THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: SUNDAY, June 5, 1994 TAG: 9406050047
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY LYNN WALTZ, STAFF WRITER
DATELINE: 940605 LENGTH: Long
Five innocent men arrested in felonies based on identification by victims or eyewitnesses. Five men who spent time in jail either charged with or convicted of crimes they didn't commit.
{REST} Five men freed, all since January, after once-unshakable IDs were discredited or witnesses recanted.
``It's frightening to think how easy it is to be charged with a serious crime,'' said attorney Andrew Sacks, who represented one of the five: a teenager misidentified as a murderer.
Juries and judges are easily swayed by a victim or witness who is certain he or she has identified the right man, says Steven D. Benjamin, a Richmond criminal defense lawyer who lectures on witness misidentifications. Sometimes the victims themselves are shocked when they find out they were wrong.
But there may be other factors that led to the recent string of mistaken arrests, say defense lawyers and criminal justice experts interviewed for this story.
Some say it's part of an ongoing pattern caused by overzealous prosecutors and police eager to please a fearful public and keep conviction rates high.
That may cause investigators and prosecutors to rely too heavily on witnesses who prosecutors know will play well to the jury - like the 12-year-old girl in Portsmouth who positively identified the man she said raped and sodomized her as she played along a dirt path. He was freed nine months later after DNA proved him innocent.
``There's enormous pressure on law enforcement to solve crimes,'' Sacks said. ``I fear we are falling into the temptation of relying on the first eyewitness identification we come across and leave it at that. It takes more time and effort, but they have to be examined and corroborated.''
With heavy caseloads, police may rely on a witness identification as probable cause to make the arrest, leaving the case to unravel as it heads to court.
``I think there is an overload of cases on the commonwealth's attorney's office everywhere,'' said defense lawyer Richard Doummar. ``I've got a case now in Norfolk where their witness is lousy and my client's got a good alibi. They won't even listen or investigate it. I don't think they have the time to do it.''
If a case starts with a bad identification and is not followed up with a good police investigation and solid case preparation by prosecutors, justice can be waylaid.
That's apparently what happened in the five recent cases.
A sincere misidentification ``is the kind of testimony that sends innocent people to prison,'' Benjamin said.
``All it takes is an eyewitness and they can send someone away for years and years and years.''
Two of the men recently released - John Tingle Jr. in Virginia Beach and Raymond Holder in Portsmouth - were literally snatched off the street after the victims pointed them out to police.
Tingle was walking home from the store. Holder was on his way home from work. Both cooperated with police. Both insisted they were innocent. Both were eventually released.
Here's what happened in each of the cases:
Holder, 23, was arrested last August after a 12-year-old girl spotted him on the street and told police he was the man who had raped and sodomized her a week before.
She was wrong, but so convincing that prosecutors took seven months, despite a judge's order, to follow up with the DNA test Holder requested. The test, conducted in March, conclusively showed that Holder was innocent. He spent more than eight months in jail before being freed.
Tingle, 25, of Ocean City., Md., was arrested and convicted of abduction after a woman pointed him out to police and identified him in court as the man who had tried to drag her onto the beach as she jogged near the Oceanfront in February 1993.
After Tingle was convicted but before he was sentenced, prosecutors knew police believed Tingle was not the right man. And they knew about a Norfolk suspect in similar crimes who looked like the defendant. But they kept that information from defense attorneys and never showed the victim pictures of the look-alike suspect. Tingle was then sentenced to 10 years in prison.
After reading newspaper stories questioning Tingle's guilt, the victim asked to see the photos and the look-alike suspect in court. She became convinced she could have made a mistake, and Tingle was freed in January.
Tingle spent five months in Virginia Beach city jail. He is now working as a chef in Ocean City. The case remains unsolved.
Juan C. Boone, 25, sat in the Virginia Beach jail for three months contemplating the possibility of death in the electric chair for a crime he did not commit.
Boone was charged with the capital murder of Robert T. Baker, 45, who was shot outside Even Steven's restaurant in December. The victim's date picked Boone out of a photo lineup.
Police never checked Boone's alibi. Boone was released after prosecutors determined the alibi was ironclad.
A 17-year-old - who is not being identified because he is a juvenile - was charged with murder in October after a witness saw him in the courthouse hallway and told police he was the triggerman.
There was a hitch: The witness had already identified another teenager as the killer.
The 17-year-old, in fact, had come to court that day to testify as a character witness for the teen charged with murder. The 17-year-old was cleared on May 26 after prosecutors determined the witness was mistaken.
But by then, the teenager had spent two weeks in Virginia Beach city jail, ``scared to death'' and unable to eat, his father said. The teen's attorneys say he should not have been arrested because the witness lost credibility when he changed his identification.
Brian McCray sat through two trials before he was acquitted of murder May 27 after a key witness's identification was successfully rebutted. In the first trial, he was sentenced to a 43-year prison term in the slaying of a Norfolk man in October 1992.
But prosecutors neglected to tell defense attorneys that the key witness had changed his story several times and that one detective believed his identification had been made to collect reward money. One detective resigned over the way the case was handled. After a judge ordered a retrial and a jury heard of the witness's changing story, McCray was acquitted. He is currently serving a seven-year sentence in Norfolk jail for an unrelated robbery conviction.
Despite mistakes by police and prosecutors, the foundation of each of the five cases was a witness misidentification. Three of the five cases were caught before they went to trial, a sign that the system's checks and balances are working, said Virginia Beach Commonwealth's Attorney Robert Humphreys.
``Prosecutors are not recklessly convicting innocent people,'' Humphreys said. ``I'm proud of being a prosecutor and I'm tired of having my office denigrated by people who represent criminals.''
An identification from a photo lineup may be the only evidence prosecutors and police have to work with, he said.
``People can make mistakes. They're human beings,'' Humphreys said.
``What's the alternative? Never try anybody when it's just the victim's word? You try to gather corroborating evidence, ballistics, DNA and other eyewitnesses. If you can't, then you have to make a decision who to believe - the victim who's dead certain it's the right guy, or the suspect who says you've got the wrong guy but has no alibi.''
by CNB