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VICTIM OF MISIDENTIFICATION. Ricardo Cazorla spent nearlythree years in prison for rapes he didn’t commit. The Supreme Courtoverturned his convictions based on DNA evidence that a court in theCanary Islands had refused to take into account. / rafa avero

You forget what youwant to remember,and you rememberwhat you want to for-get,” says the main

character in Cormac McCarthy’spost-apocalyptic novel The Road.Any traumatic experience, notust the end of the world as we

know it, can cause people’sminds to play tricks. It happenso victims of crime all the time.

They want to forget but they cannot. They want to forget thatmoment when a stranger put aknife to their throats in a darkalley and raped them, but they 

want to remember their attack-er’s face so he can be made topay for what he did. Sometimes,however, their struggle to re-member leads their mindsastray. They are shown a photoof another person or they inad-vertently recall the face of some-oneelse, someonewho had noth-ng to do with what happened tohem. Sometimes, that person

ends up in prison, their lives ru-ned — victims of a legal systemhat ignores their plight and be-ievesblindly in whattheiraccus-

ers say.Ricardo Cazorla was one of 

hem. Two weeks ago the Su-preme Court cleared Cazorla, aman with physical, psychologi-

cal and sensorial disabilities, of his convictions of raping threegirls in 1997. In 2009, he hadbeen given a 36-year prison sen-ence by a court in Las Palmas,he Canary Islands, two years af-er one of the rape victims saw

himon thestreetand thought hewas her assailant. She called thepolice and Cazorla was arrested.The police,in turn, told nineoth-er victims of the so-called Tafira

apist of the arrest. Six of themdid not identify Cazorla as theattacker, and were left on the

idelines of the judicial processhat followed. The other three,ncluding his initial accuser,

were much more involved in thecase, even though one of themhad serious doubts in the begin-ning when she wasshown policephotos.

Prosecutors Pedro JoaquínHerrera, Secundio Alemán andCarlos Vielba apparently be-ieved the women outright and

didnot doubt their memoriesde-pite the circumstances. They 

did not, it seems, take into ac-count the fact that 10 years hadpassed since the crimes werecommitted, that, in 1997, thegirls had told the police that theplaces where they were rapedwereverydark,and that therap-st had worn a partial disguise

and had prevented them fromooking at his face. On top of that

Cazorla weighed about 30 kilosmore than the man described by he women in their initial testi-

mony to police. Most significant-y, forensic tests had shown, al-

mostwithout a shadow of doubt,hat he could not have been theapist.

In addition, the woman whohad seen Cazorla on the streetand identified him to police, had,

 years earlier, also pointed policeto another man who was subse-quently acquitted thanks to DNAtests.

In Cazorla’s case, however,the judges paid little attention tothe forensic information, basingtheir verdict instead on the vic-tims’testimonies, whichwere de-scribed as being “consistent, sol-id and forceful.” In effect, they ignored the possibility that the

 victims might have made a mis-take.

Cazorla isnot alonein beinga  victim of bad memory. Accord-

ing to the US NGO InnocenceProject, more than 80 percent of people wrongly convicted wereput behind bars because of mis-taken identifications by victimsand witnesses. No similar statis-tics are kept in Spain.

Part of theproblem isthat cor-rectly conducting an identifica-tion process is not easy. An inter-esting experiment was carriedout for a recent television docu-mentary El quinto por la izquier-da by La Marea Productions. Agroup of 300 participants wereshown a video of a purse snatch-

ing and the face of the thief wasdisplayed on the screen giving

 viewers more time to get an im-pression than would normally be the case during a real crime.They were subsequently askedto identify the bag snatcher in alineup. The conditions were con-sidered optimal. The partici-pantswere not stressed and they knew that what they were doingwas putting their memories tothe test and not trying to identify a criminal. Even so, only 52 per-cent of participants answeredcorrectly by pointingout that thethief was not among the peoplelinedup infront ofthemfive min-utes after they had watched the

 video.Two dayslater, thepropor-tion of people who got it rightdropped to 25 percent. The re-sults suggest that in a real-lifeline up between 48 percent and75 percent of the witnesseswould have identified innocentpeople.

In a separate test, the pursesnatcher from the video wasplaced among the people in thelineup. But even then, he wasonly correctly identified by 32percentof thewitnesses five min-utes after seeing the video, and

by only 13 percent two days afterthe viewing.

Few people would knowingly lie in such a situation and possi-bly send an innocent person to

  jail. So why then do they trusttheir memories when they pointto an innocent person ina lineupand identify them “without any doubt” as the law requires?Mind distortion is to blame, andit means that an innocent per-son’s face can easily become thatof the criminal in the victim’smind.

“We know that the precisionof an identification depends on

 various factors — difficulties see-ing the face, high stress levels,

the passage of time, inadequatepolicelineups— but on the otherhand we don’t know so muchabout the reasons that cause vic-tims and witnesses’ levels of cer-tainty to vary,” explainsMargari-ta Diges, a professor of psycholo-gy at Madrid’s Autonomous Uni-

 versityand an expert in so-calledtestimony psychology.

“Otherthan internal, individu-al reasons, one way to increasethe certainty of a witness is tolead them to believe that they are right, such as showing thema photo and then calling thatthat person to participate in alineup,” Diges said.

“It has been empirically prov-en that there is no relationship

between a victim’s level of cer-tainty and the precision of theidentification. However, despiteall the evidence and tests, whatwe see in reality with the policeand judicial system is that, whenthe victim is absolutely certainthey have identified their assail-ant, that certainty is taken as aguarantee of precision evenwhen exculpatory scientific evi-dence exists, such as DNA sam-ples,” she said.

The key moment occurswhen a witness or the victimthinks that the person they areshown in a photo is the criminal.If that first identification is re-peated then the victim or wit-ness will consistently continueto identify that person with in-creasing levels of uncertainty.

Irregularities on the part of police handling the identifica-tion process can therefore havedramatic consequences. A photoshown repeatedly,a suspect spot-ted in the police station beforethe lineup, or a lineup in whichonly one person looks remotely similar to the criminal can leadto innocentpeoplebeing convict-ed and the guilty remaining free.

Besides Cazorla’s case, sever-al such episodes have come tolight in Spain in recent years.

In the summer of 2009, theSupreme Court acquitted Henry Osagiede, a Nigerian man con-

  victed on two counts of sexualassault and armed robbery. Hehad been the only black man inthepolicelineup andthetwo vic-tims of the attacks had previous-ly identified “without any doubt”another man who was able toprove his innocence.

Rafael Ricardi was sentencedfor rape and spent 13 years inprison.He wasinnocent.His mis-fortune was that he had been adrugaddict,livinga roughlifeonthe streets. Ricardi was an al-most stereotypical typical victimof a botched police identificationprocess: persons who because of their economic and social status

have few peopleto help them, nomoney for good lawyers, and alifestyle that often leaves themunable to account for theirwhereabouts.

Some cases are simply mind-boggling. Jorge Ortiz was con-

  victed of armed robbery eventhough one of the two victimsdid not identify him and another

When faulty memorieswin criminal convictionsToo many cases are being decided on false testimonies

MÓNICA CEBERIO BELAZA

Studies show thatpeople forget acriminal’s face withthe passage of time

False identificationaccounts for 80percent of flawedconvictions

Crime

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withdrew her original testimony   just before the trial when shewas shown a photo of the man

who was the real criminal. The judge did not care. He based hisruling on one victim’s originaltestimony and, to add insult toinjury for Ortiz, the sentencewas upheld on appeal by the Su-preme Court with the Constitu-tional Court refusing to evenhear his case.

In the end, he was releasedthanks to the efforts of the vic-tim, who had campaigned on hisbehalf. He had spent two and ahalf years in prison.

Not only do victims, witness-es, the police, prosecutors and

 judges make mistakes, but whenthey do, the justice system has ahard time acknowledging themand correcting them. In theory,

once a sentence has been hand-ed down it is unchangeable nomatter if it goes against the mostbasic principles of commonsense.

That is what happened toAhmed Tommouhi and Abder-razak Mounib,two Moroccan im-migrants convicted for a seriesof rapes in Tarragona and Barce-

lona in1991. Four yearslater,thereal rapist, a Spaniard, was iden-tified, but Tommouhi’s andMounib’s innocence could only be proven in one rape whereDNA evidence was available. Butthey had to continue servingtheir sentences for the othercrimes.

Mounib died in prison in2000. Tommouhi spent a total of 15 years behind bars before hewas released in 2006. The Su-preme Court did not revoke thesentences he had received be-cause the rules for appeals are

 very strictly defined: the convictmust prove their innocence, andin this case there was no DNA totest. The government took nine

 years to decide whether or nottopardon him. It ultimately re-fused — few politicians want tobe seen releasing rapists (eveninnocent ones) from prison.

And that points to anotherproblem. Falseconvictions usual-ly occur in cases where thecrimes are so severe that publicpressure on the police and thecourts to make someone pay ishigh.

BraulioGarcía Jaén, a journal-ist, recently published a book onTommouhi and Mounib’s casecalled Justicia poética (Poeticjus-tice), based on four years of re-search that he has recounted indetail on his blog ladoblehelice.com.

What has come to lightthrough his work is not just a

handful of victims with flawedmemories, but a string of errorsin the police and judicial investi-gations.

“One of the girls who made amistake in the identification, asDNA tests later proved, saw boththeinnocent men beforethe line-up,” García Jaén notes. “And shesaw them as suspects: Tommou-hi was handcuffed and beingguided to a cell. She and a dozenother victims were sitting in thehallway of the courtroom whenthe defendant was escorted by her. Curiously, shedidn’t identify Mounib the first time when theCivil Guard showed her his pho-to. But days after the victim of another rape identified him, shealso came forward and accusedhim. Years later, the victim ad-mitted that she didn’t even lookat the other people in the line-ups. Andthoughshesaidshe hadno doubt, she got it wrong.”

It is a common problem, but

 judges, García Jaén says, “arguethat official irregularities do nothave any effect on how precisethe identification is.”

It seems surprising that withso many cases of innocent peo-ple being wrongly convicted,

  judges seem intent on ignoringthe findings of psychology stud-ies on testimony.

“In the current judicial cul-ture, particularly with regard tocrimes of a sexual nature, thereare three clichés: that the judgehas a special ability to see thetruth; that testimony is solid evi-dence; and that the victimshould be afforded added credi-bility, so therefore what they say should suffice,” notes PerfectoAndrés Ibáñez, a Supreme Court

  justice. “They are clichés thatare clearly undermined by testi-mony psychology and none of them are true. But that doesn’tmatter because they form partof the dominant public opinion

and make judicial work easier.“On the other hand, courts of-

ten have to work on the basis of material— photographic identifi-cations, for example — obtainedon questionable grounds. Thereis no viablealternativeto exercis-ing justice with respect to thepresumption of innocence andprocedural guarantees. The fearof acquitting must be lost, evenknowing that it will be unpopu-lar,” Ibáñez said.

“Andto me it seems necessary for the change in judicial cultureto be accompanied by anotherno less profound change in theculture and practices of the me-dia,” the top court justice said.

Recent scientific studiesshow that false memories aregenerated in a different part of the brain than real ones. If thatcould be easily tested, it mightsavedozensor hundredsof inno-cent people from ending up be-hind bars.

Julián Ríos is troubled by themedia and public furor thaterupts afterany particularly hei-nous crime over whether life im-prisonment should be institutedin Spain.

A lawyer and professor of pe-nal law at Comillas Pontific Uni-

  versity, Ríos has recently launched an advocacy group,Otro Derecho Penal es Posible(Another Penal Law is Possible),with the aim of “deconstructingmyths about the penal system.”

“Wewant to inform,” he says.“We’re not looking for politicalconfrontation, nor are we

against anybody. We’re just of-fering data for debate.”The data Ríos’ association is

offering, he hopes, will open theeyesof thosepoliticians and citi-zenscalling for tougher sentenc-es in Spain. He notes, for exam-ple, that Spain has a lowercrime ratethan theEuropean av-erageand half that of the UnitedKingdom, and that crime levelshave been falling for the last 20

  years. However, 90 percent of Spanish citizens believe that thecountry is more dangerous nowthan before and that there aremore people in Spain’s prisonsthan elsewhere in Europe.

So why the mismatch be-tween reality and what people

perceive?“Sentenceshave gotten strict-er, especially since 2003. Thereare no longer work benefits andparole is harder to obtain. Inshort, every day there are moreprisoners and fewer are beingreleased.I also believe that judg-es are stricter in applying thelaw because of the intense so-cial pressure they face,” Ríos ex-plains. “Society seems to thinkthat prisons are full of extreme-ly dangerous criminals, butthat’s not true. Most are in therefor crimes involving drugs ortheft. Prison should only beused when there is no other re-

course.It can’tbe used forevery-thing. Spain needs to find effec-tive alternatives to prison.There’s no space for more pris-oners in our prisons.”

Ríos recalls how, soon afterstarting to practice as a lawyer,a friend introduced him to a

  young man who had just beenreleased. He had drug problemsand nowhere to sleep. “He end-ed up in my house,” the profes-sor says.

The young man was one in along line of ex-prisoners whohave passed through Ríos’ homeon their way from prison to lifein society. He has moved out of 

the city so he and his guests canhave more space and tranquili-ty. “Prison is hard,” he says. “So-ciety doesn’t realize what it’slike to be a prisoner — it’s totaldevastation.”

Among Ríos’ guests wereonce two prisoners who hadspent more than 20 years be-hind bars. In the end both com-mitted suicide. “One of themstole my stereo system. He wentbefore a judge, confessed towhat he had done and said hewanted to go back to prison; hedidn’t know how to live outside.He took his own life a few dayslater,” Ríos recounts.

“People think prisons are full of extremely dangerous criminals”Julián Ríos wants debate to be based on right information

M. C. BELAZAMadrid

Julio Ríos say ex-inmates have tough time adjusting. / carlos rosillo

Police at a crime scenereconstruction escort murdersuspect Enmanuel Martínezwho, along with his

 girlfriend, is charged withleaving a man to die insidethe trunk of an automobile inValencia. / carles francesc

Crime

Mind distortionsallow victims tothink an innocentperson is a criminal

No politician wantsto champion therights of a wronglyaccused rapist