MONTPELIER – Dennis Maher spent 19 years behind bars, telling people he wasn’t a rapist.
Convicted in 1984, the Massachusetts man spent nearly two decades in prison after three victims misidentified the then U.S. Army sergeant as the perpetrator of a string of sexual assaults. DNA test results in 2003 set him free.
Maher Thursday morning urged the House and Senate Judiciary committees to back a bill aimed at making sure no Vermonters end up in his shoes.
“I made peace with myself that I was going to die in prison as an innocent man,” he told rapt committee members.
A bill proposed by Sen. Richard Sears, a Bennington Democrat and chairman of the Senate Judiciary Committee, would reform the way police ask eyewitnesses to identify alleged perpetrators.
The committees spent three and a half hours hearing testimony in favor of that bill and another, which would require police to record interviews with suspects in homicide and sexual assault cases. Both address the issue of misidentification and the wrenching impact that can have on those innocent of the crimes they’re accused of.
The panels also heard from Jennifer Thompson, a North Carolina woman who in 1984 mistakenly identified Ronald Cotton as the man who raped her.
“It’s really very easy,” Thompson said in a conference call with lawmakers.
In a clip from the TV show “60 Minutes,” Thompson described how she memorized the physique of her attacker during the rape and afterward was sure she identified the correct person.
But after 11 years in prison, Cotton was set free after a DNA test exonerated him.
“No one could have punished me more than I punished myself for what happened to Ronald,” Thompson said.
The bill Thompson and Maher advocated for does not set out a specific policy for eyewitness identification techniques, but requires that Vermont police departments develop their own policies and it sets standards they must meet.
At minimum, each police department’s policy must include protocols for the “show-up” identification method as well as for photo and standard live lineup identification methods.
A show-up identification involves bringing a suspect to be identified by the witness, not at the police station but at the scene of the arrest or crime. Live or photo lineups are a group of people or images that may or may not contain the suspect.
The bill calls for someone besides the investigating officer to conduct the lineup, and requires that the witness must be told that the lineup may not contain the perpetrator.
There must be at least five “fillers” in a photo lineup and at least four in a live lineup, all of whom must resemble the eyewitness’ description of the perpetrator, the bill says.
Sen. Richard Sears, D-Bennington, is also the sponsor of the bill that requires interviews with suspects in homicide and sexual assault cases be recorded. Attorneys at The Innocence Project, a national criminal justice policy reform organization, wrote the legislation.
“I don’t see how anyone can sit here and now wonder why we haven’t done a better job of making sure the photo IDs are correct,” Sears said, thanking Maher for his testimony.
Another provision in the bill requires the person administering the lineup ask the witness how sure he or she is that the person identified is the perpetrator, something attorneys said is key.
Maher said he was one of the first three DNA exonerees in Massachusetts. Each was compensated $500,000, he said. He said he also won several lawsuits.
Innocence Project staff Thursday gave lawmakers hard numbers to accompany the stories told by Maher and Thompson.
To date, 312 people nationwide have been exonerated through DNA evidence, including some on death row, they said.
Three-quarters of those cases involved eyewitness misidentification, said Rebecca Brown, the director of state policy reform at the Innocence Project, based in New York City. In many cases the true perpetrators committed further crimes, including 70 rapes and 30 murders, while the wrongfully convicted spent time behind bars.
“The truth is, memory is fallible,” Brown said.
Massachusetts Police Chief Bill Brooks advocated for the witness identification bill, S.184, as well as the bill requiring electronic recording of interviews, S.297.
His department never uses the investigating officer to administer a photo array, Brooks said.
“If the police do everything right you still will get mistakes by eyewitnesses. What’s important is that it not be our fault,” he said.
A report released in August from the International Association of Chiefs of Police endorsed both policies set out by the bills.
Meanwhile, more than 375 Vermont police officers, including the Burlington and Vermont State Police, have already been trained in best practices for eyewitness identification, attorneys from the Innocence Project said.
The law would simply mandate that all departments have a policy. Advocates said the reforms should be simple and inexpensive.
“Few local agencies are just going to voluntarily adopt this on their own,” Brown said.
Lawmakers asked the attorneys Thursday whether race plays a role in misidentification. Brown said people more frequently misidentify perpetrators of a different race.
Brooks, the Massachusetts police chief, said he favored the bill requiring recorded interviews, a practice made mandatory in Massachusetts after a 2004 state supreme court case.
“I would never go back to the old way of not recording, we’ve found it helpful,” Brooks said.
He said it helps police protect themselves against witnesses who change their stories.
The bill would only require police to record testimony of suspects in custody for homicide and sexual assault investigations.
And the law would apply only to “custodial interrogations,” which means questioning likely to elicit an incriminating response from the subject and in which the person being interviewed is in custody.
The bill includes several exceptions to recording, including equipment malfunction and if the interviewee refuses. It says all interviews should be, at minimum, audio recorded but ideally videotaped.
Results from a survey of Vermont’s police agencies found that of the 30 percent who responded, 90 percent already had video recording equipment, Brown said. The state police barracks also have video cameras, she said.
In 2011, the most recent data available, there were 10 homicide and 158 forcible rape cases in the state, she said.
Lawmakers questioned whether the bill should be broadened to include other crimes, asking Brooks for suggestions for what types of crimes smaller departments might see more frequently than homicide and sexual assault. The chief suggested credit card fraud or drug crimes.
The Senate Judiciary Committee plans to continue hearing testimony Friday morning on the eyewitness identification policy bill.
Those scheduled to speak include Defender General Matthew Valerio, Assistant Attorney General John Treadwell and Bram Kranichfeld, executive director of the Department of State’s Attorneys and Sheriffs.
