No IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. -vs-

Transcription

1 No IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Floyd Richardson, Kenneth R. Briley, Warden, -vs- Petitioner-Appellee, Respondent-Appellant. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division there as No. 00 C 6425 before the Hon. Matthew F. Kennelly BRIEF AMICUS CURIAE OF THE CENTER ON WRONGFUL CONVICTIONS AND THE MACARTHUR JUSTICE CENTER IN SUPPORT OF APPELLEE S PETITION FOR REHEARING, EN BANC Steven A. Drizin Center on Wrongful Convictions Northwestern University School of Law 357 East Chicago Avenue Chicago, Illinois (312) Locke E. Bowman MacArthur Justice Center University of Chicago Law School 1111 E. 60th Street Chicago, Illinois (773) Amici Curiae Terri L. Mascherin David E. Walters Andrew W. Vail Jenner & Block L.L.P. One IBM Plaza Chicago, Illinois (312) Attorneys for Amici Curiae

2 TABLE OF CONTENTS CIRCUIT RULE 26.1 DISCLOSURE STATEMENT... i TABLE OF CONTENTS... iv TABLE OF AUTHORITIES...v INTEREST OF AMICUS CURIAE...1 ARGUMENT...3 I. Courts And Researchers Have Long Recognized That Mistaken Eyewitness Identifications Lead To Wrongful Convictions....3 II. The District Court s Decision Appropriately Applied The Compromising Factors And Eyewitness Literature...9 CONCLUSION...11 PAGE iv

3 TABLE OF AUTHORITIES PAGE CASES Anderson v. City of Bessemer, 470 U.S. 564 (1985)...10 Neil v. Biggers, 409 U.S. 188 (1972)...5 People v. Gardner, 221 N.E.2d 232, 35 Ill. 2d 564 (1966)...5 People v. Wade, 388 U.S. 218 (1967)...5 Richardson v. Briley, No. 00-C6425, 2004 WL (N.D. Ill. Feb. 10, 2004)...9 Richardson v. Briley, No. 04-C1513, 2005 WL (7th Cir. Mar. 18, 2005)...9 OTHER AUTHORITIES Barry Scheck et al., Actual Innocence (2001)...2 C. R. Huff et al., Convicted but Innocent: Wrongful Conviction and Public Policy (1996)...2 David B. Fishman & Elizabeth F. Loftus, Expert Psychology Testimony on Eyewitness Identification, 4 Law & Psychol. Rev. 87 (1978)....6 Edwin M. Borchard, Convicting the Innocent (1932)...4 Felice J. Levine & June L. Tapp, The Psychology of Criminal Identification: The Gap From Wade to Kirby, 121 Pa. L. Rev (1973)...5 Frederick E. Chemay, Unreliable Eyewitness Evidence: The Expert Psychologist and the Defense in Criminal Cases, 45 La. L. Rev. 721 (1985)...6 Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 Law & Hum. Behav. 604 (1998)...2, 6 Gary L. Wells, Scientific Study of Witness Memory: Implications for Public and Legal Policy, 1 Psychol. Pub. Pol'y & L. 726 (1995)...7 Gary L. Wells, Eyewitness Identification Evidence: Science and Reform, 29 The Champion 12 (2005)...7, 8 v

4 James M. Doyle & Elizabeth F. Loftus, Eyewitness Testimony, Civil and Criminal (1987)...7 John H. Wigmore, The Science of Proof (3d ed. 1937)...3 National Institute of Justice, Eyewitness Evidence: A Guide to Law Enforcement (1999)...8 Patrick M. Wall, Eyewitness Identification in Criminal Cases (3d ed. 1975)...4 Rob Warden, Illinois Death Penalty Reform: How It Happened, What It Promises, 95 Crim. L. & Criminology 381 (forthcoming 2005)...2 Rob Warden, Center on Wrongful Convictions, The Snitch System 14 (Winter )...1 Robert Buckhout, Psychology & Eyewitness Identification, 2 Law & Psychol. Rev. 75 (1976)...6 Samuel R. Gross et al., Exonerations in the United States 1989 through 2003 (2004)...2 vi

5 INTEREST OF AMICUS CURIAE The Center on Wrongful Convictions ( Center ) was organized in 1999 as a program of the Bluhm Legal Clinic at Northwestern University School of Law. The Center is partially funded by the School of Law but relies on private funding for more than half of its operating expenses. Dedicated to identifying and rectifying wrongful convictions and other serious miscarriages of justice, the Center investigates possible wrongful convictions and represents imprisoned clients with claims of actual innocence. The Center or members of its staff have been instrumental in the exoneration of ten men who were sentenced to death in Illinois under the state s current capital punishment law. The Center has a well-established tradition of researching the prevalence, causes, and social costs of wrongful convictions, and advocating reforms designed to improve the accuracy and fairness of the criminal justice system. In that regard, the Center has engaged in research and advocacy concerning the role that mistaken eyewitness identifications play in the conviction of innocent persons. Recently, the Center conducted a survey of 111 wrongful capital convictions and reported that erroneous identifications served as the basis for conviction in 25.2% of those cases. Rob Warden, Center on Wrongful Convictions, The Snitch System 14 (Winter ) 1 (A0003). 2 In addition, the Center recently found that erroneous eyewitness identification testimony was a factor in the cases of eight of eighteen Illinois men exonerated after having been 1 The criteria for the survey were that the defendant was convicted after 1973 and subsequently was exonerated. See snitchsystembooklet.pdf. 2 Documents which are not readily available on-line appear in the Appendix and are cited (A ). 1

6 sentenced to death under the current Illinois capital punishment law, which was enacted in See Rob Warden, Illinois Death Penalty Reform: How It Happened, What It Promises, 95 Crim. L. & Criminology 381 (forthcoming 2005) 3 (A ). This research demonstrates beyond doubt that mistaken eyewitness identification is among the principal causes of wrongful convictions. 4 The MacArthur Justice Center ( MacArthur ) is a public interest law firm located at the University of Chicago Law School. MacArthur was founded in 1985 by J. Roderick MacArthur to fight for human rights; MacArthur litigates cases of significance for the criminal justice system. Like the Center, MacArthur is deeply concerned about miscarriages of justice in the criminal system. Over the past half decade, MacArthur has focused a significant share of its resources to seeking compensation for those who have been wrongfully convicted and, in that connection, has had repeated occasion to represent persons whose convictions were the result of erroneous eyewitness identifications. Thus, MacArthur is intimately aware of the devastating costs that can be imposed on innocent individuals as a result of mistaken eyewitness testimony. The Center s analysis of the issue of mistaken eyewitness identifications supported by its experience and the experience of MacArthur in this area, provides a perspective 3 Available at documents/deathpenaltyreform.pdf. 4 The percentage of eyewitness misidentifications is significantly higher in studies considering capital crimes and other serious crimes together. See, e.g., Samuel R. Gross, et al., Exonerations in the United States 1989 though 2003 (2004) (unpublished manuscript) (reporting that in 64% of exonerations of defendants convicted of serious crimes in the United States since 1989, a mistaken identification occurred)(a0064); Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 Law & Hum. Behav. 604 (1998) (reporting that 90% of 40 DNA-exoneration cases involved evidence in which one or more eyewitness falsely identified the person ) (A0101); Barry Scheck et al., Actual Innocence 246 (2001) (reporting that 84% percent of 67 wrongful convictions studied involved a mistaken eyewitness identification) (A0183); C. R. Huff et al., Convicted but Innocent: Wrongful Conviction and Public Policy (1996) (implicating mistaken eyewitness identifications in 60% of 500 erroneous convictions studied). 2

7 unique from that of the parties and offers information that is not currently before this Court, but is directly applicable to this case. Mr. Richardson was convicted solely on the basis of eyewitness identifications. The United States District Court opinion carefully reviewed these identifications and the improperly excluded eyewitness testimony of Myron Moses. The Court s findings of fact were consistent with the body of peer-reviewed scientific literature and the objective factors developed by the courts. The Panel decision of this Court ignored those findings of fact regarding the weight of the identifications. Because it is imperative that courts recognize the need for careful review of identification testimony to prevent wrongful convictions, the Center and MacArthur respectfully request that this Court grant Appellee s Petition for Rehearing, En Banc, to review the Panel decision of March 18, 2005, vacating the District Court s grant of a writ of habeas corpus. 5 ARGUMENT I. Courts And Researchers Have Long Recognized That Mistaken Eyewitness Identifications Lead To Wrongful Convictions. In 1937, Northwestern University Law School Professor John H. Wigmore noted that eyewitness identifications call[] for caution, in that testimonial assertions to identity must be accepted only after the most careful considerations. John H. Wigmore, The Science of Proof 252, at 537 (3d ed. 1937). Courts and researchers have long recognized that certain factors commonly compromise the reliability of eyewitness identifications. These compromising factors began as common sense principles but have now been confirmed by scientific observations about how the human mind perceives, processes and recalls events. The Center and MacArthur have followed the continued development of these factors, and have emphasized a 5 The Center has filed a motion for leave to file this brief under Federal Rule of Appellate Procedure 29, having failed to obtain consent from the Appellant for leave to file. 3

8 central point made by courts and researchers over and over again - if identifications are not closely scrutinized with careful attention to relevant compromising factors, they may lead to a wrongful conviction. The idea that eyewitness misidentification is one of the most common causes of wrongful convictions is not new. See, e.g., Edwin M. Borchard, Convicting the Innocent 13 (1932). However, early academic literature on this topic was largely ignored by the legal community. Then in 1966, in a book titled Eye Witness Identification in Criminal Cases, Patrick M. Wall made several observations regarding misidentification by eyewitnesses, including: a suspect may be erroneously identified by a number of witnesses; even trained observers may be in error; the effect that fear may have upon the witness is uncertain; erroneous identifications occur even in capital cases; and juries are often unduly receptive to evidence of identification. See Wall, Eyewitness Identification in Criminal Cases (3d. ed. 1975)(A ). Wall also suggested that misidentification is created or aggravated by certain police practices and certain rules of evidence. Id. at 24. The compromising factors that Wall identified were based on rational principles and common sense ideas that many jurors might apply with little or no scientific knowledge. In light of Wall s book, courts began recognizing the importance of the work of researchers in discerning the factors necessary to scrutinize eyewitness identification. After its publication, Wall s book was cited widely by the Supreme Court and other federal and state courts in support of the proposition that there was a need for greater care in obtaining and employing eyewitness identifications in criminal cases. In 1967, in People v. Wade, the United States Supreme Court, citing Wall, recognized that identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate 4

9 from a fair trial. 388 U.S. 218, 228 (1967). And in 1966, in People v. Gardner, the Illinois Supreme Court, quoting Wall s book and other academic literature, found that of all the factors that account for the conviction of the innocent, the fallibility of eye-witness identification ranks at the top, far above any of the others 221 N.E.2d 232, 236, 35 Ill. 2d 564, 572 (1966) (citation omitted). In Gardner, the Court found that an eyewitness s identification was weakened by several factors including differences between the description that she gave to police and later at trial, and the failure by the police to use a line-up. Id. Again, those factors were based on common sense principles that any juror might consider in evaluating an eyewitness identification. In 1972, in Neil v. Biggers, the United States Supreme Court expanded on previous case law and commentary and set forth factors to be considered in evaluating the likelihood of misidentification, including: the opportunity of the witness to view the criminal at the time of the crime; the witness s degree of attention; and the length of time between the crime and the confrontation. 409 U.S. 188, 199 (1972). The Court stated that those factors were to be considered by courts in evaluating the reliability of eyewitness testimony under a totality of the circumstances test. In establishing those factors, the Court recognized the importance of scrutinizing eyewitness identifications carefully. Id. In the decades following Biggers, the common sense factors developed by the Court were widely applied in judging the reliability of eyewitness identification testimony. At the same time, scientists and researchers began studying eyewitness misidentification on another level. For example, in the 1970s, several peer-reviewed psychological research studies were undertaken to analyze the effect of the inner-workings of the human mind on eyewitness misidentifications. See, e.g., Felice J. Levine & June L. Tapp, The Psychology of Criminal 5

10 Identification: The Gap From Wade to Kirby, 121 Pa. L. Rev (1973); David B. Fishman & Elizabeth F. Loftus, Expert Psychology Testimony on Eyewitness Identifications, 4 Law & Psychol. Rev. 87 (1978)(A ). Those studies ultimately led to findings that confirmed common sense - namely, that [r]esearch on perception and memory suggests strongly that any eyewitness reports should be evaluated cautiously and skeptically. Robert Buckhout, Psychology & Eyewitness Identification, 2 Law & Psychol. Rev. 75, 75 (1976)(A0209). Those studies also provided additional information on the causes of eyewitness misidentification beyond common sense or practical experience. For example, in the mid-1970s, Robert Buckhout, a psychology professor, began focusing on the application of psychology to [the] problem of eyewitness identification in courts of law [as] an extension of ongoing basic research in human perception and memory. Buckhout, at 75. After extensive analysis, Buckhout reported that certain additional factors are likely to cause an unreliable identification due to their psychological effect on a witness. Id. at 77. These include stress, the physical condition of the witness, suggestive identification procedures, conformity and unconscious transfer. Id. at 75. Buckhout emphasized that fact-finders must be aware of these additional factors when assessing the credibility of identifications. Id. at 77, 91. Over time, Buckhout s findings have been reaffirmed in subsequent peer-reviewed research and most recently, by studies of mistaken identifications that contributed to known wrongful convictions. See e.g., Wells, Eyewitness Identification Procedures at 603. During the 1980s, ongoing psychological research continued to expand the scope of analysis of eyewitness identifications. Frederick E. Chemay, Unreliable Eyewitness Evidence: The Expert Psychologist and the Defense in Criminal Cases, 45 La. L. Rev. 721, 730 (1985). For example, researchers began to make use of complex stimulus events to approximate 6

11 the experiences of actual witnesses. Gary L. Wells, Scientific Study of Witness Memory: Implications for Public and Legal Policy, 1 Psychol. Pub. Pol y & L. 726, 727 (1995) (citing several sources). Researchers also continued to study the retrieval of information from the human memory, and how external conditions like lighting and time affect the mind s ability to perceive. See, e.g., James M. Doyle & Elizabeth F. Loftus, Eyewitness Testimony, Civil and Criminal 2-3 (1987)(A0231). Since 1990, as scientific studies on eyewitness accounts reached completion, researchers, led by Professor Gary Wells, reported that their understanding of mistaken identification has matured greatly, so that we now have a rather large body of peer-reviewed scientific literature that forms an increasingly coherent picture of how mistaken identifications occur. Gary L. Wells, Eyewitness Identification Evidence: Science and Reform, 29 The Champion 12 (2005)(A0293). This peer-reviewed scientific literature extends beyond common sense, practical or simulated experience, and even the study of the human memory process. This literature demonstrates that the psychological phenomena underlying eyewitness testimony are governed by the ability of human beings to make use of cognitive processes such as reasoning and decision making. Researchers have determined that a witness s memory testimony is distinct from the actual memory itself and that memory testimony is affected by the witness s compliance with demand characteristics of a situation, guessing behaviors, confusions of real and imagined memories and other related phenomena. See, e.g., Wells, Scientific Study of Witness Memory. Researchers like Wells have expanded the earlier work of Buckhout, and reported clear results that [h]igh-stress interrogations produced accurate identification rates that were less than half of the low-stress interrogations and the rate of mistaken identifications were nearly doubled by the high-stress interrogations. Wells, Eyewitness Identification Evidence, at 13. 7

12 Recent study has also focused on the improper influences of police pressures on eyewitness identifications. Researchers, like Wells, have carefully examined police identification tactics, such as a risky situation [which] occurs when the lineup does not contain the actual perpetrator, and have begun calling for systemic reform in how police investigate and make decisions in eyewitness cases. Id. at 20. In 1999, the United States Department of Justice issued a guide to law enforcement personnel to ensure that police minimize the influence of variables (including suggestive identifications procedures) that commonly contribute to a mistaken eyewitness identification. National Institute of Justice, Eyewitness Evidence: A Guide to Law Enforcement (1999)(A ). That guide recognized that [e]ven the most honest and objective people can make mistakes in recalling and interpreting a witnessed event; it is the nature of human memory. 6 Id. at iii. The body of peer-reviewed scientific literature merely reinforces what was recognized by the early researchers and courts, including the Supreme Court in Biggers - factfinders must closely scrutinize the testimony of eyewitnesses and must evaluate their testimony in view of the totality of circumstances, including careful consideration of the factors suggested in Biggers. Researchers have recommended that judges should be required to include eyewitness identification issues in their continuing education experiences and develop a greater appreciation for the power of suggestive line-up procedures to cause mistaken identifications and the ease in which certain practices instill false certainty in eyewitnesses. Wells, Eyewitness Identification Evidence at The guide was created by the Technical Working Group for Eyewitness Evidence, which included research psychologists, police officers, prosecutors, defense lawyers and others. 8

13 II. The District Court s Decision Appropriately Applied The Compromising Factors And Eyewitness Literature. Mr. Richardson was convicted solely on the basis of eyewitness identifications - there were no inculpatory admissions and no physical evidence linking him to the crime. Richardson v. Briley, No. 00-C6425, 2004 WL , at *16 (N.D. Ill. Feb. 10, 2004). The District Court s opinion recognized that the prosecution s eyewitness testimony was undoubtedly powerful. Id. at *17. However, the opinion also found that the additional testimony of eyewitness Myron Moses was improperly excluded from Mr. Richardson s trial as a result of prosecutorial misconduct. 7 The Richardson Court carefully determined the credibility of the excluded witness, Moses, and considered the weight of his testimony as compared to the testimony of the other eyewitnesses, taking into account the compromising factors previously identified by courts and researchers that contribute to mistaken eyewitness identifications. Richardson, 2004 WL , at *11, 17. The Richardson Court also referenced the findings of psychological studies, like Buckhout and Wells, demonstrating a careful analysis based on prior academic literature. Id. at *11. For example, the Richardson Court identified several specific Biggers factors, like opportunity to see the perpetrator and focus on factors other than the perpetrator s face, in making specific factual findings that Moses testimony was less likely to be in error than the other eyewitnesses. Id. at *17. The Richardson Court also said that persons who saw the offender in the store and the tavern while the robberies were in progress were subject to several adverse factors that did not affect Moses and these adverse factors have a tendency to divert 7 The Panel did not overturn the District Court s finding that Mr. Richardson s conviction was tainted by intentional deception on the part of the prosecution. Richardson v. Briley, No. 04-C1513, 2005 WL , at *1 (7th Cir. Mar. 18, 2005). 9

14 the attention of a witness from the face of the offender. Id. at *11. The District Court specifically referenced the usual factors that can make eyewitness identification testimony unreliable in making its findings of fact. Id. at *17. In addition to considering the appropriate Biggers factors, the District Court opinion also referenced topics in the peer-reviewed scientific literature that often lead to mistaken eyewitness identifications. Most salient, though only one of many examples, is the lapse of several years between the incident and the other eyewitnesses identifications - which literature reports clearly reduces a witness ability to recall. See, e.g., Wall, at 127; Buckhout, at 83. Therefore, after careful consideration of factors long established with the benefit of extensive research over time (which the Court directly and indirectly referenced in its opinion), the District Court made specific findings of fact that the improperly excluded eyewitness, Moses, was a highly credible exculpatory witness, and that Moses had the best opportunity to view the offender. Richardson, 2004 WL , at *16. Based on these findings, the District Court granted Richardson s petition for writ of habeas corpus. On review, the Panel did not consider the specific findings of fact of the District Court or the Biggers factors. Instead, without explanation, the Panel concluded that, "it would not be unreasonable to conclude that a jury could have discounted [the] credibility" of Myron Moses. Richardson, 2005 WL , at *8. In so doing, the Panel violated the clear error rule for reviewing a district court s credibility findings, and failed to follow well-established precedent requiring that the court judge the credibility of eyewitness identification testimony. See, e.g., Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985). 10

15 CONCLUSION The District Court carefully compared the reliability of each witness identification testimony in light of the missing eyewitness testimony that had been omitted due to prosecutorial misconduct and considered the compromising factors that courts and researchers have long recognized as indicative of misidentifications. Because Mr. Richardson was convicted solely on the basis of eyewitness identifications, and the United States District Court opinion contains a detailed review of these eyewitness identifications which the Panel failed to consider in its opinion, the Center respectfully requests that this Court grant Petitioner s motion for rehearing en banc, to review the Panel decision of March 18, 2005, vacating the District Court s grant of a writ of habeas corpus. Respectfully submitted, The Center on Wrongful Convictions at Northwestern School of Law; and The MacArthur Justice Center at the University of Chicago Law School Terri L. Mascherin David E. Walters Andrew W. Vail Jenner & Block LLP One IBM Plaza Chicago, Illinois (312) By: One of Its Attorneys 11

16 CERTIFICATE OF SERVICE I, Andrew W. Vail, an attorney, hereby certify that on April 7, 2005, I caused a copy of Brief Amicus Curiae of the Center on Wrongful Convictions and the Macarthur Justice Center in Support of Appellee s Petition for Rehearing, En Banc, to be served by messenger delivery upon: Lisa Madigan Attorney General State of Illinois Linda D. Woloshin Office of the Assistant Attorney General 100 W. Randolph Street, 12th Floor Chicago, Illinois Richard A. Devine Renee G. Goldfarb Peter D. Fischer Sally L. Dilgart Office of the Cook County State s Attorney 309 Richard J. Daley Center Chicago, Illinois Andrew W. Vail 12