When Linda Zavatkay identified her neighbor as the man who robbed and stabbed her in her Port Salerno home, she did so only after investigators pressed her to choose a suspect. She had been checking out the lineup for a while, and wasn't sure that she saw her attacker's face.
"It should have stopped right there," state Sen. Joe Negron, R-Stuart, said of the witness identification procedure. "But because of the detective, she continued to look and felt pressured to ID someone." That someone was Todd Patrick Neely. Despite evidence that he was having dinner at a restaurant 12 miles away at the time of the 1986 crime, a judge convicted Mr. Neely of attempted murder and burglary based on Ms. Zavatkay's eyewitness identification and sentenced him to 15 years.
Six months later, an appeals court ordered a new trial for Mr. Neely after ruling that prosecutors improperly withheld information about another suspect. Prosecutors then dropped the charges.
Mr. Neely's case attracted national attention. Yet more than two decades later, most area police and sheriff's departments have not changed the procedures they use to obtain eyewitness identifications. Sen. Negron, who represented Mr. Neely and sits on Florida's Innocence Commission, wants to change that.
When the commission meets today in Jacksonville, Sen. Negron plans to suggest that it review the recommendations issued by the U.S. Justice Department 11 years ago designed to make eyewitness evidence more accurate. As reported by The Post's Susan Spencer-Wendel, the majority of law-enforcement agencies in Palm Beach County and the Treasure Coast have failed to adopt those recommendations in their written policies and procedures. It's time they do so.
The Florida Supreme Court established the Innocence Commission last summer to study of the causes of wrongful conviction and measures to prevent such convictions. A national expert on eyewitness misidentification told commissioners in November that more than 30 percent of all eyewitness IDs are wrong, resulting in a huge number of innocent people behind bars. Gary Wells of Iowa State University said 12 people have been exonerated by DNA evidence in Florida, but an estimated 200 innocent people probably are still being held.
Sen. Negron will push for a pair of Justice Department recommendations that he believes are most important - "cautionary instruction" and double-blind administration of photo lineups. "Those are the two," he said, "that I think are the most promising to reduce wrongful convictions."
Cautionary instruction involves telling an eyewitness that the suspect may or may not be in the lineup, and that the investigation will continue whether the witness chooses someone or not. Double-blind administration means the person showing an eyewitness a lineup has no idea who the suspect is, which keeps him or her from influencing the eyewitness' choice. Although double-blind administration was not included in the Justice Department's 1999 guide, it was mentioned as a "direction for future exploration and field testing." That future is now.
According to a survey by The Post, only three of 32 area law-enforcement agencies have specific eyewitness ID policies and include key elements recommended by the Justice Department: the Indian River County Sheriff's Office, and the Jupiter and Palm Beach Gardens police departments.
Although the Innocence Commission's final report is not due until 2012, Sen. Negron said members can agree to make certain recommendations sooner. If so, he will file a bill for the legislative session. If law-enforcement agencies will not adopt better procedures, the Legislature must act. Given the number of innocent people already exonerated, it's already been too long.
- Rhonda Swan,
for The Palm Beach Post Editorial Board
Posted: 11:50 p.m. Sunday, Jan. 9, 2011