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.
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.
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.
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.
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.
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.
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.comhttp://www.dallasnews.com/sharedcontent/dws/news/politics/local/ stories/DN-DNAlineups_05pro.ART.State.Edition2.4a899db.html
