Dallas police pioneering new photo lineup approach

By JEFF CARLTON, Associated Press Writer,  Fri Aug 21, 7:30 am ET

DALLAS – Frustrated with a string of wrongful convictions, the Dallas police department is now the nation’s largest force to use sequential blind photo lineups — a widely praised technique designed to reduce mistakes made by witnesses trying to identify suspects.

Dallas is not the first department to use the pioneering method. But experts hope that by using it in the county that leads the nation in exonerating wrongly convicted inmates, Dallas will inspire other departments to follow suit.

“If Dallas can do it … then others are going to rise to the occasion,” said Iowa State psychology professor Gary Wells, a national expert on police lineups.

The department switched to sequential blind lineups in April. Before that, Dallas police administered most lineups using the traditional six-pack — law-enforcement lingo for mounting six photos onto a folder and showing them to a witness or victim at the same time.

In sequential blind lineups, mug shots are shown one at a time. Detectives displaying the photos also don’t know who the suspect is, which means they can’t purposely or accidentally tip off witnesses.

Showing possible suspects all at once tends to make a witness compare the mug shots to one another, Wells said. But if they are shown sequentially, “witnesses have to dig deeper, compare each person to their memory and make more of an absolute decision.”

“It makes witnesses more conservative, more cautious,” he said.

An analysis of 26 recent studies shows that presenting mug shots sequentially instead of simultaneously produces fewer identifications but more accurate ones, Wells said. Overall, identification rates in sequential lineups are 15 percent lower than simultaneous lineups — but misidentification rates also drop by 39 percent, he said.

Dallas is taking other measures to try to cut back on misidentifications. Police try to record every lineup to make them more credible, and a lineup unit tells witnesses that police will investigate the case regardless of whether an identification is made. That’s designed to reduce pressure on a witness to make an ID for fear the case will stagnate, said Dallas police Lt. David Pughes.

Dallas police also ask witnesses to express how confident they are in their identifications, Pughes said. That’s to avoid what Innocence Project Co-Director Barry Scheck calls a “forced-choice response” when police, intentionally or not, nudge a witness into expressing certainty.

That’s what happened to Thomas McGowan, a wrongly convicted Dallas County man released last year after nearly 23 years in prison for a rape and robbery he did not commit.

Police in the Dallas suburb of Richardson gave the victim, who was held captive by her attacker for several hours, several photos including McGowan’s and the man that DNA eventually proved to be the rapist. She picked out McGowan’s photo, saying she “thought” he was the attacker. Police told her she had to be certain and “couldn’t just think it was him.” It was then she said McGowan was “definitely” the attacker, according to court documents.

McGowan recently met his accuser, who apologized. He said he believes police should use an independent person to administer lineups. The Richardson department now has a written policy that states a preference for but doesn’t require an independent lineup administrator.

“They showed me the picture of the guy, and to me the guy looked nothing like me,” McGowan said. “I’m still trying to figure that one out.”

Nationally, more than 75 percent of DNA exonerees who have been released since 1989 were sent to prison based on witness misidentification, according to The Innocence Project, a New York legal center specializing in overturning wrongful convictions. It’s the most common element in a wrongful conviction, the center said.

Since 2001, 21 people in Dallas County have had convictions overturned after DNA proved their innocence. A majority of them were in the city of Dallas.

In May, Jerry Lee Evans, of Dallas, had his conviction overturned after spending 23 years in prison for aggravated sexual assault with a deadly weapon. The rape victim wrongly identified him as her attacker.

In another case, Johnnie Earl Lindsey spent more than 25 years in prison for a rape he did not commit. The victim said her attacker didn’t wear a shirt. A year later, the victim picked out Lindsey — one of two shirtless men among the six photos. Lindsey, of Dallas, was released last year after DNA showed he was innocent.

Boston, Minneapolis and Denver use sequential blind lineups or some variation. New Jersey and North Carolina have mandated police do the same. Most police departments, however, continue to use the six-pack or other traditional methods.

“There’s a belief that as long as what you are doing is legal, then you just keep doing it because you believe it is working for you,” Wells said.

In Dallas, police were initially resistant to the new lineups because “they thought we were creating obstacles to getting bad guys off the street,” Assistant Chief Ron Waldrop said.

But after about 1,200 lineups, identification rates have not changed — though it is too early tell if there’s been a decline in mistaken ID rates.

High court says convicts lack right to DNA testing

By MARK SHERMAN, Associated Press Writer Mark Sherman, Associated Press Writer – Thu Jun 18, 3:27 pm ET

WASHINGTON – The Supreme Court said Thursday that a convicted rapist has no constitutional right to test biological evidence used at his trial in Alaska years earlier, leaving it to the states to decide when prisoners get access to genetic evidence that might prove their innocence.

In a 5-4 vote, with the conservative justices in the majority, the court said it would not second-guess states or force them routinely to look again at criminal convictions.

William Osborne, convicted in a brutal assault on a prostitute in Alaska 16 years ago, sued for the right to test the contents of a blue condom the victim says was used by her attacker. A federal appeals court said he had a right to conduct the test.

Alaska is one of only three states without a law that gives convicts access to genetic evidence. The others are Massachusetts and Oklahoma.

Testing so far has led to the exoneration of 240 people who had been found guilty of murder, rape and other violent crimes, according to the Innocence Project, which works to free people who were wrongly convicted.

But Chief Justice John Roberts, in his majority opinion, said the states have moved quickly to grapple with the challenges and opportunities presented by advances in genetic testing.

“To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response,” Roberts said.

The chief justice said that new technology that was not available at trial should not throw fairly won convictions into doubt. “The dilemma is how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice,” he said.

Dissenting liberal justices and advocates for prisoners who seek genetic testing complained that the court is penalizing a small group of inmates who lack access to a simple test that would conclusively show their innocence, or reaffirm their guilt.

“The fact that nearly all the states have now recognized some postconviction right to DNA evidence makes it more, not less, appropriate to recognize a limited federal right to such evidence in cases where litigants are unfairly barred from obtaining relief in state court,” Justice John Paul Stevens said.

Peter Neufeld, a co-founder of The Innocence Project who argued Osborne’s case at the Supreme Court, said the ruling probably would not affect the vast majority of inmates seeking DNA testing.

But, Neufeld said, “There is no question that a small group of innocent people — and it is a small group — will languish in prison because they can’t get access to the evidence.”

The Obama administration, picking up the argument first made by the Bush administration, urged the court to reject the appeals court ruling and insist that inmates at least swear under oath to their innocence before being given access to the evidence. The federal DNA testing law has such a requirement.

In some states, laws limit testing to capital crimes or rule out after-the-fact tests for people who confess.

The woman in Alaska was raped, beaten with an ax handle, shot in the head and left for dead in a snow bank near Anchorage International Airport. The condom that was found nearby was used in the assault, she said.

The woman, who is white, identified Osborne, who is black, as one of her attackers. Another man also convicted in the attack has repeatedly incriminated him. Osborne himself described the assault in detail when he admitted his guilt under oath to the parole board in 2004.

In many exoneration cases, eyewitnesses picked out the wrong man, often with the victim of one race incorrectly identifying someone of a different color.

Osborne’s lawyer passed up advanced DNA testing at the time of his trial, fearing it could conclusively link him to the crime. A less-refined test by the state showed that the semen did not belong to other suspects but could be from Osborne, as well as about 15 percent of all African-American men.

Osborne is awaiting sentencing on another conviction, a robbery he committed after his parole.

The case is District Attorney’s Office v. Osborne, 08-6.

Vigil held to show support for suspected Oakland cop killer

By Associated Press
Thursday, March 26, 2009

OAKLAND, Calif. – As the city prepares for a massive public funeral for four police officers slain in the line of duty, dozens took to the streets in a show of support for the man authorities say was their killer.

Organized by International People’s Democratic Uhuru Movement, the march Wednesday evening took participants near a police substation within sight of the two locations where Lovelle Mixon allegedly shot the veteran officers before being slain himself.

Loved ones and supporters walked through the streets chanting, “OPD you can’t hide, we charge you with genocide!” There were no officers patrolling the march route.

“I don’t condone what he did, but it’s bringing to light the frustrations between the community and the police,” said Uhuru Movement member Kihad Deen. “This gives people a chance to speak their minds.”

Mixon’s cousin, Dolores Darnell, 26, addressed the small crowd, calling him “a true hero, a soldier.”

“This is the real Lovelle,” she said, holding a picture of a smiling Mixon with his wife. “We do apologize for what he did to the officers’ families. But he’s not a monster.”

Authorities say a day before the shooting the 26-year-old fugitive parolee was linked by DNA to the February rape of a 12-year-old girl who was dragged off the street at gunpoint.

The event took place a day after a city-sponsored gathering drew about 1,000 people to the crime scene to honor the slain officers: Sgt. Mark Dunakin, 40; John Hege, 41; Sgt. Ervin Romans, 43; and Sgt. Daniel Sakai, 35.

Police said Hege and Dunakin were gunned down Saturday when the two motorcycle officers pulled over Mixon. In a manhunt that followed, Romans and Sakai died when the city’s SWAT team stormed an apartment where Mixon was hiding. Mixon also died in the gunfire.

Speaking at the event honoring the officers Tuesday night, Acting Police Chief Howard Jordan said the department was being sustained by an outpouring of public sympathy that included flowers, food, donations for the officers’ families and more than 3,000 e-mails, cards and calls.

“It speaks volumes for us. To see so many people here today, in the very same community we lost four officers, means so much to us,” Jordan said, noting that the condolences have far exceeded any hints of criticism. “We’re going to get through this, with the support of our families and with the support of you, the community.”

Meanwhile, the state inspector general said Wednesday that Mixon was properly monitored by corrections officials after he was released from prison in November. Mixon was wanted on a parole violation when the shootings happened, although it is not yet known whether that was the reason Hege and Dunakin pulled him over on Saturday afternoon.

Sgt. Dom Arotzarena, president of the Oakland Police Officers Association, said Wednesday that the rank-and-file is trying to cope with the tragedy while preparing for a public funeral Friday that is expected to fill the arena where the Golden State Warriors play.

“Everyone is devastated,” Arotzarena said. “Everyone is trying to seek answers to it all, including, ’Why did this happen?’

“Our reaction is no different than anyone else.”

According to the National Law Enforcement Officers Memorial Fund, 133 law enforcement officers died in the line of duty in 2008, a 27 percent decrease from year before and the lowest annual total since 1960

Oakland cop shot by parolee taken off life support

By MARCUS WOHLSEN, Associated Press Writer

  Reuters – Undated mugshot of suspect Lovelle Mixon, who was involved in the shooting of 5 police officers resulting …

• Slideshow:Police officers killed in Oakland shootings
• Play Video Video:Oakland, Calif. mourns slain officers AP

SAN FRANCISCO – An Oakland police officer shot by a man wanted on a parole violation was taken off life support after vital organs were removed for transplantation, a hospital spokeswoman said Tuesday.

The officer’s death brings to five, counting the gunman, the number of people killed in Saturday’s confrontation.

Officer John Hege was taken off life support Monday night and his heart, liver and kidneys were removed, said Andrea Breaux of Alameda County Medical Center.

The 41-year-old officer had been declared brain dead on Sunday but the hospital kept him on life support so his organs could be donated, in keeping with his wishes.

Four patients received the organs, she said.

Police said Hege and his partner, Sgt. Mark Dunakin, were gunned down when the two motorcycle officers pulled over parolee Lovelle Mixon on Saturday.

In the manhunt that followed, two more officers died when the city’s SWAT team stormed an apartment where Mixon was hiding. The two officers who were killed at the apartment were Sgt. Ervin Romans, 43, and Sgt. Daniel Sakai, 35. Mixon also was killed.

“This is the biggest tragedy ever to hit our department,” Oakland police Sgt. Mark Schmid said Monday. “We’re just numb and walking around like zombies. We feel each other’s pain but we don’t know how to explain it.”

Flowers piled up outside Oakland police headquarters. A vigil was planned for Tuesday evening at the corner near where the two motorcycle officers stopped Mixon.

The incident has prompted California’s attorney general to call for better monitoring of parole violators.

DNA found at the scene of a February rape was a probable match to Mixon, Oakland police spokesman Jeff Thomason said Monday night.

Investigators got that information Friday, the day before the routine traffic stop ended in gunfire.

California prison records show that authorities had issued a warrant for Mixon’s arrest after he missed a mandatory meeting with his parole officer on Feb. 19.

His family said Mixon, 26, had served six years in state prison for assault with a firearm during an armed robbery in San Francisco. More recently, he served several months in prison last year for a parole violation.

State Attorney General Jerry Brown said he will examine how Mixon was monitored following his release from prison in November. Mixon also was a suspect in a December 2007 murder but was never charged because of lack of evidence, officials said.

“Mixon was certainly a character that needed more supervision,” said Brown, the former mayor of Oakland. “In Oakland, the highway patrol has an office there, sheriff and police. And all those agencies should have a list of the more dangerous, threatening parolees so they can keep a watch on them.”

Mixon was one of 164 Oakland parolees in mid-March who had outstanding arrest warrants for parole violations, state prison records show.

The city of 400,000 residents had more than 1,900 total parolees at the time, including nearly 300 who had been returned to custody or whose parole was about to be revoked.

During traffic stops, police often check vehicle records to find whether the driver has outstanding warrants. But police have not disclosed how Saturday’s shooting unfolded.

Mixon’s family members said he was upset that he was unable to find work, felt his parole officer was not helping him and feared he would be arrested for a parole violation.

State prison officials said Mixon’s parole officer was responsible for 70 parolees. A caseload of that size is nearly unmanageable, but not unusual, said Lance Corcoran, spokesman for California’s prison guard union, which includes parole officers.

“There is no control,” Corcoran said. “It’s simply supervision, and supervision at distance.”

___

Associated Press writers Josh Dubow, Lisa Leff and Juliana Barbassa in San Francisco and Terry Collins in Oakland contributed to this report.

(This version CORRECTS that harvesting of organs completed late Monday not early Tuesday, reflecting change from hospital)

Jury Convicts PA Trooper of Murdering His Girlfriend’s Husband

 

INDIANA, Pa. – A suspended Pennsylvania State Trooper faces life in prison after a jury convicted him in the bloody slashing death of a dentist who was divorcing the lawman’s live-in girlfriend.

The jury found Trooper Kevin Foley, 43, guilty of a single count of first-degree murder, returning the verdict at 10 p.m. Wednesday after six hours of deliberations.

Foley, of Indiana, Pa., was the last witness the jury heard, taking the stand Wednesday to say he was only joking when he told colleagues he wished for Dr. John Yelenic’s death.

Prosecutors said Foley stopped at Yelenic’s home after a hockey game and slashed him with a knife before slamming his head through a window, leaving the dentist to bleed to death in his Blairsville home on April 13, 2006

“John has his justice tonight,” said Yelenic’s cousin, Mary Ann Clark, who was crying after the verdict was read.

Yelenic, 39, was killed a day before he was to sign papers finalizing the divorce from his wife, Michele, who was living with Foley. The couple’s separation was so rancorous that Yelenic’s attorney asked a judge to issue a posthumous divorced decree — saying Yelenic would have wanted it — but the judge refused, saying she couldn’t legally end a marriage that was terminated with Yelenic’s death.

Foley’s attorney said he’ll appeal.

“We’re very disappointed with the verdict,” said defense attorney Jeffrey Monzo. “We still believe Kevin is innocent. We will press forward.”

Foley has been on unpaid suspension since his arrest in September 2007. He will be formally sentenced June 1, but the first-degree murder conviction carries a mandatory life sentence without parole.

In his testimony Wednesday, Foley flatly denied killing Yelenic and explained that he was only “joking” when he told other troopers, who had testified earlier in the trial, he wished the man would die.

Asked by his other defense attorney, Richard Galloway, if he “in any manner, at any time, with any instrumentality” caused Yelenic’s death, Foley said, “No, sir, I did not.”

“Are you innocent?” Galloway asked.

“Yes, sir, I am innocent,” Foley said.

Senior Deputy Attorney General Anthony Krastek had introduced testimony that DNA found under Yelenic’s fingernails was likely from Foley and that bloody shoe prints at the scene matched a pair Foley was known to wear at the time.

Krastek questioned Foley about testimony by other troopers who said he talked about wishing for Yelenic’s death. One trooper testified that Foley asked for his help to kill Yelenic.

Foley acknowledged that he didn’t like Yelenic, but said he was a practical joker and had made the comments in jest.

“Is it funny when you asked … that you wanted help killing John Yelenic?” Krastek said. “What’s so funny about that? Tell me the joke.”

“There isn’t any joke,” Foley replied. “It’s just my personality, my behavior.”

Foley was led from the courtroom in handcuffs and remains jailed pending his formal sentencing.

Suspended Pa. trooper denies killing dentist

From the Associated Press via Yahoo! News

March 18, 2009

INDIANA, Pa. – A suspended Pennsylvania state trooper denied killing a dentist who was divorcing the lawman’s live-in girlfriend and testified Wednesday that he was only joking when he told colleagues he wished for the man’s death.

“I never made a threat with the intention of carrying it out,” Kevin Foley said during questioning by the prosecution at his trial.

Foley, 43, has been on unpaid suspension since he was arrested in September 2007 in the slaying of Blairsville dentist Dr. John Yelenic, 39. An Indiana County jury was expected to hear closing arguments and begin deliberating later Wednesday.

Yelenic was found dead on April 13, 2006, a day before he was to sign the final divorce papers from his wife, Michele. The couple’s separation was so rancorous that Yelenic’s attorney asked a judge to issue a posthumous divorced decree — saying Yelenic would have wanted it. The judge refused, saying she couldn’t legally end a marriage that ended with Yelenic’s death.

A pathologist found that Yelenic was sliced with a knife and died of blood loss after his head was forced through a window, causing even more cuts.

Senior Deputy Attorney General Anthony Krastek contends Foley killed Yelenic while on his way home from playing in a pickup hockey game.

On Wednesday, Krastek questioned Foley about testimony by other troopers who said he talked about wishing for Yelenic’s death. One trooper testified that Foley asked for his help to kill Yelenic.

Foley acknowledged that he didn’t like Yelenic, but said he was a practical joker and commented in jest.

“Is it funny when you asked … that you wanted help killing John Yelenic?” Krastek said. “What’s so funny about that? Tell me the joke.”

“There isn’t any joke,” Foley replied. “It’s just my personality, my behavior.”

Under earlier questioning by his defense attorney, Richard Galloway, Foley said he was innocent.

Krastek earlier in the trial introduced testimony that DNA found under Yelenic’s fingernails was likely Foley’s and that bloody shoe prints at the scene matched a pair Foley was known to wear at the time.

Foley is charged with criminal homicide, meaning the jury must not only determine his guilt or innocence, but also the underlying murder or manslaughter crime he may have committed.

Prosecutors have said they believe Foley is guilty of first-degree murder — premeditated with malice. The charge carries a mandatory life sentence because prosecutors are not pursuing the death penalty.

 

Bill forces citizens to submit DNA

LIFE WITH BIG BROTHER
Police to obtain samples for state, federal databases – without charges filed

Posted: February 05, 2009
11:50 pm Eastern

By Chelsea Schilling
© 2009 WorldNetDaily

 

Citizens who have been arrested may be required to submit DNA samples to authorities before being convicted of any crime – and those records would be kept in state and federal databases.

The Washington state Legislature has introduced a measure that would require police to obtain the samples from even suspects accused of minor crimes such as shoplifting, according to the Seattle Times.

The proposal is part of a new movement in several states to adopt similar measures. More than 12 states already permit police to collect samples prior to convictions and three more are considering adding the provision.

Don Pierce, executive director of the Washington Association of Sheriffs and Police Chiefs, told the Times he welcomes the proposal.

“It is good technology. It solves crimes,” he said. “We take fingerprints at the time of arrest, which in many ways is a lot more intrusive.”

Critics claim Washington’s HB-1382, sponsored by Rep. Mark Miloscia, D- Federal Way, is unconstitutional because police and jail staff would be required to keep DNA records on adults and juveniles arrested on suspicion of a felony or gross misdemeanor.

Currently, police are required to obtain a search warrant or the suspect’s permission before collecting DNA by swabbing citizen’s cheeks.

“This bill would take the next step in the use of DNA technology to help catch individuals who have gone out and harmed people,” Miloscia told the Times.

According to the bill, authorities would remove a suspect’s DNA information if they were not charged or found guilty.

Each DNA test costs taxpayers $82, and the price tag for the plan could reach $1 million over two years. Miloscia said Washington could look to the federal government to recover some of those costs.

Jack King, staff attorney for the National Association of Criminal Defense Lawyers in Washington, D.C., told the Times his group has been battling DNA-collection measures since 2004. He said requiring authorities to obtain DNA before convicting a person would violate their constitutional protections from unreasonable search and seizure.

“DNA samples reveal the most personal, private information about a person’s physical and mental makeup,” King said. “It is terribly unfair to an arrestee.”

Upon learning of the controversial, several readers posted the following responses:

• This goes beyond stupid. They say that if the person isn’t convicted that they will destroy the sample. That is a lie. The federal government will not destroy records simply because a state destroyed theirs.

• I don’t like it one bit. There should be a warrant provided before they take my DNA.

• What happened to innocent until proven guilty? Even if found guilty, this is extreme for minor offenses.

• The idea is to build a national database with everyone in it. This is just another step in the process. Next you will be required to provide a DNA sample when you get your driver’s license, and then they will simply take it at birth when you apply for a birth certificate. The point of the measure is not identification. They can already ID you. The point is to make it normal for people to give DNA samples to the national database. After all, only people with something to hide would object to this type of intrusion and surveillance. Right? Everyone needs to e-mail their legislator and tell them you do not want this or else they will just do it. This is not about criminals.

• To the morons who say, “If you aren’t a criminal don’t worry about it,” our Founding Fathers gave us a Bill of Rights that gives us freedom from such sorts of unreasonable searches and seizures. The government has no right to my DNA chain until I am convicted of a felony and not before. As one of our great Founding Fathers has said, “Those who would sacrifice liberty for security deserve neither.”

• I wouldn’t trust the government promising to destroy the sample. When I joined the military, they took my fingerprints “for a security clearance check” – and they went into the great big database with all the criminals. Later, they took my DNA — “so there would be no more unknown soldiers” – and later Congress passed a law making this DNA available to any police department that requests it. And there is no provision to request destruction of the sample. Once you give the government an inch, it will take a mile.