In the days after Nathaniel A. Johnson’s exoneration for an armed robbery he didn’t commit, he shopped for new clothes, slept in his own bed and, on a whim, took a walk outside. ¶ “Just enjoying life,” Johnson said. ¶ After nearly four years behind prison bars and a razor-wire fence, Johnson is a free man and his name has been cleared. A judge recently set aside the guilty verdict that put him in prison. ¶ “I still can’t believe it happened to me, and I can’t believe it’s finally over,” Johnson told The Buffalo News. “There were plenty of times I wanted to stop fighting because it seemed like nobody was listening.” ¶ Johnson all along denied any involvement in the 2009 armed robbery at a North Buffalo convenience store. Thanks to some lawyers who did not give up and a family friend starting a new career as a private investigator, the case against the 44-year-old roofer and construction worker unraveled. But he still lost those four years.
Nearly two weeks have passed since his release. Amid his relief, though, are the nightmares about waking up back in prison.
And he wonders why God put him through the ordeal.
“They say God does things for reasons,” Johnson said. “I still don’t understand why He let this happen to me though.”
Johnson, who friends know as “Tony,” was arrested four years ago today, May 12, 2009, and charged with using a gun to steal $3,000 from the Wilson Farms store at Delaware and Tacoma avenues around 4:30 a.m. April 23.
Early in the investigation, detectives had a key piece of information: a license plate number for the getaway car. An off-duty police officer happened to pull into the store parking lot as the robber sped away.
But when police ran the plate number, it came back to a car that did not match the description of the getaway car. Figuring it was the wrong plate number, Buffalo detectives focused on another lead. They discovered that Johnson, who resembled the description of the robber, frequented another nearby Wilson Farms, where his then-girlfriend worked the night shift. Johnson sometimes entered areas of the store considered off limits to anyone but employees.
Police showed a photo array that included Johnson’s picture to the manager of the robbed store. The manager identified Johnson as the robber.
During the trial, prosecutor Paul Michalek Jr. used Johnson’s regular presence at the other store to bolster the prosecution’s theory the robbery was committed by someone with inside knowledge of how Wilson Farms stores operate.
The girlfriend agreed to testify for the prosecution, and she told jurors that Johnson had commented to her during one of his visits that the Wilson Farms would be easy to rob.
The prosecutor did not disclose to Johnson’s defense attorney during the trial that the girlfriend had a drug charge pending against her. She was granted an adjournment in her case.
“She had her own charges, so she threw me under the bus,” Johnson said. “Whatever they wanted her to say, she said. She was manipulated by the district attorney.”
Trial testimony from the Wilson Farms manager proved pivotal. He identified Johnson as the robber.
“Once you have a positive identification, where a victim says, ‘That’s him,’ You’re in trouble,” said defense lawyer John R. Nuchereno, who did not represent Johnson at trial but later worked to set aside the verdict.
Jurors found him guilty.
And that might have been how it ended, had it not been for Kathie Kuwik.
A private investigator
Kuwik is a friend of Johnson who did not believe he was the robber.
“They had a suspect, and that’s all they were interested in,” she said. “They weren’t worried about getting to the bottom of it. They weren’t worried about getting to the truth of it.”
Kuwik sat through trial testimony and came away wondering why police had not looked more closely at the getaway car.
She also had received her private investigator’s license around the time of Johnson’s trial.
So she did some investigating herself.
Testimony revealed the license plate number came back to a car used by a woman whose boyfriend also had access to the vehicle.
The boyfriend was Jabari H. Spencer.
Kuwik learned he was being held in the Erie County Holding Center on charges related to two Kenmore Avenue armed robberies in 2009, one on June 10 and the other on July 3, just a few months after the Wilson Farms robbery Johnson was accused of committing.
During the trial, Kuwik went to the woman’s home, where she saw two cars in the driveway, including a green Mercury with the plate number that police had early in their investigation. The other unregistered car did not have plates on it. But it matched the description of the getaway car.
“All he did was switch the plates, so it wouldn’t come back to him,” Kuwik said.
Too late for evidence
She rushed back to the courthouse to alert Johnson’s lawyer, Giovanni Genovese. But he had already wrapped up his closing argument. It was too late to introduce new evidence.
“It was evidence that we unfortunately did not have at the time of the trial,” Genovese said. “At the time, we did the best we could with what we had.”
And Johnson was convicted and sentenced to prison.
Vincent F. Gugino, a lawyer for the Legal Aid Bureau of Buffalo, appealed the conviction.
The appellate court denied Johnson a new trial, but Gugino’s work helped pave the way for Nuchereno’s work.
Gugino and law intern Patrick Sheldon dug into the Spencer connection.
Sheldon found photos of Johnson and Spencer and placed them side by side. Although Johnson is 15 years older, the two look remarkably alike.
“I’ve done this for 25 years, and I’ve never found somebody so innocent. It jumps out at you,” Gugino said.
Gugino was so convinced of Johnson’s innocence that he pushed the county’s assigned counsel program to find a lawyer to take the case a step further. That is how Nuchereno entered the case.
Nuchereno cited in his motion the new evidence.
Assistant District Attorney Michael J. Hillery handled the appeal work in the Johnson case. When Hillery saw Nuchereno’s motion, he alerted District Attorney Frank A. Sedita III, who decided to take another look at the case.
Sedita assigned Joseph Riga, his chief investigator, to conduct what he called an exoneration investigation.
Riga, the former head of the Buffalo Police homicide unit, completed his work convinced that Johnson was the wrong guy for the crime, Sedita said.
“I asked him, what are the chances Mr. Johnson is innocent? And he said 100 percent,” Sedita said.
Sedita’s office joined Nuchereno in seeking dismissal of the indictment.
“It was clear as clear can be: This man was 100 percent innocent, and he maintained it all along,” Nuchereno said. “This is everybody agreeing this man is innocent. This is not a technicality. This is a finding of innocence.”
Judge criticizes prosecutors
Nuchereno credited Sedita for not obstructing Johnson’s exoneration, but State Supreme Court Justice Christopher J. Burns expressed concern about how the District Attorney’s Office handled the case.
Before Burns granted the motion, he said he found the case “troubling.” And the judge noted that if Johnson had not brought the new evidence to light, the District Attorney’s Office probably would not have uncovered the injustice on its own.
“The investigation by the police and the DA was sloppy, and you’ve got flimsy identification, and they didn’t look at the car,” said Gugino, the Legal Aid lawyer. “They didn’t put two and two together. We named Jabari Spencer in our brief. We said, ‘This is the guy.’ ”
But Sedita said his office worked as quickly as possible to investigate.
A screening process implemented in 2009 to weed out prosecutions of innocent defendants before trial has resulted in “dozens and dozens” of exonerations, Sedita said.
“Unfortunately, none of the screening methods worked in this case,” he said.
Sedita would not comment on whether his office would now charge Spencer with the Wilson Farms robbery. Spencer, 29, is serving time in Collins Correctional Facility for one of the store holdups. He was sentenced to 10 years on a first-degree robbery conviction and will not be eligible for release until 2018.
Friends show support
About a dozen of Johnson’s family and friends showed up in the courtroom for the hearing in which Burns cleared the way for his release from Orleans Correctional Facility.
The burly Johnson bear-hugged Nuchereno at the conclusion of the April 29 hearing, then shed tears of joy as his friends and loved ones lined up to embrace him.
“I knew Tony was innocent from day one. That’s not him. He doesn’t like guns. He doesn’t have guns,” Kuwik said. “The man wouldn’t take a sandwich out of your lunch box, God forbid commit an armed robbery.”
After the hearing, Johnson returned to Orleans Correctional Facility to retrieve his personal items and was supposed to be freed that day. But the prison did not receive a certified copy of the judge’s order, so his release was delayed until the next morning – yet another indignity in a cycle of them for Johnson.
Johnson was due to be conditionally released from prison in August. He had served nearly four years of his five-year prison sentence.
“That’s the sad thing. He served the whole sentence almost,” Nuchereno said.
Johnson said he does not harbor resentment toward those who helped convict him.
He has not talked of seeking compensation from the state for the wrongful conviction.
“This has all been about clearing his name,” Nuchereno said. “He’s got his credibility back, and that was important to him. He will look into that, but that’s not his goal now. Right now, he just wants people to know.”
“I think we were more angry about it than him,” said Virginia Ackley, a woman who is like a mother to Johnson. “He knew we believed in him, and he knew he didn’t do it.”
Johnson lived for about a decade with Ackley and her husband, George, in a Riverside duplex, and since his release he has moved in with them again in their Cheektowaga home.
Johnson does not believe any amount of money can compensate him.
“No matter what they give you,” he said, “it’s not going to bring back the time you lost.”