Michael Oliver was heading to work last summer when he was pulled over by a police officer. The then 25-year-old was on probation already and so any interaction with police could feel tense. But the adrenaline, he said, was notched up significantly when the officer returned to his car after running his name.
Oliver, the officer said, was wanted on a felony charge.
"I was lost," said Oliver in an interview with 7 Action News this week. "I didn’t commit this crime. Why am I going through this?"
Two months earlier, while investigating an incident in which a young man grabbed and threw a teacher’s iPhone, Detroit police utilized their facial recognition technology. Uploading a still-shot from a video of the incident to their software, the police came back with a match for Oliver. After the teacher subsequently selected him in a six-person photo lineup, a warrant was issued for his arrest. He was charged with felony larceny.
The charges were ultimately dropped last September after Oliver’s court-appointed attorney was able to show the prosecutor comparison photos, highlighting what was clearly not a match.
But, the incident, underscores a bigger issue: mounting tension around Detroit Police Departments' use of facial recognition software.
Oliver is the second Detroiter this summer to come forward with a story of a wrongful arrest due to the technology. And as protests around police misconduct swell across the country, Detroit activists have zeroed in specifically on DPD’s 2017 purchase of facial recognition technology from South Carolina vendor DataWorks Plus. They suggest Oliver and Robert Williams, who was wrongly accused of stealing watches from Shinola due to a facial recognition misidentification, are just the tip of the iceberg.
"There’s going to have to be obviously a period of time where I think and where we’ll pray for, that the court will shut down even the use at this point in time of facial recognition," said David Robinson, a former Detroit Police officer turned attorney, who plans to file a suit on Oliver’s behalf next week alleging violations of his civil rights.
"It has to stop until the science gets better perhaps and it is a less biased system,” he continued, “and the department perfects its process in the apprehension and investigation of individuals who are wanted for crimes."
DPD maintains that the Oliver misidentification — like the Williams misidentification — was the product of questionable detective work (both relied solely on facial recognition technology and photo line-ups) and is not indicative of systemic problems with the technology.
"We have deep concerns with the investigative work that was completed on this case and we are very concerned with the absence of management oversight," DPD Public Information Officer Sgt. Nicole Kirkwood wrote in a statement to 7 Action News Wednesday, adding that the department launched an internal investigation into the sequence of events.
"Management will be held accountable," she said, adding that in September the Board of Police Commissioners adopted a series of policies that govern the department’s use of facial recognition technology.
"There has not been a single case of claimed misidentification in the Detroit Police Department’s Real Time Center under the current DPD Protocols," said Kirkwood, explaining that under the new rules facial recognition technology is limited to cases involving violent crimes and all identifications must undergo a peer-review process before being deemed a “credible match” and moving to the next stage of an investigation.
"This case predates our approved policy," she said.
A 7 Action News analysis of public statements from last summer, however, indicates that DPD was maintaining, prior to the adoption of the new policies, that they had exhaustive protocols in place.
"I think many times we get confused that the technology in and of itself will take you directly to a suspect, on the contrary, it does not," said Chief James Craig at a Board of Police Commissioners meeting in July 2019, referring to the department’s process for using facial recognition technology as "rigorous."
"It’s not the technology," he continued, "but it’s really the human factor, our crime analysts who are very diligent and once they come up with a person, it is peer reviewed and then a supervisor then weighs in to make sure this is the person we want to move to the next level of the investigation. Even then there is no guarantee a person will be arrested."
Oliver was arrested two weeks after Craig made these public statements.
"It was disheartening enough that law enforcement and city government ignored our warnings last year about this dangerous technology and the inevitable misidentifications to come," said Tawana Petty, who serves as the director of the Data Justice Program for the Detroit Community Technology Project and was at the forefront of pushes for a ban of the technology last summer, and has been questioning how DPD has been using the software since it was purchased three years ago.
"It is even more disheartening," she continued, "that despite two known cases they continue to double down, ignoring the negative impact these false arrests have had on the lives of Mr. Williams and Mr. Oliver."
THE CASE AND THE TRIAL
Patrick Nyenhuis first met Oliver on August 12, 2019 at a Probable Cause Conference. He was the court-appointed attorney. And he knew immediately his client was innocent.
"I met Mr. Oliver in person, I saw it was clearly a different person," said Nyenhuis, who points out that in addition to clearly different facial features, Oliver is covered in tattoos — something the young man in the still-shot fed through the facial recognition technology did not have.
"I knew the whole time, let’s take this to trial, I’ll just put a picture of Mr. Oliver up, a picture of the assailant and the jury will easily see it’s the wrong person," Nyenhuis continued.
While the case seemed relatively simple to the attorney — a matter of juxtaposing two images — how it ended up here, in a court of law, where Oliver was at risk of being sentenced to 10 years of imprisonment, was not so simple.
"It took a lot explaining it to supervisors," Nyenhuis continued, "before they would take the time to acknowledge it was that off."
The saga began on May 15, 2019, when Stephen Cassani, a Detroit Public Schools Community District teacher, called 911 after witnessing a number of young people fighting on Warren Ave. a short distance from his school Westside Academy.
While waiting for police to arrive, Cassani, a business and technology teacher at the alternative school, began filming the melee.
After about 10 seconds, two young people approached his car. One reached through his passenger window and grabbed his phone, proceeding, according to Cassani, to throw it to the ground, cracking the screen and breaking the case.
While Cassani originally told police the person who threw his phone was"a previous student possibly named Terry" this lead did not go anywhere. No students were interviewed, according to court records. Rather, the investigation centered around the video Cassani had made before the phone was thrown. And more specifically the results garnered by facial recognition technology.
DPD Facial Recognition Repo... by Allie Gross on Scribd
On May 16 Detective Donald Bussa was assigned to the case. According to court documents a week later, on May 22, DPD produced a Real Time Crime Center Facial Recognition Report. Crime Intel I.S. Joseph Dabliz, and supervisor Sgt. Larry Campbell signed off on the report. Oliver, they determined, was a match.
Two weeks later on June 5 Cassani came to the station, where he reviewed a six-person photo lineup. Oliver was in the mix. And after six minutes of reviewing the paper, Cassani selected the 25-year-old.
In a written statement from that day Cassani said he had never seen Oliver prior to the incident — dropping his original statement that the person was a former student. He reiterated, however, that the second individual in the video was a current student.
Bussa did not attempt to interview this student. Nor did he bring Oliver in for questioning.
Rather, the following day, June 6, he submitted documents requesting a warrant for Oliver's arrest.
Det. Donald Bussa Warrant Request for Michael Oliver by Allie Gross on Scribd
"The officer seemed to take shortcuts," said Nyenhuis. At the preliminary hearing on August 26 he questioned Bussa about his investigation. Did he interview students? No. Did he download the 911 call? No. Did he interview officers that had been dispatched to the scene of the crime — where Cassani had originally pointed out the person who threw his phone? No.
Most shocking, however, to Nyenhuis was the fact that in the discovery phase he learned that DPD did not have the video that Cassani had taken — just a screenshot that had been fed thru the facial recognition technology.
"We had to wait till the preliminary examination for the witness to go out to his car and email it to me, in order to get the actual video," said Nyenhuis. "Nobody had the video except for the complainant."
What occurred, according to Robinson, who is now representing Oliver, was not an investigation.
"It was clear that there were other investigative routes to take that Detective Bussa woefully did not do," said Robinson. "And had he done those things, in all likelihood that Mr. Oliver would have never been arrested."
It wasn’t until Sept. 13, as Oliver feared he was going to have to go to trial, that the case was finally wrapped up.
"We are convinced there was a misidentification here," Assistant Prosecuting Attorney Brian Surma said, asking that the judge to dismiss the case without prejudice.
"We were able to compare photographs of this person that’s standing in front of you, Mr. Oliver, with photograph, with a video that was taken of the incident. We both agreed there is some significant facial features and characteristics that this is clearly not the man that was in the video," he continued, explaining that he met with Cassani the day prior who indicated he did not want the wrong person prosecuted.
For Oliver the news was tremendous.
"I was so nervous," he said.
While the now 26-year-old knew he was innocent, he also said he had family members that were incarcerated for crimes they did not commit. The criminal justice system in America, he understood, was stacked against him. How else could he explain how two clearly incongruous photographs had been deemed sufficient enough evidence that here he was in September battling a felony charge?
"I didn’t even know if I was going to beat it, because I was taking it to trial," he said. "Like I say, there are people who still lose trials because of the evidence that they have on people."
THE POLICY
Next week DPD's contract with DataWorks Plus is set to expire. The department is asking City Council for an additional $220K to extend its $1 million contract through September 2022.
The question at the forefont of the debate, is whether or not the cases of Oliver and Williams are kinks or actual features of the system.
The city maintains it is the former.
"What you need to do is make sure you have the right protocols," said Mayor Mike Duggan at a press last month when questioned about the Williams case. "And since September there are a whole series of protocols that have been put in place that this incident would not have been possible."
Advocates, however, counter. They maintain that prior to the Board of Police Commissioners approving policies last September the department maintained that it was using facial recognition technology in a rigorous manner.
In July 2019, for example, Chief James Craig gave tours of the Real Time Crime Center touting the department's peer-review process for assessing facial recognition technology.
When Oliver was ID'd on May 22 2019 — two months before the tours started — however, only one analyst made the match. Kirkwood blamed this on being before the Board of Police Commissioners stepped in.
"There was not a second review conducted by an analyst as this was before policy was approved," she wrote in a statement. "This case predates our current facial recognition policy that was approved by the Board of Police Commission on September 19, 2020. Under our current policy, the department is allowed to use the facial recognition software only if a violent crime has been committed and if a still image of a suspect is available. Secondly, a peer-review is required, in which two analysts concur that an image match, then an approval from a Supervisor is required before the lead is forwarded to the investigator for additional follow up and investigative work. This case would not have been eligible for a search using the facial recognition software under the new policy."
For Robinson, who plans to file the suit next week but is still debating who he should name as defendants, the issue is about poor detective work, but also a bigger system.
"The ball was willfully dropped," said attorney, pointing out that while Oliver has had run-ins with the law in the past he was trying to get his life together and police reliance on new technology derailed that.
"He freely talks right now about having a record, but he’s working, he was trying to establish himself, and now this young man has taken two steps forward and three steps backward," said Robinson, pointing out that while the case was dismissed because Oliver was arrested, he was in violation of his probation. Even if the arrest was wrongful.
"We’re here to assist him, to get things back in order and to correct all the records," he said. The suit, he explained, will seek both monetary relief but also injunctive relief.
"Facial recognition technology is a TV concept," he said. "It works on TV. But it doesn’t work in real life. Those departments that use it are forewarned."