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A Tiny Piece of Evidence Could Be the Key to Setting An Innocent Cleveland Man Free. Why Can't Anyone at the Justice Center Find It? 

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The women didn't see the knife-wielding man because of the hamster. On the afternoon of Oct. 9, 2000, three women, all classmates at a court-reporting school in downtown Cleveland, were hunting through their parked car for the loose little critter when the assailant approached, flashing a knife and demanding cash. After pocketing the money, he ordered the three women into the car, climbed in the back seat, and ordered them east. Near Central and East 40th, the robber got out. He thanked the women, then disappeared. When the women reported the incident to police, they gave differing accounts of the assailant's looks — all three had kept their eyes off his face during the anxious, scary encounter — but agreed on his clothing: a grey jacket and a green hat with a red Polo logo. When Cleveland officers returned to where the victims had dropped off the stickup man, they found a jacket and hat matching the description. Inside the hat forensics investigators found four hairs — three non-human, one human.

A lot now rests on that one, tiny hair.

Anthony Johnson was a suspect in a series of other robberies — Cleveland had seen a rash of similar stickups in the late months of 2000 — and he was charged in 2001 with the Oct. 9 crime, as well as two other stickups. Johnson maintained his innocence in court, noting that the human hair found in the hat didn't match his DNA. Nevertheless, Johnson was convicted and sentenced to 25 years in prison. Johnson maintained he'd been put away for something he didn't do, and, remarkably, while researching his case in a prison law library he met a guy who might have actually been the perpetrator, another alleged Cleveland stickup man named Frederick Norman. Johnson mentioned the circumstances of the Oct. 9 crime and Norman said it sounded familiar. Johnson told him more. Oh yeah, Norman confessed, I did that one.

So launched a bizarre legal situation that's grown more complex and baffling with each passing year, as Johnson continued to fight to prove his case, which was eventually taken up by the Ohio Innocence Project (OIP).

The attorneys there formulated what sounded like a simple legal strategy to prove Johnson's innocence: The hair in the hat didn't come from their client, but if the hair did match Norman, it would firm up Johnson's claims.

Those lawyers could have foreseen any number of problems that could derail their quest to prove Johnson's innocence, but they probably couldn't have imagined the problem they are now faced with: The hair, and all the other evidence from the Oct. 9, 2000, crime, are nowhere to be found.

OIP has spent the better part of the past year searching for it, pleading their case in front of judges, asking the Cleveland police department where it could be and how it got lost, and getting nothing in return. Meanwhile, Anthony Johnson sits in prison and waits.

The search has revealed serious questions about the city of Cleveland's ability to keep track of the most sensitive material integral to weighing guilt or innocence in the American justice system — another black eye for a police department and city with a long, troubling history in that realm.

"The fact that we can't test the hair is a huge injustice to Mr. Johnson — through no fault of his own," says his attorney, OIP's Jennifer Paschen Bergeron.

***

There was trouble with the evidence almost as soon as the Ohio Innocence Project got involved. In 2011, the organization sent letters to Cleveland police asking the department to locate and preserve the green Polo hat, the jacket, and the hair. OIP's court filings state that one of the law students working with the group called the department asking about the evidence; according to court filings, she was informed "the green hat was located in the property room" and "the hair was probably in the police lab."

Johnson's lawyers filed an application for DNA testing on the hair in February 2013. The Cuyahoga County Prosecutor's Office challenged the request, teeing up a contest before the Eighth District Court of Appeals. The higher court sided with the defendant: Johnson would get his DNA test.

In preparation for the eventual testing, Mary McGrath, the assistant prosecutor on the case, filed an "Initial Property Report" with the court in October 2014. In the document, the state copped to a newly discovered problem: McGrath wrote that she'd learned from Tom Ward, a Cleveland detective assigned to the property room, that he "had located the sole human hair that was recovered from green ball cap with red Polo detail." But the green hat and jacket, despite what Cleveland police allegedly told OIP in 2011, were actually . . . missing. McGrath learned the items had been signed out by a detective for Johnson's 2001 trial. They were never signed back in.

Bad? Absolutely. But the hair found at the scene was the critical piece of evidence needed to determine Johnson's innocence, not so much the jacket and hat itself. Per the appeals' court order, the prosecutor's office collected a sample from Frederick Norman, the man who confessed to the crime for which Johnson was serving time. Technically, this was the third hair to enter the situation. The first was the hair collected from the green hat. The second was a hair taken from Johnson as part of the original investigation, known as the "standard" hair, the one that didn't match the strand found at the scene.

With Norman's sample, all three hairs would be in place and the OIP could corroborate Johnson's innocence.

On Nov. 18, 2015, assistant prosecutor Mary McGrath personally walked to the Cleveland Police property room on the eighth floor of the department's downtown headquarters to retrieve the crime scene hair. When she asked the clerk for the evidence, she was handed a sealed envelope. The item was labeled.

"I saw the word 'Standard' and got very angry," McGrath would later testify. The county prosecutor realized the police — or someone —had made another critical mistake. After misplacing the jacket and green hat, Cleveland police were now telling her they didn't have the critical crime scene hair either, just Johnson's hair.

"I told him, 'You must find this hair,'" McGrath testified. "'I have represented that we have found this hair for years. You must find this hair.'"

***

OIP spent much of the next year petitioning the court to grant an evidentiary hearing to sniff out what the hell was going on. "The prospect of testifying under oath and subject to cross examination will prompt evidence custodians to locate evidence that was previously reported to be missing or destroyed," OIP's Jennifer Paschen Bergeron argued in a January 2016 motion.

An October 2016 hearing in front of Cuyahoga County Common Pleas Judge Carolyn B. Friedland failed to settle the issue and raised more red flags regarding evidence storage at the Justice Center.

As with almost all criminal proceedings in Cuyahoga County, the evidence in the Johnson case — the hat, jacket and hair — orbited between various corners of the police and court system. Each person handling evidence is supposed to be documented; the log is known as the evidence's chain of custody, the legal Holy Grail ensuring key pieces are not tampered with, or lost.

OIP's Bergeron sought to feel out where in that chain the items slipped away. The possibilities: the Cleveland police forensic lab; the police property room; in the prosecutor's office; or in the common pleas or appeals court.

The first witness called at the hearing was Tina Stewart, a scientific examiner with the police forensic lab. Although she never worked the Johnson case personally, Stewart was one of only two staffers still working in the lab who had been there back in 2000.

"Have you personally looked for the hair?" Bergeron asked the forensic examiner.

"Yes, I have."

"When?"

"I looked for it again yesterday, but I believe it was last year sometime I looked in the archives," the expert replied. "I looked in every possible area that I could think of. I went to the property room. So I did exhaust all areas of storage."

"Where should the hair be today?"

"According to the report, it says the hairs were mounted on slides and are stored in the specimen file," Stewart replied. "Our specimen files used to be inside the laboratory, and at one point in the last 20 years — and it might have been when I was either on maternity leave or laid off — those file cabinets were moved up to the ninth floor. The ninth floor is where the property room stores evidence. So it's a keyed room and that's where those specimen files are stored."

Stewart also noted that on the back of the reports, there should be a list of who had access to the file: the chain of custody. If anyone had taken out the files containing the hairs, it would have been noted.

"So there's no record that anybody signed out the hairs that were mounted on the slides?" Bergeron noted of Johnson's file.

"Not on this card, no."

"So according to this card, should the hairs be in the lab?"

"It should be in the specimen file."

"But it's not?

"No."

During the next swing on the witness stand, Tom Ward, a Cleveland police officer who had worked in the property room since 2001, told the court he had personally looked for the evidence two or three times.

"When you looked through there, did you find any sort of envelope or something containing a hair?" Bergeron asked.

"No."

"What about a gray jacket?"

"No."

"A hat?"

"No."

Ward did, however, bring a plastic garbage bag filled with clothing associated with the case. But, again, the hat and jacket weren't in the bag.

"Why not?" Bergeron asked.

"They were signed out for court," the patrolman replied.

"They were signed out for court?"

"In 2001."

"Who signed them out?"

"Detective Michael Alexander."

Ward explained the department's records indicated the items were not destroyed. Adding more room for a possible error or mistake in the chain of custody, he also pointed out the police property room had changed locations.

"At that time, the property room was located in the Justice Center, in the Cleveland Police headquarters on the fourth floor," he explained. "Since then, we have moved up to the eighth floor."

The officer continued, somewhat offhandedly: "If a person would come in, you might think its chaos and disorganized, but there is a method."

***

The hair was MIA. The records indicated the hat and jacket —which might still yield some type of DNA evidence with the more sophisticated techniques available today — were checked out for Johnson's trial. They were entered as exhibits at trial; so did the courts still have them? Or the clerk of courts?

Negative on the latter, according to the chief court reporter Bruce Bishilany. At the October hearing, the supervisor of the 42 reporters assigned to the common pleas court was asked if the hat and jacket were ever in possession of the court.

"We have no record of that," Bishilany explained. But the chief court reporter pointed out he wasn't talking about the Johnson case specifically, he was talking about all cases from the time period: After 12 years, all records are destroyed. There was now no way to tell.

Similarly, Frank Kost, a deputy clerk at the file room at the Court of Clerks, told the hearing that his office also had no idea where the evidence went.

"So it is your conclusion then that you never received anything other than that envelope?" Bergeron asked.

"As far as I can tell, there's no indication of it," Kost testified.

The only record related to the hat and jacket indicated the items had been checked out of the property room in 2001 by Detective Michael Alexander. When the Cleveland police officer arrived for his testimony, he had little recollection of the case. At the time, Alexander had been a detective in the third district, and he's since switched to other details. In fact, Alexander admitted at the start of his testimony he'd only learned the day before he needed to appear at the hearing.

Bergeron noted the detective had signed out both the hat and another item — a bandana — from the property room. "Where did it go?" the attorney asked.

"Well, the hat was entered in as an exhibit at trial," the detective said. "The bandana was not admitted."

"If there was an item that was not admitted as an exhibit, what would be the standard procedure that you would follow?

"It would go back to the property room," the detective said.

"But you would agree it never went back to the property room?"

"I would say it did not according to the log," the detective answered.

"Do you know where it went?"

"I do not."

Alexander told the court he actually hadn't collected the material from the crime scene itself. He just handled the evidence.

"And as far as you remember, you did not take the jacket or the hat, which were admitted as exhibits, with you after trial?" the attorney asked.

"I did not."

"Do you recall who took them?"

"I do not."

Some clue to the evidence's location might have been in Alexander's file from the case. But the detective told the court he hadn't had a chance to look for it. The third district had switched locations twice since the Johnson trial, meaning the old files could be sitting in archives at the other locations.

Alexander was actually excused to go hunt down the documents, and the hearing was continued until November. Alexander came back empty handed.

"I checked our supply unit, got pretty dirty doing it, and I still was unable to locate that particular file," the detective said. "I can't locate any of my files from that era."

The last comment caused Judge Friedland to jump in. "You're kidding me?"

"No," the detective replied. "That was some time ago, so."

Alexander went on to describe that in his search through the archive he didn't see any files from the third district at all.

"You found no files from the third district?" the judge interjected again, nonplussed.

"I could not find any files," the detective replied.

"I guess I'm kind of wondering how the police department is going to be able to fulfill its public records requests and other duties it has to fulfill if they can't find any files from the entire district for years."

"I can't answer that question."

***

The hair had disappeared. The hat, bandana, and jacket were gone. The case files were missing. No one inside the Justice Center had a good explanation for any of it following the two hearings.

OIP's next move was to request to personally search for the items in the police property room, a request the court granted. But as the details were being hashed out, the city of Cleveland — so far not a party in the case — interjected with a motion asking the judge to reconsider. The city's attorneys argued a search of the property room by attorneys hoping to find lost evidence that may prove their client's innocence would "constitute a grave injustice to the City." Among the city's arguments was that the search would be pointless: The files from the third district had been destroyed after the various moves. As proof, the city filed undated destruction orders with the court.

The judge didn't exactly buy the city's argument; she ordered the search be conducted in May with certain constraints on the OIP representatives, mainly that they couldn't touch anything themselves and attorneys from the city and prosecutor's office would be present.

There was, however, one last surprise awaiting Johnson's attorneys when they arrived at the Justice Center on May 12, 2017.

The searched turned up none of the missing evidence. But one of the officers in the property room presented OIP's Liza Dietrich with a case file for the Johnson case. The file didn't belong to detective Alexander but to another third district detective and, directly contradicting the city's arguments in court, hadn't been destroyed. Interestingly, Dietrich noted Norman's name was printed on the file front along with Johnson's.

So here it was, the missing case file, which may contain information crucial to proving Johnson's innocence. But Dietrich wasn't allowed the look at the file itself, she was told: She'd have to submit a records request through the city. Though they did so quickly, and though the city now knew exactly where the file was, Cleveland has yet to provide the documents to the Ohio Innocence Project.

The Cuyahoga County Prosecutor's Office hasn't conceded that Norman's confession actually means that Johnson is innocent. In her hearing testimony, assistant prosecutor Mary McGrath explained that even if the hair were to be found and matched Norman, Johnson and Norman could have worked together on the stickups.

After the May 17 search, the office filed a motion with the court, arguing they had used "reasonable diligence" trying to find the material, and requested that the court dismiss the application for DNA testing. A ruling has yet to be made on that request.

The case now sits in limbo, and Anthony Johnson sits in prison.

"It's not unique for evidence to go missing or be destroyed," OIP's Bergeron says. "It is unique that there's no explanation for where the items went. There's no real record of them being destroyed. They are supposed to be in certain places, and they are not in those places."

Messages by Scene to the city of Cleveland seeking comment on the case and evidence room procedures were not returned.

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