Off of  Gideon’s “worth reading” sidebar, posts about a black man, Doug Glen Flack, being convicted of punching a white woman, Tenisha Bright, at both  EvidenceProf Blog and Eyewitness Identification Reform Blog, I have to conclude that the problem may not have been the cross-racial ID.

In the typical case, a white victim picks out a black suspect based on one or more of a variety of biases.  That’s not what happened here.  Sure, the victim at trial points to the only black man at counsel table and says with utter certainty, “that’s the man.”  But that doesn’t tell the whole story.

[A] month after she was assaulted in 2004, Bright picked out someone other than Flack at a police lineup.  At a subsequent police lineup, however, Bright did pick out Flack as her assailant.  At trial, though, even with Flack sitting right in front of her in the courtroom, when presented with an assortment of mugshots, Bright picked out the mugshot of another man as her assailant.  When asked to point to her assailant, however, Bright was able to identify Flack, the only African-American man sitting at the defense table.  During trial, Flack’s attorney attempted to question a detective about the problems with an eyewitness of one race identifying a person of another race, but Judge Kenneth F. Irvine Jr. precluded this line of questioning.

That’s one view of the hard facts of the case. 

[T]he victim attempted to identify her attacker from a photo in court, she picked another man — even with Mr. Flack sitting directly across from her at the defense table. In the initial police lineup a month after the assault, she also picked someone other than Mr. Flack. The only time she identified Mr. Flack was when the prosecutor asked her if her attacker was sitting in the courtroom, at which point she pointed to the only black man sitting at the defense table. In the words of her attorney:  “I’m sorry, that’s not an identification,” he said in his closing argument. “She’s one for three, that’s less than 50 percent.”

In other words, there was a massive showing that Ms. Bright blew the ID.  And defense counsel exploited the fact that she blew the ID, as well he should. 

The use of an expert, providing a scientific basis for mistaken cross-racial identifications, should be permitted everywhere, as the phenomenon is well know and accepted by everyone who still doesn’t think the Scopes Monkey trial was a waste of time.  But the need for an expert is to provide explanation and context where a jury would not be capable of understanding the point without expert testimony.

The Flack case was not one where there was a consistent, and erroneous, eyewitness ID that had to be knocked down externally because it was strong, clear and consistent internally.  Just the opposite.  The eyewitness’ ID was horrible.  It sucked.  It was subject to be ripped to shreds by an effective cross and skewered in summation, as it appears defense counsel did.  Yet the jury convicted.

This conviction smells very different.  This smells like a bit of Tennessee racism.  While I agree with the premise that the court’s refusal to allow counsel to question the witness about cross-racial IDs was generically wrong, there’s no level of concession about the inherent problems with eyewitness identifications that will overcome the even more fundamental problem of racism.