Eyewitness guidelines urged after man freed

By Carlos Campos, The Atlanta Journal-Constitution, January 28, 2007

Willie O. "Pete" Williams' recent release after more than 21 years in prison on a wrongful rape conviction has put a face on an issue once again before the Georgia Legislature: faulty eyewitness identifications.

Williams, 44, was picked out of a photo lineup by a victim who testified in court that she was "120" percent certain he was the man who raped her. But DNA evidence later proved he was not guilty of the crime.

Photo by Ben Gray/ The Atlanta Journal-Constitution
State Rep. Stephanie Stuckey Benfield (D-Atlanta) plans to introduce legislation that would set guidelines for law enforcement on conducting live and photo lineups in order to reduce bias. A similar bill from her last year never got a vote in the full House.
Photo by Jenni Girtman/ The Atlanta Journal-Constitution
Recently released Willie O. 'Pete' Williams, who served more than 21 years for a crime he didn't commit, was convicted by eyewitness identification. His case and similar ones could spur state guidelines.

All six of the men whose convictions have been thrown out by DNA evidence in Georgia were prosecuted based on eyewitness testimony, said Aimee Maxwell, executive director of the Georgia Innocence Project, which investigates allegations of wrongful convictions.

Of the 194 people exonerated by post-conviction DNA evidence in the United States, more than 75 percent were imprisoned because of mistaken eyewitness identification, according to the Innocence Project in New York.

State Rep. Stephanie Stuckey Benfield (D-Atlanta) plans to introduce legislation she hopes will cut down on mistaken identities. Benfield's bill — backed by defense attorneys, the Georgia Innocence Project and the Southern Center for Human Rights — will set guidelines for law enforcement on conducting live and photo lineups. The bill is likely to be similar to one Benfield filed last year.

Law enforcement agencies in some states already have adopted standard lineup procedures. But Georgia would become the first state in the nation to write specific guidelines into law.

The guidelines are designed to remove any bias — often unintentional — that might steer eyewitnesses toward choosing a particular suspect. Criminal defense advocates point to scholarly research that says those biases often can contribute to wrongful convictions.

Lineups can be troublesome because law enforcement officers sometimes give unintentional clues as to the identity of a suspect — whether it's a verbal cue, body language or even an encouraging word to the eyewitness. Law enforcement officers can subtly steer the eyewitness to the suspect.

"A simple comment like 'good job' or 'do you want to look at No. 3 again?' Most of the time, those are innocent comments," said Maxwell of the Georgia Innocence Project. "They make witnesses feel like they've done a good job; they picked the right guy. So they make them falsely more certain."

If modeled on the legislation she proposed last year, Benfield's bill would require the use of a "blind" administrator, meaning the suspect would be unknown to the person conducting the lineup.

Among the bill's other requirements might be a mandate for "sequential presentation" — showing photographs or presenting lineup members one-by-one, rather than presenting them side-by-side. The Innocence Project contends research has shown that eyewitnesses tend to make "relative judgments" about lineup participants when they are presented together, leading to inaccurate identification.

"This is about catching the right person," Benfield said. "We ought to be on the cutting edge of this."

Benfield's bill, which she may file this week, might have a tough time becoming law in Georgia. A similar bill she filed last year, House Bill 1256, passed the bipartisan House Judiciary Committee but failed to come to the full House for a vote.

The bill has powerful enemies in the state's district attorneys and law enforcement groups. Benfield said a Republican leader stalled the bill last year because his local district attorney opposed it.

Prosecutors are worried putting lineup guidelines into law will give criminal defense lawyers another reason to challenge cases. They fear judges will throw out cases if law enforcement officials fail to follow lineup guidelines to the letter.

"It's going to become about the rules," said Rick Malone, a former district attorney and executive director of the Prosecuting Attorneys' Council of Georgia. "Why else would they propose it?"

Douglas Judicial District Attorney David McDade, who follows legislation at the Capitol for the District Attorneys Association of Georgia, said no prosecutor wants to put the wrong person behind bars. But he shares Malone's concerns.

"What I don't want to see is legislation become law that will create more hurdles to prevent the truth from coming out," McDade said. "It's an additional opportunity for the defense to attack the procedures."

But House Speaker Glenn Richardson (R-Hiram), a Paulding County lawyer who has done some criminal defense work, said the issue is worth examining, particularly in light of the Williams case.

"It concerns me greatly," Richardson said of Williams' conviction on faulty eyewitness identification. "I wonder where else that's happening? The worst form of evidence is eyewitness identification. Eyewitness identification has so many fallibilities. I'll be glad to look at that if we can do something reasonable."

Law enforcement officials in Georgia caution against putting eyewitness lineup guidelines into law.

Terry Norris, executive vice president of the Georgia Sheriffs' Association, said the organization opposes legislative involvement in what he said should be "a training issue" for law enforcement. Outside of metro Atlanta, sheriffs offices are the chief law enforcement agencies in most Georgia counties.

Frank V. Rotondo, executive director of the Georgia Association of Chiefs of Police, said he doesn't object to the principle of lineup guidelines. But carrying out those guidelines might be harder on some small departments, some with only a few officers who might not have an impartial person available to conduct lineups.

"If data shows it is the better approach to change the procedure of doing lineups and to set some standards associated with it that law enforcement has to adhere to, that's fine," said Rotondo, who represents 565 law enforcement agencies throughout the state. "But let's make it so that it's acceptable throughout the state and yet be a court-worthy lineup."

Uniform guidelines would help law enforcement, argues Sandra Michaels, lobbyist for the Georgia Association of Criminal Defense Lawyers. If every law enforcement agency follows the same rules for lineups, then their results are more likely to stand up in court, she said.

"When someone's liberty is at stake, complaining about the rules being followed seems ridiculous," said Michaels, a criminal defense lawyer. "Anything that can make the system more fair and prevent miscarriages of justice — like what happened to Mr. Williams, who lost half of his life for a crime he didn't commit based on faulty eyewitness identification — is something everybody should be working for."

Benfield said she's open to including a provision in her bill that would prevent all but clearly egregious cases from being tossed out because of improper lineup procedures. But she believes defense lawyers should be able to argue that improper lineup procedures damages the credibility of a witness.

Rotondo, a former police officer and homicide detective in New York and former chief of police in Helen, said many departments already have standard procedures for lineups. But he acknowledged that unintentional bias can sometimes creep into lineups.

"It's a natural issue," Rotondo said. "We're not robots. We all want the same thing. We don't want to unjustly put somebody in jail. We want to stop the crime and the potential for future crime by incarcerating the right person."