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The state of Georgia is scheduled to execute Troy Davis next week for killing an off-duty police officer in 1989, even though a number of key prosecution witnesses have recanted their testimony. As Davis prepares his last-chance bid for clemency, we get a primer on how eyewitness evidence and police procedures have changed since his conviction.
- Karen Newirth Eyewitness Identification Litigation Fellow, Innocence Project
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, Blake Mycoskie, chief shoe giver and founder of TOMS, buy one, a needy kid gets one, too. But first, his supporters include prominent figures from the Pope to the Indigo Girl, Susan Sarandon, to Harry Belafonte, Jimmy Carter to Desmond Tutu.
MR. KOJO NNAMDIHis death sentence is for killing an off-duty police officer in Georgia, 22 years ago. And his last chance for reprieve is Monday when he tries to convince a state pardons and parole board to commute his sentence to life in prison. The case of Troy Davis has attacked international attention because many of the key prosecution witnesses have recanted the testimony they gave at his trial and a new witness says someone else was the shooter.
MR. KOJO NNAMDIThe credibility of eyewitness evidence has also come under increased scrutiny in the two decades since Davis' conviction, as science sheds new light on what witnesses can accurately recall and DNA evidence exonerates people convicted through eyewitness testimony.
MR. KOJO NNAMDIWith an execution date set for next week, will these changes affect Troy Davis' case? Joining us now by telephone from New York is Karen Newirth, staff attorney specializing in eyewitness identification with the Innocence Project. Karen Newirth, thank you for joining us.
MS. KAREN NEWIRTHThank you so much for having me.
NNAMDITroy Davis was convicted of shooting an off-duty police officer in a Burger King parking lot, according to the eyewitness testimony at his trial. What happened?
NEWIRTHTroy Davis was convicted of shooting off-duty police officer, MacPhail, who arrived at a Burger King parking lot at about 1:00 in the morning. He arrived because he became aware that a homeless individual was being beaten by another individual and he came upon a rather chaotic scene and was then shot.
NNAMDIProsecutors did not present any physical evidence linking Troy Davis to the killing. And since the trial in 1991, six of the nine prosecution witnesses have recanted their testimony. What are some of the reasons the eyewitnesses have given for recanting?
NEWIRTHAlmost all of the eyewitnesses who recanted described experiencing undo pressure by law enforcement to identify Troy Davis. It's worth noting, just in terms of the overall picture, that one of the two eyewitnesses who remains steadfast in his allegation that Troy Davis is the shooter, is the only other likely suspect. He's an individual named Redd Coles, who had a criminal record and was known in the community for extreme dangerousness.
NEWIRTHHe's also the person who turned up at the police station with a lawyer, the day after the crime and identified Troy Davis as the shooter. Finally, he's the person who, by his own admission and by testimony of others, was the individual who was beating the homeless man, which is -- was the reason why officer MacPhail came upon the scene.
NNAMDIAllow me to invite our listeners to join the conversation, 800-433-8850 is our number. Have you ever served on a jury and had to consider eyewitness testimony? How credible did you find that evidence? 800-433-8850 or go to our website, kojoshow.org, or send us a tweet @kojoshow. Karen Newirth, you work at the Innocence Project. What is your connection to the Troy Davis case?
NEWIRTHWell, I have assisted Amnesty International and its campaign to raise awareness about Troy's case and to have his sentence commuted. And I've also been working with the legal team who will be presenting on Monday to the board of parole and -- in Georgia.
NNAMDILaw enforcement officer used methods in their investigation that are no longer considered best practices. They drove around the neighborhood showing residents a photo of Davis as the suspect and they conducted a reenactment of the crime with the eyewitnesses. Can you explain what they did and how their actions might have influenced the witnesses?
NEWIRTHCertainly. The research on memory teaches us that memory can be contaminated by various sources. And, in fact, one of the analogies that we really like to use is that memory is like trace evidence. It's like a piece of physical evidence that could be found at a crime scene. And I think one commentator has said that, that police investigatory practices is like spilling a cup of coffee on a blood stain. It's obvious to anyone that doing that would make that blood stain terrible evidence as far as reliability goes.
NEWIRTHIn this case, law enforcement engaged in various investigatory techniques which would've contaminated legitimate memories of what occurred on the night in question. So as I mentioned, Redd Coles came to the police and identified Troy Davis as the shooter. Both Troy Davis and Redd Coles admitted being in the parking lot on the night in question. The police then engaged in a reenactment involving all of the witnesses and Redd Coles.
NEWIRTHSo the police placed Redd Coles in the position of a witness as opposed to the shooter. And I would argue that this is probably -- had the most devastating effect on witness memory because it had the effect of really overriding any real memories that might've existed with the reenactment version of events where Redd Coles was a bystander as opposed to the shooter.
NEWIRTHThe other thing that he mentioned, which law enforcement did as part of its investigation, is rode around the neighborhood with a single photograph of Troy Davis and this is akin to a live show up where a witness is shown one suspect. And that's been criticized roundly by courts and had said that it should -- that sort of practice should only be used within two hours of a crime and under very (word?) circumstances because it has such a suggestive effect on people's memories.
NEWIRTHThey see a photograph and they see it being held by a member of the police department and they assume that that must be the person who committed the crime. So we're contaminating memories in that way. And similarly, police released a photograph of Troy Davis to the media which you can imagine that this crime was really gripping for the entire community.
NEWIRTHAnd so his photograph was shown widely in the media as a suspect in the shooting of this off duty police officer. And many of the eyewitnesses who ultimately testified against him had seen the photograph in the media or in the single show up or both. And so, you know, we believe that their memories were contaminated by those practices and that their identification of him was more likely related to having seen it in those places rather than at the actual crime scene.
NNAMDIWe’re talking about the case of Troy Davis in Georgia who faces execution next week on the basis, in large measure of eyewitness testimony. Our guest is Karen Newirth, staff attorney specializing in eyewitness identification with the Innocence Project. Next week, on Thursday, we'll be continuing our discussion about the reliability of eyewitness testimony including a look at the upcoming supreme court case and the rules governing eyewitness evidence in our local jurisdictions.
NNAMDIYou can still call us at 800-433-8850. Have you ever witnessed a crime or other sensational incident? Could you testify without any doubt about what you saw? 800-433-8850. Karen Newirth, in the year since Troy Davis' trial, how has science changed the way we understand the ability of eyewitnesses to accurately recall and report what they saw?
NEWIRTHWell, the science in this area has really grown dramatically in the years since Troy's trial. And, in fact, the New Jersey supreme court, in late August, became the first court to really change the legal framework for evaluating eyewitness evidence and in doing that, it cited the vast body of research that's emerged since the late '70s on eyewitness identification evidence.
NEWIRTHAnd some of the major research findings that would apply here have to do with what researchers call 'estimator variables and system variables. And these are the factors that affect memory and the way that eyewitnesses perceive events, remember them and recall them. So in Troy's case, research now tell us things like the effect of distance on an ability of a person to view a crime.
NEWIRTHAnd so one kind of stark piece of evidence in Troy's case is that one of the witnesses, who has since recanted, could not possibly physiologically have seen the face of the shooter. And research that occurred after Troy's trial tells us very clearly that she would not have been able to make an identification. So that's one example.
NEWIRTHOther examples, as you -- we mentioned earlier have to do with police procedures. And in addition to the suggestive procedures that we talked about, research has told us how important it is that the administrator of any identification procedure and not know who the suspect is because witnesses are incredibly sensitive to any kind of feedback or suggestion about who the suspect is.
NEWIRTHIn this case, we know that the investigating officers knew exactly who the suspect was and we can only think that they conveyed that information to any witness who didn't already know that Troy was the lead suspect.
NNAMDIBy way of comparison, the state of New Jersey has been a leader in rethinking the way courts and juries way the credibility of eyewitness identification. What does New Jersey now require and do you think that states rules would have led to a different outcome in the Troy Davis case?
NEWIRTHI certainly think that if Troy Davis were tried today in New Jersey, he would not be convicted. What New Jersey has done is abandon the balancing test that every other state in the nation uses and derives from a supreme -- a 1977 Supreme Court case. And New Jersey is essentially taking a more holistic view of all of the factors that can affect the reliability of an eyewitness' identification.
NEWIRTHNew Jersey is also taking steps to make sure that jurors are better informed about the science of eyewitness identification testimony, whether through expert testimony or comprehensive jury instructions. So were Troy to be tried, for example, tomorrow in new Jersey, under the new standard, I have a hard time believing that any of the eyewitness identifications would survive the test and be admitted as evidence. And without the eyewitness evidence, there would be no reason to find Troy guilty of the murder.
NEWIRTHI would also just add, because it's interesting, in 2008, Georgia started to look at the issues around eyewitness identification. And the Georgia House of Representatives passed a resolution which urged all law enforcement agencies to review their existing policy and procedures or to develop policy and procedures in eyewitness identification. And so the Georgia House of Representatives, in 2008, was saying to law enforcement "You need to have policies that incorporate the science and the best practices around eyewitness identification."
NNAMDIHere is Jeff in Alexandria, Va. Jeff, you're on the air. Go ahead, please.
JEFFHi, Kojo, thanks for taking my call. I love the show. It's interesting, several years ago, I was witness to an incident upon -- came upon a scene where a woman had been murdered and both my wife and mother and my two kids were with us. And in speaking about the incident later, all of us had a different version as to the chain of events and where people were and what had happened. And I think a lot of what was stated as fact by some of us was something that was actually heard -- you know, heard by somebody else.
NNAMDIBearing out what our guest Karen Newirth is saying. Jeff, thank you very much for sharing that with us. And Helen in Herndon who couldn't stay on the line says, "I'm an attorney and the first thing I learned in law school is the unreliability of eyewitness testimony." And, Karen Newirth, comment on that. Was that also what you learned, Karen Newirth?
NNAMDIMaybe you went to law school at different dates.
NEWIRTHYou know, it certainly was discussed in law school, but I think in my experience one of the things that I do here at the Innocence Project is train trial attorneys in how to litigate eyewitness identification cases. And in my experience and also what we see in studies of jurors, judges and lawyers is that many people have misconceptions about memory. I mean, I'm sure your listeners can recall any number of arguments they've had with family or friends about who saw what and how things actually happened.
NEWIRTHI think that humans tend to believe that their memory works like a video tape. And that's just not true and the science teaches us that it's not true. But we are fairly committed to our own memories so it's something that we need to undo.
NNAMDITroy Davis' lawyers are actually asking that his death sentence be commuted to life in prison. Are you or other advocates arguing that he is innocent or are you saying that the process is too contaminated or was too contaminated for the death penalty to be applied?
NEWIRTHThe argument today is that there is just far too much doubt about Troy's guilt to subject him to the ultimate punishment of death. In...
NNAMDITroy -- go ahead, please.
NEWIRTH...in my view, I don't see evidence pointing to guilt. But I think with respect to the point in the procedure now, the goal is to get the death penalty sentence commuted.
NNAMDIHe gets one more chance when he appears before the Georgia Board of Pardons and Appeals on Monday. Is that the argument that you think his advocates will make, that there -- while he may not be able to prove his innocence, there is certainly an absence of guilt or certainly not enough certainty of guilt for the death penalty to be imposed?
NEWIRTHI think it's the last point you made. There is just far too much doubt about his guilt for death penalty to be appropriate in this case.
NNAMDIKaren Newirth, thank you so much for joining us.
NEWIRTHThank you for having me.
NNAMDIKaren Newirth is a staff attorney specializing in eyewitness identification with the Innocence Project. As I mentioned earlier, next week on Thursday, we'll continue this discussion about the reliability of eyewitness testimony, including a look at the upcoming Supreme Court case and the rules governing eyewitness evidence in our local jurisdictions.
NNAMDIRight now, we're going to take a short break. When we come back, we'll be talking with Blake Mycoskie, chief shoe giver and founder of TOMS, buy one, a needy kid gets one, too. I'm Kojo Nnamdi.
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