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Thursday, March 19, 2015

The wrong guy

Witness misidentification leads to wrongful convictions

Angel Gonzalez was in the wrong place at the wrong time, and he was driving the wrong vehicle.

Were it not for his 1979 Cadillac sedan, Gonzalez probably would have never become a suspect in a 1994 rape at an apartment complex in Waukegan. Gonzalez spent nearly 21 years in prison for the crime, until DNA evidence proved his innocence earlier this month. He was released from prison on March 10, thanks in part to the Illinois Innocence Project, which is celebrating its second exoneration in less than a month. Gonzalez’s case illustrates a common problem in the justice system: eyewitness misidentification often leads to the wrong person being punished.

The Illinois Innocence Project worked with the national Innocence Project on Gonzalez’s case, and on April 8, IIP is bringing two people who are leading a national campaign for reforming the justice system to Springfield.

Angel Gonzalez, next to attorney Lauren Kaeseberg of the Illinois Innocence Project, smiles a few minutes after he was released from Dixon Correctional Center March 10.
PHOTO BY NUCCIO DINUZZO/TNS

 

A case of mistaken identity
On the night of July 11, 1994, a woman was abducted from her Waukegan apartment complex by two men, driven to a neighbor’s back yard and raped by both men. The victim told police that the rapists drove a “late model, dark-colored, four-door sedan with tinted windows.”

Angel Gonzalez spoke very little English in 1994. He had moved to the U.S. from Mexico and lived in Waukegan on an immigration visa at the time. On the night of the rape, Gonzalez and his girlfriend were visiting her sister’s apartment in the same complex, and as he drove his Cadillac out of the parking lot, the victim’s boyfriend told police he didn’t think the car belonged there. Gonzalez instantly became the prime suspect in the case.

Police pulled Gonzalez over shortly after he had dropped his girlfriend off. He didn’t match the physical description of either attacker – he was shorter than the victim rather than taller, for example – but it didn’t matter. The police arrested Gonzalez and took him to the police station, where he was led out of the squad car in handcuffs while the victim sat in another car. As Gonzalez stood illuminated by headlights in front of the squad car that night, the victim identified him as one of her two attackers. 

That live presentation of a suspect to a victim at the police station or at the crime scene is known as a “showup.” It’s a controversial tactic because it suggests to the victim that the person being presented by police is guilty.

Even so, Gonzalez had a strong alibi established by his girlfriend and her sister. The sister actually drove to the police station the day after Gonzalez’s arrest to say he was at her apartment the whole time, but the police didn’t take a formal statement.

At the station, Gonzalez was stripped naked, forced to wear a paper jumpsuit and interrogated for 13 hours. He was told to write a confession of the crime in Spanish, but when his confession didn’t match the facts of the crime, police typed one for him in English. Although he couldn’t read the document, he signed it after police translated it to him. His 13-hour interrogation was not recorded, even though recording equipment was available.

There was no physical evidence against Gonzalez at trial, other than his car matching the victim’s vague description of the car used to abduct her. Four witnesses corroborated Gonzalez’s alibi, and the police even admitted during the trial that they fed him information about the crime to shape his confession. Still, he was convicted of aggravated sexual assault and aggravated kidnapping and given a prison sentence of 55 years.

The New York-based Innocence Project, a nationwide group providing legal help to wrongfully convicted inmates, took up Gonzalez’s case in 2012 and asked the Illinois Innocence Project, based at the University of Illinois Springfield, for help. The two groups worked together, reinvestigating the case from the beginning. Lake County State’s Attorney Michael Nerheim agreed not to fight the groups’ effort to have DNA testing done in Gonzalez’ case, and the results showed Gonzalez was not a match for either of the two DNA profiles recovered from the victim.

Barry Scheck, co-director of the national Innocence Project, said Nerheim’s cooperation made all the difference in the case, unlike his predecessor, who fought the efforts of the Innocence Project and the Illinois Innocence Project at every turn.

“Lake County used to not be a friendly place,” Scheck said.

Scheck became famous in 1995 as part of O.J. Simpson’s defense team in his criminal trial. But before that, Scheck helped found the Innocence Project in 1992, making him one of the forefathers of the innocence movement in the United States. According to the National Registry of Exonerations maintained by the University of Michigan Law School, there have been 1,565 exonerations in the U.S. since 1989, many of them prompted by groups following Scheck’s lead. His work served as the inspiration for the creation of the Illinois Innocence Project, founded in 2001. The Illinois Innocence Project earned the release of Christopher Abernathy in February. Abernathy spent nearly 30 years in prison for rape and murder before DNA evidence proved his innocence.

Lauren Kaeseberg (left), an Illinois Innocence Project staff attorney, talks with Vanessa Potkin and Barry Scheck of the national Innocence Project. The two groups worked together to free Angel Gonzalez in early March after DNA evidence proved his innocen
PHOTO BY PATRICK YEAGLE

 

Angel Gonzalez’s case marks the third exoneration for the Innocence Project stemming from a case in Lake County.  The hard-line attitude prevalent in Lake County was reflected at Gonzalez’s hearing on March 9, when eight armed guards stood watch in the courtroom. Gonzalez’s feet were shackled. Even as Lake County Circuit Judge Victoria Rossetti dismissed the charges against Gonzalez, she seemed to still view him as a criminal. When Rossetti announced her dismissal of the case, Innocence Project attorney Vanessa Potkin reached over to hug Gonzalez.

“Mr. Gonzalez,” Rossetti snapped.

“That was me, judge,” Potkin said. “I’m sorry.”

“This is still a courtroom,” Rossetti admonished.

Although Gonzalez was cleared in the rape case on March 9, he wasn’t released until the next day, thanks to an additional three-year prison sentence he got for breaking a sink while in solitary confinement in 1997. The sentence for that charge was to be served consecutively, meaning none of Gonzalez’s 55-year sentence for the rape and murder counted toward his three-year sentence for breaking the sink. Gonzalez was serving his sentence at the state prison in Livingston County when that incident occurred, so the Lake County state’s attorney couldn’t drop the charge himself. Lauren Kaeseberg, the Illinois Innocence Project attorney who worked on Gonzalez’s case, got the charge dropped in Livingston County on March 10, and Gonzalez was released from prison later that day. He is now seeking to become a U.S. citizen.

Fundamental flaws
Eyewitness misidentification like in Gonzalez’s case is a leading cause of wrongful convictions, according to a tally of cases kept by the national Innocence Project. Of the first 325 exonerations by DNA evidence in the United States, 235 of the wrongful convictions – greater than 72 percent – were caused by eyewitness misidentification.

Even in the early 1900s, eyewitness misidentification was a recognized problem. In 1907, German psychologist Hugo Münsterberg published On the Witness Stand, a collection of his essays detailing the problems with trusting a witness’s memory in criminal cases.

“It is generally taken for granted that we all perceive our surroundings uniformly,” he wrote. “In case there were only twenty men in the hall, no one could have seen one hundred. In case the road was muddy, no one can have seen it dusty. … But do we really all perceive the same thing, and does it have the same meaning to us in our immediate absorption of the surrounding world? Is the court sufficiently aware of the great differences between men’s perceptions, and does the court take sufficient trouble to examine the capacities and habits with which the witness moves through the world which he believes he observes?”

Elizabeth Loftus, a memory expert and professor of law and psychology at the University of California Irvine, wrote in the March 2003 edition of the scientific journal Nature Reviews that “memory is malleable” and can be shaped by external influences after the fact.

“A growing body of research shows that memory more closely resembles a synthesis of experiences than a replay of a videotape,” she wrote.

She cites the example of the sniper attacks that terrorized Washington, D.C., in 2002 and left 10 people dead. Witnesses originally reported seeing a white truck or van fleeing the scene, and witnesses who saw later attacks continued to recall seeing a white vehicle. The suspects were finally apprehended in a blue Chevrolet Caprice, which had been modified to allow shooting through a hole in the trunk. Loftus reasons that media repetition of the vehicle description could have “contaminated” the public’s collective memory by suggesting the wrong vehicle.

Ron Cotton (right) served 11 years in prison for raping Jennifer Thompson (left) before DNA evidence revealed he was innocent. Cotton and Thompson will speak in Springfield on April 8.
PHOTO BY ERIN TORNEO

 

“Usually the scrambled memory does not matter very much,” Loftus writes. “But if you are an eyewitness to a crime, your scrambled recall could send someone to prison. And, rather than feeling hesitant, you might feel perfectly sure of the truth of your memory.”

In Illinois, a new state law took effect on Jan. 1 of this year, reforming how police handle suspect lineups. Sponsored by state Rep. Scott Drury, a Democrat from Highwood and a former assistant U.S. attorney, the law is meant to prevent conscious or unconscious suggestions by police to witnesses about which person in a lineup may be the suspect. It requires audio or video recording of lineups, keeping witnesses from conferring about details of the crime to avoid contaminating their memories beforehand and having a computer program or a “blind” administrator who does not know which person is the suspect perform the procedure, among other reforms.

However, the law does not apply to “showups,” the practice of presenting a suspect to the victim at or near the crime scene. That means even if the new law had been in place in 1994, it might not have prevented Angel Gonzalez from being wrongly convicted based on the victim mistakenly identifying him as the culprit.

In some jurisdictions, identification gleaned from a showup is not allowed as evidence in court. Showups are inherently suggestive because only one suspect is presented to a victim or witness, according to Scheck. He says showups shouldn’t be used except in limited circumstances, and they should be done carefully to avoid unduly influencing the witness. Police should also instruct witnesses that they don’t have to make an identification, and that even if they don’t, the investigation will continue, Scheck said.

“Those words, we know, will eliminate 20 percent of false identifications,” he said.
   
Healing the wounds
In July 1984, a 22-year-old white college student named Jennifer Thompson was attacked and raped at knifepoint in her apartment by a young black man in Burlington, North Carolina. She was terrified as police later lined up seven men in front of her – separated by nothing more than a table – in a suspect lineup. Although the police specifically said she needn’t feel compelled to pick a suspect and that her rapist might not even be in the lineup, Thompson assumed that he must be there.

“If he was here, now he knew what I looked like in broad daylight. He knew my name. If he was here, I couldn’t screw this up,” Thompson wrote in her 2009 book about the crime, co-authored with Ron Cotton, the man she mistakenly identified as her rapist.

Bobby Poole, the man who actually raped Thompson, was not in the lineup. Instead, Thompson selected Cotton, who wound up spending 11 years in prison before DNA evidence cleared him in June 1995. During most of his 11 years behind bars, Cotton suspected but couldn’t prove that Poole, a fellow inmate, had committed the crime. Two years after Cotton’s exoneration, Thompson contacted him to apologize, and the two became friends. They now speak at rallies against wrongful convictions, and their book, Picking Cotton, reached The New York Times’ best-seller list in 2009. Thompson and Cotton are scheduled to speak at the Illinois Innocence Project’s Eighth Annual Defenders of the Innocent event in Springfield on April 8.

Their book details Thompson’s trauma following the rape, how she grew to hate Cotton and her path to healing after she realized she had picked the wrong man. It also tells Cotton’s story, including the systemic racism that led to him becoming a suspect in the crime, his survival in prison, his efforts to expose the real culprit and his eventual forgiveness of Thompson.

Speaking by phone, Cotton told Illinois Times that when he was released from prison at age 33, he felt a mixture of shock and joy.

“It felt like I was in a dream,” he said. “Everything was foggy. I was overjoyed. My family rushed me and hugged me. They say grown men don’t cry, but that’s not true. I cried.”

Barry Scheck (left), co-founder of the Innocence Project, served as inspiration for Larry Golden (right) to co-found the Illinois Innocence Project in Springfield in 2001.
PHOTO BY PATRICK YEAGLE

 

Cotton and Thompson continue to attend rallies and speak to lawmakers about reforming the justice system. He feels as though he’s been given a mission to help others who were wrongfully convicted.

“We can’t stop doing what we’re doing, because it’s not just for Jennifer and me; it benefits others in the same situation,” he said. “If you’re going to lock someone up, do a thorough investigation. Don’t lock them up because of the word of some other mouth. Locking someone up for a crime they did not commit can mess peoples’ lives up.”

Contact Patrick Yeagle at pyeagle@illinoistimes.com.

The wrong guy

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