The final Duke photographic lineup and some thoughts on Tulia, Texas

Chapter 13 in the book “Race to Injustice: deals with eyewitness-identification procedures. The authors are Gary L. Wells, Brian L. Cutler, and Lisa E. Hasel, and the first two authors helped to develop the procedures that Durham adopted prior to the lacrosse case as well as serving as consultants for the defense. With respect to the final array of photographs on April fourth, the authors write, “The repeated presentation of certain suspects’ photos is obviously egregious; ironically, existing recommendations for proper identification procedures have spent little time discussing this issue…precisely because it seems so obvious.” The American Psychology-Law Society and the North Carolina Innocence commission both recommend against showing the same faces multiple times, and for doing the lineup in a double-blind fashion (meaning that the officers in charge of presenting the photos should not know who the suspects are).

Recently a commenter here claimed that the lineup was not to identify her alleged attackers but rather to help her recall who was at the party. However, even if this rationale were true, it would still violate the recommendation on not showing faces multiples times put forth in the chapter by Wells, et al. Moreover, once Ms. Mangum picked certain individuals in the photos, I would predict her to identify them in a trial based on her memory of the photos. In stark contrast to the views of these authors, Professor Irving Joyner of North Carolina Central University and case monitor for the NCNAACP (http://www.usatoday.com/news/nation/2007-02-27-duke-race_N.htm), says “as long as she can identify the men in court, the photo lineup is ‘really unimportant.’" Her identifying them would be enough to "support" a verdict of guilty in a rape case in North Carolina (“Until Proven Innocent,” p. 379), meaning that the jury could have convicted Reade Seligmann and Collin Finnerty, both of whom had alibis for the time in question.

This is where the conviction of some forty-six putative drug dealers, most of whom were black, in Tulia, Texas, a town of about five thousand might be discussed for comparison. The story of the mostly wrongful convictions is the subject of a documentary (“Tulia, Texas”) aired as part of the Independent Lens series on PBS in February of 2009. The convictions were based entirely on the word of one undercover cop in the absence of other witnesses or corroborating fingerprints. Curiously when this film premiered in Wilmington in November of 2008, a representative from the WPD mentioned the Duke case in passing, when discussing whether a case like Tulia could happen here. In assessing the motives of the now discredited policeman, it is fair to point out that the professional rewards for exaggerating the number of drug dealers was considerable.

An exacerbating factor in both the Duke case and the Tulia case is the role of stereotypes. The first defendants in the Tulia case faced an all-white jury, and one can speculate that the stereotype of blacks being more likely to use and deal in drugs played a part in these convictions (http://www.texasobserver.org/article.php?aid=611). Likewise it was easy to believe the early story of jocks gone wild because it played into a picture of rich, white men of privilege doing whatever they pleased. The combination of a low threshold for conviction and stereotyping the defendants would seem to be synergistic in its ability to generate miscarriages of justice.

However, there were differences between this case and the Duke case, the first being that a few of the Tulia defendants were able to produce alibis and had their charges dropped. Another difference is that poverty and the use of long prison sentences against the first defendants caused some of the rest to accept plea-bargains. Finally, one area of both similarities and differences is the role of the press. Attorney Jeff Blackburn noted, “The only say we had was in the press. Mr. Blackburn, who hired a private investigator out of his own pocket, also said, “We had to go outside [the legal system], to the press. I’m glad that we had the allies that we did. [Otherwise] it would have been swept under the rug.” The allies to which Mr. Blackburn referred included the ACLU of Texas, the William Kunstler Foundation, and the NAACP legal defense fund (http://www.forejustice.org/wc/tulia_travesty.htm). The Tulia case illuminated the positive role the press has to play when someone is wrongfully convicted. In the Duke case the NCNAACP argued for a pretrial gag order (http://www.wwaytv3.com/node/1260). These are typically issued when publicity will impair a defendant’s right to a fair trial (see Chapter 8 in “Race to Injustice”). The NAACP legal defense fund is allied with the NAACP but not affiliated with it.

When the punishment for an offense is a multiyear prison sentence, there should be a higher standard of evidence required to obtain a conviction than the word of one person. Despite the cautionary lesson from Texas, the federal drug laws have not been changed. One wonders how criminal statutes came to have weak requirements for conviction. In Chapter 12 of “Race to Injustice” on the grand jury system, former Federal prosecutor Michael Seigel writes, “Without a doubt, the worst accusation that an individual can face today is that he is a child molester or rapist.” I submit that when the public is fearful about a particular type of crime, or when it holds a type of crime in special contempt, politicians will tilt the law in favor of conviction.