In October 2018, the Yolo County DA’s Office announced it was dropping charges against Sander Findlay, after holding him in custody for 20 months on kidnapping charges.
The DA’s office finally conceded Mr. Findlay’s cell phone records, along with his ignition-interlock device installed in his vehicle following a drunk driving conviction, placed both his phone and car near Lake Berryessa, far away from the scene of the alleged crime.
Deputy DA Deanna Hays said in court that there was strong evidence “Mr. Findlay would (not have been) present with his car and his phone at that time.” She added that she did not believe a jury would find evidence beyond a reasonable doubt, despite an identification in a photo line up selecting Mr. Findlay.
But the photo line up itself was questionably conducted – leading to the Vanguard forwarding the matter to Independent Police Auditor Michael Gennaco. This case was one of six cases that was summarized in the auditor’s first Semi-Annual Report.
Overall, Mr. Gennaco – along with Stephen Connolly of the OIR Group based out of Playa del Rey, hired by the city as the full-time Independent Police Auditor this year, concluded “DPD is not plagued with widespread issues of officer misconduct. In fact, of the six cases reviewed, none of them resulted in a finding of a formal policy violation.”
However, they noted that “the cases do suggest that in some occasions DPD’s response to concerns about officer performance could have been more timely and robust.”
(See overall report – here – this is the first of several articles on this report).
In the Findlay matter, the IPA notes: “The dismissal was brought to the attention of the Independent Police Auditor with a request to examine the identification procedures deployed by Davis PD in the case.”
The concern from the start is that the juvenile victim “described the man who grabbed her arm as wearing a black mask which covered the person’s nose and mouth.”
The investigation had identified a possible suspect, and the DPD detective, a sergeant, created a six-person photo lineup for the victim to view.
Where the process becomes more problematic is: “Since the victim had indicated that her assailant had his nose and mouth covered with a mask, the detective sergeant used paper to cover the corresponding area of the face on all six photographs.”
According to DPD police reports, “the victim looked at the six photographs and said that the photo of the suspect “sort of looks like him.”
The police auditor writes, “The victim said she recognized the ‘hairdo’ but thought that her assailant’s hair was lighter in the photograph than she had remembered. She also said that the person depicted in the photograph that she identified had a head and face shaped the same as her assailant.”
As the police auditor writes in his analysis, the eyewitness identification process that has been used in criminal proceeding has been under fire due to concerns about the reliability of eyewitness identification. The Innocence Project has identified eyewitness misidentification as one of leading causes of wrongful convictions, with the reliability of that evidence never really tested in double-blind laboratory settings until recent years.
In addition, as Mr. Gennaco writes, “Research has found that juries tend to ‘overvalue’ eyewitness evidence and has questioned the reliability of victim’s ability to effectively identify their assailants.”
Further complicating the problem, “criminal justice commentators have long-raised concerns about police procedures in conducting eyewitness identification procedures.”
Among these concerns has been the power of conscious and subconscious “suggestibility,” “conveyed by a detective who knows the subject to the victim or witness.”
Because of this, “some criminal justice academics have suggested using a double-blind process during the identification procedures so that the detective actually showing the victim/witness the photospread does not know which of the photos is the suspect. Other criminal justice advocates have recommended that the identification process be recorded.”
The IPA further notes, with the passage of SB 923 in 2018, there will be new standards for eyewitness identification that takes effect next month on January 1. Among those will be to require “that the law enforcement investigator conducting the identification procedure not be aware of who the suspect is.”
The new regulations will also require the procedures to be recorded.
Mr. Gennaco writes: “In the Davis kidnapping case, the subject of this discussion, the detective who showed the photo spread to the victim was aware of the identity of the suspect and did not record the identification procedure, which was consistent with ‘then practices’ of most California law enforcement agencies.”
While technically following state guidelines at the time, the IPA writes that they were “concerned about the advisability of even conducting an identification procedure considering the limited opportunity the victim had to view the perpetrator and the fact that he was wearing a mask that covered his nose and mouth.”
This, he writes, was due to the fact that the victim “had scant identifying information upon which to base her identification.”
The recommendation is that, going forward, “DPD’s identification policy be changed, requiring that in cases in which the facial features of the perpetrator were significantly obscured that, when practicable, the supervisor of the investigator be consulted before the procedure was undertaken.”
The IPA also notes that the department is “already working on making changes to comply with the new law, even though the requirements were not to go into effect until January 1, 2020.”
—David M. Greenwald reporting