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Did a bad photo lineup send a man to jail for 6 months? How a new law could prevent it

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KEW GARDENS, Queens — He spent half a year behind bars, but a lengthening list of evidence shows that Wellington Clase did not commit the crime he is accused of. His arrest and subsequent detention were the result of a photo lineup that draws attention yet again to the potential for fallacy that that identification method may have, and why advocates for the wrongfully arrested are calling on Albany to pass identification reform.

"Devastated," Clase said outside of the Queens Courthouse on Monday afternoon. "I feel like the court is incompetent. "

He was reacting by a decision by a judge granting prosecutors their request to continue Clase's case for three more weeks while investigators check to make completely sure Clase is the wrong guy.

Federal agents arrested him on suspicion that he was an illegal gun dealer whose image was recorded during a sting operation in May 2013.

Unlike the man who is seen in video of an illegal gun sale that ATF agents recorded on hidden camera, Clase has a congenital eye condition that doesn't allow his left eyelid to fully open.

Clase also has a rounded chin, while the gun dealer in the video has a cleft chin.

The gun dealer also has angled eyebrows and a naturally pointed hairline.

Clase has neither, but he was picked out of a photo lineup by the ATF agent who conducted the undercover cash purchase blurred out in this undercover video of an illegal Luger semiautomatic 9 millimeter pistol.

Clase and his attorney, John Scola, pointed out, outside of court on Monday, that the whole case against him has been unusually long and involved.

The illegal gun buy sting took place in May 2013, but agents chose not to make an arrest for more than two years, in August of last year.

Clase said that agents and officers burst into his home "at 5:00 in the morning. They came into my living room, 20 officers. My baby was crying, my wife was crying. I had no idea what was going on," he said.

After his arrest, he wasn't able to scrape together enough money to cover the $150,000 bail until this past January — six months later.

His case is consistent with an experiment PIX11 News did earlier this year in conjunction with the Innocence Project. It's an advocacy group whose work has led to the exonerations of more than 300 wrongfully convicted suspects.

"Research shows that confidence [in criminal case lineups] can be inflated with positive feedback," said Rebecca Brown, the Innocence Project's public policy director, in an interview earlier this year.

The joint experiment concluded that in a lineup handled by an investigator with prior knowledge and interest in a criminal case, the correct suspect was selected from the lineup 40 percent of the time. In a lineup, administered by someone who's not involved with the case and who's required to read the same, scripted instructions to a witness who's selecting potential lineup suspects, the actual perpetrator is selected more often — 57 percent of the time.

"What we want to do is have innocent people not be wrongly arrested," said Karen Newirth, a senior attorney with the Innocence Project.

It's promoting a bill currently before the New York legislature that would require all lineups to be conducted identically, in order to try and prevent cases like Wellington Clase's.

He, his lawyer and his private investigator, Manny Gomez, said that at a more simple level, they just need basic investigative work done.

Gomez pointed out that investigators took possession of the gun that the dealer had sold to them, but "they failed to take the fingerprints. They failed to take the DNA."

The undercover video ends with the dealer telling the agent to "holler at me," an indication that the agent had the dealer's contact information, but didn't use it to lead to an arrest, according to Gomez and Clase.

"It's just not me," Clase said outside of court. "The right guy is out there still selling guns."