The Problem With This Week’s Observer Cover Story

Let’s just be up front: I’ll sorta kinda pat myself on the back in this post. “Breaking your arm to pat your own back,” Tim says. Maybe. But wrongful convictions is a subject with which I have a passing familiarity, so I read Glenna Whitley’s cover story with interest. The thread of its narrative: how did Dallas come to convict so many innocent people? Dallas County leads the nation in DNA exonerations, you know. Glenna’s argument is that Dallas County has overzealous prosecutors, has always had them, and thank God Craig Watkins is in office now to right this wrong. All of this is true, but none of it gets to the root of the problem of convicting innocent people in Dallas County.

Here’s the thing: overzealous prosecution is an intangible. It’s easy to say Dallas County has overzealous prosecutors—hell, it’s easy to find examples of overzealous prosecutors. And Glenna certainly does this. But it’s not so easy to tell these attorneys to stop it. These attorneys, after all, are doing us a service. They’re taking bad guys off the street. And however many innocent people are serving life sentences–and I believe in this county there are perhaps 100–there are many, many more who are guilty, well more than 95 percent of people convicted, I believe. These people deserve to be punished to the full extent of the law and they deserve, before that sentencing phase, to be prosecuted by all means available. It’s up to the defense to be aware of this zeal. When it is not, that’s when you see miscarriages of justice. That’s when you see 13 exonerated men and women. But the zeal is not the main reason innocent people are convicted.

Police lineups are. Eyewitness memory is incredibly faulty. Police lineups and persuasive detectives can alter memory with ease. The best way to diminish the impact of a police investigation on an eyewitness’ memory is to use a method called the sequential double-blind. This is not an intangible solution. This involves a) showing a photo of one suspect at a time, rather than six. It forces the eyewitness to match the photo against her memory, rather than finding the suspect in the six-spread lineup that most looks like the criminal. This involves b) having a detective not involved with the case administering the photo lineup. That way the detective does not show, consciously or subconsciously, whom he believes the suspect to be. And this involves c) asking the eyewitness after the lineup to ascertain her level of confidence with the person she alleges is guilty. Because an unsure eyewitness at the police station very easily becomes an absolutely certain victim on the stand, by the simple reinforcement that the person she fingered is now standing accused of committing the crime.

Here’s the problem with Glenna’s story: in her rush to show you another conviction-hungry prosecutor, she gives passing attention to the sketchy police investigations involving faulty eyewitnesses. And she shouldn’t have. Of the 13 people exonerated in Dallas County, 11 of them were accused of the crime by an eyewitness. Sometimes only an eyewitness.

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