Q: How did you happen to take up the Cotton case?

ROSEN: The case actually came to me accidentally. I had read the opinion, was curious about it, and then I got a call saying would you look into the case. And most of the time when I get a call like that I say, "Sorry I just can't do it. I'm teaching. I've got other cases going, there's nothing I can do. Let me refer you to somebody else." But this was a time in which I could look into it.

I agreed to look into it and see if there was anything there--I will tell you fully expecting not to find anything. Most of the time when you take on a case like this, even if it looks at the beginning like there might be some questions about the case then you find out that there is other evidence of guilt mad other things lying around that show the person really did it--that's not what we found in this case. The deeper we got into it, the more questions we had about the case, the more questions we had about the fairness of the trial and the more questions we had about whether Ronald actually committed these crimes.

Q: Can you explain some of the things involved in the false identification of Cotton?

ROSEN: Somebody has physically attacked you, you want to find them, you want to identify them so that they can be captured, locked up and put away. And so there certainly is an internal pressure to make the victim want to find the person who did the crime. Now this doesn't mean that the pressure is for a false identification, but it certainly is an impetus for somebody to want to find the person who did the crime.

Once you have even a tentative identification, once the victim sees somebody who they think might be the person, then you quite often have a process where the identification gets more and more positive as time goes on, so you get a victim who looks at a photograph and says that might be the person and then several months later they're sitting in a court room and says that is the person, "I'll never forget him, I knew it the minute I saw his picture." It doesn't have to be a lie. It doesn't have to be perjury. These are internal psychological process that happen over and over again.

Q: And then the police investigators get caught up in this?

ROSEN: Once you have even a tentative identification from a victim and, certainly, if you have a more positive identification by a victim, then the police view their jobs not only as going out and investigating in a general sense, but as building a case against the person the victim identified, the suspect, the defendant is how they will know him from now on. And so they see their job as finding evidence that will help convict this person in court.

It's not dishonest, it's not necessarily bad, but it is what happens and it leads sometimes to mistakes because the police begin to ignore other evidence that other people might have committed the crime and begin to magnify evidence that tends to show the suspect may have been involved, and tend to give him more importance really than it's worth. So they'll dismiss some things that would implicate somebody else, and magnify items of evidence that would show that the defendant committed the crime .

And by the way, I think that's what happened. They dismissed all the Bobby Poole evidence, they just ignored confessions, they ignore all these similar crimes and they find a little piece from the shoe.

And this is something that happens whenever you're putting together a case as a lawyer, as a criminal defense lawyer, is that you begin to focus as soon as you have a theory, you begin to focus on evidence that will help you once you walk in the courtroom.

So in this case you have the police looking for evidence that would support the victim's theory of who committed the crime, that is Ronald Cotton. And we know that there was foam found at the scene from an athletic shoe and so they find an athletic shoe in Ronald Cotton's room and it's torn up. And so it could have lost foam, we don't know. Well, even though there is no match between the foam found at the scene and the foam from Ronald Cotton's shoe, even though we don't know it came from that shoe, the police look at it as another link in the evidentiary chain against Ronald Cotton and it makes sense to me that they would look at it as a significant piece of evidence even though if they had not found the shoe, it would not have meant that much to them, it would not have shown to them that Ronald Cotton didn't commit the crime, but it was one other thing to place next to Jennifer Thompson's identification to say Ronald Cotton is the man who did this.

Q: What about the burden on a defendant like Cotton to present a good impression, be empathetic?

ROSEN: Well, everybody knows that jurors are looking at the people in the courtroom and is somehow trying to make judgments by what they see of the defendant--the defendant's family, the victim, the victim's family even when it's not supposed to be admissible evidence, it's reality. It's human beings judging other human beings.

And so jurors will say things like,"Gee, he didn't seem like he was paying attention or he seemed really angry or he was glaring at the witnesses," and base their decision somewhat on the defendant's composure. It's why lawyers spend a lot of time talking with their clients before trial saying, "This is what I want you to do during trial, this is what I want you to read, this is what I want you to look, this is what I want you to say."

I had a colleague who used to have a way with his clients where the jurors would feel that even though one was white, one was black, that they were related for 20 years and it was very effective because the jurors could feel that affection between the two and that's what you like, but in a sense it's very unfair because it puts the defendant on trial not only for what he did but for his acting ability and that's very unfair. A lot of defendants are overwhelmed, a lot of them are not very articulate, a lot of them are confused, and you can be innocent and scared and angry and project anger at jurors that they will interpret as hostility, or evidence of guilt.

You can project passivity in the courtroom where you feel that the world is crashing down around you and you can't do anything and jurors can say, "Aha! If he was really innocent he would care more." Now, I will have to say that a lot of times jurors will say these things. I'm not sure how much a part these things play in the jurors' decision, how much of it is further rationalization for a decision made on other grounds. That's something we just don't know.

Q: Analyze the power of a victim's eyewitness testimony...

ROSEN: I don't know of any more powerful evidence, and I'm talking not only legally but emotionally than a victim of a violent crime sitting up in the witness stand, swearing under oath that the defendant sitting at the table next to the lawyer is the person who committed the crime.

Even when it should not have great value, it is tremendously powerful evidence and if the victim is somebody that the jury identifies with, if the victim is somebody that the jury believes is trying to tell the truth, then it is incredibly hard evidence to overcome, no matter what else you have. Because the jurors then say, "I look at that poor person, I look at that person who's been hurt so much, I'm going to have to say I don't believe them to find the defendant not guilty." That's a hard thing to do to somebody you sympathize with, somebody you empathize with, somebody you know has been hurt, that's a very hard thing to say and so it is, probably, in my mind, at least the most powerful evidence you can put in front of a jury even if it is not the most convincing evidence to those of us looking from the outside.

Q: What about racism--was it helping to propel this case? Was it a factor in any way?

ROSEN: There are elements in this case that would make it seem like the archetypal case of injustice in the South. You've got white victims, women, you have an African American male who is accused of brutally raping them, who has a criminal record. You have predominantly white juries convicting him. You have white judges sentencing him to prison for the rest of his life. All those elements are there...

It will be easy with these facts to assume that what you have here is a product of pure racism, that the police set out to railroad this man. I didn't find that in this case. It seems, from what I know and what we were able to find out, that the police had an identification of a black man who committed the crime, had some reason to put Ronald Cotton's picture in a photo lineup, he was picked out and then they went to see if they could find more evidence against him and believed, in fact, he had done it. And we know now is that it was a black man who did it, but they picked out the wrong one.

Q: What psychological factors are at work in making an identification? Does an eyewitness often retract the initial identification...

ROSEN: What happens quite often is a witness will make a tentative identification, they'll look at a photograph and they'll say, "I think that's the man" or that could be their man or he looks like the man and they then will, by the time they get to the courtroom, even without any improper prompting make a positive identification, walk into the courtroom and say that's definitely the man.

There is a psychological need to be sure and what the psychologists have found through studies and through looking at identifications is that there is a process of confirmation that goes on so that a tentative identification becomes a definite identification.

The other thing they have found is that the degree of certainty that the witness possesses has absolutely no correlation to the accuracy of the identification. So jurors sit and they listen to a person saying, "I am sure that is the man who did that." They are impressed by the fact that the witness says, "I am sure that it's him, I will never forget that," that is the most important thing to them. But, in fact, their reliance upon the degree of certainty by the witness is completely misplaced because what we know is that the degree of certainty has no correlation with the degree of correctness.

Once somebody makes an identification ... then they very rarely go back on that. In fact, what we know is they become more certain over time that they were, in fact, correct the first time.

Q: What about cross-racial identifications? You say these are more likely to be incorrect?

ROSEN: What we know is that identifications tend to be more accurate when they're made within a racial group. Whites tend to identify whites with more accuracy, blacks tend to identify blacks with more accuracy. We are able to distinguish the features of those whom we're most familiar with. Most whites spent most of their time with other white people, most blacks spend most of their time with other black people distinguishing between people of their own race. And study after study shows that there is a much higher chance of a misidentification when you have somebody trying to make the identification across racial lines.

Q: Explain how the victim Jennifer Thompson could see the real rapist Bobby Poole in the courtroom several years later and not recognize he was the one?

ROSEN: Jennifer Thompson had for years said that Ronald Cotton was the man who raped her. She had taken the witness stand, put her hand on the Bible and swore that she was certain that Ronald Cotton was the man who raped her. By the time she saw Bobby Poole, she was not about to change that. She had staked herself out, she had sworn that it was Ronald Cotton, she was not about to turn around and say, "Oops! I'm sorry, I forgot, that was a mistake. It's that man over there, sorry Ronald, that's not you." That doesn't happen. Because whatever image she had in her mind of the rapist, was now Ronald Cotton and people don't change that images just because it turns out it's the wrong image.

Q: What can happen when the police focus on just one suspect and go about building their case against him?

ROSEN: When the police focus on [a] suspect, when they turn their efforts to gathering evidence against that suspect instead of trying to find out who did the crime, there are costs. And the costs go beyond the possible wrongful incarceration of one person. When the police have finite resources, they have to decide how they're going to spend their time and they're looking to find evidence against one person, then they're not out looking for somebody else who might have committed the crime.

In this case, we have the police deciding Ronald Cotton committed the crime and they spend their time going to Ronald's house, interviewing his family. Well, we know that Bobby is out there and he's raping and terrorizing women all over Burlington, North Carolina. During Ronald's trial he's out there doing that. And these remarkably similar crimes keep happening. And sure the police are trying to find out who committed those crimes, but the resources that are being used in the prosecution of Ronald Cotton are not being used for that. They think they've got the right man for that. So nobody is linking these crimes together. Nobody shows these two women who testified against Ronald Cotton, they don't show them Bobby Poole's picture. Now I don't think that was intentional, but it's a question of a cost that happens when you too quickly or erroneously focus on the wrong suspect.

...They're looking at anything that would help the prosecutor prove the person is guilty. So they find an athletic shoe in Ron Cotton's house and it's an old athletic shoe and it's kind of ripped up and like every athletic shoe make in the last decade has pieces of foam in it. And so they say, "Well, look we have this foam from the scene, it could have come from this athletic shoe, there's evidence to help support our case." I can see why they're excited.

But when you step back all we know is that Ronald Cotton, like thousands of other people in Alemance's County, North Carolina, has an old athletic shoe. It doesn't mean much on its own.

Q: Eyewitness testimony ... can it be challenged in the courtroom? Why should it be challenged? How often is this actually done?

ROSEN: Well, if the eyewitness had a chance to see the suspect, if the eyewitness is otherwise believable, it's very hard to challenge. I mean, traditionally, what lawyers do is they try to cross-examine the person, show they didn't have an opportunity to see, show that they were upset or surprised, but it's very hard because the jury tends to believe the person on the stand who said that is the man who did this to me. And so there's not much you can do beyond cross-examination.

One of the few things that is allowed under the law is, in some cases, you can put up an expert, a psychologist or somebody familiar with the literature who can testify about the problems with eyewitness identifications. Those who have studied eyewitness identifications know that there are many problems with it. That there are many myths about eyewitness identifications, that everybody including jurors believe. For instance that the more certain you are about an identification, the more likely you are to be correct, well, that's wrong. Things like the difficulties with cross-racial identifications, between black and white and white and black. Well, there are special problems with that and so there are people who could inform the jury about this, who can cure the jurors' misperceptions. That is something that lawyers should try to do in every case which is dependent upon eyewitness identification and which there are some of these factors.

Experts know, psychologist know that when a person starts off thinking maybe that somebody did the crime, they then convince themselves and become more certain. They know, the experts, that this doesn't mean that the identification is necessarily correct or any more correct. Well, the jury needs to know this because people believe, jurors believe that if somebody says, "I'm sure that's the person who did the crime," that they're likely the person who did that. And so the defense attorneys want to try to put up experts who would inform the jurors of this information.

Now the problem is that in most places including North Carolina, it is entirely within the discretion of the trial judge whether to allow that expert evidence, at least historically that's the way it's been. Well, that means that in most cases the trial judges do not allow the defense to put up this expert evidence. And the jury never knows about it.

Q: What was it like when the DNA evidence came in, clearing Cotton of this crime?

ROSEN: We all have moments that are special, that make everything else worthwhile and certainly the day Ron was released was one of those. I mean, it doesn't happen very often when everything falls together and everything good happens.

I don't think I'll every forget his family and being able to tell them that one, we were able to prove Ron was innocent and two, is that he was getting out of prison. The courtroom almost was anticlimactic after that. I mean Ronald knew he was getting out--it was wonderful. I was sitting there and you look at things flying around you and you think I may never do anything else again in life, I may never have done anything up to this point, but this, itself, is of value.

Q: Had you been optimistic that the DNA evidence would be the answer?

ROSEN: I've been in this business a long time and I certainly don't expect things to turn out right most of the time, been around and lived too long for that. So I didn't expect to hear that the evidence would show that Ronald was involved in the crimes, but I frankly expected to hear that they couldn't find anything. And so after the months of testing when they finally called up and said yes, they were able to do the test and yes, they were able to exclude Ronald as the person who committed one of the rapes was a wonderful feeling, I mean it showed that what we had felt all along was correct.

We didn't know at that point whether the evidence would show Bobby Poole did it or not in fact we were not going to go any further because as far as we were concerned the case showed Ronald was innocent and that was it. But Rob Johnson wanted to go ahead and test for Bobby Poole and we certainly weren't going to stand in the way. Again if somebody had asked me to put money down on whether Bobby Poole was ... whether his DNA was going to show up on the test, I wouldn't have put it down, even though I believed he committed the crime things don't work out that neatly, not in life and not in law. And so I was astounded, I probably screamed when I got the call from Meghan at the Roche Labs telling me that in fact the DNA matched Bobby Poole's and then of course we knew it was all in a row.

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