Alan Crotzer, walking free with his attorneys Sam Roberts (left) and David Menschel (right), on January 23, 2006, after 24.5 years of wrongful incarceration.

Congrats Alan on six years of freedom.

In the Commission’s Interim Report, released last June, the Commission’s Chair Judge Perry Belvin Jr. wrote, “we cannot ignore what must be done in order to improve our ever-evolving criminal justice system.  We must continue to be vigilant in seeking and maintaining the spirit of cooperation between the courts, law enforcement, and other agencies in identifying issues and implementing solutions.” I find this remark to be particularly poignant and important, and think that it highlights a critical component of legal reform. Right now the justice system is critically flawed because of the refusal of many parties involved in that system to change and adapt. Because law enforcement agencies have not changed their lineup procedures (at least not on a broad scale), we still see countless eyewitness misidentifications. Because of all of the hoops and regulations required to qualify for DNA testing, countless innocent people have been stuck in prison without a way to prove their innocence. It is of the utmost importance that we continue to evaluate the way our justice system is working and adapt to the changes that come with time. While the Florida Innocence Commission is certainly a step in the right direction, a commission lasting a couple of years doesn’t provide the kind of constant oversight that our system seems to need.

It could be said that organizations like the Innocence Project, the Innocence Project of Florida and the other members of the innocence network provide that oversight, and in a way they do. But these organizations treat the symptoms of the problem, not the causes. The justice system requires reform so that we no longer need organizations like the Innocence Project on such a broad scale.

The Better Government Association partnered last year with the Center on Wrongful Convictions in Chicago to orchestrate a study on Wrongful Convictions, and their final product is truly inspiring. The High Costs of Wrongful Convictions project provides comprehensive information on wrongful convictions and why they happen, numbers revealing their prevalence, as well as suggestions for reform to prevent wrongful convictions. This project is a great example of what the Florida Innocence Commission could strive for in their final report this coming June.

Keep looking for updates on the upcoming Commission meeting, and hopefully on reforms based on the Commission’s recommendations!

The State’s Attorney who made the decision, Anita Alzarez, said that she made the decision to dismiss the charges because the State does not have enough evidence to meet their burden of proof. Alzarez did not say she thought the four men were innocent.

All four men expressed excitement about getting to return to their normal lives after hearing the decision. See an interview with them.

Not surprisingly, both the District Attorney’s office and other law enforcement offices support this plan. But according to an article in the Poughkeepsie Journal, “civil libertarians oppose the legislation because they believe it would infringe on people’s rights and they don’t think there is enough oversight and quality control in the system.”  While the focus of this proposed expansion seems to be that an expanded DNA database would allow for greater and more effective prosecution, the revelation of wrongful convictions that this would bring about was also mentioned. Read more here.

A week has passed without any movement on William Dillon’s Compensation Bill. The bill was passed by the Senate last week, and was read in the House last Tuesday but has made no progress since then. We’re hoping that the House will take up and pass this bill soon, to get Dillon the compensation owed to him.

Thomas E. Haynesworth of Richmond, VA, is facing a similar battle with obtaining the compensation that he expected after serving 27 years for a rape he did not commit. Haynesworth has received a proposal for a compensation package, one that could potentially be worth more than $800,000, but he was disappointed with this amount. In Virginia, exonorees are not entitled to compensation but must have that compensation approved by the General Assembly. They may receive up to $40,000 per year served in prison, but there is a cap of 20 years. So, Haynesworth cannot receive compensation for the full amount he time he spent as an innocent man in prison. While this situation is not ideal, Haynesworth is lucky at least to be dealing with this issue in Viginia, one of only 27 states that provides compensation to their exonorees. Read more here.

The truth is that there is always a very substantial likelihood of irreparable misidentification. Eyewitness misidentifications are the leading cause of wrongful convictions, and there is 30 years of social science evidence proving that eyewitnesses often make mistakes, according to the Innocence Project.

This new opinion upholds previous decisions from cases such as such as Neil v. Biggers, 409 U. S. 188 (1972) and Manson v. Brathwaite, 432 U. S. 98, 111–112 (1977), and keeps the due process test restricted only to errors made by law enforcement officers.

While Ginsburg said that eyewitness testimony is no different than any other potentially flawed testimony, that is simply false. Eyewitness testimony is different than other types of evidence. Humans, especially those under pressure, make mistakes. Further, this opinion seems to ignore the weight with which eyewitness identifications are held by most juries. These identifications tend to be extremely convincing with juries, and as a result held as more reliable or valuable than other evidence. These facts show that eyewitness IDs are in fact different than other types of testimony and evidence, and should thus be treated as such.

In taking up this case, according to the Court’s opinion, they sought “to resolve a division of opinion on the question whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police.” Given that even eyewitness identifications made under the best of circumstances are frequently flawed, it seems only logical to conclude that, of course, preliminary assessment of reliability should occur.

The Court’s decision also highlights the fact that the Constitution precludes defendants from convictions based on unreliable evidence not by refusing to admit that evidence but instead by providing them the means to persuade a jury of the unreliable nature of that evidence.  It is necessary here to return to the fact that juries look at eyewitness testimony as exceedingly compelling, and as a result this sort of evidence must be treated with the utmost care. Moreover, the aforementioned social science and America’s more than two-decade-long experience with DNA exonerations, demonstrate that the due process standards announced in Neil and Manson are simply inadequate to weed out bad IDs before trial and that juries just don’t have the knowledge or skill set to discount them during trial.  Thus, under the current regime upheld in this case, defendants have a very small chance of preventing the jury from hearing an identification or being able to convince a jury of the invalidity of eyewitness testimony once it comes in.

One of the big issues in this case deals with the jury’s right to weigh the credibility of witnesses against one another, a tenant that our legal system is based upon. Would instituting a rule requiring judges to complete pretrial screenings of eyewitness evidence every time an eyewitness identification impinge on the jury’s right to determine the weight and reliability of the testimony themselves? The Supreme Court seems to think so, yet based on empirical social science research it seems unfair to allow unchecked eyewitness testimony into the courts on such a broad scale. The opinion addresses the use of jury instructions to institute a level of fairness into the use of eyewitness identifications, but again the evidence shows that this testimony has an exceptionally powerful impact on juries. A possible remedy for this issue is the use of expert witnesses in explaining to a jury the issues with eyewitness identifications.

Justice Sonia Sotoymayor dissented from the Court’s opinion, and her dissent echoes all of the above issues. Sotomayor summarized these by saying, “this Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury,and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial.”

Unfortunately, Sotomayor’s opinion was not the majority opinion of the Court, and the status quo set forth by preceding cases remains, leaving eyewitness identifications as largely admissible in spite of their tendency to hinder the justice system.

The real question is what does this mean for the reform of identification procedures and law surrounding identifications sought by the Innocence Movement.  Will law enforcement, prosecutors and courts simply point to Perry and say “well, the Supreme Court doesn’t think there is a problem so why should we?”  Only time will tell.

Four bills, all dealing with the death penalty, will be looked at during this legislative session. Three bills deal with the way the juries decide on giving the death penalty. Senate Bill 772, sponsored by Senator Thad Altman, Senate Bill 352, sponsored by Senator Oscar Braynon, and House Bill 29, sponsored by Representative John Patrick Julien all seek to require a unanimous decision by the jury to send someone to death row. Currently, Florida is the only state in the nation that allows people to be sent to death row with a simple majority vote. Someone convicted of a capitol offense can be executed with a vote of 7 to 5. The three above bills would change that and bring us in line with other states and make the justice system more fair.

The fourth bill is House Bill 4051 and is sponsored by Representative Michelle Rehwinkel Vasilinda. The bill seeks to abolish the death penalty in Florida.

While the Innocence Project of Florida does not take an official stance on the death penalty, we hope that you will call your senators and representatives and encourage them to support these bills. In a system that so often gets it wrong giving the death penalty by simple majority is risky.

The Innocence Project of Florida also has some exciting events coming up in the next several months. On January 19 from 2-4 p.m. Seth and one of our exonorees, Alan Crotzer, will be at the Selby Library in Sarasota, FL, speaking about the Innocence Project of Florida and Alan’s experiences. On April 26 the Innocence Project will hold Steppin’ Out with the Innocence Project of Florida, its first annual gala. The gala will be held at the Four Seasons Hotel in Miami, and will honor IPF’s exonorees and several other special guests. More information is here.

In her letter, Rep. Vasilinda cites a 2000 Palm Beach Post(PBP) report, “The High Price of Killing Killers,” which includes astronomical figures related to state-sanctioned executions. According to the report, Florida spent “approximately $51 million each year to enforce the death penalty.” While more than a decade has passed since the publication of the PBP report, the figures are certainly still relevant. While the cost of living in Florida has risen substantially since the publication of the article, it stands to reason that costs associated with state-approved executions have also risen dramatically.

With the $51 million spent on executions, the State of Florida could, maintains Rep. Vasilinda, “put 850 law enforcement officers on Florida’s streets, as well as add more Florida Department of Law Enforcement (FDLE) investigators and equipment to our arsenal against crime.” A sentence of life in prison without parole allows, she argues,  “mistakes” to be corrected or new evidence to “come to light, serving to increase faith and fairness in our justice system.” Some “mistakes,” despite a myriad of “safeguards” are, of course, irreversible. This factor alone makes a moratorium on executions worthy of consideration.

A moratorium on capital punishment in Florida is long past due and sorely needed. Let us hope that Rep. Vasilinda’s bill to repeal the death penalty in Florida will reach the hearts, souls, and sensibilities of elected officials who, during this legislative session, are in positions to make a change in the way the State of Florida conducts business.

This bill seeks to provide Dillon with $1.35 million, and while no monetary amount can make up for the decades that Dillon lost as a result of the flawed justice system it would certainly be a step in the right direction. Many people think that getting out of prison is the hardest part of wrongful conviction battles, but in reality the exonorees’ struggles follow them out of the jailhouse doors. How is someone who spend nearly thirty years in prison supposed to adjust to a world full of computers, cell phones, facebook? How are they supposed to get a job with a decade-long gap in their employment history? And how, then, are they supposed to survive without any savings or any way to earn a living? This bill, and other compensation bills, gives the exonorees a fighting chance once they are freed.

Senate Bill 2 was overwhelmingly passed and is now in the hands of the Florida House of Representatives. A similar bills was passed in the Senate last year, but did not make it through the House.

My eyes are now on the House with fingers crossed that they will get it right this time and give Dillon the compensation that he so rightfully deserves.

Seth Miller, Executive Director of the Innocence Project of Florida, will discuss the causes of wrongful convictions, the potential corrective actions that may prevent future wrongful convictions and our work to find and free innocent people in Florida prisons and help them rebuild their lives.

Seth will be joined by Florida DNA exoneree Alan Crotzer who spent 24.5 years locked away for a crime he did not commit before DNA testing proved his innocence. Alan was exonerated in January 2006 and has become a sought-after speaker and advocate for criminal justice reforms.

Please join us to learn more about the work of the Innocence Project of Florida and hear Alan’s story of perseverance and strength.

Why exactly is it that witness misidentifications are so prevalent? The answer, frankly, is simple, and can be seen in social science research that has been conducted over the past 30 years. The Innocence Project makes a comparison between the human mind and tape recorders, asserting that the human mind is clearly not capable of taking in, processing, and recording exact details and events the way that a video camera or tape recorder can, and for that reason alone human memories should be taken as possibilities, not facts. Further, witnesses often experience some level of victimization as a result of being so closely involved with crime, and anyone who has been a victim of a crime can attest to the way that victimization affects one’s memory.

For a more engaging way to see the flaws of human perception and memory, watch this video. If you read ahead before watching, you’ll cheat yourself out of the experience!

Don’t read ahead…watch the video first.

Did you notice the moonwalking bear? I know I certainly did not when I first watched the video, but after viewing it again I cannot imagine how I missed it. If the human mind isn’t able to notice something so different while sitting in a calm, controlled environment, then how can it possibly be expected to register events under the stress undergone when watching a crime take place?

All of these things said, however, witness identifications and testimonies can be useful and powerful tools of the criminal justice system, if used correctly. There are a variety of steps that could be taken to decrease the probability of misidentification. Most of these measures could be implemented easily and with little to no cost to law enforcement, the legal system, or taxpayers.

Use of a double-blind procedure in orchestrating lineups could seriously cut down on accidental or intentional influencing of witnesses. This double-blind would ensure that neither the administrator or the lineup nor the witness would know which individual was the suspect. There is also a lineup protocol currently endorse by Northwestern Center on Wrongful Convictions, The National Association of Criminal Defense Lawyers, and the MacArthur Justice Center that, in addition to using a double-blind procedure, presents suspects sequentially as opposed to placing them all side by side. This method is said to reduce the tendency of witnesses to make relative judgements about the suspects, which can often lead to misidentifications.

These methods are incredibly simple to implement and cost little-to-nothing to implement. If law enforcement agencies nationwide were to adopt these methods, they could seriously decrease the largest cause of wrongful convictions. In April of last year the Florida Senate passed a bill known as the Eyewitness Identification Reform Act. This bill would have implemented the above procedures and would also have instituted the use of educational materials and training for law enforcement officers regarding how to conduct a lineup, as well as a standard set of instructions for eyewitnesses before viewing the lineup. Unfortunately, the bill stalled and was ultimately withdrawn from consideration in the House of Representatives. Unfortunately, there is not a similar bill being proposed during this legislative session. I guess the citizens of Florida will have to wait until next year.