Flaws seen in po­lice use of mug shot searches

The Bradenton Herald (Sunday) - - Nation & World - BY JOSEPH GOLD­STEIN

In­side a po­lice sta­tion house in New York City about a year ago, St. Clair Stew­ard in­sisted he had not been in­volved in a re­cent shoot­ing. Stew­ard told the po­lice he had been rest­ing at home.

In­ves­ti­ga­tors did not be­lieve him. The mo­tive be­hind the shoot­ing was a mys­tery, but the vic­tim had combed through pic­tures of peo­ple with past ar­rests and iden­ti­fied Stew­ard, a fa­ther of eight, as the as­sailant.

To the de­tec­tives in­volved, the shoot­ing in Jan­uary 2018 was just the lat­est in a long line of crimes solved by ask­ing a vic­tim to search through mug shots, an in­ves­tiga­tive tech­nique used in

New York for more than 150 years. De­tec­tives en­ter a de­scrip­tion of the per­pe­tra­tor into a data­base, which then spits out dozens or even hun­dreds of match­ing pho­tos. The wit­ness scrolls through, in hopes of rec­og­niz­ing the cul­prit.

But these open-ended photo searches also in­crease the like­li­hood of en­snar­ing an in­no­cent per­son, ac­cord­ing to stud­ies and ex­perts in eye­wit­ness iden­ti­fi­ca­tion. The method has few safe­guards to pro­tect against a false iden­ti­fi­ca­tion and can lead po­lice to fo­cus on the wrong per­son from the out­set of an in­ves­ti­ga­tion.

Many of the na­tion’s other large po­lice de­part­ments – in­clud­ing Chicago, Los An­ge­les, Hous­ton, Wash­ing­ton, Dal­las and Mi­ami-Dade – said they do not rely on the tech­nique, a New York Times sur­vey shows.

De­tec­tive bu­reaus in many other ju­ris­dic­tions do not show book­ing pho­tos to wit­nesses un­til they have a sus­pect in mind. In­ves­ti­ga­tors then con­duct a photo lineup, plac­ing the sus­pect’s among pho­tos of at least five “fillers” – peo­ple who fit the de­scrip­tion but are known to be in­no­cent.

That ap­proach of­fers some shield against a false iden­ti­fi­ca­tion: If the wit­ness chooses a filler, po­lice un­der­stand the wit­ness is wrong and know not to ar­rest that per­son.

In a mug shot search, ev­ery­one is a po­ten­tial sus­pect, and the ac­tual cul­prit might not be among the group. But who­ever the wit­ness se­lects be­comes the fo­cus of the in­ves­ti­ga­tion.

“I think it taints the in­ves­ti­ga­tion,” said Deputy Chief Thomas Cas­tro, who over­sees de­tec­tives for the Dal­las Po­lice De­part­ment.

Der­mot Shea, New York City’s chief of de­tec­tives, de­fended his de­part­ment’s use of the searches, say­ing they were just one of many in­ves­tiga­tive tools. The po­lice can also, he said, get leads from sur­veil­lance cam­eras, DNA ev­i­dence and track­ing tech­nol­ogy, such as in cell­phones.

“Mug shots are still a piece of the puz­zle,” Shea said. “But to me, they are a much smaller piece.”

In Stew­ard’s case, in the bor­ough of Queens, de­tec­tives en­tered broad search pa­ram­e­ters into the data­base: black men, aged 35 to 45 and be­tween 5 feet 8 inches and 6 feet 1 inch tall, with past ar­rests in three nearby precincts. The vic­tim chose Stew­ard, whose photo was the 31st to ap­pear, said a law en­force­ment of­fi­cial who asked to re­main anony­mous be­cause the of­fi­cial was not au­tho­rized to dis­cuss the case.

“They told me, ‘The per­son looked at your mug shot and said it was you,’ ” Stew­ard, 43, said in a re­cent in­ter­view.

Po­lice then put Stew­ard in a lineup along­side sev­eral other men. Again, the vic­tim chose Stew­ard. He was charged with at­tempted mur­der and jailed.

He stayed in jail for more than two months un­til a DNA sam­ple from the crime scene was fi­nally tested. The sam­ple, be­lieved to have come from the cul­prit, did not match Stew­ard, throw­ing the case into doubt. Pros­e­cu­tors qui­etly dis­missed the charges in Sep­tem­ber.

‘I HAVE NOTH­ING’

The re­li­a­bil­ity of eye­wit­ness iden­ti­fi­ca­tions be­gan to face se­ri­ous scru­tiny within the crim­i­nal jus­tice sys­tem in the 1990s, as DNA test­ing be­gan to ex­on­er­ate peo­ple who had been con­victed of rape and other crimes on the ba­sis of mis­taken eyewitnesses.

To some ex­tent, false iden­ti­fi­ca­tions are un­avoid­able. Mem­ory is spotty and mal­leable and erodes quickly. Cross­ra­cial iden­ti­fi­ca­tions are es­pe­cially prone to er­ror. One study of rob­bery in­ves­ti­ga­tions in Hous­ton found that eyewitnesses who claimed to rec­og­nize their as­sailant in a po­lice lineup had ac­tu­ally se­lected a per­son known to be in­no­cent about 47 per­cent of the time. An ag­gre­gate of sim­i­lar stud­ies found an er­ror rate of closer to 37 per­cent.

But the frailty of mem­ory is not the only prob­lem.

Poorly de­signed or sug­ges­tive po­lice pro­ce­dures can heighten the risk of a mis­taken iden­ti­fi­ca­tion, and crit­ics say open-ended mug shot searches are es­pe­cially vul­ner­a­ble.

Vic­tims can be­come worn down when view­ing a large num­ber of pho­tos and choose some­one who re­minds them of the cul­prit, said Cas­tro of the Dal­las Po­lice De­part­ment.

As the num­ber of pho­tos shown in­creases, “the more likely you are to en­counter some­one who looks like the per­son who com­mit­ted the crime, but didn’t,” said John Wixted, a pro­fes­sor of psy­chol­ogy at the Univer­sity of Cal­i­for­nia, San Diego, who re­searches eye­wit­ness mem­ory.

Across the coun­try, some po­lice com­man­ders have con­cluded that leav­ing a crime un­solved is some­times a bet­ter al­ter­na­tive to re­ly­ing on a pro­ce­dure that el­e­vates the risk of jail­ing an in­no­cent per­son.

“You just have to be will­ing to say – it’s not pleas­ant – ‘I have noth­ing,’ ” said Maj. Mike Smath­ers of the Char­lot­teMeck­len­burg Po­lice De­part­ment, North Car­olina’s largest mu­nic­i­pal po­lice force. “And I’m not go­ing to let some­one look through all these pic­tures when I have noth­ing.”

There is lit­tle data avail­able on how many po­lice de­part­ments across the coun­try con­duct ope­nended mug shot searches and how fre­quently they are used.

A 2011-12 sur­vey of po­lice and sher­iff’s de­part­ments showed that 56 per­cent of re­spond­ing de­part­ments with more than 500 of­fi­cers did not let wit­nesses pore over pho­tos, while the other 44 per­cent did. But it was un­clear whether the de­part­ments that used the tech­nique turned to it of­ten.

Na­tion­ally, po­lice de­part­ments in cities larger than a mil­lion peo­ple re­ported solv­ing fewer than a third of rob­beries in 2017, the last year for which num­bers were avail­able. The New York Po­lice De­part­ment says it solves rob­beries close to half the time.

Be­cause rob­bers fre­quently are re­peat of­fend­ers with pre­vi­ous ar­rests, many New York de­tec­tives be­lieve mug shots are a sen­si­ble place to turn. “De­tec­tives en­cour­age vic­tims to view pho­tos to breathe some life into the in­ves­ti­ga­tion,” said Michael J. Pal­ladino, the pres­i­dent of the De­tec­tives’ En­dow­ment As­so­ci­a­tion, which rep­re­sents the city’s de­tec­tives.

In New York, the pro­ce­dure is en­dorsed by the of­fi­cial De­tec­tive Guide, which lays out the Po­lice De­part­ment’s ba­sic in­ves­tiga­tive pro­ce­dures.

Der­rick Penn, 37, said be­ing jailed in 2014 on charges of com­mit­ting three armed rob­beries was “like be­ing in hell.” He missed his daugh­ter’s kinder­garten grad­u­a­tion, was slashed on the face while on Rik­ers Is­land and was told he might go to prison for up to 50 years.

Penn, who works at a New York hospi­tal man­ning an en­trance gate, had been iden­ti­fied as the cul­prit dur­ing a mug shot search in which more than 300 pho­to­graphs were shown to one of the vic­tims. Later, three vic­tims, in­clud­ing the one who chose him from among the pho­tos, iden­ti­fied him in a live lineup, Penn’s lawyers said.

He in­sisted he was in­no­cent, and lo­ca­tion data in­di­cated that his cell­phone was miles away from the rob­bery lo­ca­tions, ac­cord­ing to his lawyers, Scott Hechinger and Dara He­bert of Brook­lyn De­fender Ser­vices.

Pros­e­cu­tors dropped the case against Penn and sealed it. “The judge never gave me an apol­ogy – they just said, ‘Stay out of trou­ble,’” Penn re­called. He had been ar­rested nu­mer­ous times, mainly for mar­i­juana and driv­in­gre­lated of­fenses, but his lawyers said he had no felony record. “How’d they get it so wrong?” Penn said.

Eye­wit­ness iden­ti­fi­ca­tion ex­perts said mug shot searches may be a rea­son­able ap­proach in some sit­u­a­tions.

“If some­one was ab­ducted and spent two days with the kid­nap­per, who was un­masked, show them pic­tures,” said Gary Wells, a psy­chol­o­gist at Iowa State Univer­sity and a pi­o­neer in the field of eye­wit­ness iden­ti­fi­ca­tion. But for gen­eral use, he said, “I think it is a huge prob­lem.”

ONE STUDY OF ROB­BERY IN­VES­TI­GA­TIONS IN HOUS­TON FOUND THAT EYEWITNESSES WHO CLAIMED TO REC­OG­NIZE THEIR AS­SAILANT IN A PO­LICE LINEUP HAD AC­TU­ALLY SE­LECTED A PER­SON KNOWN TO BE IN­NO­CENT ABOUT 47 PER­CENT OF THE TIME.

EL­IZ­A­BETH D. HER­MAN NYT

Der­rick Penn was iden­ti­fied dur­ing a mug shot search in which more than 300 pho­to­graphs were shown to a rob­bery vic­tim. His case was dropped, but he said he never got an apol­ogy. Many big po­lice de­part­ments will not use open-ended mug shot searches be­cause of the chance of a mis­taken iden­ti­fi­ca­tion. But New York City de­tec­tives turn to them rou­tinely.

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