.
4) Get a statement of confidence from the eyewitness at the time of identification and prior to any feedback.
Another recommendation that Wells made was to utilize modern technology to avoid the highly suggestive “show up”. He suggested that police officers could utilize the laptop computers that many already carry in their police cruisers by sending a description given by a witness to police headquarters who would then, in turn, put together a proper photo lineup based upon that description. That lineup could be transmitted back to the officer who could immediately show it to the witness at the scene, thus avoiding the live show up of a suspect.
Are such reforms really necessary? The gripping stories of two of the speakers at the conference readily provide answers to that question. They spoke from two completely different perspectives about their experiences.
Jennifer Thompson-Cannino is from North Carolina and while she was speaking the large classroom in which the conference was held was completely silent. It was silent not because the attendees had a hard time hearing this soft-spoken woman; it was because her story is one that grabs your heart.
Jennifer was a college student in North Carolina when a man entered her apartment and brutally raped her. Jennifer used her intellect not only to survive the attack but as a means of finding a way to identify her attacker, because she was determined that IF she survived she was going to make sure he never did this to anyone else ever again. She talked her attacker into turning on some lights and she focused all of her attention on his face rather than the knife that he held on her. When she was finally able to escape from him and the police were called, she gave a very detailed description of her attacker.
Not long after her attack, Jennifer was asked to look at a photo lineup. She quickly picked a man by the name of Ronald Cotton. “Good job, Jennifer,” the police officer told her when she picked his picture from the lineup. She was proud; she was doing the right thing. She later picked Cotton out again in a live lineup, again with the pat on the back from the police.
A few months later, sitting at the witness stand, Jennifer pointed at Ronald Cotton as the man who raped her. Ronald Cotton was sentenced to life in prison. Jennifer was happy; she had persevered and sent the man who attacked her to prison. Life went on for her.
Cotton’s conviction was reversed by the appellate courts in North Carolina after another man in prison had allegedly confessed to other inmates that he had raped Thompson, and Cotton was tried again for Thompson-Cannino’s rape. Before the second trial, the second man was brought before Jennifer and she told police he was not her attacker. In the second trial Cotton was also tried for the rape of the second woman, who now identified Cotton as her attacker. At trial, Jennifer again pointed at Cotton and confidently declared that he was the man who broke into her apartment, held a knife to her throat and brutally raped her. Cotton was convicted of both rapes and received two life sentences.
Jennifer went on with her life. She married, she had triplets, and she became a soccer mom. After a few years, the investigating detective knocked on her door and told her that Cotton wanted the physical evidence from her case tested for DNA profiles. Jennifer told him she had no problem with that since she was positive about what the results would be.
Months later, the detective was again at her door and this time he told her they had made a mistake-the DNA testing had excluded Ronald Cotton and had conclusively shown that the second man was indeed the man who had raped her. Thompson-Cannino thought she had been safe from Ronald Cotton all those years he was in prison but now she saw his face again in her dreams and had new fears. Would the man she had put in prison now want to harm her?
Jennifer met Ronald Cotton several months after he was released from prison. Facing her fears and through tears, she apologized to him. His immediate response was to hug her. Now, they are friends, they often appear together at different events and are collaborating on a book.
Today, Jennifer travels the country telling her story with the hope that her story will help in improving the criminal justice system so that no one has to spend years in prison for something they did not do--men like Ronald Cotton, or like Herman May.
Herman May answered questions during the conference lunch session about his ordeal and the 13 years he spent in prison. Often emotional, Herman talked about his case, the time he lost away from his parents and family, and the difficulties he faced when released from prison. When asked if he had received any compensation from the state, or anyone, for his lost time in prison, Herman quietly answered no. Marguerite Thomas, one of Herman’s lawyers who moderated the question and answer session, reminded the conference attendees later that Herman did receive a $25 check when he was released from the Kentucky State Penitentiary, but he could not immediately cash it because he did not have a driver’s license or other form of identification.
Herman told the group, in answer to a question, that he wouldn’t want anyone to have to go through what he did but he personally would not change a thing. According to Herman, if things had been different, he would not have met his wife and he would not be the father of two children.
After Herman spoke, Jennifer Thompson-Cannino immediately sought Herman out and talked with him, and gave him a hug as Ronald Cotton had done for her years ago. She, a rape victim, was trying to help Herman May, wrongfully convicted of rape.
Having heard how mistakes can happen and seeing how those mistakes affect the lives of all involved, the conference attendees heard about how improvements can be made in the system to minimize the chances of innocent men and women being convicted and incarcerated while the guilty individual(s) continue to wreak havoc on society.
The cases of Herman May, Ronald Cotton and William Gregory all involved DNA testing so preservation of the evidence was a major factor in their ultimate release. Major Kevin Wittman talked with the group about improvements the Charlotte/Mecklenberg County (North Carolina) police department had made in their evidence storage procedures. Held out as a model for storage of evidence, the department bar codes their evidence and logs the location and other information about the evidence into the department’s computer system. In large part due to the improvements, the department has cleared numerous cold cases, including several murders.
The Kentucky Innocence Project, through its investigations of innocence claims throughout the Commonwealth, has seen the worst in storage systems and procedures. Cluttered evidence rooms behind locked doors, loose and exposed slides with key physical evidence found in the bottom of a box from a different case, evidence that could be tested for DNA stored in a plastic bag (absolute worst environment possible). Or, the evidence that cannot be found, such as in one jurisdiction where the court reporter a few years ago was responsible for storing the physical evidence entered at trial. She kept it in the storage area above her garage. And when she passed away, her children destroyed everything, completely unaware of the importance of what was there.
Keith Findley, a professor of law at the Wisconsin College of Law and co-director of the Wisconsin Innocence Project, shared examples of other states creating justice and innocence commissions to study the issues discussed at the conference as well as other factors in the wrongful conviction of innocent people. As Findley noted, the purpose of the commissions was not to accuse certain parties or agencies of wrongdoing but to study the issues, make recommendations and even draft model legislation or policy for consideration by the appropriate governing authority.
Commissions, according to Findley, come in many shapes and sizes. Some are independently created by interested bodies, others by the legislature, one by a governor, and another by the highest court of the state. The common factor in all of them, in order for them to meet their mission, is a broad representation on the commission. The mission statement from the North Carolina Actual Innocence Commission succinctly summarizes the need for justice commissions in every state or commonwealth:
“The North Carolina Actual Innocence Commission is established to provide a forum for education and dialog among prosecutors, defense attorneys, judges, law enforcement personnel, legal scholars, legislative representatives, and victim advocates regarding the common causes of wrongful conviction of the innocent and to develop potential procedures to decrease the possibility of conviction of the innocent in North Carolina, thereby increasing conviction of the guilty.”
Following the presentations by the speakers, roundtable discussions were available for the conference attendees to participate in so they could voice their concerns and ideas. One of the recommendations that came out of the roundtable discussions was that Kentucky should join the ranks of states that have established commissions and create its own justice commission to study and make recommendations for reforms.
Interestingly, in a pre-conference survey created by the Kentucky Innocence Project that was included with the invitations to the conference, a large percentage of respondents agreed that such a commission should be created. One hundred percent of the respondents agreed that improvements can be made in Kentucky’s criminal justice system and 61% felt that the issues addressed at the conference (eyewitness identification, evidence preservation, DNA testing) were key areas demanding improvement. Respondents thought that legislation is the best way to put reforms into place, but 72% thought a commission should study the issues and make recommendations to the Kentucky General Assembly (only 8% of the respondents thought the commission should be appointed by the legislature).
Clearly, the respondents to the survey and the Advancing Justice Conference participants agree that improvements can be made to the Kentucky criminal justice system and that a criminal justice commission, regardless of the format or who appoints it, is one means of making sure the right improvements are made.
Unfortunately, there will be more rape victims like Jennifer Thompson-Cannino. But as stakeholders in the criminal justice system and as a society, we owe it to her and to men like Herman May, William Gregory, Ronald Cotton and the other Innocents to do everything within our power to insure their stories are not repeated in the future by other victims or wrongfully convicted men. We must learn the lessons from the Innocents and people like Jennifer Thompson-Cannino or we, not the system, will have failed them.
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