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In his 1937 book “The Science of Judicial Proof,” John H. Wigmore, then the world’s foremost scholar of legal evidence, described a technique he believed would prevent witnesses from mistakenly identifying innocent people as criminals. Wigmore proposed recording men from various walks of life in 100 or more films. The men would perform stock movements and read aloud from a script, sometimes wearing hats and coats. Police officers investigating a crime would film a suspect in an identical role, and then show that film in succession with 25 samples of the stock footage to the crime’s eyewitness. The witness would press a button to indicate when the criminal appeared on screen. Wigmore even hoped to uncover a witness’s doubts by recording the number of times the identification button was pushed. More than 60 years later, criminal defense attorneys in New York, led by David Feige of The Bronx Defenders, are taking up Wigmore’s unsuccessful cause by demanding that the standard police lineup be replaced with something they believe is more scientific and reliable, though less eccentric than what Wigmore had in mind. In a “sequential lineup,” as it has come to be known, witnesses view criminal suspects one at a time rather than all together. Social scientists say the procedure reduces the chance a witness will identify an innocent person who, when compared with others in the lineup, looks most like the criminal in question. The scientists also recommend that police officers conducting lineups have no knowledge of the true suspect, so they will not influence — even unintentionally — a witness’s choice. Last year, New Jersey became the only state in the country to adopt both procedures. Its decision was in part inspired by studies — including one in 1998 by the U.S. Department of Justice — that found most criminal convictions later overturned by DNA evidence had relied predominantly on eyewitness testimony. For New Jersey, a change of this magnitude took only the backing of the attorney general, whose jurisdiction covers police departments and prosecutors across the state. But in New York, where prosecutors and police officers do not answer to a single official, defense attorneys are facing strong resistance, as well as the daunting task of convincing judges to order changes to a procedure that dates back to the 19th century. Defense attorneys credit Feige as being the first New York lawyer to figure out how — actually, when — to use the courts in the fight for new lineups: before they are conducted. “Doing it early is the key thing because I don’t believe judges are going to suppress an identification,” said Feige, trial chief at The Bronx Defenders, a nonprofit group that handles indigent defense. “You can’t put the toothpaste back in the tube.” Feige is uncomfortable with the idea of being regarded as a crusading litigator, and goes to great lengths to credit his fellow attorneys and his boss, Robin Steinberg, who he said gave him the freedom to devote many hours to one subject. Feige, who will turn 37 next month, came to The Bronx Defenders after working at the Neighborhood Defender Service in Harlem, which Steinberg had left to start a similar office in the Bronx. Before that, Feige worked as general counsel for the Civilian Complaint Review Board and at the Legal Aid Society’s criminal division in Brooklyn. He grew up in Wisconsin and graduated from University of Wisconsin Law School in 1991. He said he fell in love with New York as a summer associate at a large New York firm, his only experience in private practice. Those in the legal community who are unfamiliar with Feige for his work on lineups might instead recognize him from an appearance last year on Fox News’ “The O’Reilly Factor,” hosted by Bill O’Reilly. Feige was invited on the show to defend an essay he had written for The New York Times Magazine. The subject: how to defend someone who is guilty. “O’Reilly just struck me as fun,” he said. “He is belligerent, incisive, quick-witted and has a big following. You measure yourself by who you are willing to get into the ring with.” Although Feige once attended a speech by Gary Wells, a professor at Iowa State University and a leading expert on sequential lineups, he did not become obsessed with the topic until Atul Gawande, a medical resident and writer, wrote about it in a January 2001 New Yorkerarticle. “After reading that article, I was a little ashamed that we hadn’t done more, because it just seemed so important,” Feige said. TEST CASES Feige began searching for appropriate test cases and assembling a library of literature and studies. Along the way, he realized that if he could challenge the lineup before it happened, perhaps when a prosecutor sought an order to remove a defendant from jail to conduct the procedure, he might have a chance to discredit it. His first attempt failed miserably. The judge in that case, he said, “rejected it out of hand in about a minute. I’m not even sure that I got to argue.” But in early 2001, Karen Smolar, another lawyer at The Bronx Defenders, told Feige about Leo Franco, a 16-year-old who had been indicted on an assault charge without being placed in a lineup. When prosecutors in the Bronx asked for a lineup post indictment, Feige saw an opportunity to litigate his position. Feige said his office began litigating People v. Francoin February 2001. They included pages of scientific studies for Acting Supreme Court Justice Steven L. Barrett to examine. In July, Barrett declined to order Bronx law enforcement officials to conduct a sequential lineup, but in a written opinion he took note of scientific studies that suggested the new procedure would result in fewer incorrect identifications and an equal number of correct ones. He also suggested he would consider holding a hearing on the merits of sequential lineups if Franco decided to challenge the standard lineup once it was conducted. Franco eventually accepted a plea offer, but Feige had succeeded in convincing a court that sequential lineups deserved more than a quick dismissal. ONE STEP FURTHER Feige credits Elizabeth Wilson, an attorney at the Capital Defender Office, with taking the argument a step further. Wilson’s victory came in Matter of Thomas, a pretrial ruling in a murder allegedly committed by teen-ager Rahim Thomas, who at one point was facing the death penalty. Brooklyn Supreme Court Justice Robert S. Kreindler endorsed the sequential lineup as superior to standard ones. He also said the lineup should be “double-blind,” or conducted by an officer with no knowledge of the crime. It was a decisive victory, but the Brooklyn district attorney’s office reacted to the ruling in a way that surprised defense attorneys. It simply indicted Thomas without conducting a lineup. Later, it asked Thomas’ trial judge, Acting Supreme Court Justice Neil Jon Firetog, to allow a standard police lineup, arguing that Kreindler’s ruling was no longer the law of the case. Firetog agreed, and two out of three witnesses identified Thomas. Prosecutors in Brooklyn have said their office is considering a switch to sequential lineups, but they want to make the decision on their own terms. The office has argued that the data on sequential lineups is incomplete, and that only the state Legislature, not the courts, can order a change to law enforcement policies. Prosecutors across the city have other problems with sequential lineups. All the studies on the reliability of eyewitnesses and lineups have been conducted on students, not crime victims or witnesses to violent acts. Ebbe Ebbesen, a psychology professor at the University of California, San Diego, has argued that the methods of those studies and their findings are not clearly accurate. Moreover, prosecutors say, lineup experiments are performed with photo arrays. New York, unlike most other states, does not allow the use of photo arrays at criminal trials. “There’s nothing on the face of it that would suggest that sequential lineups are better,” said James M. Kindler, chief assistant district attorney in Manhattan. “It’s all studies based on students.” Anthony Girese, counsel to Bronx District Attorney Robert T. Johnson, said, “Our concern is with doing fair and constitutional lineups, which we think we can do with the old procedure.” Thomas P. Doepfner, assistant deputy commissioner in charge of the New York City Police Department’s legal bureau, said the department has been considering a change to sequential lineups, but had set no timetable for making a final decision. Varied court rulings have only complicated the matter. New York judges have ordered sequential lineups that are not double-blind, and double-blind lineups that are not sequential. At least two judges have said the courts do not have the authority to order a new lineup, even though one judge agreed the new lineup would be an improvement. Only once, in Staten Island this summer, has a district attorney’s office agreed to conduct a sequential (but not double-blind) lineup when a judge ordered one. But the office of District Attorney William L. Murphy has no plans to abandon standard lineups, a spokeswoman said. NEW JERSEY PRACTICE Across the Hudson, where sequential lineups have been mandatory for a year, there has been some unrest recently about whether former New Jersey Attorney General John J. Farmer rushed to judgment when he called for the change last year. John R. Hagerty, a spokesman for New Jersey’s division of criminal justice, said in an interview last month that sequential lineups were on hold and under review by David Samson, who was appointed attorney general in January by New Jersey Gov. James E. McGreevey. But law enforcement officials in New Jersey say they were never told that any changes were afoot. Hagerty said two weeks later that the office had decided to keep the new lineups in place. “This administration has been convinced that it is good science,” Hagerty said. David Hancock, who supervises investigations by the Union County, N.J., prosecutor’s office, said that after initial complaints, police officers and prosecutors have learned to understand and appreciate the purpose of sequential lineups. “We told them, ‘This is going to make your job easier. This is going to eliminate attacks by defense counsels,’” Hancock said. “Our success rate in homicides hasn’t dropped, and our success rate in other procedures hasn’t dropped.” While Feige and other defense attorneys have met with only modest success through New York’s courts, one state assemblyman, Richard L. Brodsky, a Westchester County Democrat, has proposed legislation that would make sequential lineups mandatory throughout the state. The bill, A09578, died last year when it did not receive a majority Senate sponsor, but Assemblyman Brodsky plans to reintroduce it this January. Feige would like nothing better than for district attorneys to decide on their own to change lineup policies, or for the state government to pass legislation. Until then, he plans to keep applying pressure through the courts. “If none of the indications are that this is worse, then why not go full steam ahead?” he said.

SIGNIFICANT RULINGS IN NEW YORK ON SEQUENTIAL LINEUPS People v. Franco. Bronx Supreme Court Justice Steven L. Barrett denies a request for a sequential lineup, but notes possible importance of scientific studies. Matter of Thomas. Brooklyn Supreme Court Justice Robert S. Kreindler orders a sequential, double-blind lineup in a murder case. People v. Martinez. Manhattan Supreme Court Justice Brenda S. Soloff rules courts do not have the authority to order sequential lineups. She also finds the science behind the lineups to be less than convincing. People v. Alcime. Brooklyn Supreme Court Justice Yvonne Lewis rules that courts do not have the authority to order sequential lineups. The judge says she believes changes are warranted but is constrained by the law to rule otherwise. Matter of Raji Wilson. Brooklyn Supreme Court Justice Lawrence Knipel orders a double-blind lineup for a rape suspect, but says the absolute benefits of sequential lineups remain unclear.

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