USA v. JOHN A. FORD, No. 11-2034.     

EDITOR"S NOTE.  Chicago Criminal Defense Attorney Michael J. Petro represented John A. Ford at his trial. 

A jury convicted the defendant of armed bank robbery, 18 U.S.C. § 2113(a), and the judge sentenced him to the statutory maximum of 240 months, id., in part because of his previous convictions for that crime.  The robbery occurred in Palatine, Illinois. The defendant was a personal trainer in Chicago, and had an appointment for a training session with one of his clients that began two hours after the robbery.   

We move to the second and more substantial issue—a challenge to the photo array shown the bank's manager, whom the robber had confronted after forcing an entry into the bank shortly after the bank had closed for the day. When police arrived after the robbery the manager had told them that although the robber had worn a dust mask that covered his nose and mouth, the manager could tell that the robber was a white man with "a very pale complexion" and "light colored eyebrows and freckles around his eyes."     

The dust mask was found shortly after the robbery 150 feet from the bank. DNA found on the mask was eventually matched with DNA that had been taken from a convicted bank robber named John Ford, the defendant in this case. In March 2009, 16 months after the robbery, a police officer presented the bank manager with an array of six head shots that included one of Ford; we attach a photo of the array at the end of this opinion. The manager picked the man in the middle of the top row as the robber; it was Ford.    

He was eventually arrested and at a suppression hearing in September 2010 challenged the bank manager's identification on the ground that the photo array had been irreparably suggestive. The district judge refused to suppress the identification, and at the trial, held one month later, the manager testified that he had indeed identified the defendant as the bank robber in the photo array.  

The photo array was suggestive. First, instead of showing the six photographs to the bank manager one by one, the police officer placed them on a table in front of him all at once, side by side in two rows, as in the photo at the end of this opinion (except that that's a photo of all six photos, and what the manager was shown was the separate photos—but as he was shown them all at once, what he saw was equivalent to our composite photo).   

The officer asked the manager whether he recognized the robber. The objection to this procedure is that the manager would probably think that one of the photos was of the robber, or at least of the person whom the police suspected of being the robber, which might have led the manager to pick the one who most resembled the robber even if the resemblance was not close, especially since so much time had elapsed since he had seen the robber and the robber had been masked when he saw him. 

It is true that the police officer told the manager not to assume that a photo of a suspect would be among the photos shown him, a disclaimer that the cases recommend. See United States v. Williams, 522 F.3d 809, 811 (7th Cir. 2008).  Several studies suggest that such a disclaimer indeed reduces the risk of misidentification.

But whether it eliminates the risk created by a simultaneous array may be doubted. A witness is likely to think that the array must include a suspect as otherwise there would be no point in showing it to the witness, unless the witness's verbal description was of such an unusual-looking person that only a handful of people in the area in which the crime took place could possibly match it; in that case the police could show him all the look-alikes, confident that one was the criminal and hopeful that he differed enough from the others that the witness would be able to pick him out of the array.     

The array would have been less suggestive had the manager been shown the photos one by one (a "sequential" array). Witnesses shown a sequential lineup are more likely to compare each person in it only with their memory of the offender, rather than choose whichever person looks the most like what the witness remembers. 

The accuracy of a sequential array can be improved by making it appear to the witness that there are more persons in the array than he's been shown. The officer presenting the array could pause after showing the witness the first five photos and ask whether he'd spotted the robber yet. For if after having looked at the first five photos in an array of six (as in this case) the witness knew he was looking at the last one in the array, he might infer, if he hadn't identified any of the first five, that the sixth photo was of the robber, or at least of the man who the police thought was the robber. 

And since the robber had been masked, the men in the photos (including Ford) should have been shown wearing dust masks similar to the one the police had found. 

Furthermore, the same detective from the Palatine police department investigated the case, compiled the photo array, and showed the array to the bank manager. Assigning other officers (with a smaller stake in nailing Ford) to compile the photo array and show it to the manager would have reduced the likelihood of an officer's signaling him to identify Ford as the robber. 

Still another respect in which the array was suggestive was that the other five men don't look like the robber, because, although all are adult Caucasian males of approximately the same age, none is pale or has freckles. The only description that the manager had given the police was that the robber was very fair and had freckles, and only Ford's photo matches that description.  

Of course it's impossible to find photos of persons who are identical to a suspect (unless he has an identical twin)—and also undesirable, because then the witness wouldn't be able to identify the suspect. But Ford's appearance is so unlike that of the other men in the photo array—and unlike them with respect to the only two features that the bank manager recalled of the masked robber—that the array suggested to the manager which photo he should pick as the one of the robber. See United States v. Downs, 230 F.3d 272, 275 (7th Cir. 2000).  

As awareness of the frequency of mistakes in eyewitness identification has grown  so has the need for judges to be especially wary about suggestive arrays shown potential witnesses, especially when as in this case the suspect was masked and a long time had elapsed between the crime and the display of the array to the witness. 

"An identification infected by improper police influence, our case law holds, is not automatically excluded. Instead, the trial judge must screen the evidence for reliability pretrial. If there is `a very substantial likelihood of irreparable misidentification,' Simmons v. United States, 390 U.S. 377, 384 (1968), the judge must disallow presentation of the evidence at trial. But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth." Perry v. New Hampshire, 132 S. Ct. 716, 720 (2012).   

This is a demanding test for exclusion, but may have been met in this case, and if so it was a mistake to allow the bank manager to testify at the trial about his previous identification of the defendant as the robber. 

But we think the error was harmless. There was no doubt that the dust mask found outside the bank was the robber's, and the DNA found on the dust mask matched the defendant's DNA.

Moreover, even if not permitted to identify the defendant as the robber, the manager would have been permitted to testify that the robber was a pale-visaged freckled white man, for that is what he had told the police immediately after the robbery; and the jurors could have compared the description with the defendant sitting in front of them. 

Although the defendant's lawyer tried to throw dust in the jurors' eyes by a vigorous challenge to the DNA evidence, and might have succeeded with another jury, the challenge had no merit. 

The judgement is therefore AFFIRMED. 

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Federal Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com

 

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