Hopefully, by now everyone recognizes that innocent people are convicted. Unfortunately, it’s still common for prosecutors to believe it could never happen to them. Where that belief exists, the odds of convicting an innocent person increases. In my opinion, you are never going to convince prosecutors it’s a potential problem in their office. It is up to the public - especially those who may serve as jurors - to be the guard against convicting the wrong person.
The case of George Powell
What does a wrongful conviction look like? For a couple of years now, I have been involved with a case that is unusual in that it contains almost every problem that is usually associated with wrongful convictions. In my opinion - as well as everyone who has looked it - it’s obvious the wrong person was convicted. And I’m not talking about other defense lawyers. The case has been reviewed by other prosecutors, as well as people who generally favor the State, and they all have reached the same conclusion. One of the reporters who has been covering the case even commented to me recently that when she writes her stories, she worries that they appear so one-sided; yet she can’t write it any differently, because that’s the way the evidence is coming in. When you know the facts, I have no doubt you will reach the same conclusion.
Even though everyone else believes it’s a wrongful conviction, the District Attorney’s office continues to fight it with everything they have. The case is out of Bell County, and the defendant is George Powell. You can find a good summary of the case in the Dallas Morning News, in a story written by Brandy Grissom. Her story is aptly titled "Too Tall: Does video evidence prove a man was wrongly convicted?"
The facts are not complicated. In 2008, there was a string of convenience store robberies in Killeen and Copperas Cove. The facts were similar; a man would enter the store, brandish a weapon, get the money and take off. Descriptions were fairly consistent; a white male, slender build, 5’6” to 5'10” tall. The police had no leads, so they turned to “Crimestoppers” and posted a video of one of the robberies on TV. Predictably, someone came forward and gave them the name of George Powell. The witness said she knew who he was because he had rented a room at the motel she managed. Here’s where the case takes the first wrong turn.
The first mistake: not checking if the physical description matched the person named by the tipster
Other than obtaining a picture of George, it’s not clear how closely they checked on him. If they did, they ignored a glaring problem - George is 6’3” and a big guy. While that might be cause for concern if there was only one witness description, there were multiple descriptions, and all were fairly consistent. The odds of all those witnesses being off in their estimates by at least 6” is astronomical. This is where bad/lazy police work can create chaos. Two of the robberies had been committed in Coryell County, and investigators there used the height estimates to eliminate any suspect who was over 6 feet tall. Had the tip come into Coyrell county, we probably wouldn't be where we are today.
Unfortunately, that’s not the end of the bad decisions. The detective put George in a photo lineup and took it to the victims in the first robbery. They couldn’t identify anyone; but more importantly, they told the detective who it wasn’t. They knew George because he had been in the store before. They told the detective they recognized George, and that he couldn’t be the robber because he was too tall. Not to be deterred, the detective continued on and presented the lineup to the other victims. None of them knew George, and they all picked him out and identified him as the robber.
The second problem: eyewitness identifications and how they are administered
There is a huge problem with lineups when they are administered by someone who knows who the suspect is, and the procedure isn’t recorded. We will never know whether the detectives influenced the other victims to pick out George; common sense tells you that the odds of several people picking out the wrong person without some type of influence are pretty high. We do know, that in one situation he admitted the witness was having difficulty making an identification. He started eliminating photos until there were only two left, and she was able to make an identification. You probably don’t need any special training to recognize the problems in that process; where you are basically picking which photo is closest to the robber. And not only that, the process tells them that the officer administering the lineup believes one of those two is the person who committed the robbery.
This demonstrates another huge problem in the criminal justice system. The evidence is overwhelming that in more than 75% of the cases where individuals have been cleared through DNA evidence, there was a mistaken identification. It may well be the most unreliable type of evidence in the criminal justice system Most prosecutors recognize that (although not the ones in the case), but never think the witness in their case is mistaken. The identifications have been what the prosecutor has held onto, despite overwhelming evidence of innocence in this case. Unfortunately, that is is not unusual; people don’t like to admit they have made mistakes.In case you're wondering, there has been a tremendous amount of research done on the subject of eyewitness identifications in the last 10-15 years. The results are fairly consistent; the human mind doesn't act like a camera, and we are pretty bad at identifying people we don't know - especially in a stressful situation. The research does establish a couple of things that are important to this case. People are pretty good at estimating heights because they generally compare the person to themselves. The other is that people are pretty good at identifying people they already know; you probably don't need someone to tell you that. Remember, in this case, the height estimates were pretty consistent; no one had an estimate over 6' tall. The other was that the witnesses who said George was not robber were people who had contact with him before. For everyone else, he was a stranger.
As for the witnesses who picked George out of a lineup, you are dealing with evidence that you don’t know how it was obtained. You have to trust a detective who didn’t see a problem with the obvious discrepancy in the physical descriptions and ignored a positive identification of who the robber wasn’t. That’s another problem with eyewitness identifications; you believe the witnesses who identify the defendant but don’t believe those who don’t.
The third problem: ignoring evidence that doesn't fit your theory
There’s another big problem in this case for the State. There are markings on the door, which you see in every convenience store, and there are videos of the robberies. The marks show the robber falls within the 5,6 - 5’10” range; in fact, officers looked at the video of one the robberies to broadcast a description of a white male, who was approximately 5’8”.
Unfortunately, this happens all the time. Police either ignore or come up with alternative explanations for evidence that doesn't fit their theory of the case. Here, the detective believed the robber was slouching, and concealing his true height. For the witnesses who knew George, he theorized that since they knew him, they were trying to protect him.
The fourth problem: hiring an expert who isn't an expert
Here’s the next wrong turn. The State recognized the videos were a problem, so they turned to someone who they could call an expert. They found someone who had experience in crime reconstruction and retained him to review the videos. There are two glaring issues in this particular case, which unfortunately aren’t uncommon. The first was that he had never done a height estimate before; nothing like learning on the job when someone’s future is at stake. The other was that he was using a program called Photomodeler, but had not been formally trained on the program when he did his original calculations. Despite that, he was allowed to testify as an expert in photogrammetry.
The expert’s opinion was basically that you cannot believe what you see in the videos. He had a lot of reasons, but ultimately he testified that based on his analysis, the robber was at least 6’1”. In what would only happen in a criminal case, he testified he couldn’t come up with a range - all he could do was establish a minimum. Therefore, the robber was at least 6’1, and presumably could be 8’ tall. Years later, and after an expert was retained who had experience in doing height estimates, he changed his opinion to 5’10”, but still states he can only establish a minimum. If you are a civil lawyer or know a lawyer who tries civil cases, ask them whether someone like that would ever be allowed to testify. I can guarantee you the answer would be no. Their qualifications would be challenged, and their testimony would be excluded. After all, you can't make mistakes when you are making decisions about property or money.
The fifth problem: jailhouse informants
If you wonder if it could get any worse, it can. The final wrong turn was using a jailhouse informant, who claimed that George admitted he committed the robberies. This was despite numerous letters he had written to everyone he could think of declaring his innocence. This wasn’t a normal snitch; in what may be the only time this happened anywhere, between providing his information and testifying, he had been found incompetent to stand trial and sent to the mental hospital. Yes, that really happened.
And that’s not all! As with most snitches, he wasn’t doing this out of the goodness of his heart. He wanted a deal on his case, which was a burglary of habitation. Because of his prior record, his sentencing range was 15-99 years or life, and the initial offer was 15 years. After he talked with the prosecutor handling George’s case, a note was placed in his file that he would receive credit for his cooperation, with no upfront deal. That is a fairly common arrangement since it looks better if they aren’t testifying in return for a specific sentence. The problem was that this was never disclosed, and when he testified he denied that he had any agreement with the prosecutor. You don’t have to go to law school to know that’s an issue. And in case you’re wondering, he got his deal; they had to reduce the charge to do it, but he ended up being sentenced to 3 years in prison. Since the offer before was 15 years, that means that his testimony was worth 12 years of his life.
The Texas Forensic Science Commission becomes involved
Fortunately for George, he developed a relationship with a pen pal, who took on his case. She was able to convince the Texas Forensic Science Commission (FSC) to look at the case. They ended up hiring their own photogrammetry expert, to review the testimony used by the State. After identifying several problems with the testimony presented at trial, he did his own analysis. The conclusion was that the robber was somewhere between 5’6” and 5’8”, which excluded George. Unlike the State’s expert, he provided a margin of error, which is why he provided a range of heights.
As a result of the review by the FSC, this case has been reviewed by a number of people. Most of those are affiliated with law enforcement in some way. There was even a prosecutor on the panel, who was extremely upset by the case. Everyone who has reviewed it has reached the same conclusion - that George is not the robber. The one exception is the Bell County District Attorney’s office; they have fought with everything they have to preserve the conviction, despite all the obvious problems. While I don’t pretend to know what they are thinking, there are some psychological principles, which I will discuss in another article.
This case has been working its way - slowly - through the courts, In the meantime, an innocent man sits in jail. Unfortunately, that is something too common in our justice system. It’s often easy to convict someone, but almost impossible to exonerate them once they have been convicted. We continue to hope this will be one of the few successful exoneration cases.
BTW - in case you are wondering whether I'm being overly dramatic, here's a picture prepared by the expert hired by the FSC. He went to the scene and using a special camera constructed a 3D model of the store. He also went to the prison and did the same thing for George, and ended up with a 3D model of him. This is what happens when the model of George is placed on the picture of the robber.
In case you haven't already figured out, this case is still working its way through the court system, and I'm one of the attorneys representing George Powell. So you can assume I look at the facts with that perspective. All the information in this blog post has been either published in different news media or is part of the public record, which includes testimony presented at the different hearings. The photograph is a snapshot of the presentation made to the FSC by Grant Fredericks, as well as the demonstration he provided during the court hearing. If you want additional information, check out the coverage in the Temple Daily Telegram, by Deborah McKeon, who has been covering the hearings.