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Originally published March 3, 2012 at 6:18 PM | Page modified March 3, 2012 at 9:09 PM

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Before state's high court: role of race in identifying a face

In a case out of Seattle's University District, the Washington State Supreme Court is being asked to determine whether jurors should be told that eyewitnesses who identify strangers across racial lines — for example, a white man identifying a black man — are more likely to be mistaken.

Seattle Times staff reporter

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In State of Washington v. Bryan Edward Allen, two issues intersect that could hardly be of greater importance to the functioning of the criminal-justice system: the role of race, and the reliability of eyewitnesses.

The case, argued Thursday before the state Supreme Court, is also about sunglasses. We'll get to that later.

On an August evening in 2009, in Seattle's University District, Gerald Marcus Kovacs called 911 and said a stranger on the street had just threatened to kill him. Within minutes, police picked up Bryan Allen at a nearby bus stop. Officers took Kovacs to Allen and asked: Is this the guy? "Yeah, definitely, that is 100 percent him," Kovacs told police.

Two months later, Allen was convicted of felony harassment. He received a sentence of 14 months.

Kovacs is white. Allen is black.

Allen's appeal argues that when the case was tried in King County Superior Court, the judge should have instructed jurors that when someone from one race identifies a stranger from another race, the chances of a mistake go up.

An assemblage of professors and legal advocacy groups — including the Innocence Network, the Washington Association of Criminal Defense Lawyers, the American Civil Liberties Union of Washington Foundation, and the Fred T. Korematsu Center for Law and Equality — filed briefs in support, saying a wealth of research shows that people often struggle to distinguish faces outside their own racial group.

King County prosecutors argue that such a jury instruction would run counter to a principle that Washington, perhaps more than any other state, has taken pains to establish and preserve: Judges shall not invade the province of jurors by offering their take on the evidence.

A supporting brief filed by the Washington Association of Prosecuting Attorneys quotes a delegate from the state's Constitutional Convention in 1889: "If judges were to comment on facts, juries might as well be abolished for the judge would carry nine cases out of 10."

From the language of the briefs, State v. Allen pits an array of social-science research (Zma = — 9.31, p<0001, Nfs = 372, with an effect size r = — .18) against Article IV, Section 16 of the Washington Constitution ("Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law").

Elsewhere, states are divided over whether to allow such instructions. Whichever way Washington goes, the decision could affect thousands of cases across the state in years to come.

The facts of the case

Gerald Kovacs was walking on University Way Northeast, along a busy stretch better known as The Ave, when two men approached and asked if he wanted some "fire," or marijuana. Kovacs, annoyed, answered with an expletive. This was met with screaming and cursing.

Kovacs continued on, but noticed the two men were following him. He asked them why, to which one man said, "I'm going to kill you," and lifted his sweatshirt to show the butt of a gun. Kovacs ran to a minimart and called police.

Dispatch alerted patrol officers at 7:25 p.m. The man who had flashed the gun was described as wearing a black-hooded sweatshirt, a baseball cap and big sunglasses with gold frames. Three minutes later, a University of Washington police officer who had heard the call spotted two men on The Ave, a block or two from where Kovacs had been threatened. When the officer approached, one man ran away. The other was Bryan Allen.

Allen was wearing a black hoodie and a ball cap. He had big sunglasses in his pocket.

Seattle police drove Kovacs to where Allen was being held. They told Allen to put on the sunglasses. Kovacs identified Allen, without hesitation.

These factors supported Kovacs' identification: the sunglasses, Allen's clothes, and how Allen was spotted near the crime, close in time. ("Spatial and temporal proximity," is how one prosecutor put it to the Supreme Court.)

These factors worked against Kovacs' identification: When Allen was picked up, he did not have a gun, marijuana or cash; his companion — the man who ran off — did not match the description of the gunman's companion. While Kovacs told police the gunman was about 5 foot 9, 220 pounds, Allen was 6 foot 1, 280 pounds.

As for the sunglasses, they were "very much in trend," in the words of Allen's appellate attorney to the Supreme Court.

At trial, Allen's lawyer asked the judge to instruct the jury on the fallibility of eyewitness identifications that cross racial lines. One proposed instruction alluded to "psychological studies" and "laboratory studies," another to "ordinary human experience."

The judge declined to give either.

Court hears arguments

Susan Wilk, Allen's lawyer on appeal, told the Supreme Court on Thursday that a cautionary instruction on cross-racial identifications is "supported by the science" and could encourage jurors to take up an uncomfortable subject — race — that many might just as soon avoid.

In this case, she said, the sunglasses "were the sole corroboration, if you will, that the identification was the least bit reliable." The jurors, she said, had "significant problems" with the state's case. Their deliberations took two days, during which they submitted five questions to the court.

Although Kovacs expressed no doubt Allen was the gunman, "we know that confidence has little if any correlation to witness accuracy," Wilk said.

Briefs filed on Allen's behalf covered the voluminous studies showing that people often struggle to distinguish facial features in people of another race. The briefs also highlighted how so many wrongful convictions — in particular, cases unraveled by DNA evidence — have been traced back to mistaken eyewitness testimony that crossed racial lines.

But while criminal-justice experts generally accept race as a factor in evaluating an eyewitness' testimony, most jurors do not, Wilk said. A judge's instruction could help remedy that.

Arguing the other side, Deborah Dwyer, a King County prosecutor, did not challenge the science on cross-racial identifications. Instead, she took issue with having a trial judge tackle the matter rather than having an expert witness testify.

The proposed instructions would not only violate the state's constitution, Dwyer said, but invite all kinds of "practical difficulties."

"Our society now is increasingly made up of mixed-race people. Well, what race are they? To take an example we could all relate to: President Obama. He is of mixed racial heritage. If he's an eyewitness to a crime, is he presumed to be able to identify white people and black people? Or, perhaps, neither?"

Dwyer also asked: "Does race include ethnicity?" Some studies say Chinese people struggle to distinguish Japanese people, and vice versa. Would trial judges need to instruct jurors in cases like that? And if someone's race isn't entirely clear, how is a judge to figure that out?

The prosecutor contended the Allen case was ill-suited to this issue.

"This really wasn't a cross-racial identification," Dwyer said.

"What kind of identification was it?" asked Justice Steven González.

"Clothing," Dwyer said.

Because the sunglasses were so big and the ball cap pulled down, Kovacs hardly saw the man's face, she said.

It's uncertain when the court will rule.

Last week, The Seattle Times reached three jurors from Allen's trial. Although the general subject of race did come up during their deliberations — "it was hot, heated, loaded and everything else," one juror said — the specific issue of cross-racial identification did not.

One juror, Sabrina Pieterick, of Bellevue, said she would have welcomed an instruction on the subject "so that it would have been a conscious point of conversation during our deliberations."

But another juror, Kelsey Wesley, of Seattle, said she believes such an instruction "would have fueled the fire," doing more harm than good.

Ken Armstrong: 206-464-3730 or karmstrong@seattletimes.com

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