When Our Eyes Deceive Us

I draw your attention to the case of a man held on death row since 1993 based on erroneous eyewitness testimony - Tony Egbuna Ford. He remains there fighting for his lifte to this day. The issuess with his ID are as follows:
* Viewing a 6 person photo spread with Tony at position 5, the witness first picked out number 4 as the perpetrator. This was written over with the number 5 later (by the detective in the case). We have copies of both the original and the amended statements. This has never been explained and was never challenged by Tony's trial counsel.
* One of the two witnesses identified Tony AFTER his picture had been all over the news as the prime suspect, and after having time to speak to the first witness (her sister) and discuss the photo spread (both sisters were shown the same photo spread)
* One of the two "eye witnesses" stated she had her head buried in a pillow the whole time of the incident
* On the day of trial both witnesses were asked (improperly) to confirm their identification of Tony outside of the courtroom. The prosecution pointed to Tony and asked "does that look like the man?". The witnesses took a long time to look at him and answered only that they weren't sure but it "could" be. This was witnessed by the court reporter who came forward in 2006 and spoke to journalists then researching the case for the show "The Wrong Man". The court reporter stated it was the only case that had ever caused him to be upset since he knew as soon as he witnessed it that Tony's trial would not be fair.
* This was a cross racial ID - under high stress.
* None of the other men in the line ups the witnesses were shown looked even vaguely like Tony or the true perpetrator.
* Eyewitness evidence was the ONLY evidence against Tony.

Further information on Tony's case is available on www.tonyegbunaford.com - including a study done by an eyewitness expert (whose assistance was denied at trial) which shows that the photospread was heavily weighted towards Tony being picked out.
We continue to fight for justice.

Thank you for this insightful article. It rekindled memories of my personal experience over 20 years ago.

I was mugged from behind one early morning as I headed to the bank with a night deposit for my employer. I heard a noise behind me, spun around and stared my attacker straight in the face. He had a table leg as a club, and his intent was clear. I quickly turned away with my arms around my head, but he hit me hard and I fell to the ground dazed. After I regained my senses, I called the police, had the paramedics check me out, and then drove home. I filed a police report, and gave as clear a description of the guy as I could: hispanic or native american, with brown skin, straight black hair, dark brown eyes, broad, round pudgy face with high cheek bones, and some acne scars. A few days later, a detective interviewed me, and corroborated my story and my description of my attacker.

Nothing seemed to come of this incident, then about three years later I received a call from the County Sheriff's office. They said they thought they had caught the guy who had mugged me. I agreed to look at a photo line-up. The Detective explained that he was going to show me only three photos. He said that all three of these men had long criminal records, and that all of them should be behind bars. He told me it didn't really matter which one I picked, only that with my I.D. of one of them, one more bad person would be off the streets.

I looked at the three pictures. All three men fit my description. It would have been so easy to simply pick one, any one, especially with the Detective's comments. But I couldn't do it. I could not in good conscience say that one, or the other, or any of these three men was definitely the man that attacked me. Three years is a long time to remember a fleeting look at a desperate man in the act of swinging a table leg at your head. The Detective was very disappointed, but told me he respected my decision.

Its funny, but despite the impact this event had on me and my family emotionally, I have always felt lucky. I was lucky that day, because he could have chosen a knife or a gun, but only brought a table leg. I have never regretted my decision to not "finger" one of those three men. No matter what else they had done, I was not confident beyond a reasonable doubt that any one of them had done this crime, that early morning, to me...

Great article. A great follow up is the book: Witness for the Defense by Loftus and Ketcham. There are numerous examples of failed eyewitness accounts often where physical evidence trumped eyewitness memory

It also goes into how our memory works and why it definitely doesn't work like a VCR in spite of what juries want to believe.

This is no joke - I was on a jury once where a woman had been stabbed in a very dark nightclub. After some chaos, the accused was picked up by security and held until the police arrived.

The defense attorney asked each witness separately (only one witness allowed in the room at a time) a few questions to describe the attacker.

All were consistent except for the victim herself. When asked what the the attacker was wearing, the victim described a completely differnt outfit (skirt instead of pants, different color, etc.) All identified the accused as the attacker.

As far as I can tell, everyone else was just describing the accused when she was in the well-lit front of the club, in handcuffs.

When we went to deliberate, I was very surprised to find out that no other jurors had even noticed this detail, and most were ready to convict based upon the fact that the victim stated the accused was the one who had stabbed her.

We clearly had reasonable doubt because the victim's description of the attacker did not match what the accused was wearing, and the nightclub where the attack took place was very dark. Most of the other jurors hadn't even thought about "reasonable doubt". They only heard that the victim ID'd the accused as the attacker, and they were ready to convict.

After 5 hours of deliberation, we finally came back with a not guilty verdict. I was shocked at how close this person came to being convicted based upon the evidence that was presented. It's like most of the jurors weren't paying close attention to the testimony.

I later gathered that the accused had been through 2 previous mistrials, and this had ruined the last four years of her life. I hope I am never in the wrong place at the wrong time.

I will be very afraid if I am ever accused of a crime. I do not trust the system at all after seeing what actually happens in a trial.

You are all absolutely right. What a flawed justice system we have here. In fact, I think the police should just stop arresting people altogether. Unless the officer actually witnesses the crime, well, looks like the criminal will get away with it. We've 'proven' that we cant rely on the citizens testimony. Got raped? Sorry...didnt see it happen. Somebody shot you? Sorry..wasnt there. Since apparently physical evidence and witness testimony isnt enough for you folks to feel good about convictions, we should just wait until the criminals concience gets the best of him. Of course even if he confesses, we could speculate that hes crazy or the nasty police coerced it out of him. All I ask is that you not demand justice when its your turn as the victim.

This just happened in a case I was a juror on. Only God knows if the person was really guilty, but the line-ups were done with a bunch of faults, in fact every fault there is. The defense attorney and expert witness on false eyewitness identification and memory occurrences were crystal clear as to why the line-ups were clearly unreliable. I thought it was a clear case of not enough evidence to prove guilt, but didn't realize I would be faced with a room full of jurors who did not see it that way. The jurors thought, the lineup could've been better "but" they still identified him. Being the only one who was unconvinced, under pressure I was yet convinced by the end of the day to go with the probable or possible, and along with the majority. (a horrific act on my part that i regret.) From that experience I see that the justice system can really use some procedural improvement in that area to prevent these horrible mistakes from happening. Leaving it up to the jurors to decipher it all...people are going to have more of a bias to thinking that the person on trial is likely guilty especially if there's an eyewitness identification, regardless of whether it could have been "done better".

This article, and the comments below point out a rather shameful fact - that the "justice" system in the US is about as medieval as that of many backwards Islamic countries that we so happily deride. It is arbitrary, and is better called the revenge system. If you're unlucky enough to be in the neighborhood of the crime or the criminal, you're as much in danger from the "law" as from the criminal. It is doubtful that the number of innocent men executed in our prisons is larger than the number of beheadings we hear about on TV. What's the difference, really, to the victim?

Ms. Lithwick,

I enjoyed your article and I hope the current spate of conviction reversals, along with the recent scientific studies, helps to revise the system. No one should spend time in prison for crimes they did not commit. I thought it ironic, however, when I went to your story and the caption said 'Ronald Cotton, right' when in fact, Ronald Cotton is on the left. Having seen this story on 60 Minutes, I think I am a fairly good eye witness!

Lucky this was not a capital case. Time after time our crimminal justice system is shown to be flawed and yet reforms are slow in coming. Too many people feel, especially when the accused is a minority, that they must be guilty of something so better this than some other crime later. They feel this way until someone they know is victimized either as a defendant or as Jennifer was. God bless you both for having the spirit of forgiveness as Jesus taught. Thank you for using your collective experience to be the voices of reform to help prevent further victimization.

If someone was put through this same process and was identified/convicted wrongfully how can you clear that person if you can not afford the court cost associated with clearing your name?

If someone was put through this same process and was identified/convicted wrongfully how can you clear that person if you can not afford the court cost associated with clearing your name?

Jennifer and Ron have given us what should become a textbook for those in criminal justice, ???Picking Cotton??? literally mesmerized this retired once pro-death penalty prison warden. The executions I carried out in the name of the law should have never happened and the book ???Picking Cotton??? gives a staggering account of why! I still have doubts about the guilt of at least one person executed at my command. Ron McAndrew, www.RonMcAndrew.com

Jennifer and Ron have given us what should become a textbook for those in criminal justice, ???Picking Cotton??? literally mesmerized this retired once pro-death penalty prison warden. The executions I carried out in the name of the law should have never happened and the book ???Picking Cotton??? gives a staggering account of why! Ron McAndrew, www.RonMcAndrew.com

There are several things that have been known for quite some time, as I learned about these things in college 10 years ago. The first is that eyewitness testimony is notoriously unreliable, particularly across racial lines. Studies have shown that human beings are much better able to distinguish the characteristics of their own race. The second is that given the opportunity to choose a person out of a line up, people will often choose the person who most resmbles the person who committed the crime, even if that person is not in the line up. The third is that in a line up or looking at photos, it is better to show a person one picture or person at a time instead of showing them as a group. They will compare features that way and it it confuses their memory of what they actually saw.
Why police procedures have not been changed is beyond my comprehension.

Years ago, I asked my father, an attorney in Buffalo, NY if he was for or against the death penalty. I was shocked by his response, I would be, if the courts were better than 40% accurate."

My father knew the one thing in the late 1970's that no one brought to the discussion: Courtroom trials do not guarantee that the truth about anything will come to the fore. My father, who knew when to go to trial, and when to stay out of a courtroom, never lost IN a courtroom, even when he knew he should have.

It is a system designed to get to the truth, but there is no guarantee it will work correctly every time. It is filled with assumptions that turn out later to be false or inaccurate, such as the infallibility of eyewitnesses.

In Texas, they don't care. Especially if you read stats on the racial aspects of who gets the death penalty. There are studies suggesting that each race is less capable of picking up identifiying visual traits from people of other races, the, "They all look alike" syndrome. If true, then eyewitness testimony is less credible as it crosses racial boundaries than if it stays within them. Will we find that such a thing could hold true for blondes testifying against brunettes? Or vice versa? How about the overly tall testifying against shorter people? Can they pick up the characteristics as accurately as against someone their own height?

Ronald Cotton is not an isolated case. It could happen to any of us at any time.