I start with assumption that, to some degree, all of us in the criminal justice system hope to never be part of a situation leading to the conviction of an innocent person. I assume that, if possible, we all would not wish that the truly innocent be arrested or prosecuted. It happens, though, and always will.

As someone who has prosecuted and, for 28 years, defended criminal cases, and has pursued civil remedies in hundreds of false arrest claims, I have identified a factual scenario that is particularly prone to error. Simply stated, this scenario involves a controlled drug buy where the sole identification of the defendant was made on the basis of a drivers license photo from Florida’s DAVID database. Typically, during the investigation, the police have affixed a name to an unknown perpetrator who is buying or selling drugs. Usually, in order to protect the confidentiality of their informant or to maximize the use of an informant, months pass before cases are actually filed. Since no contemporaneous arrests were made, warrants are sought. The problem arises when the police conclusively claim they have a positive identification of the perpetrator which is based on eyewitness ID’s made by the police and their informants from the drivers license photo for the name they have obtained.

In the two cases I have examined recently, the problem was clearly that, when it comes to suggestive ID’s police are as fallible as the rest of us. Having convinced themselves that they “know” the name of their subject, they are all too willing to believe that the picture that appears on the computer is the “right” person. This “fact” is conclusively stated in a PC affidavit; a case is filed; a warrant issues and some person who did no more than get a license to drive is drawn into our system.

It is, at first, interesting that prosecutors will accept such suggestive ID’s from police. Probably an occupational hazard.

In the first case I reviewed, the police identified a car used by the seller and determined it was associated with my client’s family home. They then determined that, of all the family members residing there, my client was the only male of appropriate age. They “identified” him from a DAVID photo and he was arrested for the charge which, was fairly quickly nolle prossed after the client’s protestations of innocence to one of the investigating officers were taken seriously and the actual perp, after learning his girlfriend’s brother had been falsely arrested, found and threatened the CI. At that point, the innocent’s photo was shown to the CI who said it was the wrong guy. My client knew the dealer’s name and a quick check by me of the booking blotter gave us his photo from one of his several drug arrests (he looked nothing like the client). The case settled after I tossed the booking photo in front of the lead agent at a civil depo. Of course, in the PC for the warrant, there was no information provided as to how the client’s name had been determined – just conclusory assertions that his photo had been identified.

The second case is less easy to accept. Five months after a series of drug buys, the police filed for a warrant against a person using a name they knew him by during the transactions. They provided no information as to how this name had been given and, again, simply told the prosecutor they had obtained a DAVID photo and “all officers involved” had identified it as the dealer. Extraordinarily, videos of the actual dealer were available and a discerning viewer would have no problem seeing they were different human beings. The client, who had a Florida license, had moved to New England before the buys were made. He learned from someone here that police were looking for him. He called the Police Department to “clear things up” and was told to go his local police where he was promptly arrested and extradited and transported here in what could only be described as a horrible ordeal. After bankrupting himself and his family posting bond, his charges were dropped. Kudos to Patrick McKamey for that.

Prosecutors. these cases can be stopped at intake. Why file a case without some specific knowledge as to how the Defendant’s name was obtained. Demand to see the videos or photos. Make sure you are given a copy of the actual DAVID photo used to make the ID. I respect the fact that, more often than not, the ID turns out to be right but I know we can be more careful. Ironically, as we all know, once a case has been made by false ID, no one has any interest in the actual perpetrator. Not even in the first case, where I showed the police their actual target (who, by the way, I kept running into in court) was there any attempt to pursue him.

Once a prosecutor has reviewed a case and a judge has issued a warrant, Florida law does not necessarily provide a realistic civil remedy for the falsely accused.
Steven Gomberg
CRIMINAL LAW = GOMBERGLAW
gomberglaw@comcast.net