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Police photo lineups challenged after series of wrongful convictions

By Shoshana Guy
Rock Center

Ruby Session’s guests filed in slowly, clasping each other in warm, familiar embraces. Many, who were there to attend her 75th birthday, shared a harrowing history both with each other and the woman they had come to celebrate. “She didn’t adopt us. We adopted her,” said Christopher Scott, who spent 13 years in prison for a crime he did not commit. “She is what all of us dreamed of having, a mom or a loved one who believed in us not part of the time but the whole time, because she believed her son was innocent.” 

In 1985, Ruby Session’s son Timothy Cole was accused of raping fellow classmate Michele Mallin near the campus of Texas Tech University in Lubbock, Texas. But Session never believed it. “That was not him, that was not him,” Session said. “That was not my child.”

Based on Mallin’s memory of the assailant, the Lubbock Police generated a composite sketch. And when an undercover officer bumped into Cole near the campus, she thought he looked like the sketch. Cole had recently reported a robbery and the police used that excuse to take a picture of him at his house. Experts and family members point to inconsistencies in the line-up. For example, Cole’s background was different and he was the only one looking directly in the camera.

Witness error: How mind tricks can put the innocent behind bars

Based on the eyewitness identification, Cole was convicted and sentenced to 25 years in prison. Devastated by the outcome, the family filed appeal after appeal. But in 1999, after serving 13 years of his sentence, Cole died in prison from an asthma attack. He was 39-years-old.

Still, the Session family refused to give up trying to prove Tim’s innocence, and their fight helped to change the criminal justice system in Texas and challenge an element of basic police work, the photo lineup.

Counter to the “live lineups” we see on television, more often than not the detective or officer working the case presents the witness with a five or six-person photo lineup. One of the people in the lineup is the actual suspect and the rest are what are referred to as “fillers,” all chosen to roughly resemble the suspect. However, decades of research suggest that this traditional method is flawed. Nationwide 75 percent of prisoners exonerated by DNA evidence were convicted on the basis of faulty eyewitness identification. As a result some states and law enforcement agencies across the country are beginning to change their procedures.

While there is still a lot of debate around which methods will lead to fewer faulty identifications, many researchers agree that the most important part of the process is who conducts the lineup and how the photos are presented.

Traditionally the detective or officer working the case shows the lineup. The Session family says the detectives working the case “steered” Mallin towards choosing Cole. “The police had tunnel vision,” Cory Session told NBC's Josh Mankiewicz in an interview scheduled to air Wednesday night on Rock Center. “They're going to make it fit no matter the circumstances surrounding the whole case.”  The Lubbock Police Department maintains that at the time they were following standard protocol.   

Social scientists say that even the most careful officers can give unintentional cues. Many researchers have found that when someone with no knowledge of the case presents the photo lineup, the witness is less likely to experience unintentional or subtle influences that can lead to mistaken identification. The process is referred to as “blind” since the person administering the lineup does not know which one of the photos is the suspect. A landmark decision by the New Jersey Supreme Court last August, pointed to the importance of using a “blind” process.

More controversial in scientific and law enforcement circles is whether or not the photos should be shown sequentially, that is one at a time, rather than all together. “People are naturally wired to make comparative judgments,” said Gary Wells, a psychology professor at Iowa State University who has been advocating for changes to the police lineup process for nearly 30 years. “For most of the tasks that we encounter, comparisons or judgments work pretty well.  But for an eyewitness the question is not who looks most like him, the question is, is that the person?”

Last September, Wells helped publish a new study based on actual cases that found that photographs presented one-by-one, by a person unrelated to the case, significantly reduced wrongful identifications.  

However, getting the more than 16,000 independent law enforcement agencies across the country to reform is a slow process, in part because many are not convinced the sequential process is the better procedure. While individual law enforcement agencies have changed their policies, currently only New Jersey and North Carolina have statewide mandates that police lineups be conducted blind and sequential.

In 2009, with the help of the Innocence Project of Texas, and eventually Michele Mallin, DNA testing proved Tim Cole's innocence. A year later, Governor Rick Perry made Cole the first person in state history to be posthumously pardoned.

The Session family has continued their fight for Texas’s community of exonerated men. The Tim Cole Act mandates financial compensation for the wrongfully convicted. Cory Session, who is now the Policy Director for the Innocence Project of Texas, helped persuade Texas legislators to pass a law calling on all police departments to create a policy for conducing photo lineups. The law went into effect this past January and, although the procedures each department will adopt has yet to be determined, Session feels the progress made was helped along by his brother Tim. 

“Tim made the difference,” he said. “He made the difference in a huge way.”

Editor's notes: NBC News correspondent Josh Mankiewicz' full report, 'Photo ID,' airs Wednesday, April 4, at 10pm/9c on Rock Center with Brian Williams. For more information read “A Plea for Justice: The Timothy Cole Story" by Fred B. McKinley.