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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."
