Interviews with multiple jurors in the Frankie Washington trial - all of whom were unaware that the case had been tossed out - said they relied mostly on eyewitness testimony in determining guilt.
The assailant in the 3 a.m. crime wore a bandana and winter hat that concealed all but his eyes, testimony showed. But at the trial, the victims testified with certainty that it was Washington who was in their home five years before. It was persuasive, according to the jury foreman and two others whose memories were clear about the deliberations.
Records show that police did not place Washington in a photo lineup or live lineup to be identified by the victims.
Instead, after he was stopped in the neighborhood about a half-hour after the crime, the victims were put in a police car and taken to where Washington was detained on a sidewalk. It was after 4 a.m.
From the back of a cruiser, the husband and wife looked at Washington, who was not wearing a hat or bandana and stood about 20 feet away. They said he was their attacker.
The state Court of Appeals, in throwing out the case, said, "We are troubled by the Durham Police Department's use of a highly suggestive show-up procedure to identify defendant as the perpetrator of this crime."
In an interview, prosecutor Tracey Cline said she was not troubled, then or now. "Frankie Washington has very smooth skin around his eyes, extremely, very distinctive eyes," she said. "It was clearly a legal show-up."
State lawmakers have been concerned about identification procedures by police.
In 2007, legislators passed a law to require that an independent party conduct the lineup procedure, and that at least five other people are used in a live or photo lineup. Research has shown flaws in IDs by victims in crimes. The purpose is to "help solve crime, convict the guilty, and exonerate the innocent ... by improving procedures for eyewitness identification of suspects," the law states.
A "show-up" lineup, like that used in the Washington case, was not covered by the reform, according to a 2010 appeals court ruling.