SAN FRANCISCO – On Monday, January 6, 2020, a jury acquitted Vihn Tran, 38, of felony charges related to a nighttime attack near Union Square in October 2018. Deputy Public Defender Seth Meisels presented evidence undermining the identification of Tran during what Meisels called a poorly run investigation by the San Francisco Police Department.
After a man suffered an unprovoked attack where he was punched, kicked, and robbed of his phone while walking home from work one night in October 2018, the victim ran to police to report the incident, describing the assailant as a slim Vietnamese man, age 25-30. Six months later, police finally reviewed local surveillance video which yielded images of the assailant, and circulated those images to all officers in an internal crime alert bulletin. Sergeant Terence Saw (who was involved in a controversial shooting of a wheelchair-bound man in 2011) claimed that he recognized the man in the surveillance as Tran, a person with whom he had a 5 to 10 minute interaction two months earlier. Officer Kimberly Ng was then assigned as the investigator, and pulled an old photo of Tran to include in the lineup which she presented to the victim at the end of May 2019.
Ng testified that when composing the photo lineup, she chose Asian men with hair similar to Tran’s. She did not consider age, build, or specific ethnicity. As a result, Tran was the only man of Vietnamese origin included in the lineup. The victim noted Tran was the “closest,” and the only one with a “Vietnamese face,” but asked, “What if it’s not the guy?” The victim was told not to worry, because police would continue to investigate. That further investigation never materialized, and the District Attorney’s office, under previous DA George Gascón, filed charges against Tran.
During testimony, the victim conceded that he was not completely sure Tran was the assailant, and that he had seen another man in a different social setting who looked identical to the assailant.
Meisels called an expert witness who testified to the inherent unreliability of memory and eyewitness identification, and the fallibility of police identification. In this particular case, the gross delay in presenting a biased lineup to the victim provided much doubt that Tran was the assailant.
“Police investigators did not conduct a timely investigation, and as a result they lost the opportunity to figure out who the real perpetrator was,” Meisels said. “Mr. Tran was erroneously charged because one officer thought he resembled the perpetrator – but a resemblance should be the beginning of an investigation, not the end.”
According to the National Registry of Exonerations, mistaken eyewitness identification is one of the leading causes and contributing factors of wrongful convictions. Thanks to a hardworking public defender and a careful jury, Tran avoided becoming another troubling statistic of a flawed justice system.