Kerry Porter walked out of a Kentucky prison in 2011 after serving 14 years for a murder he did not commit. An uncertain eyewitness who picked Porter out of a police photo array got him convicted. DNA and other evidence cleared him.
Porter’s story is nightmarish, but it isn’t unique. Of the several hundred Americans exonerated of felony convictions and freed from prison since 1989, more than 70 percent were wrongly identified by a witness. Like Porter, the majority were black men.
House Bill 387, filed last Monday by state Rep. Johnny Bell, tries to address this problem by setting mandatory “best practice” standards for police departments, to prevent police from steering crime witnesses toward a particular suspect rather than letting them make an independent choice or admit they just don’t know.
Thirteen states have passed similar legislation, buttressed by a 2014 report from National Academy of Sciences detailing the best available scientific understanding of how witnesses make mistakes.
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Bell said he hopes his bill gets a hearing from the House Judiciary Committee.
I cannot imagine anything more frustrating than to sit in prison for a crime you did not commit, declaring your innocence but not having anyone believe you.
State Rep. Johnny Bell, D-Glasgow
“I cannot imagine anything more frustrating than to sit in prison for a crime you did not commit, declaring your innocence but not having anyone believe you,” said Bell, D-Glasgow. “We have a constitutional protection that says we should be presumed to be innocent unless we’re proven guilty. So I feel we should take the utmost precaution in these cases to make sure we have the right person.”
The Kentucky Fraternal Order of Police will discuss what position to take on the bill in coming days, said FOP President Berl Purdue. Purdue said Clark County, where he is sheriff, adopted these standards a year ago.
“Just speaking for myself, I don’t see anything in there that jumps out at me as a problem that would cause us to oppose it,” Purdue said. “It’s pretty much a common sense bill. It’s nothing that has tied our hands or impeded any investigations.”
Under the bill, police would assign a “blind” officer, one who does not know the identity of the suspect, to guide witnesses through a suspect line-up or photo array. That’s meant to prevent police from suggesting, even inadvertently through subtle body language, which suspect they believe is guilty. After some wrongful convictions, witnesses said they felt compelled to pick a particular suspect because officers smiled, nodded or squeezed their arms at that choice.
Extra people added to flesh out line-ups or photo arrays should resemble the suspect as much as possible so the suspect doesn’t stand out from the group, the bill states. Witnesses should be told the suspect might not be among the group they’re examining, so they don’t feel obliged to pick someone. When practical, the witness identification should be recorded, including any statements the witnesses make about their lack of certainty.
A police department’s failure to follow the standards would have to be disclosed to the suspect’s lawyer, and it could be used in court to undermine the credibility of the witness testimony.
Kathy Stein, now a Fayette County family court judge, sponsored an earlier version of the bill during the 2008 legislative session while she was a state representative from Lexington. It never got a hearing that year.
“We threw it out there for people to talk about,” Stein said. “It was considered too radical a change at the time. It takes the legal system a while to catch up with things. When I started practicing law, you couldn’t use DNA as evidence in court. And of course, now you can use DNA for everything.”
I think everyone embraces the practices included in the bill, but I think what you also don’t want to see is a legislature dictating what the local policy has to be. Best practices evolve over time, legislation really doesn’t.
J.D. Chaney, deputy executive director of the Kentucky League of Cities
There are obstacles in the bill’s path. The Kentucky League of Cities opposes Bell’s bill on behalf of police chiefs who would prefer for the standards to be recommended, not required, said J.D. Chaney, the group’s deputy executive director.
As a practical matter, Chaney said, most of Kentucky’s larger law-enforcement agencies already have adopted standards much like the ones in the bill. The Lexington Police Department’s eyewitness identification policy, for example, includes many of the same ideas, although instead of making it mandatory for “blind” officers to guide witnesses, it states that “it is preferred.”
“I think everyone embraces the practices included in the bill, but I think what you also don’t want to see is a legislature dictating what the local policy has to be,” Chaney said. “Best practices evolve over time, legislation really doesn’t.”
However, Bell said future injustices can’t be prevented unless all of Kentucky’s police departments are bound to follow the same rules. Given all of the wrongful convictions exposed in recent years, many people now suspect the justice system doesn’t work, he said.
“You sometimes hear people say that, ‘Well, you gotta break a few eggs to make an omelet, you know,’ so if we have to lock up a few innocent people to get the guilty ones, then that’s okay,” Bell said. “But look at it this way. If we don’t arrest the right individual, then not only have we made an error with him, but that means the actual perpetrator is still out there somewhere, free to commit more crimes.”