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And Another ...

by TChris

Two days ago, this post remarked: "It seems that a week rarely goes by without a new report of an innocent accused being cleared (after conviction) by DNA testing." This week, only two days have passed.

Luis Diaz was arrested in 1977 when a teenage girl identified him as the man who had raped her a few nights earlier. The police were unconvinced that the girl identified the right man, and they eventually let him go. After a series of rapes in the Miami area, police began putting Diaz' picture into photo arrays. A victim picked out Diaz' picture, so they threw Diaz into lineups, where six more victims identified him.

All those people can't be wrong, right? The fact that Diaz, at 5'3", was smaller than the assailant that many witnesses described to the police didn't trouble the jury for long. And so Diaz, who has always protested his innocence, was sent to prison for life, convicted of seven sexual assaults. But now, DNA testing of evidence from two victims provides persuasive evidence that the crimes weren't committed by Diaz.

Barry Scheck and others explain how so many witnesses got it so wrong:

Barry Scheck, co-founder of the Innocence Project, a nonprofit group that fights for DNA exonerations, said most - about 120 of 160 exonerations since the advent of forensic DNA testing in 1989 - hinged on mistaken witness identification. But none involved as many mistaken witnesses as the Diaz case, he said.

"It's a landmark case for that reason," Mr. Scheck said. "These were crimes that upset people in the community, there was pressure to solve them, and there were, I think, unfortunate eyewitness techniques used that, in light of what we know now, were the kind that lead to error."

Scheck advocates sequential lineups. Showing witnesses one suspect at a time reduces the likelihood of mistaken identifications, countering the natural tendency to pick out the person in a group who most closely resembles the true culprit. But that technique only works if the officers conducting the lineup don't send clues to the witness, encouraging identification of the person they suspect is guilty. To avoid the introduction of bias, the officer conducting the lineup should have no idea which person in the lineup is the suspect, and the witness should be told that the suspect isn't necessarily in the lineup. Without these safeguards, this is what happens:

One victim, whose identification of Mr. Diaz led to his arrest, said she had originally thought none of the men in the nine photographs she was shown resembled her attacker. She had asked to see more pictures, she said, but settled on Mr. Diaz after the police twice told her to keep looking at the first batch. He was the only one who remotely looked like the attacker, she said.

The woman later picked Diaz out of a lineup, but at that point her memory had been tainted by having seen his picture repeatedly in the photo array. Realizing her error years later, the woman recanted.

Prosecutors concede that some victims may have been mistaken, but they refuse to acknowledge that Diaz is innocent of each of the rapes. In light of the shattered case against Diaz, however, they won't retry him. Joined by Diaz' defense lawyers, the prosecutors will ask a judge today to vacate Diaz' convictions -- 25 years after they sent him to prison for crimes he didn't commit.

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    Re: And Another ... (none / 0) (#1)
    by ppjakajim on Sat Dec 17, 2005 at 01:01:51 PM EST
    Okay, I'm on your side in this, but please tell me what "persuasive evidence" means. The DNA is either his, or it is not. Which is it?

    Re: And Another ... (none / 0) (#2)
    by Kitt on Sat Dec 17, 2005 at 01:01:51 PM EST
    Jeezus Jim - Do you deliberately 'play stupid' or are ya just punking us? Direct from dictionary.com
    persuasive Tending or having the power to persuade: a persuasive argument. adj 1: tending or intended or having the power to induce action or belief; "persuasive eloquence"; "a most persuasive speaker" [ant: dissuasive] 2: capable of convincing; "a persuasive argument"; "the evidence is persuasive but not conclusive


    Re: And Another ... (none / 0) (#3)
    by Quaker in a Basement on Sat Dec 17, 2005 at 01:01:51 PM EST
    Just guessing here, PPJ, but I'd guess that since there were seven victims, but only two DNA samples taken, persuasive evidence means the evidence isn't absolute. On the other hand, if the description of the attacker is the same in all seven cases and it's proven that Diaz didn't commit two of the crimes, that's persuasive evidence he didn't commit any of them. Yes?

    Re: And Another ... (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:01:51 PM EST
    Jim commented:
    Okay, I'm on your side in this, but please tell me what "persuasive evidence" means. The DNA is either his, or it is not.
    Jim, It is possible for someone to have unprotected sex before they were raped leaving someone else's dna behind. It is also possible for a rapist to leave very little dna behind. It is, therefore, possible for the dna from samples to not match a real assailant. Possible, but unlikely. Even less likely that it would happen twice. I assume that in this case, the dna doesn't match, which is very persuasive, but the prosecutors can still claim that they believe that they prosecuted the right man.

    Re: And Another ... (none / 0) (#5)
    by ppjakajim on Sat Dec 17, 2005 at 01:01:52 PM EST
    clay_m - Thanks. I am also guessing the DNA didn't match, but the post doesn't say that. QIB - I would agree, if the DNA doesn't match. I'm curious, however, why the post didn't say that it didn't match, which then makes a persuasive argument. Kitt, thanks for the kind words/thoughts. See my above comments.

    Re: And Another ... (none / 0) (#6)
    by Quaker in a Basement on Sat Dec 17, 2005 at 01:01:53 PM EST
    why the post didn't say that it didn't match, which then makes a persuasive argument
    For that, see the linked article:
    Only two evidence samples remained: one from a victim who identified Mr. Diaz but later recanted, and another from a victim who was attacked around the same time but never brought charges. The testing found that one man committed both rapes, according to the Innocence Project, but he was not Mr. Diaz.


    Re: And Another ... (none / 0) (#7)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:01:54 PM EST
    What scares me most about this is the number of people who have been falsely convicted without DNA evidence. If new DNA analysis that was unavailable at the time of the original trial exonerates the defendant in, let's say, 10% of the cases where it's available, it's reasonable to infer that 10% of convictions are incorrect in cases where DNA isn't available. The problem is, in those cases we have no way of knowing which 10% it is, and innocent people will stay in prison. DNA analysis is a valuable tool for finding some specific miscarriages of justice. What may be even more important, though, is to use the lessons learned from cases where DNA is available to improve the process for cases where it isn't. I have no idea how to go about doing this, but someone should.