Jefferson and Washington monuments

Everyone Should Have An Identical Twin

Jamison KoehlerCriminal Procedure, Law Practice

For over 20 years, Detective Wynn conducted line-ups at the Curran-Fromhold Correctional Facility (CFCF) in Philadelphia.  The line-ups were carried out in a little triangular-shaped room just beyond the main reception area. You know the way it looks from T.V.: the ante-room, the glass, and then, on the wall behind where the suspects stand, the red lines demarcating height.  The room has the same smell of disinfectant that pervades the entire jail.

There was usually some dead time to kill before the line-up, and the Detective was a real talker. The Detective also had a Polaroid camera, and he tried to photograph as many of the young prosecutors and defense attorneys as he could.  He had them stand back against the wall in front of the lines.  Depending on how many people were there that day, sometimes he photographed them alone and sometimes he photographed them in groups of two or three. He kept a pile of the old photographs bound together with a rubber band in the top drawer of his desk.

The idea, apparently, was that the young lawyers of today would eventually become the judges of tomorrow, and he enjoyed the notion that he could whip out these photographs many years later for the amusement of both himself and the now mature and dignified judge.  In fact, one time when I was there, he told me that he had been in front of a particular judge just the other day, testifying to the circumstances of a challenged identification, and that he had amused her with the photograph he had taken of her hamming it up as a young public defender.

He offered to show me the photograph.  And he offered to photograph me in front of the red lines behind the glass.  I declined both offers.  I was a junior defense lawyer but I did have a sense of dignity.  And the notion of gawking at the photograph of the young judge struck me as, well, if not pornographic then at least inappropriate.  I often appeared in front of this judge.  I didn’t need to see what ridiculous pose she had adopted as a younger woman.

Defendants on bail were encouraged to bring along their own fillers.  I was wondering how effective this might be – -wouldn’t there be more opportunity for matches drawing from the prison population? – until my first line-up involving a white defendant.  First of all, there were only so many white guys at the CFCF.  Second, until a group of this guy’s friends and relatives trooped into the room, I had forgotten how similar big beefy white guys from North Philly can look.

Defendants in custody selected fillers from their cell block and, if not close enough matches can be found there, from the general prison population.  The problem was that prison authorities did not allow the defense attorney to go back into the cell block to help with the selection.  And people tend to think they are much better looking than they really are.

I had one client who had a very unusual look.  He was probably five feet tall and light-skinned, and he had unusually shaped ears.  You can usually accommodate for tattoos and other distinguishing characteristics (for example, by having everyone cover a particular part of their body) but, despite Detective Wynn’s assistance in bringing in other inmates to choose from, my client was identified within a matter of seconds.

My client was pleasant about it later when I informed him of the result back in the holding cell:  “It’s cool,” he said.  “No biggie.” But it was big.  Mistaken identification was a good part of our defense.

I had anticipated a problem with getting some of the fillers drawn from the prison population to take the thing seriously (after all, they had nothing at stake), but it turned out this concern was misplaced.  This was never a problem.  They could joke around in the holding cell waiting for the line-up to be set up as I delivered my little speech.  But they were always stone-cold serious as soon as the line-up began.

Of all the things I have experienced as a criminal defense attorney, there are few things as suspenseful as the moment when the lights go down and the line-up begins.  It is also one of the rare times that the defense attorney will see a complaining witness during such an unguarded moment.

I thought about all of this today upon seeing the Law Brief Update piece about the identical twins in New York who are causing prosecutors so many problems with identification.  One of the twins was supposedly involved in a shooting but the prosecutors can’t figure out which twin it was.

I envy the defense attorney in this case.  There are so many things stacked up against the criminal defendant and his lawyer, I can’t help thinking that sometimes we deserve this kind of break. It seems that everyone should have an identical twin.

With increased use of photo arrays, in-person line-ups are rapidly becoming a thing of the past. Before I left Philadelphia, I would occasionally see Detective Wynn around the courthouse building even after he retired.  I guess he was still occasionally called to testify on a challenged identification that had occurred during his watch.

Now that he has retired, I wonder what has happened to all the photographs bound together by a rubber band in the top drawer of his desk, the edges of the glossy photographs frayed from handling and the colors gradually fading into white.  With all the discouragement and disillusionment expressed recently by criminal defense lawyers in the blogosphere, I regret that I didn’t allow him to photograph me smiling and mugging in front of the red lines on the back wall.  I don’t take myself quite as seriously as I did back then.  And I could have used the memento.