Incentivized Witnesses: A Threat to Prosecutorial Integrity?

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On December 18, 2014, Rickey Dale Wyatt became the 325^th person in the United States exonerated through post-conviction DNA testing.  Wyatt had been charged and convicted of aggravated rape stemming from an incident occurring on November 1, 1980.  In 1981, he was sentenced to ninety-nine years in prison.  Wyatt initially secured his release in 2012 through the assistance of the Innocence Project, in cooperation with the Dallas County District Attorney’s Conviction Integrity Unit.  This unit, started in 2006 under then-District Attorney Craig Watkins, was the first of its kind in the United States. Today, the Center for Prosecutorial Integrity credits these such units with “forging a new model of justice,” and the organization’s front page contains links to sixteen units in thirteen states, the most recently created in Pima County, Arizona.  In light of the creation of these units, perhaps it is a good time to examine the role prosecutorial practices play within the overall scheme of prosecutorial integrity.  More particularly, this blog post will focus on the use of informants and incentivized witnesses in the prosecutorial scheme.

Kevin Martin: Innocent.

Kevin Martin

In order to ensure justice and credence in our legal system, a series of checks and balances are in place.  Nowhere are these checks and balances so essential than in the criminal justice system.  In 1982, a seventeen-year-old boy named Kevin Martin was sent to prison for over twenty-six years for a rape homicide that he did not commit based on misrepresented FBI hair analysis.  Although Mr. Martin’s claim to innocence has finally been publically and scientifically acknowledged, there are still many questions left unanswered.

Using Expert Witnesses to Mitigate the Prejudice to Defendants In Regard to Identification Procedures

There are many prejudicial effects that a criminal defendant can encounter throughout his proceedings.  One of the most prejudicial effects, and currently in hot contest, revolves around eyewitness identifications.  In-court identifications are very prejudicial and detrimental to a defendant's case, but there are also problems with any extra-judicial identification procedures.  Many jurisdictions are now taking measures to heighten the accuracy of identification procedures, but this still might not be enough to outweigh the innate obstacles that come with eyewitness identification.  This issue has been on the back burner of the judicial system since the early 1900’s.  As early as 1907, Hugo Munsterberg published “On the Witness Stand,” where he questioned the reliability of eyewitness identification. Yale Professor Edwin Borchard later wrote “Convicting the Innocent,” after he studied sixty five wrongful conviction cases and found that eyewitness misidentification was the leading cause of wrongful convictions.  Now it is finally time to bring the issue into the spotlight.  

No Cheating Allowed: Prince George’s County Adopts the Double-Blind Method of Eyewitness Photo Identification

On February 9, 2014, the Prince George’s County Police Department (MD) announced that it will start conducting photo lineups using the “double-blind” method.  The new changes will require police officers to institute two safeguards when showing eyewitnesses a photo lineup: (1) police officers must show the witness the photos one at a time, rather than all at once; and (2) the police officer showing the photos must be unfamiliar with the case.  The change is part of an effort to minimize false identifications and subsequently, wrongful convictions.  The accuracy of photo lineups has been a hot topic over the past decade as DNA evidence has been used more frequently to overturn convictions.  A recent study by the innocence project found that eyewitness misidentification plays a role in over 75% of convictions overturned by DNA testing, making it the single greatest cause of wrongful convictions nationwide.

The Supreme Court Denies Appeal from Wrongfully Accused Duke Lacrosse Players

The Supreme Court refused to hear an appeal from three Duke Lacrosse players who were wrongfully accused of rape in March 2006.  David Evans, Collin Finnerty, and Reade Seligmann filed a lawsuit against the City of Durham, North Carolina, holding it responsible for pursuing the rape charges against them without probable cause.  The charges stemmed from false allegations made by Crystal Mangum, a stripper hired to perform at a team party held on March 13, 2006.  Without any evidentiary basis, Evans, Finnerty, and Seligmann were indicted for Mangum’s alleged rape.[1]  The Supreme Court’s recent refusal to hear their appeal marks the end of the players’ civil rights lawsuit.  Consequently, the Court’s refusal leaves many unanswered questions about the prosecutorial and police misconduct that occurred during the case.

Michael Nifong was the Durham District Attorney behind the unjust prosecution of Evans, Finnerty, and Seligmann.  Around the same time that Crystal Mangum’s rape allegations surfaced, Nifong was facing the pressures of re-election.  In order to win, Nifong desperately needed the votes of Durham’s black community, who were outraged by Mangum’s story.  Nifong saw the rape case as the perfect opportunity to win their votes, and he quickly made it the center of his campaign.[2]  With a clear motive compelling him, Nifong began a ruthless attack on the lacrosse players, indifferent to the truth.

Nifong blatantly violated his ethical obligations as a prosecutor throughout the case.  First, there was no probable cause to charge the lacrosse players with rape, since evidence supporting Crystal Mangum’s story was almost non-existent.  The Supreme Court defines probable cause as “…a reasonable ground for belief of guilt.”  In the Duke case, there was no DNA or other physical evidence linking the defendants to the victim, and the sole basis of Mangum’s claims were her inconsistent versions of events, which changed multiple times.[3]  This evidence was insufficient to establish a reasonable belief that the players were guilty, but Nifong pursued the case anyway.

Nifong also violated his Brady obligation, which precludes a prosecutor from withholding exculpatory evidence from the defense that is material to the outcome of the case.  Not only did Nifong withhold evidence that showed Mangum’s inconsistencies in identifying her rapists, but he also withheld DNA results that revealed no match of any lacrosse player in or around Mangum hours after the alleged rape.[4]  In both instances, the evidence withheld was material to the outcome of the case.  Mangum’s inconsistencies seriously undermined her credibility, and the DNA results were almost conclusive proof of the players’ innocence.  Nifong also made extrajudicial statements to the public proclaiming the lacrosse players’ guilt, even though he knew the facts did not support the claim.  Based on Nifong’s repeated misconduct, he clearly had no interest in presenting the truth and pursuing justice.

The Duke Lacrosse case illustrates prosecutorial misconduct at its worst.  Nifong had tremendous power over the lives of the accused as the elected District Attorney, since no one was going to challenge his discretion.   Instead of using his power to seek justice, he abused it to further his own motives.  Fortunately, Nifong’s misconduct was exposed, and Evans, Finnerty, and Seligmann were declared innocent.  Accordingly, Nifong was disbarred and disgraced by the legal community.  However in many cases, prosecutorial misconduct is never exposed, probably because it happens behind closed doors.  Most of the time, defense attorneys are unaware the misconduct is going on, especially with regards to Brady violations.  A possible solution to this problem could be mandatory “open discovery laws” in all jurisdictions, which would require prosecutors to turn over all evidence in their case files to the defense.  

Another concern regarding prosecutorial misconduct is the fact that it is often intertwined with police misconduct.  Clearly, Nifong did not act alone during the Duke case.  Durham police officers and investigators directly contributed to the injustices of this case.  However, many of their identities are still unknown, as well as certain details of their scheme.  Sadly, the Supreme Court’s dismissal of the players’ civil lawsuit means many of these facts will remain unknown.

Samantha Beyda

Senior Staffer, Criminal Law Practitioner

Image by Ravs62687 at the English Wikipedia [Public domain], via Wikimedia Commons.

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[1] Stuart Taylor Jr. & K.C. Johnson, Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case 96-97 (St. Martin’s Press, 1st ed. 2008). 

[2] Id. at 84-85.

[3] Id. at 36-38. 

[4] Id. at 162-163. 

Jerry Lee Jenkins: Wrongfully Convicted, Never Gave Up

June 7, 2013 is a day Jerry Lee Jenkins will always remember.  It was the day he joined over three hundred other men and women who were exonerated with the use of post-conviction DNA testing.  Mr. Jenkins had been fighting to prove his innocence since he was wrongfully convicted in 1987 for the brutal rape of a young woman in Waldorf, Maryland.  On the evening of February 6, 1986 the woman, a real estate agent, was at a model home when a man came in, concealed his face with a stocking and pulled a knife on her.  The man covered the woman’s face and proceeded to rape her.  The woman was able to get a partial glance at his face.  The woman would later admit at a photo lineup with Mr. Jenkins and to the jury that Mr. Jenkins looked like the man who attacked her but she was not sure it was him.  An expert from the FBI testified at trial that Mr. Jenkins was within four percent of the population that could have contributed to the biological material left at the crime, which is still a large pool of possible offenders.  Mr. Jenkins was convicted regardless. 

Before Mr. Jenkins was convicted, a detective noticed that the 1986 rape was very similar to another rape committed over a year prior, in 1984, and only a few miles from the 1986 rape.  That rape involved a similar victim, location, and offender characteristics.  The police even contacted the FBI to conduct a profile of a potential serial rapist.  Mr. Jenkins, only twenty-five at the time, had recently been arrested on an unrelated crime when the police decided to interview him.  Mr. Jenkins was tested against the evidence from the 1984 rape and he was excluded as the suspect.  However, the police continued to try to build a case against Mr. Jenkins for the 1986 rape.  They showed the victim an outdated picture of Mr. Jenkins in a photo line-up. She said Mr. Jenkins and her attacker looked similar but admitted she could not be certain they were the same.

Eyewitness misidentification has been found in seventy-five percent of wrongful conviction cases and is the leading contributor of wrongful convictions.  There has been a considerable amount of research conducted to determine why such misidentification occurs so frequently and methods to prevent it.  People often think their memory is better than it actually is, especially in stressful situations.  The woman in the 1986 rape admitted that she was not sure that Mr. Jenkins was her attacker; however, the jury was likely influenced by her testifying that they looked similar. 

Eyewitness misidentifications can also be caused by suggestive techniques during a line-up.  This may include the suspect wearing a different colored shirt than the rest of the people in a line-up or a police officer telling the witness to take another look at the suspect.  A successful method to diminish the risk of eyewitness misidentifications is to administer a “double-blind” line-up in which neither the person conducting the line-up nor the witness knows the suspect.  Researchers suggest that the line-up should be administered with photographs presented to the witness in sequential order, having the witness look at each photo, determine if it is the offender and move on to the next photo.  Defense attorneys should fight for this kind of photo line-up or ensure that traditional line-ups are not overly suggestive.  Prosecutors and police ought to be just as concerned with the high percentage of eyewitness misidentifications that seem to occur in wrongful conviction cases.      

After Mr. Jenkins was convicted, he sought to have DNA testing done but because DNA profiling was in its early stages, the test was inconclusive.  Mr. Jenkins was sentenced to life in prison.  He continued to file unsuccessful appeals as the process of DNA profiling advanced.  In 2000 when it seemed more likely that Mr. Jenkins could get another trial after the Maryland Court of Appeals ruled that evidence of another perpetrator could be permitted at trial, the prosecution offered to vacate Mr. Jenkins’ conviction if he took an Alford plea, a guilty plea that acknowledges the prosecution has sufficient evidence to convict him on the 1986 rape but allows him to maintain his innocence.  In return, the prosecution would recommend a shorter sentence with the possibility of release in 2010 on probation.  He accepted.

In 2004 the DNA from the 1984 rape was run through CODIS, the FBI’s DNA database.  The DNA belonged to Norman Derr, who was serving a life sentence in Virginia for a 1988 rape that was very similar to the Maryland rapes.  Mr. Derr was suspected of multiple rapes in Virginia.  In 2007 the Mid Atlantic Innocence Project joined Mr. Jenkins’ fight, accepting him as a non-DNA case since it was believed that there was no more evidence from the 1986 rape that could be tested.

In 2010 Mr. Jenkins was released, but he was not finished with his fight to clear his name.  A year later, the big break came when a box of evidence from the 1986 rape was found and DNA testing was conducted.  Not only was Mr. Jenkins excluded by the DNA in the 1986 rape but the DNA evidence matched Mr. Derr’s DNA.  On June 7, 2013 Mr. Jenkins finally won his motion for a new trial, filed previously in February and supported by the State, the case was dismissed. 

Mr. Jenkins’ story is one of many in which post-conviction DNA testing was used to right a terrible wrong.  As of May 24, 2013, all 50 states have laws for access to post-conviction DNA testing.  These laws are extremely important in overturning wrongful convictions, enabling the true perpetrators to be incarcerated and ensuring that the innocent are freed. 

Unfortunately, there are cases of wrongful convictions that do not contain any DNA evidence that can be tested.  Those battles for the truth can be much more difficult.  It is essential that the public and especially members of the criminal justice system are aware of wrongful convictions and their characteristics, as well as the measures that can be taken to implement change to correct and prevent them, such as DNA Access laws or non-suggestive photo line-ups.  The adage that it is better to let 1,000 guilty men go free than convict an innocent man may one day be unnecessary.  Relatively simple measures can be taken to prevent those guilty men from going free and that innocent person from being wrongfully convicted in the first place.       

Raleigh Mark

Blog Editor, Criminal Law Brief