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Jailing the Wrong Man: Mug Shot Searches Persist in New York, Despite Serious Risks

Derrick Penn, 37, said being jailed in 2014 on charges of committing three armed robberies was “like being in hell.” He missed his daughter’s kindergarten graduation, was slashed on the face while on Rikers Island and was told he might go to prison for up to 50 years.

Mr. Penn, who works at a Brooklyn hospital manning an entrance gate, had been identified as the culprit during a mug shot search in which more than 300 photographs were shown to one of the victims. Later, three victims, including the one who chose him from among the photos, identified him in a live lineup, Mr. Penn’s lawyers said.

He insisted he was innocent, and location data indicated that his cellphone was miles away from the robbery locations, according to his lawyers, Scott Hechinger and Dara Hebert of Brooklyn Defender Services.

Prosecutors dropped the case against Mr. Penn and sealed it. “The judge never gave me an apology — they just said, ‘Stay out of trouble,’” Mr. Penn recalled. He had been arrested numerous times, mainly for marijuana and driving-related offenses, but his lawyers said he had no felony record. “How’d they get it so wrong?” Mr. Penn said.

Eyewitness identification experts said mug shot searches may be a reasonable approach in some situations.

”If someone was abducted and spent two days with the kidnapper, who was unmasked, show them pictures,” said Gary Wells, a psychologist at Iowa State University and a pioneer in the field of eyewitness identification. But for general use, he said, “I think it is a huge problem.”

Far from being phased out, mug shot searches are being taught to a new generation of New York detectives. When Wendelyn Dua, a Bronx police officer, joined the 52nd Precinct’s detective squad in 2017, she quickly learned that the searches were an important method for conducting eyewitness identifications.

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