Washington speaking tour shows flaws are rampant in eyewitness testimony.

You don’t forget the face of the person who ruined your life. At least, that is what Jennifer Thompson-Cannino thought on the night that she ran through the streets of Burlington, North Carolina, clad in a blanket, screaming rape, and pleading for help. She had done everything right when an intruder put a knife to her throat on a July 1984 night. She had looked at his face. She had studied his eyes. “This much I knew. I knew I was smart. I needed to know his eyes,” Thompson-Cannino told a room full of Washington’s current and future legal community at the University of Washington School of Law in late April. She was speaking at the school as part of a statewide speaking tour, one of many tours she has been on since the incident more than 20 years ago.

Her hands extended across a podium as she explained what ran through her head that night. “Listen to his voice, Jennifer,” she had told herself. “Stay present.” And when the police asked her for a description, she knew his height, his weight, his build. She knew his eyes, his nose, his face, and the tint of his skin. She knew his shirt was blue with two white stripes. Thompson-Cannino had done everything she could to stop her parents from having to identify her dead body, but she had also done everything she could to burn his face into her mind, so that she could identify her assailant and send him to jail.

At the police station, she created a composite sketch with officers. They thought she was an excellent witness, and they were taken with all the details she had absorbed. The sketch was run in the papers and, a few days later, when the police called to ask her to look at photos, she was ready. “I was a 4.0 student. I could do this test. I could pass,” she said during her appearance in April. She had looked at the photos and picked the photo of Ronald Cotton. “Good job,” the detective said. The detectives repeated their praise when she picked number five during a lineup in an old school house shortly thereafter.

When it came time for trial, she spent two days on the stand. Humiliated and ashamed, she told the details of that hot night. She spoke of the rumble her air conditioner made. She spoke of the glow that illuminated him when she turned on the bathroom light and when he fiddled with her stereo. It took the jury only 45 minutes to reach a guilty verdict. That afternoon, she toasted justice in the District Attorney’s Office with a glass of champagne. But Thompson-Cannino’s appearance before the Washington legal community was not to tell a story of a victim’s justice.

“The worst nightmare a prosecutor could have is a false conviction,” former assistant U.S. attorney John McKay said during his introduction on the afternoon that Thompson-Cannino spoke of her rape. John McKay’s worst nightmare was 11 years of Ronald Cotton’s life.

Cotton appears to be a gentle and humble man. His voice is soothing — almost as if he were telling the room that there is good that can come from this atrocity. He stood in the same spot Thompson-Cannino stood; his arms, much longer, occupied a similar location to where hers had rested only minutes before. He spoke of August 1, 1984. He remembers what he said: “Officers, you are wrong.” He remembers them saying, “We have your ass.” He remembers shortly thereafter being in a courtroom, hearing his conviction, and singing a song to his girlfriend before he was sentenced to life in prison. He remembers smiling to keep from crying when he returned to the county jail.

He combed his hair with a fork that he had used to eat breakfast with on the day he was transferred to the state penitentiary. On the ride, he listened to Michael Bolton’s “How Am I Supposed to Live Without You” playing on the radio and tried not to fall apart. He remembers vividly the calls other inmates yelled to him as he entered the facility: “Fresh meat.”

In prison, Cotton focused his frustration at a speed bag that he punched until his knuckles bled, and then some — frustration that was only accelerated at light speed when he learned that another inmate, Bobby Pool, was telling people that he had raped Thompson-Cannino, not Cotton, that night. On an old notepad, he asked his attorneys for help.

The attorneys were able to get him a new trial — a trial that Thompson-Cannino again attended and fingered Cotton as her rapist. Moreover, she stated that Pool was most certainly not the man lying across her that night. This time, Cotton was sentenced to two life sentences, as another woman was raped that same night. Years later, after the O.J. Simpson trial brought DNA to the forefront of America’s consciousness, Cotton requested a DNA test.

As Cotton led the life of an inmate, Thompson-Cannino was married and raising triplets. She spent her days making peanut butter sandwiches, applying bandaids, and doing laundry. Each night, she tucked her children into bed and prayed that Ronald Cotton would be raped and killed in prison. It is hard to imagine what it was like when the officers came and told her that Cotton’s DNA test showed he was not the rapist. “It was like someone took my life and, like a snow globe, shook it,” she recalls. “If I could be wrong about something like this, what else was I wrong about?”

The test also showed that Pool’s bragging in the state penitentiary was true; he had been the one who put a knife to Thomspon-Cannino’s throat. He had been the one who chased her down the streets at 3:00 a.m. that morning. He had been the one who had ruined her life.

On the ride from the prison to the courthouse, the escorts took Cotton to a McDonald’s and let him eat his first fast food in 11 years. Eventually, his restraints were removed and he was given street clothing. The judge told him he was a free man. As he walked out of the courthouse surrounded by family, he thought, “Lord, where do I go from here?”

Even after Cotton’s release, when Thompson-Cannino closed her eyes, it was still Cotton’s face that she saw. She was overwhelmed with waves of guilt and shame — she had taken a large portion of a man’s life. But she still saw Cotton’s face when she remembered her rape and she feared retribution. Her minister told her she should apologize to Cotton, but she was terrified. Eventually, she worked up the courage to meet him in a small church.

As Cotton walked out of his truck with his wife, Thompson-Cannino noticed how tall he was. She realized for the first time he was much too tall to be her rapist. She was scared. When they sat down, she asked if he could ever find it in his heart to forgive her. He replied that he had forgiven her years ago. The system had failed them both, not to mention the seven other women Pool had raped that summer in 1984. Sharing this experience, the two slowly became best friends. Cotton speaks of her as part of his family. Thompson-Cannino glowed when she said, “Ronald taught me that love and hate cannot exist in the same heart.” They frequently tour the country sharing their story. They also authored a book called Picking Cotton: Our Memoir of Injustice and Redemption ($17.13; Amazon.com).

“I am just human. I made a human mistake,” Thompson-Cannino said to the crowd. “If the person’s not in there [the photo lineup] we choose the next best person.” This is not intentional. “The problem is memory.” She said the problem is also the nature of the adversarial system. Cotton does not blame his attorney, but they both say that it is time that best practices be adopted nationwide and that everyone should be demanding that post-conviction DNA testing be available to inmates.

This demand is appreciated most by one face in the crowd — the face of Katherine Riofta. She is the sister of Alex Nam Riofta, an inmate at Clallam Bay Corrections to a Center. His case is currently pending before the Washington It was like someone State Supreme Court and involves the interpretation of Washington’s post-conviction DNA statute. (Oral argument from October 23, 2007, available at www.tvw.org.) In 2006, the Washington Court of Appeals denied Riofta’s request for post-conviction DNA testing, claiming that such testing would not exonerate him and is, therefore, not guaranteed under the Washington statute. (Riofta v. State, 142 P.3d 193 (2006).) The DNA test he seeks is of a hat worn by a shooter in a 2001 assault. The court reasoned that others could have worn his hat, and their DNA would not mean Riofta was not the shooter. She awaits anxiously with her brother the ruling on the post-conviction DNA testing statute (RCW 10.73.170). But as Thompson-Cannino and Cotton say, the system is a waiting game.

The cohosts of the event in April, Integrity of Justice Project (http://integrityofjustice.org), hope to help shape the policies in Washington to conform to the best policies described by the speakers, such as double-blind testing and post- conviction DNA. Partnering with law enforcement, educational facilities, and defense attorneys, the new organization seeks to prevent the tragic tales shared in the auditorium and across the country by Thompson-Cannino and Ronald Cotton.

As published De Novo, Official Publication of the Washington State Bar Association Young Lawyers Division, June 2009.