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An Unusual Criminal Proceeding With A Question About Eye Witness Testimony

We have a weird criminal proceeding occurring here in Travis County. In 1986, 26 year old Timothy Cole was convicted of rape by a Lubbock County jury and sentenced to 25 years in prison. Cole maintained his innocence throughout the trial. In 1995, another prisoner confessed to the crime, but no one really took notice until 1999, when Cole died in prison. At that time, the state called the victim and informed her that Cole had died from complications from asthma. She told the officials she was surprised because her attacker was smoking throughout the attack. And yet nothing happened.

In 2007, authorities finally began listening to Jerry Wayne Johnson, the inmate that had confessed to the crime, and last year DNA testing, under the guidance of Barry Scheck’s Innocence Project, confirmed that Johnson was the attacker. While the DNA test was satisfying, Cole’s family wanted his name cleared.  Unfortunately, Lubbock County refused to do anything about it so in stepped Travis County District Judge Charlie Baird.

Judge Baird is one of the more progressive judges we have. For example, Judge Baird has personally recruited businesses asking them to help give criminal defendants better jobs. He’s also set up a parenting program that offers Saturday parenting classes to some of his probationers, even going the extra step of paying for the program out of campaign funds and attending the weekend sessions with the participants. (To read more about him, you can check out articles from the Austin Chronicle and the Austin American Statesman.)

Judge Baird is conducting a two day hearing to clear Cole’s name. Judge Baird contends that the Texas Constitution requires courts to remedy a wrong they have caused (for a different viewpoint, see Paul Kennedy’s post “Is Innocence a Bar to Execution?”). At the end of the hearing today, Timothy Cole is likely to become the first Texan to be posthumously cleared of a crime.

But it also struck me that Cole’s conviction is a great example of the dangers of eyewitness testimony. Cole was convicted primarily on the identification of the victim, who picked Cole out of a “lineup” (I use that term loosely; she was apparently given a color photo of Cole and black and white photos of other potential perpetrators.).

For years, experts have been concerned about the reliability of eye witnesses (a famous study on the issue that looked at eye witnesses’ reliability in recall information regarding car wrecks was published way back in 1978). And during yesterday’s hearing, attorneys from the Innocence Project called as an expert witness, Mike Ware, a Dallas County prosecutor. As you may know, Dallas County has seen 19 people exonerated through DNA testing in the last couple of years, and Ware said that all but one of those cases involved a mistaken identification.

It’s known that eye-witness testimony is a problem, and yet it still remains the holy grail in the courtroom. What are we as lawyers supposed to do about that? I don’t really have any answers, just a lot of questions.

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