Lisa Steele
Lisa Steele ()

Connecticut’s highest court has upheld the conviction of a man involved in a shooting in a case that raised questions about eyewitness identifications in the digital age.

In this instance, the shooting victim helped police solve the case by finding a photo of the shooter on the Internet. The defendant’s lawyer thinks there’s too much room for error when victims try to jog their memory by researching their potential attackers online. “I’m concerned we’re going to see more of it,” said Lisa Steele, a Bolton, Mass., attorney licensed to practice in Connecticut. “One of the things we know about memory, it can be altered.”

On the afternoon of Dec. 30, 2009, Johnnie Jones, then 21, left his job at the Clarion Hotel in New Haven, went home and took a nap. That evening, he visited his father and then went to a Chinese restaurant. While walking home, he encountered a group of men, including the defendant in this case, Nathan Johnson. Jones remembered Johnson from their childhood days in Pop Warner football, though he didn’t recall Johnson’s name.

Jones then went to a convenience store, bought cigarettes and lottery tickets. He then ran into some friends and had some drinks, but left when the friends started smoking embalming fluid. As Jones walked through an alley, he was jumped and robbed. Jones thought he recognized one of the men as Johnson. As he tried to run away, Jones was shot in the back and left paralyzed.

Initially, Jones did not tell police about the man he recognized. “Where I’m from, you don’t tell. You don’t tell,” he later testified.

Jones later had a change of heart after talking with friends and family. He also brought to police a photo he found online of the defendant. Jones found the picture on the website Myspace.com, but with no name nearby. However, police noticed the name “Nate” in the comments section of the web page and searched their own data­base of criminal convictions for people named Nate or Nathan.

Police found a different photo of Nathan Johnson and included it in a photo array. Jones picked Johnson’s photo out of the lineup. Johnson was later apprehended and convicted of various crimes, including felony assault and robbery.

At an evidence suppression hearing before trial, Johnson’s lawyer argued that the suspect identification was tainted because the photo lineup included no other photos of anyone else resembling the man in the picture Jones brought to police. The lawyer also argued that the shooting victim was drinking that night and the lighting was dim so his recollections were unreliable. A trial judge said the photo array was not unduly suggestive.

Following his conviction, Johnson, through his appellate lawyer, Steele, offered a new argument. They said Jones’ identification should have been suppressed because the victim sought out a photo on his own, studied it and had an opportunity to discuss it with friends and family before giving it to police. As such, they said, it’s use violated the suspect’s due process rights.

The state Supreme Court ultimately took up the appeal and, in a decision released July 21, did not think anything Jones did in helping police catch his attacker violated Johnson’s constitutional rights.

“In the present case, the defendant has not cited, and our research has not revealed, a single case in which a court has concluded that unduly suggestive conduct by a private actor automatically implicates constitutional due process principles,” Senior Justice Christine Vertefeuille wrote in the majority opinion. “Accordingly, we reject the defendant’s claim that the due process provisions of the state constitution are automatically implicated when identification evidence has potentially been tainted by unduly suggestive private conduct.”

Chief Justice Chase Rogers penned a separate concurring opinion.

Senior Assistant State’s Attorney Michele Lukban said the justices made “a well-written, well-reasoned decision.”

Steele, Johnson’s lawyer, was disappointed in the ruling and the implications going forward. “I suspect we’re going to see more victims doing their own investigations because it is so much easier these days” because of the Internet, she said. “We see it in some of the jury misconduct cases, juries doing research.”

Steele said victims who think they are accurately identifying perpetrators by using online information or photos and then showing them to, and discussing them with, other people could mean trouble for defense lawyers. “When a witness says, … ‘I didn’t see who did it,’ then later says it was John Doe, police need to know whether that comes from a witness who slept on it and had a chance to think about it [or] a witness who talked to friends and neighbors.”

Steele said science shows that human memory can be altered, and that Internet research by crime victims could certainly contribute to something like that happening. “By the time the defense attorney comes into [a case], it can be weeks, months later and [the victim] may not want to talk to the defense investigator,” she said. “Their memory of how they got this information may have faded over the weeks and months. There may be no record of what happened.”•