Preventable Eyewitness Misidentifications:

 "Indiana Must Revamp Outdated Photo lineup Procedures”

Over 2000 people have been exonerated from wrongful convictions in the United States over the past 25 years, according to a recent national database of exonerations compiled by the University of Michigan Law School and the Center of Wrongful Convictions at Northwestern University. The data base details exonerations from 1989 to the present. In more than half of these documented exonerations mistaken eyewitness identification was involved.       

Such discoveries have prompted courts and police agencies around the country to reassess identification procedures shown to lack reliability in eyewitness identification. In July 2012, the New Jersey Supreme Court made a ruling that will reduce eyewitness mistaken identification. This ruling will require trial court judges to issue instructions to jurors, allowing them to better evaluate such evidence.

These instructions now compel New Jersey judges to tell jurors prior to deliberations that the following factors undermine accurate eyewitness identification: the stress levels under which the eyewitness experienced while observing suspects during the course of the crime; distance from the crime; poor lighting; elapsed time between the crime and identification. Suggestions made by the police during a lineup can also influence eyewitnesses. Further, it is a known fact that it is more difficult for people to accurately identify members of different races and the understanding that human memory is not foolproof.

The New Jersey Supreme Court unanimously ruled that traditional tests for reliability of eyewitness testimony was outdated as set out in Manson v. Braithwaite, 432 U.S. 98 (1977) due to the results of scientific breakthroughs. Moreover, the New Jersey Supreme Court also created a rule that requires police officers to record the details of how an identification was made. Officers must identify anyone, not only other personnel, with whom the witness spoke with about the identification - before, during, or after it occurred. Although such rules and instructions do not exist to this detail anywhere else in the country, they will forever change New Jersey’s criminal trials, how evidence is gathered, and may influence other States and cities to adopt identical or similar safeguards.

In this effort to reduce the epidemic of wrongful convictions due to eyewitness mistaken identification, several police departments around the country have revamped outdated photo lineup procedures. So far five states and various cities have taken these precautions seriously to try to ensure that eyewitness mistaken identification will result in fewer false convictions. One change that many of these cities and states have made is the replacing of the unreliable simultaneous photo procedure (where a 6-8 photo spread of people is shown to the witness) with the more reliable sequential photo procedure (where each person’s photo is shown one at a time on separate sheets). The sequential technique aims to focus a witness’s memory on specific characteristics of the suspect they saw and not faulty comparisons.

The states and cities that have made policy changes regarding witness identification have also implemented double-blind procedures. As University of Washington professor Dr. Geoffrey Loftus, an expert on eyewitness testimony explains, “A lineup administrated by a police officer who knows the suspect’s identity is potentially biased, as the officer is in a position to unconsciously provide information to the witness as to who the suspect is”. Dr. Loftus further points out double-blind procedures takes bias out of the equation, “This form of bias is well known in scientific methodology, and prevention of it is universally carried out using what are known as double-blind procedures. Use of double-blind procedures in lineup settings would entail the police officer administering the lineup not know who the suspect is”.

While all of the aforementioned information is known to the state of Indiana and Indianapolis Metropolitan Police Department (IMPD), especially when in 1999 the U.S Attorney General Janet Reno distributed the “Eyewitness Evidence: A Guide for Law Enforcement “ to every law enforcement agency in the country to reduce suggestive identification procedures, there has yet to be any major changes or corrections in their identification procedures to reduce witness misidentification and, consequently, wrongful convictions.

BLURRED IDENTIFICATION: OUT-DATED PHOTO PROCEDURES

Citizens of central Indiana have become familiar with the scandals associated with the IMPD. The most recent tragedy occurred in November 2013, when IMPD officer, David Bisard was found guilty in a criminal trial for driving under the influence (DUI) & reckless homicide among other charges.

Back in August 2010, Bisard under the influence while on duty crashed his patrol car into a group of motorcyclists stopped at a light at an intersection. One person was killed and two others seriously injured. While Bisard’s case was tragic it was not the first such incident, and, unfortunately, probably will not be the last.

In July 2013, Alan F. Jones, a sergeant in the Criminal Investigation Unit of the Marion Sheriff’s Office (MSO) of Indianapolis, was fired after being arrested for DUI while on duty in a MSO- issued car. Prior to joining the MSO five years earlier, Jones had been a lead homicide detective with IMPD for most of his 42-year career. In August 2008, IMPD robbery detective, George L. Benjamin, was forced to retire after he was arrested for DUI after crashing IMPD-issued cars on two separate incidents.

We’ve seen the damage Bisard caused while being an inebriated patrol officer. What are the untold stories of human tragedy afflicted on innocent victims by detectives Benjamin and Jones in the many robbery and homicide cases they’ve worked? Specifically, there are two Indiana prisoners adamantly claiming their innocence in cases Benjamin and Jones worked. Both cases hinged upon sketchy eyewitness identifications and photo lineup procedures administered by each detective.

In August 1998, a shooting occurred close to the downtown area of Indianapolis, in the early morning hours, leaving a male victim dead. There was an eyewitness, a white female who gave police an on- scene description of the suspect: dark skinned, African- American male, early to mid 20s, skinny built, 5’8, wearing black jogging pants w/ three stripes down the sides, black t-shirt, and dark shoes. The witness viewed the crime from 50 yards away and under poor lighting conditions.

There were no leads initially. Lead detective Alan Jones was unsure where to look for evidence. Then six days after the crime, Jones received a tip that a man named Leon Benson possibly committed the shooting days earlier. Benson was arrested and questioned by Jones. Benson admitted to being in an apartment building in the area during the crime, but strongly denied any involvement in the homicide or knowing the victim. Despite Benson’s availability for a live lineup, Jones chose to place an old mug shot in a simultaneous photo lineup. Jones conducted this procedure alone with the eyewitness. He knew Benson was the suspect, and the eyewitness subsequently identified Benson as the shooter. This identification came despite Benson’s actual appearance (light skinned African American male, 5’10”, and medium build) strongly conflicting with the same witnesses’ initial description of the suspect as being dark skinned and skinny.

On May 24, 1999, Benson was tried for murder, but the trial resulted in a hung jury (six not guilty, five guilty, one undecided). However, less than two months later, Benson, after a retrial, was found guilty of murder and sentenced to 60 years in prison. There was no physical evidence linking him to the crime, only one eyewitness’s identification.

There are several factors that illustrate how Detective Jones performed an improper photo lineup procedure: (1) Indiana laws and Indianapolis Metropolitan Police Department policies did not compel Jones to record the procedure; (2) it was a simultaneous photo procedure instead of the more reliable sequential photo procedure; (3) it was not a double-blind procedure because Jones administered the photo lineup fully aware that Benson was the suspect; (4) it was a cross-race identification which has a lower level of being accurate; and (5) another eyewitness and other evidence subsequently surfaced that strongly identified another person as the true killer, but was never presented during trial, yet Detective Alan Jones knew this evidence existed.

Years later, on October 22, 2007, a Chase Bank was robbed at gunpoint at 9:48 A.M on the west side of Indianapolis. The unknown suspect got away with $17,000.00 in less than a minute, and then disappeared from the scene. No one was hurt. The bank’s video cameras captured the suspect and the entire incident on video. There were four potential eyewitnesses – two Chase bank tellers and two customers. They each gave a description of the suspect as: dark skinned African-American male, 5’9 – 5”11”, 180 lbs., husky built, 20-25 years old, black ski cap, green coat, dark jeans and shoes.

Lead detective George L. Benjamin performed a simultaneous photo lineup with each witness. None of the four witnesses could identify the suspect from the many photos shown to them. The case was getting cold. Then on October 30, 2007, Detective Benjamin received an unrelated Central Indiana Crime Stoppers’ tip that a John E. Turner may be the suspect in another bank robbery in Howard County.

Out of desperation, on November 1, 2007, Benjamin prepared another simultaneous photo lineup with Turner’s old mug shot included and presented it to each of the four witnesses individually. Both Chase tellers identified Turner as the robbery suspect, while the two customers still could not identify the suspect. Detective Benjamin conducted these procedures alone while knowing Turner was a suspect. The identifications came despite the fact that Turner’s actual appearance (medium skinned African American male, 6”0 – 6 ‘1’, 230 lbs.’) conflicted with witnesses initial descriptions and the video footage of the suspect.

On April 9, 2008, Turner was tried for the Chase Bank robbery but the trial resulted in a hung jury. However, less than 2 months later, after a retrial, Turner was found guilty and sentenced to 50 years in prison. There was no physical evidence linking him to the crime, only shaky eyewitness identification based on an anonymous tip.

There are several factors that illustrate Detective Benjamin performed a photo lineup almost guaranteed to obtain incorrect results: (1) there were no established laws and polices to compel Benjamin to record the photo procedure; (2) it was a simultaneous photo procedure instead of the more reliable sequential photo procedure; (3) it was not double-blind because Benjamin solely administered the photo lineup to each witness while knowing Turner was the suspect; (4) it was a partial cross-race identification (two witnesses were white) which has a lower level of accuracy; (5) there have been several bank robberies with a suspect that matched the description as the one in the Chase Bank robbery; and (6) exculpatory evidence has surfaced by a forensic anthropologist who analyzed the robbery video and concluded that it was not Turner due his to the immutably different nasolabial fold between Turner and the man in the surveillance video.

While we know both Detectives Jones and Benjamin were fired and forced to retire due to working under the influence of alcohol while on duty, no one has tied their former misconduct to any cases they worked. However, it is not a stretch to assume that officers that worked under the influence and were caught once may have done the same thing other times, or even broken different rules and cut corners in the department. Presently both Turner and Benson have Post Conviction Relief appeals pending in the Marion County Superior Court in Indianapolis, Indiana. Benson (cause #49G02-9808-PC-134837) is presenting new expert eyewitnesses and ineffective assistance of trial counsel issues in his petition. And Turner (cause # 49G03-0711-PC-238468) is presenting eyewitness expert testimony, expert video analysis and ineffective assistance of trial counsel issues.

The fact remains that IMPD is riddled with officer misconduct. The continual use of outdated photo lineup procedures will only permit and conceal such misconduct. But nothing will change if Indiana legislators and Marion County Prosecutors do nothing to improve these outdated photo procedures. How many more legitimately innocent people like Leon Benson and John Turner must be wrongfully incarcerated before the State of Indiana fully corrects this easily corrected problem?

THIS PETITION’S AIM & DEMAND

This petition is aimed at the three most powerful legal and law enforcement institutions in Indiana:

• Indiana House of Representatives (200 W Washington St, Indianapolis, IN 46204

Phone: (317) 232-9600

• Marion County Prosecution Office (251 E. Ohio St. Suite, 160 Indianapolis, IN 46204

Phone: (317) 327-3522

• Indianapolis Metropolitan Police Department (3120 E 30th St, Indianapolis, IN 46218       Phone: 317) 327-6200·These entities have the power to enact legislation and policies regarding new trial instructions and eyewitness identification procedures geared toward preventing unnecessary eyewitness mistaken identification. Therefore, this petition asks that the following laws and policies be enacted in every Indiana trial court and all Indiana law enforcement agencies (specifically IMPD):

A)Trial judges will be mandated to read jurors the following (or similar) instructions before they deliberate on the unreliability of eyewitness identification demonstrated by scientific facts and decades of research: “These are the following factors that may undermine the eyewitness identification in this case: “(1) the stress levels while observing the crime; (2) Weapon fixation; (3) distance; (4) poor lighting; (5) time elapsed between crime and identification; (6) implicit or explicit suggestion made by police to the eyewitness in a non- double-blind photo procedure; (7) cross-racial identifications are less accurate than eyewitnesses identifying a suspect of their same race; (8) Simultaneous photo procedures are far less reliable than sequential photo procedures; and (9) memory is not fool proof”.

B)Update outdated photo procedure policies throughout all Indiana law enforcement agencies:

(1) Police are required to record the entire photo procedure by video, audio, and written documentation;

(2) Make all photo procedures double-blind to reduce implicit or explicit suggestiveness by the executing officer;

(3) Replace all simultaneous photo procedures with the more reliable sequential photo procedure;

(4) If any of the above procedures are violated or not performed by the police or substituted by outdated, less reliable photo procedures, then such identifications produced will be deemed “permissively suggestive” and suppressed from trial use.

Please sign this petition and comments is (optional) thank you for your support.

Sincerely,

Valerie Buford (sister of Leon Benson)

NOTES & SOURCES:

Benjamin Weiser, “New Jersey Court Issues Guidance for Juries about Reliability of Eyewitness”, the New York Times, July 19, 2012

Kevin Johnson, Police start revamping lineups”, USA Today,

Our Opinion, “Be careful with Mug Shot procedures”, Indy Star, October 11, 2011

Pet Yost, “Study: 2000 convicts exonerated since “89”, Indy star,

Vic Ryckaert, “Detective charged in 2 crashes retires”, Indy Star, August 13, 2008

Central Indiana Crime Stoppers, “Wanted for armed robbery”, case#090301, www.crimetips.org, March 2, 2009

Dept. of Justice, “Guide on Eyewitness Identification procedures”, www.ncjrs.org, December 1, 1999

AP, “Marion Co. sergeant fired after drunk driving arrest”, Indy Star, July 5, 2013www.freeleonbenson.org

John E. Turner # 880245 & Leon Benson # 995256 (can be contacted at PCF, 4490 W. Reformatory Rd., Pendleton, IN, 46064)