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How mistakes put a Kansas City doppelganger in prison

A photo of Richard Anthony Jones was the 202nd needle in a haystack of mugshots of black men named Richard or Rick. In 1999, a self-described crackhead pointed at that photo and fingered Jones as the perpetrator of a robbery three months earlier, setting in motion what would become a 17-year nightmare for Jones and a textbook example of the now well known dangerous unreliability of eyewitness testimony and flawed police photo lineups, The Kansas City Star (http://bit.ly/2rOU2E1 ) reported.

“Since that questionable identification, the police never looked at another suspect,” attorneys for Jones said in court documents. “Mr. Jones was the victim of an unnecessarily suggestive police lineup, which is what the other witnesses identified him from.”

The victim of the robbery, who along with others identified Jones as the suspect, calls the situation tragic. But for criminal justice experts, it’s hardly surprising. Eyewitness identification is the leading cause of wrongful convictions. Nationwide, of more than 300 wrongful convictions later overturned by DNA evidence, mistaken eyewitness identification played a role in about 71 percent of the cases, according to the Innocence Project.

More police departments around the country began reforming their procedures around eyewitness identifications in the last decade as the research surrounding criminal eyewitnesses has become accepted, proven science. No less an august organization than the National Academy of Sciences has studied the eyewitness identification issue, and in a 2014 report, it raised concerns about how photo lineups are presented to witnesses.

“Research has consistently shown that the accuracy of these lineups can be skewed or influenced based on how lineups are presented, the type of presentation, how similar the suspect and non-suspects look in the lineup, where the suspect is placed in the presentation, nature of the instructions and any feedback given to the eyewitnesses before or after the identification,” according to the report. Continuing concerns about eyewitness reliability prompted the Kansas Legislature last year to require police departments to adopt protocols for conducting witness lineups. A Missouri lawmaker has pushed reforms but to no avail.

The number of states adopting statewide standards now numbers 19, many of them joining the list since the National Academy of Sciences study, said Michelle Feldman, legislative strategist for the Innocence Project in New York.

“The science is settled,” she said. Dozens of exoneration cases are featured on an Innocence Project website dedicated to Eyewitness Identification Reform. Among them was a case decided just last month in Indiana. William Barnhouse was exonerated by DNA testing after serving 25 years in prison for rape. The victim in that case had identified Barnhouse as her attacker.

In Missouri, every case involving a DNA exoneration was based on eyewitness identification, according to the Innocence Project. One exoneration came in 2013 when another Kansas City man was released from prison after DNA testing proved that someone else committed the rape he was convicted of committing. Robert E. Nelson was charged after the rape victim “tentatively” identified him in a video lineup. She later testified that she was positive after hearing his voice and seeing him in person.

In Kansas, the state’s first DNA exoneration case came in 1992 when Joe C. Jones was released from prison after serving seven years in prison for the rape of a woman in Topeka. The victim and two other witnesses had identified Jones as the attacker. Even in states that have yet to legislate reform, law enforcement agencies are establishing reform policies, defense attorneys have more ammunition when eyewitness testimony is weak and judges are throwing out bad identifications, Feldman said.

“They’re sending the message to law enforcement that they have to follow these practices,” she said. “It’s in the water.”

The enlightenment and subsequent reforms came years too late for Richard Jones, now 41. He lost the opportunity to watch his children grow up.

“When it comes to my kids, it’s been a rough ride,” Jones told The Star. Jones spent Memorial Day 1999 in Kansas City, celebrating the holiday and his girlfriend’s birthday with family and friends. Across the state line in Kansas City, Kan., three admitted crack cocaine users were driving around short of money and looking to get more drugs.

Near a known crack house, they picked up a man named “Rick” who had them drive him to a Walmart in Roeland Park. There, Rick tried to steal a woman’s purse, but she fought back, and he escaped with only her cellphone. Just over four months later, police arrived at Jones’ door and arrested him. Despite the absence of physical evidence and an alibi backed up by several witnesses, a Johnson County jury found Jones guilty of the crime.

Only the testimony of eyewitnesses who identified Jones as the robber put him in prison. And it was only through the dogged persistence of Jones and his attorneys that the testimony of those witnesses was found to be woefully flawed. Last week, a Johnson County judge vacated Jones’ conviction, and on Monday, prosecutors said they were dismissing the case.

His freedom came after his attorneys found another man who bore an uncanny resemblance to Jones who his attorneys alleged was the actual perpetrator. That man was never part of the initial investigation, but he lived near where the robber was seen on the day of the robbery. And when witnesses who initially identified Jones saw a picture of the other man, they said they could no longer say who committed the crime. Although the ruling stopped short of finding Jones innocent, District Judge Kevin Moriarty said that based on the new evidence, no reasonable juror would find Jones guilty.

The criminal justice system has recognized for years that eyewitness testimony is notoriously unreliable.

“This court has long recognized that eyewitness identifications’ unique confluence of features their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process can undermine the fairness of a trial,” U.S. Supreme Court Justice Sonia Sotomayor wrote in a 2012 case. After the 1999 robbery, investigators quickly traced the getaway car back to three people who told them they had been smoking crack cocaine that day and picked up a man they knew only as Rick or Ricky. It was Rick who committed the robbery, they said. The victim and witnesses described the robber as a Hispanic or light-skinned black man with a goatee or with his hair pulled back from his face.

Police investigators gathered a series of mugshots of black males with the name of Rick or Richard. The driver of the getaway car was brought in to look at the photos almost three months after the robbery. When he came to picture No. 202, he told police that it was the Rick who committed the robbery. It was a picture of Richard Jones, whose mugshot was in the system from a previous arrest. Police then created a lineup using that photo of Jones and photographs of five other black males.

But according to Jones’ lawyers, he was the only light-skinned man in the lineup.

“This photo line-up is severely flawed,” his attorneys argued court documents. “Richard Jones is the only one who comes close to the description of the suspect.”

The judge who ordered Jones’ release said in his ruling that although the original photo lineup was no longer available, and the photocopy presented as evidence was of poor quality, it appeared that Jones was the only light-skinned man in the lineup. A detective took that six-picture lineup to a Kansas prison where one of the other men in the car on the day of the robbery was incarcerated. That man identified Jones as Rick. Nearly five months after the robbery, that photo lineup was shown to a Walmart security officer who had witnessed the robbery. He too picked the picture of Jones.

Jones’ attorneys noted in their court filings that the security officer had previously misidentified someone else as having been the driver of the getaway car. The victim in the robbery, Tamara Scherer, told police in her initial statement after the robbery that she had not focused on the robber’s face and did not think she would be able to identify him. But at the preliminary hearing for Jones almost a year after the crime, she identified him in court as the man who robbed her.

“Completely certain, without a doubt,” she testified.

At Jones’ trial, Scherer and the security guard once again identified him. But the two men who had initially picked his photo out of the lineup were unable to identify Jones as Rick. Jones was convicted, and because force was used in the robbery and he had prior felony convictions, he was sentenced to 19 years in prison. Scherer regrets that she set aside her uncertainty in identifying Jones. The detectives and prosecutors had assured her they had the right man and that there were other eyewitnesses. She was adamant in her court testimony under cross examination that Jones was the man who had robbed her.

“I don’t know where the finger-pointing should go,” she said, looking back. “It was a calamity of small things that lined up the wrong way.”

The result, she said, was “tragic.”

The circumstances of the Jones case were extraordinary and unlike any that Johnson County District Attorney Steve Howe said he’d encountered in nearly three decades in criminal justice

It was the presence of a lookalike to Jones also named Rick that led to the dropped charges, not the conduct of law enforcement, Howe said. Prosecutors and investigators have long been aware of the hazards in developing eyewitness testimony, he said.

“We go out of our way to make sure we are not planting our view into their (the witnesses’) minds,” he said. “Our job is to see justice done.”

Jurors heard family members support Jones’ alibi that he was with family that day but jurors were more inclined to assume they were lying than discredit the eyewitness identifications of Jones, said Tricia Bushnell, executive director of the Midwest Innocence Project.

“We hold up eyewitness identification so highly,” she said, “.(yet) it is the leading cause of wrong convictions.”

Even in 2000 when Jones went to trial, Kansas court officials were aware of the unreliability of eyewitness identification, and jurors in his case were instructed on factors that could affect witness testimony. Those factors given to jurors to consider included:

The length of time the witness had to view the suspect and limitations such as an obstruction or poor lighting; the emotional state of the witness; whether the witness had viewed the suspect on a prior occasion; whether a significant amount of time passed from the crime to the identification; whether the witness ever failed to identify the suspect or made an inconsistent identification; and the degree of certainty demonstrated by the witness.

Every one of those factors appear to have been present to an extent in Jones’ case.

“Several of those variables exist in this case and almost certainly have an enormous impact on the accuracy of the identification by the eyewitnesses,” Jones’ attorneys wrote in their motion seeking his release. According to Jones’ attorneys, the victim’s encounter with Jones was obviously emotional and high-stress. And the first identification of Jones’ picture did not come until almost three months after the robbery and was made by a man who was on drugs at the time.

“Eyewitness identification is flawed as is, but infinitely more so when done by someone who was admittedly impaired at the time of the interaction with the perpetrator and three months after the commission of the crime,” his attorneys wrote.

Also, they noted that the Walmart security officer had previously misidentified another person as being in the car at the time of the robbery. And the two men in the getaway car who initially identified the picture of Jones could not identify him when they saw him in court. Police departments began changing the way they handle eyewitness identifications and lineups in the last decade, and states have begun requiring departments to put in place protocols to lessen the chances of wrongful identifications. The Kansas legislation adopted last year said police departments should adopt procedures such as: The use of blind or blinded procedures in which the person displaying the photos does not know which one is of the suspect; presenting photos in sequential order rather than in one single array; instructing the witness that the suspect may or may not be present; use of non-suspect fillers who are reasonably similar to the perpetrator and do not make the suspect stand out; and, once an identification is made, getting a confidence statement from the witness in their own words regarding their level of certainty.

“Had these procedures been enacted when the investigation into Richard Jones took place, there is a high probability that he would not have been arrested or convicted,” his attorneys wrote.

In an interview with The Star after his release, Jones said that after years of fighting to clear his name, when the other man who looked like him was found, “everybody started scrambling.

“When I saw that picture, it just made sense to me,” he said of how people could have mistaken them. Former prisoners who are found to be wrongfully convicted have later gone to court and sued for damages. Jones is currently considering such action, Bushnell said, but no decision has been made.

Former Missouri state Sen. Joe Keaveny, a St. Louis Democrat, was alarmed by studies on the unreliability of eyewitnesses and attempted, unsuccessfully, to get similar legislation passed in Missouri. Law enforcement departments mostly opposed it, he said. Most often, they said they wanted autonomy to control their eyewitness testimony procedures and that they were using best practices. Lawmakers balked, he said, “because no one wants to look soft on crime.”

“But my feeling,” Keaveny said, “is we need to find a way to alleviate mistaken eyewitnesses.” The more research that is done, he said, “the more unreliable you’re going to see it be.”

Officers from Roeland Park and the Johnson County Sheriff’s Office investigated the Jones case. They asked Kansas City, Kan., police to gather the photographs later shown to witnesses, according to the defense’s court documents.

John Cowles, now an attorney in private practice, was the assistant district attorney who prosecuted Jones. He said he had only a vague memory of the case, according to a written affidavit he provided to Jones’ lawyers. But in reviewing the defense information, he noted that the state’s case exclusively relied on eyewitness identification testimony from people who did not previously know Jones.

“In my experience this is important because eyewitness identification becomes more questionable when the witness has not previously known the suspect,” he wrote. “Having multiple identifications from several witnesses helps strengthen the state’s case, but does not completely remove the concern about stranger identification.”

Cowles said it was rare for him to prosecute a case based on eyewitness identification alone.

“Any prosecutor would want at least some corroborating evidence independent from eyewitness testimony,” he said. He said that viewing the evidence obtained by Jones’ lawyers, including the photograph of the other man, “has undermined whatever confidence I had at the time that trial of Richard Jones resulted in a just result.”

“The guiding principle of all prosecutors should be to achieve a just result, not just to win a case,” Cowles wrote. He was not available for additional comment Friday.

Roeland Park police have adopted a detailed protocol in line with the 2016 change in Kansas law.

For example, the department now shows lineup photos sequentially instead of in an array, as was done in Jones’ case. Memory experts say witnesses who see photos one at a time compare each photo to their memory. In an array, the witness compares the photos with each other and is more likely to pick the person who looks most like the suspect, not necessarily the actual suspect.

“We try to get everything required so there are no mistakes,” said Roeland Park Police Chief John Morris. “To us, doing a good job means getting it done right the first time; making a mistake is not an option.”

A spokesman for the sheriff’s office said that every effort is made to make lineups as fair and nonsuggestive as possible. Investigators also are careful to not do anything to prompt a witness or suggest that they are required to make an identification.

“We understand that they have been through a traumatic situation,” said Maj. Mike Pfannenstiel. “If you can’t definitely make an identification, then please don’t.”

___

Information from: The Kansas City Star, http://www.kcstar.com

An AP Member Exchange shared by The Kansas City Star.

Missouri Boy Killed By Log In Surf As Tropical Storm Churns In Gulf

NEW ORLEANS (AP) A boy on an Alabama beach was struck and killed Wednesday by a log washed ashore by storm surge from Tropical Storm Cindy, which spun bands of severe weather ashore from the Florida panhandle to east Texas as it churned ever closer to the Gulf coast. Baldwin County Sheriff s Capt. Stephen [ ]

Written by: [1]

2017/06/21 6:00 PM

Missouri Boy Killed By Log In Surf As Tropical Storm Churns In Gulf

NEW ORLEANS (AP) A boy on an Alabama beach was struck and killed Wednesday by a log washed ashore by storm surge from Tropical Storm Cindy, which spun bands of severe weather ashore from the Florida panhandle to east Texas as it churned ever closer to the Gulf coast. Baldwin County Sheriff s Capt. Stephen Arthur said witnesses reported the 10-year-old boy from Missouri was standing outside a condominium in Fort Morgan when the log, carried in by a large wave, struck him. Arthur said the youth was vacationing with his family from the St. Louis area and that relatives and emergency workers tried to revive him. He wasn t immediately identified. It was the first known fatality from Cindy. The storm formed Tuesday and was expected to make landfall some time late Wednesday or early Thursday. The storm was expected to come ashore near the Louisiana-Texas line but the severe weather extended far to the east. National Weather Service forecasters estimated it had had dumped anywhere from 2 to 10 inches (50 to 250 millimeters) of rain on various spots along the Gulf Coast from south Louisiana to the Florida panhandle as of Wednesday. And more rain was on the way.
Alek Krautmann at the weather service office in Slidell, Louisiana, said more moisture was heading in from the Gulf Wednesday evening.

There were plenty of breaks today, but it s filled in a little more this afternoon, he said.

Coastal roads and some buildings flooded. There were several reports of possible short-lived tornadoes. In Gulfport, Mississippi, Kathleen Bertucci said heavy rainfall Wednesday sent about 10 inches of water into her business, Top Shop, which sells and installs granite countertops.

It s pretty disgusting, but I don t have flood insurance because they took me out of the flood zone, said Bertucci, whose store is near a bayou. We re just trying to clean everything up and hope it doesn t happen again.
In nearby Biloxi, a waterspout moved ashore Wednesday morning. Harrison County Emergency Management Director Rupert Lacy said there were no injuries but fences, trees and power lines were damaged. Storms also downed trees in the Florida Panhandle. Fort Walton Beach spokeswoman Jo Soria said fallen trees hit houses and cars in what she called pockets of wind damage in two or three residential neighborhoods.
The White House said President Donald Trump was briefed on the storm Wednesday by Homeland Security Adviser Tom Bossert. Also Wednesday, Louisiana Gov. John Bel Edwards declared a state of emergency, like his Alabama counterpart a day earlier. He was among authorities stressing that the storm s danger wasn t limited to the coast.

In Knoxville, Tennessee, the power-generating Tennessee Valley Authority, said it was drawing down water levels on nine lakes it controls along the Tennessee River and its tributaries in Tennessee, Alabama and Kentucky, anticipating heavy runoff from Cindy s rains once the storm moves inland. The TVA manages 49 dams to regulate water, provide power and help control downstream flooding. The storm was centered Wednesday afternoon about 135 miles (215 kilometers) south of Lake Charles, Louisiana and had top sustained winds of 50 mph (85 kph). A tropical storm warning was in effect along the coast from San Luis Pass, Texas, to the mouth of the Mississippi River. In Alabama, streets were flooded and beaches were closed on the barrier island of Dauphin Island. Some roads were covered with water in the seafood village of Bayou La Batre, but Becca Caldemeyer still managed to get to her bait shop at the city dock. If only there were more customers, she said.

It s pretty quiet, Caldemeyer said by phone from Rough Water Bait and Tackle. Nobody can cast a shrimp out in this kind of wind.

Texas Gov. Greg Abbott ordered the State Operations Center to raise its readiness level. He also activated four Texas Task Force 1 boat squads and two Texas Military Department vehicles squads of five vehicles each for weather-related emergencies.
The Louisiana National Guard dispatched high water vehicles and helicopters into flood-prone areas. The state said the Federal Emergency Management Agency also was moving 125,000 meals and 200,000 liters of water into Louisiana. And workers on Grand Isle, Louisiana s barrier island community south of New Orleans, reinforced a rock levee protecting the island s vulnerable west side.
All arms of the state s emergency preparedness and response apparatus are taking Tropical Storm Cindy seriously, and we are calling on all Louisianans throughout the state to do so as well, Edwards said in a statement.

Missouri Boy Killed By Log In Surf As Tropical Storm Churns In Gulf

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References

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Lawmakers zero in on election system security

Lawmakers are focusing on the security of election systems amid rising concerns that Russia could use cyberattacks to disrupt future elections. The role of the federal government in protecting voting infrastructure has been a point of tension between Washington and state and local election officials since the Obama administration designated election infrastructure as critical in January, a move that coincided with the release of an unclassified intelligence report on Russian election meddling. On Wednesday, members of the Senate Intelligence Committee will grill officials at the Department of Homeland Security and the FBI, as well as state-level officials and experts outside the federal government, on what can be done to thwart potential threats to elections in 2018 and 2020.

Simultaneously, the House Intelligence Committee will hear from Jeh Johnson, the Obama-era Homeland Security secretary who announced the new election infrastructure designation weeks before President Trump took office. Both hearings are part of the committees parallel investigations into Russian interference efforts. Much of the focus on Russia s behavior has been on its hacking of the Democratic National Committee (DNC) and whether there was coordination between Moscow and Trump associates in the interference campaign.

The intelligence community has offered few details publicly about Moscow s targeting of the U.S. electoral system, saying in the January assessment that Russian intelligence accessed elements of multiple state or local electoral boards that were not involved in vote tallying. But a classified National Security Agency report recently obtained by The Intercept indicated that Russian hackers targeted more than 100 local election officials using spear-phishing emails ahead of the election. Bloomberg reported last week that Russian hackers targeted systems in as many as 39 states, making the effort much wider than previously known. Authorities have already revealed that foreign-based hackers breached voter registration databases in Arizona and Illinois, the latter of which is said to have compromised the information of 80,000 voters.

Federal and state officials maintain that no vote tallies were altered by Russia s cyber intrusion efforts. Nevertheless, recent developments have spurred efforts in Illinois and New York to evaluate the cybersecurity of voting infrastructure.

I am deeply concerned about the danger of future foreign interference in our elections, Warner wrote in a letter. We are not made safer by keeping the scope and breadth of these attacks secret. The secrecy surrounding the targeting efforts has rankled some state-level officials who say that they were not made aware of specific threats during the course of the election; had they been informed, officials say, it would have allowed them to better guard their systems.

Election officials did not understand why the intelligence agencies were making the statements they were making, said Kay Stimson, communications director for the National Association of Secretaries of State. It was a knowledge gap; it was an information gap.

Indiana Secretary of State Connie Lawson, the association s president-elect, plans to raise the issue in testimony before the Senate panel on Wednesday, Stimson said. In the majority of states, the secretary of state or lieutenant governor serves as the chief state election official. The Department of Homeland Security (DHS) moved to designate election infrastructure including voting registration databases, machines and other technology as critical on Jan. 6, a decision that has been met with resistance from state-level officials. At the time, Johnson noted that it would allow the department to prioritize cybersecurity assistance to state and local election officials who request it and increase the exchange of sensitive vulnerability information. While Kelly has indicated that he will keep the designation in place, the new administration has said little officially on the subject, prompting questions from lawmakers on Capitol Hill.

I appreciate that your Department designated the nation s election infrastructure as critical infrastructure, Warner further wrote to Kelly on Tuesday. I request that you provide an update to the Committee on what actions the Department has taken since this designation to improve and increase such assistance.

A DHS spokesman told The Hill that the designation “does not change the primary role state and local governments have in administering and running elections” but brings federal protections to election infrastructure when requested.

“It does not create new regulations,” the spokesman said. “There are currently 16 critical infrastructure sectors, including 21 subsectors, eligible to receive prioritized cybersecurity assistance in the same manner.”

Some argue that the designation, while well intentioned, won t be enough on its own. James Norton, a former DHS official and adjunct professor at Johns Hopkins University, said lawmakers should be more focused on getting states to upgrade their legacy voting technology.

What could DHS possibly do in the next 18 months outside of issuing guidance? Norton said. It s a procurement issue. The federal government should also work to provide better cyber awareness training at the state and local levels to prevent phishing attacks like those that were successful in 2016, Norton said. The government should also share more threat information, at least to the extent possible under classification rules, he said.

On Wednesday, the Senate panel will hear from two DHS officials involved in cybersecurity matters as well as the assistant director of the FBI s counterintelligence division.

The second witness panel includes several state-level election officials, including the executive director of the Illinois State Board of Elections.