10/14/2010 12:51 pm ET | Updated May 25, 2011

A Near Miss

Yesterday, authorities released Lynwood police officer Brian Dorian from custody and said they will resume their search today for the so-called "honeybee gunman" after determining he did not kill a man and wound two others in a shooting spree along the Illinois-Indiana border. (see here for the original story). After the shootings, police released a sketch of the suspect and described him as a white heavyset man dressed in a green windbreaker and a baseball cap, driving a light-colored late-90s model Chevy Cheyenne pick-up truck.

Mr. Dorian had been arrested on two bases. First, Dorian drove a truck similar to that described. He had been stopped driving it, but after flashing his badge, he was released without his truck being searched. The traffic stop ended up being crucial for prosecutors when they decided to charge Dorian with one of the shootings -- the fatal attack on Rolando Alonso, 45, a construction worker who was randomly gunned down while rehabbing a home, and Alonso's coworker Josh Garza, 19, who was shot above his right eye and survived, although the bullet remains lodged in the back of his brain and he is unable to communicate except with hand gestures. A third construction worker, also 19, escaped unharmed and identified Dorian after being shown an eight year old driver's license photograph of the officer. The same construction worker later also identified Mr. Dorian in a line-up.

However, the police and prosecution were able to determine forensically that Officer Dorian had been in his home, on his computer -- just as he had told them -- at the time of one of the shootings. So they let him go. With that, you might say the system worked. They arrested the wrong guy, figured it out and let him go within a week or so.

But here is the thing: Dorian was identified by an eyewitness. There was circumstantial evidence -- in the form of his possession of a weapon even though it wasn't the weapon -- and he was driving a truck that matched the description close in time and place to some of the shootings. Believe me, this would be enough to get him convicted in most courts. A horrific story, and an eyewitness pointing the finger at him in court, would do it.

According to the Innocence Project, eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75 percent of convictions overturned through DNA testing. While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated. Most cases, though, like this one, do not involve DNA, and so "proving" innocence is problematic. The wrongfully convicted have spent years, sometimes on death row as a result, and of course we haven't caught all the mistakes.

So why did the prosecution figure out and rectify this particular mistake so quickly? Well, I would like to believe that it was because this is the thorough kind of investigation they would do for anyone, not just a police officer, and not just a white police officer. I would like to believe that the police and prosecution understand that eyewitness identification of a stranger is rife with the potential for error, that the process of interviewing can affect how a witness recalls things, that the process effect of first a photo identification and then seeing the same person again in a line-up can cause the most well-meaning of witnesses to feel assured they did it "right" the first time, and compound a mistake. I would like to believe that, but I cannot. There are just too many cases where the suspect isn't someone with whom the police, prosecution or public identify. There are too many cases where suspects do get convicted on the basis of faulty eyewitness testimony. (For a list, go to see also the National Institute of Justice Report at

This was a near miss for Mr. Dorian, for the victims, and for the system. How many more faulty identifications are there that we never catch? How many mis-identified suspects are there who are wrongfully convicted, lie rotting in prison, or are led to their deaths?

Brian Dorian was freed and even apologized to by the prosecution because -- at least in part -- he was one of them, a law enforcement officer, and it didn't make sense to the prosecution that he would do this, so they dug a little deeper. I certainly hope that the lesson here -- that a rush to judgment is fraught with peril, that eyewitness identification is often unreliable -- is taken to heart by law enforcement -- for everyone, not just one of their own.