Status of Eyewitness Identification in Michigan: Wrongful Convictions Based on Misidentification and Pending Statewide Reform
I. Wrongful Convictions in Michigan Based on Eyewitness Misidentification
Walter Swift – Wayne County
Walter Swift served over 25 years for a rape and robbery he didn’t commit. The prosecution’s case against him stemmed from a seriously flawed eyewitness identification procedure that led to a misidentification. A pregnant woman was raped and robbed in her home, and about a week later she was shown several hundred photos of black men matching her description of the perpetrator: 15 to 18 years old, approximately 5'10," no facial hair, with a thin to medium build and braids with unusual “poofs” of hair. After she had selected photos of seven men, the officer administering the lineup made the arbitrary decision that the next person selected would be brought in for an in-person lineup. That person happened to be Walter Swift.
The composition of the live lineup was so unbalanced that the victim could hardly have chosen anyone other than Swift. None of the other lineup fillers matched the description of the perpetrator; all were either too tall, too short, or had significant facial hair. The victim selected Swift saying “I believe that it is #2,” which was Swift’s position. Questioned at trial about the certainty of her identification, she elaborated “I believe like I believe there is a God.” At trial, the jury was led to believe that the victim selected only Swift’s photo from hundreds of photos, and that this identification was then confidently confirmed in the live lineup. Swift was wrongfully convicted in November 1982.
In 2003, the officer who administered the lineup submitted an affidavit detailing her lack of confidence in the lineup procedure and its outcome. Because of this and other crucial exculpatory evidence not revealed at trial, Swift was exonerated on May 20, 2008.
Nathaniel Hatchett – Macomb County
In 1998, 17-year-old Nathaniel Hatchett was wrongfully convicted of kidnapping and rape. In 1996, a woman had been accosted outside a Super K-Mart store, forced into her car and raped. The perpetrator then let her out on the side of a highway on-ramp and drove off with her car. He wore a hood and threatened to kill the victim if she looked at him. Hatchett was arrested when police found him driving the victim’s stolen car and determined that two of the five men in the car fit the victim’s description of the perpetrator. According to police reports, Hatchett waived his Miranda rights and gave a full detailed confession. Hatchett has always maintained his innocence and says he confessed to get out of the interrogation as quickly as possible. DNA testing of semen found on the victim’s underwear revealed a male genetic profile that did not match Hatchett, but when the victim identified him in court, the trial continued. The victim testified that she had no doubt the defendant was her assailant. Despite the exculpatory DNA evidence, Hatchett was convicted of all charges and sentenced to 25 to 40 years in prison. He served 10 years before further DNA testing led to his exoneration on April 14, 2008.
Kenneth Wyniemko – Macomb County
Kenneth Wyniemko was wrongfully convicted in 1994 of criminal sexual conduct, breaking and entering, and armed robbery. The victim said she did not get a good view of her attacker—the perpetrator had broken into her home wearing a nylon stocking over his head—but described him as a white male between 6' and 6'2" about 200-225 pounds and 20-25 years old. She assisted the police with creating a composite sketch but later said that it was only 60% accurate. Wyniemko was in jail for unrelated misdemeanor charges when police informed him that he resembled a composite sketch from the sexual assault. Wyniemko was placed in a live lineup and the victim identified him as the perpetrator. At the time, Wyniemko was 5'11", weighed 198 pounds, and was 43 years old—twice as old as the perpetrator in the original description. Wyniemko was convicted on all charges and served over eight years of his 40-60 year sentence before DNA testing led to his exoneration in 2003.
II. Reforms Pending in the Michigan Legislature
Michigan eyewitness identification reform bill
An eyewitness identification reform bill was introduced to the Michigan Legislature in the current legislative session that is based on specific procedural reforms endorsed by national justice organizations including the National Institute of Justice and the American Bar Association as well as police, prosecutors and judges around the country.
The bill, H.B. 4922, sponsored by Representative Steve Bieda, requires all law enforcement agencies in the state to adopt procedures for live and photo lineups including but not limited to:
Using a lineup administrator who does not know who the suspect is, also known as a “blind” administrator, whenever possible;
The lineup administrator should warn the witness that the suspect may or may not be in the lineup and that it is as important to exclude innocent persons as it is to identify the perpetrator, which deters witnesses from feeling compelled to make a selection;
Selecting “fillers,” or people who are not the suspect, that match the witness’ description of the perpetrator and do not unduly stand out;
Documenting confidence statements made by the eyewitness (in the witness’ own words) about how certain he or she is about their selection;
Recording identification procedures;
Presenting subjects sequentially, rather than simultaneously as in a traditional lineup. This practice helps prevent the witness from simply selecting the person who most closely resembles the perpetrator.
The bill also includes an appropriation for training the officers on these new practices and procedures.
Eleven other states are considering eyewitness identification reform this year, and a number of states, cities and town have already adopted these reforms, including: New Jersey; North Carolina; Boston, MA; Northampton, MA; Madison, WI; Hennepin County (Minneapolis, MN); Ramsey County (St. Paul, MN); Santa Clara County, CA; Virginia Beach, VA.
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