Making Eyewitness Testimony More Reliable

      James Womble brought in the new year in 2003 by drinking and smoking crack cocaine for several hours with his girlfriend and a friend, Rodney Harper. In the early morning hours, an acquaintance, George Clark, forced his way into the apartment along with another man to collect money that Harper owed him.
      Clark and Harper argued in a back room while the stranger allegedly held Womble at gunpoint in a dimly lit hallway. From the hallway, Womble heard the gunshot that left his friend Harper dead 10 days later. Clark and the stranger left after Clark warned Womble, “Don’t rat me out.”
      Womble eventually led investigators to Clark, who named Larry Henderson as his accomplice. Womble identified Henderson from an array of eight photos, but only after the investigating officer on the case overcame Womble’s professed uncertainty by telling him, “Just do what you have to do, and we’ll be out of here.”
      At trial — in a scene reminiscent of courtroom dramas both real and fictional — Womble was unshakable in identifying Henderson as his assailant. But in a landmark decision last week [Aug. 24], the New Jersey Supreme Court used Womble’s doubt-strewn identification to order sweeping new changes in the state’s court system to control the use of often unreliable eyewitness testimony.
      The New Jersey court’s unanimous ruling in State v. Henderson will make it easier for defendants to challenge and possibly suppress eyewitness testimony as unreliable. In addition, it will require stronger instructions to jurors about the possible unreliability of eyewitness testimony at the end of or, if needed, during trial.
      Eyewitness testimony is as powerful as it is — in the Supreme Court’s phrasing — “notoriously unreliable.” In one recent experiment, 500 store clerks asked to identify a customer from an array of photos within two days of having seen him were almost as likely to make an incorrect as a correct identification. And twice as many clerks made a wrong identification as those who acknowledged uncertainty.
      The doubts about eyewitness testimony indicated by a host of similar behavioral experiments are confirmed in real life in the U.S. justice system. Out of 250 wrongful convictions uncovered through DNA evidence, 190 resulted from what was belatedly recognized as faulty eyewitness testimony, according to a compilation by Brandon Garrett, a law professor at the University of Virginia, in his book Convicting the Innocent. “It is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country,” Chief Justice Stuart Rabner wrote in the New Jersey ruling last week.
      The U.S. Supreme Court has adopted limited safeguards against eyewitness error. The court in 1967 required counsel to be present at lineups conducted after a defendant’s indictment, but five years later all but nullified the decision by refusing to require counsel at the far more frequent pre-indictment lineups (United States v. Wade, Kirby v. Illinois). In 1977, the court refused to automatically bar identifications tainted by “suggestive” procedures.
      The court in Manson v. Brathwaite ruled that defendants must be allowed to challenge identifications from police lineups, “showups,” or photo arrays. But the justices required suppression of an identification only if the defendant could show “a very substantial likelihood of irreparable misidentification.”
      The New Jersey court’s ruling leaves that demanding standard in place, but gives defendants a better chance to meet it. As applied, the Supreme Court’s rulings require courts to consider whether police procedures were “impermissibly suggestive” but not to look at other circumstances that cast doubt on an identification. And testimony can be used if the witness appears to be reliable and sticks to an identification.
      As the New Jersey court points out, that approach effectively encourages police misconduct. Suggestive procedures such as the officer’s nudge to Womble in Henderson’s case will often make a witness certain of an identification that, in reality, is riddled with doubt. “Courts are encouraged to admit identifications,” Rabner explained, “that have been tainted by the very suggestive practices the test aims to deter.”
      The New Jersey court’s decision will undoubtedly be viewed by many as judicial activism. Rabner explained the decision as an exercise of the court’s supervisory authority over rules of evidence in the state court system.
      To its credit, New Jersey has rules aimed at limiting suggestive police procedures. Womble was given written instructions free of any hint or pressure to make an identification. The state attorney general’s office has guidelines that require identification procedures to be administered by someone other than the investigating officer. As in Henderson’s case, the guidelines are sometimes violated.
      Henderson is now out on parole after serving six years of a 15-year sentence for his conviction on a reduced charge of reckless manslaughter. The ruling gives him a new chance to suppress Womble’s identification and possibly overturn the conviction. The prosecution’s only other evidence was Henderson’s own statement acknowledging his presence but denying any participation in the shooting.
      The U.S. Supreme Court will also consider the use of eyewitness testimony in a case, Perry v. New Hampshire, set for argument in November. But the issue is narrow: whether the “impermissibly suggestive” rule applies to an identification made by a witness before the police investigation. And the Roberts Court majority is hardly inclined to establish safeguards to protect defendants’ rights. But all the justices ought to have an interest in ensuring the reliability of testimony used in criminal cases. That interest is less than well served by the current rules on eyewitness identifications.

Roberts Court Closing Courthouse Doors for Many

      When the Supreme Court adjourned for its summer recess last year, the court’s conservative majority was under fire for having opened the floodgates to unlimited political spending by corporations. The ruling in the Citizens United case seemed to many emblematic of the Roberts Court’s undue solicitude for the rights and interests of corporations.
      This year, the justices left Washington with the court’s conservative majority under fire again for rulings that benefited business interests. The Roberts Court was seen by many as having closed the courthouse doors to ordinary Americans seeking justice for wrongs done to them in the workplace or marketplace.
      “We take so seriously in this country the notion that any person with a claim should have his or her day in court,” said Erwin Chemerinsky, the liberal dean of the University of California-Irvine Law School. “But a majority of the Supreme Court doesn’t seem to believe it.”
      Far from denying the accusation, many of the court’s admirers acknowledge that the conservative majority is deeply skeptical of litigation. The Roberts Court “sees the court system as being overused and misused by whoever’s invoking it,” says Tom Goldstein, Supreme Court advocate and founder of SCOTUSBlog.
      “The Supreme Court is not going to expand existing precedents to allow more litigation,” says Jonathan Adler, a conservative constitutional law expert at Case Western Reserve University School of Law. “You see that across a wide range of areas.”
      As prime examples, the court’s critics cite the two headline-making decisions that will make it harder for plaintiffs to mount broad legal attacks against discrimination in the workplace or corporate fraud in the marketplace. Both decisions — gutting the big sex discrimination suit against Wal-Mart and barring a class action by cell phone customers against AT&T — came on 5-4 votes that pitted the court’s conservative majority against the liberal bloc.
      A review of the full term confirms Adler’s point that the court’s aversion to litigation runs across many areas. The victims of the court’s attitude come from all walks of life. A blue-collar worker in New Jersey injured on the job by an allegedly defective machine is told he must sue the manufacturer in England. Women in Louisiana and Minnesota suffering from a debilitating side effect of a prescription medication are blocked from suing the drug makers. A Louisiana man wrongfully convicted of murder because of prosecutorial misconduct loses his bid to hold the district attorney’s office liable
      Prison inmates will not be allowed to recover damages for violations of their religious rights. Anyone detained by the government using the material witness statute as a pretext cannot recover for loss of liberty. Taxpayers will find it harder to challenge government tax policies that breach the separation of church and state.
      The cases that reach the Supreme Court are rarely open and shut, so there are two sides to each of these cases. Some turn on dissection of federal statutes, others on application of Supreme Court precedents. Some are by 5-4 votes, others by a broader majority. But they share a common theme. The Roberts Court sees no need to read laws and interpret past decisions when possible to open the courthouse door and assure plaintiffs a viable path to legal remedy.
      The ruling in Wal-Mart Stores, Inc. v. Dukes raises the burden on plaintiffs in a job discrimination case to produce evidence of a company’s wrongdoing at a preliminary stage or pursue the suit through individual complaints instead of a class action. The decision in AT&T v. Concepcion gives businesses a roadmap to enforce arbitration clauses in preprinted consumer contracts that consign a defrauded customer to individual instead of classwide arbitration. The majority in each case was indifferent to the likelihood that many workers or consumers would never be able to take their claims to court.
      The injured worker in J. McIntyre Machinery, Ltd. v. Nicastro was blocked from suing in New Jersey by a 6-3 majority blind to the English manufacturer’s business-seeking in the United States. The 5-4 majority in PLIVA, Inc. v. Mensing read federal drug regulations so woodenly as to exempt a generic drug manufacturer from any ongoing duty to warn users of side effects. The 5-4 majority in Connick v. Thompson rejected evidence from the wrongfully convicted plaintiff that disregard of an important constitutional rule was standard practice in the Orleans Parish district attorney’s office.
      In Sossamon v. Texas, the 6-2 majority held that a federal law providing state prisoners “appropriate relief” against state governments for violations of their religious rights does not allow monetary damages as one of the possible remedies. A five-justice majority in Ashcroft v. Al-Kidd gave the government carte blanche to use the material witness statute to jail someone when there is not enough evidence for an arrest. In Arizona Christian School Tuition Organization v. Winn, the 5-4 majority repudiated a line of decisions allowing taxpayers legal standing to challenge tax policies as violations of the Establishment Clause.
      The court’s admirers find these rulings sound examples of judicial restraint. But the court-made rules created in these decisions also reflect a conscious policy preference that is at tension with the inscription above the Supreme Court’s doors: Equal Justice Under Law.

Fighting for Puerto Ricans' Voting Rights

      Gregorio Igartua voted in the 1976 presidential election, but not in any federal elections since then. But it’s not for lack of trying.
      Igartua, a lawyer in Puerto Rico, has waged a two-decade legal battle to try to win voting rights for himself and the rest of the island’s 4 million U.S. citizens. He voted in Virginia in 1976 while going to law school, but once back in Puerto Rico he lost the right to vote for president or for a voting member of Congress.
      Once, in 2000, Igartua got close. A federal judge in Puerto Rico ruled (in a case now called Igartua II) that Puerto Ricans could vote for the U.S. president. Two million ballots were printed for the Bush-Gore race. But five days before the election, the First U.S. Circuit Court of Appeals reversed the ruling. The ballots, Igartua recalls, were destroyed.
      Igartua’s latest setback came last week [Aug. 4] when the Boston-based First Circuit refused on a 3-3 vote to reconsider a three-judge panel’s decision in November rejecting his suit to win Puerto Ricans the right to elect voting members of the U.S. House of Representatives. A motion for an en banc rehearing before the full court requires a majority vote.
      For some of the judges on the appeals court at least, this is a very simple case. The Constitution provides that the House of Representatives “shall be composed of members chosen . . . by the people of the several states” and the Senate of “two senators from each state.” Puerto Rico is not a state.
      “The text of the Constitution does not permit plaintiffs to vote for a member of the U.S. House of Representatives,” Chief Judge Sandra Lynch wrote in the Nov. 24 decision in what has to be called Igartua IV. “It cannot, then, be unconstitutional to conclude the residents of Puerto Rico have no right to vote for Representatives.”
      Eight months later, Lynch vented a little impatience as she and colleagues Michael Boudin and Jeffrey Howard voted to reject Igartua’s motion for rehearing. The issues, including a claim brought under the International Covenant on Civil and Political Rights, had been fully considered — and rejected — six years earlier, Lynch wrote.
      “Our en banc decision in Igartua III controls this case,” Lynch wrote in a five-paragraph opinion. She noted that a federal appellate rule “disfavors . . . continual en banc reviews to re-examine already settled issues.”
      Despite the putdown, Igartua takes heart from the tie vote. “Every time there is an opinion, more evidence arises saying that I am right,” he says.
      The strongest support for Puerto Rican voting rights comes from Judge Juan Torruella, the lone Puerto Rican on the court. “This is a fundamental constitutional question that will not go away notwithstanding this court’s repeated effort to suppress these issues,” Torruella wrote in November.
      More significantly, Judge Kermit Lipez, a Clinton appointee, wrote in November and again last week that he has changed his views on the issue since the en banc ruling in 2005. After describing voting rights for Puerto Ricans as “a compelling legal problem,” Lipez said in November that he is now convinced that the Constitution “may permit their enfranchisement” under some other source of law.
      Lipez joined the 2-1 decision rejecting Igartua’s suit then, but called for reconsideration by the full court — and voted in favor of rehearing last week. A third judge, O. Rogeriee Thompson, joined in voting for rehearing — “more briefly but no less vehemently,” he said, than Torruella and Lipez.
      Based on population, Puerto Rico would be entitled to five House members instead of the non-voting “resident commissioner” who now represents the commonwealth’s interests in Washington. The 600,000 people who live in Washington, D.C., can empathize. The District of Columbia is represented in Congress by a non-voting “delegate.” But the Twenty-Third Amendment, ratified in 1961, did grant Washingtonians the franchise in presidential elections.
      The majority judges note the option of a constitutional amendment as the prescribed route for Puerto Ricans on this issue. But turning to the Constitution ignores Torruella’s main point. The framers could never have contemplated the United States exercising sovereignty over a territory for a full century — and treating it for most purposes as a state — without granting constitutional rights. In any event, Puerto Ricans are shut out of the amendment process that the court’s majority points to as their remedy.
      Still, Igartua and the judges siding with him face significant obstacles. Puerto Ricans have hurt their cause by rejecting full statehood, most recently in 1998, when a bare majority voted for “none of the above” (independence, commonwealth, or statehood). The appeal to the international covenant on political rights collides with the Senate’s formal declaration that the pact is not self-executing and with the Roberts Court’s recent refusal to give binding effect to other treaties.
      Igartua’s next stop is the Supreme Court, which he notes now includes a justice of Puerto Rican background: Sonia Sotomayor. But the road is uphill. When the Supreme Court was asked to grant Washington, D.C., voting representation in Congress in 2000, the justices turned the case down in a summary ruling without written opinion or dissenting vote.