Picking Cotton: 60 Minutes looks at memory and false identification

Jennifer Thompson knew she had identified her rapist.  He had a criminal record.  His alibi didn’t check out.  Physical evidence from the scene appeared to match his footwear.  Most importantly, she had studied her assailant carefully during the assault so that, if she survived, she could put him away.  She knew what he looked like–his face haunted her dreams.  When the officer spread out pictures of six black males Jennifer’s finger moved to the picture of Ronald Cotton.

But Jennifer got it wrong.  Those of you who caught this remarkable story on 60 Minutes last night know why.  Memory is fragile and vulnerable to suggestion.  This explains why DNA evidence has exonerated hundereds of innocent people nationwide.

You will be moved by Lesley Slahl’s report on this story (you can get a text version of the story here).  But there’s a problem.  Everyone knows that most victims of false identification and prosecutorial misconduct are never exonerated.  DNA evidence figures in only a tiny fraction of criminal cases.  Whenever we convict an innocent person the real perpetrator is free to strike again.

What can be done to prevent wrongful convictions in cases that don’t involve viable DNA?  

Without DNA there is no way to prove to an absolute certainty that a miscarriage of justice has occurred.  And it is the force of blinding certainty that gives Lesley Stahl’s story about Jennifer and Ronald it’s raw power.  Because all doubt has been removed, the victim can acknowledge her mistake and receive forgiveness from the man she falsely accused. 

Without unassailable evidence of innocence, there is no way to achieve that kind of satisfying narrative resolution.

Unfortunately, the era of post-conviction DNA exonerations is drawing to a close.  In Dallas County, for instance, most of the old DNA evidence has already been tested.  Without a steady supply of exoneration stories the wrongful conviction issue will fade from public awareness. 

The only solution is for groups like Friends of Justice to intervene at the pre-conviction stage in actual cases where the building blocks of wrongful conviction are clearly on display.  We can’t say the guy is innocent with absolute certainty; but we can argue persuasively that the State is gunning for a conviction in a case built on shakey eye witness testimony and circumstantial evidence. 

Many cases go to trial because the State refuses to admit that they don’t have a strong suspect.  This is particularly true in the wake of heinous crimes where the public is screaming for justice. 

Prosecutors often pick the most likely suspect they’ve got and shape the evidence to fit.  It’s like Colin Powell at the United Nations: lots and lots of less-than-impressive evidence skillfully presented.  None of it is very convincing by itself but the cumulative impact is overwhelming.  There must be WND’s!  The suspect must be guilty! 

There was a way to test Mr. Powell’s WMD hypothesis without invading Iraq.  Similarly, justice advocates can challenge wrongful prosecutions as they unfold without smoking-gun evidence of actual innocence.  When the risk of wrongful prosecution is too high, prosecutors need to live with a question mark.  In the next few weeks you will learn about a bizarre case in Mississippi that is splitting an entire community down the middle.