The Unreliable Eyewitnesses

Sep 16, 2013 - by Heather Buchanan - 0 Comments

Convicted Serial Killer Gerald Parker

Eyewitness misidentification plays a part in more than 70 percent of wrongful convictions. Even after the actual rapist confessed, even after DNA evidence exonerated her former husband and he was set free after more than 15 years in prison, his former wife still believes she saw what she could not have seen.

by Heather Buchanan

On September 30, 1979, after a hamburger run to a nearby Jack in the Box, Kevin Lee Green returned home at 1:30 a.m.to find his pregnant wife Dianna unconscious in their Tustin, California apartment, suffering from a severe blow to her forehead. She was rushed to a hospital where an obstetrician was able to detect a fetal heartbeat. But within a few hours, the placenta detached, and their daughter died in the womb. An emergency C-Section saved Dianna’s life.

Whatever relief Green could find in his wife’s survival was extinguished when he was arrested three months later for assault with a deadly weapon and second-degree murder due to the death of his nearly full-term daughter.

A cashier at the Jack in the Box confirmed Green’s alibi, and police reports noted that the hamburgers were still warm when the first responders arrived on the scene. Green reported seeing an African-American man loitering in the apartment complex as he left to get the hamburgers, yet Green went to trial when his wife identified him as the perpetrator.

After the attack, Dianna Green suffered months of severe amnesia and aphasia – a loss or impairment of the power to use or comprehend words. The brain damage from the trauma had been so severe that when the trial went to court a year after the incident, she still had trouble giving coherent testimony and struggled to spell her own last name for the court record.

Kevin Lee Green

The main argument made by the prosecution was circumstantial evidence that the Greens had fought the night of the assault. The prosecutor told the jury that Green resented that he could not have sex with his wife so late in her pregnancy and even complained about it to friends. Neighbors remembered hearing what they thought was the 21-year old Marine corporal and his 20-year old wife fighting on the night of the attack and noted that the couple fought often during the course of their less than seven-month marriage.  Dianna recalled Green hitting her with his keys.

The Greens’ marriage was rocky from the beginning. They were married on the same day that Kevin’s divorce from his first marriage came through. Dianna was already three months pregnant. Green, at the time, was seeking to emulate his father and continue his career in the military.

Prosecutors presented forensic evidence of rape at the time of the attack, including semen found in vaginal slides. DNA Fingerprinting techniques were first developed in 1984 by Alec Jeffries, five years before Green’s case. The analysis of genetic material was not yet common in criminal investigations, so the semen could not be used to connect a specific man to the crime. Dianna’s insistence that her husband was the perpetrator was the only evidence that linked Green to the crime.

The prosecution used psychiatrist Dr. Martin Brenner to assert that Dianna Green was a reliable witness. The defense was denied its request for an independent psychiatrist to evaluate her mental state.

After only 10 hours of deliberation, the jury found Green guilty. He was sentenced to 15 years to life.

Unreliable Eyewitness Testimony                                               

The basic tenet of the U.S. justice system is that a person is innocent until proven guilty. In light of convictions like this one, this seems naïve. While it is comforting to believe that jurors are reasonable people—influenced more by evidence than by tears—and that they will ultimately free the innocent and punish the guilty, wrongful convictions are far from rare. Each year, jurors respond strongly to evidence that is, at best, weak.

Green continued to proclaim his innocence from his Soledad prison cell. He requested and passed a defense-administered polygraph test. He was unable to afford a DNA test that might reopen his case.

DNA Exonerations

With the goal of overturning wrongful convictions and overhauling the criminal justice system, Barry Scheck and Peter Neufeld founded The Innocence Project in 1992. This non-profit was created after findings released by the U.S. Department of Justice and the U.S. Senate, in conjunction with the Benjamin N. Cardozo School of Law, showed that eyewitness misidentification played a part in more than 70 percent of wrongful convictions. Within these wrongful convictions, other major and worrisome patterns were evident: 70 percent of the people freed by The Innocence Project belonged to ethnic minorities, and almost all were poor. These statistics underscore systematic flaws in identifying, deposing, trying, and convicting suspects.

Dr. Elizabeth Loftus, a renowned cognitive psychologist, and Katherine Ketcham wrote about misled memory in their book, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse. They begin by comparing the human mind to a bowl of clear water. They ask us to imagine memories as teaspoons of milk added to the bowl as experiences and years go by. The more memories that become mixed into the water, the murkier the mind gets, making it harder to distinguish each separately. “Memories don’t sit in one place, waiting patiently to be retrieved; they drift through the mind, more like clouds or vapor than something we can put our hands around. Although scientists don’t like to use words like ‘spirit’ and ‘soul,’ I must admit that memories are more of a spiritual than a physical reality: Like the wind or breath or steam rising, the cirrus and stratus of memory exist, but when you try to touch them, they turn into mist and disappear.”

Loftus, a distinguished professor of social ecology at the University of California, goes on to explain how fragile memories can be and notes experiments conducted with thousands of subjects over the course of her career. She recalls times when she was able to mold people’s memories, motivating them to recall nonexistent circumstances. She has been able to “implant false memories in people’s minds, making them believe in characters who never existed and events that never happened.”

Eyewitness testimony is neither perfect nor fixed and can even be influenced by extraneous sources. When a memory is reconstructed, people often use prior knowledge, expectations, and attitudes to fill in the inevitable gaps. Information that comes from an eyewitness can be easily influenced, intentionally or unwittingly, without the witness realizing it. However, juries tend to rely heavily on this type of evidence during deliberations and are not likely to discredit it. In Green’s case, the jury found it hard to believe his corroborated cheeseburger alibi against his own wife’s testimony.

Recent studies of severe closed head injury, or CHI, show that damage to the prefrontal lobes not only causes memory loss, but also heightens susceptibility to creating false memories. This could easily have been the case with Green’s wife. One recent study by Michele Ries and William Marks at the University of Memphis reported that survivors of closed head injuries are not only more likely to acquire false memories, they are more likely to feel confident that those memories are true: “[S]evere CHI participants reported having greater confidence in their false-positive responses than did the control participants.”Since memory is malleable, and eyewitness testimony is a powerful prosecutorial tool, most convictions of the innocent are a result of witness error or fabrication.

Some Innocence Cases of Note

In 1937, Charles Clark was convicted of armed robbery and murder based on identification by the storeowner’s adult daughter. Thirty years later, it was revealed that the woman could not at first identify Clark. Police had pointed him out to her, saying he was the guilty party. In 1968, a Detroit Bar Association committee designed to provide legal aid to the poor, which is now The Legal Aid and Defender Association of Detroit, began handling criminal cases. Clark was among its first cases, and researchers soon discovered that the sole witness was originally unable to identify Clark as the assailant and admitted that detectives pointed him out to her before the line-up. Clark was granted a new trial and the case was dismissed on motion of the prosecutor. Four years after his release, the state of Michigan awarded him $10,000 for his three decades in prison.

In 1967, an assailant entered the home of a New York doctor and fatally stabbed him. The doctor’s wife was also stabbed 11 times and barely survived. While she was recuperating, police brought Theodore Stovall to the hospital and asked her to identify him. Unlike a lineup, where several similar people are presented to an eyewitness to have a suspect identified, Stovall was the only black man in the room. She agreed that he was the assailant, later confirmed his identification in court, and Stovall was convicted. As The New York Times reported in 1965, “the Federal Appeals Court reversed the conviction on the grounds that Stovall’s constitutional rights were violated when the physician’s wife identified the accused in a ‘show-up’ at which the defendant was not represented by counsel.” Stovall’s case made its way to the U.S. Supreme Court, and his conviction was eventually struck down.

In 1984, a man broke into a woman’s apartment, sexually assaulted and robbed her. Ronald Cotton was arrested for these crimes. In January of the following year he was convicted of burglary and rape and sentenced to life plus 54 years based on identification by the victim and circumstantial evidence. A second victim identified a different man, but this evidence was not allowed at Cotton’s trial. A man convicted of other rapes later confessed to the crime. That evidence was not allowed during Cotton’s appeal. In 1994, Cotton was appointed two new lawyers who filed a motion for DNA testing. Semen from one of the victims matched the man who confessed to the crimes, and on June 30, 1995, after a decade of incarceration, Cotton was released from prison.

In 1986, Barry Gibbs, a letter carrier and navy veteran, was convicted of murdering a prostitute in Brooklyn and dumping her body on the Belt Parkway. A highly decorated New York City detective, Louis J. Eppolito, found Gibbs’s name among the prostitute’s clients and identified him as the prime suspect. David Mitchell, a jogger who saw the body being dumped, picked Gibbs out of a lineup and testified for the prosecution. Gibbs was sentenced to 20 years to life. Nineteen years later Mitchell admitted that he had lied on the stand after Detective Eppolito threatened his family. In the words of Justice Michael A. Gary, who overturned Gibbs’s conviction on September 29, 2005, Detective Eppolito induced Mitchell “into identifying Barry Gibbs in a lineup and in court at trial.” All the while, Mitchell “believed and continues to believe, that Barry Gibbs is not the person he saw disposing of the victim’s body.” Incidentally, the day Gibbs was released, Detective Louis J. Eppolito was under indictment for moonlighting as a hit man for the Luchese crime family. He is now serving a life sentence in federal prison.

To date, the Innocence Project has succeeded in freeing 289 wrongfully convicted and imprisoned people, many on the basis of DNA evidence. But despite its efforts, the project is only partially successful – those released have often languished in prison for decades.

Green Exonerated

As for Kevin Green, his name was cleared in 1996 after the creation of an offender DNA database in California. This database was able to match DNA found in crime scene semen to Gerald Parker, the infamous “Bedroom Basher.” Gerald Parker was responsible for a long series of rapes and murders in Orange County during the 1970s. The Green’s home was a few minutes away from the El Toro Marine Corps Air Station, where Parker was based.

In Orange County Grand Jury testimony, 17 years after the fact, Parker claimed to have felt so much guilt over Green’s conviction that he at one point called a local newspaper to say he was the one who had attacked Dianna Green. In his 1996 grand jury testimony, he admitted that there was a man in prison “because of something that I did.” He testified,   “Out of all the murders and the crimes that I committed over the years that was the one that bothered me the most.” Parker is currently awaiting execution for, among other crimes, six counts of first-degree murder—one count of which is for the death of Green’s unborn daughter. (Since 2006, there has been a moratorium on executions in California due to the controversy over lethal injections.)

Kevin Lee Green was released from prison in 1996 after serving 15½ years. California Governor Gray Davis awarded him $620,000 in compensation for his wrongful conviction.

Green’s ex-wife – despite clear forensic evidence and Parker’s confession – remains convinced that Green is guilty. She now believes that Parker and Green attacked her together, with Green striking her first.

Shortly after Kevin Green’s arrest, Dianna filed for and won a multi-million dollar lawsuit for wrongful death against him. She went back to using her maiden name, D’Aiello, and lives with her mother in Southern California. She continues to struggle in her recovery: She testified to Judge Francisco P. Briseno during Parker’s trial for his attacks on all of his victims in 1999 that she has lost most of her hearing, most of her sense of smell, and often has trouble writing or articulating a thought.

After his release, one of Green’s first actions was to visit the grave of his unborn daughter to tell her that he was not her killer. He also filed a countersuit against D’Aiello to have the wrongful death judgment thrown out, which was settled outside of the courthouse. The terms for the settlement were not disclosed. He later moved to Missouri to be closer to his family. He is remarried and spends time with Desiree, his 16-year-old daughter from his first marriage to his high school sweetheart. He works part-time jobs. He does not hold any resentment against his ex-wife, as he proved when he spoke to local newspapers outside the Santa Ana courthouse shortly after the settlement for the wrongful death lawsuit. He said she was as much a victim of the system as he was.

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