Jurors, heed this advice

Jurors, heed this advice

St. Petersburg Times - St. Petersburg, Fla.
Author: MARTIN DYCKMAN
Date: Aug 29, 2004

Some decent Floridians who were only doing their civic duty awoke recently to the sickening news that, thanks to them, an innocent man had spent 22 years in prison. The rape victim on whose testimony those jurors relied surely feels just as badly about it, if not more so.

I wish I could tell you that the people responsible for Florida's criminal justice system were equally chagrined by what happened to Wilton Dedge, 42, who spent more than half his life in prison before DNA evidence exonerated him. But the silence from public officials, apart from a very few, speaks volumes.

So if Florida is ever to stop sending so many innocent people to prison, it will have to be the jurors - that's us, folks - who assume the responsibility.

This, then, is a primer for fellow prospective jurors. Clip and save it against the day when the letter comes to call you to the courthouse.

Rule one: Don't bet the defendant's life or liberty on eyewitness identification. The mind plays cruel tricks. That two or more eyewitnesses agree doesn't necessarily make them right.

A University of Michigan review of 328 exonerated prisoners nationwide, published last year, found eyewitness error, often by victims, in nearly two-thirds of the cases.

Rule two: Remember that even innocent people can be persuaded to confess. Among the exonerated murder defendants in that study, nearly half the juveniles and 70 percent of the mentally retarded or mentally ill had falsely confessed.

Rule three: Never, never, never believe a jailhouse snitch, unless there is a lot of hard evidence to back him up.

The Michigan study found that perjury by co-defendants, snitches and other police informants was the leading cause of false murder convictions. One of these was a death row case in Illinois, where a blue-ribbon commission later sounded a special warning about "in- custody informants," the polite term for jailhouse snitches.

Florida prosecutors used a snitch, convicted murder conspirator Clarence Zacke, to send Dedge back to prison after he had won a new trial. Because Zacke claimed Dedge not only admitted the rape but threatened the victim, his new sentence was increased from 30 years to life. The DNA evidence that freed Dedge proved Zacke lied. Just because prosecutors want to believe thugs like Zacke doesn't mean jurors need to believe them too.

Rule four: Don't count on DNA to avoid or rectify a horrible mistake. It's commonly found only in rapes and in some murders, where the forensic evidence includes semen, blood, saliva or tissue.

False convictions, the Michigan study found, "may well be at least as common for other crimes of violence, especially robbery." Unfortunately, without DNA, they are a lot more difficult to undo.

There are psychologists and other experts who specialize in the reasons why victims and other eyewitnesses are often stupendously wrong. Among the most eloquent experts is a nonprofessional, Jennifer Thompson of North Carolina. Her first-person story appeared in this newspaper in June 2000.

A rape victim herself, like the woman in Dedge's case, she was so sure her attacker was a man named Ronald Cotton that she testified against him in two trials and saw him sent away for life. At the second trial, the defense produced another man, Bobby Poole, who had bragged in prison that he, not Cotton, had done it.

"I have never seen him in my life," she said. "I have no idea who he is."

Ten years later, after DNA testing became available, the police detective and the prosecutor came to her home. "Ronald Cotton didn't rape you," they said. "It was Bobby Poole."

When the Innocence Project told her about Dedge's exoneration, Thompson offered to write to the Florida rape victim, "who I am sure is experiencing pain beyond words."

What, I asked, would she say?

"I would tell her to figure out a way to forgive herself," Thompson said. "I'm sure her identification was completely without malice . . . with good intentions. Honestly, in her heart of hearts, she thought she was putting away the person who raped her. The sad thing, the really sad thing, it's so easy to do."

Thompson was at a press conference in Michigan, regarding another case, when Gary Wells, an Iowa State University psychologist who has been called "the dean of eyewitness research," was explaining how such things happen.

"I thought, 'Oh my God, that's exactly what happened,' " said Thompson.

"It was so clear, what he said about being in a trauma situation, how the mind is not a video recorder, how any type of verbal and nonverbal clues can be very persuasive and how contamination takes place in memory. Six hours, six days or six months later, you're put in front of photos and all of a sudden your memory becomes contaminated."

From her verbal description, a police artist had composed a sketch of her attacker.

"At that moment," Thompson said, "that drawing became my attacker, which led to a photo, and once I identified a photo, that photo became my attacker, and Ronald Cotton became my rapist."

Thompson apologized to Cotton but didn't leave it at that. She worked with him to change North Carolina's law so that exonerated prisoners would be paid $10,000 for each year in prison rather than the $500 a year the state then provided. It's now $20,000 a year. If that does not seem like much, it's $20,000 a year more than Florida pays.

Tallahassee is not totally tone-deaf. I discussed the Dedge case with state Sen. Rod Smith, a Gainesville Democrat and a former state attorney whose expertise the Senate values. His former colleagues in the prosecution business need to listen to him too.

"Give me a good circumstantial case where I can put lots of physical evidence together and I sleep well at night. Give me an eyewitness case alone, and I'm awfully concerned," he said. "Eyewitness evidence is the least reliable form of evidence under most circumstances."

"Eyewitness testimony is the most frightening thing you get as a prosecutor," agrees Rep. Dan Gelber, D-Miami Beach, a former assistant U.S. attorney.

But the last word from the Florida Supreme Court on this subject, six years ago, was outrageously wrong. In a 5-2 decision, it held that it is entirely up to the "sound discretion" of the trial judge whether to let a jury hear expert testimony on the fallibility of eyewitnesses. The man who lost that case, which depended largely on eyewitness testimony unsupported by any other evidence, is still serving a 30-year sentence.

Justices Harry Anstead and Gerald Kogan dissented. Kogan, now retired, said last week that the Dedge case points up not only the fallibility of eyewitnesses and the unreliability of snitches but also the reasons why prosecutors should not fight, as they did against Dedge, to keep DNA from being analyzed.

That's an important point, because Florida law now guarantees DNA testing only for incarcerated prisoners who did not plead guilty or no contest, as even innocent people sometimes do.

"The state should never under any circumstances fight DNA testimony . . . but they do," Kogan said. "And they do it for a very good reason, because deep down inside maybe they're worried that they made a mistake. . . . They'll fight it to preserve the conviction because they don't want to admit, God forbid, that they made a mistake."

That, ladies and gentlemen of the jury, is why it's up to you.

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Abstract (Document Summary)



Florida prosecutors used a snitch, convicted murder conspirator Clarence Zacke, to send [Wilton Dedge] back to prison after he had won a new trial. Because Zacke claimed Dedge not only admitted the rape but threatened the victim, his new sentence was increased from 30 years to life. The DNA evidence that freed Dedge proved Zacke lied. Just because prosecutors want to believe thugs like Zacke doesn't mean jurors need to believe them too.

Justices Harry Anstead and Gerald Kogan dissented. Kogan, now retired, said last week that the Dedge case points up not only the fallibility of eyewitnesses and the unreliability of snitches but also the reasons why prosecutors should not fight, as they did against Dedge, to keep DNA from being analyzed.