By Ashley Southall
March 18, 2019
Otis Boone insisted he was innocent from the time he was accused of two robberies in 2011, when he was 19. But the two victims who had their cellphones snatched by a knife-wielding man picked Mr. Boone out of separate police lineups. Though there was no physical evidence, he was convicted and sentenced to 25 years in prison.
Mr. Boone, of Brooklyn, took his appeal to New York’s highest court, where a majority of judges ruled that the jury should have been told that witnesses often struggle to identify strangers of a different race because mistaken identifications are a major factor in wrongful convictions. Mr. Boone is black; the victims were white.
The Court of Appeals granted Mr. Boone a retrial and made it mandatory going forward for judges to explain what psychologists call the “cross-race effect” to jurors whenever a case involves a witness identifying of a suspect of a different race.
At his second trial last month, public defenders presented evidence that Mr. Boone was a mile away from one of the robberies five minutes before it occurred. He was acquitted on March 1, after spending seven of the last eight years behind bars.
Mr. Boone, 27, wept at the verdict. Some of the jurors hugged him and his fiancée. One juror said the panel had reached a decision in under five minutes.
“To be serving someone else’s time is a hardship,” Mr. Boone said in an interview. “It was many times that I wanted to give up.”
Mr. Boone’s ordeal illustrates a shift in how the state’s criminal justice system handles witness identifications. They were once considered strong evidence of guilt, and they remain a persuasive tool for prosecutors.
But psychologists who study memory have long warned that witness identifications are often shaky after a crime because of factors like stress, the short duration of the incident and the presence of a weapon. Identifications can also be influenced by a witness’s biases and by subtle cues from the police and prosecutors.
“Because memory is so full of holes and flawed, as a witness gets exposed to a suspect, their memory of the case moves toward the suspect,” Nancy Franklin, a psychology professor at Stony Brook University, said. She testified for the defense at trial. “I think the Boone case presents a powerful example of the sorts of issues that my field has uncovered that lead to false convictions.”
About 70 percent of the 364 convictions overturned with DNA evidence in the United States since 1992 involved witnesses who identified the wrong assailant, and nearly half of those mistaken identifications involved a witness and suspect of different races, according to the Innocence Project, a nonprofit that seeks exonerations.
The 2017 decision by the Court of Appeals in Mr. Boone’s case made New York one of only a handful of states with a cross-race effect rule. (New Jersey and Massachusetts are among those with similar rules.) In New York, some defense lawyers refer to it as “the Boone rule.”
Previously, the instruction was required only if the defense requested it after an expert testified at trial about witness testimony. Now, judges are required to give the instruction upon request, unless neither side disputes the identity of the suspect.
The Brooklyn district attorney, Eric Gonzalez, supports the new rule, but prosecutors have said they remain convinced Mr. Boone is guilty.
“We believe the evidence supported his guilt, and that the jury in the second trial should have been allowed to hear evidence regarding the high degree of confidence the witnesses expressed in their identifications within days of the incidents,” the spokesman, Oren Yaniv, said.
Some prosecutors say the new rule is unfair because it suggests a racial bias on the part of a witness without any context from experts or testimony about the witness’s life. One Court of Appeals judge on the seven-member panel said his colleagues went too far in making it mandatory.
John Wixted, a psychology professor at the University of California, San Diego, said the Court of Appeals erred in focusing the rule on race instead of on the witness’s confidence in making the initial identification. Witnesses who are highly confident when identifying a suspect almost always pick the culprit, regardless of race, he said. He testified at Mr. Boone’s trial for the prosecution.
“It’s confidence that tells you what you want to know, not race,” he said in an interview. “You’re not going to get a lot of high-confidence identifications with cross-race, but when you do, they’re highly reliable.”
In nearly all wrongful convictions where the authorities have made note of witnesses’ confidence, he added, witnesses signaled they were not sure about whom they picked, but the police, prosecutors and judges failed to understand what that meant.
Mr. Boone has filed notice that he plans to sue the city for false arrest and malicious prosecution.
Bess Stiffelman, the trial lawyer who represented him for the Legal Aid Society, said the authorities showed “a shocking disregard for the risk of false identification here and for whether or not they may have arrested an innocent suspect.”
A spokesman for the Law Department declined to comment. Phillip Walzak, a deputy commissioner and spokesman for the Police Department, said the claim was under review.
The lead investigator, Maureen Sheehan, testified at Mr. Boone’s trial that she had not reviewed the case notes before administering the lineup and that she did not know detectives had recovered one of the victims’ phones and returned it to him.
The victims in Mr. Boone’s case were a teenager and a man in his 20s who were robbed 10 days apart in February 2011 in Midwood, an enclave for Orthodox Jews. Each time, the assailant asked for the time, prompting the victims to pull out their phones, which he then snatched.
The victims said they had only a short time to see the attacker’s face, which was partially covered in the second incident, and that he had a weapon — factors that psychologists have said undermine witness identifications.
Two weeks passed between the second robbery and the police lineup, which Mr. Boone’s defense said was unfair. He was on the end, standing four inches taller than the man next to him.
Three of the five men used to fill out the lineup had visibly long hair, even though the witnesses said their assailant’s hair had been short. The younger victim picked Mr. Boone only after hearing him say, “What time is it?”
A state policing panel recommended new guidelines for conducting lineups and photo arrays in 2017 aimed at making them fairer, and Mr. Walzak said the Police Department had adopted some of them. For instance, the officer administering the test is not allowed to know who the suspect is, a practice that helps avoid steering witnesses to the suspect. Witnesses are also asked to describe how confident they are after identifying a suspect.
The protocols help to ensure the lineups and photo arrays are not “unduly suggestive,” Mr. Walzak said.
By the second trial, Mr. Boone’s defense team had found evidence supporting his alibi: government records showing two transactions on his public benefits card that took place a mile away from the second robbery about five minutes before it occurred.
The prosecutor tried to make the case that Mr. Boone had taken a four-minute bus ride to commit the robbery, but jurors did not believe that.
“It just seemed wildly unlikely,” Meredith Coffey, one of the jurors, said. She noted that Mr. Boone had moved to Brooklyn only a couple of weeks before the first robbery occurred.
Ms. Coffey, 32, of Park Slope, said she had been willing to convict based on witness testimony alone, but that she did not find it compelling in this case. The cross-race effect instruction from the judge confirmed her doubts about its reliability, she said.
Mr. Boone was freed from prison in January 2018, but the experience left him struggling to trust anyone. The long wait for a retrial cost him a job because he missed so much work to appear in court, he said. There was a time when he wanted to be a police officer like one of his uncles, but now he said he had lost faith in the criminal justice system.
“I want things to change,” he said. “I want justice.”