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EL PAS, Monday, February 15, 2010

FEATURES

Crime

When faulty memories win criminal convictions

Too many cases are being decided on false testimonies
MNICA CEBERIO BELAZA
ou forget what you want to remember, and you remember what you want to forget, says the main character in Cormac McCarthys post-apocalyptic novel The Road. Any traumatic experience, not just the end of the world as we know it, can cause peoples minds to play tricks. It happens to victims of crime all the time. They want to forget but they cannot. They want to forget that moment when a stranger put a knife to their throats in a dark alley and raped them, but they want to remember their attackers face so he can be made to pay for what he did. Sometimes, however, their struggle to remember leads their minds astray. They are shown a photo of another person or they inadvertently recall the face of someone else, someone who had nothing to do with what happened to them. Sometimes, that person ends up in prison, their lives ruined victims of a legal system that ignores their plight and believes blindly in what their accusers say. Ricardo Cazorla was one of them. Two weeks ago the Supreme Court cleared Cazorla, a man with physical, psychological and sensorial disabilities, of his convictions of raping three girls in 1997. In 2009, he had been given a 36-year prison sentence by a court in Las Palmas, the Canary Islands, two years after one of the rape victims saw him on the street and thought he was her assailant. She called the police and Cazorla was arrested. The police, in turn, told nine other victims of the so-called Tafira rapist of the arrest. Six of them did not identify Cazorla as the attacker, and were left on the sidelines of the judicial process that followed. The other three, including his initial accuser, were much more involved in the case, even though one of them had serious doubts in the beginning when she was shown police photos. Prosecutors Pedro Joaqun Herrera, Secundio Alemn and Carlos Vielba apparently believed the women outright and did not doubt their memories despite the circumstances. They did not, it seems, take into account the fact that 10 years had passed since the crimes were committed, that, in 1997, the girls had told the police that the places where they were raped were very dark, and that the rapist had worn a partial disguise and had prevented them from looking at his face. On top of that Cazorla weighed about 30 kilos more than the man described by the women in their initial testimony to police. Most significantly, forensic tests had shown, almost without a shadow of doubt, that he could not have been the rapist.

In addition, the woman who had seen Cazorla on the street and identified him to police, had, years earlier, also pointed police to another man who was subsequently acquitted thanks to DNA tests. In Cazorlas case, however, the judges paid little attention to the forensic information, basing their verdict instead on the victims testimonies, which were described as being consistent, solid and forceful. In effect, they ignored the possibility that the victims might have made a mistake. Cazorla is not alone in being a victim of bad memory. According to the US NGO Innocence Project, more than 80 percent of people wrongly convicted were put behind bars because of mistaken identifications by victims and witnesses. No similar statistics are kept in Spain. Part of the problem is that correctly conducting an identification process is not easy. An interesting experiment was carried out for a recent television documentary El quinto por la izquierda by La Marea Productions. A group of 300 participants were shown a video of a purse snatch-

Studies show that people forget a criminals face with the passage of time False identification accounts for 80 percent of flawed convictions
ing and the face of the thief was displayed on the screen giving viewers more time to get an impression than would normally be the case during a real crime. They were subsequently asked to identify the bag snatcher in a lineup. The conditions were considered optimal. The participants were not stressed and they knew that what they were doing was putting their memories to the test and not trying to identify a criminal. Even so, only 52 percent of participants answered correctly by pointing out that the thief was not among the people lined up in front of them five minutes after they had watched the video. Two days later, the proportion of people who got it right dropped to 25 percent. The results suggest that in a real-life line up between 48 percent and 75 percent of the witnesses would have identified innocent people. In a separate test, the purse snatcher from the video was placed among the people in the lineup. But even then, he was only correctly identified by 32 percent of the witnesses five minutes after seeing the video, and

by only 13 percent two days after the viewing. Few people would knowingly lie in such a situation and possibly send an innocent person to jail. So why then do they trust their memories when they point to an innocent person in a lineup and identify them without any doubt as the law requires? Mind distortion is to blame, and it means that an innocent persons face can easily become that of the criminal in the victims mind. We know that the precision of an identification depends on various factors difficulties seeing the face, high stress levels, the passage of time, inadequate police lineups but on the other hand we dont know so much about the reasons that cause victims and witnesses levels of certainty to vary, explains Margarita Diges, a professor of psychology at Madrids Autonomous University and an expert in so-called testimony psychology. Other than internal, individual reasons, one way to increase the certainty of a witness is to lead them to believe that they are right, such as showing them a photo and then calling that that person to participate in a lineup, Diges said. It has been empirically proven that there is no relationship between a victims level of certainty and the precision of the identification. However, despite all the evidence and tests, what we see in reality with the police and judicial system is that, when the victim is absolutely certain they have identified their assailant, that certainty is taken as a guarantee of precision even when exculpatory scientific evidence exists, such as DNA samples, she said. The key moment occurs when a witness or the victim thinks that the person they are shown in a photo is the criminal. If that first identification is repeated then the victim or witness will consistently continue to identify that person with increasing levels of uncertainty. Irregularities on the part of police handling the identification process can therefore have dramatic consequences. A photo shown repeatedly, a suspect spotted in the police station before the lineup, or a lineup in which only one person looks remotely similar to the criminal can lead to innocent people being convicted and the guilty remaining free. Besides Cazorlas case, several such episodes have come to light in Spain in recent years. In the summer of 2009, the Supreme Court acquitted Henry Osagiede, a Nigerian man convicted on two counts of sexual assault and armed robbery. He had been the only black man in the police lineup and the two victims of the attacks had previously identified without any doubt another man who was able to prove his innocence.

VICTIM OF MISIDENTIFICATION. Ricardo Cazorla spent nearly three years in prison for rapes he didnt commit. The Supreme Court overturned his convictions based on DNA evidence that a court in the Canary Islands had refused to take into account. / rafa avero
Rafael Ricardi was sentenced for rape and spent 13 years in prison. He was innocent. His misfortune was that he had been a drug addict, living a rough life on the streets. Ricardi was an almost stereotypical typical victim of a botched police identification process: persons who because of their economic and social status have few people to help them, no money for good lawyers, and a lifestyle that often leaves them unable to account for their whereabouts. Some cases are simply mindboggling. Jorge Ortiz was convicted of armed robbery even though one of the two victims did not identify him and another

EL PAS, Monday, February 15, 2010

Crime

FEATURES

People think prisons are full of extremely dangerous criminals

Julin Ros wants debate to be based on right information
M. C. BELAZA Madrid
Julin Ros is troubled by the media and public furor that erupts after any particularly heinous crime over whether life imprisonment should be instituted in Spain. A lawyer and professor of penal law at Comillas Pontific University, Ros has recently launched an advocacy group, Otro Derecho Penal es Posible (Another Penal Law is Possible), with the aim of deconstructing myths about the penal system. We want to inform, he says. Were not looking for political confrontation, nor are we against anybody. Were just offering data for debate. The data Ros association is offering, he hopes, will open the eyes of those politicians and citizens calling for tougher sentences in Spain. He notes, for example, that Spain has a lower crime rate than the European average and half that of the United Kingdom, and that crime levels have been falling for the last 20 years. However, 90 percent of Spanish citizens believe that the country is more dangerous now than before and that there are more people in Spains prisons than elsewhere in Europe. So why the mismatch between reality and what people perceive? Sentences have gotten stricter, especially since 2003. There are no longer work benefits and parole is harder to obtain. In short, every day there are more prisoners and fewer are being released. I also believe that judges are stricter in applying the law because of the intense social pressure they face, Ros explains. Society seems to think that prisons are full of extremely dangerous criminals, but thats not true. Most are in there for crimes involving drugs or theft. Prison should only be used when there is no other re-

withdrew her original testimony just before the trial when she was shown a photo of the man who was the real criminal. The judge did not care. He based his ruling on one victims original testimony and, to add insult to injury for Ortiz, the sentence was upheld on appeal by the Supreme Court with the Constitutional Court refusing to even hear his case. In the end, he was released thanks to the efforts of the victim, who had campaigned on his behalf. He had spent two and a half years in prison. Not only do victims, witnesses, the police, prosecutors and judges make mistakes, but when they do, the justice system has a hard time acknowledging them and correcting them. In theory,

Police at a crime scene reconstruction escort murder suspect Enmanuel Martnez who, along with his girlfriend, is charged with leaving a man to die inside the trunk of an automobile in Valencia. / carles francesc

Julio Ros say ex-inmates have tough time adjusting. / carlos rosillo

Mind distortions allow victims to think an innocent person is a criminal No politician wants to champion the rights of a wrongly accused rapist
once a sentence has been handed down it is unchangeable no matter if it goes against the most basic principles of common sense. That is what happened to Ahmed Tommouhi and Abderrazak Mounib, two Moroccan immigrants convicted for a series of rapes in Tarragona and Barce-

lona in 1991. Four years later, the real rapist, a Spaniard, was identified, but Tommouhis and Mounibs innocence could only be proven in one rape where DNA evidence was available. But they had to continue serving their sentences for the other crimes. Mounib died in prison in 2000. Tommouhi spent a total of 15 years behind bars before he was released in 2006. The Supreme Court did not revoke the sentences he had received because the rules for appeals are very strictly defined: the convict must prove their innocence, and in this case there was no DNA to test. The government took nine years to decide whether or not to pardon him. It ultimately refused few politicians want to be seen releasing rapists (even innocent ones) from prison. And that points to another problem. False convictions usually occur in cases where the crimes are so severe that public pressure on the police and the courts to make someone pay is high. Braulio Garca Jan, a journalist, recently published a book on Tommouhi and Mounibs case called Justicia potica (Poetic justice), based on four years of research that he has recounted in detail on his blog ladoblehelice. com. What has come to light through his work is not just a

course. It cant be used for everything. Spain needs to find effective alternatives to prison. Theres no space for more prisoners in our prisons. Ros recalls how, soon after starting to practice as a lawyer, a friend introduced him to a young man who had just been released. He had drug problems and nowhere to sleep. He ended up in my house, the professor says. The young man was one in a long line of ex-prisoners who have passed through Ros home on their way from prison to life in society. He has moved out of

the city so he and his guests can have more space and tranquility. Prison is hard, he says. Society doesnt realize what its like to be a prisoner its total devastation. Among Ros guests were once two prisoners who had spent more than 20 years behind bars. In the end both committed suicide. One of them stole my stereo system. He went before a judge, confessed to what he had done and said he wanted to go back to prison; he didnt know how to live outside. He took his own life a few days later, Ros recounts.

handful of victims with flawed memories, but a string of errors in the police and judicial investigations. One of the girls who made a mistake in the identification, as DNA tests later proved, saw both the innocent men before the lineup, Garca Jan notes. And she saw them as suspects: Tommouhi was handcuffed and being guided to a cell. She and a dozen other victims were sitting in the hallway of the courtroom when the defendant was escorted by her. Curiously, she didnt identify Mounib the first time when the Civil Guard showed her his photo. But days after the victim of another rape identified him, she also came forward and accused him. Years later, the victim admitted that she didnt even look at the other people in the lineups. And though she said she had no doubt, she got it wrong. It is a common problem, but

judges, Garca Jan says, argue that official irregularities do not have any effect on how precise the identification is. It seems surprising that with so many cases of innocent people being wrongly convicted, judges seem intent on ignoring the findings of psychology studies on testimony. In the current judicial culture, particularly with regard to crimes of a sexual nature, there are three clichs: that the judge has a special ability to see the truth; that testimony is solid evidence; and that the victim should be afforded added credibility, so therefore what they say should suffice, notes Perfecto Andrs Ibez, a Supreme Court justice. They are clichs that are clearly undermined by testimony psychology and none of them are true. But that doesnt matter because they form part of the dominant public opinion

and make judicial work easier. On the other hand, courts often have to work on the basis of material photographic identifications, for example obtained on questionable grounds. There is no viable alternative to exercising justice with respect to the presumption of innocence and procedural guarantees. The fear of acquitting must be lost, even knowing that it will be unpopular, Ibez said. And to me it seems necessary for the change in judicial culture to be accompanied by another no less profound change in the culture and practices of the media, the top court justice said. Recent scientific studies show that false memories are generated in a different part of the brain than real ones. If that could be easily tested, it might save dozens or hundreds of innocent people from ending up behind bars.