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Case points out trouble with eyewitness accounts

By MARTIN DYCKMAN
Published August 7, 2005

TALLAHASSEE - In a trial I once covered here, six white eyewitnesses swore that a black man named David Charles Smith took part in a robbery in which a sheriff's deputy was murdered. All six were wrong.

Smith had an alibi - he was in Washington, not Tallahassee, when it happened - and three other men he had never met had already been fairly convicted of the crime on strong evidence including their fingerprints.

Smith also had a superb defense and jurors who took to heart their instructions on reasonable doubt.

But for the timely tip that led to the three who were guilty, Smith would probably have been convicted and still be in prison 30 years later. There was no DNA to prove he didn't do it.

It is common, not rare, for victims and other eyewitnesses to identify someone who is innocent. It is by far the leading cause of wrongful convictions subsequently overturned by DNA.

In Miami the other day, the state consented to the release of a man, Luis Diaz, who had spent 26 years in prison for four rapes, three attempts, five kidnappings and five robberies for which DNA has now effectively cleared him. Barry Scheck, co-founder of the Innocence Project that promotes DNA exonerations, said it sets a record for the number of mistaken witnesses - eight - in a single case.

Two of the victims had already recanted, but because of a lack of DNA samples in other cases the state attorney was unwilling to say Diaz is entirely innocent. She did the right thing, however, in agreeing to his freedom.

Diaz, 67, had a wife and a three children when his life was destroyed. He still has the children, but his wife long ago married someone else. "They tore a family apart," said one of his sons.

Florida can never settle its debt to them. Payment for his time would be a decent start, but Wilton Dedge, whom everyone concedes was wrongly imprisoned for 22 years, is still waiting for compensation a year after his release. I cannot fathom the hardness of heart that makes an otherwise decent man like House Speaker Allan Bense so callously indifferent to the state's moral responsibility.

Something else that we all can do without our sad-sack legislators - although it would be nice if they did it - is to demand that police agencies reform their lineup procedures. Photographs or live lineups should be shown without the cops clueing victims and witnesses as to whom they should accuse. One victim who had not initially identified Diaz said in 1993 that the police insisted she keep looking at a set of nine photographs that included his. "They told me to look closer at the ones I had," she said.

As I remember the David Charles Smith trial, the witnesses had been shown different sets of photographs which contained only one common element: his picture. The repetitive suggestion was irresistible. Some of them probably believe to this day that the jury was wrong. A few jurisdictions, including the entire state of New Jersey, have mandated "sequential double-blind" lineup procedures in which the officer in charge does not know who the suspect is, the witness is cautioned that the suspect might not even be present, and the witnesses see only one person or picture at a time. Every police chief, every sheriff, should agree to this.

No juror should vote to convict, in a case that depends on eyewitness identification of a stranger, without testimony that the lineups were in fact double-blind.

I do not pretend that this is a magic bullet for miscarriages of justice. There are also problems with false confessions, jailhouse snitches, bad science, occasional misconduct by police and prosecutors and, yes, bad defense lawyering. The root of it all is that the law is made and enforced by people who can't imagine ever being on the wrong side of it themselves or that they would ever make a mistake.

But the unattainability of perfection is no excuse for not doing what can be done to improve the process. That would be the unforgivable sin.

Roy Black, one of Florida's best lawyers, was Diaz's defense attorney 26 years ago. What he had to say the other day is for all of us to take to heart:

". . . Justice in the case has been far too long in coming . . . We should all be troubled by the lessons of this case, troubled over how many more innocents still languish in prison, and troubled that the real criminal in this case remained free, possibly to commit more crimes, because an innocent man was convicted in his place."

Martin Dyckman's e-mail address is dyckman@sptimes.com

[Last modified August 6, 2005, 00:56:02]