Searching for Justice
Jewish defense will not rest until Georgia's Innocence Project takes shape

Vivi Abrams, The Jewish Times

On June, 15, 1999, Calvin Johnson, sentenced to life in jail for rape, walked out of prison a free man. Three years later, on the same day, two Georgia lawyers will be honored for their efforts to start a program helping more people do the same.

Johnson was - and is - innocent. Like many others around the country, he was wrongfully convicted by a legal system that has holes.

But in the last 10 years, no less than a revolution to free those who have been wrongly convicted has been sweeping the nation, and many of those in the fight have been studying justice and tikkun olam, or repairing the world, since birth. Now that revolution is coming to Atlanta as the Georgia Innocence Project prepares to open its doors in August.

The Innocence Project started as a law clinic at Cardozo Law School at Yeshiva University in New York in 1992, by two Jewish men who later became famous for defending ex-football star O.J. Simpson - Peter Neufeld and Barry Scheck. It works to help wrongfully convicted people get DNA testing to prove their innocence, such as Johnson.

But it is much easier to get in jail than to get out. Even with the help of the Innocence Project, it would be three more years before Johnson could obtain the testing, navigate the legal system and win his freedom.

In 1983, Louise Lewis, a white woman living in College Park, woke up one night with a man sitting on her back. She was raped by a black man who she later described as having a "medium build and prominent eyes," and who "didn't talk like a Southern black." To the police this seemed to describe Johnson, who had grown up in Cincinnati and studied communications at Clark College - now Clark Atlanta University.

At the time, Johnson was living in Jonesboro, working for Delta Airlines and engaged to be married. He also had a criminal record. Several years prior to the rape, Johnson had been arrested for possession of marijuana. Worried that he could not pay the accompanying fine, he broke into a house to steal money and was caught.

Johnson was charged with burglary and possession of a concealed weapon, a pocketknife he used for work. He served 14 months in jail and was paroled in December 1982.

The police placed his picture in a photo array as they searched for Lewis' attacker. She identified Johnson as the rapist. Later, in a lineup, she passed over Johnson and chose a different man. At Johnson's trial, she would only say that she chose someone else in the lineup because she couldn't bring herself to look at Johnson.

The problem for the prosecution was that there was no physical evidence tying Johnson to the crime. In fact, a black man's pubic hair found at the scene was shown to not belong to Johnson, and Lewis said she had not entertained African-American guests.

Johnson also had a solid alibi - he and his family were in front of the TV, watching former University of Georgia star and Heisman Trophy winner Herschel Walker play his first professional football game.

All-white jury conviction

But the prosecution argued that Lewis could have picked up the hair at a laundromat or public restroom and that it didn't necessarily belong to the perpetrator. An all-white jury convicted Johnson of rape.
Johnson knew he was innocent, but it would take him 16 years and the improvement of DNA technology before he could prove it.

In 1996, after he'd been imprisoned for 13 years - writing to lawyers and politicians and anyone he thought might be able to help - a friend of Johnson's from Cincinnati alerted him to the Innocence Project.

To the uninitiated, Johnson may seem unlucky. But those working to help the wrongfully convicted see hundreds of cases like Johnson's and thousands more prisoners who cannot be helped because DNA evidence for their case no longer exists.

Now 45 and still living in Jonesboro, Johnson says he holds no animosity toward the system that held him prisoner from the time he was 25 until he was 41.

"At times in the beginning I was angry and frustrated and I realized it was destroying me," Johnson said.

But Jill Greenstein Polster, an attorney in the Fulton County Public Defender's Office, does feel that frustration, and she has found an outlet for it in Atlanta.

Along with former Georgia State University Law School classmate September Guy and the help of some powerful friends, Polster is opening the doors of the Georgia Innocence Project this summer. It's been a long time coming, she says, and there's still a long way to go.

"When the system fails, we have a responsibility to fix it," she said during lunch last month. The Georgia project will be one of 25 that have sprung up across the nation including seven or eight in the works now, says Aliza Kaplan, deputy director of the national Innocence Project in New York.

Next week, the State Board of Georgia Young Lawyers Association will present Polster and Guy with a Commitment to Justice Award.

Three years ago, Polster was studying law at Georgia State. Her litigation professor, Randy Rich, asked her if anyone was doing an Innocence Project here.

"I said, I'll ask around and see if anybody's doing something," she said.

No one was. So she asked her friend Guy if she wanted to help.

Problems getting started

"Instantly I was interested in it," Guy recalled. "We thought there was no reason this couldn't happen here. We had no idea how big of a problem it would be to get started."

One problem was that although the law schools they approached said they would send interns, none agreed to host the project, the model in other states.

Polster and Guy decided to find a home independently.

The two started attending meetings of the Georgia Association of Criminal Defense Lawyers and talking to people. There they met Aimee Maxwell, an attorney with the Georgia Indigent Defense Council.

Maxwell was instrumental in pulling together a board that includes some of the best-known lawyers in the state and even the country - Bobby Lee Cook, the man on whom the Andy Griffith character of "Matlock" was reportedly based; Stephen B. Bright, the director of the Southern Center for Human Rights, Edward T.M. Garland, who successfully defended professional football player Ray Lewis on murder charges in Atlanta, and a dozen other powerful names.

The board put the project on the map.

"All of a sudden I start getting e-mails from Barry Scheck," Polster said.

By bringing a famous lawyer such as Scheck, Maxwell was able to help with something else the project desperately needed: fund-raising.

The project is supported in part by the State Bar of Georgia and the Georgia Association of Criminal Defense Lawyers. The project's annual budget will be in the "very low six figures," Polster said. Money will pay for an executive director, assistant, equipment and case expenses.

Raising funds has been easier than expected, Polster said. The Georgia Bar Foundation gave a matching challenge grant of $25,000, and the Georgia Indigent Defense Council donated money, as did a generous anonymous donor.

Mindy Simon, with the law firm of Smith, Gambrell and Russell, volunteered to handle nonprofit status and tax paperwork. And landlords of the building that houses the Georgia Indigent Defense Council have offered free office space. William Head, a Sandy Springs lawyer, a member of the Georgia Innocence Project board, is helping with fund-raising and sponsoring its Web site.

People walk up to Polster in restaurants and offer to help. Individuals are donating money too - anyone who gives $1,000 now is a "founding member" for life. And letters and e-mails from inmates and their families and friends are already starting to trickle in.

It's as if Georgia just needed someone to take charge.

"It's an innocence revolution that's been sweeping across the country that Georgia has been left out of," Polster said. "I think people are scared of looking at what's happening in the criminal defense system here or anywhere. There's no reason to believe Georgia is any different."

Like the national Innocence Project, the Georgia project will focus on DNA cases, at least at first, Polster said. But it also will consider compelling claims of innocence on a limited basis that do not involve DNA. Polster said she is already looking into a case in Gwinnett County where a man was convicted - like Calvin Johnson - on what she says is questionable eyewitness identification.

According to Mike Shapiro, executive director of the Georgia Indigent Defense Council, Georgia is more than ready for help with criminal defense. The Indigent Defense Council distributes state funds to Georgia counties and also holds seminars for public defenders and works on Death Row defenses.

He says people are wrongfully convicted in Georgia not necessarily because of bad public defenders, but because of a system that leaves these lawyers overworked and under-funded.

"There are cases in Georgia where attorneys are handling hundreds of cases a year on a part-time basis," Shapiro said. "The state allocates $43 million for prosecution, just in felony courts. The state pays $6.5 million for indigent defense."

Counties are supposed to supply the rest of the funding needed for public defense, but many counties are poor and unable to give financial support. Even in Fulton County, defenders do not have the resources needed.

Polster works for the Fulton County Public Defenders' office.

"I don't have a desk or an office or a phone," she said. "Anyone who expected anything different at the public defender's office was fooling themselves."

Combine that with the fact that most of the people arrested for felonies are poor and must rely on appointed lawyers.
"Our criminal courts are our indigent courts," Shapiro said.

Slipping through the cracks

Three years ago a Department of Justice study of the 100 largest jurisdictions in the nation showed that 80 percent of felons cannot afford counsel. Shapiro said that in Fulton County that number jumps to 93 percent and in DeKalb and Gwinnett counties, 89 percent.

So he surmises that Calvin Johnson is not the only Georgian who has slipped through the cracks and wrongly landed in jail.

But it's getting better, Shapiro said.

"We're moving in the right direction," he said. "I'm encouraged by the level of conversation on indigent defense."

Gov. Roy Barnes and Lt. Gov. Mark Taylor are supporters of indigent defense. For example, Barnes started a loan forgiveness program for attorneys who become public defenders. And in 2000, Taylor wrote a law that requires convicted felons to provide DNA samples for a database.

Shapiro said he is happy that an Innocence Project is starting in Georgia.

"I'm impressed with the nationwide action and happy that Georgia is going to be part of the project," he said.
He wants to see Georgia pass a state law giving prisoners access to DNA evidence testing that wasn't available at their trials. At present, lawyers who want to use DNA evidence must file an "extraordinary motion" for a new trial, and a statute of limitations makes it extremely difficult for new DNA evidence to be used.

"It's imperative we use it as a fair tool," Shapiro said.

Vanessa Potkin, staff attorney for the national Innocence Project, agrees. She says that while many district attorneys are cooperative upon learning of new evidence that could lead to the truth, it is frustrating when some district attorneys or judges block access to modern DNA analysis.

Valid convictions

"When you have testing confirm somebody's guilt, great," Potkin said. "It shows that justice is done. You know that the right person is apprehended. The district attorneys do a huge disservice by blocking testing. Every time a person is wrongly convicted, it means the real perpetrator is out there, probably committing more crimes."

Potkin is working with Scheck and some Georgia lawyers on a case in Savannah that contributes to that frustration.
The national Innocence Project is representing Samuel Scott, who was convicted of rape and served about nine years. The project lawyers worked with the district attorney to get access to DNA. Two independent tests proved that Scott was not the source of the sperm found inside the victim, but the Savannah district attorney is nevertheless appealing his request for a new trial.

"All of a sudden the DA's office stands up in court and says the sperm is irrelevant to this case," Potkin said. "How is this evidence irrelevant?"

Polster said the Georgia project will support the national project in Savannah as needed, but will focus on taking on new cases. The national project also hopes to recommend other local cases the way of the Georgia Innocence Project, and is currently handling a second case in Savannah and a new one in Fulton County.

If Polster is up for the challenge, it's because her background has been preparing her for something big.

"I come from a family of over-achievers," she said. "It was either go to law school or start robbing convenience stores to stand out."

Then she pauses. "Actually," she confided, "I just want people to return my phone calls."

Her father, Lenny Greenstein, publishes TV Metro Atlanta, a local advertising newsletter, and her older brother is the executive producer of "Will and Grace." Her younger brothers, twins, are an ad executive in Atlanta and a teacher in Austin, Texas.

Polster went to law school after working 10 years as a buyer for Uptons, a department store.

"I didn't want to work making money for other people," Polster said. "I just kind of felt like my life had no meaning."
Jewish defenders

Polster describes herself as a "Constitution geek" who believes strongly in giving her clients every procedural safeguard available. She says public service came naturally to her, in part because of her Judaism.

"I was just raised in the tradition of community activism," she said. Her father works at the Zaban Shelter, and her mother, who died when Polster was in high school, was involved in a number of different causes, she said. Her stepmother also volunteers.

The many Jews involved in public defense all seem to say the same thing: It was a natural outgrowth.

"For me it was a sense of global responsibility, that the world extends way beyond Sandy Springs," Polster said. "I think that's throughout the Jewish community."

Aside from Barry Scheck and Peter Neufeld, both Aliza Kaplan and Vanessa Potkin at the national project are Jewish, along with dozens of Cardozo law school students and the project's first executive director, Jane Siegel Greene.

David Protess, journalism professor at Northwestern University who helps run that school's Center on Wrongful Convictions and has been instrumental in getting innocent people off of Death Row, was a Jewish boy in Brooklyn when his neighbors, Julius and Ethel Rosenberg, were executed for spying, causing him to take a hard look at the justice system.

Polster's boss at the Fulton County Public Defender's office, Liz Markowitz, is Jewish. Mike Shapiro, director of the Georgia Indigent Defense Council, is Jewish, and so are three of the council's 15 members.

Some Jews choose to prosecute rather than defend.

"I met a Jewish guy in the DA's office," Polster said. "I said, 'You're Jewish; what are you doing on that side of the table?' It's so unusual. There are a lot of minorities working as public defenders. Maybe it's because we're the downtrodden, I don't know."

Calvin Johnson said he doesn't know either, but he doesn't mind.

When he got out of prison, the woman he had been engaged to had long moved on with her life (he told her not to wait for him), and his mother was ill. She died a year later.

Focus on future

But within a week of his release, Johnson met a woman whom he would marry on his first free birthday in 17 years: July 8, 2000. The couple has a 19-month-old daughter, and Johnson works for the Metropolitan Atlanta Rapid Transit Authority as a station agent. A claim he filed brought some settlement money - he wouldn't reveal how much - for the years he spent in jail.

Johnson says he never would have gotten out were it not for the support of his family and help from people on the other side.

"There are probably people behind bars right now who are innocent," he said. "They may never have the opportunity or the help to prove it. When you're in prison, you need outside help. It's a battle you can start on your own on the inside, but you can't finish it."

Johnson is a positive person who focuses on the future, he says. He tours the country speaking about his experiences and says he would be more than happy to help with the Georgia Innocence Project as needed.

"In 16 years - you have a lot of time to try to think about a lot of things. It gave me time to reflect, to look back over my life, to see what things I did right, what things I did wrong," he said. "I realized in life that people in general take a lot of things for granted. You realize the things that you miss, the little things, walking out at night, looking at the stars and the moon, being able to walk to the refrigerator, making yourself a sandwich and watching TV, the comforts of companionship.

"You realize all those things are so special. But before you're incarcerated, you take those things for granted. As the years went by, I never ever gave up hope."