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.