Saturday, October 1, 2011

The Impending Execution of Marcus Ray Johnson: Open Deliberation

Marcus Ray Johnson sits on death row awaiting execution by the people of Georgia on 5 October 2011. I will present his case differently than I have presented the others. I will provided the best evidence I can find both for his guilt and for his innocence. Before opposing this execution or standing mute, I will allow you to deliberate the case via comments to this post. Late Monday night, I will allow you to cast your Guilty / Not Guilty vote as a vicarious juror in the case of Georgia v. Marcus Ray Johnson. Late Tuesday night, I will decide to oppose the execution or stand mute.

Do not dally. Do not dawdle. There are but five days before the execution. Settle in someplace comfortable, grab a beverage, and clear your head. (Not necessarily in that order.) A lengthy post follows. To minimize scrolling, I will not indent the material written by others.

From Johnson v. Upton (2010)

A. The Crime
On March 24, 1994, Johnson raped, murdered, and mutilated Angela Sizemore a few hours after meeting her at a bar in Albany, Georgia. ... The Georgia Supreme Court set forth the evidence against Johnson:

[T]he victim, Angela Sizemore, met Johnson in a west Albany bar called Fundamentals between 12:30 and 1:30 a.m. on March 24, 1994. Ms. Sizemore had been to a memorial service for an acquaintance the previous day, and she had been drinking so heavily the bar had stopped serving her. Johnson was wearing a black leather jacket, jeans, black biker boots, and a distinctive turquoise ring. According to a witness, Johnson was angry and frustrated because another woman had spurned his advances earlier in the evening.

The bar owner and its security officer (who both personally knew Johnson) testified that they saw Johnson and Ms. Sizemore kissing and behaving amorously. [At approximately 2:30 a.m.] Johnson and Ms. Sizemore left Fundamentals together; the bartender handed Ms. Sizemore's car keys directly to Johnson. They were seen walking towards Sixteenth Avenue.

At approximately 8:00 a.m. on March 24, 1994, a man walking his dog found Ms. Sizemore's white Suburban parked behind an apartment complex in east Albany, on the other side of town from Fundamentals. Ms. Sizemore's body was lying across the front passenger seat. ...

Four people testified that they saw Johnson about an hour before the body was found. Two witnesses testified that [at around 7:00 a.m.] they saw him walk from the area where the victim's Suburban was parked through an apartment complex to a bus stop. He boarded a bus and asked if the bus would take him to the Monkey Palace (a bar where Johnson worked) in west Albany.

Three witnesses, including the bus driver, identified Johnson as being on the bus (one of the witnesses who saw Johnson walk through the apartment complex boarded the same bus as he did). Two witnesses stated that their attention was drawn to Johnson because that area of Albany is predominantly African-American, and it was extremely unusual to see a Caucasian there at that time of day. All the witnesses testified that Johnson's clothes were soiled with dirt or a substance they had assumed to be red clay. The witnesses gave similar descriptions of his clothing; in court, two witnesses who sat near Johnson on the bus identified his jacket, boots and distinctive turquoise ring.

The police determined that Ms. Sizemore was murdered in a vacant lot near Sixteenth Avenue in west Albany. ... The vacant lot is about two blocks from Fundamentals and about half a block from the house where Johnson lived with his mother.

A friend of Johnson testified that after he called her early on March 24, she picked him up at his house at 9:30 a.m. and took him to her home, where he slept on her couch for several hours. Johnson then told her he wanted to take a bus to Tennessee and that he needed her to go to the Monkey Palace to pick up some money he was owed. At his request, she dropped him off near a church while she went to get the money. The police were waiting for Johnson to show up, and they returned with the friend and arrested Johnson. Before they told him why they were arresting him, he blurted, "I'm Marcus Ray Johnson. I'm the person you're looking for."

DNA testing revealed the presence of the victim's blood on Johnson's leather jacket. Johnson had a pocketknife that was consistent with the knife wounds on the victim's body. He had scratches on his hands, arms, and neck. In a statement, Johnson said he and the victim had sex in the vacant lot and he "kind of lost it." According to Johnson, the victim became angry because he did not want to "snuggle" after sex and he punched her in the face. He stated he "hit her hard" and then walked away, and he does not remember anything else until he woke up after daybreak in his front yard. He said, "I didn't kill her intentionally if I did kill her."

The condition of Sizemore's body evidenced Johnson's extreme brutality during her murder. Johnson sexually assaulted Sizemore with the limb of a pecan tree, which was shoved into her vagina until it tore through the back wall of her vagina and into her rectum. Sizemore was alive during the sexual assault. Johnson also cut and stabbed Sizemore 41 times with a small, dull knife. Sizemore had grip marks (round or oval bruises caused when a person is grabbed tightly) on her upper extremities, knees, thighs, ankles, and the inside of her arms. She had severe bruising, abrasions, and other evidence of blunt trauma about her body, especially her face, head, arms, ankles, and feet. Sizemore was alive during this attack.

After mutilating and killing SizemoreSizemore's body was discovered clothed, with her shirt pulled up and tied in a knot just below the breast. Her pants were around her legs and her bra was tied in a knot around her right thigh and protruded from the pants. Dirt and sand drag marks were found on the side of her body and grass was found attached to her face. Johnson had dragged Sizemore's body from the attack area back to her car by using the knotted loops of her shirt and bra as handles.
...
C. Johnson's Transfer to Miller County Jail
Following his arrest, Johnson was housed in the overcrowded Dougherty County jail in Albany, Georgia. On June 5, 1994, Johnson was taken to a hospital for treatment after other inmates beat him. Lane knew that Johnson received other beatings from jail inmates. Lane saw Johnson had suffered injuries, but they were "mainly bruises and lacerations,... not anything that would have required him to be hospitalized." Johnson gave Lane handwritten threatening notes that Johnson received in the Dougherty County jail. Lane "knew it wasn't a healthy situation for [Johnson] to be there."

Attorney Lane met with Johnson at the jail on June 6, 1994, to discuss the jail conditions and his beating. Lane later met with the sheriffs of Dougherty County and nearby Miller County to discuss transferring Johnson to the Miller County jail. Lane told the Dougherty County sheriff about Johnson's abuse in the Dougherty County jail. Lane also preferred that Johnson be housed in the Miller County jail because it was closer to Lane's office in Donalsonville, Georgia. After four months in the Dougherty County jail and because of Lane's request, Johnson was transferred to the Miller County jail in August 1994.

D. Johnson's Escape
The Miller County jail was a small facility, and on the evening of October 2, 1994, the only deputy on duty was 76-year-old Brooks Sheffield. That evening, Johnson asked Deputy Sheffield if he could use the jail telephone. When Sheffield brought Johnson to the telephone, Johnson grabbed Sheffield's gun, struck Sheffield in the head with the butt of the gun, and escaped the jail. The next night, Johnson was found and taken back into custody.

Sheffield's head injury required 21 staples to close, plus follow-up care. X-rays showed no skull fracture or intracranial bleeding. There were no brain contusions. The CT scan "was deemed normal for a patient in Mr. Sheffield's age range." About seven months later, on April 27, 1995, Sheffield suffered a stroke. He died in June 1995.

Upon Johnson's recapture, he was returned to the Miller County jail, where he remained until mid-November 1994. Johnson was then transferred back to a jail annex in Dougherty County, which was a separate, renovated building across the street from the old jail's cell blocks where Johnson was before. In January 1995, the new Dougherty County jail opened and Johnson was moved there. Johnson remained in the new Dougherty County jail until his trial ended. ...

E. Trial Counsel's Penalty-Phase Preparation
... Johnson "maintained his innocence throughout" the case. Lane felt Johnson had a chance to be acquitted because of "the circumstantial nature of the evidence against Mr. Johnson and the lack of conclusive physical evidence tying him to a homicide." Lane testified: "Compared to other death penalty cases where the evidence is just overwhelming that the person did it, this was not such a case. You would try that case totally differently. You'd forget about did he do it. And you start trying it about, well, why did he do it. This case was not like that."

... Lane knew the State would use evidence of Johnson's escape in sentencing. Lane believed that "the escape incident could prove to be devastating to Mr. Johnson's case if [he] proceeded to a sentencing phase" because, in Lane's experience, "future dangerousness is of great concern to juries in capital cases, and an escape clearly raises the specter of future dangerous behavior in the jury's eyes." Lane felt the evidence of Johnson's escape "would be some of the most damaging evidence presented."
...
From March 23 to April 7, 1998, Johnson was tried on charges of malice murder, felony murder, aggravated assault, aggravated battery, and rape. The jury found Johnson guilty of all charges. At the penalty phase, the State called eleven witnesses. Lynwood Houston, a sheriff's deputy in Miller County, investigated Johnson's escape and testified about it. The jailer on duty, Sheffield, allowed Johnson to come into the control room to use the telephone. Once there, Johnson snatched the pistol out of Sheffield's holster and hit Sheffield in the head with it. Johnson fled the jail, taking Sheffield's pistol with him.

On cross-examination, Deputy Houston admitted that Johnson committed no crimes after his escape that Houston knew of, and that Johnson did not try to run or resist arrest when he was recaptured. Deputy Houston did not know how long Brooks Sheffield was in the hospital after Johnson hit him with the gun, but Sheffield did return to work for the county after the assault. Deputy Houston knew that after his injury, Sheffield did some work for the city too, and may have directed the public works efforts around the courthouse square.

Dr. Peggy Rummel, the emergency room physician who treated Sheffield, testified that Sheffield "came to the emergency room with his head bleeding, and he stated at the time that he had been struck on his head with a gun butt during an assault by an escaping prisoner." Sheffield was 76 years old but was in good health except for his head injury. Dr. Rummel examined Sheffield, closed the wound, and sent Sheffield to get a CT scan "to make sure that no brain damage had resulted from the blow to his head." The injury came from a "pretty significant blow" that "caught the skin and had just literally scalped and peeled it down to where he had exposed bone and this was bleeding very heavily." It required 21 staples to close. Dr. Rummel opined that the injury resulted from a glancing blow and, with the amount of force that was used, a direct blow "would have crushed [Sheffield's] skull."

Dr. Rummel, who knew Sheffield personally, testified that after this incident, Sheffield "was just not the same man any more." Sheffield was "a very unhappy man afterwards" and "stayed home and stayed to himself." Seven months after Johnson's escape, Sheffield "suffered a stroke on that side and it was a bleed of one of the major arteries in that area and it had disastrous consequences for him." Sheffield died several weeks later. Dr. Rummel testified, though, that she "[could] not in all honesty tell you that there was a one hundred percent no doubt about it direct relationship" between the head injury and Sheffield's stroke seven months later. On cross-examination, Dr. Rummel admitted that Sheffield drove himself to the hospital after receiving the head injury and that the CT scan taken after the assault revealed no internal bleeding in Sheffield's brain.

The State called Johnson's former probation officers, who testified Johnson received probation in September 1984 after pleading guilty to financial transaction card fraud, four counts of financial transaction card theft, and theft by receiving stolen property. One officer testified that of the thousand persons he had supervised as a parole officer, Johnson's attitude was one of the ten worst. Johnson was "[v]ery resistant to supervision" and was rated a "maximum risk individual." Another officer confirmed Johnson had a negative attitude and failed to comply with the terms of his probation.

From Johnson v. State (1999)

The procedure used for the pretrial identification of Johnson by the witnesses who saw him in east Albany near the body's location was not impermissibly suggestive, nor was there a substantial likelihood of misidentification. ... Only two witnesses were shown a photographic line-up and both picked Johnson as the man they saw. The police did not suggest an identification of Johnson with regard to either photo array, and Johnson's photo was not distinct from the others. The photo identifications were not improperly suggestive.

In addition, viewing the totality of the circumstances, there was no substantial likelihood of misidentification with these four witnesses. The factors to be considered in determining whether an identification was reliable are: 1) the opportunity for the witness to view the defendant; 2) the degree of attention of the witness; 3) the accuracy of the prior description; 4) the witness's level of certainty; and 5) the length of time between the viewing and the identification. ...

The record shows that these witnesses viewed Johnson from close range in daylight for an extended period of time. All four witnesses provided the police with descriptions of Johnson on March 24, 1994, the same day they saw him. Two of the witnesses said their attention was drawn to Johnson because it was rare to see a Caucasian in that neighborhood at that time of the morning, and his appearance was even more unusual because of his biker-style clothing. The witnesses gave similar descriptions of his clothing; in court, the two witnesses who sat across from Johnson on the two buses he rode identified his leather jacket, biker boots and turquoise ring. They all remembered that he was soiled with dirt or red clay. Two witnesses identified Johnson within 24 hours of seeing him, one witness picking him from a photo array and one witness recognizing him from a television news report (after providing police with his description). The bus driver picked Johnson out of a photo lineup five months after seeing him. The fourth witness did not make an identification of him until a court hearing several years later. All the witnesses were certain about their identification. We conclude that there was no substantial likelihood of misidentification and the identification testimony was properly admitted.
...
Johnson complains that the State failed to establish a chain of custody regarding the blood sample taken from his leather jacket that was matched to the victim's blood. He asserts that the chain of custody was broken because the person at the State Crime Lab who removed the blood from his jacket did not testify. At trial, Keith Goff, the Crime Lab technician who tested the blood, testified that he did not personally remove the blood from Johnson's leather jacket or see it removed. The Lab employee who removed the blood from the jacket now lives in Wyoming. Goff testified that, in accordance with general Crime Lab procedure, he received the blood sample taken from the leather jacket on a piece of cotton thread stapled to a note card, which contained the case number, the item number, and the initials of the Lab technician who collected the sample. The technician who collected the sample personally gave the sample to Goff. Johnson does not allege any other breaks in the chain of custody.

We find that the trial court did not abuse its discretion by ruling that the chain of custody was adequately proved. "[W]hen blood samples are handled in a routine manner and nothing in the record raises a suspicion that the blood sought to be admitted is not the blood tested, the blood is admissible and the circumstances of each case need only establish reasonable assurance of the identity of the sample." Absent affirmative evidence of tampering, "mere speculative doubt as to the handling of evidence while in the possession of the Georgia Crime Lab is a matter for consideration by the jury."
...
Johnson raised two arguments regarding alleged newly-discovered exculpatory evidence: (1) The record reveals that the defense was served with the GBI Crime Lab report in October 1995 regarding a "head hair of possible Negroid origin" found at the crime scene. Johnson alleged that a continuance was necessary so that the defense could explore obtaining DNA from that hair and possibly comparing its DNA against a national DNA index system. There was no showing of due diligence on the defense's part in regard to this evidence. ... The 40 additional photos of the victim's body were seen by the defense's expert and used to support his opinion at trial. Johnson can thus demonstrate no harm regarding the trial court's ruling regarding this evidence.

A proposed clemency letter by Georgians for Alternatives to the Death Penalty

The Board of Pardons and Paroles is an extremely valuable component of the justice system, and as members of the Board, you contribute mercy and grace to a system that is often unable to consider either. I come to you now pleading for the life of Marcus Ray Johnson.

I believe that there is too much doubt and error that permeates the case to allow for the execution of Marcus Ray Johnson. Mr. Johnson has maintained his innocence from the day of his arrest until now, and was convicted on the basis of unreliable eyewitness testimony from people who did not see Mr. Johnson commit any crime. Expert testimony on the problems with the eyewitness identifications in Mr. Johnson’s case was not allowed at trial, but it would have aided jurors in evaluating factors undermining the reliability of this evidence which lay people do not have the expertise to identify. No physical evidence ties Mr. Johnson to the crime. Testing of critical physical evidence from the crime scene has never been permitted by the courts and has since been destroyed by order of the trial court.

In addition, a pocket knife belonging to Mr. Johnson that investigators said was consistent with the stab wounds, and a stick allegedly used during the crime were tested and came back negative as to any blood or tissue. These facts were never revealed to the jury. When human error leads to a failure to examine critical evidence, and jurors are not informed of reasons to doubt that the evidence actually says what the State alleges, the Board of Pardons and Paroles exists as a safety net to prevent the irreversible mistake of executing the innocent.

I am deeply troubled that Georgia might proceed with this execution given the real possibility of Mr. Johnson’s innocence. It has been repeatedly demonstrated that our criminal justice system is not devoid of error and we now know that 139 individuals have been released from death rows across the United States, most often due to mistaken witness identification, since 1976. The system of capital punishment is fallible, given that it is administered by fallible human beings. Georgia cannot afford to make such a mistake, and we urge the Board of Pardons and Paroles to do everything in their power to prevent such an injustice from taking place.

Marcus Ray Johnson has been on Death Row for 13 years and has demonstrated that he is someone who will act swiftly and come to the aid of others in crisis. In November 2009, men on Death Row found Timothy Pruitt hanging in a cell. He was not breathing and had no pulse. Mr. Johnson immediately performed CPR and was able to resuscitate him. Mr. Johnson has shown that he has empathy and takes seriously his responsibility to others. Indeed, he acted quickly and saved Tim Pruitt’s life.

This Board has stated that it will not allow an execution to proceed where there is any doubt as to guilt. In this case, there are serious doubts which remain as to Mr. Johnson’s guilt. Furthermore, he has shown that he is someone who respects human life and is capable of acting heroically to preserve it. I respectfully urge the Board of Pardons and Paroles to demonstrate its strong commitment to fairness and justice by not allowing Marcus Ray Johnson to be executed.

Thank you for your kind consideration.

Finally, excerpts from a news article by The Atlanta Constitution-Journal.

An attorney for Marcus Ray Johnson, scheduled to be executed Wednesday for a 1994 murder, has filed a motion for a new trial and also is asking that DNA testing be performed on some of the evidence collected in the investigation of the rape and stabbing death of Angela Sizemore.

Attorney Brian Kammer said Wednesday DNA testing was not conducted on several samples because the technology at the time was not as advanced as it is now. But now, he said, “there is plenty of evidence that could be tested,” Kammer said. He thinks tests could show Sizemore was attacked by others and not Johnson. "Knowing him for 12 years now I have felt he could never have done this" Kammer said. "He's always been bitter and angry that he's in prison for something he didn’t do." ...

Investigators found a drop of blood on the leather jacket Johnson was wearing that morning. Kammer said there should have been more blood given the number of times Sizemore was stabbed. Investigators also said Johnson’s pocket knife was consistent with the weapon that was used to stab Sizemore, but they did not find any blood on it. Kammer said most of the evidence against Johnson was eyewitness testimony, which can be unreliable. “There are lots of problems with the eyewitness testimony in this case.” Kammer said.

Ladies and gentlemen of the skeptical jury, you may now deliberate the case.

32 comments:

R Lee said...

TSJ, I find it disconcerting that the whole post was written with Johnson named as the perpetrator, rather than using a generic term as a reference.

Given that you nurture skepticism, promote open mindedness and criticize police investigations which either explicitly or implicitly present suggestive options while gathering evidence, I would expect greater care would be used in laying out the case for the readers.

Of course, the prosecutor certainly would have told the story with Mr. Johnson named as the perpetrator to a jury in his opening and closing statements, so perhaps you are merely creating the setting in which a trial jury would have heard the case.

But, I have disdain for the combative method of our court system, and think it lies at the heart of so many wrongful convictions. The State should not be prejudicing the jury at the outset of a trial, nor should it continue to stigmatize the accused through the course of the trial with oratorical flourishes casting aspersions.

Yes, the accused is on trial as to whether or not he/she committed certain criminal acts. However, the only way that we as a society can come close to a claim of 'innocent until proven guilty' and, more importantly, can produce more just outcomes, is to see to it that a jury will maintain a mindset that only the facts can prove guilt, and not by the persuasion of a lobbyist for the State.

It is the State which we should most be wary of, but as individuals we are naturally given over to siding with the powers that be.

R Lee said...

I don't find a lot of counter evidence which would dissuade me from thinking Mr. Johnson guilty in this case.

Resting a plea for clemency upon a claim of dubious eye witness testimony seems futile in this case. The several identifying characteristics make too overwhelming a case that the accused was close to the victim's vehicle and body only an hour before she was found.

Add that to the fact that the location of the vehicle that morning, and the eye witnesses putting Johnson at that same locale, was across town from where Johnson has stated he last saw the victim, and apparently from where Johnson lived and worked.

Thus, there is no reason to think his appearance in that area is mere happenstance. Further, his clothes were notably soiled with dirt as testified by more than one witness.

The bus driver remarked that he'd specifically asked if the bus route would go near the Monkey Palace. No one at that time of morning wants to go to a bar unless they've left something there the night before or they are employed there.

Indeed, there should be more physical evidence, but I imagine the investigating unit believed they had more than enough in this case, and thus didn't go further. Were his soiled clothes not gathered as evidence? Or has it been presumed that he cleaned them before being arrested?

The knife could have been washed sufficiently and the jacket was not likely worn during much of the event.

Lacking any significant physical evidence that there was another person on the scene, which there should have been if indeed Johnson is not the killer, it would be hard to imagine that Johnson is innocent.

The witness descriptions of Johnson and his clothing and his reference to the Monkey Bar led to Johnson, not the other way around. He was there around 7am that morning.

The only other chance to make a case for his innocence is to proffer another reason as to why he was in the vicinity of the victim's car and body so close to the time of her being discovered dead.

Did they spend the night in the woods near the apartment complex in eastern Albany? Did he get hit over the head and woke up the next morning with no sign of Ms. Sizemore? Does he have any history of blackouts?

I'm not seeing any reasonable explanations as to why he was there at 7am that morning, and I do not find any good basis in this case to disbelieve credible witnesses who described him in detail prior to his arrest and later were able to pick him out of a photo line up without having been shown his photo previously.

I'm surprised there has not been psychiatric testimony presented in this case. It just seems that the defense would concede the guilt, and plead that Johnson was simply not in his right mind at the time of the murder, and hope for sparing his client from being executed.

The Airborne Juror said...

Ok, I guess it's time to drop the "Anon" handle - enter into the fray myself, namely "the Airborne Juror". If you check your IP records I'm the one that usually logs in from a different country every couple of days. I generally read a downloaded version of your blog whilst airborne - and with that I present to you the perfect internet juror, sequestered the whole time, unable to do his own internet research.

Have to pass on this one at 35,000 feet - you have me intrigued with the counter-arguments, but there is certainly not enough re. the defense case for me to make a decision in the defendant's favour.

I'll look it up on the ground if I have the time. In the meantime, if the defense has rested its case and the verdict has to come in by Monday, I'd open with a position of "not guilty", but I'd be open to being bargained around to "guilty" by other jurors. I'd also be open to being convinced by the defense, should they come up with something stronger. As an airborne juror, I am unable to do my own research (though I will open up new links provided for my next flight).

Sadly, though, I think this is how it often works. In this particular instance, the presentation of the prosecution is frankly much stronger than that of the defense, and in the absence of the ability of a juror to research, it will be easy for the much more motivated prosecution to sway my vote.

If I am to pose one question for today, it would be the question of why jurors can't ask questions. You see, when I need to make a decision on something in my professional life, I'm entitled to ask all the questions I need to come to my decision. But if I sit on a jury tomorrow and I need to make a decision, why is it that I have to watch the whole proceedings as though they are on TV, and then make my decision without interacting with any of the players (judge, prosecutor, defense)? I don't even watch TV. I'm not sure how to interact in this way. How odd.

Greetings from AUH,

The Airborne Juror

Anonymous said...

Ok, I guess it's time to drop the "Anon" handle - enter into the fray myself, namely "the Airborne Juror". If you check your IP records I'm the one that usually logs in from a different country every couple of days. I generally read a downloaded version of your blog whilst airborne - and with that I present to you the perfect internet juror, sequestered the whole time, unable to do his own internet research.

Have to pass on this one at 35,000 feet - you have me intrigued with the counter-arguments, but there is certainly not enough re. the defense case for me to make a decision in the defendant's favour.

I'll look it up on the ground if I have the time. In the meantime, if the defense has rested its case and the verdict has to come in by Monday, I'd open with a position of "not guilty", but I'd be open to being bargained around to "guilty" by other jurors. I'd also be open to being convinced by the defense, should they come up with something stronger. As an airborne juror, I am unable to do my own research (though I will open up new links provided for my next flight).

Sadly, though, I think this is how it often works. In this particular instance, the presentation of the prosecution is frankly much stronger than that of the defense, and in the absence of the ability of a juror to research, it will be easy for the much more motivated prosecution to sway my vote.

If I am to pose one question for today, it would be the question of why jurors can't ask questions. You see, when I need to make a decision on something in my professional life, I'm entitled to ask all the questions I need to come to my decision. But if I sit on a jury tomorrow and I need to make a decision, why is it that I have to watch the whole proceedings as though they are on TV, and then make my decision without interacting with any of the players (judge, prosecutor, defense)? I don't even watch TV. I'm not sure how to interact in this way. How odd.

Greetings from AUH,

The Airborne Juror

Anonymous said...

The question of the reliability of the eyewitness testimony seems to be a red herring. After all, Johnson admitted that he was with her, that he had sex with her, and that he punched her, and then that he walked away and remembers nothing more. So technically, he isn't even claiming to be innocent -- he says that he didn't kill her intentionally if he did kill her, but he actually does not remember (according to him) whether he killed her or not. So according to his testimony he has no way to know he is innocent, or even that he didn't kill her intentionally. (Presumably if this testimony is true the lack of memory is the result of the drinking or something.) And as far as he can tell from the evidence presented, he has never recanted this half confession.

There is no reason to think that any particular part of these statements are false, except possibly the part about walking away, and the part about not remembering. And we have some reason to think these things are untrue: that he said "I'm the person you're looking for," and that before this, he sent his friend to pick up the money instead of picking it up himself from the Monkey Palace. Both of these things show that he expected the police to be after him: punching the woman would not seem enough for this, so the most reasonable conclusion is that he remembered doing more.

The possible negroid hair at the scene, by itself, is not relevant without much stronger evidence of the presence of others. After all, it was a vacant lot, and it would not be surprising to find all sorts of bits of stuff there, no doubt including dozens of hairs.

The knife could have been cleaned, but this could not have happened with a stick, and it is not credible that a stick used to puncture a woman's vagina would have no blood on it. So either the stick was broken afterwards, or the police were mistaken in supposing that it was used in that way, or the claim that it had no blood is false. But all this neither incriminates Johnson nor tends to remove suspicion from him.

Johnson's character seems to be quite consistent with having committed the crime.

Overall is it much more probable that he is guilty. Whether it is beyond reasonable doubt is a bit harder to decide.

Anonymous said...

This is the same one who commented at 1:06 AM... I will label myself from now as "Unknown" to distinguish myself from other anonymous commenters.

Thinking about it more, I have concluded that Johnson is definitely guilty.

The eyewitness testimony after all is not irrelevant, since if true it establishes that Johnson is lying in saying he doesn't remember anything. He must remember at least leaving the area in East Albany and taking the bus to West Albany. It might be possible for him to forget the previous night due to drinking, but there is no reasonable possibility he could have forgotten what had happened that morning just a few hours before. And there in fact is no reason to doubt the eyewitness testimony that he was in that area and left it that morning.

Combined with the fact that he called a friend to pick him up, then did nothing but sleep on her couch for several hours, this suggests that he felt a need to get away from his house and to stay away from the Monkey Palace etc. It is likely that when he tried to go to the Monkey Palace from the bus, he saw a police vehicle or something and felt he could not go there personally. Therefore he asked the friend to do so for him.

Likewise there is no reason to doubt the meaning of the blood on his jacket. Since he had just had sex with the woman when the event took place, he would not have been wearing the jacket when the murder took place, so one could not expect it would be covered with blood. On the other hand if Johnson is innocent there shouldn't have been any blood at all on it.

Taking these facts into account, and his half confession, it seems to me certain that he is guilty.

--Unknown

Anonymous said...

This is the same one who commented at 1:06 AM... I will label myself from now as "Unknown" to distinguish myself from other anonymous commenters. I tried posting this comment earlier but it appears to have disappeared so I'm trying again.

Thinking about it more, I have concluded that Johnson is definitely guilty.

The eyewitness testimony after all is not irrelevant, since if true it establishes that Johnson is lying in saying he doesn't remember anything. He must remember at least leaving the area in East Albany and taking the bus to West Albany. It might be possible for him to forget the previous night due to drinking, but there is no reasonable possibility he could have forgotten what had happened that morning just a few hours before. And there in fact is no reason to doubt the eyewitness testimony that he was in that area and left it that morning.

Combined with the fact that he called a friend to pick him up, then did nothing but sleep on her couch for several hours, this suggests that he felt a need to get away from his house and to stay away from the Monkey Palace etc. It is likely that when he tried to go to the Monkey Palace from the bus, he saw a police vehicle or something and felt he could not go there personally. Therefore he asked the friend to do so for him.

Likewise there is no reason to doubt the meaning of the blood on his jacket. Since he had just had sex with the woman when the event took place, he would not have been wearing the jacket when the murder took place, so one could not expect it would be covered with blood. On the other hand if Johnson is innocent there shouldn't have been any blood at all on it.

Taking these facts into account, and his half confession, it seems to me certain that he is guilty.

--Unknown

Anonymous said...

Before even reading, can I point out that there is an error in the date - he is set to be executed on the 5th October, not November

tsj said...

Oops. At least someone is paying attention. I've corrected the execution date.

Anonymous said...

Also, besides the blood on his jacket, "He had scratches on his hands, arms, and neck." This indicates he was in some kind of struggle with someone.

And reading some of the links to the court cases, the courts indicated that Johnson had a history of physically abusing women, including his former wife and former girlfriend.

I really don't see room for reasonable doubt in this case.

--Unknown

Duncan Connor said...

No room for doubt.

Aside from the lack of physical evidence and eyewitness statements that put him in the general area (though not actually AT the scene).

Not entered at trial, according to the AJC article, was the fact that the wounds on Sizemore's body were not consistent with Johnson's knife, nor that "DNA testing" was actually blood-typing. Both Sizemore and Johnson are type A (as are 30 percent of the population).

There should have been a significant amount of blood on Johnson's clothes, which there apparently wasn't.

Sizemore was assaulted and murdered by someone, that's for sure. But there isn't compelling evidence that makes me think that it couldn't equally have been someone other than Johnson.

The evidence against Johnson is circumstantial at best, and ineffectual trial counsel (underpaid, overworked, underprepared for cases like this) failed to ensure evidence of Johnson's utter lack of guilt was entered into the trial record.

Anonymous said...

I could not find the claim that there was no real DNA testing but only blood-typing, and I found repeatedly the claim that it was a test of the DNA. So I have to discount for now the statement that it was only blood-typing.

That there should have been a significant amount of blood assumes that Johnson performed the attack fully clothed, and there are good reasons for doubting this.

One question among others for Duncan Connor: why did Johnson say, "I'm the person you're looking for?"

--Unknown

Ty Treadwell said...

As the Casey Anthony case taught us, we don't always have hard evidence of a crime. We don't always have eye witnesses or photos or videotape. In many cases, the jury must decide based on the best evidence available to them, even if it's incomplete. In this case, Johnson's guilt seems obvious. How likely is it that after Johnson had sex with Sizemore then assaulted her (he admitted this) that someone else would come along to torture and kill her? Very, very unlikely in my opinion.---Ty Treadwell, author of Last Suppers: Famous Final Meals from Death Row

Anonymous said...

Once again my comment appears not to have posted properly, so I'll try again...

Another point regarding Duncan Connor's claim that there was no real DNA test. Connor says this was from an AJC article (which I did not find.) In any case, real jurors don't read news articles, and perhaps for good reason, given this kind of argument.

For example, this is from the Albany Herald:

"Johnson was convicted based on the testimony of witnesses who saw him leave an Albany bar and nightclub with Sizemore before the murder, and some witnesses who saw him in the same general area boarding a city bus alone later that evening.

The only physical evidence in the case was blood found on Johnson’s jacket which prosecutors said belonged to Sizemore. Johnson contended that the blood came from when he punched Sizemore after they got into argument that night."

Of course, no one saw him boarding a bus in that area later that evening, since that did not happen, nor did anyone testify to this. The bus was on the other side of town and he boarded it in the morning.

Likewise, I very much doubt that Johnson said the blood had anything to do with the punching, since in one of his appeals he said that there was an inadequate chain of custody, i.e. he did not admit it was Sizemore's blood.

--Unknown

tsj said...

For clarification, the comment from Anonymous Unknown was mysteriously flagged as spam by Google's Blogger. I have no explanation why that might have happened. When I informed Blogger that the comments were not spam, both his earlier and later comments appeared. I have deleted the first but not the second of his comments to minimize redundancy.

I note that I have yet to delete any comment due to content. I request that those of you who comment rely on reasoned argument rather than invective, and I commend you for doing so.

I'm not asking anyone to test my boundaries, but I support the First Amendment as much as I support the Second, Third, Fourth, Fifth, Sixth ... Fourteenth ...

I'm so committed to the point that I'm apt post an overly-defensive comment to explain what appears to be a deleted comment and a mention by someone that they were having trouble commenting.

Now back to the deliberations.

Anonymous said...

TSJ, could you have used a more horrible case for our first test?

Most troubling is the idea that a murder this brutal could yield no physical evidence, other than a single drop of blood, connecting Johnson to the crime. His clothes were soiled and dirty, but that couldn't be traced to the vacant lot? The lot itself, the scene of the murder, turned up no evidence of Johnson's presence? None? There was no blood or tissue found on the tree limb or the knife? Johnson was all scratched up, but they didn't find his blood anywhere? There was no evidence of his presence in her vehicle? In a two hour time window he was able to take two buses across town, return to the scene, clean everything up, including himself, and then go sleep it off at a friend's house? Either that is phenomenally bad investigative work or something just doesn't add up.

Innocent until proven guilty. Although I am skeptical of eyewitness identification in general, I have no specific basis to question the identifications made here so I will accept that Johnson was in east Albany. I agree that all known evidence points to Johnson, but I disagree that his guilt is proven.

Opportunity is well established. The alleged motive (being spurned by another woman earlier in the night), strikes me as weak, particularly since he got sex and had no interest in "cuddling" (getting his ego stroked). No means was proven - neither the knife or the tree limb showed any evidence of actual use in the attack.

Johnson himself is all scratched up but they found no evidence of Sizemore on him? None of his blood on her? That actually suggests that Johnson was also a victim of the unknown murderer(s). The multiple grip marks on Sizemore do suggest more than one assailant.

The brutal attack on Sizemore is inconsistent with what little we know of Johnson. No prior record of violence (one of the comments mentions domestic abuse, not sure where that comes from), he was beaten in jail, but there is no evidence he beat off any of his attackers or retaliated in anyway, he didn't kill the deputy during his escape when he had every opportunity to do so, and once he escaped, he committed no additional crimes. It's not that he's a good guy, but he doesn't seem that depraved.

His comment about "I'm the one you are looking for" is easily explained by his admission that he punched Sizemore before leaving her.

As a juror, I would have a very hard time convicting him of such a heinous crime based on so little actual evidence, particularly when no explanation of the lack of evidence is even offered.

Test whatever evidence is left. Please test it. Maybe it will prove Johnson's guilt and let me off the hook. Because he probably is guilty, but the State of Georgia has yet to prove it.

It goes without saying that I stand against this execution.

J

R Lee said...

A QUERY

I offered the first determination on this case, and I just happened to look back again to make sure that I'd correctly remembered that the apartment complex was indeed across town from the bar where Johnson and Sizemore met.

That distance is very important to the case, but I recall another commenter seeming to think the body and car were found, and Johnson was seen catching the bus, all in the same neighborhood as where the bar was located and the vacant lot where they purportedly engaged in sex.

It made me think of a claim of Johnson's, one that confused me, which was that he woke up on his front lawn (or something to that effect), as the sun rose.

Has Johnson made a case that he awoke and found Sizemore dead in her car which was still parked by the vacant lot next to his residence, and then that he panicked and drove her car across town and left it?

R Lee said...

Or even that he awoke and found her body out of her car where they had the sexual encounter, drug her body to the car, and then drove it across town?

Anonymous said...

@R Lee, as I understand it, he claims that woke up on his front lawn with no idea how he got there and with no memory of being in east Albany or anywhere else after he punched Sizemore and walked away. Maybe I'm wrong.

J

Anonymous said...

The original record stated that blood and tissue was seen on the tree limb -- that's why it was thought to be used. "Georgians for Alternatives to the Death Penalty" asserts that the limb was tested and came back negative for any blood or tissue... if so, what was it that was seen on the limb in the first place? I suspect the claim of no blood on the stick is just false. But as I said before, this doesn't exonerate Johnson in any way, nor does it incriminate him.

That Johnson was "a victim of the unknown murderer" seems to me to be absurd -- were that the case, there would be much more than scratches on him.

Johnson v Upton (2010) says, "Moreover, had Johnson's trial counsel emphasized Johnson's good character, as Johnson now contends they should have, the State would have had greater incentive to introduce rebuttal evidence (which it did not introduce at trial) that not only would have undercut the good-character evidence, but also would have dealt a powerful blow to the defense's core penalty-phase strategy of creating lingering doubt. In particular, the State could have introduced evidence that Johnson had a temper and physically abused his ex-wife Cynthia Smith, his ex-girlfriend Melissa Windows, and, on one occasion, one of Smith's daughters." That is, testimony to this effect was introduced precisely in answer to Johnson's appeal where he attempted to show his good character: he does have a prior record, and it is precisely a prior record of physically abusing women. Since he admits to have been angry enough to physically assault Sizemore, I don't think we need to look any farther for a motive.

I agree that it seems police and prosecutors did not bother to investigate much of the evidence, probably because it seemed the case was clear enough. I agree the evidence should have been better investigated but it seems the case is sufficiently proved as it stands.

Anonymous said...

The last comment was from me. -- Unknown

Anonymous said...

Circumstantial evidence implies, but it rarely compels. "He must be guilty, there's no other reasonable explanation." Well, the idea that "someone else" did the crime is always a reasonable explanation, if it's true. Is it true in this case? We can't know because the State didn't bother to look. It's not that they looked and didn't find any other reasonable explanations, it appears that they simply didn't look. If, for example, the State actually looked for fingerprints in Sizemore's car, we would know what they found. Either way, we would know. The State's failure to do even a bare minimum investigation is inexcusable. imo, the only thing that could make it worse is to use that complete failure to gather and preserve evidence to justify sentencing a man to death. oh. . .

J

Anonymous said...

Circumstantial evidence implies, but it rarely compels. "He must be guilty, there's no other reasonable explanation." Well, the idea that "someone else" did the crime is always a reasonable explanation, if it's true. Is it true in this case? We don't know.

It looks like we don't know the answer because the State didn't bother to look for any physical evidence. Had they looked for fingerprints in Sizemore's car, I think that would be in the record, even if only to note that none were found. But I don't see that. So I have to assume that they never bothered to look. If true, that's unacceptable.

imo, the only thing that could make it worse is to use that complete failure to look for evidence to justify sentencing a man to death on circumstance alone. oh . . .

J

Anonymous said...

too many open tabs, grrrrr . . . some help deleting the earlier version, tsj? sorry. -J

Anonymous said...

In response to the idea that "someone else did the crime" is always a reasonable explanation, let me go back to a comment of Ty Treadwell. "How likely is it that after Johnson had sex with Sizemore then assaulted her (he admitted this) that someone else would come along to torture and kill her? Very, very unlikely in my opinion."

It seems there are about 2000 times as many assaults as murders. So taken on the face of it, the fact that Johnson assaulted Sizemore should be mean there was a 1 in 2000 chance he would go on to murder her on the same occasion. But let's assume the real chance was only 1 in 20,000 that he would do so.

Then, given that Johnson assaulted her with a 1 in 20,000 chance of killing her, and given that she was actually killed, what is the probability that Johnson did it, and what is the probability that "someone else did it"?

By Bayes' theorem, we can calculate this probability, or at least show what type of value it will have. By Bayes' theorem, the probablity that Johnson murdered her given that she was murdered = [ (probability of murder given Johnson murdered her) = 1 x (probability that Johnson murdered her), namely 1 in 20,000 ] divided by the whole probability that she would be murdered on that occasion, which is roughly the sum of the probability that Johnson murdered her, again 1 in 20,000, and the probability that someone would be murdered on a random day by someone or other-- this value must be 1 in 3,650,000 or less, given that the murder rate is between 1 in 10,000 and 1 in 20,000 per year.

I calculate according to this that the probability is 99.5% that Johnson murdered her. Unless the rest of the evidence tends to exculpate him, therefore, the total probability is even higher. And in fact, there are several things against him and little or nothing in his favor. So the real probability that Johnson killed her is over 99.5%.

So after all, what do we mean by beyond reasonable doubt? It seems to me that we have already reached it.

Anonymous said...

I don't like assigning probabilities to determine reasonable doubt. It doesn't work. Assume that you're right and there is a 99.5% probability that Johnson did it. Assume that if the State had bothered to look it would have found six sets of fingerprints in Sizemore's vehicle and none of them were Johnson's. But the State doesn't bother to look. Does the 99.5% probability still justify conviction?

We can disagree about how far and how long you need to look to appease doubt, but can't we agree that you need to at least look at the obvious things, like whether there is any evidence of Johnson's blood on Sizemore's bra and shirt that were allegedly used as handles. Did they look? I don't know. Maybe they did and it didn't get filtered up through the appeals process, but I'd want to know that, before I voted guilty, wouldn't you?

If the State doesn't look for even the most basic forms of physical evidence, how can we rely on the validity of their circumstantial evidence?
-J

Anonymous said...

Late to the party but....

This poor woman was stabbed 40 times and her body was moved from a vacant lot to her car but they found 1 drop of blood on Johnson? If the State is correct and she was killed in the lot, then her body must have been picked up off the ground and placed in the car. If Johnson had picked her and placed in the car with 40 stab wounds, I'd expect more blood to be found on his person.

Anonymous said...

How much expereience do you have moving dead bodies?

Seriously. You talk about "I'd expect more blood to be found" but it seems unlikely you have any experience with corpses and blood.

By way of contrast, I've loaded a few deer in the back of a pickup truck, all with at least one through-and-through gunshot wound, and then cut them open, carved out their guts, pulled off their skin and cut off their heads. And I didn't end up with all that much in the way of blood on me.

Johnson is a violent thug with a history of assualting women. There's no compelling reason to doubt the validity of his conviction.

tsj said...

Anonymous Deer Hunter,
I have no experience moving dead bodies.
Assuming, however, I was a juror on the Marcus Johnson case and I had experience field stripping a deer, I would have presented my experiece to my fellow jurors as an argument in favor of a not guilty vote.

That assumes of course, "all that much blood" is an amount greater than can fit on a cotton thread from a leather jacket.

I would have included, as part of my argument, that had the deer been alive while I cut it open, I would have had even more blood on me since the vessels would have still been pressurized.

And that's just the blood evidence. If in some other trial, I was being asked to convict a deer hunter for having sex with a deer, I would insist the state provide DNA matched sperm, or a condom found nearby containing DNA matched sperm, as a minimum.

If the case were an animal cruelty case where someone was accused of violating a deer with a tree limb, I would insist on evidence that the tree limb they presented contained evidence from that specific deer, and I would insist on evidence that the defendant was at the scene where the violation took place, for starters.

If they even suggested that the deer had fought back while the defendant was violating it, and had scratched the defendant in multiple places with its hooves or antlers, I would have insisted they inform me of the results from DNA testing on those hooves and antlers.

If I was a juror deliberating the case of someone accused of killing a deer out of season, and the State's case had a three-hour gaping hole in a six hour time of death window, I would insist they explain to me how they attempted to determine the time of death. Assuming you cleaned the deer soon after killing it, you noticed it was still warm. Assuming you cleaned the deer well after killing it, it was not as warm. Assuming you did either of those things, then you apparently did more than the Albany police and medical examiner's office did in the case of Marcus Ray Johnson.

In each case, I would insist that the state prove its case beyond a reasonable doubt.

So I have no experince moving a dead body. I do however have experience in deciding whether someone walks free or spends decades in our prison system. I assure you that should some exceptionally odd circumstance place me on your jury, even though I don't know you from Adam, I will insist that the State prove your guilt to me beyond a reasonable doubt.

Geri Rose said...

=) Nice. The only thing I wanted to throw in here because I have not read enough is.. What if... he punched her ( like he said) that blow knocked her out.. he left, so she is "knocked out" in an empty lot, obviously a "drunkin mess" and he never states if, when he left she was fully clothed ( I dont think I read that anywhere differently) So what I am saying is.. anyone or anything could have done these things if this happened this way?!?

Anonymous said...

I was at that bar that night....he would not leave me alone....he was after me the whole night...he grabbed me and would NOT let go until some gentelman came to my rescue and made Ray Johnson let me go. It made him extremely angry and he walked away from me muttering cuss words. It was less than a half hour before the bar shut down and he was seen leaving with the victim who was extremely intoxicated. I am certain that had he gotten me alone that night he would have done the same thing to me. When I found out about the murder the very next morning I was chilled to the bone. I went to the police and offered my testimony. I also testified to this in court. All the witnessed on the bus positively identified Ray down to a ring on his finger. They all said that Ray had on a black leather jacket that appeared to be covered in what they thought was "red clay" but later turned out to be blood. Also, the pecan branch that supposedly had no blood on it was found protuding from the victim.

Ray admits to punching the victim in order to cover the blood found on him and all the scratches on his person. He says she was alive when he left her and that someone else must have come along and brutally murdered her.

Righhht.

If anyone lets this man off of death row, then no one belongs on death row.

If anyone has any questions, I will be glad to answer.

Anonymous said...

But you people didn't know him. He was not "of good character." He was lecherous John Travolta wannabe in white disco suit who stalked women. Any woman - and was always being shot down.

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