Agencies embrace change in police photo lineups

LOS ANGELES — The veteran LAPD detectives showed the witness to a slaying an array of six mug shots — the suspect in the fourth slot.

The witness, an off-duty security guard, said the third photo resembled the killer. Detective John Zambos encouraged her to keep looking.

She indicated two more photos — the fourth and sixth.

“I kept seeing you go to four. And you kept returning to four,” Zambos said, according to a transcript reviewed by the Los Angeles Times. “Was (there) a reason why you kept comparing everybody to number four?”

The detectives then showed the witness a separate photo of the man in the fourth position. Eventually, she selected him as the killer.

The LAPD detectives’ conduct, which emerged during a murder trial, is one of several cases across the country that has helped prompt a rethinking of the age-old methods of police interviews. As a result, a growing number of law enforcement agencies are abandoning the practice of allowing detectives who know the identity of a suspect to conduct photo lineups.

The change, proponents say, is needed to guard against influencing witnesses with subtle, unintentional comments and gestures — or more heavy-handed techniques.

Police in Denver and Boston have adopted the new lineup practices. Last month, Virginia recommended that its law enforcement agencies use the method, which is also required or recommended in New Jersey, Connecticut, North Carolina, Texas and other states.

David Angel, head of the Santa Clara County district attorney’s conviction integrity unit, said the change can strengthen prosecutions. “If you can tell juries that you have done everything you can to minimize mistakes, it is only going to help your case,” said Angel, whose department spearheaded similar reforms a decade ago.

But in most police agencies, case investigators continue to handle lineups. In California, police and prosecutors have opposed uniform guidelines on conducting eyewitness identifications, arguing that claims of police influence are exaggerated.

Facing questions from the city’s Police Commission last year, Los Angeles Police Department Chief Charlie Beck said there was no guarantee that the new method was any better — and it might be worse.

Detectives assigned to a case, Beck said, have the best chance of building a rapport with their witnesses and recognizing if a fearful or hostile witness is holding back information.

“If you decide you want to put your thumb on the scale of justice, you can do it either way,” Beck said. “If you don’t adhere to the rules, either process is flawed. It’s more important to do them correctly than it is which process you use.”

The push for reforms stems from a broader effort in law enforcement to improve what is an unreliable process under any circumstances.

False identifications are the leading reason for wrongful convictions, and studies show that eyewitnesses select the wrong person about a fifth of the time.

In a highly publicized case last year, Los Angeles police admitted they wrongly accused a man of beating a baseball fan outside Dodger Stadium after multiple witnesses identified him in lineups as the attacker.

Police photo lineups are often conducted behind closed doors without being recorded, but Zambos and his partner, Detective Leo Kerchenske, did record theirs.

The Times reviewed several slaying cases handled by Zambos and Kerchenske after the LAPD investigated them for misconduct involving a photo lineup.

Transcripts from several eyewitness interviews recorded by the detectives and other records show the investigators engaging in conduct that ranged from seemingly innocuous verbal cues to erasing a recording of a witness making an identification.

The Times asked several identification experts to review a transcript of the detectives’ photo lineup with the security guard who had witnessed the slaying and selected the photograph in the fourth slot.

Roy Malpass, a recently retired psychology and criminal justice professor at the University of Texas at El Paso, described it as “the most amazing example of bias I’ve ever read.”

Malpass criticized the detectives for steering the witness away from her initial choice and showing her a different photo of the suspect, a move that psychologists say singles out one person as the suspect and can distort a witness’s memory.

Former LAPD Deputy Chief David Doan, who oversaw the department’s detectives until his retirement in November, agreed the detectives erred in showing the second photo. “That’s not acceptable,” Doan said. “It’s suggestive.”

The identification helped lead prosecutors to file a murder charge against the suspect, Marlon Morales. Morales denied involvement in the killing, saying he was at a Pasadena church at the time.

During the 2007 trial, Morales’ attorney attacked the detectives’ handling of the photo lineup. “If I told you this is what happened and we didn’t have a tape, you probably wouldn’t believe me,” Carol Ojo told jurors.

Jurors acquitted Morales. The witness, Alice Caver, however, insisted the detectives did not influence her. “In my heart, I truly believe it was him,” she said.

Zambos and Kerchenske declined to comment for this report.

Psychologists who study eyewitness identifications say detectives can unintentionally influence witnesses with seemingly insignificant comments. Telling witnesses “take your time,” for example, can suggest they are expected to make a choice, even if they are unsure.

Researchers are divided on whether using case investigators or unconnected interviewers would lead to more accurate photo identifications. They add that very little research has been done to compare the two methods.

Some studies have concluded that independent interviewers showing photos one at a time, instead of simultaneously, reduces the chance of a false identification. Other researchers caution that such procedures cut the likelihood that a witness will make a pick at all, and so reduce the number of correct identifications.

One advantage of the reforms, proponents say, is that the new method keeps detectives from deliberately manipulating witnesses during lineups.

Zambos and Kerchenske came under scrutiny from LAPD supervisors for their conduct during an investigation into the fatal shooting of a suspected gang member in the city’s Green Meadows neighborhood.

The detectives showed a photo lineup that included a possible suspect to the victim’s friend, who they believed had seen the shooting but was reluctant to help. The 17-year-old pointed to the photo of an innocent man.

The detectives left the room. They were convinced the teenager had made the choice deliberately to avoid cooperating, according to police records. Kerchenske deleted a recording of the interview, and the pair returned to the interview room.

This time, the witness selected the suspect.

Police are required to preserve all evidence and turn over anything that might suggest that a defendant is innocent.

The detectives testified at a preliminary hearing months later but did not say the key witness initially identified another person.

In December 2007, nine months after the interview and with the trial approaching, Kerchenske admitted in an interview with a supervisor that he had erased the recording, saying that Zambos had told him to.

The judge dismissed the case, and the LAPD launched an internal investigation into the detectives’ conduct.

Kerchenske, a 25-year department veteran, retired soon afterward.

Zambos, a 31-year veteran, was suspended for 15 days, according to a source who requested anonymity.

Department officials said Zambos was also reassigned from homicide cases to an administrative position.

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