Witness Misidentification: Exonerated by DNA Evidence After 11 Years for a Rape He Didn't Commit

I recently had the pleasure of talking to a lifelong friend who now works for The Innocence Project. The organization seeks to exonerate wrongfully convicted individuals through DNA testing. They also work to change criminal justice policies that contribute to such wrongful convictions. Since their founding, they have already exonerated 334 individuals; their clients have served an average of 14 years before being released. Many of the crimes they investigate are sexual assaults.

Source: http://www.innocenceproject.org/causes-wrongful-conviction

I have countless public health colleagues who are passionate about ending sexual violence. They are advocating for a culture of consent, fighting to change sexist notions and skewed views of masculinity, campaigning against the shame and stigma that many experience when they come forward about an assault, and working to help victims heal from the trauma of sexual violence. They are rightly angry that anyone has to experience this form of violence and that those who do may be deprived of the respect, care, and justice they deserve. This is an extremely important public health topic.

But what happens when a real crime has been committed, yet the wrong perpetrator is identified?

Approximately 82% of rapes are committed by an individual known to the victim. In these cases, witness misidentification is typically not an issue. But in the other 18% of cases, the assault may be the only instance when the victim sees their attacker, and they must rely on their memory of the traumatic event if and when there is an opportunity to identify the perpetrator.

My friend shared with me the story of Ronald Cotton and Jennifer Thompson. Thompson mistakenly identified Cotton in a 1984 lineup, feeling certain that his was the face of her rapist, a face she had painstakingly studied during the commission of the crime in the hopes of catching the man if she lived through the experience. In 1995, however, new DNA technology showed that Cotton was innocent and identified the real perpetrator, Bobby Poole. At that time, Poole was already in prison at the same facility as Cotton for other crimes he had committed. Thompson was shocked; she had been so sure.

Cotton                                            Poole

After Ronald Cotton's release, Cotton and Thompson became friends and have worked together to educate the public about wrongful conviction and to advocate for criminal justice reform. They even wrote a book together called, "Picking Cotton: Our Memoir of Injustice and Redemption."

My friend's passion for the issue and recanting of this true story piqued my interest, and I later watched the 60 Minutes episode about their experience. It is truly powerful.

This is not a story about false accusation due to a made-up story. Jennifer Thompson was raped. And it is not that Thompson was intentionally misidentifying her attacker. Rather, in a way, her memory was tricked when she initially saw a photo lineup that included Cotton and not Poole and noticed some key similar features, such as the angle of Cotton's eyebrows. (Cotton says that other inmates even sometimes confused he and Poole and called one by the other's name.) When Thompson picked Cotton out again in an in-person lineup a short time later, his face was cemented in her memory. Even at Cotton's re-trial in 1987 (before the DNA evidence surfaced), when Poole was in the court room due to a fellow convict's testimony that Poole had admitted to the rape, Thompson did not recognize Poole's face; she was still convinced Cotton was the perpetrator, and he was convicted a second time.

One of the most interesting and telling quotes in the 60 Minutes segment comes from the detective in the case. "Law enforcement wasn't schooled on memory. We weren't schooled in protecting memory, treating it like a crime scene, where you're very careful and methodical about what you do and how you use it. We weren't taught that in those days." (6:40 into the Part 2 video below)

I highly recommend watching the below 60 minutes episode. Not only does it tell the story of Cotton and Thompson, but it also goes into some very interesting scientific experiments on memory that will change the way you view eyewitness testimony.

60 Minutes "Eyewitness Testimony" Part 1

60 Minutes "Eyewitness Testimony" Part 2

While public health seeks to prevent sexual violence in the first place and fights for changes in the public discourse to create a culture of believing and empowering victims, my hope is that we not forget to promote true justice for both the Jennifer Thompsons and the Ronald Cottons of the world.

Sexual Assault in the Military

There have been a number of eye-opening articles about rape in the military lately, and I wanted to share a little about what I have learned. After reading the first article some months ago, I was saddened and disturbed. But I thought it was an isolated story. However, after reading probably a dozen articles over the last few months covering different tragic aspects of this issue, I have started to see a pattern in what is being reported and am seriously concerned. This is a terrible injustice to women serving our country, and something obviously needs to change!

Let's start with some numbers (my favorite thing!) Leon Panetta, the U.S. Defense Secretary, stated that there were 3,158 sexual assault cases reported in the military in 2010 and 3,191 in 2011. However, he stated that he believes the problem is much larger due to the limited number of victims willing to come forward and file a formal report (or perhaps due to being discouraged by superiors from filing a report). He estimates that the actual total could be closer to 19,000 victims a year. It is estimated that only 13.5% of U.S. military sexual assault victims report the crime. That is staggering! His words came shortly before the release of an award-winning documentary, "The Invisible War," which reports on sexual assault in the military. (I have not seen the film yet, but it is on my list to see soon.) According to another CNN article, in 2010, of those cases reported, less than 21% went to trial, and of those that were tried, 53% were convicted.

If you are in the military and rape a colleague, you have an estimated 86.5% chance of keeping your crime a secret and a 92% chance of avoiding a court-martial.

So why do so many continue to get away with this? According to a column by U.S. Representative Jackie Speier, many women who report rape by a commanding officer or colleague "face ridicule, demotion, investigation that includes a review of their sexual history, and even involuntary discharge." In her article, Speier sites specific cases of women who were told to buck up and move on or ignored altogether. For example, she explains, "In 2006, when Marine Lt. Elle Helmer reported to her commander that a superior officer assaulted and raped her the night before, her colonel discouraged her from obtaining a rape kit. In spite of his objections, she sought a thorough medical investigation. Helmer appealed to her rapists's supervisor, who still refused to press charges or significantly punish the assailant. He said, 'You're from Colorado - you're tough. You need to pick yourself up and dust yourself off....I can't babysit you all of the time."

When I read that, I was completely and utterly disgusted. That is an insult to this particular woman, to women in general, and to the honor of the majority of men and women serving our military who don't violate the trust and bodies of their colleagues. Those who do should be investigated in a fair and complete way, and if found guilty, punished in a consistent manner with how the law treats non-military offenders.

Here is another excerpt from a previous article written by Representative Speier:

"According to [Andrea] Neutzling, in 2002, while serving in South Korea, she was sexually assaulted by an intoxicated soldier she knew. She reported the assault to her commander, who gave the assailant a slap on the wrist punishment of five days of base restriction. Three years later in New Jersey, preparing for deployment to Iraq with a military police unit, she was again assaulted by a fellow soldier. Fearing nothing would happen if she reported the attack, Neutzling instead kept the incident to herself.

"A month later in Iraq, she said she was raped by two soldiers who threatened to beat her if she struggled. Although she suffered serious bodily injuries from the rape, she chose not to report it; instead she slept on a cot with her rifle pointed toward the door for the first few days after the attack.

"Soon, the chaplain was told about the attack by a woman in Neutzling's unit who reported that the perpetrators were showing a video of the rape to others. But her chaplain didn't believe her, later telling Neutzling, 'You don't act like a rape victim.'

"The commander said it was a 'they said, she said' situation, and because she was married at the time of the incident, he threatened to charge her with adultery. The men who raped Neutzling were never charged, investigated or penalized.

"In the current military chain of command structure, Neutzling's commander and staff sergeant did nothing wrong. Commanders can decide whether to investigate and issue virtually any punishment or, in this case, no punishment at all - they have complete authority and discretion over how a degrading and violent assault is handled."

Speier also states that "in the U.S. military, a woman is more likely to be raped by a co-worker than killed by the enemy."

CNN reported earlier this year on a lawsuit involving eight women who claim they were sexually assaulted during their time in the military and faced retaliation after reporting the abuse. One of the women filing charges is Arian Klay, a former Marine Corp. officer who served in Iraq in 2008 and 2009. She alleges that she was gang raped at her home by a senior officer and his friend. After reporting the incident, the officer was eventually found guilty of adultery and indecent language by a military court, carrying a sentence of 45 days in military confinement. She claims that since two men reported it was consensual and she alone reported it was forced, the military basically sided with the officer. Of course, she is concerned that this logic means the more people who rape you, the stronger their case becomes.

In yet another article from April, CNN covered the stories of women who received a "psychiatric diagnosis and military discharge after reporting a sexual assault." These women served in various branches of the military and were diagnosed with personality disorders or other psychiatric conditions, which they claim were completely false. These conditions were then used as grounds to oust them from the service.

Although I cannot personally validate any of these stories, the sheer number of victims and consistency of reporting on this issue leads me to believe that it is a genuine problem. Based on what I have read, it seems that the culture of the military encourages recruits to submit to the orders of their superiors (even if that superior is telling them not to report a crime against themselves or a colleague.) Furthermore, the structure of command apparently also gives significant discretion to supervisors to investigate and punish many infractions as they see fit.

Representative Jackie Speier has proposed the STOP Act (H.R. 3435), which she says "takes complete authority and discretion out of the hands of commanders and gives that authority to objective experts. The bipartisan STOP Act creates a new office of oversight and response to handle all possible cases of rape and sexual assault in the military, enabling unbiased personnel to determine the appropriate path of action for each report. The office would be housed in the Department of Defense and staffed by civilian and military experts trained to manage investigations of sexual assault."

Although I do not know all of the details of her proposal, the concept seems like an important and necessary step to preserve the safety of - and ensure justice for - our troops.

I believe the men and women who serve in our military make a tremendous sacrifice for all of us. And I believe that most of these men and women are people of general good will. All of them deserve to be treated fairly. I am appalled that so many of our service members are victims of sexual assault. It is clear that the military must take further steps to prevent the problem and to ensure that every victim gets a fair investigation, with the opportunity for their assailant to be tried in a military court, including punishments that match the severity of the trauma inflicted by such violence.