Unless the victim knew his perp, descriptions of the alleged criminals are invariably awful.  They tend to cover such wide swathes of the population as to be worthless, except for the “unique” identifiers that people tend to remember:

He wore a Yankees baseball hat.

He had a red tie.

He wore a green hoodie that said “my mother went to prison and all I got was this lousy green hoodie.”

And then they conduct the line-up, and there’s only one fellow wearing a green hoodie in the bunch, and rest are wearing red ties (though when the red tie perp is put through the line-up, you can bet there won’t be another in the bunch), guess who gets picked?

Sounds ridiculous?  Sure, but it’s all the cops have, and judges are incredibly reluctant to preclude the identification because it would leave the prosecution without any evidence to convict, or require the cops to work a whole lot harder to make the line-ups appear half-way fair.  We can’t have that.

Which is why the Appellate Division, First Department’s reversal of Acting New York County Supreme Court Justice A. Kirke Bartley, Jr.,  in  People v. Kenley is quite a surprise.

Defendant was charged with two robberies that occurred on the same morning. The witnesses to the robberies described the driver of the getaway car, respectively, as “a huge, big, fat, black guy,” “a real big, real huge black guy,” and “very heavy-set [and] large.”

A review of the lineup photograph reveals that defendant, who weighed 400 pounds, was the only participant who fits these descriptions. Although the fillers were large men, there was a very noticeable weight difference between defendant and the fillers. While the lineup participants were seated, and this can sometimes satisfactorily minimize differences in weight, it is clear from the photo that there was a marked difference between defendant and the fillers.

From the story headline, it appears the difference in weight ranged from 115 to 190 pounds.  That’s another whole person, and it demonstrates the point about how people are identified, by the feature that stands out to the quick observer.  When you see a 400 pound guy, that’s all she wrote.

Notably, the decision doesn’t begin to rip to shreds the worthlessness of this identification, the flagrant failure to craft a line-up that stands even a close chance of accuracy.  Indeed, the opinion is almost apologetic for not affirming the conviction, but this one went just a bit too far.  The court, throwing judicial humility to the wind, goes on to say:

We do not mean to suggest that the police are obligated to find grossly overweight fillers when dealing with the situation presented here, and we recognize the practical difficulties that would be involved in doing so. Instead, this situation would call for the use of some kind of covering to conceal the weight difference.

Of the multitude of concerns that a gang of five judges might have with this identification procedure, and knowing full well that bad IDs are the leading cause of wrongful convictions, and further knowing the bad identification procedures are the leading cause of bad identifications, they still feel constrained to “teach” the cops how to circumvent a negative ruling while accomplishing nothing in the accuracy of the identification.  Their foremost enunciated concern is the practical difficulties for police in providing proper fillers.  Is that really a greater concern than convicting the innocent?

Because the head of a 400 pounder isn’t proportionately larger than the head of a person half his weight?  Because the drape of the white sheet over the body of the 400 pounder doesn’t clearly show that he’s huge?

While it’s somewhat admirable that the panel reversed, showing that there is a line that even the Appellate Division won’t allow to be crossed, the inherent unreliability of standard line-ups is still of little concern, and the overarching concern that law enforcement not be put to too much difficulty in assuring that their perp gets ID’d remains enormously troubling.  Nowhere does the decision urge that the police employ any of the methods that might come close to assuring an actual accurate identification.

One final noteworthy aspect of this decision is that the defendant was represented on appeal by the Cardozo Law School Criminal Appeals Clinic.  Granted, the law involved is fairly clear, and the argument on appeal centers only on whether this line-up exceeded the “unduly suggestive” threshold.  Still, that this reversal comes from a law school clinic is yet another indication of the efforts Cardozo puts in to preparing their students for the real practice of law, like their ITAP program, and which other law schools really need to recognize. 

As for law firms looking to hire new lawyers equipped to get to work as soon as possible, it’s programs and directions like these which offer a far more effective new hire than law review or top tier school credentials.  If you want your new lawyers to be lawyers, this is what you should be looking for.

H/T Eric Turkewitz, on the cutting edge of huge.