Tag Archives: DNA

Bird’s-Eye (Witness) Testimonial…

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My son, Jared, told me about an experience he had while being vetted for jury duty. With it being closely related to my writings and to the photo lineup I use in my class visits using his photo, I asked him to write about that experience. The following is the piece he sent to me:

Essay by Jared Manninen:

I’ve lived at Lake Tahoe for 20 years, and one of the defining characteristics of being local is that we’re often summoned for jury duty multiple times per year. Usually just once, but I’ve received the call three times in a single year on multiple occasions. Now, that doesn’t necessarily mean that we actually have to report to the courthouse each time and then serve on a jury. Usually, we’re waived off the night before via an automated phone and online message. But prior to the day, we still essentially have to clear our schedule just in case.

In all fairness, though, I’ve only had to physically report to the courthouse a handful of times. But a few years ago I was summoned and, not only was I required to show up in person, I was also put in the potential jurors’ box to be vetted by the prosecutor and defense attorney. Mind you, this vetting process can take multiple days and involve hundreds of citizens. Basically, the attorneys only question a dozen potential jurors at a time. So the whole thing is laborious and time-consuming.

I don’t recall the nature of the case in which I was summoned because the attorneys asked broad questions so as not to give away any of its details. They didn’t want to influence the jury pool, after all. However, one of the troubling aspects that I do recall about this particular case was that the prosecutor admitted that he had no evidence beyond eyewitness testimony. I don’t even think he mentioned that he had any type of circumstantial evidence to back up the testimony. So one of the questions posed to us was whether or not we would have a problem with this scenario.

Now, the prosecutor did preface this by addressing the fact that crime procedural shows such as CSI and NCIS were very popular and have convinced the American populace into believing that DNA and other physical evidence is everywhere for the taking. However, this is obviously not true, and we all acknowledged that real life is not nearly as formulaic as a 42-minute TV crime show.

I was the only person in the juror box, however, to raise my hand in opposition to the fact that we’d only be hearing eyewitness testimony. The prosecutor, therefore, zeroed in on me and questioned my rationale.

The photo lineup Jared and I created to illustrate the real pitfalls of mistaken witness identification

I described the wrongful conviction case in which my mother was working. And based on our many conversations, as well as the books, articles, and interviews that I had read about wrongful convictions, I learned that without corroborating physical evidence, eyewitness testimony is not reliable. In fact, according to the National Registry of Exonerations, mistaken witness identification (i.e. eyewitness testimony) happens in 27% of all wrongful conviction cases. That’s one in four! In addition, the percentage of mistaken witness identification cases of those exonerated through DNA testing is approximately 75%. So I was very dismayed by the fact that the entire case on which I was potentially going to be a juror was relying completely on eyewitness testimony.

Needless to say, after the brief conversation the prosecutor dismissed me as a potential juror. He clearly didn’t want me influencing anyone else in the room. And this was fine because I had no interest in being part of a “he said/she said” type of case. Honestly, I can’t even believe a situation like that would find its way into the courtroom.

In the years since that jury summons, my belief about the fallacy of eyewitness testimony has only grown stronger. And, of all things, this has been a direct result of becoming an avid birder*. But I’m a birder who carries a camera with me.

I know this may sound off-topic. However, birding is essentially a lesson in eyewitness testimony. Literally, I go outside to see certain birds. I specifically train myself to notice unique field marks, flight patterns, shapes, and behaviors that help me to identify those birds. But I still get it wrong sometimes! This is why I always carry with me a camera to capture physical evidence (i.e. photographs) to either confirm or correct my identifications.

And it’s not just me who sometimes incorrectly identifies bird species. Everybody does! Even some of my friends, who I consider to be experts, occasionally misidentify a bird. Our debate ends quickly, though, once I show them the photo that I took of the bird in question.

So expert “observers” still make mistakes. Now, imagine being a random person walking down the street minding your own business when you casually notice out of the corner of your eye somebody running out of a convenience store (after it was robbed, for example). It should be fairly obvious why eyewitness testimony wouldn’t be reliable under those circumstances. Ultimately, atmospheric conditions, physical obstacles, distractions, fatigue, mental biases, and other factors conspire to erode our perception of what we believe we’re seeing.

Jared in his element, in the mountains at Lake Tahoe (Photo courtesy of Jared Manninen)

Jared Manninen is an artist and writer who has lived at Lake Tahoe since 2005. He’s an avid hiker, cross-country skier/instructor, and amateur naturalist who works in the outdoor recreation industry. As a result of this immersive experience, his art, photography, and writing all reflect his appreciation for Lake Tahoe and the surrounding Sierra Nevada Mountains.

“The purpose behind my art is to not only share my love of Lake Tahoe but, more importantly, to inspire you to go outside and have your own adventures (regardless of where you are).”                        —  Jared Manninen

*Incidentally, Jared participated in the Tahoe Big Year for birding in 2024. He came in first place by identifying (and providing proof with photos) the most bird species in the Tahoe region. He recently gave a talk about that experience at the Tahoe Public Library.

View some of his many bird photographs on the  inaturalist  site.

Resemblances Are Often ‘Suspect’…

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Timothy James McVeigh (April 23, 1968 – June 11, 2001) was a Persian Gulf War veteran and an American terrorist who detonated a truck bomb in front of the Alfred P. Murrah Federal building in Oklahoma City on April 19, 1995. Commonly referred to as the Oklahoma City bombing, the attack killed 168 people and injured over 600. According to the United States Government, it was the deadliest act of terrorism within the United States prior to the 9/11 attacks, and remains the most significant act of domestic terrorism in United States history. — From Wikipedia, the free encyclopedia

No words properly describe this egregious act. It’s a tragedy that infuriated an entire nation. Did they find the right perpetrator/s? I believe so. I also believe if you ask anyone in the US you’d get the same answer. The reason we can be sure is because what led to the arrest and eventual convictions was not reliant solely on a single piece of evidence. The investigation went much further and produced tangible proof verifying guilt beyond a reasonable doubt. Imagine this happening for every case.

After the Oklahoma City bombing, an artistic sketch of the bomber appeared on the news. It was shocking to me because of who I thought it looked like. Although there was certainty that the image did not depict this person, it was unsettling. It caused me to consider the implications had this person been in Oklahoma City at that time. Having only delved into the world of wrongful convictions in the past six years, this question haunts me to this day. I do believe the significance of that crime prompted the authorities to make sure they had the right offender but I am all too aware that this is not always the case. Does this mean that getting it right only some of the time is acceptable? Of course not.

I have lost count of how many times I hear people say, “If someone one is arrested, there must be overwhelming evidence to prove they were either involved in the crime or they know something.” I used to believe that too. But I’m more cautious these days. I’ve learned that what causes suspicion can be irrelevant, like innocently walking down the wrong street at the wrong time or wearing the wrong kind of clothing.

Fortunately, through the help of the Innocence Project, DNA testing and other factors, we are seeing less mistakes and a clearer picture of past practices that are flawed. A lack of adequate resources to conduct proper investigations, pressure to make an arrest from both the media and communities, and worst of all, the idea that it is better to convict an innocent person than risk sending a criminal back on the streets has caused a devastating rush to judgement in too many cases. According to the National Registry of Exonerations 33% of the current 1,606 exonerations were caused by mistaken eyewitness identification. In many of those cases this single bit of evidence stood alone as sufficient enough to convict even when other factors surfaced that suggested otherwise.

A good example of what I’m talking about is the story of my friend Jennifer Thompson; a woman who was raped in her apartment in 1984. Jennifer was 100% sure that she had correctly identified her attacker. She was inches from his face during the attack and she had the presence of mind to thoroughly study it. Later, she confidently picked Ronald Cotton out of a series of photos as well as in a physical lineup. She convinced the authorities that he was her attacker. Cotton was the only suspect and his conviction was based solely on Jennifer’s testimony. Later, it turned out not to be him when he was eliminated through DNA testing, which actually pointed to another prison inmate. Unfortunately the wrong man spent eleven years in prison while the guilty man went on to become a serial rapist. He was eventually caught and just happened to be incarcerated in the same prison as Cotton. Not the tidy ending we take comfort in but one that happens more often than we think.

If you look at these photos, you can clearly understand how the mix-up occurred. On the left is Bobby Poole, the actual perpetrator and on the right is Ronald Cotton, the man Jennifer identified. Along with the DNA testing that confirmed Cotton’s innocence, Poole eventually admitted to committing the rape.

Mugshots of Billy Poole and Ronald Cotton

Photo courtesy of www.today.com 

Here are some basic facts about how lineups are typically conducted and how they are changing. The excerpts are taken from the National Institute of Justice, in an article; Making Eyewitness Identification More Reliable by Beth Schuster:

“The most common procedure is the simultaneous lineup in which witnesses use “relative judgement,” meaning they compare lineup photos to each other, rather than to their memory of the offender. This is a problem when the perpetrator is not present in the lineup because often the witness will choose the lineup member who most closely resembles the perpetrator.”

“Sequential lineups, in which witnesses must make a decision about each photograph or member before moving on to the next, prompts them to use “absolute judgement.” In other words, witnesses compare each photograph or person only to their memory of what the offender looked like.”  

“As the body of research into simultaneous versus sequential methods continues to grow, some researchers working in the lab discovered that the double-blind sequential method—in which the administrator does not know the identity of the suspect—produced fewer false identifications than the traditional simultaneous method.”

At the time of the bombing in Oklahoma City, my son Jared was in the military. He was a US Marine stationed at Camp Pendleton in San Diego, CA and preparing for a six-month deployment to Okinawa, Japan. When I saw the drawing on TV it looked so much like Jared. In fact when they finally arrested and charged McVeigh and showed his face on the news, I felt the sketch didn’t look like McVeigh at all.

While working on this blog piece, I consulted Jared and sent the sketch to him. He had never seen it before and was stunned at the resemblance to a photo that was taken of him while in the service. He added that it also looked like most of the guys he served with. I shared my concerns about how our life could have been altered had he been in the area of the bombing and possibly charged. He reassured me by saying, “But it didn’t happen.” He is right. It did not. But what percentage of innocents in our current prison population can take comfort in that fact?

I cannot imagine ever feeling comfortable about making a correct identification if asked to do so. This example confirms my concern. I believe that if I was a witness in Oklahoma back then and had to pick one of the photos below to match the sketch, I might have chosen the photo on the left.  What do you think?

                                 Jared                                              Sketch of bomber                                      Timothy McVeigh

 

Wait a Cotton Pickin’ Minute…Pt 2

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At this Gala, she expressed her determination to make sure a guilty criminal was securely behind bars. On that terrible night in July of 1984 when an assailant broke into her apartment and raped her, she vowed to do two things; survive this attack, and study his face so closely that there would be no mistaking who he was when it came time to identify him. Having accomplished these tasks, she was assured by the authorities that the man she singled out in a physical lineup was the same man she had also chosen in an earlier photo lineup. She felt proud that she “did it right” and for being proactive about her safety, as well as for other potential victims.

Jennifer Thompson tried to move on. She got married, had children, and tried as best she could to focus on her new life despite persistent recurring nightmares about the attack. It was always Ronald Cotton’s face; the man she had singled out as her assailant who was depicted in these horrible nightmares. Then one day, she received a phone call from the detective who had worked on the case. He told her that there was going to be a new evidentiary hearing for Cotton. Rumor had it that another man Cotton had actually met in the same prison had confessed to committing the crime against her. His name was Bobby Poole. Jennifer was to attend this hearing. She became extremely angered at the nerve of the authorities to question her judgment. “How dare they?” was her response. In tow with how she felt about Cotton and despite the new evidence presented in court, Jennifer was still convinced that is was Cotton who had assaulted her. As a result, he was given an even longer sentence the second time around and was sent back to prison. Jennifer’s unrelenting hate for this man triggered incessant thoughts that he himself be raped and then killed. And the nightmares continued…

Time was not a friend to Jennifer in distancing herself from this terrible event. Emotional healing evaded her. Instead, before things would get better, they would get much worse. Seven years after the hearing, a big news story surfaced as the trial of OJ Simpson was going on. Talk of a new technology called DNA was making news. Ronald Cotton heard about it and contacted the authorities to have his own DNA tested. Bingo! This DNA test ruled him out and pointed the finger at the very man who had earlier confessed; Bobby Poole! Ronald Cotton was exonerated and released. And when Jennifer found out he was being released, she was shocked and overwhelmed with “suffocating and debilitating shame” at the thought of her mistake. She had sent an innocent man to prison…for eleven years!

A new fear engulfed her. Cotton would harbor anger towards her for taking away his freedom for so many years. Jennifer eventually summoned the nerve to ask if Ronald would meet with her at a nearby church. He agreed. And she was able to express her sorrow for what she had put him through. She begged for forgiveness. Ronald told her that he had forgiven her many years ago. They became good friends.

Together, Jennifer and Ronald wrote a book about their experience called, Picking Cotton. They now travel around the country and share their story, capitalizing on the flaws of witness identification. They are involved in the legal reform of police procedures regarding how victims ID an assailant to ensure that these mistakes do not happen in the future.

In her speech, Jennifer stated the healing process began only after Ronald had expressed his forgiveness of her. She still has recurring nightmares but the assailant is now faceless. Her newfound friendship with Ronald and her ability to use this experience as a teaching tool has turned her life around in a positive way. Way to go Jennifer and Ronald! And thank you for your remarkable and courageous inspiration!