Eyewitness ID reform: Moving right along in Colorado

“Halpern? Mr. Halpern… ?” state Sen. Ellen Roberts called out, summoning the only person signed up to testify against SB 58, the Eyewitness Identifications Policies And Procedures bill, in front of the Senate Judiciary Committee yesterday afternoon.

Everyone peered around the hearing room, necks craning. But the sole opponent was nowhere to be found.

“Well, moving right along,” Roberts, R-Durango, continued with a bit of laugh.

That was the theme of the day at the SB 58 hearing: moving right along. The legislation, designed to improve the accuracy and reliability of eyewitness identifications in criminal investigations, has been in the works for about year now. The Colorado Attorney General’s Best Practices Committee took up the cause last spring after having delved into the massive body of scientific research that points to the need to reform how law enforcement agencies do line-ups.

Now, an alliance of police, prosecutors, criminal defense and civil rights advocacy has hashed out a way forward. The bill, if put into law, would require all law enforcement agencies in Colorado to write department-wide policy that reflects the latest best-practices in eyewitness identification by a certain date, or adopt a model policy provided by the state. (Read more about the specific reforms in part two of The Colorado Independent’s “That’s the Guy!”, and for more about the psychology behind it all, check out part one.)

To put the legislation into context, two advocates gave powerful testimony about their chilling personal experiences with misidentification.

First up was Jennifer Thompson, whose harrowing story began in the wee hours of the morning in July of 1984. She was asleep, alone in her North Carolina apartment, when she awoke to the sound of something — someone — stirring. “Who’s there?” she called out. Thompson went on to describe being held at knifepoint by a man who brutally raped her. “First thing I thought was: I’m gonna die,” Thompson recalled, “This is the last moment I have on this planet.” The second thing she thought was to engrave every detail of her assailant’s face into her memory so that if she did somehow survive, he would pay for his crime.

She did survive, and immediately reported her attack to the police who showed her a photo array lineup — a six-pack, it’s called. At first, her identification of the perpetrator was hesitant, but after an investigating officer indicated that he too believed the man she chose was the perpetrator, she felt affirmed and relieved. With that in mind, she was then shown a live lineup. Yep, that’s the guy.

In trial, the suspect was convicted and served ten-and-a-half years in prison before eventually getting exonerated by DNA evidence in 2005. “The rape was awful, it was a nightmare,” Thompson said. “But learning that I had ID’ed the wrong person was the worst thing I’ve ever gone through.”

Turns out her true assailant that night had gone on to commit multiple other violent rapes. All the while, an innocent person was wrongfully incarcerated. Thompson said that years after the fact, she sat down for drinks with another one of the man’s victims — a woman with an equally disturbing tale of rape and assault. “It was really then that I understood the magnitude of what happens when the system fails,” Thomson told state lawmakers, “which is why SB 58 is so important to me, law enforcement, and the whole community.”

Brandon Moon spoke next about his experience of getting accused of three sexual assaults he had nothing to do with, misidentified during the investigation, and wrongfully convicted in trial. Moon was finally exonerated in 2005 after DNA testing proved his innocence, but not before losing 17 years of freedom in a Texas prison. The victim who had identified him had only two minutes of contact with her assailant, had a gun to her head the whole time and was facing away from him throughout. During the investigation, she told officers that she recognized Moon’s hands as the hands that had assaulted her. That’s what got him landed in prison for nearly two decades.

At the hearing, Moon reflected that “if police had used the eyewitness identification practices in this bill when investigating those crimes, the victims might not have misidentified me, or, at the very least, the accuracy of those identifications would have been called into question, and I might not have been wrongfully convicted.”

“Colorado would be wise to take this opportunity to put in place the kind of practices that can prevent misidentification,” Moon said.

Michael Dougherty, assistant district attorney in Jefferson and Gilpin counties, testified on behalf of the Colorado District Attorneys Council. In a statement even stronger than the prosecutors have made in the past, Dougherty started off by making it clear that “the CDAC is in full support of the bill,” before going on to reference their duty “to get it right, to do justice in every single case.”

Melissa Zak, police chief at the University of Colorado in Boulder, voiced support for the legislation on behalf of police chiefs in the state. In her years of experience in law enforcement, she has seen that “eyewitness testimony is very skewed and can sometimes lead us astray.” Wrapping up her short testimony, Zak told the committee that “as a chief of police, I believe its very important that we continue to improve our craft.”

Maureen Cain, policy director at the Colorado Criminal Defense Institute, and Amshula Jayaram, state policy advocate at the Innocence Project, also testified in the support of the bill they were instrumental in crafting. After highlighting the fact that eyewitness misidentification is far-and-away the leading cause of wrongful convictions, Jayaram said that “[SB 58] protects the innocent and allows for uniform justice throughout the state.” Additionally, she pointed out that “no jurisdiction that has adopted best practices has ever reverted.”

Cain clarified a recent amendment that nixes a requirement for law enforcement agencies to report their lineup policies to The Colorado Peace Officer Standards and Training (POST) Board — a repository containing information on training, certification and accreditation for law enforcement in the state. Some in the law enforcement community felt that reporting lineup policies to POST is unnecessary because they’re already a matter of public record, available to anyone who asks. Striking that part piece of the bill helped Colorado police and sheriffs get fully on board with the bill.

SB 58 passed the committee unanimously and is now, as Sen. Roberts put it, “moving right along” to the Senate floor.

Photo of Jennifer Thompson (left) and Brandon Moon (right) after the hearing via Nick Moroni.