During July of 1986, Elizabeth Loftus told jurors in Ketchikan Superior Court there were significant problems with the testimony of several witnesses who identified John Peel as a suspect in the Investor murders. She was well-placed to make that assessment. Her field of expertise had established eyewitness memory as a fungible thing. There are, she said, no perfect memories. Humans, her research showed, do not sport “brain videos” that can be played over and over, without failure or flaw.
Many people believe that memory works like a recording device… But decades of work in psychology has shown that this just isn’t true. Our memories are constructive. They’re reconstructive. Memory works a little bit like a Wikipedia page. You can go in there and change it, but so can other people.Elizabeth Loftus
There are, however, some nuances worth mentioning. Richard McNally writes in Debunking Myths About Trauma and Memory that, during traumatic events, some memory bits are favored. “Under conditions of high arousal,” McNally notes, “most people attend to the central features of the event at the expense of the peripheral ones. Individuals robbed at gunpoint sometime fail to encode the face of the robber, often because their attention is glued to his weapon.” [emphasis added]
McNally also finds that: Memories of trauma are seldom, if ever, truly forgotten. Memories of trauma are often vivid, but they are not immutable (again, memory does not operate like a videotape). Not thinking about a trauma for a long time is not the same as being unable to remember it.
That leads us to consider three potentially critical witnesses, each with assailable memories. And, potentially, a fair amount of trauma.
A Trauma Trio
November 1982: Jeff Pfundt told investigators about hearing screams and shots on September 6, 1982 — the night of the murders. He’s at home in Petersburg, only months later, when he remembers. The sound of nearby gunfire triggers a flood of recollections.
September 2, 1984: Larry Demmert, Jr. also recalled hearing noises and a woman’s scream on the night of the murders. ”I got on board the Libby 8... slept for awhile and then I woke up at about two a.m. … I heard some noises… It sounded like pop, pop, pop… And then I heard the scream of a woman… it was a blood-curdling scream. It sounded like somebody was getting murdered.” His recall came during a fraught — and emotional — pre-grand jury meeting with prosecutors.
May 1986: Alice Irons saw John Peel in the hallway while waiting to testify at the first trial. She recognized him then as the man sitting at the Coulthurst table on the night of the murders. Irons said, “he was looking straight at me in the eye. That is when I seen him. I knew that was the man that I’d seen in the restaurant.” Later, she told the judge that she was “shocked” and a “little scared” at hearing Peel’s name and seeing his face.
It’s worth reassessing their testimony — and their memories.
The Rafted Up Problem
As noted previously, Jeff Pfundt’s memories, if true, ultimately backed up the more detailed remembrances of Larry Demmert, Jr. It is worth noting that Pfundt’s memories seem to have formed independently of Larry Demmert, Jr’s. The two year differential in their emergence is convincing, if not despositive, evidence.
The fact that Pfundt was out of Petersburg, Alaska while Demmert was out of Blaine, Washington — a distance of some 700 nautical miles — suggests their ability to commingle memories was small, if not vanishingly so. The conditions of their triggering events — Pfundt hearing gunshots at his home and going into a fearful state of arousal, a highly stressed Larry Demmert readying himself for grand jury testimony — are not in any way parallel or overlapping. They are, it seems to me, autonomous memory events.
That aside, they reported the same things. Gunshots. Screams. A woman’s scream. These would qualify as traumatic experiences. Could they make it all up? Could they conspire?
What Pfundt and Demmert suggested was something entirely consistent. Crucially, their boats were rafted up and close enough to the Investor for them to witness the events they described.
But Elizabeth Loftus helped Phillip Weidner create an atmosphere where no memory was safe. Jeff Pfundt came to question his own memories. On the witness stand on March 5, 1986, he admitted he was unsure if he actually heard — or merely “dreamed” that he heard –shots on September 5, 1982. And Larry Demmert, Jr. was vulnerable to charges he was going through drug withdrawal (valium) even as he told prosecutors his haunting tale. Reasonable doubt, yes.
The Alice Irons Problem
Alice Irons presents a different kind of “memory problem.” At one point, for example, she misidentified John Peel — confusing him with defense attorney Brant McGee. Loftus used that mistake as evidence Irons had a tendency to “fill in the gaps” of her memory. She hadn’t really seen John Peel at Ruth Ann’s, Loftus suggested. Irons had instead seen him in December of 1985, at another Craig restaurant where she worked. Peel was there, the defense noted, preparing for his upcoming trial.
Left unanswered was the trauma that Irons said she’d experienced. It was, to be sure, a strange sort of trauma. Not the trauma of the moment — Irons was not looking at a man who would be accused of murder when she served him at Ruth Ann’s — but the belated trauma of knowing that might be exactly what she’d witnessed.
The Elizabeth Loftus Problem
For all of her rightfully lauded expertise, Elizabeth is better at stating the negative than affirming the positive. She can readily tell anyone where — and how — memory fails. She is less inclined to provide guidelines and waypoints as to what makes human memories credible, reliable and believable. Those are, indeed, much harder questions to answer. As a society, we’ve tried everything from torture to the polygraph. We’re still looking.
Loftus does, however, leave us this:
“Most of the time, perhaps 99 percent of the time, the defendant is guilty; his screams are the final protest of a human being about to lose his most precious possession, his freedom.”Elizabeth Loftus, Witness for the Defense: The Accused, The Eyewitness and the Expert Who Puts Memory on Trial
Copyright Leland E. Hale (2022). All rights reserved.