By Jan Pudlow
The cops didn’t want a law telling them how to conduct eyewitness identification lineups, and the cops won.
Endorsed by the Florida Innocence Commission, Sen. Joe Negron, R-Palm City, pushed the Eyewitness Identification Reform Act (SB 1206) that would require law-enforcement agencies to use best-practices procedures, backed by scientific research, for a uniform statewide policy.
The key component was requiring an independent administrator — an officer who has no idea who the suspect is — to handle lineups so there is no chance of even inadvertent cueing to the witness of which photo to pick. A somewhat relaxed version giving law enforcement more flexibility — such as photos randomly shuffled in folders — passed the Senate on April 29 with a 34 to 5 vote.
But a more watered-down version failed to pass in the House. Offered by Rep. Perry Thurston, D-Ft. Lauderdale, so that his HB 821 could be heard in the House Judiciary Committee, it removed mandates and simply required law-enforcement agencies to establish policies and submit them to their local state attorneys.
“Disappointing,” is the word Thurston used to describe watching his compromise bill die in messages on May 7, the session’s final day.
“The reason it died was because of law enforcement influence. They did not want to be mandated,” said Thurston, an attorney. “They thought it was an excellent idea, but they didn’t want to be ordered to do it. They wanted to do it on their own time frame. The only problem with that is this is something that could have been accomplished long before the Innocence Commission endorsed it and long before the bill was filed. I think it’s just a delay tactic.”
Intense lobbying by the Florida Sheriffs Association, Florida Prosecuting Attorneys Association, Florida Police Chiefs Association, and FDLE killed the bill.
“Our position all along had been that individual agencies should be given latitude to implement procedures that best suit their manpower and resources,” said Eighth Circuit State Attorney Bill Cervone, president of the FPAA.
Cervone had been working with the other law enforcement groups to develop flexible protocols.
“We think the appropriate way to do it is for the Legislature to establish the guiding principle, perhaps to mandate that agencies establish a policy, but not to say what it is, because this is not a one-size-fits-all state. The Innocence Commission did not establish that any one methodology is superior to another.”
Jenny Greenberg, executive director of the Florida Capital Resource Center, who lobbied vigorously for the stronger versions of the bills, said, “Everyone knows how powerful the law-enforcement lobby is. . . .Those people we trust to investigate and pursue actual perpetrators killed a bill that would guarantee fewer wrongful incarcerations, even fewer perpetrators on the street. As a citizen, that breaks my heart.”
Greenberg accompanied DNA exoneree Alan Crotzer — who spent more than 24 years in prison after being wrongfully convicted of two rapes because of erroneous eyewitness identification — while making the rounds at the Capitol.
Testifying at the House Judiciary Committee, Crotzer said: “I want some justice now. You can give it to me. If you law enforcement agencies are part of it, don’t you want it to stop? I would think you would. That’s why I’m here. It’s very personal to me.”
And it’s very personal to exonerees nationwide, where 75 percent of 267 DNA exonerations involved eyewitness misidentification.
In an essay published in the Orlando Sentinel, facilitated by the Innocence Project of Florida, Crotzer and six other DNA exonerees, who served a total of 158 years in Florida’s prisons for crimes they did not commit, urged passage of Negron’s bill in its original form.
“If even one person could be spared the fate we were forced to endure, it would lessen our suffering and bring a little meaning to the years, experiences, and opportunities we lost,” the exonerees wrote.
Thurston said he had an “extremely difficult conversation” with Crotzer explaining how politics played out in compromising the original intent of the bills.
“Mr. Crotzer and I sat down after the (House Judiciary) meeting, and I explained to him that it was either that version or nothing. Quite frankly, my choice would have been nothing, because it was watered down so far,” Thurston said. “Mr. Crotzer told me he wanted the original version. And I agree with him 110 percent. . . . Certainly, we will be filing it again next year in the original form.”
Negron, an attorney inspired to sponsor the legislation because one of his first cases out of law school involved freeing an innocent man wrongfully picked out of a lineup, said, he, too, will try again next year to convince the House.
“The bill passed the Senate 34 to 5. We’re halfway there,” Negron said. “I think it’s a successful first step in making sure we do everything possible to avoid wrongful convictions. . . . History is on our side. The national momentum is on our side. North Carolina, a very law-and-order state, goes way beyond my bill, requiring audio- and videotaping, with much stricter controls.”
During debate on the Senate floor, Sen. Arthenia Joyner, D-Tampa, an attorney, said: “I know we don’t want innocent people wrongfully convicted and serving time. This bill will serve as a deterrent to that. The guidelines will serve as a protection for law enforcement to avoid any unintended biases against the suspect or any allegations of coaching or influencing the witnesses.”
But Sen. Steve Oelrich, R-Gainesville, who was Alachua County sheriff from 1992-2006, countered: “The argument can’t be both ways that we have every confidence in our cops, yet we are going to make them pay the price by having a law that casts a doubt on their integrity. This is a problem with misidentification by the witness, not a problem with our law enforcement and our law enforcement’s integrity.”
Oelrich argued the bill would restrict law enforcement and “basically give them a vote of no confidence.”
Negron argued his bill would help law enforcement do their jobs better.
“Let’s not pick out the wrong person from a lineup to begin with,” Negron said. “If you get picked out of a lineup wrongfully, you are going to get arrested. You are going to have to defend yourself, and the vast majority of people that go to trial are convicted.
“All this says is we have learned from technology; we have learned from research that if you put an eyewitness in front of a lineup, they feel an extraordinary amount of pressure to pick someone because they want to help in the investigation.
“All we are doing is telling the person, ‘Look, the person may or may not be there.’ You make sure the person administering the lineup does not know the hopeful outcome, which is an actual identification.
“Tell the eyewitness, ‘Don’t feel compelled to make an identification. It is just as important to exclude innocent people as it is to convict guilty people, and the investigation is going to continue whether or not you make a decision today.’ That takes a lot of pressure off the victim.”
Managing Editor Mark Killian and Senior Editor Gary Blankenship contributed to this report.