We AreAdvocates

Stronger Convictions in Capital Murder Cases: Demoting Eyewitness Testimony

Cameron Kellock April 9th, 2013
Every month, people convicted of capital crimes in America are executed. While the qualifications for and means of execution have changed over the past century, the United States retains the use of the death penalty as a means of punishment. However, many other countries across the world, including Canada, Australia, and the countries of the European Union, have all banned the use of capital punishment or the death penalty within their borders.1 The UN is currently calling for a moratorium on executions as a means of punishment in the remaining nations. While a number of factors have made its use controversial in the United States and across the world, the UN argues that executing someone for their crimes is a human rights violation.2 Brutal public executions in foreign countries stir shock and anger in many Americans when they watch them broadcasted on television or see pictures in the newspaper. Many of these Americans often perceive these executions to be carried out incautiously. Perhaps they even would go as far to suggest the defendants were probably not given a fair trial where evidence could be collected and reviewed. These same Americans may be right but, at the same time, are most likely unaware of the executions that are currently taking place in their own country, executions that are carried out despite weak evidence. If the United States continues to uphold the use of capital punishment, a choice popular among most American citizens3, convictions need to be based on stronger evidence than eyewitness testimony. Eyewitness testimony, which has proven to be the biggest cause of false convictions, has led some to be executed and later pardoned.4 Americas choice to continue with executions may be contradictory to popular international decision but it should not play into the stereotype that it is a practice that is carried out in our country hastily and without through judgment.

The Conviction Process

In the United States, the death sentence is delivered at the trial level in cases of capital crime. For the thirty-one states that continue to enforce capital punishment, the definition of a capital crime differs. Such severe offences range from treason to aircraft hijacking to kidnapping. However, it has been almost fifty years since one has been executed in the United States for any such capital crime except aggravated murder. In the most severe cases of aggravated murder, the jury may decide that the defendant should be sentenced to the death penalty. After sentencing, a six-month timer is set,

temporarily stopped during the direct review process. The direct review process in these cases is very much the same as the appeal process. An appellate court will do one of the following: affirm the decision, call for a new sentencing, or, although it happens rarely, replace the death sentence with a lesser consequence. Although this process can ultimately be the deciding factor for many, most sentences survive direct review. After the direct review process, defendants are able to file state and federal habeas corpus cases in the hopes of bringing to the table new evidence and receiving a stay of execution, which would stop the timer on their back. Unfortunately for the defendants, the evidence must be compelling and the defense ruthless for the sentence to be dropped by this stage. For those whose case was decided based on eyewitness testimony, even if the witness recanted their statement after the trial, the chances of overturning their sentence are low.5

Three Cases for Change

Less than a year ago, an Atlanta man named Troy Davis became the latest of many to be victimized by the system after his attorneys were unable to meet the standards to pardon him even after the Supreme Court granted him a retrial.6 Leading up to his execution on September 21, 2011, protestors marched outside the White House, hundreds of thousands of people signed petitions, tee shirts and posters were made, and chants were sung. Even figureheads like Jimmy Carter, Pope Benedict XVI, and Desmond Tutu spoke out in Davis defense. The former president told the nation, If one of our fellow citizens can be executed with so much doubt surrounding his guilt, then the death penalty system in our country is unjust and outdated.7 It is precisely a system in which eyewitness testimony alone can put a man to death that remains undeniably unjust. Following the murder, witnesses identified Davis as the man who shot off duty police officer, Mark MacPhail, in a Burger King parking lot in Atlanta, Georgia. After the conviction, however, seven out of the nine recanted their testimonies and others claimed that another man, who was at the scene with Davis on the night of the murder, was responsible.8 This second man, Red Coles, independently told many following the murder that he was, in fact, the one who pulled the trigger. However, the defense was unable to bring him to the judges attention.9 No other concrete evidence linked Davis to the murder, no gun was ever found, and no DNA evidence placed Davis at the scene.10 The Troy Davis case is just the latest of many such cases that have led men and women to be executed because of weak eyewitness testimony. In 2000, Claude Jones of Texas was executed in a case all too similar to Troy Davis. Convicted of murdering liquor storeowner Allen Hilzendager, Joness case swarmed with loopholes of its own. One of the key pieces of evidence that the prosecution used to convict Jones was the testimony of Joness so-called accomplice. Later this same witness signed an affidavit recanting his testimony and admitted that police threatened him to produce such incriminating affirmations.11 The secondary piece of evidence in the case was a small hair sample found at the scene of the crime. A chemist for the state first concluded that it was too small to test but later, curiously, came to the conclusion that it must have belonged to Jones.12 With better DNA testing available in the nineties, Joness lawyer pleaded in vain for a stay of execution until the hair sample could be tested. 13 However,

a stay of execution was never granted and after Joness execution in 2000, the hair sample was found to have belonged to Hilzendager.14 A third man, Larry Griffin, who was convicted of the murder of Quinton Moss by eyewitness testimony, was executed just five years before Jones. Griffin was accused of shooting Moss thirteen times in a drive-by attack on a notoriously dangerous Saint Louis street corner.15 The prosecution built their case around the testimony of a third man named Robert Fitzgerald, whose testimony put him at the scene of the crime. He initially told police that he saw Griffin in the speeding car.16 No other single piece of evidence existed in the case. Even before the execution was carried out, many were weary about the conviction. For one, Fitzgerald was far from the ideal citizen himself. A user of both heroin and speed, Fitzgerald had a long list of felony charges pending. 17 His testimony against Griffin was the only piece of evidence the case had and although obviously unreliable, it ultimately decided his death. After his execution in the nineties, lawyers opened his case back up to find justice. A police officer that initially supported Fitzgerald and his claims came forward and said that Fitzgerald, before his death, had admitted to him that I didnt see nothing.17 Since 1995, Troy Davis, Claude Jones, Larry Griffin, and many others have been executed by the state based on convictions made with little or faulty evidence. For each of the three men, eyewitness testimony specifically, determined their death. However, psychologists continue to warn America about the danger of eyewitness testimony.

The Science behind Eyewitness Testimony

Psychologists have questioned the reliability of eyewitness testimony since the early twentieth century. Although many without proper background knowledge on the subject perceive memory to be an exact recording of the things that have happened or knowledge that was learned, experts say that there are many ways that the facts may be skewed in our mind. In a report published by the Schuster Institute, a reporter writes about the malleability of memories when he says, This is counterintuitiveand most people, including some criminal justice officials, simply dont know enough about this research.18 An experimental social psychologist, Gary Wells, PhD, told reporter Zak Stambor, Like trace evidence, eyewitness evidence can be contaminated, lost, destroyed or otherwise made to produce results that can lead to an incorrect reconstruction of the crime.19 Eyewitness testimonies thus pose a huge threat to America because the courts continue to perceive the affirmations of eyewitnesses as facts. Causes of Distorted Memories In an article published in the New York Times, writer Adam Liptak reports that out of the 75,000 eyewitness identifications made each year, about a third are incorrect.20 Because of those

FIGURE 1: Reproduced from The Innocence Project website.

misidentifications, close to two hundred people spend time behind bars for crimes they didnt commit.21 However, Liptak also reports that in cases where a witnesss identification came back false, the people were as certain as they were wrong. They were quoted saying, 120 percent sure, that is a face I will never forget, and this is the man, or it is his twin brother.22 How could these people be so wrong? According to psychologists, there are many things that can go wrong to distort the memories of eyewitnesses when the event is taking place and after the event has occurred. Encoding Stage, During the Event: In an article published in USA Today about the Trayvon Martin case, writer Yamiche Alcindor uses the various testimonies to explore the reliability of eyewitness identification. While Witness 3 told investigators, I just saw this white shirt on top, Witness 6 told police There was a black man with a black hoodie on top of either a white guy or a Hispanic guy with a red sweat shirt on the ground yelling help. Somehow either one or both of these men got it wrong. A man in a white shirt and a man in a black hoodie couldnt have both been on top.23These kinds of mix-ups, however, do not surprise experts. The first principle that may be able to help support this confusion is the weapons focus effect. In her paper about weapons focus and in-group bias, Stephanie Johnson describes, The weapons focus effect occurs when the presence of a weapon in the hands of a perpetrator adversely affects eyewitness ability to remember important details about the crime, such as the perpetrators face or clothing.24 Researchers have found that the weapons focus effect has much to do with where ones attention is when there is an unusual object present in a situation. In Loftus, Loftus, and Messos research, they found that eyewitnesses were better able to identify the perpetrator if he was carrying a check in a fast-food restaurant as opposed to a gun.25 However, it was not necessarily the weapon that made witnesses shift their attention, Pickel would argue in his 1998 paper. Instead he would contest that a gun in a fast-food restaurant is something that doesnt belong, and therefore attention is drawn to it because of its unusualness in the situation alone. In his study, he tested participates memory about a perpetrators appearance as an effect of the object they were holding in a hair salon setting. In the context of the hair salon, many more were able to identify the perpetrator if he was carrying scissors as opposed to a whole chicken or a handgun. Even though the chicken would obviously pose much less of a threat than a pair of scissors if used as a weapon, participates seemed to be less focused on the scissors because they werent unusual, Pickel argues.26 In addition to the weapons focus principle, there are many other factors that have been studied by psychologists that can have an effect on ones ability to take in, or encode, information when the event is taking place. Some of these effects include the other-race effect or in-group bias effect. These effects skew the witnesss ability to identify a person or cause them to have a predisposition about a suspect because of their appearance. For example, because of the other-race effect, people are hypothesized to have a harder time identifying the faces of people of another race. 27 Hypothesis about in-group bias look to explain the reason why witnesses favor suspects who share their same ethnicity, gender, or religion.28

Retrieval Stage, After the Event: If the witness was able to get a clear picture in their head of the event when it occurred, they still may be at risk of losing important details that they originally encoded. One of the most compelling reasons that explains how this can happen is through the misinformation effect. The misinformation effect comes into play when the eyewitness hears incorrect information about the event after the event has occurred. 29 When incorporating this new information into their memory, it can change perhaps a correct interpretation of an event into one that is totally off base. A study conducted by a number of psychologists in 2002 showed that memories could be implanted into ones head using this principle. In the study, researchers asked participants about specific childhood memories, some of which they learned about through talking with their families and others in which researchers totally made up. At first, participates didnt recognize the made up memories of course. However, once the experimenters showed them a photo shopped picture of themselves as children taking part in the event, some participants built whole stories around this totally made-up experience when questioned about the event a second time.30 The misinformation effect can lead to eyewitness misidentification when police interrogators disclose information about the event that may be contradictory to what the eyewitness may have previously believed. It can also come into play when eyewitnesses talk about the event together, especially when one or both of their memories have been affected by encoding factors.

FIGURE 2: Reproduced from The Psychonomic Bulletin & Review article.

A Policy to Preserve the Lives of the Innocent

To ensure that as long as America is practicing the use of the death penalty as a means of punishment for capital crimes, the courts must outlaw the use of eyewitness testimony as the primary source of evidence to avoid threatening the lives of innocent bystanders. Experts are able to justify their theories on learning and memory, with hundreds of cases where eyewitness convictions have been overturned. According to The Innocence Project, seventy-five percent of convictions overturned through DNA testing were the result of eyewitness misidentification. 31 For many like Larry Griffin and Troy Davis, where DNA evidence was not available, their true involvement will never be

truly known for certain. However, the eyewitness testimony that had them executed remains just as uncertain. The policy change in America would affect the conviction process by ensuring that sentences at the trial level would be restricted. In cases where eyewitness identification was used to identify the defendant with little or no other physical proof, possible sentencing would exclude the death sentence. In direct review, the appellate court would be able to review this decision and resentence if they find discrepancies in terms of this new policy at the trial level. In such cases, defendants who have been wrongly accused because of eyewitness testimony will no longer face death for anothers mistake.

___________________________________ Notes Husain, Nausheen. "Death Penalty In 2011: Report Shows Executions By Country." The Huffington Post. March 27, 2012. Accessed April 09, 2013. http://www.huffingtonpost.com/2012/03/27/death-penalty-2011_n_1382937.html.
2

"UN Chief Reaffirms Call for Moratorium on Death Penalty." UN News Center. February 25, 2013. Accessed April 09, 2013. http://www.un.org/apps/news/story.asp?NewsID=44217.
3

Carroll, Joseph. "Who Supports the Death Penalty?" Death Penalty Information Center. November 16, 2004. Accessed April 9, 2013. http://www.deathpenaltyinfo.org/gallup-poll-whosupports-death-penalty.
4

"Innocent Man Is Pardoned 72 Years After His Execution." AOL News. Accessed April 09, 2013. http://www.aolnews.com/2011/01/10/joe-arridy-receives-posthumous-pardon-73-yearsafter-execution/.
5

"Overview of the Capital Trial Process | Capital Punishment in Context." Overview of the Capital Trial Process | Capital Punishment in Context. Accessed April 09, 2013. http://www.capitalpunishmentincontext.org/resources/trialprocess.
6

"The Schuster Institutefor Investigative Journalism." How to Write about the Troy Davis Case and Eyewitness Misidentification Problems in Your State. Accessed April 09, 2013. http://www.brandeis.edu/investigate/innocence-project/Troy-Davis.html.
7

Troy Davis' Execution Doesn't End Controversy." Msnbc.com. Accessed April 09, 2013. http://www.nbcnews.com/id/44628029/.
8

Ibid.

"Two Versions of Justice in Troy Davis Case." NBC News. Accessed April 09, 2013. http://usnews.nbcnews.com/_news/2011/09/21/7880191-two-versions-of-justice-in-troy-daviscase?lite.
10

Troy Davis' Execution Doesn't End Controversy." Msnbc.com. Accessed April 09, 2013. http://www.nbcnews.com/id/44628029/.
11

Muskus, Jeff. "DNA Tests Suggest Claude Jones, Last Man Executed Under Gov. George W. Bush, May Have Been Convicted On Flawed Evidence." The Huffington Post. November 13, 2010. Accessed April 09, 2013. http://www.huffingtonpost.com/2010/11/13/claude-jones-dnatests-executed_n_783085.html.
12

"Injustice in Texas: The Claude Jones Case." The Innocence Project. Accessed April 09, 2013. http://www.innocenceproject.org/Content/Injustice_in_Texas_The_Claude_Jones_Case.php.
13

Muskus, Jeff. "DNA Tests Suggest Claude Jones, Last Man Executed Under Gov. George W. Bush, May Have Been Convicted On Flawed Evidence." The Huffington Post. November 13, 2010. Accessed April 09, 2013. http://www.huffingtonpost.com/2010/11/13/claude-jones-dnatests-executed_n_783085.html.
14

"Injustice in Texas: The Claude Jones Case." The Innocence Project. Accessed April 09, 2013. http://www.innocenceproject.org/Content/Injustice_in_Texas_The_Claude_Jones_Case.php.
15

Herbert, Bob. "Convicted, Executed, Not Guilty." The New York Times. July 14, 2005. Accessed April 9, 2013. http://www.nytimes.com/2005/07/14/opinion/14herbert.html?_r=0.
16

"10 Infamous Cases of Wrongful Execution - Criminal Justice Degrees Guide." Criminal Justice Degrees Guide. Accessed April 09, 2013. http://www.criminaljusticedegreesguide.com/features/10-infamous-cases-of-wrongfulexecution.html.
17

Herbert, Bob. "Convicted, Executed, Not Guilty." The New York Times. July 14, 2005. Accessed April 9, 2013. http://www.nytimes.com/2005/07/14/opinion/14herbert.html?_r=0.
18

Journalism, Schuster Institute for Investigative. "Journalists: How You Can Localize the Troy Davis Story." The Huffington Post. September 22, 2011. Accessed April 09, 2013. http://www.huffingtonpost.com/schuster-institute-for-investigative-journalism/troy-davismedia_b_975052.html.
19

"How Reliable Is Eyewitness Testimony?" Accessed April 09, 2013. http://www.apa.org/monitor/apr06/eyewitness.aspx.

20

Herbert, Bob. "Convicted, Executed, Not Guilty." The New York Times. July 14, 2005. Accessed April 9, 2013. http://www.nytimes.com/2005/07/14/opinion/14herbert.html?_r=0.
21

"Eyewitness Misidentification." The Innocence Project. Accessed April 09, 2013. http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php.

22

Herbert, Bob. "Convicted, Executed, Not Guilty." The New York Times. July 14, 2005. Accessed April 9, 2013. http://www.nytimes.com/2005/07/14/opinion/14herbert.html?_r=0.
23

"Facts about Trayvon Martin Killing." Educate Yourself. Accessed April 09, 2013. http://napoleonlive.info/what-you-think/facts-about-trayvon-martin-killing-2/.
24 25 26

Ibit. Ibit. Ibit.

27

Ars Technica. Accessed April 09, 2013. http://arstechnica.com/science/2010/11/understandingthe-other-race-effect/.

28

Facts about Trayvon Martin Killing." Educate Yourself. Accessed April 09, 2013. http://napoleonlive.info/what-you-think/facts-about-trayvon-martin-killing-2/.
29

"Eyewitness Misidentification." The Innocence Project. Accessed April 09, 2013. http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php.
30 31

Ibit. Ibit.