By Warren Richey, writer of The Christian Science Monitor
The Christian Science Monitor
One of the most enduring scenes of the 1995 Oklahoma City bombing is the image of suspect Timothy McVeigh being led in shackles and leg irons from a county jail to a waiting car.
Now, almost two years later, attorneys for Mr. McVeigh are hoping memories of that same image will force a federal judge to toss out a portion of the government's case against the accused terrorist.
At issue is whether the massive media coverage of McVeigh's jailhouse walk influenced the government's eyewitnesses to positively identify McVeigh as being connected with the bombing. The Oklahoma City case, scheduled to go to trial in March, will provide a new test of the reliability of eyewitness accounts - one of the most heavily used and effective tools in a prosecutor's arsenal. In jury trials, eyewitness testimony can be more incriminating than fingerprints or DNA evidence. But experts say that mistaken identification by eyewitnesses is also a major cause of wrongful convictions. Thus the reliability of their testimony is emerging as a central issue in the pretrial maneuvering leading up to the March 31 case. "Eyewitness identification evidence in a classic sense is direct evidence of guilt. In some ways it is better than fingerprints," says Gary Wells, a professor of psychology at Iowa State University, and a nationally recognized expert on the reliability of eyewitness testimony. In a motion filed in federal court in Denver, Stephen Jones, defense attorney for McVeigh, argues that seven government witnesses should be excluded from the trial to prevent their tainted testimony from influencing the case. Mr. Jones says that by the time investigators presented photo spreads to the government's prospective eyewitnesses, McVeigh's face had already "became so well known that monks living on the mountainside in Tibet could have made the same identification." Justice Department spokeswoman Lisa Brown says prosecutors will file a reply brief in two weeks. She declines any further comment. An FBI spokesman in Washington says his agency has no comment. Although the FBI had interviewed some of the eyewitnesses prior to McVeigh's jailhouse walk, none of them were asked to identify McVeigh in a controlled photo spread or a police lineup until after pictures of him were widely distributed following his jailhouse walk. Experts who study eyewitness testimony say that such a procedure undermines the reliability of anything an eyewitness may later say on the witness stand at McVeigh's trial. They say it makes it impossible to determine whether the eyewitnesses will testify about their recollection of the man they believe they saw prior to the bombing, or their recollection of televised images of McVeigh being led in shackles to a waiting car, or a combination of both. The purpose of introducing eyewitness testimony at a trial is to offer the jury independent verification that the defendant is the same person who was seen engaging in aspects of the alleged crime. Such independent verification comes when the eyewitness positively identifies the same person in a police lineup or photo spread, without any outside help from investigators as to who their suspect is. Such identifications can be difficult because most people don't pay close attention to the physical characteristics of strangers, experts say. Nonetheless, during trials juries pay close attention to the testimony of eyewitnesses. …