‘That’s The Guy!’: The power and peril of eyewitness identification

[dropcap]I[/dropcap]n the movies, police lineups look something like this: Men file into a room and stand against a wall, swaying slightly, looking at their feet. From behind a thick pane of glass, eyeballs flicking back and forth, a witness slowly lifts her finger, points to one of the men and says, “That’s him. That’s the guy who did it.” It’s a damning, slam-dunk piece of evidence.

But in reality, it’s not. Or at least it shouldn’t be, the way it is currently being practiced, and lawmakers in Colorado intend to do something about that.

Based on months of work by a statewide best practices committee, Denver Democrats Sen. Lucía Guzmán and Rep. Daniel Kagan are introducing Senate Bill 58, titled “Eyewitness Identifications Policies And Procedures.” The bill would require all law enforcement agencies in the state to put in place their own policies governing eyewitness identification to reflect best practices or, if they choose not to, to accept a model policy supplied by the state.

Rep. Kagan, who chairs the House Judiciary Committee, says that when he was a practicing criminal defense attorney, he found that “time and again, IDs were wobbly.” Now that he’s a lawmaker, he is confident — especially in light of the growing body of scientific research — that police lineups “are a notorious source of inaccuracy and miscarriage of justice [and] we could do better.”

Wrong place at the wrong time

On August 1, 2001, Mario Gonzales went to a plasma donation center in Lakewood to donate his blood. This was a normal day for the longtime Colorado resident — something he did as often as he could to make some cash to supplement his work as a day laborer. But on that particular Wednesday, he was turned away because he was one day shy of the requisite waiting period between donations.

As he headed back outside to leave the strip mall, Gonzales noticed a bunch of cops milling around the sidewalk in front of a nearby Mexican bakery he sometimes went to. Without thinking much of it, he left on his bike and went about the rest of his day.

La Panadería Francesca at 145 S. Sheridan Blvd in Denver is now closed.

The next day, Gonzales returned to the plasma center to donate his blood. There, they told him the cops were looking for him. Soon enough, Gonzales was taken outside by police. He was being arrested. At first, he felt calm, maybe a little bemused. Surely, the cops would soon realize he wasn’t their guy for whatever it was they were looking for.But he got cuffed, read his rights, and shoved into the back of a cop car. “It all became real very, very quickly,” he recalls.

Days later, sitting in Jefferson County jail, he was told he was facing five charges: aggravated robbery, criminal extortion, menacing, illegal gun possession, and child abuse. A Lakewood police report shows that the day he had been turned away from donating blood, two men had entered the Mexican bakery in the same strip mall, pointed a gun at the head of the bakery owner’s one-year-old son, and demanded cash from the register. The pair made off with $110 — what was in both the register and the owner’s purse. The traumatized bakery owner told officers the perpetrators were young Latino men, one clean cut and one with a mustache, speaking frantically in Spanish.

For cops on the scene, the plasma center made for a logical place to start their investigation. If anybody had been turned away from donating that day, they may have been desperate enough for cash to turn to less legal options.

As someone whose parents left the picture early in his boyhood and who spent his whole life getting tossed around from institution to institution, Gonzales says he knows what it’s like to be in the circumstances like these young robbers might have been. While growing up, he had engaged in his share of petty theft. “I was just trying to feed myself,“ he explains.

But empathizing — at least on one level — with the robbers didn’t mean Gonzales had actually held up that bakery on August 1, 2001. He wasn’t there. He didn’t do it. An employee at the plasma center told investigators that yeah, sure, people had gotten turned away from donating that day. And yeah, some were young Latino men with facial hair. That’s how Gonzales became the only suspect in the bank robbery. It didn’t hurt that he had a small criminal record to boot.

“I matched the description because I was of Latin descent and I was in the area at the time,” he says about it dryly. On August 2, officers made a warrantless arrest. Over the next few days, Gonzales remembers getting questioned by detectives: “They kept asking me who the other robber was, and I was like, ‘I don’t know; it wasn’t me!’”

Behind bars

But there he was, the only suspect in the investigation, locked in Jefferson County jail, unable to post $100,000 bail. Because of the nature of his charges — allegedly having threatened the life of a child — he was put in a segregated unit for violent offenders. “So I’m sitting here next to all these rapists, murderers, you know, not exactly pleasant cellmates,” he remembers. “In my mind I’m thinking, ‘There’s no way. They’re gonna figure this out. Anytime they’re going to come in, cut the shackles off me, and let me go… But it didn’t happen.”

The district attorney in Colorado’s 1st Judicial District, David J. Thomas, offered Gonzales a plea bargain: Take a 32-year sentence or potentially face more in trial. For a man in his mid-20s — or for anyone, really — that starts sounding a lot like life.

Gonzales’ case got passed around the Golden, Colo.’s public defenders office, eventually landing with former social worker and longtime criminal defense attorney Kathy McGuire. While in jail, he would meet with her from time to time to discuss evidence. In one of their first meetings, “I told her, ‘I want to plead not guilty. I want to go to trial right now, because I didn’t do it!’,” he remembers saying.

“He was always unequivocal,” Kathy McGuire says. She thinks about Gonzales’s case all the time, even after all these years. “I mean, they just had the wrong guy,” McGuire says with a hint of exasperation.

There were several elements in the case working on their side. For one, the victim and primary witness to the crime, the bakery owner, had described the perpetrators as speaking rapid and fluent Spanish. But, as Gonzales pointed out, because his parents were never really around growing up, he never learned proper Spanish. He spoke his own patchwork Spanglish picked up over the years.

In addition, she described one of the perpetrators as being clean-cut, the other as having a mustache. Gonzales had a goatee — a mustache plus that little tuft of hair under his lip that would repeatedly get called an “Ohno patch” later in court, in reference to the iconic facial hairstyle of Olympic speed-skater and celebrity-of-the-moment, Apolo Anton Ohno.

But, all that said, McGuire explained that none of it really made for a rock-solid defense in court, especially in light of the prosecution’s key piece of evidence against Gonzales — the fact that, when investigators showed the witness a photo lineup, she had pointed to his picture and said “el.” It was him.

Red-light lineup

So the fact that the bakery witness identified Gonzales as the perpetrator was the crux of the prosecution’s case against him. And it was a strong case to make: whomever witnessed the crime knows best who did it, the logic goes.

“I remember doing some research when I picked up the case and finding out there was a really high rate of conviction in cases that rest solely on eyewitness identification without any corroborating evidence,” McGuire said, “So it was super scary.”

Scary, for sure, because in real life, things don’t go quite like they do in the movies. For starters, the vast majority of lineups aren’t made up of people in the flesh — they’re made up of a stack of photographs, usually mugshots. This was one such case.

When Lakewood police composed their photo array for the witness during the investigation, they got Gonzales’s mugshot from the Denver County database. He had been booked there for shoplifting a few years back. And when they gathered other photos to fill the lineup, they pulled mugshots from their own database in Jefferson County.

In Denver County, where Gonzales’s photo was snapped, booking officers take mugshots when suspects file off the bus and are shepherded in front of a dull, gray wall for the unglamorous photoshoot. In JeffCo, suspects wear orange jumpsuits and stand against a slightly greener background.

The result was a lineup in which Gonzales’s photo had a darker and redder tint. He was also wearing black, not orange like the rest.

It was incidental — every jurisdiction is different.

But it made a difference. Which photo did the witness choose? The one that stood out from the rest. And that was the main source of probable cause in Gonzales’ warrantless arrest.

McGuire thought the case should’ve been dropped because of the obvious disparity between her client’s mug shot and the rest. But, she said, “If they’ve got somebody saying ‘that’s the guy,’ they’re not going to dismiss.”

Bring in the expert

After poring over the photo array, McGuire pursued her hunch that Gonzales’s photo being visually distinct from the rest might’ve had undue influence over the witness’s selection. To explore that theory further, she called Dr. Edie Greene, a professor of psychology and law at University of Colorado in Colorado Springs. Greene is a leading expert on eyewitness memory, especially as it plays out in the context of criminal prosecutions. She’s the go-to academic for defense attorneys in the state to tap for testimony in court about what her research can tell us about the reliability — or unreliability, as the case may be — of an eyewitness’ memory.

Through her communications with Dr. Greene, McGuire started developing an argument that the police lineup was so flawed that the evidence born from it should be suppressed. “We even had a hearing on how overly suggestive it was,” McGuire says. “It should have caused some pause in the prosecution, but it didn’t.” With the eyewitness identification admitted as evidence in the case, she knew that “the only way we could go was to try to show the jury the truth of his innocence.” Proving that the identification was unreliable would still be the key to dismantling the prosecution’s case against Gonzales, but McGuire wouldn’t have the chance to argue the point until they went to trial. And that wouldn’t happen for a full year.

To plead or not to plead

To describe Gonzales’ experience during his year behind bars as stressful would be an understatement.

[pullquote]“I basically just sat there and festered. Time dragged on and I was still sitting there and part of me wondered if maybe I should just take the plea.” [/pullquote]

“I basically just sat there and festered. As time dragged on and I was still sitting there, part of me wondered if maybe I should just take the plea,” he remembers. “But I kept reassuring myself that if I didn’t [commit the crime], I should stick to my guns.” After a pause, Gonzales added, “It was definitely one of the hardest things in my life.”

At one point, Gonzales watched a cellmate accept a plea bargain and head to prison for life. Though that man, too, had claimed innocence, he ultimately decided that continuing to sit in jail before facing an even heavier sentence in trial was simply too daunting a prospect. So off to prison he went. “That was really surreal for me,” Gonzales says. “‘Should I do what this guy is doing?’” he thought, “And then I felt a higher power come over me. I was sure I was doing the right thing, even though it was hard.”

As time crawled by, Gonzales grew restless in the segregated violent offenders unit without access to any rehabilitation programming. So to keep busy, he says he “started going to the law library and realized thousands of people are incarcerated for things they didn’t do. Just in the wrong place at the wrong time.” He remembers thinking, “I just don’t want to be one of them.”

Finally, after a year of waiting, Gonzales’s bail got lowered enough for him to post it. So in the days leading up to the trial, he was out on probation. He reunited with his girlfriend, slept in the comfort of own home and went through all the motions of normal life on the outside. But the thought that he could go back — potentially for thirty times longer — made it hard to really enjoy any of it.  “It was so nerve wracking,” he remembers, “I didn’t sleep that whole time.”

Day in court

The prosecution’s strongest piece of evidence against Gonzales was the eyewitness identification. So to call its reliability into question, McGuire named Dr. Greene as an expert witness to testify about the psychological factors underpinning a lineup like the one police used in the investigation.

Dr. Greene talked about lineup composition and the way the fillers affect the reliability of the whole line-up procedure. “When one photo stands out, it can capture the witness’s attention so he/she devotes more time to viewing it,” she explains years later, reflecting on her testimony in the bakery case, “A photo that stands out in any way reduces the ‘functional size’ of the lineup, or the number of photos that seem like viable contenders, from six to something more like one.”

The other factor Dr. Greene testified about is a bit less palpable — the potential for unconscious transference in the witness’s identification of Gonzales. Because he was a frequent donor to the plasma center, Gonzales had been to the nearby bakery a number of times. In fact, a police report from early on in the investigation shows that Gonzales told officers he had gone to the bakery just the day before the robbery, “to give the victim a piece of candy and hit on her.” So during the lineup procedure, she might’ve inadvertently mistaken the familiarity of Gonzales’s face from that harmless encounter for a familiarity stemming from him having held her son at gunpoint. About this kind of unconscious transference, Dr. Greene explains that “when people view a lineup, one face might look familiar to them and they assume, sometimes incorrectly, that the familiarity stems from having seen that person commit a crime.”

After Dr. Greene’s testimony about all this, Gonzales described the somewhat unbelievable courtroom drama that unfolded next. “They put [the bakery owner] back up on the stand, pointed to me, and asked her, ‘Is that the man that robbed you?’ She looked right at me, paused, and said, ‘No, that’s not him.’ Kathy leaned over to me with her jaw dropped.” The witness, visibly shaken and upset, fled the courtroom.

“Then I knew maybe I had a chance,” Gonzales says…

** Don’t stop there. This story is Part One of a series. Part Two posts Monday. Part One is about the problems that plague eyewitness ID. Part Two is about proposed solutions. **

[Featured image is a license-free composite by the author. (Lineup scene from The Usual Suspects.) ]