48

On Thursday night, I went into my dad’s study and riffled through a corner filing cabinet. In the third drawer down, I found the VHS tapes my father’s law partner had used to record the trial of State v. Marshall, which had been broadcast by Court TV. During law school, I had promised myself many times that I would watch the entire thing from gavel to gavel but had never mustered the emotional energy to do so.

I hooked up an old VCR in the family room, and it took me about twenty minutes to find the section I wanted. Judge Snowden’s rulings had been dissected on appeal and criticized endlessly by Mace James but always upheld by the appellate judges. However, there had been some strong dissents about whether Caleb Tate should have been allowed to call an expert witness to testify about how the cops had supposedly manipulated my father into a faulty identification of Marshall.

From the beginning, the police had suspected Antoine Marshall. He had been previously arrested for breaking and entering to feed his meth habit. According to Caleb Tate, the cops had planted characteristics of Antoine Marshall in my father’s mind with their suggestive questions: Did the suspect have dreadlocks? Was he African American? Did he appear to be thin and athletic?

When they showed a lineup to my dad, Marshall was the one person who displayed all of the characteristics seeded in my dad’s brain.

As she did with the expert on cross-racial identification, Judge Snowden ruled that this testimony about the so-called faulty lineup was inadmissible. However, she did let Tate proffer the testimony outside the presence of the jury to establish a record for appeal. I found the start of the proffered testimony and watched it with an uneasy feeling in the pit of my stomach.

The expert’s name was Dr. Natalie Rutherford, a diminutive and energetic professor of psychology at the University of Michigan who had published extensively on the issue of creating false memories. She had qualified as an expert in numerous other cases. In one notable trial, she had testified about a psychiatrist who had planted false memories in a patient under hypnosis. That patient came to believe that her priest had repeatedly raped her when she was a young child. But during the investigation for the criminal case, it was discovered that the patient was a virgin. The priest sued the psychiatrist, and Dr. Rutherford testified on behalf of the priest. The jury returned a verdict of $2.5 million.

Together with her students, Dr. Rutherford had conducted more than one hundred experiments involving over five thousand individuals in an attempt to document how misinformation creates memory distortion. One of her favorite tricks was to superimpose a picture of someone as a child, together with a parent, onto a photo of a place the person had never been. After viewing the image, that person would be asked to describe the experience pictured. Most subjects provided vivid details, remembering nuances about events that had never occurred.

Rutherford testified that the same phenomenon occurred when individuals tried to recall more-recent events. Our memories, she said, are constructed by combining actual memories with the content of suggestions received from others. Inaccurate memories, formed in part based on inaccurate suggestions from others, would be as compelling and real to a person as accurate memories.

Rutherford also testified about how we synthesize our memories by recalling certain details accurately and then filling in the blanks with details obtained from others. Once these new details become part of the event, they are seared into our memories just as certainly as the details we recalled independently.

On a theoretical level, even I had to admit that her testimony made sense. I thought about the case of the DC sniper attacks, when a media report had stated that the suspects might have been driving a white van. Immediately afterward, several witnesses at the scenes of several different shootings reported seeing a white van fleeing right after the shootings. When the suspects were eventually apprehended, they were driving a blue sedan.

Dr. Rutherford’s example was even more memorable. People who had visited Disney World were shown a fake picture with text that described how they shook hands with Bugs Bunny. When they were asked what they remembered about that encounter, most of the subjects remembered hugging Bugs Bunny, and a few remembered touching his ears or tail. Others specifically recalled that Bugs Bunny was holding a carrot at the time.

Dr. Rutherford smiled, trying hard to win over a skeptical Judge Snowden. “Bugs Bunny is a Warner Brothers cartoon character,” she said. “He would never be allowed to set foot in Disney World.”

Moving to the case at hand, Rutherford testified that she had carefully reviewed the original lineup shown to my father and the questions that had been asked during the preceding police interview. It was her opinion, based on twenty-six years of studying the phenomenon of creating false memories, that the police had done so with my father. Antoine Marshall was no more likely to have committed the crime than any other person within driving distance of our house that night.

Judge Snowden listened carefully and then affirmed her earlier ruling that the testimony was inadmissible. “It seems to me that you simply want to use Dr. Rutherford to take the place of the trier of fact and tell the jury why they should or should not put weight on Mr. Brock’s eyewitness account,” Judge Snowden said. “It’s a clever attempt, Mr. Tate, but the court is not going to allow it. It’s no different than your proffered testimony on cross-racial identification.”

The jury never heard Dr. Rutherford, and at the time I was glad. But now, with the new information about the success my father had enjoyed in Judge Snowden’s courtroom, the Rutherford testimony bothered me. Could she be right? Had my father been unwittingly set up by the cops? And if so, could that mean my mother’s killer was still at large?

The last twelve years of my life had been defined by an absolute certainty that Antoine Marshall had killed my mom and deserved to die for it. So much of my energy and time had been spent trying to make him pay for what he had done. I couldn’t allow myself to doubt that now.

My father had to be right. Even if he did have uncanny success in front of Judge Snowden. Even if, God forbid, he was blackmailing her somehow, there was no motive for him to try to put an innocent man to death. My father couldn’t be wrong about this.

Could he?