Policy 10.11.16

Senate Committee Hears from Oklahomans Impacted by Eyewitness Misidentification

By Innocence Staff

Oklahoma Capitol building

Explores ways for law enforcement to implement best practices that improve identification

The Oklahoma Senate Judiciary Committee held an interim study hearing today, chaired by Senator Anthony Sykes (R-Moore) at the request of Senator David Holt (R-Oklahoma City) on the problem of eyewitness misidentification, the leading contributing factor to wrongful convictions overturned with DNA evidence nationally. Nearly one third of Oklahoma’s 32 wrongful conviction cases overturned with both DNA and non-DNA evidence since 1989 involved eyewitness misidentification. Most recently, on May 10, 2016 Malcolm Scott and De’Marchoe Carpenter were exonerated of a fatal drive-by shooting in Tulsa after spending more than 20 years in prison, due in part to faulty eyewitness identifications. 
 
The Senate Judiciary Committee heard testimony from Tim Durham, who spent four years in prison for the 1991 rape of an 11-year-old girl in Tulsa, and Thomas Webb, who spent 14 years in prison for a 1982 rape in Norman. Other testimony was provided by Vicki Behenna, Executive Director of the Oklahoma Innocence Project at Oklahoma City University, and Christy Sheppard, a victim advocate who served on the Oklahoma Justice Commission, a taskforce created by the Oklahoma Bar Association in 2010 to recommend ways to enhance the reliability and accuracy of the state’s convictions. 
 
Oklahoma City Police Chief Bill City testified about his department’s use of evidence-based eyewitness identification procedures, which have also been recommended by the Oklahoma Justice Commission, the National Research Council, International Association of Chiefs of Police and the American Bar Association. The best practices include: 1) blind or blinded administration of lineups, meaning the officer conducting the lineup is unaware of the suspect’s identity, 2) instructions to the eyewitness that the perpetrator may or may not be present, 3) use of fillers, the non-suspects in the lineup, that generally match the eyewitness’s description of the perpetrator and do not make the suspect noticeably stand out, and 4) eliciting statements of confidence from the eyewitness if an identification is made. 
 
While individual agencies such as the Oklahoma City Police Department have implemented these evidence-based procedures there is no consistent statewide practice. The Senate hearing explored ways that law enforcement agencies throughout the state could adopt eyewitness identification best practices. Nationally, 18 states have uniformly implemented key reforms, either through statute, court action or substantial voluntary adoption by law enforcement: Colorado, Connecticut, Georgia, Hawaii, Maryland, Massachusetts, Montana, New Jersey, Nebraska, Nevada, North Carolina, Ohio, Oregon, Rhode Island, Texas, Vermont, West Virginia and Wisconsin. 
 
Oklahoma taxpayers have had to pay millions of dollars due to wrongful convictions based on eyewitness misidentification. Since 2002, the state has paid $1.36 million to settle six wrongful conviction claims and municipalities have had to pay multimillion dollar settlements for wrongful convictions involving misidentification.  For example, Courtney Sedrick received $175,000 from the state and $8 million from the city of Tulsa, and Arvin McGee settled with the city of Tulsa for $12.2 million. 
 
“Eyewitness misidentification has resulted in innocent Oklahomans being wrongfully convicted, real culprits escaping justice and taxpayers unnecessarily paying millions of dollars. The Oklahoma City Police Department has successfully implemented best practices that reduce the risk of error, and hopefully we can move forward to ensure that law enforcement agencies throughout the state adopt reforms,” said Senator David Holt (R-Oklahoma City).
 
“The Oklahoma Innocence Project’s clients Malcolm Scott and De’Marchoe Carpenter were both wrongfully convicted due to eyewitness misidentification, as were many other Oklahomans. Science has proven that certain procedures can improve the accuracy of identifications, and today is a great step in implementing these reforms throughout the state,” said Vicki Behenna, Executive Director of the Oklahoma Innocence Project at Oklahoma City University. 
 
“My family was devastated after we found out that the two men who were convicted of murdering my cousin had been wrongfully convicted. Since then I’ve worked to prevent wrongful convictions, and was proud to serve on the Oklahoma Justice Commission’s eyewitness identification subcommittee. It’s been three years since our recommendations were issued and it’s time to implement them,” said Christy Sheppard.
 
“Because of flawed identification procedures I lost four years of my life in prison for a crime I did not commit. What happened to me could have been avoided if best practices were in place, and our state should do everything it can to improve the way that lineups are conducted,” said Tim Durham.
 
“Spending 14 years behind bars for a crime I did not commit was not only devastating for myself and my family, but for the victim in my case. We never got justice and we are both victims of unreliable lineup procedures. What happened to us is a tragedy, but a preventable one,” said Thomas Webb.

Additional Background:
 
Tim Durham,: In 1993 Tim Durham was wrongfully convicted of raping an 11-year-old girl in Tulsa, Oklahoma, largely due to the victim misidentifying him in a photographic lineup and in-court. He was sentenced to 3,220 years in prison. Flawed procedures compromised the reliability of the identification. For example, Durham did not match the victim’s description of the perpetrator, the victim was shown only Durham’s photograph instead of a full photo array, and the victim was placed in a courtroom to observe Durham for hours during an unrelated hearing prior to making an in-court identification at trial. 
 
In 1996, Durham contacted the Innocence Project and requested that DNA testing be performed on the physical evidence that had been discovered at the crime scene. Testing revealed that the semen found on the victim’s swimsuit could not have come from Durham. This revelation placed the prosecution’s accusation beyond the realm of plausibility and pointed to the guilt of a convicted rapist named Jess Garrison, who had moved to Tulsa following his parole. In December of 1991, one month after Durham was charged, Garrison was found hanged in a warehouse in what was eventually ruled a suicide. 
 
Durham was officially exonerated in 1997 after serving four years in prison for a crime he did not commit. Today his is the CEO of Ramp Communications, a Tulsa area business his family started in 1935, providing communication devices to the commercial aviation industry worldwide.
 
Thomas Webb In 1983 Thomas Webb was wrongfully convicted of rape in Norman, Oklahoma, and spent 13 years in prison until DNA evidence proved his innocence. His conviction was based on the victim misidentifying him in a photographic lineup and in court, and on faulty hair microscopy evidence. The victim was originally shown a group of six black-and-white photographs but was unable to pick her assailant with certainty. A new line-up was constructed at her request, this one containing six color photographs. Only two of the pictures in the color line-up were of people depicted in the first line-up, one of which was Webb and the other a man who did not fit the victim’s initial description. 
 
In 2013, the DNA sample that excluded Webb was run through the national DNA database and yielded a match to Gilbert Duane Harris. The search also revealed that the DNA match had first been discovered in 2006, but was not acted upon. Harris was subsequently charged with the crime, but the statute of limitations had expired and the charges were dismissed in 2015. Following Webb’s wrongful conviction, Harris had been convicted of another rape in Norman. Today, Webb works in shipping for Love’s Travel Stops and Country Stores. He has developed a close friendship with the victim in his case.
 
Christy Sheppard is a licensed professional counselor (LPC) and victim advocate in Ada, Oklahoma. In 1982, when Christy was eight years old, her cousin Debbie Carter was raped and murdered in her home in Ada. Ron Williamson and Dennis Fritz were convicted of the crime; Williamson received the death penalty and Fritz was sentenced to life in prison. Eleven years later, the pair was exonerated when DNA testing excluded them as perpetrators and pointed to another man who had once been a suspect. The case became the basis for John Grisham’s book “The Innocent Man.” 
 
The experience led Christy Sheppard to become an advocate for wrongful conviction reforms. She advocated for the establishment of the Oklahoma Justice Commission, a group of law enforcement officers, defense attorneys, prosecutors, judges and victims to study ways to enhance the reliability of convictions in the state.  Christy served on the Commission’s eyewitness identification subcommittee, which issued a set of recommendations to reduce the risk of eyewitness misidentification.  
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  1. Wanda Ryczek-McCoy says:

    This is a great article and Nick the reason “Christy Sheppard” is named twice is due to her being related to the vict

    • Wanda Ryczek-McCoy says:
      wow thanks for letting me finish my reply!, she is related to the victim and also on the advocate against the death penalty that is why she is named twice in the article.
  2. Nick Kelly says:

    Why is “Christy Sheppard” named twice?

Thanks for your comment

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