Eyewitness Reliability And Troy Davis Part II

Yesterday, I wrote that, by taking up the Perry v. New Hampshire case, the Supreme Court had acknowledged the ongoing problem of unreliable eyewitnesses testifying in our courts.  Thousands of studies have reiterated that eyewitness testimony is a particularly untrustworthy form of evidence. But after reading accounts like this one of yesterday’s oral arguments in that case, it appears that, even if the Justices recognize this problem, they don’t think it matters much.

In fact, the prevailing attitude seemed to be that letting any unreliable evidence into trials doesn’t matter too much, because juries will sort it all out.  The Justices have in their hands an expert affidavit from the American Psychological Association that explicitly states: “juries tend to ‘over believe’ eyewitness testimony”. But the Court still seemed to oppose what Justice Kennedy called “invading the province of the jury.”


Reliability of Eyewitness Testimony: What We Learned From Troy Davis

Brenda Forrest, one of the jurors who convicted Troy Davis and sentenced him to death, told CNN that in 1991 she believed: “He was definitely guilty.  All of the witnesses, they were able to I.D. him as the person who actually did it.”

justice scalesHowever, years after the trial, Forrest backtracked as the case against Davis began to unravel, and went on to say that, knowing what she knows now about the witness recantations,  she would have voted to acquit Davis of the crime for which he was put to death September 21.

Eyewitnesses do seem credible to jurors.  After all, they were there.  And back in 1991 when Troy Davis’ fate was being decided, eyewitnesses seemed credible to courts too.  Not so much any more.  Decades of studies have exposed how shaky human memory is, and how little eyewitness evidence should be trusted. Ironically, for Davis, this meant that a form of evidence deemed reliable enough to convict him in 1991 was considered too untrustworthy in 2010 to be considered “clear and convincing” proof of his innocence.


Troy Davis And Faulty Witness IDs

In this picture, the tiny figure in the parking lot across the street is approximately where Troy Davis was, and the camera is approximately where Dorothy Farrell was, when, according to her trial testimony, she saw his face at 1:30 am. (She, like most of the witnesses, has since recanted).

© Jen Marlowe

“[J]uries tend to ‘over believe’ eyewitness testimony”. So says the American Psychological Association in its amicus brief  for an upcoming U.S. Supreme Court case.  And Adam Liptak in the New York Times writes:

“ … it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.”


Kevin Keith and the Witness Who Wasn't There

A man faces execution despite a strong claim of innocence.  With a conviction based on deeply flawed witness testimony, and emerging evidence pointing to an alternative suspect, doubts about his guilt continue to grow.   Yet Kevin Keith is scheduled to be put to death by the state of Ohio on September 15.  He has a clemency hearing on August 11, and he is still hoping for a court to grant him a new trial, but time is slipping away.   It is important to ACT NOW! 

Amnesty International opposes all executions, but even death penalty supporters should be concerned when serious claims of innocence have not been heard, and serious doubts about guilt have not been resolved.

Kevin Keith has been on death row since 1994, when he was convicted of the murders of Marichell Chatman, Marchae Chatman, and Linda Chatman. The night of the shooting, Marichell’s two young cousins, who were also shot, survived. One of them, Quanita Reeves, told the police that the gunman was one of her father’s friends and not Kevin Keith.

The prosecution’s case relied on the nurse of a third survivor, Richard Warren.  Police testified that the nurse, Amy Gimmets, said that Warren had given her the name ‘Kevin’. Slight problem:  in 2007, through a comprehensive search of hospital and Ohio records, it was discovered that Amy Gimmets never existed. Amy Whisman, Warren’s actual nurse, was not told who the gunman was, and Richard Warren initially told four people he did not know who the killer was.  Kevin Keith’s attorneys have looked into Warren’s identification of Kevin Keith, and concluded that it was tainted by many factors, including a highly suggestive photo line-up where Mr. Keith’s face appeared larger than the others.

No court has ever had the entirety of new evidence before it. Some of the new evidence has been time-barred and therefore has never, and may never, be heard on its merits by any court. If Kevin Keith does not get the new trial he deserves, it is imperative that he be granted executive clemency.  No one should ever be executed, but, surely no one should be executed under these circumstances.