                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-2034

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

JOHN A. F ORD ,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 09 CR 846-1—Robert W. Gettleman, Judge.



        A RGUED A PRIL 25, 2012—D ECIDED JUNE 6, 2012




  Before P OSNER, S YKES, and T INDER, Circuit Judges.
  P OSNER, Circuit Judge. A jury convicted the defendant
of armed bank robbery, 18 U.S.C. § 2113(a), and the
judge sentenced him to the statutory maximum of 240
months, id., in part because of his previous convictions
for that crime. The appeal presents two issues; we
begin with the lesser one, which involves the exclusion
of a witness for the defense on the ground that he was
an alibi witness and the defense had not given the pros-
2                                               No. 11-2034

ecution the notice required before trial by Fed. R. Crim.
P. 12.1(a). The defendant argues that the witness he
wanted to call was not an alibi witness and so the rule
doesn’t apply.
   The robbery occurred in Palatine, Illinois. The defendant
was a personal trainer in Chicago, and had an appoint-
ment for a training session with one of his clients that
began two hours after the robbery. The distance from
the bank to the gym where the defendant did his
personal training is only 28 miles, a distance easily
covered by car in a good deal less time than two hours;
and the defendant does not claim that extreme weather
conditions, or an accident or other untoward event,
might have prevented his arriving at the gym within
two hours after leaving Palatine—in which event he could
not have been the robber. So the client could not have
given the defendant an alibi in the usual sense. This
should make one wonder why the defendant wanted to
call him. He argues that the client would have testified
that the defendant was “calm, friendly and professional”
at all their training sessions (the client did not recall the
particular session that had taken place the evening of
the robbery, which occurred almost two years before he
was approached by the defendant’s lawyer), and that he
would not have been calm, etc., had he committed an
armed bank robbery only two hours earlier. Actually
such testimony would have had no probative value even
if the client had remembered the defendant’s deportment
at the session after the robbery. No one had been hurt
in the robbery, which had lasted all of five minutes, and
No. 11-2034                                               3

why would one expect the robber, having committed
what he thought a successful crime that had enriched
him, albeit modestly (his take was only $1146), to be
visibly agitated two hours later, far from the scene of the
crime and not pursued by police (he was not arrested
until two years later)? And he was an experienced bank
robber—the presentencing investigation report states
that he admitted having committed 11 bank robberies
between 1981 and 1985.
  In any event it was alibi evidence that the defendant
wanted to offer by calling his client as a witness,
albeit alibi evidence of an unusual sort. The usual alibi
evidence, if believed, proves that it was physically impos-
sible for the defendant to have committed the crime
that he’s been accused of; suppose the training session had
been held in Los Angeles rather than Chicago and
there was a record of his having attended it. But the alibi
in this case would have been that it was psychologically
impossible for him to have committed the crime,
because had he done so he would have been visibly
agitated two hours later yet the alibi witness would
have testified that he was never visibly agitated at their
training sessions. This would be the obverse of evidence
that the robber had been “nervous” and “jumpy” an hour
after the robbery, as in United States v. Turner, 474 F.3d
1265, 1278 (11th Cir. 2007). It would have been weak
evidence of innocence, as we said—“the fact that [the
defendant] was not nervous and that he did not act
violently is easily explained, because it would not have
been in his interest to act in those ways,” United States v.
4                                                No. 11-2034

Boulanger, 444 F.3d 76, 89 n. 17 (1st Cir. 2006)—but still
evidence.
   Notice to the prosecution of proposed alibi evidence
is required because an alibi defense is at once compelling
if accepted and easy to concoct, so the prosecution is
justified in wanting an opportunity to investigate it in
advance of trial. Williams v. Florida, 399 U.S. 78, 81 (1970);
United States v. Pearson, 159 F.3d 480, 483 (10th Cir. 1998).
That is true of alibi evidence premised on psycho-
logical impossibility as well as the more common type.
And so the district judge was right to exclude
the evidence because of the defendant’s failure to
have complied with Rule 12.1(a).
  We move to the second and more substantial issue—a
challenge to the photo array shown the bank’s manager,
whom the robber had confronted after forcing an entry
into the bank shortly after the bank had closed for the
day. When police arrived after the robbery the manager
had told them that although the robber had worn a
dust mask that covered his nose and mouth, the
manager could tell that the robber was a white man with
“a very pale complexion” and “light colored eyebrows
and freckles around his eyes.”
  The dust mask was found shortly after the robbery
150 feet from the bank. DNA found on the mask was
eventually matched with DNA that had been taken
from a convicted bank robber named John Ford, the
defendant in this case. In March 2009, 16 months after
the robbery, a police officer presented the bank
No. 11-2034                                             5

manager with an array of six head shots that included one
of Ford; we attach a photo of the array at the end of
this opinion. The manager picked the man in the middle
of the top row as the robber; it was Ford. He was eventu-
ally arrested and at a suppression hearing in Septem-
ber 2010 challenged the bank manager’s identification
on the ground that the photo array had been irreparably
suggestive. The district judge refused to suppress the
identification, and at the trial, held one month later,
the manager testified that he had indeed identified the
defendant as the bank robber in the photo array.
  The photo array was suggestive. First, instead of
showing the six photographs to the bank manager one
by one, the police officer placed them on a table in front
of him all at once, side by side in two rows, as in the
photo at the end of this opinion (except that that’s a
photo of all six photos, and what the manager was
shown was the separate photos—but as he was shown
them all at once, what he saw was equivalent to our
composite photo).
  The officer asked the manager whether he recognized
the robber. The objection to this procedure is that the
manager would probably think that one of the photos
was of the robber, or at least of the person whom the
police suspected of being the robber, which might have
led the manager to pick the one who most resembled the
robber even if the resemblance was not close, especially
since so much time had elapsed since he had seen
the robber and the robber had been masked when he
saw him.
6                                               No. 11-2034

   It is true that the police officer told the manager not to
assume that a photo of a suspect would be among the
photos shown him, a disclaimer that the cases recommend.
See United States v. Williams, 522 F.3d 809, 811 (7th Cir.
2008); United States v. Saunders, 501 F.3d 384, 391 (4th Cir.
2007); United States v. Gibson, 135 F.3d 257, 260 (2d Cir.
1998) (per curiam). Several studies suggest that such a
disclaimer indeed reduces the risk of misidentification.
See, e.g., Gary L. Wells & Deah S. Quinlivan, “Suggestive
Eyewitness Identification Procedures and the Supreme
Court’s Reliability Test in Light of Eyewitness Science:
30 Years Later,” 33 Law & Human Behavior 1, 6-7 (2009);
Beth Schuster, “Police Lineups: Making Eyewitness
Identification More Reliable,” 258 Nat’l Institute of Justice
Journal 2, 3 (2007). But whether it eliminates the risk
created by a simultaneous array may be doubted. A
witness is likely to think that the array must include a
suspect as otherwise there would be no point in showing
it to the witness, unless the witness’s verbal description
was of such an unusual-looking person that only a
handful of people in the area in which the crime took
place could possibly match it; in that case the police
could show him all the look-alikes, confident that one
was the criminal and hopeful that he differed enough
from the others that the witness would be able to pick
him out of the array.
  The array would have been less suggestive had the
manager been shown the photos one by one (a “sequential”
array). United States v. Brown, 471 F.3d 802, 804-05 (7th
Cir. 2006); see N.C. Gen. Stat. § 15A-284.52(b)(2); Wis.
Stat. § 175.50(5)(b); Letter from N.J. Attorney General
No. 11-2034                                                  7

John J. Farmer, Jr., to All County Prosecutors et al. (Apr. 18,
2001), www.state.nj.us/lps/dcj/agguide/photoid.pdf
(visited May 31, 2012). Witnesses shown a sequential
lineup are more likely to compare each person in it only
with their memory of the offender, rather than choose
whichever person looks the most like what the witness
remembers. Schuster, supra, at 4; Gary L. Wells & Elizabeth
A. Olson, “Eyewitness Testimony,” 54 Ann. Rev. Psychology
277, 288-89 (2003); Dawn McQuiston-Surrett et al., “Se-
quential vs. Simultaneous Lineups: A Review of Methods,
Data, and Theory,” 12 Psychology, Public Policy & Law 137,
138-39 (2006); Nancy Steblay et al., “Eyewitness Accuracy
Rates in Sequential and Simultaneous Lineup Presenta-
tions: A Meta-Analytic Comparison,” 25 Law & Human
Behavior 459, 468 (2001); but see United States v. Lawrence,
349 F.3d 109, 114-15 (3d Cir. 2003).
   The accuracy of a sequential array can be improved
by making it appear to the witness that there are more
persons in the array than he’s been shown. The officer
presenting the array could pause after showing the
witness the first five photos and ask whether he’d
spotted the robber yet. For if after having looked at the
first five photos in an array of six (as in this case) the
witness knew he was looking at the last one in the array,
he might infer, if he hadn’t identified any of the first five,
that the sixth photo was of the robber, or at least of the
man who the police thought was the robber. But we
suspect that even with the suggested adjustment the risk
of misidentification is greater when the witness is
looking from photo to photo, because they’re side by
side, in an attempt to pick out the one that most
resembles his recollection of the robber.
8                                               No. 11-2034

  And since the robber had been masked, the men in
the photos (including Ford) should have been shown
wearing dust masks similar to the one the police
had found. Furthermore, the same detective from the
Palatine police department investigated the case,
compiled the photo array, and showed the array to the
bank manager. Assigning other officers (with a smaller
stake in nailing Ford) to compile the photo array and
show it to the manager would have reduced the likeli-
hood of an officer’s signaling him to identify Ford as the
robber.
  Still another respect in which the array was suggestive
was that the other five men don’t look like the robber,
because, although all are adult Caucasian males of ap-
proximately the same age, none is pale or has freckles. The
only description that the manager had given the police
was that the robber was very fair and had freckles, and
only Ford’s photo matches that description. Of course
the Palatine police department’s collection of photos of
suspicious-looking characters (all the photos in the array
were mugshots) may not have contained photos of
any light-complexioned men with freckles except
Ford. But the department should have been able to
borrow such photos from a larger police department,
such as the Chicago Police Department—and Palatine is
a Chicago suburb.
  Of course it’s impossible to find photos of persons who
are identical to a suspect (unless he has an identical
twin)—and also undesirable, because then the witness
wouldn’t be able to identify the suspect. But Ford’s appear-
No. 11-2034                                               9

ance is so unlike that of the other men in the photo
array—and unlike them with respect to the only two
features that the bank manager recalled of the masked
robber—that the array suggested to the manager which
photo he should pick as the one of the robber. See United
States v. Downs, 230 F.3d 272, 275 (7th Cir. 2000); United
States v. Wiseman, 172 F.3d 1196, 1209-10 (10th Cir. 1999);
compare United States v. Howard, 142 F.3d 959 (7th Cir.
1998) (per curiam).
  As awareness of the frequency of mistakes in eye-
witness identification has grown (see, e.g., Jon B. Gould &
Richard A. Leo, “One Hundred Years Later: Wrongful
Convictions After a Century of Research,” 100 J. Crim. L. &
Criminology 825, 841-42 (2010); Innocence Project, “Reeval-
uating Lineups: Why Witnesses Make Mistakes and How
to Reduce the Chance of a Misidentification” 3-4 (2009),
www.innocenceproject.org/docs/Eyewitness_ID_Report.
pdf (visited May 31, 2012); Richard A. Wise et al., “How to
Analyze the Accuracy of Eyewitness Testimony in a
Criminal Case,” 42 Conn. L. Rev. 435, 440-41 (2009);
Sandra Guerra Thompson, “Beyond a Reasonable Doubt?
Reconsidering Uncorroborated Eyewitness Identification
Testimony,” 41 U.C. Davis L. Rev. 1487, 1490-91, 1497-98
(2008); Brandon L. Garrett, “Judging Innocence,” 108
Colum. L. Rev. 55, 60 (2008); Samuel R. Gross et al., “Exon-
erations in the United States 1989 Through 2003,” 95 J.
Crim. L. & Criminology 523, 542 (2005)), so has the need
for judges to be especially wary about suggestive arrays
shown potential witnesses, especially when as in this
case the suspect was masked and a long time had
elapsed between the crime and the display of the array
to the witness.
10                                                 No. 11-2034

  It is true that the three other employees of the bank
who were present when the robbery occurred could not
identify the defendant from the photo array, and this is
some evidence that the array was not suggestive. See
United States v. Arrington, 159 F.3d 1069, 1073 (7th Cir.
1998); Millender v. Adams, 376 F.3d 520, 525 (6th Cir. 2004).
But unlike the bank manager they had not gotten a close
look at the robber; so far as appears, they didn’t realize
he was light-skinned and freckled.
  “An identification infected by improper police in-
fluence, our case law holds, is not automatically excluded.
Instead, the trial judge must screen the evidence for
reliability pretrial. If there is ‘a very substantial likelihood
of irreparable misidentification,’ Simmons v. United
States, 390 U.S. 377, 384 (1968), the judge must disallow
presentation of the evidence at trial. But if the indicia
of reliability are strong enough to outweigh the cor-
rupting effect of the police-arranged suggestive circum-
stances, the identification evidence ordinarily will be
admitted, and the jury will ultimately determine its
worth.” Perry v. New Hampshire, 132 S. Ct. 716, 720 (2012).
This is a demanding test for exclusion, but may have
been met in this case, and if so it was a mistake
to allow the bank manager to testify at the trial about
his previous identification of the defendant as the rob-
ber. (He did not attempt to identify the defendant
as the robber in person, that is, at the trial.)
  But we think the error was harmless. There was no
doubt that the dust mask found outside the bank was
the robber’s, and the DNA found on the dust mask
No. 11-2034                                              11

matched the defendant’s DNA. Moreover, even if not
permitted to identify the defendant as the robber, the
manager would have been permitted to testify that the
robber was a pale-visaged freckled white man, for that
is what he had told the police immediately after the
robbery; and the jurors could have compared the de-
scription with the defendant sitting in front of them.
The jury also could have compared the bank manager’s
description with the pictures of the robber taken by the
bank’s surveillance camera during the robbery and
shown at the trial. The manager had described the
robber to the police as 5’10” and he testified at trial that
the robber was close to his own height of 5’10”. Still
frames from the surveillance footage reveals that the two
men are indeed of approximately the same height.
  The defendant makes much of the fact that the day
after the robbery the bank manager had thought he recog-
nized the robber among the bank’s customers, and that
the police had investigated and determined that the man
in question was not the robber. It is not surprising that
the day after being held up at gunpoint the manager
was nervous and would make such a mistake. Another
possibility, we grant, is that he was overconfident of his
ability to identify the robber—but his initial mistake
should have made him less confident later, when he
viewed the array.
  Oddly, though, the government does not argue
harmless error. When asked at argument why not, the
government’s lawyer replied that there was “substantial”
doubt that the jury would have convicted the defendant
12                                             No. 11-2034

without the eyewitness identification. The defendant’s
lawyer added that at trial the DNA evidence had been
challenged, although a forensic scientist from the Illinois
State Police testified that the probability that the DNA
on the dust mask was not the defendant’s was only 1 in 29
trillion.
   The lawyers’ statements indicate a misunderstanding
of the harmless-error rule. An error can be harmless
even if, had it not been committed, the defendant would
have been acquitted. The criterion of harmlessness is
whether a reasonable jury might have acquitted; if not, the
error was harmless. The cases usually say a “rational” jury
rather than a “reasonable” jury, but they are using “ratio-
nal” to mean “reasonable.” It would not necessarily be
“irrational” for a jury to vote to convict a person whom
it did not think guilty beyond a reasonable doubt—the
jury might think the government’s burden of having to
prove guilt beyond a reasonable doubt too heavy. But
it would be “unreasonable” because it would be
flouting the judge’s instructions.
  It is because not all juries are reasonable that pros-
ecutors sometimes take out insurance against erroneous
acquittals by presenting evidence (if the judge permits)
that should have been excluded. The evidence reduces
the likelihood of acquittal, and does so without providing
grounds for reversal, provided that a reasonable jury
would not have acquitted had the evidence been
excluded as it should have been, though because some
juries are unreasonable (or dominated by an unrea-
sonable member or unreasonable members) the actual
No. 11-2034                                                13

jury might have acquitted. See Alexandra White
Dunahoe, “Revisiting the Cost-Benefit Calculus of the
Misbehaving Prosecutor: Deterrence Economics and
Transitory Prosecutors,” 61 NYU Annual Survey of
American Law 45, 93-94 (2005); Bennett L. Gershman, “The
New Prosecutors,” 53 U. Pitt. L. Rev. 393, 429-31 (1992).
  Although the defendant’s lawyer tried to throw dust
in the jurors’ eyes by a vigorous challenge to the DNA
evidence, and might have succeeded with another jury,
the challenge had no merit. What is involved, very
simply, in forensic DNA analysis is comparing a strand of
DNA (the genetic code) from the suspect with a strand of
DNA found at the crime scene. See “DNA Profiling,”
Wikipedia, http://en.wikipedia.org/wiki/DNA_profiling
(visited May 31, 2012). Comparisons are made at
various locations on each strand. At each location there
is an allele (a unique gene form). In one location, for
example, the probability of a person’s having a particular
allele might be 7 percent, and in another 10 percent.
Suppose that the suspect’s DNA and the DNA at the
crime scene contained the same alleles at each of the
two locations. The probability that the DNA was some-
one else’s would be 7 percent if the comparison were
confined to the first location, but only .7 percent (7 percent
of 10 percent) if the comparison were expanded to two
locations, because the probabilities are independent.
Suppose identical alleles were found at 10 locations,
which is what happened in this case; the probability that
two persons would have so many identical alleles, a
probability that can be computed by multiplying together
the probabilities of an identical allele at each location,
14                                              No. 11-2034

becomes infinitesimally small—in fact 1 in 29 trillion,
provided no other comparisons reveal that the alleles at
the same location on the two strands of DNA are differ-
ent. This is the same procedure used for determining the
probability that a perfectly balanced coin flipped 10 times
in a row will come up heads all 10 times. The probability is
.5 10 , which is less than 1 in 1000.
  Because the DNA sample taken from the dust mask
was incomplete, 10 was all the locations that could be
profiled; but that was enough to enable a confident estima-
tion (the 1 in 29 trillion) that the probability that DNA on
the dust mask was not the defendant’s was exceedingly
slight. No evidence was presented to cast doubt on the
validity of the DNA test conducted in this case or on
the odds stated by the government’s expert witness;
nor did the cross-examination of the witness, though
vigorous, undermine his testimony. The combination
in this case of the unimpeached DNA evidence with the
bank manager’s description of the robber would have
persuaded any reasonable jury beyond a reasonable
doubt that the defendant was the robber.
  It might seem that by failing to argue harmless error
the government forfeited that ground for affirming and
so we must reverse. Normally that would be true. But
Wood v. Milyard, 132 S. Ct. 1826, 1832 (2012), confirming
the Supreme Court’s earlier decision in Granberry v.
Greer, 481 U.S. 129, 134 (1987), states that a court can base
decision on a ground forfeited by a party if the ground is
“founded on concerns broader than those of the parties,”
id. at 1833, and that is true of harmless error—and so we
No. 11-2034                                                 15

and other courts have sometimes affirmed a criminal
judgment on the basis of the harmless-error rule even
though the government had not invoked it. As we ex-
plained in United States v. Giovannetti, 928 F.2d 225, 226-27
(7th Cir. 1991) (per curiam) (citations omitted), in accor-
dance with Granberry, “we are authorized, for the sake
of protecting third-party interests including such
systemic interests as the avoidance of unnecessary court
delay, to disregard a harmless error even though through
some regrettable oversight harmlessness is not argued
to us. If it is certain that the error did not affect the out-
come, reversal will not help the party arguing for
reversal beyond such undeserved benefits as he may
derive from delay. And reversal will hurt others: not
merely the adverse party, whose failure to argue harm-
lessness forfeits his right to complain about the injury,
but innocent third parties, in particular other users of the
court system, whose access to that system is impaired
by additional litigation. Costs to third parties are an
established reason for a court’s declining to honor an
agreement by the parties, and the same principle
applies when a court is belatedly requested to decline
to give effect to a forfeiture—which is the equivalent of
an implied agreement. When these third-party costs are
taken into account, reversal may be an excessive
sanction for the government’s having failed to argue
harmless error, at least if the harmlessness of the error
is readily discernible without an elaborate search of the
record.” See also United States v. Hatfield, 591 F.3d 945, 951
(7th Cir. 2010); Jenkins v. Nelson, 157 F.3d 485, 494 n. 1 (7th
Cir. 1998); United States v. Ghane, 673 F.3d 771, 787 (8th Cir.
16                                                 No. 11-2034

2012); United States v. Gonzalez-Flores, 418 F.3d 1093, 1100
(9th Cir. 2005); United States v. Rose, 104 F.3d 1408, 1414-15
(1st Cir. 1997).
  The judgment is therefore
                                                    A FFIRMED.




  T INDER, Circuit Judge, concurs in the result.
No. 11-2034            17




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