Oh Say Can You See

When his new car stalled one night near a mailbox in Queens, N.Y., William Schrager, 30, idled the engine for a while and then started driving slowly. Seeing the suspicious-seeming car with its short, dark-haired driver, two policemen in a cruising patrol car stopped him. A man of his description was being sought in connection with a series of sexual assaults. Schrager showed some identification, but he had no papers to prove his claim that he was an assistant district attorney. The cops decided to take him in.

All that night and into the early morning hours, Schrager was put in station-house lineups; usually the other men were all policemen who were taller and heavier than he. To his astonishment, two women identified him after they were told to "see if you can pick out the right one." The nightmare grew worse when a Long Island girl was brought to his arraignment and also identified him as the man who had molested her. Next a Brooklyn girl picked him out of another lineup.

It made a lively story for the New York press, for Schrager was, as he claimed, a newly appointed assistant district attorney of Queens County. Less attention had been paid to the earlier arrest of John Priolo, 45; he was, after all, only a Sanitation Department chauffeur. Like Schrager, he is 5 ft. 4 in. tall with receding dark hair; also like Schrager, he had been identified by several young victims of sexual attacks. Then Steve Hecht, 29, was arrested shortly after allegedly stabbing a 17-year-old girl in the hand. A postman who is also 5 ft. 4 in. with receding dark hair (though 40 lbs. heavier than either Schrager or Priolo), he soon confessed to some of the crimes with which the other two had been charged.

Embarrassed police spoke with amazement of "dead ringers," "twins" and "doubles." In fact, however, the mix-up was merely a reminder of how frequently unreliable police lineups are for the purpose of identification. Only four months before, a Queens teen-ager was misidentified in another rape case. Leonard Gordon, Schrager's defense attorney, spent 20 years as a policeman. He notes that "police can often put pressure on a witness to clear up their caseload." They can press for a quick identification, fearing that the longer a witness mulls, the more likely he is to have doubts. Often others in the lineup look so little like the suspect that the witnesses see no one else who fits the general description they have already supplied. Finally, human nature tends to turn a tentative identification into an absolute certainty by trial time. As Schrager himself said of the girls who picked him out: "They were so intelligent and so convincing that they almost made me believe I did it."

In 1967, Earl Warren's Supreme Court expressed its wariness of lineups by holding that an indicted suspect was entitled to have his lawyer present to prevent at least the obvious inequities. But the Burger Court last year cut into that right by refusing to apply it before the suspect has been indicted. Thus police now often delay formal charges until after the lineup.

Last week, as the legal machinery was apparently moving to exonerate both Schrager and Priolo, a New York judge revealed that for nearly a year he had been using a neat double-check system on eyewitnesses. In ten cases where identifications constituted virtually the only evidence, Judge Benjamin Altman permitted defense attorneys to seat a look-alike beside the defendant in court. In only two cases did the previous identification hold up. "Asking for a fair and accurate system of identification is often connected with some kind of bleeding-heart thing," says Robert Kasanof of New York's Legal Aid Society. "But if the identification is mistaken, that means the real criminal is still loose. I would think the police would care. I would think the people would care." Adds Schrager, who will eventually get back to his job of prosecuting: "I've learned something about eyewitness identifications."

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