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Witness memories have always been fallible. New York is starting to remind jurors of this.


What you’ll read today

  • Spotlight: Witness memories have always been fallible. New York is starting to remind jurors of this.

  • Black Mississippians say sheriff’s office deputies ‘terrorize the community like a gang would’

  • North Carolina bill would punish stealing pills from pharmacies as harshly as manslaughter

  • A Texas man who did not kill anyone is set to be executed tonight

  • Republican lawmaker in Utah wants to alter criminal penalties to limit deportations

In the Spotlight

Witness memories have always been fallible. New York is starting to remind jurors of this.

Most Americans are familiar with the basics of a trial: opening statements, cross examinations, objections, verdicts. But most don’t know what jury instructions are. Even some who have served on a jury don’t remember the jury instruction. That’s because there is nothing particularly exciting about jury instructions. After both sides have given closing statements, before the jury begins deliberating, the judge instructs jurors on how to evaluate the evidence: what are the elements of each charge, how certain they have to be, what kinds of considerations are acceptable, etcetera. The prosecutor and defense lawyer have spent the trial doing everything they can to get the jury’s attention by telling the most compelling story possible. The judge, while giving instructions, usually reads legalistic words off a page for an hour or more. Sometimes people fall asleep. Perhaps you are already bored simply reading about jury instructions. Maybe you’ve forgotten what they are.

We know memories aren’t perfect, and research continually shows just how unreliable they are. Hugo Münsterberg, who taught at Harvard in one of the first American psychology departments, wrote a book in 1908 called “On the Witness Stand.” In it, he argued that because people could not know when their memories had deceived them, the legal system’s safeguards against lying—oaths, penalties for perjury, and so on—were ineffective. Based on that research, he expected people in all fields to be eager to reform their practices. “The lawyer alone is obdurate,” Münsterberg wrote. [Paul Kix / The New Yorker] Indeed, eyewitness identification is the leading cause of wrongful convictions and yet it is still a cornerstone of the legal system.

Ironically, New York’s highest court has turned to the highly forgettable jury instruction to help remedy misidentification. Last year, it ruled that defendants who are identified by someone of a different race are entitled to a jury instruction explaining that people generally have greater difficulty accurately identifying someone of a different race than their own. That decision sent a conviction back to a lower court in Brooklyn, and this month, after a retrial, an innocent man was finally acquitted. Jurors said it took them five minutes to reach their decision, and afterward waited in the courtroom to hug the defendant and his family.

Otis Boone, who is Black, was arrested when he was 19 and spent seven years in prison, during which he steadfastly insisted on his innocence. Two white people had mistakenly identified him as a person who had robbed them of cell phones at knifepoint in Brooklyn. There was no physical evidence pointing to his guilt, but he was convicted and sentenced to 25 years in prison based on the two eyewitness accounts. At his second trial last month, public defenders presented evidence that Boone was a mile away from one of the robberies five minutes before it occurred. “Boone’s ordeal illustrates a shift in how the state’s criminal justice system handles witness identifications,” writes Ashley Southall for the New York Times. “They were once considered strong evidence of guilt, and they remain a persuasive tool for prosecutors.” [Ashley Southall / New York Times]

“One thing that was encouraging was that during jury selection it seemed like people got it,” Bess Stiffelman of the Legal Aid Society, who represented Boone on his retrial, told The Daily Appeal. “It used to be that identification testimony, pointing to someone and saying ‘That’s the guy who did it!’ was the most powerful evidence people could hear. And I think that people can understand that witnesses can be mistaken, despite confidence.”

Stiffelman was surprised that the Brooklyn DA’s office, which prides itself on having the largest dedicated conviction review unit, and on being “progessive” in general, never seemed to consider the possibility that her client was not guilty. According to the office’s website, the Conviction Review Unit takes a “fresh look at all the evidence,” consulting with experts and using the most up-to-date science to reevaluate the evidence. This includes “social science research on issues like faulty eyewitness identification.” But they fought the case aggressively.

It turned out, if the lead detective on Boone’s case had looked at the file before she administered the lineups, she would have seen notes from interviews with one of the complainants, who said on the night he was robbed that he wouldn’t be able to identify the offender if he saw him again. Five days later, an officer wrote that the complainant said he “couldn’t remember what the person looked like only described him as a tall male black.”

The Daily Appeal asked Stiffelman what changes she would like to see as a result of her client’s acquittal, apart from the jury instruction. “What I would really like to see is that the prosecution and the police department don’t think that just because you have a lineup identification that your case should be closed. The DA’s office and the NYPD never seem to doubt an identification,” she said. “They have to shift their thinking on that. Maybe look in your file to see whether there are reasons why this might be a bad ID. Just look a little bit, just look a little bit closer.”

It’s natural for people to trust their own memories and trust a person who points his finger in the courtroom and shouts, “He did it! I’m 100 percent certain! I’ll never forget that face!” But the power of that kind of statement makes it dangerous. Our legal system has relied on eyewitness testimony for centuries, but that doesn’t mean we should cling to it, regardless of how many innocent lives we destroy. We know better. And hopefully, despite the fallibility of human memory, jurors won’t forget that new jury instruction.

Stories From The Appeal

Sheriff Randy Tucker of Madison County, Mississippi
[
Photo illustration by Anagraph. Photo courtesy of Sheriff Randy Tucker Facebook]

Black Mississippians Say Sheriff’s Office Deputies ‘Terrorize the Community Like a Gang Would.’ Attorneys and advocates call for change in Madison County after the deaths of three Black people at its jail and because of what they allege is a system of roadblocks targeting Black residents. [Aaron Morrison]

Stories From Around the Country

North Carolina bill would punish stealing pills from pharmacies as harshly as manslaughter: Yesterday, the North Carolina General Assembly erupted into debate over a proposal to significantly increase the criminal punishment for people caught breaking into pharmacies, and those who buy stolen pills. People charged with breaking into pharmacies usually face four months to two years in prison. The bill, which advanced out of committee, would increase that to more than 13 years, the same punishment as voluntary manslaughter. “I think it sends a message that says, ‘Look, if you break into a pharmacy with the intent to get opioids on the street, we’re going to punish you,’” said Carson Smith, a new Republican legislator and former sheriff. The bill is supported by the NC Retail Merchants Association, a business lobbying group. Representative Marcia Morey, a Democrat who was previously a judge, asked if it might be easier to require pharmacies to keep their narcotics locked in safes. That suggestion was shot down as being too expensive for many businesses. [Will Doran / News & Observer]

A Texas man who did not kill anyone is set to be executed tonight: Patrick Murphy didn’t pull the trigger, did not know anyone would be hurt, and warned the others to leave. “A co-defendant testified that he did not want to participate in any of the robberies. He didn’t even learn about the shooting until the group reunited later that day,” writes Katie Rose Quandt for The Appeal. “But none of that matters under Texas’s controversial law of parties,” which, like the felony murder doctrine, holds all co-conspirators liable for additional felonies committed, regardless of intent. In 2000, Murphy and six others orchestrated the biggest prison escape in Texas history. Murphy acted as a lookout during subsequent robberies and told the others to leave when police were coming. In one of the robberies, the other men instead shot and killed a police officer. “As Murphy’s execution approaches, state lawmakers are raising concerns about the law,” as are lawmakers across the country, and Murphy’s attorneys said it is “unconscionable” for Murphy to be executed while lawmakers consider changing the law in cases similar to his. His petitions to the Texas Board of Pardons and Paroles and to the courts have failed. If Governor Gregg Abbott does not intervene, he will be executed tonight at 6 local time. [Katie Rose Quandt / The Appeal]

Republican lawmaker in Utah wants to alter criminal penalties to limit deportations: Representative Eric Hutchings plans to introduce a bill that would alter the maximum penalty in Utah for a class A misdemeanor, dropping it from one year to 364 days. A federal law says a conviction that carries a penalty of a year or more in jail is considered an “aggravated felony” and can trigger deportation proceedings, even for those who entered the country legally. The law has been on the books for years but was not frequently used until President Trump took office. “Hutchings said that lowering the class A misdemeanor penalty by one day will help Utahns convicted of low-level crimes—marijuana possession, theft or criminal mischief, for example—avoid the risk of an automatic deportation,” reports the Salt Lake Tribune. “If you’re one of those individuals that got a class A [misdemeanor] and are nonviolent, just because of that one definition in the federal law, you’re swept up in a very big net,” Hutchings said. “Too often we just scoop up everything.” [Jessica Miller / Salt Lake Tribune]

Thanks for reading. We’ll see you tomorrow.

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