The Ophelia Cut (36 page)

Matter-of-fact, Hardy began. “Your Honor, in some ways, this entire case hinges on Lieutenant Glitsky’s role in its earlier handling. Because of a perceived conflict of interest that San Francisco’s chief of police, Vi Lapeer, painted as a conspiracy between Glitsky, the defendant, me, my partner Ms. Roake, and even Wes Farrell, she first obtained a Ramey warrant to arrest the defendant before the evidence warranted prosecution; then she expressed a lack of confidence in the lieutenant’s handling of his inspectors that led to his retirement. Glitsky’s rebuttal of Chief Lapeer’s accusations and actions will highlight the political machinations
and the resulting defective evidence that was the proximate cause of the defendant’s arrest.”

Stier wasn’t going to let it all go without a comment. “Which has absolutely nothing to do, Your Honor, with the evidence we’re relying upon to convict this defendant. It has nothing to do with the blood in the defendant’s car. It has nothing to do with the blood on the defendant’s shoes or his jacket. It has nothing to do with the conveniently missing shillelagh that happens to be the murder weapon. And I’d love to hear that it has nothing to do with the facts that the defendant beat up Rick Jessup in city hall and, later, that Jessup raped his daughter. This is an absolute red herring.”

Unperturbed, Hardy sailed on. “As to Mr. Goodman and Mr. Lo, I am not sure of their testimony at this time. Mr. Jessup worked for Mr. Goodman; Mr. Lo is one of his major donors; and obviously, there are unexplored relationships that I believe may be relevant to this case, particularly the defendant’s alleged motive. I intend to have my private investigator talk to these witnesses and explore the relationships, and then, if they so warrant, I intend to call them. In this context, it is not impossible that I may ask the court to add both Wes Farrell and Vi Lapeer to the witness list.”

“Mr. Stier?”

“Seriously, Your Honor? Seriously? Mr. Hardy doesn’t even try to articulate a connection, however tenuous, between Mr. Lo, Mr. Goodman, and this case. It is, to coin a phrase, the mother of all smokescreens, and the court shouldn’t tolerate it.” The prosecutor’s face glowed a dull red. “With respect, Your Honor, these three witnesses are intended to confuse and mislead the jury. They have no place at this trial.”

“Thank you, counsel.” She turned to Hardy. “Counsel,” she said, “I’m going to allow you to add these names, but that’s all I’m saying right now, and I’ll tell you what: before any one of them gets on the witness stand, I’m going to want to hear a much more focused recitation of relevant testimony that they can give. Because, frankly, what you’ve told me so far is unconvincing, and if I had to decide now, I might just sustain Mr. Stier’s objections. Consider yourself on notice.”

B
UOYED BY HIS
success, Hardy cautioned himself against complacency or overconfidence. After Dr. Paley was settled again in the witness chair,
Hardy took an extra moment apparently studying his notes at the defense table. All business, he sipped from his water glass, looked neither at Wu nor Stier nor to the gallery, and finally stood to face his witness. “Dr. Paley,” he began, “would you mind starting out by giving the jury the definition, as it were, of eyewitness identification and perception?”

“Certainly.” Paley had lost none of his energy or enthusiasm over lunch. “Let me say to begin with that, obvious as it may be, you can’t identify someone unless you first observe him. Once you’ve done that, then eyewitness identification is the ability to pick out the very same person you saw—that is, observed—before.”

“You say ‘the very same person,’ Doctor. Are you trying to distinguish that very same person from some other person?”

“Excellent question, Mr. Hardy. Excellent.” As well it should be, Hardy thought; they’d rehearsed it enough, to the tune of about a thousand dollars. “What I am trying to distinguish is what that so-called very same person is not. He is not, for example, somebody whom you assume to be the person; nor is he someone who you think other people may think is the person. He’s not somebody who somebody else told you was the person, or who the police believe was the person, or who a photograph suggests is the person. All of the above are not eyewitness identification.”

“And why not, Doctor?”

“Because they all have to do with assumptions and inferences. And eyewitness ID is the demonstrated ability, based on the memory of what you’ve observed, to pick out the very same person you saw before.”

“Is that difficult?”

“It can be, yes.”

“Are there specific conditions under which it can be more difficult?”

“Absolutely.”

“Such as?”

“Well, if it’s dark or far away, or if there’s a lot of other stuff going on or too many people around. And if I might just add something . . .”

“Go ahead.”

“The other thing is that we’ve all got opinions about how eyewitness identification works, but the fact is that when we compare how we think
it works and how it actually works, we’re often way off. It doesn’t happen the way lots of folks think it does. Studies over the past decades have proved that we don’t do it nearly as well as we think we do.”

For the next twenty minutes, under Hardy’s careful questioning, the doctor homed in on this point—we are not video cameras; we are severely influenced by other observations as well as by what else is going on at the time of the observation. And not only are the original observations often impacted by surrounding events; our fragile memories become mixed up during the act of recovery, and the observation degrades because of the other information in our memory—assumptions and things we know from other sources, many of which we never saw.

Again, the information could have been sleep-inducing, but Paley managed to drop a few bombs that shook up not just the jury but the entire courtroom.

“You know, everybody uses confidence as a measure of how accurate we are, but in hundreds of studies—some of them right here in this briefcase, if you’d like to see them—there is no relationship at all. You can be one hundred percent certain of what you saw, would swear to it, and still be one hundred percent wrong.”

And: “No matter how detailed, vivid, and strong your memories are, they can be completely erroneous.”

Particularly: “If there are weapons involved. People who are holding weapons are seen to be much bigger. A young man who is five feet eight and holding a gun could easily, and has often, been described as six feet two.”

And: “Our certainty increases every time we repeat ourselves. We more readily commit to saying what we’ve said before, rather than what we have seen. And this isn’t about people lying. People honestly tell you what they think they remember, and they are just wrong. Eyewitness IDs work in such a way that people can tell you exactly what they saw with confidence and in great detail and be totally mistaken.”

After the afternoon break, Hardy asked, “Doctor, do you cite studies about people who have been convicted of a crime and later found innocent because of something like DNA evidence—in other words, where there was no longer any doubt that they were innocent; they were convicted
mostly on eyewitness evidence—what percent of those erroneous convictions were based on erroneous eyewitness IDs?”

“Ninety percent.”

At this statistic, Gomez had to gavel the courtroom into silence.

“Let’s go the other way,” Hardy said. “Do you have any studies where the actual bad guy was shown to the victim and the victim let that person go?”

“Yes.”

“How many studies?”

“Again, hundreds.”

“Doctor, does it matter who asks a witness for his or her ID? For example, if a policeman asks, would that be different than, say, a teacher in an academic study?”

“Oh, definitely. Most people overwhelmingly believe that the police wouldn’t waste your time showing you an innocent person. In fact”—Paley again went on without any prodding—“many studies show that eyewitnesses can be influenced merely by a policeman knowing the expected, or right, answer. That’s why a policeman who shows photographs should not know which is the suspect in a case. Eyewitnesses pick up cues that they’re not even aware of. Plus, if you pick someone out in an identification procedure and then see a similar face in another procedure, you’re going to pick out the first face again because it has more familiarity than any of the others.”

“It sounds to me, Doctor,” Hardy said, “that in spite of our belief to the contrary, eyewitness identification is not particularly accurate. Is that true?”

Paley had no doubt. “It is the least reliable form of identification.”

“And in-court identification? That is, where an eyewitness points to a defendant sitting in a courtroom? What is the degree of reliability in that scenario?”

“There is no reliability at all. By that time, the witness knows what is expected. He knows the defendant is the man in court sitting next to his lawyer and that he is supposed to identify him. He feels enormous pressure to make the ID whether or not he is certain in his own mind that it is correct.”

Hardy stole a glance at the courtroom’s clock. They had only a few
minutes until the evening adjournment. “Doctor,” he asked, “is there anything else you think is important about eyewitness identification that you would like to tell the court?”

Paley glanced at the jury box and decided to reward them with a small joke. “I’ve got at least another day’s worth, if you’ve got the time.”

Hardy let a small ripple of chuckles flow across the courtroom. “Let’s just stick to the important stuff,” he said.

“Well,” Paley replied, “there are two points that are unquestionably important. The first is called the cross-racial effect.” The picture of confidence, he looked over at the jury, out to the gallery. “Although it sounds like a slur of some kind, it is not. It’s not an insult, either. It’s not even a racist statement. What it relates to is that if someone looks different, we tend to label them. We get details of their faces less thoroughly and are less accurate picking them out later.”

“Is this always true, Doctor?”

“Yes. Even if you’ve had a lot of experience with the different look. There was a great study in South Africa where the white people had a difficult time picking out individual black people, even though blacks are the majority culture in South Africa. Anyway, there’s one, the cross-racial effect. It’s real and it happens.

“The second thing I’d guess is important is that sometimes we’ve seen a face but don’t know where—maybe the clerk in our grocery store—and that person is among the pool of potential suspects whom an eyewitness will be asked to identify. Almost always, the grocery clerk will get picked out as the suspect by an eyewitness. This is known as the innocent-bystander effect. It works on the basis of unconscious transference.”

“Doctor, like everything else you’ve told us today, that sounds fascinating. But the judge has asked us to be aware of the clock. We’re getting toward the end of the day, and as you know, we have prepared a video for the jury’s benefit. Your Honor, if it please the court, we’ll need a few minutes to set up.”

H
ARDY DIDN’T NORMALLY
like to use audiovisuals in the courtroom. They were rarely conducive to the introduction of evidence; they were subject to all kinds of editing that cast doubt on whatever point they were trying to prove; there were always foundational issues—where the tape or CD
had been stored, for how long, and by whom in an unbroken chain; and in the dark courtroom in the late afternoon, even the best of them had been known to put jurors to sleep.

But Paley had so blown Hardy’s mind with the three-minute video they were about to show that he couldn’t resist. They had to play it in its entirety so that Stier and Gomez could both approve it. Stier had vehemently objected, but Hardy had won the argument and thought it would be one of the high points of the defense. To Hardy it was brand-new, though both Stier and Gomez had apparently heard of it on YouTube. Neither had seen it before Hardy brought it into the judge’s chambers. So some of the jury might have seen it or heard of it as well. Nevertheless, Hardy was playing for one vote to acquit, one person to convince, and if even one juror had the same reaction he’d had, he thought it was worth the effort.

Now Paley was on the stand, and the television they’d set up was facing the jurors. Before they darkened the courtroom, Hardy laid his foundation. “Doctor, what is this exhibit designed to demonstrate?”

Paley: “Subjects are asked to count how many times the players wearing white pass the ball.”

Hardy hit play.

Six young women were lined up in casual athletic clothing, three wearing black jerseys, three wearing white ones. Each team had one ball, and the girls started to bounce or throw it to their team members. After about twenty-five seconds, the screen went black, and Hardy said, “Doctor, what is the correct answer?”

Paley replied, “The correct answer is sixteen passes, but you asked earlier what the purpose of the demonstration was. This film is designed to demonstrate that subjects asked to concentrate on one thing often overlook highly salient information.”

“How does it do that, Doctor?”

“It does that because most people say they did not see the gorilla in the film.”

An audible gasp resounded in the courtroom, followed by a light chorus of nervous laughter.

Hardy said, “Doctor. Are you kidding about the gorilla?”

“No, Mr. Hardy, I am not. This is not a joke. This is a widely circulated
video found not only in psychology classes but on such popular media as YouTube. We have been talking all day about eyewitness testimony and about observation, and you’ve all just had a demonstration on the reliability of your own eyewitness testimony, especially when the mind is concentrating on something else, such as the presence of a weapon or how many times the girls wearing white passed the ball.

“Now,” Paley continued, “let’s replay the tape and take another look at what you’ve just seen. Knowing about the gorilla this time, see if you also notice that the curtain in the background changed color or that one of the black-shirt-team girls left the game at about the same time that the gorilla came on.”