The following article appeared in The New Yorker on January 17, 2000:

 

Annals of Justice

 

DNA ON TRIAL

 

The test is irrefutable, so why doesn’t it always work?

 

By Peter J. Boyer

 

Each year, volunteers from the second- and third-year classes at the Benjamin N. Cardozo School of law, in lower Manhattan, are selected to participate in a program called the Innocence Project, whose mission is to exonerate, through DNA testing, people who have been wrongly convicted of crimes. For the students, there is much effort and no pay, but there is invaluable real-life instruction on the workings-and the failings-of the criminal-justice system. The project, which was inaugurated in the early nineteen-nineties, has played a role in thirty-nine exonerations, and after every triumph the students deconstruct the case to show where the system failed. Last summer, their efforts produced what the project considers a prize study in miscarried justice: the case of Calvin C. Johnson, Jr.

 

Johnson, who spent nearly sixteen years in Georgia’s state prisons, where he was serving a life sentence for rape, aggravated sodomy, and burglary, gained his freedom in June. Although DNA exonerations are hardly uncommon anymore, Johnson’s story became national news, because it seemed the perfect allegory for the native Southern iniquity regarding race: Johnson is black, his accuser is white, and he was convicted by an all-white jury that reached its verdict in less than an hour. (The Times, for instance, saw in the case “the racial underpinnings of so many convictions in Georgia and the rest of the Deep South.”)

 

On the day of his release, Johnson stood in the courthouse where he had been sentenced to prison and accepted a handshake from the man who had sent him there, Clayton County District Attorney Robert Keller. It was a satisfying scene, duly noted by the press, but Keller continued to believe that Johnson’s prosecution and conviction had been entirely warranted. This view was shared by other law-enforcement officials, including Paul Howard, who had prosecuted Johnson in an earlier case, and Carole Wall, another of Johnson’s prosecutors, who says of him, “I really do think that he’s a serial rapist.”

 

Keller had considered fighting Johnson’s exoneration bid, but the prospect of taking on the Innocence Project was daunting. The project is run by the noted defense lawyers Barry Scheck and Peter Neufeld, who became national figures after their work in behalf of O.J. Simpson’s defense team, and the Johnson case, with its racial dynamics, had the potential for political calamity. Also there was the DNA. The science that exonerated Calvin Johnson is the marvel of forensics, and the Innocence Project’s DNA expert, a forensic scientist named Edward Blake, is recognized as one of the world’s best - so highly regarded that Keller’s own forensics experts didn’t even think it necessary to verify his findings. In the end, Keller assented and Johnson was freed.

 

At the Innocence Project, Calvin Johnson’s case was supervised by Peter Neufeld, who viewed it as a grave injustice wrought by a flawed system- “ a fabulous model for the lingering legacy of slavery,” as he puts it. Neufeld, who is forty-nine, became a lawyer because he saw the law as a means to effect social change, and he is proud of his professional fidelity to his social conscience. After graduating from New York University School of Law, Neufeld went to work in the Legal Aid office in the South Bronx, where he met another earnest young lawyer on a social mission, Barry Scheck. Neufeld and Scheck became accomplished defense lawyers and colleagues as well, developing a particular interest in what Neufeld calls the “intersection between science and the law”- that is, forensics. Neufeld did pioneering work in forensic psychology; he was one of the first lawyers to successfully use “battered woman’s syndrome” as a defense against murder. He chose cases according to a strict political code, refusing, for example, to represent accused rapists who claimed in their defense that the victims had consented to sex, even if he believed them to be innocent, because “I didn’t want to be part of the process of trying to lobby jurors to develop a different approach toward the politics of sex.”

 

Inevitably, Neufeld and Scheck were drawn to the new technology of DNA “fingerprinting,” recognizing in it a powerful tool for exonerating people who had been wrongly convicted and imprisoned. In its probative value, it was such a monumental leap beyond conventional serology, or blood typing, that the two men imagined nothing less than a transformation of the criminal-justice system. To Neufeld, DNA identification is “the gold standard of innocence.” Scheck has called it a “magical black box that suddenly produces the truth.”

 

The lawyers found that applying DNA testing to long-settled criminal cases was a tricky business, though, because the evidence was fragile and old; in many instances, it no longer existed. But they went to work, with the help of students at Cardozo, where Scheck is a professor and Neufeld teaches part time, and began to win exonerations, based on the mesmerizing power of DNA proof. Word of the Innocence Project’s work spread, creating a flash fire of hope, and soon the project had a pile of requests several hundred cases high. The lawyers were selective – biological material had to be available, and the defense had to have been that the accused had been wrongly identified by the victim. (Seventy per cent of the project’s cases are dropped, because the evidence has been lost or destroyed.)

 

By the time Neufeld agreed to take on Calvin Johnson’s case, some sixty men in America had been exonerated and freed from prison through DNA testing. “We think there’ll be hundreds and hundreds exonerated in the next few years,” Neufeld says.

 

The Innocence Project, however, is not what made Peter Neufeld a nationally famous lawyer. What accomplished that, to his chagrin, was his role on the “dream team” of lawyers who successfully defended O.J. Simpson against the charge that he murdered his ex-wife, Nicole, and her friend Ron Goldman. Neufeld, an affable New Yorker, grows visibly taut at the mention of the Simpson case, and he will ask a reporter not to mention this “matter that was litigated in the Los Angeles Superior Court.” In his office, the only obvious reminder of the case is a mock Oscar on a bookshelf bearing the inscription “To the Simpson Defense Team” – a gift from an admirer in Los Angeles.

 

And yet the Simpson case is surely relevant to the matter of DNA as the “gold standard” of innocence or guilt. In the criminal trial, the prosecution presented a trove of credible DNA evidence – blood in Simpson’s Bronco, on his socks, on the fence outside Nicole Brown Simpson’s house, among other things – that connected Simpson to the crime. Neufeld and Scheck’s job in the Simpson defense was to attack the DNA presentation, and, by employing their own fluency in DNA forensics, they reduced the prosecution’s DNA case to one of practical irrelevance. Because the actual science of the DNA identification was unassailable, Scheck and Neufeld attacked the procedures used to collect and store the evidence, challenged the competency of the forensic specialists who handled it, and nourished the idea (however dubious) that the case against Simpson was the result of a frameup by the Los Angeles Police Department.

 

Their efforts were central to, and perhaps even decisive in, Simpson’s acquittal, but there was a larger result, too: if the DNA evidence in the Simpson case was not enough to compel a corresponding verdict, then DNA could not be a “gold standard of innocence.” Scheck and Neufeld demonstrated that in the hands of skillful lawyers operating in the adversarial context of a court-room DNA becomes just another piece of evidence.

 

As it happened, the case of Calvin Johnson was not a simple matter of remedying old prejudices with new science. Georgia law-enforcement officials felt that they had good reasons for arresting Johnson, and the jury that convicted him likewise felt that it had good reasons for doing so. Although it was DNA evidence that ultimately freed Johnson, Robert Keller, the prosecutor, could in good conscience have fought his bid for freedom with the same sort of legal attack that prevailed against the prosecution’s DNA evidence in Los Angeles Superior Court.

 

Calvin Johnson, Jr., hardly seemed a likely candidate for trouble with the law. He was a college graduate, with a degree in communications, who worked at Delta Air Lines. He was handsome and articulate, the product of a solid Atlanta family of proud achievers who hoped that he might become a successful broadcaster. But after college he fell in with a wild crowd, and he began finding mischief that soon became real trouble. Around midnight on April 13, 1981, Johnson drove to College Park, a mostly white, working-class town at the edge of the sprawling Atlanta airport, and slipped through a window into a darkened apartment. A neighbor happened to spot him, and she notified police, who arrived a few minutes later to discover Johnson rummaging through the kitchen. He was wearing cutoff jeans, gloves, and – the patrolman who arrested him noted – no underwear. Johnson was carrying a buck knife that he used at his job, at an airport warehouse.

 

The patrolman who caught Johnson in the act handcuffed him and drove him to the College Park police station, where he was booked on burglary and concealed-weapon charges and locked in a cell. A few hours later, the day shift arrived at the station. Reading the night log and noting the burglary arrest, Detective Lewis Harper and Sergeant G.J. Bencale brought Johnson to the detectives’ room and advised him of his rights. Johnson signed the form, but declined to make any statement until he had seen a lawyer. The two officers took him to his cell, and sat down to review his arrest record. Then they did what policemen do: they theorized.

 

There had been a series of sexual assaults in College Park, the most recent four nights before. A College Park woman named Katherine Lowe had come home from dinner with a friend around midnight, and when she entered her apartment she was grabbed from behind by a man with a knife, who had pried open a sliding glass door. He led her to the bedroom and raped her. The assailant then asked her for money and took ten dollars. Lowe told police that he was a black man of medium build, that he had a mustache, and that he spoke softly. She said that he wore no underwear.

 

It struck the officers that the burglary suspect they had just talked to – the guy with no underwear – matched the physical description that Lowe had given of her assailant. She had guessed that he weighed a hundred and seventy pounds (Johnson weighed a hundred and sixty); she said he had a mustache (Johnson had a mustache); she said he was soft-spoken (so was Johnson). There was a discrepancy: Katherine Lowe believed that her assailant had been uncircumcised. Nevertheless, the rape had occurred in the same neighborhood as Johnson’s burglary, and at the same time of night, and the assailant had also entered through a window. The night before Johnson was arrested, the woman who reported his break-in and a friend had seen a black man who looked like Johnson standing naked behind her apartment, with his clothes in one hand. A few weeks earlier, another woman, Lisa Givens, reported that a black man matching Johnson’s description had entered her home, robbed her, and tried to rape her. (The names of all rape victims and witnesses in this article have been changed.) There had been no leads in these cases, and Johnson was beginning to seem very much like a lead.

 

Detective Harper got a warrant to obtain samples of Calvin Johnson’s blood, hair, and saliva, to be tested against the samples taken from Katherine Lowe at the hospital on the night she was raped. There was no DNA technology in 1981 – the best science was conventional serology. The tests showed that Johnson was of the same blood type, Type O, as Lowe’s rapist, and hair taken from Johnson was of the same type as hairs retrieved from the crime scene. But because the forensic science was relatively imprecise – more than forty per cent of the population has Type O blood – any case would stand or fail on the victim’s identification of her attacker.

 

A Polaroid photograph was taken of Calvin Johnson, and that night the detective who was working on the Katherine Lowe case, E. S. Meares, prepared a photographic lineup and asked Lowe to come to the station. Meares showed her Johnson’s picture, along with those of five other black males of roughly the same age and aspect, and asked Lowe if she recognized her assailant. She picked Johnson’s photograph.

 

The case fell to Paul Howard, a rising young prosecutor in the Fulton County district attorney’s office. Howard, who is black, believed that he had a strong case, and a Fulton grand jury indicted Johnson on charges of rape, aggravated sodomy, attempted rape, burglary (two counts), armed robbery, and carrying a concealed weapon.

 

The distraught Johnson family hired a lawyer, Mark Kadish, to defend Johnson, but before the case moved to trial Howard came across an irregularity in the identification process which caused him to doubt whether he could win a conviction on the sex charges, so he dropped them. That left only the burglary and weapon charges, and since Johnson had been caught in the act Kadish agreed to a plea bargain. Johnson pleaded guilty to burglary and possession of a concealed weapon, and in September, 1981, he began serving an eight-year sentence.

 

In retrospect, it seems possible that Johnson might have been better off if he had been tried for the rape of Katherine Lowe and the other sex crimes. At a trial, he at least stood a chance of acquittal; as it was, he remained convicted of rape in the minds of the law-enforcement officials who one day soon would again decide his fate.

 

Paul Howard, who is now the Fulton County District Attorney (the first black in Georgia’s history to hold that office), says he believes that the evidence strongly implicated Johnson in the Katherine Lowe rape. “If you look at him getting caught in that apartment, where it was located, the time period, the identification, the hairs, the sperm, there’s a good chance he would have been convicted,” Howard says. Yet he has never publicly explained why he dropped the sex charges, except to vaguely cite a “problem” with the evidence. Neither the police nor Johnson’s attorneys nor Johnson himself knew what that problem was.

 

But a close reading of the police records of the Katherine Lowe investigation reveals a critical police error – an error that would have made a conviction at trial virtually impossible. Once Detective Meares had arranged for Katherine Lowe to view a photographic lineup and she had chosen Johnson’s picture, that would have been enough for Howard to bring charges, and possibly for a jury to convict. But Meares, perhaps in the enthusiasm of breaking a difficult case, then did something that is outside accepted practice. He had spoken to Johnson himself, and he knew that Johnson’s manner of speaking was distinct from that of the usual suspects who ran though the police station. It occurred to Meares that Katherine Lowe’s identification would be even stronger if she could hear Johnson speak. A supplementary police report shows that Meares escorted the victim downstairs to the jail, where she confronted Johnson. “Victim carried on a conversation with perpetrator,” the report reads. “Victim identified voice. Also stated that she remembered his big eyes and that she was positive that was the subject that raped her.”

 

In criminal-defense jargon, what Meares did was called a “one-on-one showup,” a procedure that is greatly discouraged, because it is so suggestive. If a victim is asked by a police officer to identify a suspect who is presented alone, rather than in a group, she may infer that the police have already determined the suspect’s guilt. Katherine Lowe’s jailhouse meeting with Johnson would have legally tainted her entire identification, and without that the case against Johnson would likely have collapsed. Johnson’s attorney never found out about the “showup,” because the sex charges were dropped. Had the case gone forward, he says, he would certainly have moved the court to suppress Lowe’s identification of Johnson.

 

Did Calvin Johnson rape Katherine Lowe? The legal answer is no, because a police blunder kept the question from the test of a jury, and what can’t be known is what Calvin Johnson’s defense might have been. That unresolved question, however, became the wellspring of everything that came afterward.

 

In Georgia’s overcrowded prisons, burglars were a low priority, and in December, 1982, Johnson was paroled, after serving fifteen months. He went home to live with his parents and, everyone hoped, to start a new life. He took a job as a courier, and rode to work each morning with this father. In the afternoons, he worked out at a gym, continuing a routine he had begun in prison. His college girlfriend had waited for him, and they began to talk about marriage.

 

In the early morning of March 9, 1983, a woman named Eve Cooke told police that she had been raped and sodomized in her apartment by an intruder, a black man wearing gloves, who had slipped through an unlocked door and looped a belt around her neck and used it like a choke collar, at one point tightening it so fiercely that she passed out. The intruder had placed a towel, and then a pillowcase, over her head, allowing her only momentary glimpses of his face. But the attacker talked a great deal, Cooke said, and she remembered his voice clearly: “He didn’t talk like a Southern black and he didn’t talk street lingo or jive. It was smooth, smart, soft-spoken, and more educated with his words.”

 

The College Park police knew instantly that there was a serial rapist loose. Two nights before, another woman, Martha Hudson, had been awakened by a rapist whose method was nearly identical to that described by Cooke. Hudson, who lived about a mile from Cooke, on the Fulton County side of College Park, described her assailant as a black man who wore a glove and put a belt around her neck, using it like a choke collar. During this three-day period, two other women in the neighborhood reported being accosted by a black man, but they escaped unharmed.

 

Among those working on the rape cases were Detective Meares and Detective Harper, who had figured Johnson as the assailant in the rape of Katherine Lowe, two years earlier. By the time of the Eve Cooke rape, Harper and Meares had already begun to speculate that Johnson, who had returned from prison ten weeks earlier, might be the rapist.

 

After the Cooke rape, Meares signed a report that noted, “Calvin was developed as a suspect. Calvin was arrested in April of 1981 for rape. His m.o. used in 4-81 is similar in nature” to that of the rape of Martha Hudson. A few days later, Detective Harper, who had led a search of Johnson’s apartment in the 1981 case, requested a warrant to search the Johnsons’ home for evidence in the Cooke and Hudson rapes. In his affidavit seeking the search warrant, Harper wrote, “This officer is personally familiar with Calvin Johnson, having arrested Johnson in April 1981 for similar type crimes and … Johnson did enter a plea of guilty to some of the charges as a result of this arrest.” The police arrived at the Johnsons’ home, and Johnson was cuffed and taken away. Calvin Johnson, Sr., who was home at the time, says he remembers one of the policemen saying to his son as they took him away, “We’ve got you this time, and you’re going for a long, long time.”

 

Jury selection for the trial in the rape of Eve Cooke began in November, 1983, in Clayton County Superior Court, in Jonesboro. The county’s population was overwhelmingly white (ninety-two percent) and mostly working class. Of the forty-two citizens in the jury pool, only a handful were black, and none of them made the final cut.

 

Prosecuting the case was the Clayton County district attorney, Robert Keller, who, at thirty-six, was already a six-year veteran in the job. Defending Johnson was Akil Secret, a young attorney who had been recommended to the Johnsons by a local judge. As Secret would point out more than once during the trial, he and his client were the only black men before the bench.

 

Because of the nature of the crime – there were no witnesses to the attack, no fingerprints – the trial turned on the issue of identification, and there was cause for doubt. Eve Cooke had picked Johnson out of a photographic lineup, but she had picked someone else at a live lineup conducted at the Fulton County police station. She testified that she had picked the wrong person at the live lineup because looking at Johnson was too much for her to bear: “I just pushed my eyes away from him and picked someone else.”

 

Martha Hudson, the Fulton County victim, was allowed to testify in the Clayton case because of a Georgia rule allowing testimony from other cases if it demonstrates a pattern of “similar transactions.” Hudson had identified Johnson in a live lineup, but she had failed to choose his picture in a photo lineup. The two other women who said that they had been accosted by a black man around the time of the rapes also testified as identifying witnesses. Marie Webb said that on March 7^th – several hours before the Hudson rape – she had stepped out of her shower and was confronted by a “clean and educated-sounding” black man, and that she locked herself in the bathroom and then ran out through the front door. Webb, who lived two doors away from Hudson, identified Johnson in a photograph. The last identifying eyewitness was Jennifer Townes, who testified that on the night Eve Cooke was raped – March 9^th – a black man had knocked on her door and asked to come in, saying that he wanted to call a cab. She said that she came face to face with the man when she peered through her window and saw him staring back at her. She identified Johnson in the photographic lineup.

 

All four women, who were white, identified Johnson in court as the man who had accosted or raped them. Each of them said that she was particularly struck by Johnson’s eyes. Hudson was a forceful witness. When she was asked to identify the man who had raped her, she looked directly at Johnson and said, “It’s the man with the beard sitting right there. You’ll get your time.” When she had finished her testimony and was returning to her seat, she walked past Johnson at the defendant’s table. Lurching toward him, she said, “You stupid bastard!” Secret asked for a recess, which the judge granted.

 

Secret worked to undermine the identifications, pointing out that none of the women had reported that the man they encountered had had a beard, yet Johnson had worn a full beard two months before the attacks, as was indicated by his photo identification from work. Although the Georgia Crime Lab had identified Johnson’s blood type as being the same as that of Cooke’s rapist, Secret noted that forty per cent of black males shared that type. And there was some forensic evidence that Secret considered exculpatory: three pubic hairs among Eve Cooke’s bedclothes were tested, and were found to belong to a black man, but not to Johnson. Since Cooke testified that she had never had a black person, man or woman, inside her home as a guest, Secret suggested that the hairs must have come from her rapist. Keller’s explanation was that the hairs must have come from a Laundromat or a public restroom.

 

The trial lasted for three days, and the jury deliberated for forty-five minutes before announcing that it had found Johnson guilty of rape, aggravated sodomy, and burglary. One of the jurors later said that the victims’ testimony had been the most compelling evidence in the case, and that Martha Hudson’s outburst clearly demonstrated that there was “no doubt in her mind” that Johnson was guilty. The judge sentenced Johnson to life in prison for the rape conviction, and to fifteen-year terms for the burglary and aggravated-sodomy charges.

 

Before the second trial, for the rape of Martha Hudson, the Fulton County district attorney’s office offered Johnson a plea bargain, but he refused to admit any guilt, and so that trial began in Fulton County Superior Court, in Atlanta, in September, 1984.

 

There is no transcript of the trial, but Michael Hauptman, who replaced Secret as Johnson’s lawyer, says that it was a virtual replay of the Clayton County trial, with the exception of the racial makeup of the jury – seven blacks and five whites.

 

Carole Wall, the Fulton County prosecutor, believes that if racial bias was a factor in the Clayton County conviction, race was played effectively in the other direction in Fulton County. “Mike Hauptman, who is my dear friend, uses the racial issue very well,” she says. “ ‘Cops are out to get the only black man in the area,’ and so on. He does the racial issue. He’ll beat you to death on the racial issue. And he’s so smart. When he questioned those College Park cops, it was like clubbing a bunny.”

 

The Fulton County jury deliberated overnight, and returned the next day with its verdict – not guilty. But Johnson, of course, was already in prison, serving a life term.

 

In 1994, Johnson, who had become something of a jailhouse preacher, helping to lead his fellow-convicts in regular prayer services and Bible study, got a chance at parole, but in order to get it he would be required to acknowledge the crimes for which he was convicted, and he refused to do so.

 

Two years earlier, Johnson had read a news article about new DNA technology that was being used in forensics to match criminals with their crimes, and that could also be used to clear the wrongly accused, even in long-closed cases, if the evidence had not been lost or destroyed. Johnson got in touch with James Bonner, a public-aid lawyer who worked for the Prisoner Legal Counselling Project, at the University of Georgia School of Law, and Bonner agreed to try to help, although he thought that Johnson had little hope. His only legal recourse was to file what is called an extraordinary motion for a new trial based on new evidence. The problem was, there was no new evidence. In effect, his motion, if certified by the court, was a means by which he could try to hunt for new evidence from within the old evidence through DNA testing. “It was predicated upon the results of a DNA test that we didn’t yet have, and hoped we could have, but weren’t sure we ever could get,” Bonner says.

 

The evidence, if it still existed, was controlled by the office of the Clayton County district attorney, Robert Keller. To Bonner’s surprise, Keller agreed to the test. “They were basically just asking us if we’d do it,” Keller says, “and our position was, if the sample was available, that would be the appropriate thing to do.”

 

The evidence was available, but only as a result of happenstance. In Georgia, physical evidence introduced at trial is maintained by the court reporter, who serves at the pleasure of the judge. Stephen E. Boswell, the judge in Johnson’s case, had long since retired, and his replacement did not rehire Boswell’s reporter, J. Dan Black. In clearing out his things from the courthouse, Black was throwing away all the unclaimed evidence from cases that were no longer active – including the evidence from Johnson’s case. Someone from Keller’s office noticed the evidence bags from Johnson’s case and asked Keller if they should be saved. There was no legal reason to retain the evidence – Johnson’s request for DNA testing hadn’t yet been made – but Keller had ordered that the bags be placed in a box in his evidence vault.

 

The box included Eve Cooke’s torn underwear, her stained bedsheets, a blue towel that her assailant put over her head, cotton-swab sticks from the “rape kit” that was used to examine her on the night of the assault, glass slides bearing specimens swabbed from her vagina and cervix, and small packages containing hairs found at the scene and those taken from Johnson after he was arrested. Johnson’s sister Judy, who worked at the United States Department of Transportation in Washington, found a laboratory, called Genetic Design, in Greensboro, North Carolina, that agreed to perform the DNA testing. In October, 1995, the box and all its contents were removed from the evidence vault in Georgia and, accompanied by a Clayton County investigator, transported to Greensboro.

 

Michael DeGuglielmo, a Genetic Design DNA expert, decided to test two of the items in the box – the blue towel and portions of the vaginal swabs. He extracted DNA from those items, hoping to compare it to Johnson’s DNA, but he didn’t have a fresh specimen from Johnson. Testing was suspended until a blood sample from Johnson could be provided. Because of bureaucratic inertia, or perhaps because prison authorities were unenthusiastic about Johnson’s quest, it took nearly a year to get the blood sample.

 

Finally, in late 1996, Johnson’s blood was sent to Genetic Design. By this time, though, DeGuglielmo had left the company for another firm. Three months later, the division of Genetic Design which concentrated on identity testing was sold to a national chain, LabCorp, headquartered in Burlington, North Carolina.

 

Johnson and his family knew none of this. “I called one day, and Genetic Design was shut down,” Judy Johnson recalls. “I thought, My God, where’s DeGuglielmo? I couldn’t find him.” Meanwhile, as Johnson’s family searched for another attorney, a childhood friend of his told him about the Innocence Project. Johnson wrote to Barry Scheck, had the transcript of his trial sent, filled out an extensive questionnaire required by the project, and was accepted as a client.

 

By another bit of luck, the box of evidence from Johnson’s case was rescued after the Genetic Design division was sold to LabCorp. In March, 1997, seventeen months after the evidence was released by Keller’s office, the box was transported from Greensboro to the new corporate owners’ headquarters. There the material sat in storage for seven more months, and was then transported to the LabCorp forensic-science unit, in Research Triangle Park, an hour away. A senior director of that facility, Dr. Marcia Eisenberg, who had worked on several cases with Neufeld and Scheck before, says, “this was a case where we get this box of evidence, and we’re trying to get Barry and Peter to dig up enough history on what is in this box. We’re faxing them Xerox copies of bags in a box, and trying to get them to match them up to the original court documents. I mean, this is everybody’s case from hell.” Not only was the material now fifteen years old but it had been sliced and diced to pieces in two earlier rounds of testing – the original serology tests for the trial, and the tests at Genetic Design, which we never completed. The vaginal and cervical swabs, which once looked like Q-Tips, had been reduced to tattered sticks without cotton on the ends. LabCorp decided to test material on the vaginal slide – a glass plate on which body fluids from the victim are smeared for microscopic examination – along with portions of the towel, bedsheet, and Eve Cooke’s underwear.

 

On November 11, 1997, LabCorp reported its findings to the Innocence Project. It had indeed been able to find genetic material on the items it tested, but only from the victim; it could not find sufficient material from the assailant even to compare with Johnson’s blood sample. The long-awaited test, in other words, had failed to exonerate Johnson.

 

That might well have ended it for Johnson. Keller could have gone to court, declared Johnson’s innocence quest a failure, and tried to put a stop to any further testing. Whether or not Keller would have done this can’t be known, because Keller was not told that LabCorp’s tests had been conducted, or that the results had been inconclusive. Nor did Neufeld inform Keller what he was about to do next.

 

Neufeld believed that if anyone in the world could find the DNA answer he was looking for in the old and infinitesimally small sample that was left it was a longtime friend and colleague, Dr. Edward Blake, a partner at Forensic Science Associates, in Richmond, California, near Berkeley.

 

“If we type this slide and there’s no result,” Neufeld told Blake, “then Mr. Johnson spends the rest of his life in prison.”

 

In the world of forensic science, Neufeld says, “there are a bunch of .3000 hitters, and then there’s Ted Williams; Ed Blake is Ted Williams.” Blake, whose rare gifts in the laboratory are broadly acknowledged, would be the first to agree with Neufeld’s Ted Williams analogy, and he offers one of his own to describe what is distinct about his work. “Jack Benny will pick up a violin, and he’ll make the music that Jack Benny makes,” he says, “and Jascha Heifetz will pick up the violin and make the music that he makes.”

 

While the science is the same for all forensic specialists, LabCorp failed to find male DNA through its testing, Blake says, because “of the skill with which the analysis was done, to be quite candid with you.” Actually, the difference lies at least partly in the laboratories themselves. LabCorp is a publicly held company with labs nationwide, and, by company policy, its scientists will perform only tasks that they have specifically been asked (and paid) to perform. Blake, whose lab Neufeld describes as a “boutique operation,” will do whatever it takes to obtain an accurate, definitive result.

 

In rape cases, the crucial step is a procedure called “differential extraction,” which is the process of separating the male portion of a sample from the female portion. This is necessary because a stain on the victim’s undergarments, for example, will have material that comes from both the male attacker and the female victim. Unless the male and female cells are separated, the DNA contained inside them will mix together, and confuse the identification test that comes later.

 

What makes separation possible is the nature of a sperm cell: its walls are tougher than the walls of other cells. In a test tube, the tiny speck of evidence is bathed in a sort of chemical detergent, which is strong enough to break open the cells of the non-sperm material, releasing the non-male DNA inside. The tube containing the whole mixture is placed on a centrifuge, which spins until the material in the tube has separated into two layers, with the sperm cells settling on the bottom, like sediment in a bottle of wine. The non-male material is decanted into a second tube, and what remains in the first tube – presumably sperm cells – is bathed again, in a stronger detergent, breaking down the tough sperm-cell walls and releasing the DNA inside for testing.

 

It is in this differential-extraction process that LabCorp failed. It is a delicate procedure, and Dr. Blake is known for his ability to coax results from it, in part because he takes extra steps that maximize his chances for success. Blake says that the key to this part of the process is caution, using just the right amount of chemical detergent in the first phase to wash away the non-sperm matter without disturbing the sperm-cell walls. To separate the solution into male and female layers, Blake uses a centrifuge that is angled horizontally, rather than at the customary forty-five degrees. He does this to increase the likelihood that the sperm cells will actually settle on the bottom of the tube rather than splashing up along the sides, where they might get decanted away with the non-sperm material. After he has completed the separation, Blake takes another extra step: he puts the material at the bottom of the first tube back under the microscope to make certain that the sperm is there and that non-sperm material has been removed.

 

Such a painstaking routine pays dividends. In Johnson’s case, for example, Blake examined the remnants of the swab sticks (which LabCorp didn’t examine) and found a tiny fibre of DNA-laden cotton embedded in one stick.

 

Blake’s success in the lab has made him not only a mythic figure in forensics but a coveted asset in a legal fight, on either side of the aisle. His confidence in the lab sometimes extends to strong feelings about the legal case itself, a tendency that some find discordant with the scientist’s mandate for dispassionate inquiry. Blake worked with Neufeld and Scheck on O. J. Simpson’s defense, even though he would be the first to concede that the scientific test-results offered by the prosecution were unassailable. The dream-team defense’s mission, after all, was not to illuminate scientific truth (such as the 6.8-billion-to-one certainty that blood found on Simpson’s socks belonged to his murdered ex-wife); its purpose was to attack the prosecution’s methods until the science itself, as Blake puts it, “became irrelevant.”

 

When Blake gets involved in a legal fight, he can seem as if he’s “on a mission,” says Jim Catterson, the district attorney for Suffolk County, New York. Catterson and Blake were adversaries in a rape case that could be a textbook study in the paradox of DNA in the courtroom: for all DNA’s intrinsic immutability, advocates in a legal case routinely persuade themselves (and sometimes a jury) to disbelieve the science. In the case of an accused rapist named Kerry Kotler, the reliability of DNA evidence was literally played both ways by both sides, and alternately proved to be both Kotler’s salvation and his undoing.

 

The Kotler case was one of the first taken up by the Innocence Project, and it has some striking parallels to the case of Calvin Johnson. But it is more like the O. J. Simpson case in one key regard: Peter Neufeld would rather not talk about it. When I mentioned Kotler to Neufeld, he began lawyering, saying that “it was a weird case” and shouldn’t be included in any story about the Innocence Project.

 

Kotler, who is white, was a middle-class kid prone to trouble, a runaway and a car thief. In 1981, when he was in his early twenties, he was convicted on a statutory-rape charge. While free on probation, he was arrested for the knife-point rape of a thirty-three-year-old East Farmingdale, Long Island, housewife named Patricia Gould. The authorities were especially eager to find and punish the rapist, because Mrs. Gould had been raped three years earlier by a masked intruder whom they believed to be the same assailant. In the second rape, the man greeted Mrs. Gould as she returned from the grocery store, and, before running a carpenter’s knife over her skin, taunted her by saying, “I came back for another visit. We’re going to do it all over again.”

 

Like Calvin Johnson, Kotler protested his innocence, and there were some problems with the police investigation here, too, including a police report that seemed to the defense to have been altered in order to make it easier to place Kotler at the scene of the crime. But, as with Johnson, the police were wedded to a theory that featured Kotler as the prime suspect, and there was compelling evidence that seemed to incriminate him. The best forensic science of the time, conventional serology, narrowed the universe of possible suspects to three per cent included Kotler. (The jury was not allowed to hear this.) There was also the testimony of the victim, who identified Kotler in two police lineups, in a photograph, and by voice, when he and several other men were instructed to say the menacing words “We’re going to do it all over again.” The jury believed her, and in 1982 Kotler was sentenced to a maximum of fifty years in prison.

 

Like Calvin Johnson, Kotler filed an appeal from prison, and it was unsuccessful. Then, in the late nineteen-eighties, he heard about DNA-evidence testing and found out about the Innocence Project. The evidence in his case was dispatched to Blake’s lab.

 

This time, though, Blake could report no findings that warranted instant exoneration. In the early nineteen-nineties, DNA testing allowed scientists a very limited spectrum of alleles, or genetic markers, for comparison tests. As it happened, Kotler’s tested alleles were the same as those of the victim, Patricia Gould. (About ten per cent of the population shared this type.) The evidence specimen, taken from the rape kit and Gould’s garments eleven years earlier, revealed the presence of the genetic trait shared by Gould and Kotler, but it also contained another marker, which neither Gould nor Kotler possessed. In Blake’s view, that could mean only one of two things: that Kotler was innocent, and the marker he found came from Gould’s assailant; or that Kotler might have been the assailant, but only if Gould had had sexual relations with another partner near the time of the assault, thus explaining the mystery marker found in the specimen.

 

To Neufeld and Scheck, Blake’s results seemed conclusive enough to exonerate Kotler: Blake had found in the sample a genetic marker that Kotler didn’t possess, which must mean that he was innocent. (Patricia Gould had sworn under oath that she had not had any consensual sexual relations in the time period which would make a mixed sample possible.) Blake leaned toward the same conclusion, but he could not be unequivocal, and his report stated that Kotler “appears” to have been eliminated as the “primary source” of the semen.

 

Catterson, in the district attorney’s office, refused to agree to a new hearing for Kotler. There was an obvious answer to the stalemate, which was to test a sample from Gould’s husband. If he possessed the unidentified marker, Kotler could not be excluded, because there was no way of knowing whether the other marker, the one he shared with the victim, was his or Gould’s. But if Gould’s consensual partner did not possess the marker, that had to mean, according to Kotler’s lawyers, that it came from the assailant, and it could not have been Kotler, because he didn’t possess that particular trait.

 

On this point the case veered from the province of scientific inquiry into the realm of human relations. Gould told prosecutors that she had had sex with no one but her husband, so the matter could be easily resolved by taking a blood sample from him and testing it for the unidentified marker. Catterson had no reason to doubt Gould, and since he was a tough-on-crime politician, his sympathies were all with the victim. He saw no reason to disturb her further. For a year, Catterson opposed the testing of the husband. Finally, a judge ordered that it be done, and the sample was sent to Blake, who found that it did not contain the marker. His conclusion: Kotler could not have been Gould’s assailant.

 

Catterson still firmly believed in Kotler’s guilt, just as the police and prosecutors in Calvin Johnson’s case continued to believe in his. Catterson was particularly affected by a meeting he had with Gould, who said she was so terrified of Kotler that she and her family had moved out of state. She told him that someone once left a menacing note on her car windshield making a reference to her daughter; she was sure that it was Kotler, who was out on bail at the time. On another occasion, she said that even after she moved away she received a telephone call from someone she was certain was Kotler, letting her now that she had been found. “I thought Kotler was the Devil incarnate,” Catterson says. “He tried to put the hit on one of the reporters in the courtroom. He enjoys making women squirm. He enjoys torturing people mentally. He likes to get the edge on women.”

 

When presented with Blake’s new test results, the district attorney’s office resisted. The prosecutors requested that their own experts review the findings and, when those experts agreed with Blake, raised the question of contamination: Couldn’t the evidence sample have been contaminated somehow during the eleven years it spent in an evidence vault, or while it was being conveyed from one laboratory to the next? The experts said that that was highly unlikely. Catterson then questioned their reliability; he believed (and believes) that they were “in awe of Blake.” The D.A.’s office consulted a DNA specialist in Boston, who confirmed Blake’s findings. Meanwhile, Catterson was getting pounded by Scheck and Neufeld in court and excoriated in the press, most fiercely by the newspaper columnist Jim Dwyer, who recently wrote a book about DNA exonerations with Neufeld and Scheck entitled “Actual Innocence,” which will be published in February. The news coverage became so intense that a flustered Catterson resorted to defending himself by blurting to a reporter, “I am no reactionary cretin.”

 

Finally, in December, 1992, Catterson gave up the fight and declared in court that he would not contest Kotler’s motion to set aside his guilty verdict. “Catterson went kicking and screaming,” Neufeld says now, “and he was backed into a corner where the press was going to strangle him.”

 

After nearly eleven years in prison, Kerry Kotler went free, but he was not inclined to forgive and forget. He accused the police and Catterson of misconduct, and Scheck, speaking to reporters, said of the Suffolk justice system, “This place was what Mississippi must have been like in the sixties.” The press noticed heroic qualities in Kotler, dutifully reporting his assertions of law-enforcement malfeasance and passing along such tidbits as his lawyers’ suggestion that Kotler had the stuff of a good lawyer, and that he might even attend law school. He appeared on ABC’s “Primetime Live” program, and galloped on horseback on the beach while reporters took notes.

 

And, unlike Calvin Johnson, Kotler had the prospect of financial remuneration for the injustice he had suffered. Scheck and Neufeld pressed Kotler’s case under New York’s Unjust Conviction and Imprisonment Act. Kotler did not enter law school, as it turned out, but went to work as a commercial fisherman and diver.

 

For his part, Jim Catterson refused to apologize for Kotler’s conviction, and he did not surrender his belief that a guilty man had been set free. In fact, Catterson believes that future developments in DNA testing will eventually validate the prosecution’s position. Ed Blake says that he has seen this response from prosecutors before; he calls it the “white-hat syndrome.” He explains, “I don’t know a prosecutor that I’ve ever worked with who doesn’t believe, as far deep in his heart as you can ferret, that he advocates on behalf of justice, truth, and the American way. He firmly believes that he rides a white horse, shoots silver bullets, and wears a white hat. And for somebody like that to come to terms with having put an innocent person behind bars for a significant portion of his life is a very, very difficult thing to grapple with.”

 

Then, in the early hours of an August morning in 1995, something happened that caused a dramatic reversal of roles in the Kotler case. A twenty-year-old female college students left a Hampton Bays bar and was driving toward William Floyd Parkway when she was pulled over by a man who flashed his headlights and showed her a badge. After telling her to follow him in her car to a site about a mile away, the man told the young woman that she was driving erratically, and that she would have to take a breath test. When she got out of her car, the man pulled a knife and forced her into his car, then drove her to the woods and raped her. After the attack, the woman later told police, the assailant did something strange: he got a plastic water bottle he’d brought from his car and douched his victim – an attempt, police concluded, to wash away evidence.

 

The young woman was able to give only a partial description of her attacker, but she did know what model car he was driving – a white Pontiac Grand Am – and she was able to remember several numbers on its license plate. The police ran a computer check on that information and discovered that there was only one such car registered on Long Island. They were questioning the woman who owned the car when Kerry Kotler drove up in it – she was his girlfriend. “They seized the car and started working the case,” Catterson says. “And, remember, we had his blood. We couldn’t believe that this guy would be so arrogant. You could have knocked me over with a feather when I heard this guy pulled this stupid stuff again. We had him by the balls.”

 

Nevertheless, as the new rape investigation proceeded, Neufeld and Scheck continued to push Kotler’s suit for financial reparations. (In July of 1997, they won a $1.5 million award.)

 

In the new investigation, two pre-indictment lab tests linked Kotler’s DNA to the crime scene, but Kotler’s new attorney, Jack Litman, wasn’t satisfied. In early 1997, the judge agreed to Litman’s request for an independent lab test of Kotler’s choosing. The evidence was gathered and brought to California to be tested by Ed Blake. This time, Blake’s results were unambiguous. “I would say without any hesitation whatsoever,” Blake says now, “that there is absolutely no doubt that the source of the sperm in the second case is Kerry Kotler.”

 

Faced with such odds, Litman, an old friend of Neufeld’s, decided to mount a Simpson defense. That is, given the fact that Kotler’s DNA was all over the crime scene (his semen was found on the victim’s clothes and on the swabs from her rape kit), Litman had to prove that someone other than Kerry Kotler had placed it there, and the Simpson model suggested itself: the cops did it. Litman developed the theory that the police, driven by their animus toward Kotler, had looted his trash for used condoms and then spread his semen over the victim’s clothes and the specimens from the rape kit.

 

To say the least, it was a long-shot defense. In his favor, though, Kotler had one surprising witness – Ed Blake. While working on Kotler’s exoneration in the first case, Blake had developed a pointed opinion about the prosecution’s reluctance to set Kotler free: they were in the grip of the white-hat syndrome, and it seemed entirely possible to him that the authorities would frame Kotler.

 

The fact that the assailant in the second case had douched the victim puzzled Blake. The police and prosecutors thought the explanation was obvious: the attacker, perhaps someone who knew about the probative reach of forensic science, wanted to wash away the evidence. “But remember what a douching device primarily is,” Blake says. “It’s primarily a device for introducing something, not for removing something.” He came to believe in the possibility that police, or some agent acting for them, could have used the plastic water bottle to plant Kotler’s semen at the scene.

 

Blake based this view on what he found in Kotler’s semen, testifying that it contained massive amounts of staphylococcus bacteria, which, he said, could have grown so rampantly only in a liquid state.

 

The jury didn’t believe it. Kotler was convicted in July, 1997, and sent back to prison to serve a sentence of seven to twenty-one years.

 

Looking back, Neufeld still insists that Kotler’s exoneration was right – “We’ve never been wrong in any of our exonerations…. We haven’t been” – but he acknowledges that the ironies of the case are inescapable. “What is true,” Neufeld says a bit grudgingly, “is that the same science that exonerated him on the other rape brought about his undoing in a subsequent matter four years after he was released from prison.”

 

Catterson, however, has no difficulty at all explaining what happened in the case of Kerry Kotler: a rapist got his due. He insists that he is interested only in justice, not vindication, but he cannot resist a dig at the exoneration crusaders. “This is an interesting case, because it chips away at the clay feet of the Neufelds of this world,” Catterson says. “Isn’t that ironic? Hoist by their own petard. It’s really – it’s justice. Finally, somebody’s got justice in this world.”

 

In the fall of 1998, three years after Calvin Johnson’s evidence box was sent to North Carolina to be examined, Blake tested a cervical slide from Eve Cooke’s rape kit and the tiny cotton fibre of DNA that he had managed to find on the remnants of the swab stick. On November 20^th, he reported to Neufeld and Scheck that Johnson “is eliminated as a potential source of the spermatozoa.” A few days later, Neufeld wrote to Robert Keller, Johnson’s prosecutor, giving him the results and asking that Keller respond when he had had a chance to consult with his own forensic specialists about the findings.

 

For Keller, Neufeld’s letter was a bolt from the sky. The last he knew, the Calvin Johnson evidence was in North Carolina, being tested by LabCorp. Now he suddenly found out that the box was in Richmond, California, having been sent there by Johnson’s attorney without consulting Keller’s office, to be examined by a forensic scientist of Peter Neufeld’s choosing. And this scientist said that Calvin Johnson was innocent.

 

Keller didn’t know what to make of Blake’s report, or of the assertion that LabCorp’s testing had been inconclusive. He went to his expert, Dr. George Herrin, of the Georgia Crime Lab, and asked about Blake. The technicians at the crime lab knew all about Blake, and they believed in his results. “Blake’s reputation with our Georgia Crime Lab was such that our guys basically told us, ‘If Blake said it was O.K., it was O.K.,’” Keller says.

 

This presented Keller with a dilemma. His conviction of Calvin Johnson in 1983 had been a big victory, both in the courtroom and with his constituency, and he still believed it was a righteous conviction. But things had changed, not only legally, with the new DNA evidence, but politically, too. Clayton County had been mostly white and mostly working class in 1983, when Keller obtained Johnson’s conviction. Since then, Atlanta’s boom had spilled into Clayton County, recasting its demography, to become sharply more middle class and multiracial. To fight the exoneration of a black man whose innocence now seemed to have been validated by DNA, and whose champion was the famous Peter Neufeld, of New York City, posed an unappealing political prospect.

 

Keller says that he and his assistants considered their options. They could have attacked the DNA evidence, particularly regarding the sinuous journey that it had taken from the time it left Keller’s vault until Blake reported his results. The evidence was in the defense’s control after it left North Carolina, and certainly could have been subject to tampering or accidental contamination or mislabeling. Even Blake suggested that a fresh blood sample be obtained from the victim, Eve Cooke, to insure that the evidence he examined was, in fact, from her case. It is difficult to imagine that, had their roles been reversed, Neufeld would not have harassed Keller about the evidence chain.

 

Also, Keller could have attacked the conclusions of the DNA findings themselves. Eve Cooke had had consensual sex the day before her attack, raising the possibility that the semen tested by Blake came not from her assailant but from her consensual sexual partner. It is a fairly common scenario suggested by prosecutors, and Blake and Neufeld derisively call it “the unindicted co-ejaculator theory.” But tests showed that the DNA in the tested specimen was probably from a black man, and Eve Cooke had testified that she’d never had a black person in her home. In any case, Keller says, his office was not able to find Eve Cooke, which made everything else moot. “We didn’t have a victim,” he says.

 

Keller did ask for one more test. Although he had argued at the trial that the pubic hairs found in the bedclothes were irrelevant to the case – they had been picked up at a Laundromat or a public restroom, he’d said – he now wanted them tested. One was sent to LabCorp, which determined that it belonged to the same person whose DNA Blake had found among the other evidence. That decided it for Keller, who put aside all the other questions he had.

 

Calvin Johnson was twenty-five when he was sent to prison for the rape conviction, and he was released a few weeks before his forty-second birthday. After coming home, Johnson was showered with job offers and interview requests, and for a while he maintained a busy speaking schedule. He was flown by private plane to speak at a church in Alabama, and he even ministered in Uganda.

 

Unlike New York, Georgia does not have a law providing compensation for people who have been wrongfully imprisoned, but Neufeld is preparing a “private bill” that would pay Johnson from the state treasury for his time and anguish. In the meantime, Johnson has a job (as a Transit Authority station manager) and a new girlfriend, and is living in his parents’ home, a cramped apartment in a faded little town called Hapeville, near the airport. The College Park police station is two miles away. I asked Johnson if he is worried about new troubles with the police. “I look at it like this,” he said. “They got DNA now, you know? So I’ll be O.K.”

 

That is the allure of DNA evidence – its suggestion of absolute immutability. But the Kotler case and, indeed, Johnson’s own suggest that whatever truth DNA holds for criminal justice is revealed only through the lens of human advocates. DNA exonerated Kerry Kotler, and then it convicted him again, over the objections of a scientist who became his advocate. DNA freed Johnson, but Georgia police and prosecutors still have not exonerated him completely in their minds.

 

Lewis Harper, who is now the deputy chief of police in College Park, is among those who continue to believe in the rightness of Johnson’s arrest. He and his officers know that Johnson has returned to the neighborhood. “It’s something that we can always keep in the back of our head,” Harper says. “If we start having these problems again, we can certainly rely on our memory and look at anything that might be related.”