Wednesday, September 27, 2017

The problem with eye-witness testimony

Eye witness testimony is one of the 2 types of evidence that can be presented in a trial.  The person tells what he or she witnessed and the jurors decide whether the witness is credible.  
Eyewitness testimony can . . . be critiqued on several grounds: having impaired perception, having impaired memory, having an inconsistent testimony, having bias or prejudice, and not having a reputation for telling the truth. If any of those characteristics can be demonstrated, then the competency of a witness is questionable. (Eyewitness Testimony, Memory and Psychology)

"Mistaken or flawed identification has assumed a newfound prominence in recent years: It's been cited as a factor in nearly 78 percent of the nation's first 130 convictions later overturned by DNA testing" ("How reliable is eyewitness testimony?" American Psychological Association, April 2006, Vol. 37, No. 4).

One of the problems affecting the credibility of an eye witness identification is visual impairment caused by distance.  Geoffrey Loftus, PhD, a University of Washington perception and cognition psychology professor, "began seeking a way to visually present to juries the proposition that people's ability to decipher details degrades rapidly as a person or object moves further away.  'At 10 feet, you might not be able to see individual eyelashes on a person's face,' he says. 'At 200 feet, you would not even be able to see a person's eyes. At 500 feet, you could see the person's head but just one big blur. There is equivalence between size and blurriness-by making something smaller you lose the fine details'." ("How reliable is eyewitness testimony?", American Psychological Association, April 2006, Vol. 37, No. 4).

Another problem with eye witness evidence is that the memory is not perfect.  As Elizabeth Loftus describes in her book Memory: Surprising New Insights into How We Remember and Why We Forget:
Memory is imperfect. This is because we often do not see things accurately in the first place. But even if we take in a reasonably accurate picture of some experience, it does not necessarily stay perfectly intact in memory. Another force is at work. The memory traces can actually undergo distortion. With the passage of time, with proper motivation, with the introduction of special kinds of interfering facts, the memory traces seem sometimes to change or become transformed. These distortions can be quite frightening, for they can cause us to have memories of things that never happened. Even in the most intelligent among us is memory thus malleable.
"Memory is not so much a static state as it is an ongoing process - and one which never happens in quite the same way twice. This is why we should have a skeptical, critical attitude towards all eyewitness testimony and all reports from memory - even our own and no matter what the subject, however mundane." (Eyewitness Testimony, Memory and Psychology)

Eye witness testimony isn't just important to a State's case; sometimes defendants must rely heavily on it, too.  Such is the case with Scott Peterson -- he relies on the credibility of several eye witnesses to confirm that Laci was still alive when he left for the warehouse on the morning of December 24, 2002.  Many people simply dismiss those eye witnesses out of hand, citing the general unreliability of eye witnesses.

It is true that sincere people may have thought they saw Laci, but were mistaken and saw someone else.  Or they may have thought they saw her on December 24, when in fact they saw her on another day.  Certainly, they may have been affected by the public information that Laci was wearing a white top and black pants, but the Missing Persons posters didn't have Laci wearing a white top and black pants.  These are the pictures as they appeared on the Missing Persons poster, and also as used by the media.

Dismissing all eye witness sightings because some are flawed is just ridiculous.  There are six  significant factors that significantly increase the credibility of the 7 eye witness sightings reported in the A&E docuseries.  

First, Laci was not alone, she was with McKenzie.  Laci wasn't just a woman walking, or a pregnant woman walking.  She was a pregnant woman walking McKenzie, a golden retriever.
This photo of McKenzie is People's Exhibit no. 27A.
Second, she was very close to the person(s) who saw her.  The Maldonado's, Tony Freitas, Frank and Martha Aguilar, and Gene Pedrioli all drove by Laci and McKenzie walking along the sidewalk.   The Mitchell's saw Laci and McKenzie as they walked in front of their home.  Chiavetta saw Laci and McKenzie in the park while he and his own dog were playing in the park.  Campos was the furthest away from Laci and McKenzie, but she could see McKenzie well enough to notice the distinguishing white fur on his chest.

Third, there was something else that made the sighting more memorable.  The Maldonado's saw McKenzie up on his hind legs and wondered if he might knock Laci over.  Freitas also saw 2 scrubby looking men at the bus stop very near where Laci and McKenzie were walking.  The Aguilar's thought it very foolish for Laci to not have on a coat.  The Mitchells thought McKenzie wanted to go one way and Laci another.  Campos saw and heard the 2 men that were harassing Laci.  Chiavetta was paying much more attention to McKenzie because his own dog was off leash.

Fourth, the sightings collectively form a walk route for Laci and McKenzie.  For a good visual of the walk route, please refer to Laci's Walk - The A&E Docuseries, written by Jane Hamilton.  

Fifth, none of these eye witnesses knew that the others had also seen Laci and McKenzie that morning along that route.  They were not influenced by each other's account. 

Sixth, while it was widely reported that Laci and McKenzie walked in the park, 5 of these 7 sightings were not in the park.  The Campos sighting was in a different part of the park than where Laci was reported to have walked.

These are the women the Prosecution paraded before the jury to prove the eye witnesses were mistaken.  I have links to both the testimonies and the maps/photos.

Wednesday, September 8, 2004

Prosecution Witness #133:  Martin Dempewolf  Testimony
Dempewolf's wife was 9 months pregnant on Dec. 24, '02, and she was walking her dog, a chocolate Lab, in the Dry Creek Park that day.  He said she left between 9;15 and 9:30, and the walk took about 45-60 minutes.  She walked through the subdivisions to La Loma, entered the park, walked through the park to the paved path, continued on Edgebrooke to Covena, down Covena to Encina and then home.  Geragos reviewed the statements he gave to Bertalotto in Jan '04, indicating he couldn't specify the time she took the walk.  And, in response to Geragos' last question, he replied:  My wife has a good memory, I don't. 
Exhibits Introduced
Prosecution Witness #134:  Jordan Visola-Prescott, Pregnant Neighborhood Walker  Testimony
Exhibits Introduced
Prosecution Witness #135:  Elizabeth Guptill, Pregnant neighborhood walker  Testimony
Exhibits Introduced
Prosecution Witness #136:  Jill Lear, Pregnant Neighborhood walker  Testimony
Exhibits Introduced
These three women were all pregnant on Dec 24, '02, lived in the La Loma neighborhood, and regularly took walks.  Prescott could not say with certainty she walked the morning of the 24th, and the other two were certain they did not walk that morning.  When Prescott did walk, she pulled her daughter along in a red wagon, and her dog is a lab mix.  When Guptill walked, she often was pushing her son in a jogging stroller, and she didn't have a dog.  Lear's dog was a Australian Shepherd, and she usually walked in the afternoons.  Prescott was 2 1/2 months pregnant with twins, Guptill was 5 months pregnant, and Lear was 6 1/2 months pregnant on December 24, 2002.

Thursday, September 9, 2004
Prosecution Witness #137:  Kim Westphal, Covena Walker  Testimony
Westphal routinely walks a route that takes her from Edgebrooke down Covena to Encina, right past the Peterson home.  She testified that she did take her walk on Dec 24 '02 and arrived at Covena about 10:50 am, and she did not see anything out of the ordinary.  Westphal's testimony, however, didn't agree with what she told officers going door-to-door on the night of Dec. 24.  She told them she couldn't be sure she walked down Covena that morning.  Her testimony seemed to contradict what she told her neighbor and her mother about her activities on the morning of the 24th.  Westphal walked with another woman, Dana Evans, who has not yet been called to testify.
Exhibits Introduced

Prosecution Witness #138:  Patricia Mewhinney, Park Walker  Testimony
Mewhinney testified that she walked her dog in the Park the morning of Dec. 24, from the tennis courts to the golf course and then back again. She said it was cold and damp that morning, and she wore a winter coat. She didn't see anything out of the ordinary in the park that day. She has long blond hair, and her dog is a black, part Lab and part German Shepherd.  She arrived at home after her walk by 9:30.
Exhibits Introduced
Prosecution Witness #139:  Brian Lee  Testimony
Lee said he ran his usual run along the park's bike trail on the morning of Dec. 24, leaving his home at 10:00 am.  He said he would have arrived at the Covena trail about 15 minutes later.  The weather was cold, so he wore sweats instead of shorts, and he didn't see anyone on the bike trail. Geragos pointed out that his testimony disagreed with the information he gave when interviewed last summer.  Then he told police he took his run sometime before noon, sometime between 10 and 11:30.  He runs with a chocolate Lab.
Prosecution Witness #140:  Joan Lee (wife of previous witness)  Testimony
Dec 24 '02 Lee was 4-4.5 months pregnant. She walked with her husband and their dog in the evenings, and their walk took them past Vivian Mitchell's home. She was certain they walked on the evening of the 24th, but probably didn't from the 17th to the 14th.  She was interviewed by Det. Grogan in June '03, and she told him she couldn't be certain how often she walked in December. 
Exhibits Introduced
Prosecution Witness #141:  Dianne Heaston Merenda, Park Walker  Testimony
Blonde, with a golden retriever, she lived in the La Loma neighborhood.  She would walk early morning, about 7 a.m., go down the Covena path into the park, walk to the pump house and back and exit the park using the paved Edgebrook path. The walk usually took her 20-30 minutes. She was certain she did not walk on the 24th, and she could not be sure how often she walked around that time frame.  She was not pregnant on Dec. 24.
Exhibits Introduced
Prosecution Witness #142:  Melba Martinez  Testimony
Lives in La Loma neighborhood and has 2 golden retrievers.  Her walk route included Covena from Edgebrook to Encina.  Her usual walk time is 6:30-7:00 am, but she sometimes goes later and sometimes walks in the evenings.  She walks only one dog at a time.  She couldn't recall walking either the 23rd or the 24th. 
Exhibits Introduced
Prosecution Witness #143:  Amy Neumann, pregnant woman  Testimony
Lives on Buena Vista. Did not walk on Dec. 24. Introduced to Laci when Laci was involved with making a traffic study video for the Encina Street project, which is separate from the Thousand Oaks Park and Trail project Laci was also involved in.  Her dog is a poodle.  She was pregnant at the time and under doctor's orders to rest with her feet up in the afternoons, and she would lay on the couch and watch the activity in front of her house.  Her dog would bark when other people or dogs went by.  She was not at home on Dec. 24 from 10 am to 1 pm. 
Exhibits Introduced

Sunday, September 24, 2017

The Emperor's New Clothes

In 1837, Hans Christian Anderson published the short story, The Emperor's New Clothes.  

Many years ago there was an Emperor so exceedingly fond of new clothes that he spent all his money on being well dressed. He cared nothing about reviewing his soldiers, going to the theatre, or going for a ride in his carriage, except to show off his new clothes. He had a coat for every hour of the day, and instead of saying, as one might, about any other ruler, "The King's in council," here they always said. "The Emperor's in his dressing room."
In the great city where he lived, life was always gay. Every day many strangers came to town, and among them one day came two swindlers. They let it be known they were weavers, and they said they could weave the most magnificent fabrics imaginable. Not only were their colors and patterns uncommonly fine, but clothes made of this cloth had a wonderful way of becoming invisible to anyone who was unfit for his office, or who was unusually stupid. 
"Those would be just the clothes for me," thought the Emperor. "If I wore them I would be able to discover which men in my empire are unfit for their posts. And I could tell the wise men from the fools. Yes, I certainly must get some of the stuff woven for me right away." He paid the two swindlers a large sum of money to start work at once.
They set up two looms and pretended to weave, though there was nothing on the looms. All the finest silk and the purest old thread which they demanded went into their traveling bags, while they worked the empty looms far into the night. 
"I'd like to know how those weavers are getting on with the cloth," the Emperor thought, but he felt slightly uncomfortable when he remembered that those who were unfit for their position would not be able to see the fabric. It couldn't have been that he doubted himself, yet he thought he'd rather send someone else to see how things were going. The whole town knew about the cloth's peculiar power, and all were impatient to find out how stupid their neighbors were.
"I'll send my honest old minister to the weavers," the Emperor decided. "He'll be the best one to tell me how the material looks, for he's a sensible man and no one does his duty better." 
So the honest old minister went to the room where the two swindlers sat working away at their empty looms. 
"Heaven help me," he thought as his eyes flew wide open, "I can't see anything at all". But he did not say so. 
Both the swindlers begged him to be so kind as to come near to approve the excellent pattern, the beautiful colors. They pointed to the empty looms, and the poor old minister stared as hard as he dared. He couldn't see anything, because there was nothing to see. "Heaven have mercy," he thought. "Can it be that I'm a fool? I'd have never guessed it, and not a soul must know. Am I unfit to be the minister? It would never do to let on that I can't see the cloth."
"Don't hesitate to tell us what you think of it," said one of the weavers. 
"Oh, it's beautiful -it's enchanting." The old minister peered through his spectacles. "Such a pattern, what colors!" I'll be sure to tell the Emperor how delighted I am with it."
"We're pleased to hear that," the swindlers said. They proceeded to name all the colors and to explain the intricate pattern. The old minister paid the closest attention, so that he could tell it all to the Emperor. And so he did. 
The swindlers at once asked for more money, more silk and gold thread, to get on with the weaving. But it all went into their pockets. Not a thread went into the looms, though they worked at their weaving as hard as ever. 
The Emperor presently sent another trustworthy official to see how the work progressed and how soon it would be ready. The same thing happened to him that had happened to the minister. He looked and he looked, but as there was nothing to see in the looms he couldn't see anything. 
"Isn't it a beautiful piece of goods?" the swindlers asked him, as they displayed and described their imaginary pattern. 
"I know I'm not stupid," the man thought, "so it must be that I'm unworthy of my good office. That's strange. I mustn't let anyone find it out, though." So he praised the material he did not see. He declared he was delighted with the beautiful colors and the exquisite pattern. To the Emperor he said, "It held me spellbound."
All the town was talking of this splendid cloth, and the Emperor wanted to see it for himself while it was still in the looms. Attended by a band of chosen men, among whom were his two old trusted officials-the ones who had been to the weavers-he set out to see the two swindlers. He found them weaving with might and main, but without a thread in their looms. 
"Magnificent," said the two officials already duped. "Just look, Your Majesty, what colors! What a design!" They pointed to the empty looms, each supposing that the others could see the stuff. 
"What's this?" thought the Emperor. "I can't see anything. This is terrible!
Am I a fool? Am I unfit to be the Emperor? What a thing to happen to me of all people! - Oh! It's very pretty," he said. "It has my highest approval." And he nodded approbation at the empty loom. Nothing could make him say that he couldn't see anything. 
His whole retinue stared and stared. One saw no more than another, but they all joined the Emperor in exclaiming, "Oh! It's very pretty," and they advised him to wear clothes made of this wonderful cloth especially for the great procession he was soon to lead. "Magnificent! Excellent! Unsurpassed!" were bandied from mouth to mouth, and everyone did his best to seem well pleased. The Emperor gave each of the swindlers a cross to wear in his buttonhole, and the title of "Sir Weaver." 
Before the procession the swindlers sat up all night and burned more than six candles, to show how busy they were finishing the Emperor's new clothes. They pretended to take the cloth off the loom. They made cuts in the air with huge scissors. And at last they said, "Now the Emperor's new clothes are ready for him." 
Then the Emperor himself came with his noblest noblemen, and the swindlers each raised an arm as if they were holding something. They said, "These are the trousers, here's the coat, and this is the mantle," naming each garment. "All of them are as light as a spider web. One would almost think he had nothing on, but that's what makes them so fine." 
"Exactly," all the noblemen agreed, though they could see nothing, for there was nothing to see. 
"If Your Imperial Majesty will condescend to take your clothes off," said the swindlers, "we will help you on with your new ones here in front of the long mirror." 
The Emperor undressed, and the swindlers pretended to put his new clothes on him, one garment after another. They took him around the waist and seemed to be fastening something - that was his train-as the Emperor turned round and round before the looking glass.
"How well Your Majesty's new clothes look. Aren't they becoming!" He heard on all sides, "That pattern, so perfect! Those colors, so suitable! It is a magnificent outfit."
Then the minister of public processions announced: "Your Majesty's canopy is waiting outside." 
"Well, I'm supposed to be ready," the Emperor said, and turned again for one last look in the mirror. "It is a remarkable fit, isn't it?" He seemed to regard his costume with the greatest interest.
The noblemen who were to carry his train stooped low and reached for the floor as if they were picking up his mantle. Then they pretended to lift and hold it high. They didn't dare admit they had nothing to hold. 
So off went the Emperor in procession under his splendid canopy. Everyone in the streets and the windows said, "Oh, how fine are the Emperor's new clothes! Don't they fit him to perfection? And see his long train!" Nobody would confess that he couldn't see anything, for that would prove him either unfit for his position, or a fool. No costume the Emperor had worn before was ever such a complete success.
"But he hasn't got anything on," a little child said.
"Did you ever hear such innocent prattle?" said its father. And one person whispered to another what the child had said, "He hasn't anything on. A child says he hasn't anything on."
"But he hasn't got anything on!" the whole town cried out at last. 
The Emperor shivered, for he suspected they were right. But he thought, "This procession has got to go on." So he walked more proudly than ever, as his noblemen held high the train that wasn't there at all.
People, like me, that don't see the circumstantial evidence the State claimed was there -- and such good evidence, so neatly fitting together -- are labeled as
  • stupid,
  • unfit,
  • unreasonable,
  • closed-minded,
  • delusional,
  • crazy,
  • idiots
We've been called obscene and vulgar names, accused of being in love with Scott, of wanting to marry Scott, of loving a murderer, of hating the Rocha family.  We've been vilified and threatened.

The State's case against Scott was a con game.  In reality, the only 2 pieces of evidence presented by the State that "fit together" are:
  1. Scott went fishing from the Berkeley Marina to Brooks Island on the morning Laci went missing, and 
  2. The bodies washed ashore in the vicinity of his fishing route.
Were it not for those two circumstances, the State's case could not have conned the jury or the public into believing Scott was guilty.  But those two circumstances did not happen in a vacuum.  There were other circumstances that the State failed to present, for one reason or another.  So the real list, the real evidence, looks something like this.
  1. Laci was on the computer the morning of Christmas Eve, 2002
  2. Scott left to go fishing at the Berkeley Marina
  3. Laci went for her walk with McKenzie
  4. Laci came home from her walk
  5. Laci saw the burglary across the street and Todd verbally threatened her
  6. Diane Jackson saw the van, the 3 men, and the safe being removed from the Medina home
  7. No one has ever reported seeing Laci after Todd verbally threatened her
  8. The safe and other stolen items were found in Steve Todd's possession
  9. Steve Todd confessed to the burglary
  10. Donald Pearce admitted using his mother's white car to help with the burglary
  11. The other men that Jackson saw have never been identified
  12. The van Jackson saw has never been identified
  13. The MPD immediately gave out Scott's alibi
  14. Jan 2, the MPD publicized pictures of Scott's truck and boat
  15. At least by Jan 5, the MPD publicized that Scott motored to the from the Berkeley Marina to Brooks Island, and even published a map of the area
  16. Testimony from Drs. March and Jeanty explains that Conner died between December 29 and January 3
  17. Testimony from Dr. Galloway estimates Laci could have lived until January 14
  18. The shoreline in the area of Scott's fishing route has several places where a car could just pull up along the shoreline and heave a body into the water
  19. The searches at the Bay were not 24/7; that shoreline was not under constant surveillance; many days there were no searches going on; the shoreline was just as accessible at night as it was during the day
  20. The bodies washed ashore along that same shoreline
Therefore, Steve Todd, not Scott Peterson, is the last known person to see Laci alive.  If Todd had nothing to do with Laci's disappearance, he needs to come forward and clear his name.  If Laci was still alive after her encounter with him, where did she go?  What did she do?  He needs to be man enough to admit he saw Laci alive that morning so we can get on with figuring out what did happen to Laci.  Otherwise, this circumstantial evidence case will some day be presented against him.