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.

Seven months later, the court approved Johnson's motions for DNA testing and quickly located Johanna V.'s rape kit -- an attorney Johnson had retained after his conviction, Charles Hoehn III, had asked for a court order to preserve the evidence. But the courts couldn't find the DNA material in the Sharon G. case; Johnson's trial lawyer, Mindelyn Buford, had never requested that the kit be maintained, and it had been destroyed in 1996.

Four months later, in October 2002, the Johanna V. test results came back, and the technician called Hoehn with the news: Johnson was not Johanna V.'s rapist. Hoehn waited for the official documentation to arrive by fax before he brought the news to Johnson, who was being held at the Martinez County Jail while the testing was under way.

Armed with papers from the forensic lab, Hoehn arranged to meet Johnson in a jailhouse conference room. Johnson was brought in first, and stood near the door to wait for Hoehn. As soon as Hoehn walked into the room and saw Johnson, he blurted out, "The DNA doesn't match."

Albert Johnson, a 42-year-old former construction 
worker who spent more than a decade in prison, says 
he has never raped anybody.
Paolo Vescia
Albert Johnson, a 42-year-old former construction worker who spent more than a decade in prison, says he has never raped anybody.
Susan Rutberg, a professor at Golden Gate University, 
started an "Innocence Project" law school class  in 
Paolo Vescia
Susan Rutberg, a professor at Golden Gate University, started an "Innocence Project" law school class in 2001.

Johnson didn't initially understand the news. Hoehn explained: "You've been exonerated."

Johnson started to cry.

Whenever Johnson mentions Mindelyn Buford, his trial lawyer, a bit of conspiracy-theory hysteria enters his voice.

"My lawyer -- she didn't hire an investigator, she didn't use DNA, she wouldn't call witnesses," Johnson said recently. "I didn't have no defense."

Findings of incompetence are usually reserved for clearly egregious actions, like falling asleep during trial. Still, bad lawyering has been identified by the Innocence Project Network and other reformists as another frequent cause of wrongful convictions. They have called for local jurisdictions to set clear standards for adequate defense, supported increased pay and fees for public defenders, and recommended lighter caseloads. Such changes would require more research, more money, and a serious retooling of the criminal justice system -- difficult requirements in a time of budget cuts, but not insurmountable.

Harvard University's Program in Criminal Justice Policy and Management has published several papers on ways to improve public defense lawyering. One such document notes that public defense is inconsistent -- it can range from abhorrently bad to entirely competent -- but points out the lack of empirical research that might guide improved policy.

The first step to avoiding bad lawyering might be a detailed study on how to define it. As Johnson's case shows, one person's bad lawyer is another's acceptable attorney.

Though some of Johnson's accusations against Mindelyn Buford are inflated, his attorney clearly could have done a better job. Johnson's cases were her first two serious felony trials, but Buford did not seek the help of more experienced attorneys; did not hire an investigator for either case; and declined to have DNA testing performed on the rape kits, despite Johnson's repeated requests.

In the Richmond rape trial, she never consulted with an eyewitness expert and failed to argue compellingly that police had made suggestive comments during the lineup. In the San Pablo trial, she didn't point out a discrepancy in the cops' story and didn't call any alibi witnesses. During her rambling and downright strange closing statement, she seemed to insinuate that Johnson and Sharon G. had had consensual sex: "Point of the matter is, sex with a stranger is a regrettable situation. And after such an encounter feelings of remorse, shame, anger, or whatever, are normal. ... Turn on the T.V., watch Oprah, Sally Jessy, any number of individuals finding all kinds of variations of what is happening with people. Sex addicts."

In all fairness, Johnson was not an easy client. He went through nine trial attorneys before he settled on Buford, and by then he had acquired a reputation for being a "hostile and aggressive" client, according to a letter from one of his attorneys to the judge. A handcuffed Johnson even head-butted his original court-appointed attorney, at a hearing in which he'd asked for a new lawyer. (A psychologist's report says that Johnson may have a paranoid disorder, noting that "it is not surprising" he would be dissatisfied with his lawyers.)

During and after his trials, Johnson argued angrily that Buford was ineffective and that she wasn't listening to him. Charles Hoehn helped him file a motion for a new trial in the Johanna V. case based on legal arguments of Buford's professional deficiencies. The attorney in Johnson's direct appeal of the Johanna V. case also claimed that Buford had been ineffective.

All of these arguments have been rejected by the courts, which have never found Buford to be incompetent. (She declined to comment for this story.)

Some standards do exist: The American Bar Association recently established minimum guidelines for defense attorneys, in The Ten Principles of a Public Defense System. No. 8 reads, "The same attorney continuously represents the client until completion of the case." It is not easy to fire one lawyer and hire another when they are supplied for free by the state, and Johnson likely didn't help his case by doing so multiple times. It's impossible to say whether one of the attorneys he dismissed would have done a better job than Buford. But it is clear that Buford's lackluster defense helped seal his fate.

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