1/16, day before burglary: Look, he wears glasses & has no "full, gray beard!"

The Suppression Hearing:
Detective Brian Skaggs was assigned to the burglary case the day after it happened. He receives a physical description of “white male, stocky, full beard, long grey hair with a ponytail, glasses” for the suspect. He is also given Richard Wanke’s name as the suspect. He checks in the Winnebago County Jail computer, but says he was unable to find a current photo of Richard, so he pulled a picture of Richard up from the state drivers license records for the photo lineup.

In reality, Detective Skaggs is unable to use Richards past Jail photo or his current state drivers license, because those photos did not show Richard with a beard. The photo that Detective Skaggs ended up using for the photo lineup was from a previous state drivers license. He wound up using photos for the photo lineup and although all the photos were resized to fit, the other five photos showed a different background from Richard’s driver’s license photo. The different backgrounds may have been suggestive to Barry Roncal who later viewed the photos.

Skaggs did not see the suspect on the day of the burglary, so all he was going by was a name and a physical description. Skaggs said he did not recall why the description included a suspect wearing glasses. Barry Roncal who testified after Detective Skaggs, and who saw and followed an individual on the day of the burglary who was pointed out to him, testified that the person he followed did not wear glasses. Of course, Roncal was in his car for most of the pursuit and mostly saw the suspect’s back. Roncal did not know for certain that the person he pursued was the person who attempted to steal the laptop, because Roncal did not witness the attempt first-hand. Roncal merely followed the person who was pointed out to him. Roncal also said he only got a view of the suspect’s face as the person was pulling out of a parking spot and driving forward. Roncal said that when he first viewed the photo line-up he wasn’t immediately able to identify Richard Wanke as the suspect. He said that “it could have been any of them” and he had to take some time to eliminate some photos and then identify Richard as the suspect.

Roncal’s identification of Richard as the suspect could have been erroneous for several reasons. Although Roncal had been a security guard for six years, he had no formal training. While he claimed that his prior work in photography gave him a better ability to recall detail, he appeared to have little recall of the vehicle the suspect got into other than the plate number he picked up and the color “silver-blue” of what he thought was a minivan. His wording about the plate number was not clarified but it suggests that he got the plate number in at least two parts.

Below are pictures of the van, Richard Wanke was driving, as it appeared at the time. The van was not in good physical condition and it had some very noteworthy features which Roncal should have been able to mention at the time and recall, if his memory was as good as he claimed that it was: tinted rear and side window, solid light blue color, physical damage to the back exterior and license plate, and a large, white linux bumpersticker on the bottom rear door.

Roncal was not questioned about any of these omissions in the van appearance as he described it by Clark, although Clark had photos of the van at the suppression hearing. Nor does Clark question Roncal fully about how long he took to identify Richard using the photo line-up or what effect the details of the photos used in the line-up had on him. This is even pointed out by the judge.

Most importantly, the judge’s decision not to suppress Barry Roncal’s identification of Richard Wanke as the suspect is clearly in error. Literature on eyewitness testimony has long revealed that the longer the person takes to make a final selection in identification increases the chances that the selection will be inaccurate, and that an inaccurate choice can be made even when the culprit’s photo is not included in the photo line-up. Last, showing one photo at a time is more accurate than laying out a spread of photos to make the selection from.

Judges and law enforcement are aware of the unreliability of eyewitness testimony, yet Judge Prochaska chose to interpret the 10 – 15 minutes Roncal took to identify Richard using the photos as an indication of Roncal’s sincerity in making the identification. Judge Prochaska improperly fashioned an excuse for the record to explain away the delay in time in stating that it indicated the degree to which Roncal wanted to avoid making an error. Given the presentation of the evidence before him; that it took Roncal 10 – 15 minutes to make his identification and that, at the outset, Roncal thought that “it could be any of them”, Judge Prochaska had no factual basis to admit Roncal’s identification of Richard Wanke into evidence.

Clark should have objected vigorously to the court’s interpretation of and admission into evidence of Roncal’s identification of Richard Wanke. Yet, Clark failed to do so, failed to thoroughly question Roncal about the glasses, about the condition and appearance of the van and the van plate number, and failed to raise the question about how Skaggs and the authorities conducted the investigation and why no one from the police department bothered to contact or speak with either Richard Wanke or his landlord from January 17, 2006, until March 2, 2006, when Richard appeared in court and was arrested for the burglary.