Evidence

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2012
Mondays and Wednesdays
3:00-4:50 p.m.
Room 285B

The rape of Jennifer Thompson and the ordeal of Ronald Cotton.

 

I have transcribed here two articles discussing the mis-identification of Ronald Cotton as the man who raped Jennifer Thompson. Note that Ms. Thompson has become an activist for DNA testing in rape cases, and has allowed the reporters to use her name.

Mark Hansen, Forensic Science: Scoping out eyewitness Ids, 87 A.B.A.J. 39, April, 2001.

 

Nobody understands better than Jennifer Thompson how unreliable eyewitness evidence can be. Except maybe for Ronald Cotton.

Thompson is a North Carolina rape victim whose eyewitness identification of a suspect put the wrong man in prison for life. Twice.

Cotton is the innocent man who spent 11 years of his life in prison because of Thompson's mistake. And he might still be behind bars today if he hadn't been watching the O.J. Simpson trial on television in prison in 1995 and heard about a test for DNA.

Thompson, now the 38-year-old mother of triplets, was a 22-year-old college student in 1984 when someone broke into her apartment, put a knife to her throat and raped her.

Several days later, she went to the police station and picked Cotton's photo out of a lineup. She also picked him out of a physical lineup and identified him as her assailant at his 1985 trial.

"I was absolutely, positively, without-a-doubt certain he was the man who raped me when I got on that witness stand and testified against him," Thompson recalls now. "And nobody was going to tell me any different."

Two years later, though, Cotton won a new trial where there was testimony about another man, a fellow inmate who had reportedly told other prisoners he had committed the rape for which Cotton had been convicted.

But the man denied it on the witness stand. And Thompson testified that she had never seen the other man before in her life.

Nine years later, Cotton was watching the Simpson trial unfold on TV when he heard about a miraculous new test that could prove his innocence. So he asked to be tested.

And when the results came back, Thompson got the shock of her life. Cotton was innocent. It was his fellow inmate, the man she swore she had never seen before, who had raped her.

"I felt like my whole world had been turned upside down, like I had betrayed everybody, including myself," Thompson says.

But experts say they aren't surprised by her story. Mistaken eyewitness identification is the No. 1 cause of wrongful convictions, they say.

Cotton isn't angry. In fact, he and Thompson have since become friends. "You can't forget, but you can forgive," he says.

But he also counts his blessings every day. And thanks God for DNA. "If it weren't for that, I wouldn't be where I am today," he says.

 

 

Helen O'Neill (The Associated Press), The Power Of Faith / Eleven Years After Jennifer Thompson's Mistaken Testimony Sent Him To Jail, Ronald Cotton's Spirit Of Forgiveness Let Them Be Friends, Newsday (New York), Wednesday, November 8, 2000, PART II; Page B06.

 

BURLINGTON, N.C.

 JENNIFER THOMPSON was the perfect student, perfect daughter, perfect homecoming queen. And when her perfect world was ripped apart, the petite blonde with the dark, expressive eyes became something she could never have imagined.

 The perfect witness.

 Police had never seen a victim so composed, so determined, so sure.

 Just hours after her ordeal, after a jaded doctor swabbed her for semen samples in a hospital, she sat in a police station with Det. Mike Gauldin, combing through photos, working up a composite. 

 She picked out his eyebrows, his nose, his pencil- thin mustache.

 She picked out his photo.

 A week later, she sat across a table from six men holding numbered cards. She picked No. 5.

 "That's my rapist," she told Gauldin.

 In court, she put her right hand on the Bible and swore to tell the truth.  Then she looked directly into the expressionless face of the suspect.

 "He is the man who raped me," she said.

 She had never been so sure of anything.

 His name was Ronald Cotton and he was the same age as she. Local man, headed down the wrong road, had already been in trouble with the law. Served 18 months in prison for attempted sexual assault.

 She was white. He was black. Police knew he liked white women.

 When Thompson picked him out of the lineup, everyone was sure they had the right man. Everyone, that is, except Ronald Cotton.

 Cotton is tall and handsome, with baby-smooth skin and a warm, engaging smile. Confronted by Thompson, his normal calm failed him.

 He was petrified.

 "Why me?" he agonized silently as she told her story in court.

 "Why are you so sure it was me?" But he said nothing, betrayed no emotion.

 Cotton's actions and past hadn't helped his case. He was nervous. He got his dates mixed up. His alibis didn't check out. A piece of foam was missing from his shoe, similar to a piece found at the crime scene.

 But it wasn't circumstantial evidence that brought Ronald Cotton down. It was Jennifer Thompson.

 

 THE KNIFE AT her throat was cold, the voice menacing.

 "Shut up or I'll cut you." Even as she screamed, even as her attacker shoved her down on the bed, pinning her hands behind her, even as her head exploded with revulsion and fear, the 22-year-old college student knew exactly what to do.

 She would outsmart her rapist. She would remember everything about this night: his voice, his hair, his leering eyes.

 She would trick him into turning on a light. She would study his features for scars, tattoos, anything that would help identify him later.

 In the suffocating terror of a shattered summer night, Thompson made a vow.  She would survive. She would track down this stranger who had smashed into her life. And if she couldn't kill him, she would do the next best thing.

 She'd send him to prison for the rest of his life.

 Thompson has told the story many times, but the most powerful was the first time in court. Cotton could feel the jury sympathize.

 He sympathized himself.

 In silent terror, he watched as the system labeled him a rapist.

 I'm 22 years old, he thought, and my life is over.

 On Jan. 17, 1985, the day Cotton was sentenced to life in prison, Thompson toasted her victory with champagne.

 "It was the happiest day of my life," she said.

 

 'I SAY THE TRUTH will come to light and the Lord knows I am an innocent man. Someday, somewhere, the truth is going to come out in my case. Thank you.  Ronald Cotton."

 In prison, Cotton spent his nights writing letters to lawyers, newspapers, anyone who would listen. He spent his days pounding the punching bag. He joined the prison choir. He read the Bible. He tried to believe what his father kept telling him - that someday justice would prevail.

 One day, about a year after Cotton was convicted, another man joined him working in the prison kitchen. His name was Bobby Poole.

 He was serving consecutive life sentences for a series of brutal rapes.

 And he was bragging to other inmates that Cotton was doing some of his time.

 Cotton hated Poole. He describes how he fashioned a blade out of a piece of metal and planned to kill him. Cotton's father begged him not to. Put your faith in God, his father said. If you kill Bobby Poole, then you really do belong behind these bars.

 So Cotton threw his blade away and he put his faith in God. And when he learned he had won a second trial, his heart filled with hope.

 Another woman had been raped just an hour after Thompson: same Burlington neighborhood, same kind of attack. Police were sure it was the same man. An appeals court had ruled that evidence relating to the second victim should have been allowed in the first trial.

 At the new trial, the witnesses would get a look at Poole, who was subpoenaed by Cotton's lawyer. Finally, Cotton thought, he would be set free.

 He had forgotten the power of Jennifer Thompson.

 Back on the stand, she was as confident as ever. She looked directly at Poole and she looked directly at Cotton. Fifteen feet away, he could feel the hatred in her heart.

 Cotton is the man who raped me, she told the jury.

 Are you sure? Yes, I'm sure.

 The second victim was less convincing, but she pointed to him, too.

 Cotton hung his head. He had no words left inside him. Just a burning disbelief and a brokenhearted song. With the judge's permission he sang it, a high-pitched, wavering lament penned in his prison cell.

 "Decisions I can no longer make,

 because my future is so unknown to me,

 and that I could no longer take,

 because during the day I wonder,

 At night I hurt with fear..."

 The court fell silent as Ronald Cotton was sentenced to a second life term.

 

 THE KNOCK ON the door of her Winston- Salem home came out of the blue. The detective hadn't just dropped by casually to say hello.

 It had been 11 years.

 Standing in Thompson's kitchen, Gauldin struggled to break the news.

 "Jennifer," he said. "You were wrong. Ronald Cotton didn't rape you. It was Bobby Poole."

 For a moment nothing registered in her mind, nothing but the deep blue walls of her kitchen and the yellow chicken pictures that her children had painted. They were hanging right behind Gauldin's head. Then everything started spinning - blues and yellows, the fuzzy glint of his police badge. And those words, thundering round and round in her head: "You were WRONG..." There was new evidence, Gauldin was saying. DNA tests. New scientific proof that hadn't been available before.

 Eleven years of nightmares, of Cotton's face taunting her in the dark. Eleven years of struggling to move on, of building a life with her husband and children. Eleven years of being wrong.

 There must be some mistake.

 She could still hear his voice: "Shut up or I'll cut you." She could still see his face in her head. She could still feel the hot flush of hatred in the courtroom as he sang that sickening song.

 Ronald Cotton was the man she had fled from that terrible summer night, wrapped only in a blanket, collapsing on a neighbor's porch.

 Ronald Cotton was the man who had invaded her body, her mind, her life. Ronald Cotton was the rapist she had put away forever.

 How could she have been wrong? She was still so very sure.

 Gauldin tried to comfort her, pointing out that others also had been at fault, including two juries, two judges, detectives, himself. The whole system failed when it condemned Ronald Cotton, Gauldin said, but it was about to be set right.

 Only an extraordinary sequence of events had made that possible: Cotton's persistence in proclaiming his innocence, a law professor's curiosity, the fact that sophisticated DNA tests, which hadn't been available 11 years ago, could now be used.

 The law professor, Richard Rosen of the University of North Carolina, had taken on the case, troubled that a man had been sentenced to life based almost exclusively on eyewitness testimony.

 "In so many cases, eyewitnesses can be unreliable," Rosen said. "At that point, I had no idea how strong and compelling Thompson was. I'm not sure any jury in the world would have acquitted him in the face of her testimony." Rosen's probing led to DNA samples from Cotton and Poole. The police, by some fluke, had saved sheets and other evidence from the rape scenes. Generally, such evidence is destroyed after a case is decided.

 In the end, Gauldin told Thompson, the system worked. An innocent man would be freed.

 Ronald Cotton, Gauldin said, is a very lucky man.

 But Gauldin had no answer when Thompson turned to him, face wracked with anguish.

 "How do I give someone back 11 years?" she cried.

 

 JENNIFER THOMPSON never stops. Never stops washing and ironing and baking, never stops driving Morgan and Brittany and Blake to soccer and Scouts and piano, never stops filling her home with love.

 For two years after Gauldin's visit, she never stopped feeling ashamed.

 It was still Cotton's face that haunted her, even though science had proved that it was Poole who raped her. Over and over, she wondered: How could she have made such a terrible mistake? And what of the man whose life she had ruined? All those years, locked away from his family, locked away from his life. Now that he was free, did he hate her as much as she hated herself? Then one day, she stopped crying. She knew exactly what to do.

 Gauldin knew as soon as she called.

 "You want to meet Ronald Cotton," he said.

 "Can you help me?" she asked.

 A few weeks later, she drove 50 miles to a church in the town where she was raped. She asked her husband and the pastor to leave.

 Trembling, she opened the door.

 She had prayed for the strength to face this moment. She had prayed for the strength to face this man.

 "I'm sorry," she said. "If I spent every day for the rest of my life telling you how sorry I am, it wouldn't come close to what I feel." Ronald Cotton was calm and quiet, and Thompson thought he seemed so very tall.

 Finally, he spoke.

 "I'm not mad at you," he said softly. "I've never been mad at you. I just want you to have a good life." Tears falling, Thompson looked into his eyes and knew she would never see him in her nightmares again.

 For two hours they sat and talked while their families paced outside. She asked him about prison. He asked why she had been so sure.

 I don't know, was all she could say. You just looked like the man who raped me. But she knew that wasn't good enough. Except that both were black men, Cotton and Poole bore only a superficial resemblance.

 Thompson and Cotton talked about the pitfalls of memory, the power of faith, the miracle of DNA. They talked about the torturous journey that had brought them together. They talked about Bobby Poole.

 We were both his victims, Cotton said, and Thompson nodded in agreement.

 As dusk fell, they made their way out of the church. In the parking lot, their families weeping, Jennifer Thompson and Ronald Cotton embraced.

 They held each other for a long, long time.

 A few days after meeting Cotton, Thompson wrote to Poole in prison.

 She asked if he would meet her.

 "I faced you with courage and bravery on that July night," she wrote. " You never asked my permission. Now I ask you to face me." If Cotton could forgive her, she could forgive Poole. After all, she reasoned, something must have gone terribly wrong in his life to make him the monster he became.

 Poole never responded. He died of cancer in prison earlier this year.

 

 JENNIFER THOMPSON is curled up on her sofa in powder-blue pajamas. Her 10-year-old triplets trail in and out, hunting for hugs and kisses and bedtime snacks.

 It's the end of a typical day and the 38- year-old mom is exhausted. School, homework, dinner, a television appearance, a few hours' volunteer work with an agency that helps abused children.

 And phone calls, endless phone calls - from strangers who believe their loved ones are wrongly imprisoned, from the media asking for interviews.

 Thompson has become an outspoken opponent of the death penalty, using her newfound celebrity to talk about the unreliability of eyewitness testimony. She appears frequently on television talk shows. She is considering writing a book.

 While she hates the time away from her family, she says, "It's something I just feel I have to do." Maybe, she can prevent just one innocent person from being imprisoned or sentenced to death. Maybe, through her work with abused children, she can prevent just one child from growing up to be another Bobby Poole.

 She and Cotton talk often.

 "Ron just calls to make sure I'm doing OK," Thompson says.

 "He is an amazing human being. He has been a real good teacher for me." He has taught her about forgiveness, and healing, and faith. He has taught her not to feel like a victim anymore.

 She has helped him too, lobbying to change laws so that Cotton would be entitled to more than the $ 5,000 the state originally offered as compensation. She wrote letters to legislators. She gave endless interviews. Cotton got a settlement of nearly $ 110,000.

 Cotton's first job after his release was with the DNA company that conducted the tests that exonerated him. He now works second-shift for a company that makes insulation. He bought a house in Mebane, 62 miles east of Winston-Salem. He married a co-worker.

 They have a baby girl, Raven.

 When she is old enough, Cotton will tell Raven about the 11 years he spent in prison for a crime he didn't commit. He will tell her how he once melted M&Ms over a flame in a cell toilet bowl to make chocolate milk, how he sang love songs for other inmates when they missed their wives and girlfriends, how he wrote letter after letter professing his innocence.

 He will sing his special song. And he will tell her that things won't always happen the way she wants them to, but if she has faith they will work out in the end.

 One day Ronald Cotton will introduce his daughter to Jennifer Thompson.

 He will tell her that the woman who was once the perfect witness is now his friend.