By Erin Sherbert
By Rachel Swan
By Erin Sherbert
By Erin Sherbert
By Howard Cole
By Erin Sherbert
By Erin Sherbert
By Leif Haven
Albert Johnson grew up in Richmond, Calif., in a part of town where drug dealers loitered on the corner, gangs had both a visible and psychological presence, and drive-by shootings were not a surprise. Built small and lean like a running back, he is a product of this landscape: part punk, part fighter, part underdog, and part sweetheart.
He moved to the East Bay in 1971 when he was 10. His mother, Martha Johnson, had quit her job at a poultry factory in Monroe, La., and shuttled her six children west after divorcing her husband, a local sheriff.
The change was dramatic. In the South, the four rowdy brothers and their two younger sisters could play outdoors, and their father took the boys rabbit hunting. But Richmond, their new home, had -- and still has -- a jagged edge to it.
Mrs. Johnson cleaned motel rooms near Jack London Square in Oakland, where she labored long, exhausting hours at minimum wage. She left for work early in the morning, and sometimes returned after dark. Albert Johnson's first life lesson came quickly: You have to fend for yourself.
After graduating from Richmond High in 1980, Johnson signed up for classes at nearby Contra Costa College. Across the school gym where he practiced with the basketball team, he caught his first glimpse of Maria Mejia, a volleyball player and the woman who would later become his wife and the mother of his two children.
Johnson didn't have any grand career plans, and worked a variety of low-skill jobs -- janitor, liquor store clerk, security guard. With nothing promising on the horizon, he began using cocaine in his mid-20s, and was arrested for a drug possession in 1988. Though he was sent to a diversion program and never jailed, while on probation he was arrested for stealing a watch from a jewelry store. He sometimes failed court-mandated drug tests.
After the birth of his son in 1989, Johnson tried to change his ways, taking carpentry jobs throughout the East Bay. By the time he was 30, he had semiregular construction jobs and was contemplating marriage. Soon, Mejia was pregnant with their second child.
"I had a family, I was engaged," Johnson says, summing up his world. "Just doing the family thing, working."
But the trajectory of his life -- and his family's -- went markedly off course on Feb. 25, 1992. Johnson was driving home from a friend's house in his white Fiat at about 1 a.m. when he saw the swirl of red and blue police lights behind him. He was speeding. When the officer first approached his car, it seemed like a routine traffic stop.
But when the cop returned with the ticket, his demeanor had changed, and he told Johnson that he was being detained. When Johnson asked him why, the officer told him that the San Pablo police were looking for a rapist: a black man driving a small, white car.
That stop was to be the start of a long nightmare. Johnson was booked as the only suspect for the rape in San Pablo; while in custody, he was tagged for a second rape in neighboring Richmond. Ten months later, at the end of two trials, he was sentenced to a total of 39 years.
Johnson's case was one of spiraling errors -- questionable IDs, weak lawyering, destroyed evidence, release and then reimprisonment. By the time he was freed for good in late March of this year, he'd been in various California prisons for 10 years and 11 months. The entire time, he tirelessly filed writs on his own behalf; DNA evidence eventually proved him innocent of the Richmond crime. Currently out on parole, he is still working with lawyers from the Northern California Innocence Project to prove his claim: He has never raped anybody.
Today, Johnson is 42. An ex-convict and registered sex offender, he has been unable to find permanent work. He lives with his mother and abides by a 10 p.m. parole curfew. Though he got married to Maria Mejia in prison, the stress of incarceration strained their relationship, and she filed for divorce a year before he was exonerated. He's still trying to make up for lost time with his two children, now 13 and 11.
For Johnson and his family, the costs of what he sees as an unjust incarceration are immeasurable: How do you begin to calculate 10 years of squandered life?
For more than a decade, the problem of wrongful conviction in America has been portrayed as exceptional. In one highly publicized case after another, a convict is shown, through the use of DNA-related evidence, to have been undeniably innocent. These stories are emotionally compelling, but they carry an underlying message that innocent people are jailed only in extreme cases, that such events are rare, and that advances in genetic science are mitigating whatever systemic problem does exist.
The same lawyers and researchers who have used DNA evidence to free the innocent, however, have come to realize that wrongful conviction is far more common than some police and prosecutors want to admit. They know that -- by the most conservative of estimates -- thousands of innocent people are locked inside U.S. prisons, that DNA evidence alone will free few of them, and that every such imprisonment is a tragedy that works against the cause of justice. With every wrongful conviction, after all, a criminal goes unpunished.
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.
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
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.
Once she was in the car, the man made awkward small talk and drove Sharon G. to a secluded intersection in San Pablo, where he fondled her breasts, forced her to perform oral sex, and then raped her. Afterward, he allowed her to leave. She ran to the house of a friend, who took her to the police station.
About an hour later, Johnson was driving on 23rd Street in Richmond, going 42 mph in a 25 mph zone. Police officers parked at a fast-food restaurant noticed Johnson's car speeding by, and began pacing it with their own for several blocks. To get Johnson to stop, Officer Roy Smally reached toward the center of his dashboard to turn on his sirens, and accidentally hit a switch for the radio scanner. After Johnson pulled over, Smally got out of the car and left the scanner on; his partner, veteran Ron Berry, remained in the passenger seat.
Smally walked up to Johnson's window and asked him if he knew he had been speeding. Johnson admitted that he probably had.
As Johnson handed him an expired driver's license, Smally, then an officer-in-training, noticed that Johnson had a chrome bar in his car. He asked Johnson to get out and stand near the curb while he inspected the Fiat's interior for a weapon. The metal bar turned out to be a ratchet wrench.
Meanwhile, Berry heard a call go out on the radio scanner: San Pablo police were looking for an African-American rape suspect driving a small, white car. Berry looked up at the vehicle stopped in front of him and called the San Pablo police immediately. Berry waited until Smally had inspected the car for a weapon, and then told the police trainee about the turn of events. By that time, another Richmond police officer had arrived on the scene as backup, and two officers stood watch over Johnson as they waited for the San Pablo police to arrive.
After several minutes had passed, Johnson asked the cops why they were still holding him. "[The police] said, 'We just got a call over the radio, and your car and you fit the description of a [rape] that just took place,'" Johnson says. "And I'm like, 'What?' And so that's how it all began."
The San Pablo police were just about to take Sharon G. to the hospital for a victim's exam, but the officer assigned to the case, David Krastof, decided to drive her to the intersection where Johnson stood near his parked Fiat for what police call a "show-up identification." Research reveals that show-ups are a "problematic procedure," as Iowa State University's Gary Wells, a leading expert on eyewitness identification, puts it, but officers use them when they don't have probable cause to hold a suspect but don't want to let a potential criminal go free.
About six minutes later, Krastof arrived in a patrol car with Sharon G. He reminded her that the person she would see might not be the perpetrator, and then asked her to look carefully at Johnson as he stood next to his car. Studying Johnson as the patrol car drove by, Sharon G. told Krastof that she was certain Johnson was her rapist. She also said Johnson's car was the one she was raped in (she described it in court as looking like a "Datsun five-speed"). Satisfied with the strong identification, Krastof drove away without coming to a complete stop.
Johnson was arrested immediately and taken to the San Pablo Police Department, where he was booked, and then to a nearby hospital so police could get a DNA sample from him for comparison with the rape kit. (Despite Johnson's repeated requests for this test, it was never performed; the rape kit was destroyed before any comparison could be made.) The next morning, Johnson refused to give a statement, and kept asking for an attorney.
Johnson would become the only suspect in the Sharon G. rape case. Two months later, he had been charged with the crime, and after a four-day trial in November 1992, he was convicted and sentenced to 15 years in state prison.
Word of the arrest had spread quickly within the police department, and on the day Johnson was detained, it had suddenly occurred to a Richmond detective that Johnson might be the culprit in an unsolved rape case from December 1991.
In that incident, Johanna V. had been jogging at the Richmond High School track one morning when an African-American man walked up to her and asked if they could talk. She said no, but the stranger told her he would shoot her if she didn't stop. The assailant made Johanna V. walk to an area behind a nearby building, where he raped her and forced her to perform oral sex. Afterward, the rapist made Johanna V. give him her watch and a gold chain, and they walked back to the track, where he talked about sports and how he was angry with his ex-girlfriend. After half an hour, the rapist told Johanna V. to leave. When she got home, her brother called the police.
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.
"Some people have said that [these reforms] would reduce valid identifications, or they would be too expensive or too difficult to implement, but these problems have not come forward," says David Angel, the Santa Clara deputy district attorney who spearheaded the use of the new lineup procedures. "There is compliance; the training is not difficult; good IDs are made, and presumably they're more accurate."
Albert Johnson, for one, did not get the benefit of any of these improved lineup measures when he was arrested in 1992.
Johnson filled his life in prison with study. Except for three days of work in a prison kitchen that nearly drove him to vegetarianism, he refused to take a job while he was in jail. "I needed to be in that law library instead of working in they sweatshops, so to speak," he explains. "To me, being in prison for something I didn't do, I looked at it like modern-day slavery. So I knew I had to go to the law library, and whatever it took I was going to go."
Comments like these hint at Johnson's aggressive, self-righteous side, and he admits that he frequently resorted to blows when he was incarcerated. His prison disciplinary record is by no measure pristine: He has been punished for "insubordination/insolence," "interference with staff duties," using "abusive and obscene language," "assault/disruptive conduct," and fighting.
But that pugnacious spirit served him well in the courts. He taught himself how to write writs and motions, and once he got the hang of it, he flooded the legal system with what he calls "guerrilla law." He filed writs asking for a new attorney. He filed writs asking the court to allow him contact visits with his son. He filed writs asking for a "snack sack" to accompany each of his meals. He filed supplements to his trial appeals, and his own habeas corpus petitions.
His new jailhouse legal career, coupled with his anger and aggression, made Johnson unpopular with the prison staff, and he was moved about half a dozen times. His frequent relocation sometimes made it difficult for his family to visit, though Mejia tried to bring the kids to see their father twice a week.
Johnson's family supported his writ-writing habit by sending him money for copies or helping him type up complaints. His brother Dave stayed the closest to him while he was in prison, and still remembers how difficult it was to leave him there.
Sitting in an empty gym at Contra Costa College on a recent evening, Johnson and Dave recall their time apart. Dave coaches football at the college, and on this night a whistle continues to swing around his neck. Johnson, who's fashion conscious and a bit vain, is dapperly dressed in a pressed goldenrod button-down shirt, black slacks, and gleaming shoes; despite the dimness of the building's fluorescent lights, he wears designer sunglasses. Pulling up a chair, Johnson leans in toward Dave to listen to him talk.
"It felt good seeing him, but it didn't feel good leaving," Dave says, thinking back to the prison visits. "We left, man; he's going back in there. No telling what going to happen to him. That was the bad part. The good part was seeing him."
I ask Dave how he explained to his kids why their Uncle Albert was in prison for 10 years. Johnson looks thoughtfully at his brother.
"I was just thinking about Devon [Dave's son]," Johnson says finally. "He came to see me one time, and after two or three times, we was playing. We just playing and stuff, and time really goes, and he wanted me to leave with them. He said, 'Man, why can't you leave with us?' I said, 'I got to stay here.' 'But why you got to stay here for something you didn't do?' And I said, 'This is how it is.' He said, 'Why don't you just tell 'em you didn't do it and they let you go?'"
The brothers chuckle wryly.
Johnson continues, "'It don't work like that, man.' And I just thought about that. It was so funny, but it hurted, too. But I couldn't, you know, it hurt so much I wanted to cry, but I couldn't. And when I went back to my cell, I did. And you know ...."
Johnson stops talking and removes his sunglasses to rub the tears in his eyes.
Dave stares into the farthest corner of the room. "God, I feel bad for people who really can't do more than they can; they get into a situation where they really can't help themselves," he says. "I don't know, this system we have, it either work or it don't. Once you in it, you tied up in it. They got you and you're never completely free."
It's a typical morning in July, and the phone on Paul Myslin's cluttered desk in the San Francisco Public Defender's Office is ringing. Myslin, a determined young lawyer with a quirky sense of humor, is a one-man Innocence Project whose mission is to investigate possible cases of wrongful murder or rape convictions in San Francisco. As a result, the person on the phone could be an inmate calling collect to ask for help, a police lieutenant delivering news about physical evidence, or Susan Rutberg of Golden Gate University phoning to discuss a case (the two satellite offices often work together). This time, though, it's a criminal court clerk named Jeff telling Myslin that case files he ordered are available for viewing.
After hanging up the phone and wading through the landscape of case files and paperwork in his cubicle, Myslin dons the coat to his suit and heads out of his drab room, which he tries to liven up with Folsom Prison postcards and letters from inmates. Striding so briskly that a companion must run to keep pace with him, he exits the Public Defender's Office and crosses to the other side of Bryant Street to enter the dim, cavernous Hall of Justice.
Now the adventure begins. The criminal courts have recently moved their records room, and it's unclear where Myslin should go to find Jeff or his files. He decides to inquire upstairs, in the old criminal court clerk's office.
On the third floor, Myslin walks into a now-abandoned space, where a series of unenthusiastic-looking city employees walk back and forth behind the long counter, lugging boxes and carrying computer equipment. At long last, Jeff, a tall and bookish fellow, appears, wheeling a dolly.
"I've got some files for you, 'bout yay high," he says to Myslin, indicating a 2-foot stack. "And we're purging old evidence, old guns -- 'the arsenal.' I found a gun for 8824401."
Myslin immediately recognizes the case number: It's one that he's investigating, and it's been difficult to find evidence that could be tested for DNA clues (see Page 20). This is the third time that material from one of his cases has emerged serendipitously.
"It was misfiled," Jeff continues. "In the wrong box. But I looked at the number and I thought, 'Oh, it's one of those [Innocence Project] cases.'"
"It was one of those cases that didn't have any evidence left," Myslin tells him, a note of disbelief in his voice.
"Well, I don't know what you can do with it now," Jeff says, and offers to show Myslin the gun.
Jeff tells Myslin to meet him back on the first floor. As we sprint down the hallway at Myslin's usual brisk clip, the public defender shakes his head incredulously. "I hear stories like that every day," he says. "Here I am, trying to locate evidence in a case, and it's misfiled, and they're about to purge it. You can see the drama to it."
Once downstairs, Jeff takes Myslin to his cubicle and opens an innocuous file box on the floor, in which pistols, semiautomatics, and .32-caliber guns -- enough firepower to arm a small militia -- have been tossed haphazardly on top of each other.
Jeff begins digging through the box, tossing aside guns as if he were going through a department store sale bin. Finally, he holds up a smooth, black handgun with a tag dangling from it that reads "8824401."
Myslin takes it in his hand and inspects it. Because the gun wasn't stored in a plastic bag, any fingerprints or potential DNA samples once on it were lost long ago. It's useless to him.
For Myslin and other Innocence Project members, locating testable DNA evidence for an inmate with strong claims of innocence is one of the greatest challenges of the job. "A lot of stuff is destroyed," Myslin explains. "I've had numerous incidents where they tell me that the evidence doesn't exist, and later it turns up. A lot of times, it's a matter of luck."
A national bill proposed by the Innocence Project Network in 2001 -- which has yet to pass -- seeks to enact post-conviction DNA testing laws. Thirty states have passed such laws; Albert Johnson took advantage of California's in 2001.
But finding innocents in prison and helping them seek exoneration, one by one, will not begin to address the real problem: a defective investigative system that charges and convicts thousands of innocent people.
In November 2000, Johnson went to the prison law library and picked up a convict self-help newsletter. Skimming its contents, he found an article that described a new California law that would allow inmates to request post-conviction DNA testing. Johnson felt a surge of hope. Everyone had ignored his request to get the testing done before his trials, and now he could get it done on his own.
He studied the law eagerly and began writing two motions -- one for each rape case -- that he hoped would set him on the path to freedom. It took him two weeks to finish the two 18-page documents, each complete with legal case citations and exhibits. He sent them to the courts straightaway.
Within a month, he received a letter from the California Superior Court telling him that his motions had been rejected. Frustrated but not defeated, Johnson returned to the law library and showed the letter to a fellow inmate who had been an attorney before his incarceration. The inmate looked the document over and explained that Johnson had filed his motions before the bill had become law, and that he should try again in a year.
For safekeeping, Johnson kept the pages in sealed envelopes in a box of legal papers in his cell. In November 2001 he put the documents in the mail again, as if floating another message in a bottle.
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."
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.
Despite Johnson's exoneration, the Department of Corrections seemed to want to keep him in prison.
In January 2001, about the time that Johnson was asking the state to test the rape kits in both of his cases, prison guards found a sharpened piece of metal in his jail cell and slapped him with a weapons violation.
Johnson argued vociferously that he and his cellmate, Zachary McPeak, had been set up, but prison guards figured he was lying, and he was found guilty of the charge during a March 2001 prison hearing. As punishment, 360 days were deducted from Johnson's "good time" credits, and he was moved to another prison and put in solitary confinement.
But in August 2001, the truth came out. An inmate had sent a letter to the warden admitting that a prison guard had helped some white supremacists he knew plant the knife in Johnson and McPeak's cell. During McPeak's hearing on the matter, the charges were dropped.
No one bothered to notify Johnson. In fact, he didn't learn about the new evidence until February 2002, when McPeak was coincidentally transferred to the same Los Angeles-area jail.
The first time they talked, McPeak updated Johnson on the dropped charge and gave him copies of all the documents from his hearing. Johnson immediately began filing appeals with the Department of Corrections. For almost eight months he got the bureaucratic runaround. The weapons charge was still unresolved when Johnson left the prison in October 2002, after he was exonerated in the Richmond case.
It would come back to haunt him. Four days after he was released, Johnson was put back into custody.
He was shopping with his sister Diane when he learned that there was a problem. Their mother called Diane's cell phone to say that Johnson's parole officer wanted him to call immediately. When Johnson finally returned the call several hours later, his parole officer told him that he needed to report to his office the next day, for reasons that couldn't be discussed on the phone.
The next morning Johnson met his parole officer at about 9. The officer told him that the Department of Corrections had forgotten to add in the 360 days of credit lost for the weapons charge, and he had to go back to prison. His new release date would be August 2003.
Johnson couldn't believe it. His sister, who had driven him to the parole office, became hysterical. Johnson asked to use the phone and called his mother and his attorney.
"My mother was going crazy," Johnson recalls. "My sister was crying at the parole office. I had to calm her down. It was crazy. I can't even explain it. Even the parole officers, they weren't even understanding it. I couldn't believe it, but it was like, after all them years and everything I been through, it was like nothing surprises or amaze me."
After he was reincarcerated, Johnson contacted the Northern California Innocence Project, and lawyers there helped him file a writ of habeas corpus with documents proving the knife was a setup. Within a month, the state attorney general agreed that the charges should be dropped and the "good time" credits restored. Johnson, exonerated yet again, was to be rereleased in late December 2002, just in time to spend Christmas with his family.
But he didn't spend the holidays with his loved ones. Before Johnson could be released, the Department of Corrections violated its own regulations and reopened an assault allegation that dated back to May 2002 -- more than six months after the fact.
In that incident, Johnson, who was in solitary confinement at the time, allegedly threw a food tray and grabbed two officers by the arm through the cell's food slot, then bit them. (He says it was in self-defense; he claims he bit the officers to make them release their hold on hisarm because he felt they might break it.) Soon after the incident, the Department of Corrections referred the matter to the L.A. District Attorney's Office, which dropped the charges.
Johnson figured the case was closed, until the allegations were revived just as he was going to be released a second time. During hastily organized proceedings held in December 2002, the Department of Corrections found Johnson guilty of battery and assault. The ruling took away 150 more days of "good time" credits, giving Johnson a third new release date: March 2003.
The Innocence Project helped Johnson file yet another writ of habeas corpus, claiming the department had "pursued the battery allegations against Mr. Johnson in retribution for his efforts to exonerate himself of his convictions and of the weapon incident."
The writ was denied in April 2003, but by then Johnson had served out all his time and been released. The charges hung over his head for a few months -- with the Sharon G. conviction, these two assaults could have been his second and third strikes -- until the L.A. District Attorney's Office sent word that it had, once again, decided to drop the case.
As the Innocence Project's research has shown, basic criminal justice system reforms -- like improving police lineup procedures, videotaping confessions, and scrutinizing the use of jailhouse informants -- can help prevent innocent people from going to jail in the first place. A bill incorporating these reforms has already been passed by the Illinois Legislature, where a blue-ribbon commission recommended that the state adopt 85 policy changes -- addressing the six causes of wrongful conviction identified by the Innocence Project Network -- to prevent guiltless people from being imprisoned. (Though these reforms were written with capital punishment in mind, some will likely affect everyone who comes in contact with the Illinois justice system.)
California, however, currently complies with only 6 percent of these recommendations, according to an article that will be published in November in the Santa Clara Law Review. In San Francisco, prosecutors say they are considering changes. "[Looking into wrongful convictions] is something that is high on our list as a result of the Tennison and Goff cases [two local men who were recently exonerated]," says Mark MacNamara of the S.F. District Attorney's Office. He says the office is asking the city for $300,000 to hire a few more lawyers to look into potentially wrongful convictions; that it will dedicate training time to the issue; and that "police and prosecutors need to work together to ensure that informants are telling the truth." Capt. Paul Chignell of the San Francisco Police Department says that wrongful convictions are a concern, and that the SFPD has cooperated with local Innocence Projects. There are no official police policies now in place, however, to prevent wrongful convictions. And in a state with citizens eager to support bills that exact harsher and harsher punishments for criminals, it is unlikely that these key criminal justice reforms will happen any time soon at the state level; most California legislators view them as a form of political suicide.
"It's a difficult [political] climate to try to suggest reforms in the criminal justice system," says one legislative staffer. "I think it's a concern that [legislators] are afraid to be tarred with the brush of being soft on crime. Whether it's true or not that they are soft on crime is immaterial. You can be smart on crime, but you can also be accused of being soft on crime."
Politically powerful law enforcement and prosecutors' groups have also opposed legislative efforts to address wrongful convictions. In California, a bill requiring the videotaping of suspect interviews was defeated last year -- as was a weaker 2003 bill merely suggesting that interviews be taped -- following strong opposition from prosecutors and police. Even the post-conviction DNA testing law, the least controversial of all, took eight months of political wrangling to pass. (A spokesperson for the California Attorney General's Office said, "We are not involved in ... any of these proposals, or discussions about these changes.")
"Our system has always been that we would rather have 1,000 guilty walk free than [put] one innocent [person] in prison -- that's where we all operate from," says Dave LaBahn of the California District Attorneys Association. "But based upon a single case [of wrongful conviction], we would legislate reforms statewide? Especially a state of our size -- is that the right thing to do?"
"Can you do 'em?" asks Spike Helmick, president of the California Peace Officers' Association, when questioned about making reforms to police lineups, reconsidering jailhouse informants, and taping confessions. "Yes. But I'm not so sure the need is as strong as some believe. But then again, some people believe that there is not a need at all."
Albert Johnson knows all too well the need for change beyond post-conviction DNA testing -- and the ruinous impact on lives and families if deeper reforms continue to be ignored. Though he maintains his innocence in the San Pablo case, its destroyed rape kit cannot be tested for DNA. The Northern California Innocence Project is trying to test other biological material to prove that the San Pablo police got the wrong man. It remains an uphill battle: Both the victim and the District Attorney's Office continue to believe that Johnson is guilty.
The first few weeks after Johnson was released for good, he spent his days staring out the window, absorbing the sights of the world as he rode BART trains from one end of the Richmond line to the other. "I been sitting in prison all this time; I don't need to be sitting at home," he says. "I like BART."
He's been out for about eight months, but he still gets up every day at around 4:30 a.m., hours he grew used to keeping in prison. In the quiet of early morning, he prays for guidance, and spends a little time thinking. Then he showers, irons his clothes, and leaves the house. Occasionally, he meets with Lola Vollen, the director of the Berkeley-based Life After Exoneration Project, to learn how to send an e-mail, get help signing up for Medi-Cal, or talk about his future goals (he says he wants to find a stable job and help support his kids). Most days, he heads to San Francisco to assist a friend with odd jobs -- like painting or installing mirrors -- sometimes laboring for 12 hours straight. A few of the young men he works with ask him questions about life in prison. Johnson answers gladly; it's nice to be an expert in something.
In his free time, he is consumed by sports. Some Sundays, he goes to Oakland Raiders games with his cousin, who has season tickets. Other times, he'll shoot hoops with some friends. Friday or Saturday nights, he tries to bond with his kids in the only way he knows how -- by finding a spot on the bleachers to watch his son play football or his daughter play soccer.
When I ask him how he's doing -- intending the question as a casual greeting -- he always answers thoughtfully.
"I'm tired, you know?" he says one afternoon on the phone, after he temporarily broke off contact with me when I declined to pay him for his time. "Tired of talking about it. I just want this to be finished. Nobody been helping me. I'm tired of dealing with it, but I got to."
Johnson's not done fighting. He had the force of his own will, the support of his family, and the help of a few good lawyers to fight off one wrongful conviction, but his name has not yet been cleared. Others have even less luck. Because of inertia, politics, logistics, and ignorance, the things that could be done to prevent innocent people from being wrongfully convicted are not being done.
"Don't get me wrong," Johnson said during one of our early conversations, "a lot of people should be in prison. But there's a lot of people in there that shouldn't be in there, that been crossed up. ... Man, I hate to think about it sometimes, you know? A lot of those cats, they give up. Sad, man."
We are sitting in a San Francisco deli. He looks out the window and frowns. His eyes are trained on the passage of cars and people on the other side of the glass. "People really need to get into some of the laws, get into just what is going on, period, in law enforcement and the judicial system," he says.
"We only have a judicial system, not a justice system."