Few police departments turn in survey on witness ID

By By Erin Beck
Staff writer
F. BRIAN FERGUSON | Gazette photos
Michelle Feldman, state policy advocate with the Innocence Project, describes state recommendations for police witness identification policies in an interview with the Gazette. The Innocence Project recently conducted a survey to determine how many police agencies statewide have written polices for conducting lineups.
In an interview with the Gazette, Rebecca Brown, director of state policy reform with the Innocence Project, said 22 percent of police agencies in West Virginia have responded to a survey on whether agencies have established a written policy for lineup procedures, which the Legislature directed police to do last session.

CHARLESTON, W.Va. — Larry Holdren spent 14 years in prison after a woman mistakenly identified him as the man who pushed her down a hill then raped her while she was jogging along the Kanawha River bank in 1982.

The woman had lost her glasses during the fall, and when police showed her a photo lineup, other pictures were of men who did not match her original description, according to an Innocence Project description of the case.

Holdren’s indictment was dismissed in January 2000, after DNA evidence showed he was not the perpetrator.

His was one of the six cases in West Virginia in which DNA evidence has shown a person was wrongfully convicted.

Among the six, five involved inaccurate witness identification.

Advocates of improving witness identification practices at the Innocence Project, an organization that represents the wrongfully accused, want to reduce the likelihood that a witness will make another mistake when viewing a lineup in West Virginia.

But they say that just 22 percent of police agencies statewide have responded to a survey asking whether agencies have established a written policy for witness identification procedures, which the West Virginia Legislature directed police to do last session.

The 62 agencies that have responded so far have jurisdiction over 42 percent of the state population.

Written policies were supposed to be adopted by Jan. 1, 2014.

The Innocence Project and the Law Enforcement Professional Standards Program, which is part of the Division of Justice and Community Services and oversees police training, sent a survey to all 277 police agencies in West Virginia asking whether they had complied in January, then sent a follow-up survey in June after receiving just 15 replies.

They requested the brief forms be filled out and returned by Aug. 1.

The bill, Senate Bill 200, which was passed during the last session, also included best practices that agencies are encouraged, but not required, to adopt.

The law recommends that witnesses be instructed that an alleged perpetrator may or may not be present in a lineup, that a witness is not required to make an identification, that it is as important to exclude an innocent person as it is to identify a perpetrator, and that the police officer working with a victim during a lineup identification does not know the identity of an alleged perpetrator.

It also recommends that the law enforcement officer should be unaware who in the lineup is a suspect.

Innocence Project representatives Michelle Feldman and Rebecca Brown said sometimes police officers can make nonverbal gestures that lead witnesses to believe they have pointed to the perpetrator, boosting the witness’s confidence during court testimony.

The “best practices” listed in the law also make concessions for small departments. For instance, when it is likely all officers in a department know who the suspect is, law enforcement can use folders to hide photos from view.

The law recommends that live or photo lineups be presented to the witness one by one and at least four “fillers,” or random photos of people, be used in lineups.

It also encourages law enforcement to require a statement of confidence at the time of the identification.

The Innocence Project has been working on enacting witness identification legislation in West Virginia since 2007. That year, the Legislature passed a bill that created a task force to work on a report on witness identification best practices, but a report was never produced.

A list of best practices was included in the latest bill, but it doesn’t include a mandate for what written policies should include. That’s because when the bill was being crafted, law enforcement indicated they were prepared to write their own policies, according to Brown.

“We always say we just want to see adoption of best practices,” Brown said. “However, at a certain point if it becomes clear the volunteer adoption mechanism simply is not working, there could be a role for the Legislature.”

The Kanawha County Sheriff’s Department’s policy is based on the recommendations of SB 200, according to spokesman Cpl. Brian Humphreys. He said lineups are relatively infrequent and, so, having a written policy helps remind officers of proper protocol.

“We have forms with instructions to remind each one of us how to conduct a photo lineup according to state law in a way the protects the credibility of the witness as well as the innocence of the parties who aren’t involved in a crime,” he said.

Humphreys said the department recently started using the folder method to keep officers from knowing which photo a witness is viewing.

“It may sound cliché or silly to people, but the fact is, we don’t want to put the wrong people in jail,” he said. “We don’t just want to arrest someone. We want accuracy just as much as anyone else does in our arrests.”

Feldman and Brown say they hope other agencies recognize the benefits on their own, without the Legislature mandating what written policies should contain.

The Innocence Project has offered in-state training sessions and sent model policies, policy-writing guides and links to training videos with the surveys.

“It’s also to protect the police because the defense will challenge them in court and say, ‘Why aren’t you using these best practices?’ So really it’s a benefit to both law enforcement and innocent people,” Feldman said.

The West Virginia State Police does have a written policy based on the best practices outlined in the bill, according to Capt. Reginald Patterson.

He said the majority of recommendations were already being followed prior to the bill’s passage.

“The State Police believes that utilizing the best practices for conducting eyewitness identifications would serve and protect the innocent, the community, the agency and the state to the best of our ability,” he said.

Charleston Police Chief Brent Webster also said his department’s policy was already basically in line with the state’s recommendation before the bill passed.

“There may have been a few tweaks to ensure we had what the state Legislature wanted, but it was pretty painless for us because we really felt like we were doing the right things anyway,” he said. “Eyewitness identifications are a big part of criminal investigations. We want to make sure there’s integrity in that process and we get it right.”

Charleston’s survey was not completed until this week, when Webster became aware of it after an inquiry from the Gazette.

Some other agencies that haven’t responded may also be compliant with the legislation already, but Feldman and Brown urged remaining agencies to complete the survey anyway.

According to Innocence Project records provided to the Gazette, police departments in the following cities in Kanawha County have not responded to the survey: Belle, Cedar Grove, Chesapeake, Clendenin, East Bank, Glasgow, Handley, Marmet, Nitro, Pratt, St. Albans, Smithers and South Charleston.

The Kanawha County Sheriff’s Department and police departments in Charleston, Dunbar and Montgomery have indicated they do have written policies.

Sheriff’s departments in Cabell, Harrison, Jefferson, Logan, Monongalia, Raleigh and Wood counties, as well as city police departments in Kenova and Parkersburg, have not responded.

Sheriff’s departments in Berkeley, Fayette, Mercer, Preston and Putnam counties, as well as the Huntington, Morgantown, Wheeling and West Virginia University police departments have indicated they do have written policies.

Reach Erin Beck at erin.beck@wvgazette.com, 304-348-5163 or follow @erinbeckwv on Twitter.

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