By Anna Pulley
By Erin Sherbert
By Chris Roberts
By Erin Sherbert
By Rachel Swan
By Joe Eskenazi
By Erin Sherbert
By Erin Sherbert
Joe Curtin, the Richmond police detective investigating the case -- who has known Johnson since childhood -- had been unable to find a suspect in the Johanna V. case until Johnson entered the scene in the San Pablo arrest. He said during grand jury hearings that it "never occurred" to him to investigate Johnson until then. Curtin put Johnson's photo into a lineup and brought Johanna V. back into the station to review it.
Curtin conducted the lineup in the worst way possible, Innocence Project researchers say. According to the grand jury transcripts, he made suggestive comments about Johnson's photo before and after the procedure, remarking to Johanna V. that he thought they had caught her rapist. He encouraged her to pick out Johnson's photo, even though she told him that Johnson's height and skin color did not match her assailant's. (Police reports not introduced at trial show that Johanna V. had described the rapist as a clean-shaven, dark-skinned black man between 6 feet 2 inches and 6 feet 4 inches tall. At the time, Johnson sported a visible mustache, was often described as light-skinned, and stood about 5 feet 10 inches.)
According to Johnson's Innocence Project attorneys, Curtin misinformed Johanna V. in several ways. Among them, he told her that Johnson was lighter-skinned and bulkier than she remembered because he had been in prison, where he didn't get much sun and had been working out. (In fact, Johnson had never been incarcerated before.) After Johanna V. hesitatingly picked out Johnson's picture from the lineup, Curtin told her that she had picked the photo of the man they were holding in custody.
Johanna V. later told Innocence Project attorneys that she felt pressured by police to select Johnson's photo. "We feel very strongly that the police used suggestive ID procedures in the [Johanna V.] case," says Nicole Herron of the Northern California Innocence Project, in an e-mail. "They felt that they had their guy, and they ignored significant discrepancies between the victim's initial description and Albert's actual profile." (A Richmond Police spokesman declined to comment because he was not familiar with the case.)
An October 2002 district attorney report issued after Johnson's exoneration states that the victim told an investigator that "at the time, [she] was feeling pressure and just wanted to get everything over with."
Of all the known causes of wrongful convictions, faulty eyewitness identification is the most common. According to a 1996 National Institute of Justice study, 80 percent of the people who were exonerated before 1995 had been incorrectly identified by eyewitnesses. And statistics compiled by the Innocence Project Network (a national collective of these organizations) reveal that mistaken eyewitness identification played a part in 61 of the first 70 cases the organization handled.
Psychologists studying the subject have been aware of eyewitness error for decades. Since the 1970s, thousands of papers and articles and studies have been published on the topic, including research on how feedback given during a lineup can affect a witness.
"Well before DNA came along, I was talking about the eyewitness identification problem; a good share of that problem comes from ways we do these lineups," says Gary Wells, the professor from Iowa State University. "I published dozens of studies and so on. Defense attorneys picked up on it, but they have no clout. It was ignored by prosecutors, police, policy-makers, the attorney general of the United States. The DNA exonerations came along, and then it was, 'Whoa! There's something to this.'"
Researchers have proposed simple, inexpensive changes in lineup procedures, and ample evidence proves that those changes could help prevent wrongful convictions. According to the science, ideal lineups would use the "double blind" method -- in which the person running the lineup doesn't know who the suspect is, so he doesn't inadvertently influence the witness. Also, witnesses would be shown a "sequential lineup," viewing photos or individuals one at a time, comparing each one against memory and not against each other.
The Department of Justice outlined these reforms and others in a guide published in 1999. Four years later, that guide -- the result of a yearlong collaboration among 34 prosecutors, police officers, defense attorneys, and researchers -- remains nothing more than an elaborate suggestion; the Department of Justice cannot require local police departments to follow it. Currently, only the state of New Jersey and about 10 percent of the police departments in the United States -- including, in California, only those in Santa Clara County -- have changed their procedures.
And despite the research, the California District Attorneys Association, which has a powerful lobby in Sacramento, continues to question the need for such improvements.
"The question is whether or not the identification that is produced [using these other procedures] is really that much better," says Dave LaBahn, the association's executive director. "If you're doing something that will, in fact, get a better identification, then that's meaningful and folks ought to consider it. If, on the other hand, they're just expending a lot of resources to basically shore up your case so the defense attorney can't complain about it, then is that a good use of resources?"
In Santa Clara County, which has been using the improved lineup process since 2001, the reforms were adopted because of rare advocacy from the District Attorney's Office, and the litany of concerns voiced by opponents of modified lineups have not emerged.