RICHMOND, Va. — Marvin Anderson’s face was the only one that appeared in color among an array of black-and-white mug shots police showed to a woman who was sexually assaulted.
She identified Anderson as her attacker after selecting his work ID badge photo, which police used instead of an image similar to the others, then picked him again when Anderson stood in a lineup that didn’t include any of the men pictured in the mug shots.
Anderson was 18 at the time and had no previous brushes with the law. He only became a suspect after the victim told police investigators that her attacker had mentioned that he “had a white girl,” and they knew Anderson was living with his white girlfriend — uncommon here in 1982.
“I didn’t see anything wrong with being in a lineup because I didn’t do anything wrong,” Anderson said. But a jury convicted him on two counts of rape, sodomy and abduction based on the victim’s eyewitness identification. He spent 15 years in prison, despite the real perpetrator, Otis Lincoln, confessing to the attack in 1988. Anderson wasn’t exonerated until 2002, after DNA testing excluded him and implicated Lincoln.
Anderson, now 48, has since been speaking out about the need for proper police procedures that would prevent what happened to him from happening to others. His case is one of 14 post-conviction DNA exonerations in Virginia and one of 289 nationwide, according to the Innocence Project. The group says eyewitness misidentification is the single greatest cause of wrongful convictions, occurring in nearly 75 percent of the overturned cases.
In Virginia, the state’s Department of Criminal Justice Services is trying to address the issue by overhauling its model policy on police lineups and eyewitness-identification procedures. The guidelines call for double-blind identification lineups, meaning an investigator doesn’t know the suspect’s identity so he can’t give intentional or inadvertent clues to the eyewitness. The agency is also developing training sessions for police officers on best practices and the importance of adhering to such standards.
State law has required police departments to adopt written procedures since 2005 but left it to each department to determine their own procedures. A follow-up study by the Virginia Crime Commission five years later found that about a third of departments still lacked any written policy and that the written policies at many other departments were making victim identification more error-prone.
Other states also have addressed the issue with either legislation or policy. North Carolina, Connecticut and Ohio have laws that require police to administer double-blind, sequential suspect photo arrays. In New Jersey and Wisconsin, the attorneys general issued statewide guidelines to law enforcement that require such practices. A bill to require double-blind lineups was proposed in New York this year, but the measure died in committee.
“No one benefits from a misidentification. For the police, it hinders investigations, for prosecutors it burns witnesses,” said Rebecca Brown, the Innocence Project’s director of state policy reform. Also, such errors pose threats to public safety because actual perpetrators could continue to victimize people while those wrongly convicted languish behind bars.
Social science researchers have found that many factors affect the reliability of eyewitness identification. Some police can control, such as how officers conduct photo lineups and other procedures, and other factors that they can’t, including the race of victims and perpetrators (victims have a harder time identifying perpetrators of a race different than their own).
Model guidelines aim to improve the reliability of eyewitness results by employing measures such as using “blind” administrators and making sure the photographs are of the same composition — unlike in the case of Anderson and others who have been wrongly convicted.
The guidelines address concerns that smaller law-enforcement agencies had about limited staffing hindering the ability to administer double-blind lineups by recommending a “folder system.” Such a system calls for one officer handing closed folders that contain the photos of the suspect and non-suspects as well as empty folders. The investigator wouldn’t know which folder contains which photos, or which one is empty.
The Virginia Association of Chiefs of Police encourages law enforcement agencies to adopt policies “based on recommended best practices that can be adapted to their agencies’ resources, and to provide proper training for their officers on all policies,” said the group’s executive director, Dana Schrad.
Michele Mallin says she’s a living example of the fallibility of memory and how trauma affects perception. She says more safeguards are needed so “police officers can’t go rogue and do what they want.”
Mallin, 47, selected the only color photograph in an array of possible suspects after she was sexually assaulted in 1985 while attending Texas Tech. Her identification led to the conviction of Timothy Cole.
She didn’t learn that her rapist was actually Jerry Wayne Johnson until 2008, 13 years after Johnson wrote a letter to the district attorney’s office confessing to the crime — which Mallin said neither she nor Cole was told about — and nine years after Cole died in prison.
“I was very upset,” she said. “I didn’t know the police had kept it from me. The guy who raped me raped two other women the summer after he raped me.”
The cases of Mallin and Anderson eventually were resolved because of DNA testing. But biological evidence that can establish guilt or innocence only is available in about 10 percent of criminal cases, according to University of Virginia Law School professor Brandon Garrett, author of “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” and a key consultant on Virginia’s model eyewitness-identification policy.
“It’s a very sensitive task,” Garrett said. “If you do the lineup wrong, you can actually change the memory of the face they actually saw.”
Adopting relatively simple changes to improve procedures to help witnesses properly identify suspects is in everyone’s best interest, Garrett said.