EYEWITNESS ERROR --AGAIN

ALVIN G. GOLDSTEIN PHD (jecagg@comcast.net)  

THE PATHETIC LEGAL CASE AGAINST JERRY L. PARKER

HOW AN INNOCENT MAN WAS CONVICTED ON CORRUPT EYEWITNESS

EVIDENCE AND SENTENCED TO SPEND THE REST OF HIS LIFE IN JAIL

Mr. Jerry Parker was accused of simultaneously sexually molesting three girls and was convicted on the basis of eyewitness evidence alone. He is serving a 195.5 -year sentence in a Missouri “correctional center” for a crime he did not commit

My name is Alvin G. Goldstein; I am a retired professor of experimental psychology (human memory, perception, learning) and a long-time expert witness in criminal cases where eyewitness testimony was a deciding factor in the outcome of the trial. I have been involved as an expert in cases in Missouri, Massachusetts, and Canada. A large part of my research efforts was devoted to issues related to memory, and especially memory for faces. On occasion I have taught classes in eyewitness evidence in the University of Missouri law school. My interest in Mr. Parker’s case began in 1996 following receipt of a letter from him requesting I read and evaluate the description of the eyewitness evidence used by the State of Missouri to convict him. I have never met Mr. Parker; I have spoken to him via telephone once many years ago. My relationship to him over the years has been informal, consisting exclusively in unsuccessful attempts to see if I could interest either a lawyer or an innocence project to take his case. We have corresponded via mail from 1996 to the present time.

This web site is dedicated to publicizing the plight of Mr. Parker who I believe never received a fair, impartial trial. He was convicted of a crime solely on the basis of eyewitness reports ---no physical evidence connected Mr. Parker to the crime or the crime scene. Indeed, the paltry physical evidence which was collected did not connect him to the crime site or the crime. For anyone familiar with the criminal justice system and with the spate of DNA cases which have proved that eyewitness testimony is often unreliable, these facts should immediately raise suspicions about the accuracy of Mr. Parker’s conviction.

Mr. Parker, who is about 48 years of age, has a BS degree in philosophy, a paralegal degree, and a certificate as a computer repair specialist. He is also trained as an auto body repair specialist. He was gainfully employed before he was arrested for the “crime” he was accused of committing.

Introduction

With rare exception, everything which follows is derived from a trial transcript, police reports, preliminary hearings, depositions, Public Defender’s investigator’s reports and other “official” documents related to the case. Depending on the length of the documentary information, in some cases it will be paraphrased or it will be quoted. I will use the term “testimony” to refer to court testimony and to all the other information obtained and recorded during the hearings, depositions, etc.

Parker’s case is another in a growing list of examples of uncorroborated eyewitness evidence being used to convict an innocent man. Statistical analysis in a recent paper by Samuel Gross et al (Journal of Criminal Law and Criminology, 2005) reveals that 50% of 205 murder cases where the defendant was later exonerated (either by DNA or other evidence), eyewitness misidentification was the cause of the miscarriage of justice. Similarly, in 88% of 121 rape cases the cause of the wrongful conviction was eyewitness misidentification. (As of 2003 there were 340 wrongful convictions in the US in cases where either the death penalty or long prison sentences were involved.) Also keep in mind 50% of all wrongful convictions -- convictions of people who are innocent of the charge -- were caused by police misconduct (Scheck et al 2001)

How often is eyewitness testimony involved in crime in the U.S.? Several years ago I published the results of a survey of prosecutors in large U.S. cities in which I asked them to estimate the number of eyewitness cases they take to court in one year. On average, between 3 to 5 percent of all relevant criminal cases involved critical eyewitness testimony (i.e., eyewitness identification was the primary reason for the arrest and trial). If that percent is applicable to today’s violent crimes statistics -- and I see no reason for it to have changed -- then the number of violent crimes in which eyewitness evidence is of critical importance is approximately 41- to 69- thousand cases a year as of 2003 (from US Department of Justice, FBI, Crime in the United States). The main point I am making here is this: the total number of eyewitness cases per year is substantial even though the percentage of eyewitness cases is only 3 to 5% of criminal cases. The inference is clear; eyewitness evidence is the most unreliable of all the methods of solving crimes and with the relatively large number of eyewitness cases there will be many thousands of miscarriages of justice. This conclusion is supported by Gross et al whose estimate of the number of eyewitness cases is also enormous.

SUMMARY OF THIS REPORT

As a consequence of his lawyer’s inability to protect her client and the sheer number of issues where, through incompetence, malfeasance, and simple mendacity police and other authorities have robbed parker of his chance to be tried in a fair trial, I thought it would be helpful to summarize the critical issues demonstrating these almost unbelievable faults and bizarre facts involved in this very strange case.

1.During the interval between his arrest and trial (approximately 2 years), and after his Missouri public defender lawyer had accepted his case, she served as the defense lawyer for the brother of one of Parker’s alleged “victims” thereby creating conditions for a conflict of interest. (I.e., Parker’s lawyer was representing the brother of one of the “victims” in his case.) Parker was never made aware of this conflict.

2. He met his lawyer for the first time on the day of the first trial; she was completely unprepared for his case.

3. The “crime” began when a man wearing lime green pants, blue canvas shoes and carrying a gun, exited his car, walked towards a gazebo in a public park where three girls were dancing and talking. He said, “Are you scared? Do you think karate can help you against this .357 magnum?” thus providing evidence he was either clairvoyant or the girls are lying because it just happens minutes before he got there they were talking about being sexually molested and how they would protect themselves using karate (a topic they had discussed the night before the “crime“).

4. Eyewitness evidence from three child-aged “victims” was the sole evidence produced by the State. Without exception, every photo spread and the one live lineup was either purposely corrupted by the police or so poorly constructed as to make it impossible to determine if he was the culprit. For example, in one photo lineup Parker’s face is shown in front of a red-lined height chart, like in a “wanted poster.” Parker’s photo is the only one in the set which looks like a “wanted poster”. (See Figure 1)

5. Fact: memory for an event deteriorates over time; the earliest photo spread or line up is better than a later one. Parker’s photograph in the first and most critical photo spread a few days after the crime was not selected by any one of the three girls.“

6. Either collusion or “accidental” communication between two “victims” occurred during a photo spread session thereby completely negating the results. (The police chief lied at trial under oath about controlling the girls whereabouts during their viewing of the photo lineup; he said he had sequestered them but they were not even under observation let alone isolated.)

7. A live lineup was totally compromised when Parker’s photo was shown to the “victims” a few minutes before the identity parade began. Evidence that this actually happened comes from Parker’s appeal in which Parker --in writing -- accused the police of taking his picture and showing it to the girls; the police never denied this nasty allegation.

8. During a photo spread session the “victims” actually told the police officer as they picked Parker’s photo that he was heavier than their assailant, and had other characteristics that did not match their description of the assailant.

9 Even though the victims had more than 20 minutes exposure to the assailant, Parker’s prominent “double chin” (actually, “fatty tumors” in his neck surgically removed at a later date) was never mentioned in their description of the assailant suggesting he was not the assailant. A photo of Parker taken at the time clearly shows the double chin (See Figure 2.)

10. The “victims‘” initial description of the assailant’s car differed in several ways from Parker’s car (wrong make; wrong year; wrong body condition; wrong color, type and size of pin striping; wrong type of license plate; only vehicle’s color --black --matched). One girl said the attacker’s car was a Dodge Omni, like her brother owned--Parker’s car was a 6-year old Mitsubusi. Later, after seeing a picture of Parker’s car the girls changed their description of the assailants car under oath in court.

11. A total of four alibi witnesses placed Parker at the exact time of the “crime” in a town 22 miles from the crime site.

12. No physical evidence connected Parker to either the crime, the crime scene (a woman’s restroom) or to the victims. Without eyewitness evidence there would have been no case.

13. Of the fingerprints collected from the woman’s restroom, not one matched Parker’s.

14. As a consequence of a major police blunder, the “victims” were never fingerprinted, therefore their tale of being assaulted in the woman’s restroom was never corroborated by any other evidence or witness. That is, the girls’ testimony is the sole evidence a crime took place in the woman’s restroom on that day in August, 1989.

15. In connection with Parker’s appeal, a Missouri Public Defender investigator interviewed a boy whose house the girls visited minutes after the alleged attack. The boy (about the same age as the older girl) told the investigator the girls were not crying, were not upset, did not say anything about being sexually molested. In addition, the boy testified he did not remove handcuffs or “flex cuffs” from their wrists. One girl made a phone call to get a ride home. The boy’s exculpatory testimony was never heard by a jury since Parker’s lawyer did not call him to testify at either trial.

16. One judge presided in both the mistrial and trial. At the end of the trial, as part of the instructions to the jury, the judge related a story about a case where a jury was charged for the cost of the trial because they had not come to a unanimous decision as to the guilt or innocence of the defendant. This flagrant lie might have been believed by at least a few of the jurors and would have essentially increased the probability that they would find Parker guilty since it almost eliminated the possibility of a hung jury.

17. The sole physical evidence were a few “wire ties” and one shoelace, items which were entered as evidence by the State and were claimed to have been found at the crime scene by the police although they were never handled in the obligatory chain of custody procedure which is standard practice in all jurisdictions in the US. Legally, these items did not exist because without chain of custody, they could have come from anywhere, including a hardware store. (Parker’s lawyer avoided this gross police error so the jury was not aware of the conditions surrounding the State’s evidence.)

THE CASE

Bizarre circumstances of the alleged crime suggests “victims” concocted a story which reads like a Hollywood B-movie. Several individuals (including the Public Defenders investigator) who were familiar with this case believed Parker to be innocent, and that a crime never took place; i.e., the “victims” concocted the story.

WHAT THE “VICTIMS” SAY HAPPENED IN THE WOMEN’S REST ROOM

Let’s look at this “movie”: In Gerald, Missouri (population under 1,000), on a warm summer day at approximately one o’clock in the afternoon on August 10, 1989, three girls, KB, age 10, HR, age 11 and BC, age 13, allegedly were forced by a man with a hand gun, wearing lime green pants, blue canvas shoes, to calmly walk approximately a city block from a gazebo in the city park (where they were dancing to music coming from a “boom box” type of tape recorder) to a women’s restroom where they were supposedly sexually molested. According to the girls’ testimony, during this serene walk in a public park surrounded by houses on the park’s perimeter, the man with the gun walked side-by-side with the 3 girls having a conversation with one of them, while the other two were crying. According to the trial record, the man with the gun had, only a few minutes earlier, threatened the girls with harm.

Just before this man appeared on the scene the girls had discussed a few “scary“ issues: the recent kidnapping and possible murder of a 12-year-old girl (Gina Dawn Brooks; she has never been found) in a nearby town; the attempted abduction of another small girl by a man driving a black car with a red pinstripe; how they would use karate (which they were incapable of doing) if they had to defend themselves from an assailant, the origin and freshness of (possible) blood spots on the concrete gazebo floor, etc. Testimony reveals they talked about several of these issues the night before they went to the park. When the police visited the gazebo on the day of the crime they found nothing which had the appearance of blood let alone actual blood (no, it had not rained and the gazebo had a roof).

When the stranger gets out of his car, he is holding a gun in his left hand and walks toward them. They stop what they were doing and wait for him to approach the gazebo. When he speaks to them, he seems to know they were talking about karate even though it would have been impossible for him to have heard them discussing this issue since his car was parked about 60 feet from the gazebo and, according to their testimony, they had stopped talking when the man opened the car door. The first words the man uttered were, “Are you scared?” Then, “Do you think karate can help you against this .357 magnum?” Exceptional hearing or clairvoyance? Or a fabricated Hollywood-like story?

In addition, there is melodramatic testimony from the oldest girl who said more than once that she told the guy “Leave the other girls alone and take me instead. You can kidnap me, rape me or do whatever you want to me. Just let the other girls go.” On the walk to the restroom, they take a path that, incredibly, passes a few feet from his car and all the girls report they are able to see the license plate and the drivers side of the vehicle. In addition, they have many minutes to see the man’s face and hear him speak. The path taken was actually longer than one which could have been taken to avoid getting close to the car. Why would the assailant-to-be give the girls the opportunity to get a good look at his vehicle?

When this odd procession of three girls and a man reached the restroom the record is unclear as to what happened next. The girls’ reports do not agree whether the man did or did not enter the ladies’ restroom first to make sure it was unoccupied. But one girl testified that he did leave them outside while he went in to reconnoiter the status of the restroom. If we believe the other witnesses, they all walk into the restroom and the man does not enter the room beforehand. Either way, it is a very strange kidnapping and preliminary to a sexual attack. If he entered the room by himself, leaving the girls outside (stay here while I go inside and if it is unoccupied, I will then sexually attack you) the girls could have run off (they lived only a short distance away); if the restroom was occupied what would this man have done next, while holding a gun in his hand? Their story is not an easy one to believe.

Their tale about being “handcuffed” to a drain pipe under the only sink in the room with “nylon wire ties” and a leather shoestring, is beyond credibility and is as problematical as it is preposterous for one man to do, simultaneously to three children while holding a gun “under his arm.“ The police report the “gun” -- which was never found -- was a .357 magnum although the girls never identified the type or caliber of the pistol. If we assume the gun was a .357 magnum, holding it in an armpit while tying three girls to a drain pipe under a sink seems to be a Herculean task which challenges common sense.

According to the girls’ testimony, several sexual crimes were supposed to have taken place inside the women’s restroom. The charges against Parker can be summarized here: Armed criminal action; sodomy, kidnapping (moving the girls from the gazebo to the restroom); sexual abuse (fondling of one of the girl’s breasts). In actuality, as told by the girls in at least a dozen different scenarios, before and during the two trials, under oath and otherwise, the assailant never achieved any of his sexual goals (except the “fondling” of one girl). His attempts at penetration both vaginally and anally were thwarted by the fact he never raised an erection. When he tried to have oral sex with one girl (with a flaccid penis) she immediately began to retch and he stopped trying.

It is important to consider the unreality of the attempted rape charges made by the girls: all efforts at penetration were attempted while he and the girl were standing. In this position it is possible to have intercourse but only if the woman makes certain critical positional moves; yet at no time did he demand the girl to change her position so as to make penetration more likely. BC said the man placed his penis between her legs about 4 inches below her vagina. This incredibly poor aim by an adult male? BC also testified that he told her she was “too young“ for him to get his penis into her vagina, a strange statement to make standing in front of a 5ft 6 inch, 165 pound girl -- these measurements from the hospital doctor’s report when BC went for a rape test. Their testimony regarding clothing removal is garbled but the best that can be ascertained is that he never asked the girl he tried to rape to remove her “panties” only “pants” and she was wearing shorts.

Similarly, for anal penetration “standing” simply will not work, yet he never asked the girl to bend over. Also important, the assailant never held the girl or put his arms around them or touched them in any way (except to “fondle” the breasts of one child). How could he even attempt penetration, anally or vaginally, without pulling the child towards him?

These mistakes in the simple process of completing a rape makes one wonder if a male beyond the age of 18 could be so completely ignorant of the enormous difficulty -- perhaps impossibility -- of achieving penetration with a flaccid penis while both actors are standing erect. Prepubescent girls might have the erroneous image of having sexual intercourse (or anal intercourse) while in the vertical position which would explain their testimony; it would also explain why so much of their testimony reads like a daydream or movies in the head or a very poorly written “bodice ripping novel.“ The only instance where he appears to know the appropriate physics of the situation is when he asks one girl to sit on the toilet seat and give him “a blow job”. This attempt fails also when he “puts his penis up to her mouth” (from the court transcript) and she retches, causing him to withdraw. The story told by this girl changed over time so that “put up to my mouth” became he put it “in my mouth.” thereby radically changing the charges against Mr. Parker from a misdemeanor to a class A felony. At no time during these sexual attacks did the man ejaculate. He never removed his clothes (not surprising) but he did open his fly. He never undressed any one of the girls being content with having one of them lower her “pants“. As you will see in a later section of this report, there is persuasive evidence --- the actual physical layout of the stalls, the position in the room of the sink to which the girls were supposed to be attached, etc.---to more than suggest the girls could not have seen what the assailant was doing to any of his victims because of where they were tied to the sink in the room. In other words, their testimony about the attacks on anyone other than themselves is suspiciously unreliable and may be nothing more than fanciful lies.

FINGERPRINT EVIDENCE

Fingerprints were very scarce in this case. The police could have been at fault, but without any further information that accusation can not be proved. Although the layperson might assume collecting prints is a simple job, this assumption is incorrect. Missouri in August is very humid. Wet or damp surfaces do not accept fingerprints readily.

Two latent print cards were collected. One was analyzed by the State Police Laboratory 3 1/2 years (that is not a clerical error) after the “crime” and another was checked by the St. Louis Fingerprint Identification Laboratory 46 days after the crime which is 26 days after Parker‘s arrest. Neither print were Parker’s. However, there is little question that other prints were found in the restroom but the police never gave this information to the defense. It is presumed the prints were not Parker’s.

Perhaps this lack of prints was the reason the police never fingerprinted the girls (but they did fingerprint Parker) even though it is standard operating procedure in police investigations of rape or other forms of assault crimes to determine if the victims were telling the truth about the assault. In this case, the police should have looked for prints of the girls on the sink and several other locations in the restroom. Although finding their fingerprints in the restroom would not prove beyond a doubt their account of being molested actually happened, it would have supported their accusations that they were in the restroom and around the drainpipe and the sink. No evidence of this kind was produced by the police. There is no evidence (testimony) an attempt was made by the police to find the children’s fingerprints at the “crime” site. Three conclusions from these facts can be made: the girls were never in the restroom, i.e. they were not assaulted; or the cops never tried to collect prints from the area around the sink; or the crime took place but no viable prints could be lifted from damp surfaces (but the police never reported this).

THE PHANTOM GUN

A pistol carried by the assailant impressed and must have frightened the girls during this “crime”. Eyewitness research has shown that the presence of a weapon can seriously effect the perceptual behavior of victims during a crime, in some cases virtually mesmerizing them to look at the weapon, sometimes to the exclusion of looking at the criminal. This fascination with a weapon has been given a name by eyewitness evidence experts: “weapon focus.” Even though the girls mention the weapon more than once in their various testimonies, their description of the pistol is exceptionally meager. True, they said they were unfamiliar with firearms, but they could not agree on its color or shape --- whether it looked like what we would call a revolver or an automatic. The Gerald police chief and the sheriff’s detective tried to “help” the girls give a description of the weapon by showing them their weapons (both men had .357 magnums). This is not a good idea since it is essentially a leading question which can prompt a completely false description of the gun actually carried by the criminal. The girls never offered a truly independent description of the pistol. No weapon was found so its make and caliber were beside the point. The assumed presence of a weapon during the “crime” vastly increased the number of years Parker was sentenced to stay in prison. It is worth noting the way the assailant was said to carry the presumably loaded weapon -- in his armpit -- suggests the possibility it was a toy gun.

INEFFECTIVE ASSISTANCE OF COUNSEL and CONFLICT OF INTEREST

Parker’s first trial ended with a hung jury; the trial judge ruled to retry the case in 10 days with the same defense attorney who had paid no attention to Mr. Parker’s multiple requests to call several alibi witnesses and who refused to present exculpatory evidence during trial. For example, she refused to call two witness who could have given testimony to show that Parker was about 20 miles away from Gerald Park at the date and time of the alleged crime. Inexplicably, she requested those two witnesses plus two more to testify in the mistrial. Why, in the second trial she refused to call all the crucial exculpatory witnesses has remained a mystery.

After she accepted Parker’s case, at some time during the almost 2-year period from his arrest to the beginning of the mistrial, she was also representing the brother of one of the “victims“ (BC) and a man who allegedly raped BC about a year after the Gerald “incident”. According to Missouri law, representing BC’s brother has the earmarks of a possible conflict of interest. Unless she informed Parker of her association with the other client and got Parker’s permission to continue as his lawyer she would be in a conflict of interest situation. She never revealed to Parker her relationship to BC’s brother. Parker did not discover this possible conflict of interest until well after the end of the trial. Her conflicting allegiances might explain why she seemed to be incapable of disbelieving the girls’ sometimes incredible, always inconsistent off-the-wall descriptions of what, to most rational people, appeared to be the fantasies of not too bright adolescent girls. Although significant areas of the girls’ testimony had an “Alice in Wonderland” tone, Parker’s attorney never aggressively questioned them to show the jury the distinct possibility they were stretching the truth.

Because of his lawyer’s unusual and damaging behavior, Parker requested permission to fire her and represent himself (a constitutional alternative) but this request was denied by the court, which meant Parker’s attorney and Parker were in a constant series of arguments and disagreements throughout both trials.

ANALYSIS of PROCEDURES USED BY POLICE TO OBTAIN EYEWITNESS EVIDENCE

In the first photo spread shown to the girls 15 days after the alleged attack, Parker’s drivers license photograph was included along with 5 foils; not one of the girls identified Parker as their assailant.

Memory for the culprit is always better the less time has elapsed from exposure to test. In almost any other jurisdiction, the failure of three eyewitnesses to select Parker’s photograph would have closed the case against Mr. Parker. Parker’s photograph was not selected because he was not the man they said attacked them in Gerald City Park. The police avoided mentioning this victory for the defense to the judge or the jury but instead hid the exculpatory information. However, the victims’ inability to identify Parker was inadvertently exposed in the court documents where the girls themselves, innocently perhaps, mentioned the fact that they had already seen a lineup at an earlier time. (A competent lawyer would have emphasized through cross examination this critical failure of all three “victims” to recognize Parker’s photograph, but Parker’s lawyer failed to even mention it during trial.)

In spite of the clear exculpatory outcome of the first photo identification attempt, Parker was forced to submit to a second photo lineup in which the police used a photograph of Parker taken by a sheriff’s detective on the 24^th of August, 1989. This photograph was uniquely prejudicial to Parker. He was photographed standing in front of a bright red height-marker. In essence this was a “mugshot” photograph, a type of photograph which is universally used on “wanted” posters. His photograph was the only one in the array which appeared to be a “mug shot.” (See Figure 1.)

Wouldn’t the unique “mug shot” photograph be a strong suggestion to anyone looking at the array that Parker was the suspect “preferred” by the police? Or if not that, Parker was seen as a criminal because as the girls said, the picture looked like a “police photo”. In addition, all 5 foils were older than Parker by 15, 16, 15, 5, and 8 years, respectively. In scientific research on the fairness of lineups, one fact stands out; a truly fair lineup must have all photographs similar in background, clothing worn, presence or absence of jewelry or spectacles, even hair style and of course hair color, etc. In addition to the prejudicial physical dissimilarities among the photographs, there is a procedural “hidden” harmful factor which makes selecting Parker’s photo more probable; showing the girls two photo lineups with 10 different foils (i.e., there were 10 different faces in the two lineups) and two photographs of Parker means that Parker’s face has now been seen twice in photo lineups and is the only face shown twice.

In addition to these blatant attempts to make Parker’s the unique photograph in the lineup, the method of presentation of the array is also as improper as it is unusual. Briefly, the following is the essence of what took place and what resulted from the photo lineup session. One “victim” (HR) did not recognize any of the photos, i.e., she selected no one in the lineup; a second “victim” (BC) - the oldest of the three girls -- picked Parker’s photo but said while making this selection , “the man in the picture was heavier than the attacker, had a “double chin” whereas the man who assaulted her was slender and did not have a double chin”; the third girl (KB) picked a foil instead of Parker.

In a fair criminal justice system, this would have closed the case against Parker (for the second time), but this was not the end of the lineup session. Victim HR asked to look at the lineup a second time because, “…you know, you could tell she (BC) had picked someone out, so I thought , you know, if she picked one out I better look better, so my dad asked me if I could look again. I went in and I looked ……and identified (Parker)” (Keep these remarks in mind; it is proof that the girls were not separated during or after they viewed the lineup and HR might have done more than look at BC’s face to discover she had made a selection). In a fair lineup procedure HR would not have been allowed to make a second selection, nor would she and BC be permitted to “look” at each other. Nevertheless, the deputy permitted HR to view the lineup again. In sum, Parker was selected only once by one girl out of the three and even this girl then put her selection in doubt by saying that Parker was far from the right weight and had a facial feature unlike that of her assailant. Essentially, the police had 2 misses and a doubtful selection, a far from adequate score for a 6-person lineup.

In spite of the assurance by the Gerald police chief that during the lineup viewing the girls were isolated in separate rooms in the Gerald City Hall and in his words, “…he kept his eye on them the whole time“….during the photo lineup. The trial transcript of the girls testimony says something very different. According to their testimony, when HR left the room after rejecting all the photographs, she went outside the building and sat on the steps with her mother and father. Meanwhile BC was viewing the lineup and selected Parker’s photo. BC then went outside the building and sat with HR on the steps. They deny discussing their choices. HR’s mother (paraphrase) tells her that she should go back and look again (“look better” was the exact phrase). HR’s father gets permission from the detective to have his daughter view the lineup again. HR selects #2, Parker’s photograph. It is quite difficult to conclude anything other than the chief of police was not telling the truth -- he did not keep his eye on the girls during the photo lineup session.

Scientific research shows instructions to victims when viewing lineups are critically important to the outcome. In this case the girls were instructed to look at the photos “..just to see if anybody in the lineup looked like (emphasis added) the person they had seen in the park on August 10^th..” These are misleading instructions. The girls --keep in mind their ages, 10,11, and 13 -- should have been directed at selecting a photo of a man who was the assailant, not one who looked like him. And even the phrase, “ the person they had seen in the park…” should have been sharpened to “….the man who assaulted you.“

A few words about the “double chin,” a feature which definitely distinguished the assailant from Parker. (See Figure 2.) Parker had “fatty tissue tumors” in his neck which have since been surgically removed. Wouldn’t this obvious disfigurement have been the first characteristic the girls would have noticed in the man who attacked them and wouldn’t it be the first item they would have reported to the police if Parker was the assailant? The fact the girls never mentioned this facial feature is close to confirmation that he is not the man the girls say sexually assaulted them.

Early in the investigation, the girls were asked to construct a composite picture of the assailant. (See Figures 3-8.) When it was evident the three drawings did not resemble Parker, the Gerald Police Chief suggested they do another composite, so each girl drew a second composite. There are several clear conclusions one can make from these composites: not one of the portraits resembles Parker when compared to Figure 2, the “mug shot” taken when Parker was arrested. Also, there is little resemblance between the first and second composite (e.g., Figures 3 and 4, 5 and 6, and 7 and 8) each girl drew, suggesting that the children had a very poor “concept” of their assailant, or that the composite system is faulted, as has been shown over many years of use, people in general do not recall faces in the manner demanded by the composite method. Laboratory research and police experience has shown that, despite its dramatic appeal, the composite program causes more harm than help. Pictures often do not come anywhere close to resembling the culprit. In this case, Parker’s highly visible “double chin” is entirely missing from all six composites. If the method has any useful function -- and that is open to debate -- it is perhaps as a flyer or “wanted” poster (and even here there is much disagreement among both police and scientists). As with any physical evidence, it can be badly mishandled and in this case it was botched at least once. No more than one composite should ever be drawn by a witness; the act of drawing a portrait changes the image “carried” by the witness and may destroy the ability of the witness to ever recapture the memory of the culprit. (Exactly the same criticism can and has been leveled at the viewing of more than one lineup either live or photo; in this case several lineups were shown to the witnesses completely negating the usefulness of all of them except the first -- and the girls did not select Parker’s picture in the first photo lineup.)

In a live 5-person lineup (also called a physical lineup) 42 days after the alleged crime, all three “victims” selected Parker. We will discount the fact that this lineup has been downgraded to 4 foils instead of 5 and by this time the girls have seen Parker, read about him and most probably seen photos of him in the newspapers. The use of a live lineup after viewing a photo lineup is considered to be a serious procedural error which often leads to mistaken identity. (Research suggests the witness might get a feeling of familiarity for the multi-seen face and select that person in the lineup for the wrong reasons.) In this case the error was compounded; immediately before the live lineup was viewed, the girls were shown a photograph of Parker which had been taken a few minutes before the physical lineup was staged. Although this action seems ridiculous, even unbelievable, evidence that it did happen comes from Parker’s appeal filed a couple of years later in which in his petition he accused the police of showing his photo to the girls before the lineup. This accusation was never denied by the police.

Collecting eyewitness evidence is much more than simply asking a witness to look at some photos. Recently, the United States Department of Justice has published a 42-page document containing scientific research findings related to the total process of collecting of eyewitness evidence. “Eyewitness Evidence: A Guide for Law Enforcement” (Oct. 1999; National Institute of Justice; NCJ 178240) was published in an attempt to reduce the frequency of erroneous eyewitness identifications at all levels of the law. Although these guidelines were published after the alleged assault on the three girls, it is still relevant to the Parker case because if the case were reopened in any form, judgments of the fairness of all of the procedures used ---- the photos themselves, the method of presenting the pictures to the viewers, instructions, the comportment of the police during the presentation, whether the witnesses were isolated from each other during and after they viewed the photos, and whether they could discuss their selections with each other (was conversation among them permitted?), the number of times the photo or live lineup was viewed by the witnesses -----will necessarily be reviewed by a court which now has a set of benchmarks to evaluate whether Parker was convicted on the basis of a fair, impartial trial in which eyewitness evidence was presented that was, when measured by the Guidelines, biased, or unfair or prejudiced. . It is constructive in this context to compare the use of DNA analysis to the use of the Guidelines in eyewitness cases. Both analyses are new and were not available at the time of the crime; both have the unique possibility of demonstrating that a miscarriage of justice took place years ago. Of course, DNA analysis is absolute in its verdict of guilt or innocence; the Guidelines are merely informative regarding the accuracy, fairness and probability that the final outcome of a series of eyewitness procedures might have been instrumental in arresting and convicting the wrong man. The Guidelines could assist an appeals court when reviewing Parker’s case to determine whether the critical eyewitness evidence was biased, or faulted in any important manner thereby increasing the probability that Parker was not the man who assaulted those three girls.

One very important consideration in all eyewitness cases concerns the degree of similarity between the description of the culprit provided by the victim(s) and the actual bodily and facial features of the suspect. In other terms, does the description given by the victim agree with the suspect’s appearance?

A poor match between the witness and/or victim’s description and the suspect’s features should be a red flag, a warning that the police might have the wrong man. Lack of congruence suggests poor recall, too brief time to view the culprits face or reduced illumination at the time of the crime. When the victim’s description and the suspect’s appearance don’t agree, the possibility of eyewitness error increases. Also, when the suspect does not resemble the person described by a victim, and the police continue holding the suspect, it is fair to consider the possibility the police have a hidden reason for wasting their time and resources on someone who is not likely to be the guilty person unless there are other considerations, like physical evidence that ties the suspect to the crime.

A poor fit between the witness description and the suspect’s actual features makes

the construction of a fair photo array extremely difficult because the foils should be selected so as to resemble the culprit described by the victim. If the foils don’t match the suspect the suspect might “stand out” in the photo spread. In the instant case, when asked by the police to describe their attacker, the girls said he was 5’ 2’- 5’4” tall, about 140 pounds (slender), dark eyes, sandy blond hair (not much of it --severely balding ) parted on the right side, no sideburns or facial hair. Parker at the time was 5’ 9”, overweight (195 pounds), full head of medium brown hair parted on the left, long sideburns, a mustache and green eyes and most prominently, a “double chin“. These differences between the described assailant and Parker should have been a “red flag” but were ignored by the police.

The girls description of the assailant’s car and Parker’s car were also highly divergent; the culprit’s car was identified by one girl as “like her brother’s car, a Dodge Omni,” new, no damage, with personalized Missouri plates. Parker’s car was a 6-year old Mitsubishi, with visible dents on the driver’s side front fender, a temporary sticker not a license plate. Both cars reportedly sported pin stripes, but the color and type did not agree. Although the description of the perpetrator differed appreciably from any description of Parker’s face and body build, and the description of the make, condition and license plate of Parker’s car also differed noticeably from the car the girls saw their attacker exit on the day of the “crime,” Parker, nevertheless, was arrested and charged with the crime.

Missouri law does not require the presence of a defendant’s lawyer during a lineup of any type. It is, however, ethically irresponsible and lends support to the idea the police were harboring dishonest motives, to invite counsel and then arrange to have him excluded from the room while the live lineup is conducted. This is what happened to Parker’s lawyer who was in the building at the Franklin County jail at the date and time of the lineup, but was excluded from the initial lineup. When Parker’s attorney complained to the police for excluding him from the live lineup, the police staged a repeat performance of the exact lineup within a few minutes of the first one. This astonishing, irresponsible behavior on the part of both the police and the defense lawyer is unique in my 30+ years experience as an expert witness. Repeating a live lineup minutes after it was just staged, is a sick joke. Even if the presence of the lawyer was not legally binding, running the identical lineup twice would appear to me to indicate the police are arrogant in addition to having nothing but contempt for the defense lawyer and for conducting a fair identification procedure.

Despite the crucial if not indispensable importance of eyewitness evidence in Parker’s trial, when Parker requested the assistance of an eyewitness expert, the court denied his request. As was true in Missouri in 1989 (and is still true), and in most states, the trial judge has total discretionary power in deciding whether to permit an eyewitness expert to be involved in a criminal case. The judge’s decision in Parker’s case was far from unusual in Missouri courts at the time although there was precedent for permitting an expert to testify in eyewitness cases. I testified as an expert witness during a trial in the early ‘80s in Missouri. At about the same time, Dr. Elizabeth Loftus, a well known expert witness and author of several books on eyewitness evidence and Gary Wells, perhaps the foremost research psychologist on eyewitness issues, were also permitted to testify in two Missouri court cases.

“CIRCUMSTANTIAL EVIDENCE ” INSTRUCTION TO JURY

Just before the jury began deliberations, the prosecutor requested the judge to instruct the jury on the legal aspects of “circumstantial evidence.” This request is most unusual --extraordinary in fact -- in the context of this case. (In more than 80 cases in which I served as an expert, circumstantial evidence instruction was never requested by a prosecutor or defense lawyer.) By requesting the judge to read circumstantial evidence instructions to the jury the prosecutor was implying -- telling -- the jury --- with the complicity of the judge -- Parker was arrested and tried, not on physical evidence and not on eyewitness evidence, but because the major evidence in the case was “circumstantial.” (Keep in mind, this was the second trial, none of the facts of the case were different from the first mistrial. Yet, the special instructions to the jury were not requested in the mistrial.)

Considering that Parker had requested my presence as an eyewitness expert and the judge refused his request, but NOT on the basis that the evidence was circumstantial, but because the jury did not need information about eyewitness evidence, the prosecutor’s request is extraordinary, even bizarre. ALL the relevant evidence in this case was eyewitness evidence. Circumstantial evidence is a fact or facts from which one can find another fact; it is indirect evidence which implies something occurred but does not directly prove it; proof of a chain of facts or circumstances indicting that the person is or is not guilty. Does this sound like anything that has transpired in this case?

It is difficult to understand why the judge complied with the prosecutor‘s wrongheaded, absurd request for circumstantial evidence instructions, when there was not a single “circumstance” which would compel any reasonable person to believe Parker was anywhere near Gerald City Park or the ladies room on August 10, 1989. His presence in that public restroom and only that presence is the sole evidence that must be proved beyond a reasonable doubt to support the accusation that Parker sexually molested three girls. Lest there be any doubt about these critical facts, no hair, no sperm, no blood, no fingerprints (except ones which excluded Parker) were found to connect Parker to the woman‘s restroom . This case is a classic eyewitness-only case; only weak and tampered eyewitness evidence connected Parker to the restroom. NONE of the paraphernalia --- nylon ties, the leather “shoestring” --- allegedly found by the police in the restroom which were supposed to have been used to tie the girls’ to a drainpipe were linked in any manner to Parker. Moreover, a careful reading of my critique (below) of the total absence of a chain of custody of the evidence supposedly found in the restroom raises the possibility nothing was found by the police in the restroom.

The famous defense attorney, F. Lee Bailey, wrote the following appraisal of circumstantial evidence:

“The circumstances arrayed against the defendant must form so complete and strong a chain as to exclude beyond a reasonable doubt every hypothesis except that of guilt. This means that the prosecution must prove each and every link in its chain beyond a reasonable doubt and if any one link in the chain has not been proven beyond such reasonable doubt, a verdict of not guilty must be returned. And, if any one fact is wholly inconsistent with the hypothesis of guilt of the defendant, it breaks the chain of circumstantial evidence on which the prosecution depends and must fail.”

I defy anyone to subsume what the prosecutor in Parker’s case called circumstantial evidence under Bailey’s interpretation of the term. By any measure, the prosecutor’s definition of circumstantial evidence in Parker’s case would never be accepted by any intelligent legal mind as an example of circumstantial evidence. The prosecutor’s request for “circumstantial evidence instructions” to be read to the jury was intended as a ploy, a subterfuge to manipulate the jury into believing that the reason they were having difficulty understanding why Mr. Parker was accused of the crime was because of a chain of connected events that were difficult to “see”. There were no connected events which led to the ladies restroom. The judge was totally remiss in accepting this nonsense.

STATES EXHIBIT #40: DECEPTIVE BLUEPRINTS OF THE WOMEN’S RESTROOM

The prosecutor’s in-court use of inaccurate, “not-to-scale” drawings of the crime scene were deceptive because they presented a misleading visual representation of the physical layout of the interior of the women’s room. (See Figure 9.) In addition to employing not-to-scale drawings, State’s Exhibit #40 was drawn disproportionately. That is, some dimensions were drawn so that 1 inch represented 28 inches, in some instances 1 inch represented 38 inches, and in others 1 inch represented 24.5 inches. The final result was a deceptive graphic representation of the relative positions of various walls and distances inside the restroom. This deceptive blueprint appears to have been purposely drawn this way to permit a juror to believe the girls (Fig. 10 and 11) could see what was happening in other parts of the room from their viewpoint near the sink, but the actual dimensions of the restroom made it impossible for the girl’s testimony to be true.

Parker, using the interior and exterior dimensions of the restroom taken from the State’s Exhibit #40, constructed ( with the help of a computer) a set of 1/24 scale drawings, where 1 inch always represents 24 inches. (See Figure 12.) These accurate diagrams provide visual evidence supporting the view that the girls account of what they saw happening in the restroom is not true. (Figures 13 and 14.) It was physically impossible for them to have seen any event taking place in or near the first cubicle. Let me emphasize that the measurements Parker used to make these accurate drawings were exactly the same dimensions as appeared on the State’s deceitful not-to-scale drawings.

Why would the State prosecutor use deceptive drawings to depict the all-important crime scene? Two answers to this question come to mind. The blueprints were drawn by an inexperienced individual; surely the State of Missouri could afford the services of a professional draftsman. The second explanation questions the intention of the prosecutor; was it done to support the girl‘s account of what happened in the restroom? One also wonders why the prosecutor did not use the blueprints which almost certainly could be found in either the Gerald town hall or the county court house.

If the jury had been taken to the crimes scene, the problems described above would have been solved. Mr. Parker’s lawyer refused Parker’s request to ask the judge to arrange a tour of the restroom.

Two of the “victims” testified they saw, through the open door of the restroom, a white car drive by the building. Although the car is in no way connected to the “crime”, and no one has a clue why they mentioned this irrelevant incident during questioning by the police, it is instructive to take a moment and examine this testimony (and Figure 15) because it shows the level of (un)reliability of the girl’s statements. It would have been impossible to see a car drive by because the privacy screen (Figure 16) was opaque (board on batten) . Anyone outside could not see into the restroom and anyone inside could not see outside. It was a true privacy screen. Why the girls testified they saw a car drive by has never been explained, but it does suggest their testimony is not faultless.

PHYSICAL EVIDENCE MISHANDLED BY POLICE; CHAIN OF CUSTODY IGNORED

One of the “victims” claimed she broke loose from the nylon tie, a story that is difficult to accept without questioning how that feat could be accomplished by a young girl when it is common knowledge that nylon ties are used in industry because of their incredible resistance to breaking or stretching (think: nylon ties holding coils of wire, or sets of concrete reinforcing bars); similar ties are used as handcuffs (flex cuffs) by police. A final caveat : the “nylon ties” or “wire ties” including a “leather shoestring” were never actually found in the number necessary to tie (and untie! and use again) 3 frightened, wiggling girls to a drainpipe Those that were “found” by he police were never subjected to the time honored “chain of custody” rule whereby every piece of physical evidence in a case is carefully stored in a e.g., plastic bag which is tagged and identified with the signatures of the officers who found it. When the evidence is moved to, say, a storage locker the clerk must sign the tag to show when it arrived, how many there were, etc.. This system is meant to make sure evidence does not get contaminated or lost, or added to or subtracted from without having witnesses to the transfer, and to the modification. In this method, when evidence is presented at trial and the chain of custody is unbroken, one is assured that the evidence is the original evidence and that it was the evidence which was found at a particular site at a exact time, etc. Clearly, this is an honors system and is only as good as the honesty of the handlers. In the present case, absent a chain of custody, it would be impossible to be certain the ties were found where the police say they were found nor is it possible to be certain the ties were actually those which were used by the culprit in the “crime.”

Are the ties important? It depends on your viewpoint; without the ties why should anyone believe the girls story about being tied to a drainpipe and that at least one of them broke the ties but according to the testimony, she did not take the broken ties to her home or to the police. Testimony shows the assailant did not take the paraphernalia with him; if one can believe the girls’ story, all three were “attached” to the plumbing under the sink when the man exited the room. Which means they had to break the bindings (ties or whatever they were). Their description of what happened to the bindings is vague, but unquestionably, they testified bindings were still on some wrists when they got to the boy’s house located on the edge of the park. Thus some of them should have been found in the restroom and some in the house. However, the restroom -- the “crime scene” -- was never secured by the police so anyone could have walked off with the evidence. The boy told the investigator he never removed anything from the girls wrists and of course the boy never testified at trial. No chain of custody exists for any physical evidence found either in the restroom or the house. Absent chain of custody, there is no creditable evidence the girls were tied to anything, no physical evidence a crime was committed, only the testimony of the “victims”. Parker’s lawyer failed to bring the chain of custody issue to the jurors’ attention.

PROBABLE CAUSE

Probable cause, a fundamental concept in our legal system, was written into the Fourth Amendment to the US Constitution. Although the precise meaning of probable cause is somewhat uncertain there is agreement about the essence of the concept: reasonable ground for belief of an individual’s guilt before an arrest can be executed. Despite arguments concerning its exact meaning, it is an extremely important concept and is one that is constantly before the courts. No matter how one interprets “probable cause,” it is entirely absent in the case against Mr. Parker. Indeed, as you will see, the prosecution never stated a probable cause and Parker’s lawyer allowed this breach of legal necessity to stand without objection.

A) Mr. Parker had never been arrested for nor suspected of sexual crimes before his arrest, i.e., prior to August, 1989, he was never considered by police to be a sexual predator.

B) He was not seen by anyone in or near the Gerald City Park on the day and time of the “crime”.

C) His car was definitely not the assailant’s car described by the girls. The make, age, condition, license plate and pin striping (“a wide red pinstripe”) of the assailant’s car were all different than Parker’s 6-year old Mitsubushi with noticeable damage to the body, with temporary plates and with the wrong-colored and size of pin striping. (two very thin orange pinstripes separated by a golden stripe).

D) The “wire ties” or whatever the police called them, were never linked to Parker. In addition, you will recall those “ties” although entered as “evidence” in both trials, should have been challenged by Parker’s lawyer and removed as evidence because, in essence, they were not connected by a chain of custody to the woman’s rest room let alone to Mr. Parker. Legally, the “wire ties” presented in court by the State did not exist as evidence.

E) As related earlier, each girl constructed two composite sketches, separated by one week. It is instructive to see that not one of the 6 sketches resemble Parker except they are all male faces. (See Figures 3 -8.) Not one of the girls included Parker’s “double chin,” in the composite, a facial feature almost impossible to miss. (See Figures 1 and 2.) Description of the assailant given to the police by the girls no more than a day after the “crime” allegedly took place, is similar to Parker on only one dimension: both Parker and the assailant were male.

F) At the time of Parker’s arrest, identification of Parker by two of the “victims” in a photo lineup was cited as probable cause. This statement is false; the initial photo array viewed by the girls was rejected by all three “victims” --- not one of them picked Parker’s photo. The police never reported this failure to identify Parker in a photo lineup. Evidence for the existence of the failed photo lineup comes from the girl’s testimony. Then, in an astonishing about-face, at trial, police specifically denied photo identification was the cause of his arrest, but no other probable cause was ever offered by the authorities. There are no other valid issues raised by the state which satisfy the concept of probable cause.

Since probable cause was not the motivation behind his arrest, and the police had received many tips from citizens suggesting the name of other men who might have attacked the girls, those leads should have been investigated. Trial testimony clearly demonstrates not one of the leads was investigated. Parker was the authorities’ first and only “suspect” for reasons still suppressed and unspecified. Parker was arrested even though there was no physical evidence connecting him to the crime scene; his facial and bodily features are utterly different from that given to the police by the victims at the beginning of the investigation; his car was different in several ways from the car driven to the crime scene by the assailant; at least two witnesses (four in the mistrial) swore he was more than 20 miles away from the crime scene at the time of the crime.

FACTS OUTSIDE THE COURT TESTIMONY

Parker’s lawyer refused to subpoena a young man, MH (about 12 years old) who lived in a house bordering the park, and to whose house the 3 girls visited a few minutes after the “crime” took place. In connection with Mr. Parker’s appeal, Missouri Public Defender’s investigator, a former police officer, interviewed the MH and learned: a) there were NO straps or ties on the girls wrists; b) the girls were not anxious nor frightened nor upset and no one was crying; c) they never mentioned being sexually assaulted; d) one of the girls used the house phone to call her mother and arrange transportation for all three girls; d) she did not inform her mother of the sexual attack nor did she call the police from the boy’s home, and e) when questioned further by the investigator about the incident MH boy never reported the presence of bruising or cuts on the wrists of the girls. Although the police chief reported at some point in the trial that photographs of the girls wrists were taken, these pictures were never admitted to evidence and nothing further was ever mentioned concerning the girls’ wrists.

A police report was delayed more than 24 hours after complaint was filed which fact supports the opinion of the Missouri Public Defender’s investigator that the police did not believe the bizarre story told by the girls. Skepticism of the girls’ account of the strange assault was also demonstrated by the fact that after the initial report of the assault was filed, police did no further investigation for more than 2 weeks at which point Mr.

Parker became a suspect.

On the day of the crime the girls were questioned by police but no written, video or audio record of this interview was entered in evidence by the prosecution.

During trial, on cross examination, the Gerald Police Chief conceded his office received over 50 leads and the names of three suspects but Mr. Parker was the only person ever questioned about the assault. Literally dozens of sightings of a 2-door black car with red pin stripes were called into police suggesting that there were many similar vehicles in the Gerald area, any one which could have been the car used by the perpetrator of the assault.

A deputy sheriff told Parker’s first lawyer (in the early stages of the case Parker had a paid lawyer until the family ran out of money) that he (the deputy) did not believe a crime had taken place. He considered it to be a false police report made up by the girls. He also said the case was not being pursued as an active criminal case. Unfortunately, as with many other important pieces of exculpatory evidence, the deputy was not called as a witness so the jury never heard his opinion.

Discovery was almost never honored by the state. If police reports concerning the interview with the three victims on the day of the “crime” were available, they were withheld from the defense; the full extent of the fingerprint evidence from the restroom and the Walkman radio were never revealed to the defense; any other information obtained from investigations on the day of the crime were never divulged to the defense. This breach of the law occurred not only because the police were not following the rules of discovery, but also because of the incompetence of Parker’s lawyer who never requested this important information.

PARKER’S REFUSAL TO REQUEST A PAROLE HEARING

Mr. Parker has refused to attend parole hearings although he has been eligible for parole for the last 5 years. He has refused to seek parole because by doing so he would be required to say that he was guilty of the crimes he has been convicted of. In effect, despite the credible possibility for parole, he has decided to stay in prison rather than say he is guilty Indeed, because of Missouri prison and parole board regulations, and because Mr. Parker has had a reasonably good behavior record during his time in prison, he would have a realistic chance to be released from prison in a few years. Is his refusal to admit guilt evidence of his true innocence? Unless he does admit his role in the molestation charges he will die in prison.

If we, you and I, take the position that Mr. Parker is guilty as charged, then we have to wonder why he would prefer to stay in prison for 195.5 years if all he has to do is admit guilt and ask for parole. It is extremely difficult to believe he would be that stupidly stubborn and refuse to say he did the crime. What does he gain? However, if he is not guilty as charged, then it may be easier for most of us to see his reason for refusing to admit that he did those miserable, nasty things to 3 young girls.

*******

Mr. Parker can be contacted at this address: Mr. Jerry L. Parker, 21402, 5-C-241, South Central Correctional Center, 255West Highway 32, Licking, Missouri, 65542. I can be contacted at jecagg@comcast.net .

TRANSCRIPTS OF THE MISTRIAL AND TRIAL CAN BE OBTAINED BY CONTACTING THE CLERK AT THE “PHELPS COUNTY CIRCUIT COURT, CAUSE NUMBER CV 392 - 0467CC” (BOTH TRIALS ARE ASSIGNED THE SAME NUMBER.) THE ORIGINAL APPEAL IS AVAILABLE IN THE WESTLAW BOOKS OR COMPUTER LISTING AT 890 S.W. 2d 312 (Unfortunately, the State charges a sizable amount of money for trial transcripts.)

MY ANALYSIS OF WHY EYEWITNESS EVIDENCE IS A

MAJOR CAUSE OF MISIDENTIFICATION

What follows is only tangentially related to Parker’s case. I have added this section to the case material because it might help a reader understand why cases like Parker’s are so damn common. This material will also partially help explain why the various authorities in Gerald and surrounding areas of Missouri performed their duties in an unprofessional, illegal and unethical manner and got away with it. I have tried to explain why eyewitness error is ubiquitous in the criminal justice system. This discussion has been limited to errors of identification which is a small but important aspect of eyewitness evidence. The general unreliability of eyewitness testimony -- testimony about events, happenings, human interactions, conversations, violent and/or aggressive behavior, accidents , killings, robbery, etc. -- has been extensively studied both in the field and in the laboratory but this is not the forum for considering that immense field of research.

Let’s look at a few of the major reasons why eyewitness misidentification is so common in criminal cases. Because large proportion of eyewitness cases are handled by public defenders and the rate of wrongful imprisonment is highest in these cases, some fault must be assigned to the public defenders. This topic is simply too large and to complicated to be handled in this document. Suffice to say, the offices of public defenders are scattered throughout the US and the way they operate varies from state to state. What is common to all is insufficient funding and overworked legal staffs. These deficiencies give prosecutors a big advantage over public defenders who often go to court lacking essential information or the means of obtaining it.

Eyewitness testimony and its consequences have been a serious problem for law enforcement for many years. The phenomenon was of interest to psychology more than 100 years ago. In 1908 Hugo Munsterberg published “On the Witness Stand,” a book which had as its major thesis the untrustworthiness of eyewitness evidence. A recent book “Actual Innocence” (Scheck, et al, 2001) suggests “things” have gotten worse instead of better. According to Scheck et al 81% of the time wrongful conviction can be attributed to eyewitness error.

Despite the problem with recognition memory for faces (or “persons”) in the criminal justice system, we, in our daily lives rarely make identification errors of people we are familiar with and can routinely identify hundreds if not thousands of people every time we see them (a fact which makes eyewitness identification evidence so compelling to juries and prosecutors). So, why is there this discrepancy? (See http://faculty.ncwc.edu/TOConnor/psy/psylect06.htm for additional information about false conviction and eyewitness error.)

Forensic psychologists are in agreement, familiar face recognition is a completely different process than recognition memory for a strangers face seen once for a brief moment. Even if a family member or a friend is not seen for many years, erroneous identification almost never happens. Confusion exists among laypersons (read that as “jurors”) concerning recognition memory for familiar people and recognition memory for a once-seen face especially when that face is first seen under unusual circumstances like in the middle of a crime where the witness is frightened, upset, excited, distracted or had less than 5 seconds to view the criminal’s face. In a recent report in which dozens of independent experiments on memory for faces in highly charged emotional situations were analyzed, the results put the lie to prosecutors’ self-serving advice to the jury concerning the witness‘s identification of the suspect, “She can never forget his face!”, or, “It is burned into her memory!” To the contrary, there is no scientific evidence to support that conclusion; the reverse is most likely true, increased emotionality (fear, anxiety, panic) reduces face memory in crime situations, and often is associated with increasing selection of foils (the laboratory equivalent of mistaken identity) during photo or live lineups

As we find in all complex human behavior, more than one factor is involved in misidentifications. Laboratory and field research on eyewitness issues have demonstrated many of the procedures used by police to test for witness memory for faces were actually increasing errors of identification. This is not the forum to discuss these procedures. Suffice to say, the Justice Department’s Guidelines, mentioned earlier, offer dozens of research-based improvements in eyewitness identification methods. Since most of these suggestions for improved accuracy using either photo arrays or lineups were not in use prior to the Guidelines publication, misidentifications were more likely to occur. In short, until recently, errors of identification were as much a function of the procedures as of the faulty memory of witnesses.

Unfortunately, the criminal justice system itself increases the frequency of misidentifications because in almost every jurisdiction in the US, trial judges rarely (in some jurisdictions, almost never) permit eyewitness experts to testify before a jury even in cases where (like the instant case) eyewitness evidence is solely responsible for the defendants arrest and trial. The courts’ have justified this widespread apparent self-inflicted ban on professional help with eyewitness issues by offering two “explanations:”

1) Without evidence from any source (other than “everybody knows” or “it is well known that …”) judges assumed all jurors were aware of the fallibility of eyewitness identification and, thus, bringing in an expert would “..invade the province ( territory) of the jury.” Judges who apply this rule are incorrectly assuming jurors have learned from daily experience what has taken scientists many years to discover: the extent of and the causes for eyewitness error and fallibility. (A judge once told me the reason he was banning my testimony was because “…his jurors were “smart.” That may be humorous in Missouri, but I did not think it was funny.)

2) The courts’ position on this issue further (incorrectly) assumes that by the process of cross examination the defense attorney would bring to the jurors’ attention the truth behind the problems inherent in eyewitness testimony. Even if the defense attorney was exceptionally gifted, he or she would find it extremely difficult if not impossible to accomplish by cross examination what an expert witness could do by testifying. Research has shown that the “man in the street” is not conversant with the content of the research on the issues involved in eyewitness testimony. Indeed, often the jurors are not only ignorant of the myriad eyewitness issues but he or she may have erroneous ideas concerning the details of the eyewitness testimony process and these mistaken notions do not get corrected by any system now in use in the courts. In essence, when the courts literally closed the doors to eyewitness expert testimony they created fertile ground for the growth of eyewitness misidentifications simply because, in truth, the jurors do not fully understand the complexity of eyewitness errors.

In addition, a defense lawyer would have to be an eyewitness expert to successfully elicit cogent, unbiased, information from a police witness during cross examination. Who would he/she question? A police officer? Which police officer, the one who set up the identification tests? Why would this officer know the science of eyewitness evidence? Since most defense lawyers know almost nothing about the science of eyewitness evidence, it is foolhardy to believe he/she would be able to ask the right questions of the police in the first place. Thus, a jury would remain uninformed exactly how the eyewitness evidence was obtained and more critically, what it meant. This should be no surprise to anyone who has even a rudimentary knowledge of the enormous amount of research which has taken place in the last 30 years on the issue of eyewitness testimony. (“Eyewitness evidence” entered into the search engine Google, yields over 5 million responses, 2.3 million when “testimony” is substituted for evidence.) To expect a lawyer to be knowledgeable about this specialty of experimental psychology is to expect the impossible. In contrast, for example, criminal cases involving medical information, or autopsy data in homicide cases, or fingerprint typing in robbery cases, courts don’t expect lawyers to inform juries about the fundamentals of these sciences; experts testify in answer to questions asked by the defense lawyer. Why should eyewitness evidence be treated differently? What makes eyewitness evidence fundamentally different than, for instance, all other forms of physical evidence or even other forms of behavioral evidence like in a case involving aberrant behavior (murder, rape) where the question of the defendant’s intellectual level of sanity is at stake? Why allow - nay, mandate -- a psychologist or a psychiatrist expert witness to testify?

Moreover, in a “catch-22” legal rule, it is quite possible defense lawyers would not be permitted to cross-examine police at length and in detail on matters of eyewitness procedure, accuracy and reliability because the court could rule they - the lawyers - are not forensic science experts and should not be acting as if they are.

By refusing to enlist the testimony of eyewitness experts in court, a cascade of appalling, damaging events follow. In effect, this lack of expert knowledge and opinion has given the police no incentive to develop and use the most effective methods of staging lineups even if they knew what these methods were. When an eyewitness-only case goes to trial, there will be no one who would have the ability or the approval of the court to criticize the procedures used by the police in obtaining the eyewitness evidence. More important, even before the case gets to court, the suspect was seriously at risk of being misidentified because before, during an after the witness was tested for recognition memory (the photo arrays and/or lineups, etc.) the suspect had no one protecting his right to have these identification tests fairly constructed and fairly administered without bias or prejudice. His accusers (witnesses) should not be allowed to be influenced by police beliefs about the guilt or innocence of the suspect. In a strong eyewitness-only case, the suspect is in a situation where, many years of research has demonstrated, tiny apparently unimportant errors by police could make the difference between freedom and a jail sentence or worse.

In other words, the suspect should have the right to have someone present “in his corner” who is capable of intelligently monitoring the behavior of the police before, during and after any eyewitness testing instruments are used. In the final analysis, at this time there is no system in place to keep the police honest nor informed about the mistakes they are making in eyewitness evidence collection. Coupled with this unregulated testing of witnesses, there are no true penalties administered if the lineup was unfair, biased or even downright dishonest (In addition to the instant case, I have seen many 4-person lineups --photo and otherwise-- in which the suspect, or his photo, appeared to be conspicuously and purposely different than any of the 3 foils). Without agreed upon rules to control eyewitness evidence collection there can be no fault assigned nor any responsibility taken when end results of all the testing is disaster: wrongful conviction. “Blame” can not be assigned without a set of benchmarks indicating what is or is not a fair or biased lineup or photo array.

This total lack of on-site monitoring of any phase of the eyewitness procedure by any form of supervisory authority sometime permit’s the use of unfair, biased methods of both presenting raw photos and in the procedures preceding the viewing. One could argue that there has always been the appellate court system to (after the fact) monitor the honesty of lineup procedures. True, but this system is far from satisfactory for several reasons.

Most non-death penalty criminal cases in which the defendant is convicted do not end up in the higher courts (for lots of reasons, but lack of funds is the big one). Most important, even when a case does get to the appellate level, appellate judges are no more likely than trial judges to be knowledgeable and sensitive to the possible faults, accidental and otherwise, which can occur in an eyewitness case . It is for this reason so few -- very few -- eyewitness-only cases are reversed on appeal. (In the instant case, appellate judges deemed Parker’s lineups and photo arrays were “fair” despite the blatant corruption of almost every one of the procedures: arranging for the victims to each produce two composite drawings; allowing a witness two “chances” to select the culprit; collusion between two eyewitnesses during a lineup; presenting a photo of Mr. Parker to the witnesses minutes before the live lineup; presenting Parker’s photo in “mug shot” form very different from the foils in a photo array; demanding a second --and third and fourth - lineup despite a total miss by all three “victims” on the first photo lineup.)

In fairness to appellate judges, let me say they are seldom privy to the important steps that precede photo array presentations and/or lineups primarily because these steps are rarely included in trial transcripts. Important details of the eyewitness evidence collection are either hidden or written up in a formal manner omitting details and as the old saying goes, the devil is in the details. And even if all the important details have been spelled out in the court transcripts, why should we expect an appellate judge to be capable of evaluating whether the procedures employed by the police were or were not fair, accurate and honest? Simply looking at photo arrays or a photograph of a physical lineup --which is what appellate judges do -- is unquestionably not adequate to evaluate whether these instruments were fair or biased or up to modern standards of accuracy. Indeed, recent research demonstrates an expert in eyewitness research could not accurately evaluate these instruments by simply “looking” at the photographs. There are, however, scientifically-based methods to measure the “fairness” of lineups. And, of course, it is rare indeed to have a complete description in court transcripts of the steps taken by the police to test the recognition memory of a witness, a missing link that reduces the probability a superior court judge has enough information to make an intelligent decision about the fairness of a lineup. (Why they do it in the first place is a very good question. It is bad enough they don’t have the training or information or expertise to make decisions about fairness, but it is much worse when they don’t know they don’t have this ability.)

What is being suggested here is that eyewitness evidence be treated by judges in the same way they treat nearly ALL other evidence, technical or otherwise. At this moment eyewitness evidence procedures are treated by the courts as though any layperson, any non scientist amateur or any judge has the ability and training to decide whether a lineup, a showup, a composite or an identity parade (to use the British term) is fairly constructed or that the steps which led up to the testing session was absent any unfair or biased manipulations and did not offer “hints” to the witness as to who was the suspect in the lineup. All specialized evidence (blood, hair, fibers, shoeprints, etc.) except eyewitness evidence is treated with more “respect“ as it were. For example, in all jurisdictions fingerprint evidence must be collected by an expert trained in the task; the latent prints have to be compared to the suspect’s prints by an expert; judges are not permitted to examine latent prints and offer the jury an opinion whether the defendant’s prints match the latent prints. Amateurs do not collect or analyze blood, or hair, or saliva or any other physical evidence gathered at a crime scene.

Thousands of times a year judges take on the responsibility of making significant life-and-death decisions concerning eyewitness evidence, without any training in science, or scientific method, without informed understanding of experimental psychology, scientific investigations of human perception and memory, and the critical effects of arousal on memory encoding. Perhaps the strangest aspect of this hubris is the apparent blindness to the clear consequences of these critical decisions. Wouldn’t you think that judges would be able to see that in so many of the cases they had adjudicated, their optimistic judgment of the methods used by the police were far off the mark? Why don’t the judges see that their inability to judge the excellence of EW testing procedures is the cause of most of these miscarriage of justice? How is it possible judges do not see that the presence of an eyewitness expert would have perhaps given a jury reason to be slightly more cautious in finding guilt in cases where the eyewitness information might have been shown by the expert to be, contrary to the prosecutor’s view, much less conclusive?

In summary, eyewitness misidentifications are the major cause for most miscarriages of justice. As I have tried to show, there are multiple reasons for this state of affairs.

The following summarizes the reasons for eyewitness errors.

Trial courts seriously limit, and in some jurisdictions block the use of eyewitness experts thereby permitting jurors to remain ignorant of the enormous amount of scientific research on eyewitness issues.

Judges, and especially appellate judges who are not eyewitness experts, make crucial decisions regarding fairness and reliability of all the measures police use to test witness memory for faces (or events). Amateurs have no place in an area now heavily researched with many proven methods to reduce error. Until judges stop behaving like forensic scientists, the rate of false identification will remain high.

The rights of suspects to a fair unbiased series of witness testing procedures are abrogated by purposely preventing the defense from employing an eyewitness expert either before the suspect is arrested (the best solution, but legally almost impossible) or during the subsequent trial. (Arizona law mandates the defendant in an eyewitness case has to have an eyewitness expert on the defense team.)

Face recognition memory, and most if not all testimony involving memory, will never be free from error, but there are methods available which can reduce (honest) mistakes. Many of these are not expensive and often involve relatively small changes in the way procedures are conducted. (See U.S. Department of Justice “Guidelines” mentioned earlier in this document.)

6. Every eyewitness research scientist would applaud the elimination of the prosecution of eyewitness-only cases. This change in the law would reduce miscarriages of justice and indirectly improve the collection of relevant physical evidence in eyewitness cases. . Too often police, using eyewitness evidence alone, presume they have arrested the culprit, then lose all interest in collecting physical or additional circumstantial evidence in the case. The police know they can almost always get a guilty verdict with direct evidence and they stop further investigation.