Judge asked to reconsider ruling

ID evidence on Fitchburg suspect

WORCESTER— Judge John S. McCann is being asked to reconsider a ruling that would allow prosecutors to offer eyewitness identifications by several witnesses at the trial of a Fitchburg man charged with murder.

Acting on a defense motion to suppress evidence in the case of John Y. Yang, Judge McCann issued a ruling Nov. 15 enabling prosecutors to use pretrial and in-court identifications of the suspect by nine eyewitnesses, while excluding the identification testimony of two others.

Mr. Yang is awaiting trial in Worcester Superior Court on murder and firearm charges in the April 18, 2003, shooting death of 20-year-old Jacky Phandanouvong of Leominster. Mr. Phandanouvong was shot at a party at 118 Myrtle Ave. in Fitchburg that was attended by an estimated 80 to 100 people.

Lawyer Edward P. Ryan Jr., who was appointed by the state Committee for Public Counsel Services to represent Mr. Yang, filed a motion to suppress the identifications of his client, which he maintained were the product of unnecessarily suggestive law-enforcement procedures that tended to single out Mr. Yang as Mr. Phandanouvong’s killer.

In support of his contention, Mr. Ryan offered the testimony of Solomon M. Fulero, a forensic psychologist, lawyer and professor of psychology. Mr. Fulero, who testified as an expert witness at a hearing last year on the motion to suppress, took issue with some of the methods employed by investigators in Mr. Yang’s case that led to the eyewitness identifications.

Mr. Fulero was chosen by former U.S. Attorney General Janet Reno in 1998 to be part of a national group that established guidelines for the handling of eyewitness evidence by the law-enforcement community.

In one set of photographs shown to potential witnesses, Mr. Yang was positioned low in the picture frame, making him appear short, while the faces of the other men filled their respective frames, according to Mr. Fulero. The psychologist also noted the absence of facial hair or long hair on some of the so-called “foils,” or nonsuspects, whose photographs were included in the arrays.

While finding no legal justification to suppress the identifications made by nine witnesses, Judge McCann excluded the identification made by one witness because the photo array shown to him by police “crossed the line” and was “impermissibly suggestive” because of dissimilarities between the photographs used. The judge excluded one witness from testifying about a photo array he was shown by another witness, who had made a photocopy of the array while a police officer was out of the room.

Mr. Ryan filed a motion Wednesday asking Judge McCann to reconsider those aspects of his ruling that allowed the prosecution to use evidence the defense had sought to have suppressed.

In his motion for reconsideration, Mr. Ryan said the 16-page decision failed to “acknowledge, recognize or even account for” problems with eyewitness evidence as outlined in a 1999 U.S. Justice Department report titled “Eyewitness Evidence: A Guide for Law Enforcement” that was introduced into evidence at the hearing on the motion to suppress.

The defense contended that none of the identifications at issue in Mr. Yang’s case was conducted in keeping with the Justice Department’s recommendations or the recommendations contained in a 2004 study by the Suffolk County District Attorney’s office and the Boston police commissioner.

While Judge McCann’s ruling made reference to Mr. Fulero’s testimony, it did not indicate whether the expert witness’s testimony was “accepted, rejected or simply ignored,” according to the motion for reconsideration.

By not specifically addressing testimony that related to compliance or non-compliance with “accepted standards for valid eyewitness identifications,” the court failed to apply the “constitutional standard of review” set forth in case law, according to Mr. Ryan.

“That standard could not properly be applied without reference to questions of reliability, unnecessary suggestion and fundamental unfairness that are specifically recognized and addressed in the Justice Department guide and the Suffolk County Task Force report,” Mr. Ryan said in his request for reconsideration.

Judge McCann had not acted on the motion for reconsideration as of yesterday, according to court records.

Mr. Ryan withdrew as Mr. Yang’s counsel Wednesday after telling Judge Frances A. McIntyre that the recent departure of a lawyer from his law office had placed increased demands on his time. He said he expected Mr. Yang’s trial, which had been scheduled to begin Jan. 23, to last two to three weeks.

Lawyers Louis P. Aloise and Michael C. Wilcox were appointed to replace Mr. Ryan. Mr. Aloise told Judge McIntyre he would probably be able to agree to a new trial date on Jan. 23.

Judge McIntyre allowed a motion filed by Mr. Ryan that will give Mr. Aloise and Mr. Wilcox until Dec. 7 to file an application for an appeal of Judge McCann’s ruling on the motion to suppress.

Saturday, November 19, 2005

Ruling on ID evidence

Fitchburg man awaiting trial

WORCESTER— A judge has allowed prosecutors to present evidence of several eyewitness identifications in the case of a Fitchburg man charged in a fatal shooting, but has suppressed identifications by two other potential witnesses.

In a ruling issued Tuesday in the case of murder suspect John Y. Yang, Superior Court Judge John S. McCann denied a defense motion to suppress pretrial and in-court identifications by nine witnesses. At the same time, the judge precluded Assistant District Attorney Joseph T. Moriarty Jr. from introducing identifications made by two other witnesses at Mr. Yang’s trial.

Mr. Yang is awaiting trial in Worcester Superior Court on murder and firearm charges in the April 18, 2003, shooting death of 20-year-old Jacky Phandanouvong of Leominster at a party at 118 Myrtle Ave. in Fitchburg that was attended by 80 to 100 people.

Mr. Yang’s appointed lawyer, Edward P. Ryan Jr., filed a motion to suppress the eyewitness identifications, which he maintained were the product of unnecessarily suggestive police procedures that tended to single out his client as Mr. Phandanouvong’s killer.

Solomon M. Fulero, a forensic psychologist, lawyer and professor of psychology at Sinclair College in Dayton, Ohio, testified as an expert witness for the defense at a hearing on the suppression motion in September 2004. Mr. Fulero, who was chosen by former U.S. Attorney General Janet Reno in 1998 to be part of a national group that established guidelines for the handling of eyewitness evidence, took issue with the methods employed by investigators in Mr. Yang’s case.

In one of the sets of photographs police showed to potential witnesses, Mr. Yang was positioned low in the photo frame, making him appear short, while the faces of the other seven men filled their respective frames, Mr. Fulero testified. The shooter was described to police as being about 5 feet 2 inches tall with long hair and a mustache.

Mr. Fulero also noted the absence of facial hair or long hair on some of the so-called “foils” or nonsuspects whose photographs were included in the arrays. He said it was preferable that photographs be shown to witnesses one at a time by an officer unaware of the suspect’s identity so that cues, intentional or not, could not be given to the witness.

In his 16-page ruling, Judge McCann found no justification for suppressing the identifications made by nine witnesses, despite defense claims that the identifications were tainted by suggestive procedures or because some witnesses previously had seen news accounts showing Mr. Yang in custody.

In suppressing the identification of another witness, however, the judge found that the photo array shown to the witness by police “crossed the line” and was “impermissibly suggestive” because of dissimilarities between the photographs used.

One witness identified Mr. Yang as the shooter after being shown a photo array, but later recanted the identification. Unbeknownst to authorities, that witness also made a photocopy of the array while state police Detective Daniel Richard was out of the interview room. The witness not only showed the copy of the array to another witness but also told the second witness he had identified Mr. Yang as the shooter, according to the judge’s ruling.

Judge McCann suppressed any reference at trial by the second witness to the copy of the photo array he was shown, but said the witness would be allowed to testify about the description he gave to police before seeing the array.

In excluding any reference to the photo array by the witness, the judge cited what he described as “gross negligence” or “culpable negligence” by police in allowing a copy of the photo array to be made and surreptitiously taken from the Fitchburg police station.
 

March 13, 2005

New guidelines for eyewitness testimony -
Photo arrays and lineups are being discouraged

Author: Martin Luttrell Worcester Telegram & Gazette (MA)

It's a staple of courtroom dramas: The witness on the stand points to the defendant and swears he or she is the one who committed the crime. Turn out the lights, game over and case closed. A conviction seems all but assured.

Although criminal cases often hinge on eyewitness testimony, the reality is that prosecutors and police are increasingly questioning what once was considered stock-in-trade. Guidelines for developing eyewitness testimony that were developed by the U.S. Department of Justice, which discourage the use of photo arrays and lineups, gradually are being adopted throughout the country, including by district attorneys in Massachusetts.

Solomon M. Fulero, a professor, lawyer and psychologist who served on the National Institute for Justice working group that in 1999 issued guidelines on eyewitness testimony, said the "pointing ritual" that has carried such weight in courtrooms often belies faulty evidence gathering and even contamination of a witness's recollection.

The NIJ guidelines recommend abandoning traditional suspect lineups and photo arrays in favor of a witness viewing possible suspects or photographs one at a time. The Justice Department also recommends a "double-blind showing," in which the officer overseeing the lineup or display of photos does not know who the actual suspect is, in order to avoid influencing responses.

Audio or video recording of a witness giving statements and reviewing lineups and photographs also is recommended, so that a court can determine if the witness was coached or in any way helped in selecting a particular suspect, or to show how confident the witness was at the time of identification.

The Massachusetts Bar Association earlier this month voted to recommend that law enforcement jurisdictions in the state adopt the recommendations, and will seek legislation toward that end. Bar association president Kathleen O'Donnell said the organization listened to guest speaker Calvin Johnson speak at an association dinner earlier this month about his 16-year imprisonment in Georgia for a rape conviction that was based on inaccurate testimony from an eyewitness. He later was exonerated through DNA evidence.

Edward P. Ryan Jr., a Fitchburg lawyer who is chairman of the association's criminal law section council, said the guidelines will serve justice better than past practices.

"We want to encourage all police departments, big and small, to follow the guidelines," he said. "What we're talking about is a better way to collect evidence. It serves no one's interests to identify the wrong person. If you have an innocent person identified, the real one is still at large. If you take a murder case where you haven't followed these procedures, the eyewitness evidence comes under question."

He said juries historically have placed credence in a witness who is confident in his or her recollection, but a witness who is confident on the stand may not have been so confident when pointing out a suspect to investigators months before the trial.

"When a jury hears someone say, `He did it,' they believe him," Mr. Ryan said. "The eyewitness often makes mistakes. There's no correlation between the witness confidence and accuracy."

Mr. Fulero, who testified in Worcester Superior Court last year during a motion hearing sought by Mr. Ryan in connection with a murder trial, said studies have shown there is no correlation between an eyewitness' confidence on the stand and their accuracy. Often, information comes to light after a suspect is identified that reinforces investigators' belief that the identification was correct. Police also can inadvertently provide a witness with clues as to the person they believe is responsible for the crime.

Last year the district attorneys of Suffolk and Middlesex counties adopted the guidelines, and are training police departments within their jurisdictions on how to implement them. Worcester District Attorney John J. Conte said in an e-mail response to a reporter's questions that he has reviewed the Justice Department guidelines and they have been the subject of ongoing discussions with the police departments in his district. He said he agrees with the report's premise that police procedures must always minimize the risk of misidentification.

"Fortunately, this district has been spared from misidentifications that have occurred elsewhere in the Commonwealth," Mr. Conte responded. "There have not been any convictions in this district set aside due to post-trial DNA evidence. If anything, post-trial DNA evidence has served to corroborate identifications as in the well-publicized case" of Benjamin LaGuer, who is serving a life sentence after being convicted of aggravated rape and other charges in 1984. Mr. LaGuer has argued that he was misidentified by the victim, a neighbor of his in Leominster, who has since died. DNA testing in March 2002 further incriminated him, though he contends the DNA evidence was contaminated.

Mr. Conte said his office is drawing up guidelines for the 60 police departments in the Worcester district, but would not specify which of the Justice Department's recommendations he would use. He noted that guidelines must be adaptable for all the departments, including those with limited personnel.

Middlesex District Attorney Martha Coakley said two rape convictions prosecuted in her county have been overturned on DNA evidence. Both were based on misidentifications by civilian witnesses, she said.

"We spend a lot of time thinking about how to educate 54 police departments," she said, adding that the departments are using the forms her office designed to document witness interview procedures.

"I got an overwhelming response," the Middlesex DA said. "They're using sequential photos and the forms. It will cut down on confusion. The state police in our office are doing audiotaping of witnesses anyway."

She and Mr. Conte said detectives in their jurisdictions have been audiotaping witness statements since a ruling by the state Supreme Judicial Court that judges can note when witness interviews are not recorded and make instructions to the jury accordingly.

"We thought it was a better way to do it," she said of sequential photographs, rather than the standard "six-pack," or arrays, of six to eight photographs that had been provided to witnesses.

"Lineups are time intensive," she said. "Photo arrays are easier. We don't use lineups often. In some instances it's a show-up or no other way."

"Show-ups" are done when police apprehend a suspect in a crime that has just occurred, and the witness' recollection is fresh. The witness views the person in custody to determine if he or she is the suspect. The Department of Justice guidelines have recommendations for use in show-ups to lessen the likelihood of a false identification.

In conducting a show-up, the witness should be transported to where the suspect is being detained, and cautioned that the person being viewed may or may not be the perpetrator. Ms. Coakley acknowledges that one-on-one show-ups are, by nature, suggestive. But her guidelines instruct officers - with safety considerations - to minimize the visual clues indicating a person is in custody, such as covering handcuffs, removing the suspect from a cruiser or minimizing the number of officers surrounding the suspect.

When there is more than one witness, they should be separated and told not to discuss with each other the suspect or a description. Once one witness identifies a suspect during a show-up, any others should look at a photo array rather than continue the show-up.

Worcester detectives already audiotape witness statements and present photograph one at a time rather than an array of several at once. Detective Sgt. Michael A. McKiernan said show-ups are useful because a witness can get a look at the suspect before there is any chance of altering their appearance.

"We had a guy who shaved his head," he said. "If they want to, they can really change their appearance."

He said the detective bureau conducts so-called blind photo arrays, in which a witness views eight photographs, one at a time, with each photo showing who generally fits the age, race and hair description of the perpetrator, including the suspect.

"One of the things we changed is that the witness is not allowed to see all the photos at once," he said. "They have to go through them one at a time. It may narrow it down to one or two. We make sure to tell them that the suspect may not be in there.

"It's just as important to us if someone doesn't pick out a particular person. It tells us it's someone we shouldn't be concentrating on."

He said blind arrays are now standard practice in his unit. "We all make verbal cues and that's why we do it," he said, referring to unintentional clues to a witness that a particular photo is the person police suspect. "You can't do that if you don't know who the suspect is."

Mr. Fulero said despite initial wariness by some prosecutors, the guidelines are being adopted across the country.

"I think it's slow but steady. We're getting there," he said. "There's a number of things going on, some initiatives on the legislative end. The Justice Department in 2003 issued training materials. As they recognize that this is a method by which they can get the right guy more often, (law enforcement) becomes more open to these kinds of things.

"It's better because you get the right guy more often," he added. "As people start working with officers one by one, there will be a slow change in culture. We'll start to see them adopted more and more around the country."

He said the advantage of showing photographs individually rather than in an array is that the witness has to decide if the person he or she is looking at is the right one before continuing to the next. By viewing the photographs all at once there is the tendency to just go to the person who comes closest to looking like the suspect.

"You can't blame them when they look for the one in the array who looks most like one they saw," he said. "It's particularly exacerbated when they are told, `We have a suspect. Which of these is the suspect?' It's better when they're told he may be in the spread. Otherwise, they know the police think it's one of them, and narrow it down.

"A sequence of photos makes them say yes or no before going on to the next. It's not a relative task. ... It doesn't change the percentage of correct identifications very much, but it is reducing the number of errors."

Mr. Ryan compared the new guidelines to preserving evidence at a crime scene.

"We try to keep evidence as pristine as possible," Mr. Ryan said. "Police wear rubber gloves. They cordon off crime scenes. There's a whole range of precautions taken. All we're talking about here is preserving evidence.

"I applaud any forward-thinking district attorney. It's within their purview to make sure that evidence is collected properly and innocent people are not prosecuted."

Mr. Ryan is waiting for a judge to rule on a motion he filed in September to suppress eyewitness testimony in a 2003 homicide in Fitchburg. He has argued that police mishandled eyewitness evidence in the case of his defendant, John Y. Yang, including the use of unnecessarily suggestive photo lineups that made Mr. Yang stand out from the other seven subjects.

He said that one witness, while left alone in the police station, photocopied the photo array and later gave it to others who eventually identified Mr. Yang as the one who fired a gun and killed a man.

Mr. Ryan also argued in court that some witnesses identified Mr. Yang after seeing news accounts showing him in custody, while others gave conflicting descriptions of the shooter. Two former prosecution witnesses have since repudiated their identification of Mr. Yang as the killer and now contend the defendant does not resemble the man who fired two shots at 118 Myrtle Ave.

Jacky Phandanouvong, 20, of Leominster was killed in the April 18, 2003, shooting.

Mr. Conte, whose office is prosecuting the case, declined to comment on Mr. Ryan's assertion.

Mr. Ryan said the matter may end up before the SJC.

A state police officer who interviewed witnesses was not aware of the Justice Department guidelines, according to the lawyer.

The photo array shown witnesses, he added, was "built around" Mr. Yang, in that he appears to be shorter than the others in the array, and is the only one with a noticeable moustache.

Under those circumstances, Mr. Ryan added, "You focus in on him."

September 15, 2004

Fitchburg defendant challenges evidence

Author: Milton J. Valencia Worcester Telegram & Gazette (MA)

WORCESTER -- A Fitchburg murder defendant's questioning of police procedures in interviewing witnesses in his case is the latest in what has become a trend in which lawyers doubt the accuracy of witness testimony and identifications.

District attorneys throughout the state have been reforming interview and witness identification techniques, after more than 100 cases nationwide have been dismissed or overturned because of inaccurate witness testimony.

Suffolk County has already instituted the new reforms, and law enforcement officials in Middlesex County are undergoing training.

Worcester Superior Court Judge John S. McCann has held pretrial hearings that could last through next week in the case of John Y. Yang, who is charged with murder. Mr. Yang has questioned the same police techniques that are now being reformed throughout the state. The hearing is expected to continue today at 11 a.m.

Mr. Yang was arrested last year, a day after a fatal shooting at a college party on Myrtle Avenue in Fitchburg.

Jacky Phandanouvong, 20, was shot at point-blank range in front of about a hundred party-goers who said they saw two men flee, one of them wearing a black mask.

Fitchburg-based lawyer Edward P. Ryan Jr. has challenged the accuracy of witness statements and police handling of the witnesses. The pretrial hearing began Monday on a motion to suppress witness evidence, which, if approved would be a major blow to the prosecution.

Police officers have already testified, and will continue to this week, and witnesses at the scene will also testify, Mr. Ryan said.

``We're taking it pieces at a time,'' he said, referring to the questioning of witnesses as well.

He said there are cases throughout the nation that have been overturned or dismissed. Modern technology, such as DNA testing, has helped prove defendants' innocence, and the errors in trial have been traced to poor witness testimony and identifications.

Reforms have called for police to change the way they show photo arrays, so that they show one photo at a time instead of all at once. Also, an officer not involved in the case and unaware of the suspects should show a potential witness pictures of suspects, so he does not use any body language to influence the witnesses, according to the reforms.

The reforms were written by a committee commissioned by the U.S. Justice Department. Several district attorneys throughout the state have followed the reforms, but not in Worcester County. Worcester District Attorney John J. Conte has not commented on the reforms, and would not comment on the Yang case.

But other district attorneys said they are following the reforms to make sure there are no doubts with any convictions.

On Monday, a memory and witness identification specialist who worked on the U.S. Department of Justice report questioned Fitchburg and state police methods in interviewing witnesses after the killing.

September 14, 2004

Evidence in shooting death argued -
Police methods criticized

Author: Martin Luttrell Worcester Telegram & Gazette (MA)

WORCESTER -- Testimony will continue in Superior Court today on a motion to suppress eyewitness testimony identifying John Y. Yang as the suspect in the shooting death of a partygoer on Myrtle Avenue in Fitchburg last year.

Defense lawyer Edward P. Ryan Jr. argued yesterday that police mishandled eyewitness evidence, including the use of unnecessarily suggestive photo lineups that made Mr. Yang stand out from the other seven subjects.

One witness, while left alone in the police station, photocopied the photo array and later passed it out to others who eventually identified Mr. Yang, according to Mr. Ryan.

He also argued that some witnesses identified Mr. Yang after seeing news accounts depicting him in custody, while others gave conflicting descriptions of the shooter. Two former prosecution witnesses have since repudiated their identification of Mr. Yang as the killer, saying that he does not resemble the man who fired two shots during the party at 118 Myrtle Ave.

Killed in the April 18, 2003, shooting was Jacky Phandanouvong, 20, of Leominster. He was shot twice in the chest as he sat on a futon talking with another person, police said. As many as 100 people were at the party, on the second and third floors of the three-decker, police said.

Mr. Yang, 22, of 138-140 Myrtle Ave., about 100 feet from the scene of the shooting, is charged with murder, possession of a firearm and two counts of possession of ammunition without a firearm identification card.

During yesterday's testimony, expert witness Solomon M. Fulero, a forensic psychologist, lawyer and professor of psychology at Sinclair College in Dayton, Ohio, took issue with the methods Fitchburg police used in having witnesses select the suspect from a photo array.

Mr. Fulero, who holds a doctorate in his field, was one of 34 panelists chosen by former U.S. Attorney General Janet Reno in 1998 for the National Institute of Justice Technical Working Group on Eyewitness Evidence. The report issued by that group set forth guidelines for handling of eyewitness evidence, he said.

Suffolk County and the Northampton Police Department have adopted the guidelines, as have other law enforcement jurisdictions around the country, Mr. Fulero told the court.

When shown the two photo arrays used by Fitchburg police, Mr. Fulero pointed out that in one set of photos, Mr. Yang was positioned low in the frame, making it appear as though he is short, while the seven other photo frames were filled with their subjects' faces. The shooting suspect was described by police as being 5 feet, 2 inches tall, with long hair and a moustache.

Mr. Fulero also noted that none of the so-called foils, or non-suspects, included in the photo arrays had facial hair or long hair. He also said that the two arrays were the same except for a different photograph of Mr. Yang.

He said a photo array should not isolate the suspect in that way, and the other photos should have faces with more similar descriptions.

He also recommended that the array be shown to witnesses by an officer who does not know who the suspect is, so that cues, intentional or otherwise, are not given to the witness.

``Eyewitnesses are human,'' Mr. Fulero said, ``and want to know if they got it right. They should not be given post-identification feedback. That can change their memory or weaken their confidence in their recall.''

During sometimes terse exchanges in cross examination by Assistant District Attorney Joseph T. Moriarty Jr., Mr. Fulero said his recommendations are guidelines and are not mandatory. He said that research had shown that witnesses looking at sequential photographs, one at a time, resulted in fewer false identifications than looking at an array of six or eight faces at once.

``What you want to do is affirmatively tell them that none of the above could be a correct answer,'' he added. ``They should be free to say it's none of the above.''

When police imply that the suspect is one of the faces in an array, a witness is more likely to use a process of elimination to select someone based on a description, rather than what they may actually remember, he said.

During redirect questioning, Mr. Ryan asked if, from what he knew of the methods used by Fitchburg police, was the process unnecessarily suggestive.

``With all due respect, that's a great argument, but not for me to say,'' he responded.

Judge John S. McCann said that testimony would resume at 10 a.m. today. Mr. Ryan said he would call Fitchburg police officers involved in the investigation for testimony, with the hearing going all day, possibly ending tomorrow.