Innocence Arrested

Albert Johnson was exonerated for a crime he didn't commit, but not before spending over a decade in prison. Why guiltless people get jailed -- and how to stop it.

The researchers also know that the number of wrongful imprisonments in the United States could be reduced dramatically -- not by Innocence Project lawyers and their arduous post-trial investigations, but by police and prosecutors who adopt simple, cheap, and widely recognized procedural reforms.

The reasons for the injustice done to Albert Johnson are no mystery. Basic changes to police procedures and prosecutorial methods -- among them, nearly cost-free changes in the way victims are asked to identify perpetrators and a straightforward requirement that confessions be videotaped whenever possible -- could prevent thousands of blameless people from going to prison. These proposed reforms have been proven to work; they have already been successfully adopted in some enlightened cities and states.

But aside from piecemeal attempts, there is no clear movement in California -- the state with the largest prison population in the country -- to make those changes. These reforms are routinely resisted or ignored by those law enforcement officers, prosecutors, and politicians who see them as too difficult to implement (even though many of the reforms would be relatively simple to put into practice), who insist they don't make mistakes that put innocent people in jail (though research strongly suggests that that claim is wrong), and who erroneously or disingenuously equate any effort to make the system more accurate as being soft on crime.

Nicole Herron of the Northern California Innocence 
Paolo Vescia
Nicole Herron of the Northern California Innocence Project.
Research by Iowa State University professor Gary 
Wells shows that poorly structured police lineups 
contribute to eyewitness identification error.
Courtesy of Iowa State University
Research by Iowa State University professor Gary Wells shows that poorly structured police lineups contribute to eyewitness identification error.

In fact, working toward a less error-prone justice system is the opposite of pandering to criminals. If San Pablo police had used the most reliable methods of suspect identification in 1992, for example, Albert Johnson probably would not have been charged, and the real rapist -- identified during DNA testing as a different African-American man who still lives in Richmond -- may well have been caught and jailed. Now the actual criminal will never spend a day in prison, because the statute of limitations for prosecution has passed.

On Tuesday and Thursday mornings, eight Golden Gate University law students ride the elevator to the third floor of the Mission Street campus and wheel their load of books into a windowless classroom for Susan Rutberg's "Innocence Project" class. The course was founded by the quick-witted, bespectacled Rutberg, a longtime public defender and a self-described "bleeding heart," who always wears a Thurgood Marshall pin on the lapel of her business-suit jacket. Soon after its establishment, Rutberg's class became a satellite of the Northern California Innocence Project, based at Santa Clara University's Law School.

The class is part of a growing trend. Since 1992, when the first Innocence Project was created in New York by two defense lawyers, more than 30 programs -- many of them based in law schools -- have emerged around the country. Their efforts have freed 138 wrongfully convicted people, focusing attention on a host of problems in the criminal justice system.

Today, early in the semester at Golden Gate, students gather around a long conference room table to discuss a new case they are thinking of taking on. Rutberg had recently received three heartfelt letters on behalf of "Mrs. C.," a battered woman who claims she was wrongfully convicted of murder.

"How is this a claim of actual innocence?" Rutberg asks the class, after a brief discussion of the facts. Silence, followed by tentative responses.

Finally, Mary Likins of the Santa Clara University program, who had just given a lecture on investigation tactics, chimes in: "This doesn't sound like an Innocence Project case. We don't do self-defense cases, or 'I was out of my mind on drugs' cases. It's 'I didn't do it' cases."

The students absorb the information quietly.

"So we don't do excuses, basically," a student injects.

"It's up or down, yes or no, he did it or he didn't do it," Rutberg says firmly.

As the students learn over the course of the semester, certain scenarios raise a red flag that someone may have been wrongfully convicted, including:

Bad defense lawyering
Coerced confessions
Eyewitness identification error
Junk and outdated science
Prosecutorial or police misconduct
Unreliable jailhouse informant testimony

A 2000 survey of attorneys general across the country by UC Irvine professor Ron Huff estimates -- conservatively, he believes -- that about half of a percent of the eight most serious felony convictions could be faulty. If correct, that would place about 7,500 people in prison for violent crimes they didn't commit. In California, that half-percentage error would translate to 3,117 wrongfully incarcerated people, based on 2002 statistics.

If Albert Johnson had written to the Innocence Project when he was first jailed, his case would have caught the organization's attention for at least three of those six reasons -- eyewitness error, police misconduct, and bad defense lawyering. But he didn't hook up with the group until after he was released. Now he is one of five exonerated men living in the Bay Area.

The night Johnson was pulled over for speeding, a San Pablo woman was raped. At about midnight, the victim, Sharon G., was using a pay phone when a black man drove up to ask for directions. She walked up to the car under the glow of a streetlight and noticed a glint of metal in the man's hands. She assumed it was a gun, and panicked. When the driver told her to get into the car, she did, afraid she would be shot if she ran away.

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