Buried deep in the New York Post Sports Section, in the section were high school sports is talked about, is a story that is all too familiar for anyone who works in criminal justice. It is about a young African-American student-athlete. A Dean's List student and a distributing point guard who once had offers to several D-I basketball programs. But instead of picking between Dayton, Sienna and Western Kentucky, he is now just trying to put his life back together.
As a criminal defense attorney, I have seen this fact pattern many times. A young boy had his Ipod stolen. The police showed him pictures on Facebook and then did a lineup. Twice, this young boy picked our student-athlete, and twice the young boy was wrong. The student-athlete, all of 17 years old was charged with Robbery in the First Degree, a B felony with a maximum sentence of 25 years.
Only weeks later, the victim told police that he was mistaken about the identification. The District Attorney also found pictures on the student-athlete's cell phone showing that at the time of the alleged crime, the student-athlete was home taking pictures and sending them to his mother and grandmother for Mothers Day. Case closed. Except, it isn't.
Despite the fact that this accusation had no merit, it was enough to scare away the colleges. The Post itself had already run articles claiming that the student-athlete had a criminal record, despite the fact that any and all previous charges had been dismissed and sealed. As the Dean's List student-athlete's coach stated:
“We’re starting the process of trying to restore his name – that’s going to be the hardest part of this,” Turnage said. “The family is very upset, but they’re also elated the truth came out. We’re trying to get as much positive publicity from this, get his name in a positive light.”
There is so much to take from such a simple story that few people will pay attention to. I have narrowed it down to what I consider to be the top 3.
1. Eyewitness Identification Is Faulty
This story began in the same place of so many others. An alleged victim made a report to the police. Among the first thing the police did was show the complainant pictures of potential perpetrators. This led to a lineup. Two identifications later, a young student-athlete was under arrest. This story had a "happy" ending when the alleged victim realized his mistake. However, the course of history has proved that these stories rarely have such a "happy" ending.
According to the Innocence Project, faulty identification "is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing." Yet, despite the compelling social science research showing the flaws with identification evidence, it continues to be the hallmark of criminal prosecutions. This is because there is nothing more compelling to a jury than the victim on the stand pointing to the defendant and saying "that is the person who did this to me." An image emphasized by the portrayal of criminal proceedings in popular culture.
While it is pure speculation, I am pretty sure that I have a good understanding of what happened in this case. Once the alleged victim made his report to the police, the first thing they did was grab a bunch of pictures and ask the boy who did it. The first array of pictures came from Facebook, it never occurring to the police that the perpetrator might not be on Facebook. The boy then picked the picture that looked most like the assailant. From there it was done. There was a lineup, but the lineup was pointless as the boy was likely to simply pick the guy who looked most like the Facebook picture.
While I acknowledge that this is pure speculation, it is based on the basic fact pattern that is seen over and over and over again in misidentification cases.
Read over this list and you will see that similar pattern over and over again.
While there are many worthy spokespeople for the dangers of eyewitness identification, in my mind, there is no one better than Ronald Cotton and Jennifer Thompson-Cannino. Their book, Picking Cotton, is the most honest, heartwarming, and, at time, difficult, book that you will read on the subject. Jennifer Thompson was the victim of a brutal rape. While being raped, she memorized every feature of the assailant in the off chance she survived to make an identification. She picked Ronald Cotton and testified at both his trials, certain that she had the right man. Her world, and her faith in eyewitness identification was destroyed when, 10 years later, DNA cleared Cotton. Now, Thompson-Cannino and Cotton travel around the world warning of the dangers of eyewitness identification. A warning that almost went unheeded in the Bronx.
2. The Cat Never Gets Back In The Box
Yesterday I attended a lecture on the Central Park Jogging case in honor of the new book by Sarah Burns. One thing I learned, mostly because of the conduct of the New York Post, is that the stories about exoneration will never be as widely featured as the speculation of guilt.
Our young scholar-athlete did nothing wrong. He had nothing to do with this crime. However, his name was dragged through the mud. His criminal record (even though there wasn't one) was speculated about in the sports section of New York City's most popular tabloid. There are a litany of people who will have read the original article about the charges filed, but who will never read about the complete exoneration. ESPN ran an article about his arrest, but is silent about his exoneration. Despite the fact that he was home sending pictures to his mom and grandmother for Mothers Day, college coaches will now shy away from recruiting this kid despite the fact that he is a Dean's List student.
3. Arrests Have Consequences
This leads to the related third moral of this story. Arrests have consequences. To me, the most maddening thing about the story is that no one has to say "I'm sorry." The defense attorney does not want to blame the police and says that the District Attorney did nothing wrong. But, the fact of the matter is that a scholar-athlete was arrested, held in a holding cell until he could see a judge, was arraigned, had his name smeared through the mud, and, 13 days later, was completely cleared.
Now to some, this is evidence that the system works. After all, this was only a 13 day ordeal and we got the right result in the end. But arrests have consequences too. His name was brandied about the newspaper. Colleges shied away from him. His name will always be vaguely connected to criminal activity by those who remember the name from the paper, but not the story. Not to mention, he is just another young African-American man being mixed up with the criminal justice system before his 18th birthday.
Arrests have consequences. They make psychological marks on people. They affect their lives. They affect their families. In a technical sense, our young scholar-athlete was returned to his pre-arrest condition and there is no record of his arrest. In reality, he will never return to his pre-arrest condition and the scars, whether visible or not, will always be with him.
This story should be a warning. A warning about what could have been if the victim did not recant his identification. A warning about what could have been if the student-athlete didn't take time and date-stamped pictures from his cell phone. It is a warning about the dangers of eyewitness identification and about irresponsible press coverage. And it is a warning about the cavalier attitude we have toward the impact that being arrested has on the psyche.
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Deonte Houston, a Dean's List student and starting point guard at Wings Academy will likely head to a prep school next year in hopes of being noticed by a Division I basketball program. With a 14 point/6 assist average this season and strong academic credentials, I hope a lot of good schools take notice.