The House Judiciary Committee heard Wednesday from a Louisville man sent to prison for a rape he didn’t commit and a North Carolina rape survivor who helped incarcerate an innocent man. Both cases went tragically wrong because they relied on flawed eyewitness testimony.
“With one witness pointing her finger and saying ‘That was him,’ I was convicted and I served 12 years,” said Michael VonAllmen of Louisville, who was wrongly identified in 1982 as the man who abducted a woman outside a bar and raped her in a nearby park. The true attacker, Ronald Tackett, went on to rape at least one more woman before dying in a high-speed police chase.
House Bill 387 — which the committee discussed but did not vote on — would set mandatory “best practice” standards for Kentucky police departments working with eyewitnesses. Thirteen other states have passed similar legislation, buttressed by a 2014 report from the National Academy of Sciences on the best available scientific understanding of how witnesses make mistakes.
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 think is guilty.
The bill says 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. Witnesses should be told the suspect might not be among the group, so they don’t feel obliged to pick someone. And when practical, the witness identification should be recorded, including any statements witnesses make about their lack of certainty.
The bill is opposed by the Kentucky Association of Chiefs of Police and the Kentucky League of Cities. Those groups told lawmakers Wednesday that they laud the bill’s intent, but they don’t want a mandated set of standards for every police department to be written into law.
“The majority of what they’re asking for, we’re doing about 90 percent of it,” said Bellevue Police Chief Wayne Turner, representing the police chiefs.
House Judiciary Chairman Darryl Owens, D-Louisville, said he expects the bill to return for a committee vote in the next week or two. The sponsor, Democratic Rep. Johnny Bell of Glasgow, could not attend Wednesday’s hearing. Also, the bill’s supporters are trying to reach a compromise with its opponents.
Several hundred Americans have been exonerated of felony convictions and freed from prison since 1989, nearly three-fourths of them wrongly identified by an eyewitness.
For VonAllmen, his mistake was being in the wrong place at the wrong time. A 22-year-old woman was kidnapped outside a Louisville bar in October 1982 and then raped and robbed. She described her rapist as a heavy man with blue eyes and dark, curly hair; a police sketch was distributed around the neighborhood, including at the bar. Two nights later, VonAllmen — a heavy man with brown eyes and dark, curly hair — walked into the bar. Before long, police were at his home.
Next, VonAllmen said, his picture was included in a photo array police gave to the victim.
“She said, ‘Looks like him, but I can’t be sure,’” VonAllmen told the House committee.
Despite three alibi witnesses who testified at trial that he was at a party with them the night of the attack — and two subsequent polygraph tests that he passed — VonAllmen was convicted and sentenced to 35 years in prison. He was paroled in 1994. Sixteen years later, with the help of the Kentucky Innocence Project, VonAllmen proved that another man committed the crime. A Jefferson Circuit Court judge set aside VonAllmen’s conviction, saying in court, “The real bad guy got away from us.”
“The victim’s response was anger,” VonAllmen said. “At this meeting, she blurted out that she knew she had the right guy, because the cops had told her he had been arrested, that he had done this to five or six other women but they were all too afraid to come forward.”
Also present for the committee hearing were four men wrongfully arrested in 2014 for “flash mob” violence in downtown Louisville that included the assault and robbery of a woman. The men said the victim described her assailants as “four black males, ages 16 to 20.” Police confronted the men, all cousins, as they sat on a porch two blocks away.
“They said, ‘Y’all have been identified,’” said Craig Dean, now 22. “We thought we were gonna lose our lives to the system.”
Police brought the victim and an eyewitness in the back of a patrol car to identify the men, with a light flashed in their faces. Their identities supposedly confirmed, the men were arrested and jailed. But the grand jury later cleared them, in part based on evidence their family turned up, including video and cellphone records proving they were elsewhere during the attack.
Louisville Metro Government agreed to pay the men $1.5 million and acknowledged that “officers made a mistake in this case.”
The case of the “Misidentified Four” shows why a statewide law on eyewitness identification is so important, said the men’s attorney, Larry Simon. Just saying that most police departments already have identification policies is inadequate to protect the public, Simon said.
“Louisville Metro Police has very good policies and procedures in place. But the officers who handled this case failed to follow them,” Simon said.