Justice in Hindsight
(an insight into the conviction and exoneration of Anthony Capozzi)
by
William Morgan
Justice in Hindsight:
The Problem with Eyewitness Identification and Exoneration by DNA Technology
William J. Morgan, Jr.*
William J. Morgan, Jr. is ABD at Capella University, a criminal justice professor at Erie Community College, and a correction officer in the New York State Department of Correctional Services.
Abstract: According to Scheck, Newfeld, and Dwyer (2000), there have been innumerable individuals wrongly convicted of a crime and sentenced to life imprisonment or to death based upon faulty evidence. The historical development of DNA evidence as a tool in the investigative process during the past 25 years is explained,/analyzed, and the role of eyewitness evidence in the wrongful conviction of innocent individuals. This paper culminates in the Anthony Capozzi case study where eyewitness testimony wrongfully imprisoned a man before the advent of DNA technology and which ultimately freed him years after the crime. The methodology used is the examination of journal articles, books, and newspaper articles on the phenomenon of wrongful convictions.
KEYWORDS: DNA technology, Exoneration, Eyewitness identification, Innocence, Wrongful conviction
INTRODUCTION
Before the advent of DNA testing, suspects were convicted based on a number of physical evidence factors: blood type, fingerprints, eyewitness identification, admissions, and circumstantial evidence centered on theories of how or why the crime was committed. Occasionally, these types of evidence were unreliable but the best evidence that the criminal justice system had to offer to gain convictions. Rarely were convictions overturned based on witness recantations, new physical evidence, the true offender coming forward, or other types of evidence. Since 1986, DNA technology has offered a practically flawless and reliable method forconvicting offenders and the release of those wrongly convicted. This paper highlights the historical use of DNA evidence, procedures and problems associated with science, the examination of eyewitness testimony as a product of the human mind, which culminates in a recent application of DNA evidence to exonerate a man who spent over two decades in prison for a crime that he did not commit.
REASONS FOR WRONGFUL CONVICTIONS
A wrongful conviction could be defined as an innocent person convicted at trial or pleaded guilty to a charge when, in fact, they are innocent (Huff, 2002; Huff, Rattner, & Sagarin, 1996). Many reasons exist in the literature for erroneous convictions, for example, police or prosecutorial misconduct, inadequate defense counsel, racial discrimination, use of jail house informants, multiple types of evidence, prior record of defendant, faulty eyewitness identification, and false confessions (Blackerby, 2003; Harmon, 2001, Harmon & Lofquist, 2005). Fitzgerald (1997) proposed that minority and non-minority witnesses had difficulty identifying minority suspects in a fictional scenario suggestive that the cross-over between race and eyewitness misidentification is a major concern in erroneous convictions. A public policy concern of erroneous and wrongful convictions, as suggested by Cassell (1998), are false confessions by innocent people that undermine the criminal justice system and creating harm to society that allows the guilty to go free.
Criminal justice procedures, policies, and techniques are not the only perspectives on wrongful convictions are not the only perspectives on wrongful convictions.Huff (2002) outlined theoretical perspectives that contribute to wrongful convictions, such as plea bargaining that is a due process and crime control model aimed at keeping the criminal justice system running smoothly. It was posited by Schoenfeld (2005) that theoretical explanations of prosecutorial misconduct in decision making of plea bargaining are based on the crime or criminals as socially constructed definitions and, perhaps more broadly, uncertainty of the crimes. Schoenfeld postulated that prosecutors engage in misconduct when they rely on stereotyping of criminals, use questionable tactics to gain convictions, which violates the trust of citizens. A comparative analysis of two adversarial systems as a source of error is part of the structural problems that rely on convictions rather than justice and the filtering of innocents at trial; this contention is supported by
hundreds of thousands of arrests made in the United States every year for serious crime and hundreds exonerated since 1989, which makes it possible for thousands of wrongful convictions (Burns, 1999; Damas˙ka, 1986, 1997; Gross, Jacoby, Matheson, Montgomery, & Patil, 2005; Huff, 2002; Lerner, 2001; Zalman, 2006).
In a study conducted by Harmon and Lofquist (2005), it was hypothesized that a comparison of executed and exonerated individuals resulted from several factors such as a poor defense at trial, the use of a private or public defense attorney at post conviction appeal, and the type of defense that created a record for appeal. Using a logistic regression, case significant predictors of exonerations were race of defendant, prior felony, multiple evidences, type of trial attorney, and perjury. The above study was replicated from Harmon (2001), who concluded that significant predictors of wrongful convictions and release from death row were new evidence, type of attorney at post-convictions, perjury allegations, and multiple evidences; prior research was strongly supported by Harmon who further discussed policy implications and additional insights into the phenomenon of capital reversals. Bivariate analysis were conducted of the independent variables of race, perjury, police misconduct, private appellate attorney, and multiple evidences with the dependent variable of execution or release. Both studies should be viewed with caution due to the small sample size and use of multiple regressions. However, the most important issue of wrongful convictions may be the use of DNA technology to exonerate the innocent and convict the guilty.
DNA TECHNOLOGY
In the historical discussion of science and the criminal justice system, Crick and Watson (Berry & Watson, 2003) discovered deoxyribonucleic (DNA) in 1953 at Cambridge University. Deoxyribonucleic acid, or the cellular building block of the body, is in the cells of every person, and cannot be modified; therefore, DNA is the same in an individual.s semen, blood, hair, or saliva (Butler, 2001; Campbell & Reiss, 2002; Rudin & Inman, 2001; Telsavaara & Arrigo, 2006). It was hypothesized by Watson and Berry that the .Secret of Life. was discovered, which was based on the theory of evolution, the interrelation of life, and how heretical information is replicated and stored (p. xxi). Further development occurred throughout the 1960s and 1970s with the invention of the genetic code rooted in the proteins of the DNA sequence that culminated in the use of DNA in criminal forensics. Several authors, such as Berry and Watson; Arrigo, 2006; Holmes and Holmes, 2002; Telsavaara and Arrigo, 2006; Turvey, 2002; Wise 2004), surmised that newly developed techniques of identifying human genes in a 1986 England serial rape/murder cases could be used to aid law enforcement in establishing biological characteristics of offenders known as .DNA fingerprinting. (p. 429). Alec Jeffreys, known as the father of DNA fingerprinting, discovered that DNA is unique to each person and a possible, invaluable, and investigative tool to the criminal justice system (Watson & Berry, 2003).
Two methods of DNA identification in criminal investigations exist: the single-locus probe (SLP) is the most expeditious and preferred procedure that .isolates only a select number of DNA regions that are marked via radio active particles. and is expeditious to use this method (Telsavaara & Arrigo, 2006, p. 493). The second dissolves DNA into fragments, restricts enzymes with the use of chemical scissors, and more time consuming to use, better known as the multilocus probe (MLP) (Wise, 2004). It was suggested by Wise that a testing method used on degraded DNA, and a preferred standard today that uses minute samples, is the Short Tandem Repeat (STR) that utilizes the Polymerase Chain Reaction (PCR) and reproduces multiple strains of DNA. Another type of DNA profiling is mitochondrial, which is passed from mother to offspring during fertilization and can be determined from .matrilineal mode of inheritance. (Kobilinsky, Liotta, & Oeser-Sweat, 2005, p. 119). The latter type of evidence is often used in investigation for missing persons because the nuclear DNA degrades over time while the mitochondrial DNA can be extracted from bones and teeth (Kobilinsky, Liotta, and Oeser-Sweat, 2005; Wise, 2004). First used in 1996, mitochondrial DNA has been used in high profile cases, such as the Boston Strangler, Laci Peterson homicides, and to differentiate between trace evidence left by the offender and DNA of the victim.
A DNA fingerprint profile of suspects can be created from biological trace evidence, which is collected and tested from minute samples of blood, semen, hair, or drops of sweat, even in cases prior to the introduction of DNA science (Denov & Campbell, 2005; House, Cullen, Snook, & Noble, 2006; Telsavaara & Arrigo, 2006). An excellent example of the compilation of DNA evidence is the Justice for All Act (Telsavaara & Arrigo, 2006) that provides funding from the federal government to initiate or improve training programs for law enforcement, prosecutors, and laboratory staff for the handling, preservation, and presentation of evidence, to improve laboratories, and enter the back log of DNA evidence into the national database or the Combined DNA Index System (CODIS). At the state and local level, offenders convicted of violent and sexcrimes are the compilation of DNA profiles where the CODIS system is most helpful to solve current and cold cases. Some individuals were exonerated because of questionable handling of DNA evidence and laboratory procedures ripe for inaccuracies, which compromises the validity and reliability of evidence (Telsavaara & Arrigo, 2006). Used in undermining convictions based on eyewitness identification, the Justice Department cited the use of DNA testing as significant in wrongful convictions and capital punishment is the most prominent reform agenda of recent public policy discourse (Connors et al., 1996; Doyle, 2005; Zalman, 2006). This type of evidence is used with greater certainty of conviction/exclusion beyond a reasonable doubt as it provides a genetic blueprint of an individual (Denov & Campbell, 2005; Wise, 2004).
With hopes of exoneration and release from prison, convicted offenders are increasingly requesting DNA testing for convictions (Lee & Tirnady, 2003; Scheck, Newfeld, & Dwyer, 2000;Telsavaara & Arrigo, 2006). The first DNA exoneration occurred in Virginia where plea bargaining sentenced David Vasquez to 30 years for rape and murder; the actual murderer was subsequently arrested and convicted through DNA testing. The second exoneration was the false accusation of a rape that led to a false confession where the victim recanted; the man, Gary Dotson, was cleared through DNA testing after the court refused to accept the repudiation (Warden, 2005). Beginning with these two exonerations, a public policy issue of wrongful convictions was created and the power to eliminate or focus on likely perpetrators was based on high probability of biological evidence; the professional/social indifference on the topic was now a matter of miscarriages of justice (Zalman,2006).
In 2000, Governor George Ryan placed a temporary moratorium on the death penalty because of errors at trial resulting in re-sentencing or retrial as ordered by appellate courts (Harmon, 2001; Warden, 2005). Perhaps the most salient reason for the reversals were based on prosecutors at the original trials using jailhouse informants, witnesses coerced to lie, and accomplices or co-defendants that testified against the defendant as the sole means to convict. Other reasons exonerations occurred were forensic fraud, prosecutorial and police misconduct, and faulty eyewitness testimony. In 2003, the Illinois death row was emptied as the Governor granted a blanket clemency to inmates and placed a moratorium on the death penalty until the process was examined and the laws revamped. The most recent legislation allows pretrial hearings onjailhouse informants, protocol to scrutinize eyewitness testimony for the probative value, and cases that rest on a single eyewitness or informant for judges to bar a death conviction. Furthermore, simplified were jury instructions in capital cases, police required to record interrogations, firing of police engaged in misconduct, and allowed the Illinois Supreme Court to set aside capital cases .even if there are no grounds for relief. if the court deemed the conviction unjust (Warden, 2005, p. 384). An additional reform was found in a commission to study the affects of reform and the appropriateness and fairness of the process. These procedures were established to prevent wrongful convictions or put safeguards in place to avoid an erroneous death conviction; it is important to note that laws have been passed where DNA evidence is discovered for post-conviction appeals in many states (Kobilinsky, Liotta, & Oeser-Sweat, 2005; Warden, 2005; Zalman, 2006). Kobilinsky, Liotta, and Oeser-Sweat argued that post conviction DNA testing is a constitutional right although there is no uniformity by the courts and, as a peripheral issue, many inmates seek redress through the courts in the form of habeas corpus on the basis of newly discovered or existing DNA evidence. One particular case where habeas corpus and DNA examination was denied evidence due to federal judicial discretionary rules that could be used to exonerate an individual suspected of a wrongful conviction is the 1979 federal conviction of Jeffrey MacDonald for the 1970 slaying of his family on a military reservation (Bost & Potter, 1997). An issue important to many wrongful convictions is the use of eyewitness testimony, particularly where DNA evidence exonerated the innocent and vacated conviction (Beiber, 2004.).
EYEWITNESS TESTIMONY
The outcome of a trial sometimes relies on human memory and its accuracy, which is known as eyewitness testimony (Lotus & Ketchum, 1991). Small details become increasingly important, people are certain of recall, and the human mind is permanently etched in vivid detail. This is what makes eyewitness testimony dangerous indeed. Forgetfulness is part of human life because the human memory is not perfect; memory can be changed or transformed unconsciously from suggestions inferred by others (Loftus & Ketchum, 1991) and unknown etiology of differences between individuals may be accounted for by sex, race, and age (Ellis, 1975).
Strongly scrutinized by perceptive jurors are the accuracy, confidence, credibility, reliability, and certainty of eyewitness testimony and has an impact on verdicts; however, the memory of eyewitness testimony is generally accepted as truth by jurors (Wells & Murray, 1983). Realistic stress producing situations were poorly related to accuracy and confidence and while no one factor is responsible for the phenomenon, Wells and Murray cited multiple causes of witness perceptions: optimality, experience with others, selective cognition, and self-attributions. In a study on race and witness misidentification in fictional scenarios, Fitzgerald (1997) established that race of witness and race of confederate was significant under similar circumstances; Whites and Asians had more difficulty accurately identifying Black suspects in a college setting.
The truth is the subjectivity and interpretation of the witness as the human brain filters these "truths" from objective reality, even situations that never occurred (Loftus & Ketchum, 1991). The filtered representations are not bad memory but inherent in the human mind as normal function. Fractions and bits unconsciously fill in gaps where missing information is constructed by the subliminal. This is especially true in "event factors," which is a distortion or altering of memory within a specific event (Loftus & Ketchum, 1991, p. 23). In this frame, police tactics can bring about mistaken identifications, such as a photo line-up before a lineup of suspects where the result is wrongful identifications, particularly where multiple types of evidence is used by prosecutor (e.g., eyewitness testimony, confessions, expert testimony, etc.). Furthermore, witnesses sometimes had mistaken the wrongly identified individuals because of a similarity in features to the offender (Ellis, 1975; Loftus & Ketchum, 1991). For example, face recognition requires encoding that involves sequential patterns for peripheral analysis of certain reference points (i.e., recall of the nose leads to recall of the eyes, etc.), and atypical faces were more easily recognizable. Other factors have been blamed for the perceptions of eyewitnesses to include societal, cultural, psychological, and systematic even where DNA exoneration and mistaken identification resulted (Huff, 2004; Loftus, 1979; Wells, Small, Penrod, Malpass, Fulero, & Brimacombe, 1998). A parallel argument to eyewitness mistaken identification in wrongful convictions is the use of jailhouse informants to gain convictions. As indicated by Bloom (2005), informants have been used throughout the centuries by the government to obtain information and make a case against individuals deemed a threat; the early use of informants was commonly for political purposes. Contemporary use of informants, particularly jailhouse informants and snitches, finds that convicts facing serious charges are willing to convey fabricated information to gain favor with correctional administrators, the police, and prosecutors (Huff, 2002). It was further cited by Huff that many DNA death row and “snitch crisis” convictions in the 1980s at the L.A. County Jail were linked to exonerations and the improper use of jail house snitches and informants (p. 6). Other examples of the misuse of high-level and jailhouse informants used in multiple cases demonstrates how the criminal justice system sanctions criminal actions to gain convictions, such as James Bulger, Leslie White, and Stephen Flemmi, as delineated by Bloom. These types of informants are highly unreliable but often used to secure convictions. Eyewitness testimony, now in doubt with the introduction of DNA evidence and once thought absolute, now faced reassessment in the challenge of factual error (Connors, Lundregan, Miller, & McEwan, 1996; Doyle, 2005; Leo, 2005; Wells, et al., 1998; Zalman, 2006). A real-world case stemming from a 1987 wrongful conviction involves the main elements of this paper: mistaken eyewitness testimony, DNA technology, exoneration, and the apprehension of the guilty.
A WRONGFUL CONVICTION
On September 29, 2006, a woman from Clarence, a suburb of Buffalo in Western New York, was found unclothed, beaten, and strangled to death on bike path in the Town of Newstead, a popular attraction for bikers and joggers (Becker, 2006). Her husband, Steven Diver, stated that he had seen her vehicle parked near the bike path on the morning of the crime and provided a DNA sample to eliminate him as a suspect. While the Diver case was lacking sexual assault, the killer left a DNA sample behind that conclusively linked him to the murder. The sample left behind by the killer was drop of sweat left in the vehicle of Joan Diver that let the people of Buffalo know that the Bike Path Killer-Rapist had returned (Warner², 2007). The modus operandi of the killer was familiar to detectives from a series of serial rapes and murders 1986-1994, which includednine rapes and two murders. The killer preferred white females, stalked parks, secluded areas, and bike paths in the Western New York area, attacked the victim from behind, and left a signature of double ligature marks from a chain on the necks of victims (Becker, 2006; Warner³, 2007).
The DNA and modus operandi matched cases from as far back as 1983 where a 13-year-old girl was raped as she rode along railroad tracks on her way to school; this incident occurred long before DNA evidence was available and where the rapist-killer left DNA at 8 of the rapes/murders (Warner & Becker, 2006). The two women murdered during this period were Christine Mazur and Linda Yalem; the latter was killed on September 29, 1990. A profile of the killer created by criminal investigators revealed an organized, arrogant, nonpsychotic, methodical, meticulous, plotting individual, who left few clues behind, is white, and now in his 40s or 50s (Becker¹, 2007; Warner & Becker, 2006). Most important was that he was becoming increasingly violent. Because of a lapse in attacks since 1994, officials hypothesized that the killer may have been incarcerated and the most recent murder due to release of an inmate. A recently enacted New York State law required all felons, including probationers, to submit to the DNA state databank; the forensic evidence from the Diver case yielded no results from all submissions to the databank and all felons who had not provided a court-mandated sample were pursued (Becker, 2006).
In January of 2007, the eating utensils of Altemio Sanchez were collected from a local restaurant where the suspect ate that was processed for DNA evidence; the samples matched that from the crime scenes of the Bike Path killer/rapist (Gryta¹, 2007; Thompson, 2007). Sanchez was charged with the death of Christine Mazur, Linda Yalem, and Joan Diver and these were assertions that he vehemently denied (Gryta², 2007; Warner¹, 2007). Because DNA was recovered only from the vehicle of Diver and not her body, the case against Sanchez was circumstantial (Gryta¹, 2007). Sanchez.s. attorney commented that the admissibly of the evidence collected would be an issue brought before the court and expected to be the main issue at all hearings. However, because of a five-year statute of limitations according to New York State law, the rapes could not be prosecuted although five of the rapes and all murders were conclusively linked to Sanchez (Warner², 2007). Friends and family portrayed Sanchez as a family man and friendly guy that would be least expected to commit a crime of this magnitude. A former profiler for the FBI said that the psychopathology of serial killers is normalcy, sanity, and legitimately nice. For example, in the mid 1980s Sanchez was a little league baseball coach, volunteer for local charities, and known for his kindness and generosity. At the time of a series of rapes in Delaware Park in the City of Buffalo, Sanchez was a suspect in the rapes but dropped for lack of evidence.
In 1987, Anthony Capozzi was convicted of two rapes in Delaware Park based on eyewitness testimony, the suspicious activity of a man matching his description by a former police officer, the identification of the suspect in police line-ups, a match in blood type to the offender, and strikingly similar facial features and build to Sanchez (Becker4, 2007, Warner³, 2007). Sentenced to 11 2/3 to 35 years for the rapes, he served 21½ years before investigators had their doubts about the conviction; Capozzi spent that long in prison because he maintained his innocence and refused to accept responsibility for the crimes. The Erie County district attorney cited that physical or DNA evidence to overturn such a conviction was lacking and because the conviction was based mainly on eyewitness identification (Warner³, 2007). DNA testing was not available or in its. infancy at the time of the crimes or conviction (Warner4, 2007).
Investigators looking over the case files discovered that indeed DNA evidence existed from the Delaware Park rapes that were stored, preserved, and catalogued at the Erie County Medical Center, a method used before computers accumulated DNA evidence (Beebe & Becker¹, 2007). The discovered evidence soundly exonerated Anthony Capozzi of the crime and DNA matched that of Altemio Sanchez. In April 2007, an Erie County Judge vacated the charges and dismissed the case in the interest of justice, thus, setting Capozzi free after two decades (.Judge vacates,. 2007). To avoid a trial based on the overwhelming physical evidence, Altemio Sanchez plead guilty to the three murders on May 16, 2007 and his attorney likened his impulse control problems and animosity toward women to a drug or alcohol addict (Beebe & Becker², 2007).
CONCLUSION
The case of the Bike Path Rapist/killer spanned over two decades without a conviction and the conviction of an innocent man in similar cases based on multiple types of evidence. This is a case where lack of DNA technology at the time of the crime made it possible for a man to be wrongly convicted and exonerated. This is also a case where DNA led to the conviction of a man who terrorized the women of Western New York for two decades. The advent and improvements in DNA technology have proved to exonerate those wrongly convicted, process evidence from suspects or eliminate potential ones, focus on those in the DNA computer bank when a match is made in criminal cases, and store evidence in cases where offenders have not been identified. DNA evidence has been the precursor to exonerations of the wrongly convicted and serious miscarriages of justice, especially where witness misidentification and/or the misuse of informants was the foremost reason for conviction. DNA exonerations will have serious implications in the future for police, courts, and corrections.
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*Address correspondence to the author:
William J. Morgan, Jr.
Erie Community College
45 Oak Street
Buffalo, New York 14203
(716) 851-1246 Email: morganw@ecc.edu