I Remember Him from High school

If you're enjoying True Crime False Memory, please give us a rating and review on Apple Podcasts now. This will really help us get discovered and grow, and help other folks find the show. This is the story of Joe Flanders and Jason Hagerty. At least that's what we're going to call him, the names we'll use for this episode. These are two guys who went to high school together up in Northern California, and almost 30 years later, how their paths crossed on the streets of San Francisco, when Joe was the witness to a crime, and Jason was the suspect being presented to them in handcuffs by the police. We'll explain how Joe came to misidentify Jason as the culprit in this crime, and how that put Jason to a months-long odyssey, facing the real prospect of spending years in prison for a crime he didn't commit. Welcome to True Crime False Memory, a podcast designed to bring you true stories of actual cases of innocent people who are mistakenly identified and wrongly accused. These are also the stories of the victims and the witnesses who came to sincerely believe that they had identified the actual culprit, leading up to that dramatic moment in the trial when the witness points across the courtroom and testifies that they could never forget that face as long as they live, but in reality they're dead wrong. My name is Dr. Mitch Eisen, forensic psychologist to study issues related to eyewitness memory. Over my career, I've consulted on many hundreds of eyewitness cases. In each episode of this podcast, we'll explore a different case, starting with the crime, moving through the investigation onto the trial, and of course culminating the verdict. As usual, the names have been changed to protect the folks involved, so sit back, relax, and listen to this episode of True Crime False Memory. It's the late Sunday afternoon on a beautiful day in the northern California coast, and Joe Flanders and his family were on their way home from a long day of surfing. They're driving on the highway. Joe's wife is kids, and they got a text from their cousin saying that their truck had been stolen. Now this is funny, because Joe and his wife remember that they had just seen their cousin's truck down the road, and this is really crazy, and they're sitting there trying to figure out as they're driving. Where do we see the truck? Where do we see it? When all of a sudden, the truck appeared again, and there was right there in front of them. So they pulled up behind and started following it, followed it, took it down some local streets here and there. They couldn't get a good look at the guy, and they got a glimpse of him. They didn't really recognize him. He was driving pretty fast. At one point, they were stopped behind a red light, though. They were able to see the driver in the rear view mirror. Said he's wearing a big old hat. At a thin mustache kind of looks scrubby. They thought he was maybe in a 60s, they thought maybe he was a tweaker, maybe he was on meth or something, some sort of meth headed. And then event, they're determined to keep following, and they're following the truck as far as they can, but it's going fast, really fast, and it takes off at one point, they lose him. Well, they called it in, and they had seen the truck in this area, and the police were on lookout, right? So they find the truck, the police that is find the truck a few hours later. And when searching the area around the truck, they do find an older white male kind of scrubby, thin mustache, matching the description. Jason Haggerty. There he was, right by the truck. So they apprehend them. They put them in handcuffs. They called the witness over, which is, of course, Joe to come in to make an identification at an in-field show-up. Now we've talked about show-ups before in this program, and as you know, show-ups are a highly suggestive identification procedure. You have one person presented basically alone in custody police, usually in handcuffs, there for identification purposes. Now in this case, Joe knows they found the truck, and Joe knows that they've detained a suspect. The assumption is the suspect must be linked to the truck. Why else would they be presenting him to him? Indeed, it's very hard for witnesses at show-ups to understand anything but that. How can they understand that you can stop somebody just because they happen to be in the neighborhood, and just because they happen to match a general description of what the witness said the culprit looked like, put him in handcuffs, and detain them in a sort of procedure. I mean, most people just can't wrap their head around it. They assume they must have some reason to believe he's the guy. They must have some reason to believe that he is connected to the truck. Perhaps he was found in the truck. Perhaps the police pulled him over and caught him in the truck. Joe doesn't know. Joe just knows they got a guy. He matches the description. He's right there. He's by the truck. They've called him to make the ID. They bring him over. They show him Jason, and he positively identifies Jason as the culprit. He says, "Oh, yeah, I see him in the rear view mirror. I recognize them. I mean, I recognize them. That's the guy." And that's how it happens. That's how quickly it happens. Jason had the bad luck of being in the wrong place at the wrong time. Walking down that particular street right by that truck that had been stolen, and he's grabbed by the police because he happened to match that general description. The guy in there is 60s, right? Older white guy, thin mustache, kind of raggedy. And that was it. And he was off to jail. And that's when his Odyssey began. Jason didn't have a whole lot of money to pay for his defense, so he's assigned a public defender in San Francisco. Ilana Solomon. Sharp attorney. I heard from Ilana. She gave me a phone call saying, "Hey, I got a case. I'm looking for an expert wondering if you'd be interested in working with me." Because she calls me up. And she tells me about the facts. And she knows, Joe and his family had been filing the truck, saw him in the rear view mirror. That was his only exposure. It was in the rear view mirror for a few moments at a stoplight. Said he was wearing a big floppy hat. He could barely see him. But yet, he was sure. And he saw Jason there in handcuffs. That that must be the guy. That's the guy I was following. That's the guy with the truck. Well, these cases aren't that easy. I mean, anytime you've got a witness pointing at a suspect, saying, "Oh, yeah, I remember. I'm sure of that. I'm 100% sure." And that's hard to deal with. Plus, Joe's a good guy. He's professional. He's well-spoken. He's quite competent in his ID. And he's gonna make a really good witness in the courtroom. Jason's in some trouble here. And so I'm talking with Ilyana, but I'm said, "Hey, you know, I can send you some stuff on show-ups. I can work with you on how to argue it. These are tough cases, though." And then she drops the other shoe. And then she tells me something interesting that happened. Usually public defenders or any defense attorney would get an investigator to try to go out and talk with witnesses. Now, most witnesses don't want anything to do with talking with defense investigators. They've decided to use the guy. They know the defense's job is to try to foil this identification to somehow work against this. And many times witnesses, they just won't talk. But Joe would talk. He'd no problem talk with the investigator. He met with him, chatted with him, told him the story. He told him how he's driving home from surfing. Now, he got the text about the stolen truck. He'd seen it. And there it was again. He's following it. He sees the culprit. Through the mirror, quite clearly, he's sure of it. And the investigator gives him his name. And he says, "Do you know the guy you've ever seen him before?" And according to the investigator, at that moment, Joe said, "Jason Haggerty, that's the guy. I went to high school with him. I thought he was familiar. I knew he was familiar. I went to high school with that guy." Now understand, this is a big deal. This is huge because Joe had never told anyone he thought he knew who the culprit was. Joe did not recognize Jason as someone he went to high school with while he was following the truck and viewing the culprit through the rearview mirror. Joe did not tell anyone that he had recognized Jason as someone he went to high school with at the show up when he stood right in front of him and he was making this determination that he believed that's the culprit and that he should go to jail and that he recognized him as the driver of the truck but there was no mention, no mention that he went to high school with him and there was a reason he didn't mention it because he didn't recognize him, he didn't realize it, he didn't realize it until that moment when he was talking with his investigator and he heard the name and he thought back and he put two and two together and he said oh my god I know him, I went to high school with him and that's the first time he realized it. Well you think this is the end of the case right? You think well I mean if he saw him in the truck and he didn't recognize him as somebody he knew and then he goes and he does the show up and he identifies him and he still didn't recognize him as someone he knew. And now he's only coming to realize that you figure well this is just too hanky, there's no way they're proceeding to trial. The Joe wasn't back and down, despite all this noise he still believed that Jason was the culprit and he basically just felt bad that he was identifying somebody he knew from high school thinking that Jason's life had gone south and he turned to a life of crime. Now from a defense perspective this previous exposure to Jason knowing Jason from high school but not recognizing him at the show up has huge ramifications. Why? Because in any eyewitness case the key element is why is the witness picking the suspect at that moment in time? Sometimes it's such a suggestive task that it's clear that this person is the right person to be selected and they must be the culprit and indeed the show up was pretty suggested I mean show up are suggested in general they're inherently suggestive. I mean the Supreme Court recognized the show up are inherently suggestive as early as the 1960s that the one to one confrontation between the witness and the suspect is inherently suggestive. Indeed the California Peace Officers Legal Source but published by the California Department of Justice notes that show ups are inherently suggestive. Indeed there is no debate from any source whether it's the courts the police or researchers that show ups are crazy suggestive. And this one was more suggestive than most I mean not only did you have them there but he was by the truck so it was very clear that he was somehow associated with the truck at least in the mind of the witness. Jason must have been the guy from the truck otherwise why is he there? Why is he being presented? But there's another reason why he was picked. In this reason has to do with a phenomena called unconscious transference. I've talked about this concept before in the program if you listen to the episode of the Taylor and the Smartphone. Unconscious transference is the notion that we will often confuse a similar face associated with the event with the face of the perpetrator. It's unconscious because it's not on purpose and it's trans friends because I'm confusing one face for another. The idea is if I've seen someone before, if I've seen them and the face has familiarity but I cannot remember where I'd seen them before and I have and this is important, no memory for having seen them before. Even the familiarity can play tricks on us. And when I see this person identification test I said yes, they're familiar. That face is familiar. And since I don't think I've ever seen the person before, there's only one logical assumption. They must be familiar because they're the culprit. And that's where I know that face from. There's a great deal of research showing how this works and indeed, it's not that difficult to explain. It's based on the notion of source monitoring. Source monitoring is just remembering where I know information from. In these days when everything's on the internet and you hear gossip and stories you wonder "Boy, where did I hear that? Did I read it in a credible news outlet or was it some sort of gossip noise or spam on the internet?" When you see a face at the store and you go up to him and you thought you knew him from working with him and really you'd met him at a party a couple of years ago. That's a source monitoring error. You thought you know him from one place but really you know him from another. In the case of unconscious transference, the idea is that you have no memory for where you've seen the face before. In this case, Joe, when he made the show up by D, he had no memory that he had ever seen this person before except driving the truck through the rear view mirror at the stop line. He didn't realize he'd gone to high school with him. Logically, the familiarity of this face from having gone to school with him for years and known him in high school. He created a sense of familiarity at the show up. And Joe interpreted that familiarity as the belief that he must indeed be the guy. Why else would he seem familiar? Well this didn't don't Joe or the District Attorney or the police at all. No one really cared. No one seemed to care that he only got a glimpse of this guy through the rear view mirror. No one seemed to care that he saw this guy with big floppy hat but then he thought the guy had dark hair but really Jason has this grey hair. And no one seemed to care that he'd known this guy from high school and made the identification without any realization that he knew him from high school. And we're not bothered by this in the least bit. And they move forward with the prosecution. And you wondered, really is this actually happening? In San Francisco which we all consider to be such a liberal place, I mean the District Attorney in San Francisco now is a former public defender, I mean we think of this place as representing due process, representing the rights of the accused. If any place was forward thinking enough to be in touch with the research and to not prosecute cases like this you'd figure it must be there, well you're wrong. This stuff's hard. It's hard for anybody. It's hard for District Attorney's. District Attorney's don't generally study issues of eyewitness memory because they believe witnesses. They're in the business of believing witnesses is their job. District Attorney's actually see themselves, they fashion themselves is the defender of the victims. The one who will stand up in court and defend the victim, they don't spend much time thinking about issues of eyewitness memory, thinking about the problems in eyewitness memory. Indeed folks like me who do research in this area and who end up appearing in court to describe this research to the jury are often seen as the other side is them, those people who would question the witnesses, those people who get in the way of justice. So they're moving forward, they're going to court and things were not backing off and I was kind of surprised. The trial's coming, I had a hard time getting to San Francisco, I actually, I was needed in the morning and I was in a class, I was taking a seminar that went until 8 at night, I didn't get to the airport until 10 30, I don't even get to the Bay area until midnight, I get to a hotel room around 1 o'clock in the morning and I'm supposed to appear in the morning. It wasn't exactly smooth but it was a big deal, I had to get there, this is a big deal. Liana's got what she believes and I think she's right is an innocent guy, there's no reason to believe Jason was involved in this. And basically, he's on trial for his freedom. And the whole thing seems kind of felini-esque to me, how could this be happening? Well, more Kafka-esque, a bit tragic, really. Because how could this guy be being prosecuted with everyone knowing this, with everyone knowing? This issue that he knew him from high school, but didn't recognize him at the show-up as someone he knew from high school. Indeed, if you believe the prosecution's case, he also didn't recognize him when he viewed the culprit in the truck as someone he'd known from high school. So everything's going pretty well. I get to the courthouse. It's a very nice judge. Very nice DA. It's a nice courtroom. Everybody seems to be getting along well. I'm able to teach this stuff pretty much unfettered. You know, everybody allows me to explain this to the jury as well as I can. And we do a nice professional job on direct. I personally feel that jurors don't want to be told what to do. They don't want some expert coming in and telling them how they should rule. So I believe a little bit in the soft sell, if you will. I just described the state of the science. And I let the lawyers argue it out on their own. And indeed that's how direct goes. I teach the state of the science well. I'm able to teach that he only had a brief exposure. I'm able to teach about the suggestions of show-ups. I'm able to teach about how he remembered the guy having this big floppy hat, and he could barely see his hair or face, but yet he seemed certain about these details. And most of all, I'm able to teach pretty clearly about the concept of unconscious transference. Cross examination wasn't a big deal. It was pretty straight forward. But the district attorney was trying to make the argument that somehow Jason's being someone he went to high school with would help the witness. That somehow it was better because he'd seen him before. It's really conflating things. It's conflating the notion that somehow if I know someone well, if I've seen them before, it should be easier to make an identification with this helping adhere. But actually it's the opposite, right? It is the opposite. His familiarity from high school should be driving the problem. If he had recognized him, if he saw him at the show-up, it said, "Yes, I know him from high school, and he's the culprit." And I recognized him when I was in the car, and I thought he was the guy, "Well, that's different." In that case, yeah. Sure. Then the previous familiarity would be helpful to the witness, but he didn't. He didn't recognize him from high school. He just interpreted the familiarity at the show-up as him being the culprit that he'd seen in the car. And at the very end of the direct examination, at the very end, the DA started doing that. He started conflating these two things, and I popped back at him. And said, "No, I don't think you understand what I'm trying to say. I'm explaining that the previous familiarity is what's causing the problems here. That if he had recognized him at the scene as being the guy that would be different, if he'd recognized him as being the guy with the high school with that would be something, but he didn't." The previous familiarity is working against this. Well, I realized at that moment I was a bit forward. I was kind of arguing the case, if you will. I was kind of putting down the district attorney, and I don't think that sort of stuff plays that well in court. It's not my place. It's not my place to be arguing the case. It's not my place to be an advocate. Again, I don't think Jews want to be told what to do. Certainly not by the expert. I'm here to explain the science. In any event, yeah, I was a little strident, but yeah, that's how it goes. So I get out of the case and get back in a flight, get back to Los Angeles. Next day, I called the attorney. She says, "Hey, they're still deliberating." And I was surprised because people were listening. They were focused. They were into this. And I was surprised this is taking them more than a day. And the next day, they come back hung. What does that mean? That means that they all couldn't agree. Although they were hung in favor of not guilty, there were still some folks in the jury who really, who really thought he was good for it. No, honestly, not some time to talk with the jury. And many of the jurors felt that what I was offering was very helpful. Many of the jurors liked it, but some caught that moment. They caught that moment that I caught myself. And I realized I caught myself there being a little bit forward. And they caught that moment at the very end and said, "Yeah, Eisen, he was informative. He was good, but he was a bit smarmy, I believe, was the word." And in retrospect, I think they were right. I mean, I did have that moment. I did bite back when he was trying to make this argument. I just felt the argument was so disingenuous. I just felt that the need to kind of strike back. And I'm not sure it helped that much. In any event, turns out the prosecution saw the writing on the wall. When there's a hung jury, they have the opportunity. They can go back and try it again. They've heard my testimony. They've heard the defense. They can usually do a better job the second time. But I think they got it. They got that he wasn't good for it. And at least they got that there were some serious problems in this case. There was just as much reason to believe that he wasn't good for it as he was good for it, or at least it was almost impossible to prove beyond a reasonable doubt considering the defense. And they dropped the charges. Jason was able to go on his way, go back to his life after spending some time in jail, facing some pretty serious charges. But Justice was done. He got to love that. Terry Solomon did a great job. She obviously killed it. She was able to argue the case well. She was able to free this guy. That's a good day in the world of true crime and false memory. So you can be the first to get our next episode. Also, let us know what you think about the show by leaving a rating or review. And if you know somebody who enjoys true crime stories or just wants to know more about the science, how memory works, and how eyewitness memory works. Or maybe somebody who's been accused of a crime or works in the system, tell them about the show. For more information about the podcast, go to truecrimefalsememory.com and you can find me, Dr. Mitchell Eisen, the Department of Psychology at California State University at Los Andals. You can check out our website of our lab and see about the research we do. Join us next time on true crime, false memory.