Will this convicted rapist be released?

By JOSH BARKER DELTA DEMOCRAT TIMES

Arthur Johnson has missed a lot of things while he's been in prison.

As members of his family comb through a pile of photographs, funeral programs and other keepsakes from the past decade and a half of their lives, the range of their emotions - from laughter to tears and nearly everything in between - is a reminder of how much can happen in 16 years.

That's how long Johnson, better known to family by his nickname, Boo Rabbit, has been behind bars for the 1992 rape of a Sunflower woman.

If Johnson's incarceration proceeds as scheduled, more than two-thirds of his 55-year sentence is still before him.

But according to the results of DNA tests performed last November - which the Mississippi Supreme Court last month ordered the Circuit Court of Sunflower County to review “on an expedited basis” - Arthur Johnson is in prison for a crime he did not commit.

On Feb. 25, when Circuit Court Judge Ashley Hines presides over a hearing to review this new evidence, Johnson could become the first prisoner in Mississippi to be exonerated on the basis of post-conviction DNA testing, his attorneys say.

If Johnson's conviction is overturned - if he emerges from the courthouse in Indianola a free man - Boo Rabbit will make history.

He will also contribute to the evolution of a justice system still struggling to come to terms with the technological advancements that have made it possible for inmates to challenge their convictions years after the crimes for which they are in prison have faded from most people's memories.

But if Arthur Johnson is released, will a rapist be walking free in the Mississippi Delta?

The laughter comes when Johnson's sisters and niece start talking about how he'll eat.

At a recent family gathering in Greenville, the women reminisced about Boo Rabbit. They remembered him as fun, funny and full of life.

“He always used to make everybody laugh,” said his niece, Joyce Hunter, of Greenville.

Hunter mentioned she had spoken with her uncle about prison food. The reviews weren't positive.

“He hates it,” she said.

“If God could bless us to get my brother back, we gonna celebrate with food,” said Johnson's sister, Joyce Allen, of Sunflower. “I know it's been long overdue.”

This made Hunter burst out laughing.

“Aw, man, I bet it's gonna be awesome!” she said. “Oh, God! Just imagine you're locked up 15 years... I just wanna watch him.”

The thought of Johnson eating his first non-institutional meal set off a flurry of activity. Suddenly, the women were busily planning a dinner for Johnson's homecoming.

“We gonna have a barbecue,” Allen said. “We gonna bake some cakes. We gonna cook some good old-fashioned greens. We gonna have hog maws, chitterling and corn bread...”

Hunter started writing a menu. To her aunt's list, she added neck bones, corn on the cob and old-fashioned peach cobbler.

“Soul food!” Allen said. “We gonna have a big celebration.”

But that day may not come as soon as Johnson's family would like.

At the hearing on Feb. 25, there will be a number of possible outcomes, say lawyers on both sides.

Judge Hines may decide to let Johnson's conviction stand.

Or, Hines may order a new trial.

That would give Johnson's attorneys the opportunity to show a jury the DNA evidence they say proves his innocence. It would also give district attorney Dewayne Richardson the chance to drop the charges if he believes the DNA tests are valid. (Richardson said he has no comment at this time about how his office will proceed.)

In other words, Johnson could face 40 more years of prison. He could face a new trial. Or he could walk free that day.

It will all depend on how much trust the justice system places in DNA testing. In the Mississippi courts, that's relatively uncharted territory.

According to the Innocence Project, the organization representing Johnson, Mississippi is one of only eight states without a law providing for access to DNA testing for prisoners with claims of innocence.

Nor does Mississippi have a law requiring evidence to be preserved for future testing.

As the Arthur Johnson case works its way through the state's courts, it is drawing attention to a justice system that has not yet caught up with DNA technology - and, advocates for reform say, it is pointing out the need for new legislation on evidence preservation and access to DNA testing.

To evaluate the DNA evidence involved, you have to understand the case against Johnson.

Early on the morning of July 9, 1992, someone climbed through the bathroom window of a house in Sunflower, made his way to a young woman's bed and raped her at gunpoint.

According to documents filed with the Circuit Court, a police officer took a statement from the victim in which she named “Boo Rabbit” as her attacker. The officer left and returned later with Johnson in custody. The victim identified him as the man who raped her.

During a medical examination at South Sunflower County Hospital, the victim told a doctor she was raped by a single attacker and that she had not had sex during the 72 hours before her attack. Biological samples were collected. A forensic analysis was done. But there was not enough semen to determine the rapist's blood type - the standard test for rape cases at the time.

None of the biological evidence - bodily fluids, hair, etc. - linked Johnson to the crime. But none of it proved him innocent, either. In the absence of scientific proof, the jury took the victim's word over Johnson's. After a two-day trial, the jury found Johnson guilty of rape and burglary on Oct. 15, 1993.

The victim said she did not wish to be interviewed for this story.

Johnson went through several court-appointed attorneys before he found the Innocence Project.

From prison, Johnson sent a letter to the organization's Louisiana office. There, the director of Innocence Project New Orleans, Emily Maw, picked it from among the thousands of requests for legal help the organization receives each year.

“It fit the profile of a case that could well be a wrongful conviction,” Maw said.

Founded in 1992, the Innocence Project is a non-profit organization dedicated to freeing wrongfully convicted prisoners through DNA testing. According to the organization's Web site, it has helped exonerate 212 people so far. Maw says Johnson's case looked promising to the Innocence Project because it involved a single-perpetrator rape and, fortuitously, the evidence was still stored at the courthouse.

If she could get the evidence tested using new technology, and the DNA was not Johnson's, the State of Mississippi might be forced to admit it has the wrong man in jail.

In 2005, Maw's team persuaded Judge Hines to order the evidence - the victim's clothes and several biological specimens - to be tested by a company called ReliaGene in New Orleans. The Innocence Project paid the bill. After an inconclusive round of testing and some delays caused by Hurricane Katrina, ReliaGene came back with a definitive result last November.

According to the company's report, the semen on the victim's clothing could not be from Arthur Johnson.

The tears come when Johnson's family starts talking about the relatives who have passed away since his conviction.

“While my brother was locked away, he lost his mom, he lost his dad, he lost several sisters and brothers,” Allen said. “He lost out on his family.”

“Imagine them dying thinking, ‘The son I beared is a rapist,'” Hunter said.

Johnson also missed the chance to see his own children grow up, his family said.

“Over the years, I've tried to keep him in touch with his kids,” Hunter said. “But his kids really don't know him, because they was like babies.”

Johnson's daughter, Dorothy Johnson, of Jackson, says she has been in touch with her father by telephone throughout his imprisonment, but has no memory of him from before.

Dorothy Johnson gave birth to a daughter of her own last Tuesday. Like his other grandchildren, Johnson has never met her.

“How do you regain that?” asked Allen. “How do you pick up the pieces and carry on from being locked away for that amount of time?”

According to Maw, the first post-conviction DNA exoneration in the United States was in 1989. Forensic DNA technology has emerged in, more or less, the same period of time that Johnson has been in prison. But while that is a long time in a person's life, it is a short time in the life of the legal system.

“Legal machinery has not easily caught up with science,” Maw said. “There are a lot of laborious, lumbering procedures you have to go through to get someone out.”

Maw and other advocates for reform have started working to increase the viability of DNA testing in Mississippi. Last month, Maw, together with author John Grisham, Columbus attorney Wilbur Colom and other proponents of increased access to forensic DNA testing started a branch of the Innocence Project at the University of Mississippi.

Tucker Carrington, director of the Mississippi Innocence Project, says the state needs new laws for the DNA age.

“Mississippi doesn't have any meaningful post-conviction DNA legislation,” Carrington said. “This is in the face of this kind of national trend where just about every other week you read about another exoneration somewhere.

“These cases aren't aberrations,” he continued. “They occur with far more frequency than we should feel comfortable with.”

Carrington said his organization has helped put together a bill currently before the Legislature that would form a task force to assess the state's need for new legislation.

“The Mississippi Legislature needs to pass a law that enables convicted prisoners like Mr. Johnson to obtain DNA testing,” said Maw. “And if they are indigent, if they are poor, like most prisoners are, the state needs to pay for that testing.

“There must be laws requiring that evidence be preserved for the duration of the conviction,” Maw continued. “It must not be that we cannot check the accuracy of our convictions because evidence has been thrown away.”

But Carrington said Mississippi may be far from meaningful reform.

“Even if there were the political will to pass it, I don't think the state - and by that I mean the people who would actually keep the evidence - would be able to do it,” Carrington said.

Sharon McFadden, the Sunflower County Circuit Court clerk who stored the evidence from Arthur Johnson's case - and who, in doing so, made his upcoming hearing possible - said she and her colleagues simply can't keep evidence forever.

“There will be a point in time when I'm sure that there will be a need to clear out evidence that's no longer needed in a case, meaning that there's nothing pending in any of the courts,” McFadden said. “Storage is at a premium for everything in these old courthouses.”

Then there is the cost of testing. The president of ReliaGene, Sudhir Sinha, said the tests his company ran for Arthur Johnson cost about $1,100 each. Although Sinha said he gives discounts to state agencies, it is easy to imagine the spiraling costs that could follow from a law providing access to DNA testing for any prisoner who wanted it.

And there is the issue of reliability. Even advocates of DNA testing such as Carrington acknowledge that the process is imperfect.

“DNA evidence is not infallible, in part because it's handled and analyzed by human beings,” Carrington said. “In a garden-variety case, DNA evidence can become adulterated, damaged and so forth.

“And also, there is some subjectivity in the reading of DNA profiles,” Carrington added. “You need to do some due diligence to make sure that the lab is a reputable lab.”

So what does this all mean in Arthur Johnson's case? Is he innocent or not?

Perhaps only he knows for certain.

But Sinha said ReliaGene - which has been accredited by the American Society of Crime Lab Directors, among other bodies - is “absolutely confident” in its result.

“This test is very good to exclude a person,” Sinha said. “If the DNA does not match, we know that this person is not involved in this case.

“We had two pieces of evidence,” Sinha continued, “and both cases gave the same result: that this evidence does not match Arthur Johnson.”

There are some difficult decisions on DNA testing, evidence preservation and the very nature of justice that lawmakers, judges, lawyers and ordinary citizens in Mississippi are going to have to face.

The question of what to do with Arthur Johnson on Feb. 25 is only one of them.

As Johnson's niece said near the end of her family's gathering, “There's a lot of Arthur Johnsons that are in prison.”