The Lingering Case of Preston Hughes III

While working on a not-yet-ready-for-primetime project, I was researching the performance of the notoriously bad Houston Crime Lab. I'm having trouble making progress on my project because I keep following links related to the lab's horrific work. The last one I followed prompted me to write this post in which I will shamelessly ask for your assistance.

The case is that of Preston Hughes III. He was convicted in 1988 for the stabbing deaths of 15-year-old Shandra Charles and her 3-year-old cousin Marcell Taylor. He has been on death row ever since. For the math impaired among you, that's 23 years.

His conviction has been reversed once and then re-reversed. He does not yet have an execution date.

Here's the issue that drew my attention to the case. The crime lab conducted the blood test on the alleged murder weapon for the first time during the trial, right in front of the jury.

The knife seized from Mr. Hughes' apartment which was introduced, by the prosecutor, and admitted into evidence as the alleged murder weapon was tested in the courtroom, on Tuesday May 02, 1989, by a Forensic Expert who performed a chemical analysis on it.  The results of the chemical analysis revealed the knife tested negative for human blood, positive for animal blood. 

Beyond what I've written here, I know nothing of the case. I'm not even claiming that I have the information in this post correct.

It is my hope that one of you will volunteer to look into this case, summarize the evidence for both prosecution and defense, and analyze the case as you have been doing recently with other cases I have been posting. To ease your discomfort, I will write the final post if you wish, or I will write it with you, or I will simply stand aside and allow you to write it all yourself.

This one feels bad to me. I don't want to let it be until Preston Hughes III is within days of execution, but I simply cannot get to this case soon.

Any takers?

ADDENDUM (21 July 2012)
Since writing this post, I have gained access to the testimony of the forensic examiner who tested the knife while on the witness stand (in the absence of jurors) then testified to his findings (in the presence of jurors). According to the transcripts I read, he claimed to have detected blood, but could not determine whether or not the blood was human blood. He did not testify that the blood was animal blood.

I have since seen also that Preston Hughes claims the transcripts have been altered. While I'm quite skeptical of much of what the authorities claim, I have no reason to doubt the integrity of the trial transcripts.


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The Impending Execution of Christopher Thomas Johnson: Open Deliberation

Christopher Thomas Johnson sits on death row awaiting execution by the people of Alabama on 20 October 2011. I suspect there is effectively zero chance the execution will be stayed. Before opposing this execution or standing mute, I will allow you to deliberate the case via comments to this post.

I present below the State's case for guilt as summarized in the appellate decision Johnson v. State of Alabama (2009). As usual, I have removed the many legal references. In some cases below, the ellipses represent substantial redactions of the appellate decision.

Christopher Thomas Johnson appeals his guilty-plea conviction for capital murder [for] murder of an individual under the age of 14, and his sentence of death. Johnson's appeal is before this court in an unusual procedural posture that must be explained before this court turns to the merits of his appeal.

On October 28, 2005, Johnson was indicted by an Escambia County grand jury on the charge of capital murder for the death of his six-month-old son, Elias Ocean Johnson. J. Todd Sterns and Charles E. Johns were appointed to represent Johnson. Johnson's trial began on December 4, 2006. After both sides had rested their cases and during the jury charge conference, Johnson invoked his right to represent himself and moved the circuit court to allow him to reopen his case and to testify. The circuit court conducted a thorough colloquy ... to determine whether Johnson knew the consequences and dangers of representing himself and to ensure that Johnson's decision was knowing and voluntary. After determining that Johnson's decision to represent himself was knowing and voluntary, the circuit court granted Johnson's motion to represent himself and ordered counsel to remain as standby counsel.

The circuit court then allowed Johnson to reopen his case and to testify on his own behalf. Johnson testified that he intentionally murdered his six-month-old son because he hated his wife. After testifying, Johnson moved the circuit court to allow him to change his plea from not guilty to guilty. The circuit court then engaged Johnson in a thorough colloquy ... during which the circuit court informed Johnson of the rights he would be waiving by pleading guilty and questioned Johnson to ensure that his decision was knowing and voluntary. After determining that Johnson's decision was knowing and voluntary and not the result of any coercion, threats, or promises, the circuit court allowed Johnson to plead guilty to capital murder. The cause was then submitted to the jury ... and the jury found Johnson guilty of capital murder.

Following the jury's verdict, the penalty phase of Johnson's trial began. The State submitted that the aggravating circumstance of the offense (Elias's murder) was especially heinous, atrocious, or cruel, ... and adopted the evidence presented during the guilt phase. Johnson, representing himself, presented no evidence in mitigation and urged the jury to recommend a sentence of death. After the circuit court properly instructed the jury regarding the penalty-phase process of weighing the aggravating circumstances and the mitigating circumstances, the jury unanimously recommended that Johnson be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Johnson to death.

After being sentenced to death, Johnson invoked his state-law right to represent himself on appeal, and he refused to file a notice of appeal. ... On February 21, 2007, the circuit court entered an order of appeal ... and Johnson's case was appealed to this court for automatic review. ...

Although Johnson has chosen not to file an appellate brief on his behalf, his decision not to do so does not end this court's review. Because Johnson was convicted of a capital crime and was sentenced to death, his appeal is automatic, and this court must review the propriety of his decision to waive his right to present a brief on appeal, the sufficiency of the evidence to sustain his conviction, and the propriety of his sentence of death.

First, this court must review the circuit court's finding that Johnson's decision to represent himself on appeal and his waiver of appellate counsel was knowing and voluntary. ... This court must also review whether Johnson's decision to forgo filing a brief on appeal was knowing and voluntary. ...

... Based on the extensive colloquy between the circuit court and Johnson, this court is convinced that Johnson "not only knowingly, intelligently, and voluntarily, waived his right to counsel, but also his right to present issues to this court as it reviews his conviction and his sentence of death." This court is further convinced that when Johnson "decided to forgo presentation of any issues in the review of his conviction and death sentence he could appreciate his position and he knew that his life was at stake." Therefore, there was no error in allowing Johnson to represent himself on appeal.

Next, this court must review the sufficiency of the State's evidence to sustain Johnson's guilty-plea conviction. In Alabama, "[a] defendant who is indicted for a capital offense may plead guilty to it, but the state must in any event prove the defendant's guilt of the capital offense beyond a reasonable doubt to a jury." ...

At trial, the State established that Johnson's wife, Dana, gave birth to their son, Elias Ocean Johnson, on August 22, 2004. In February 2005, the Johnsons lived in a duplex at 103 Horner Street in Atmore, Alabama.

On February 19, 2005, Suzanne Mims and Jason Mims, along with their infant, Sophie, arrived at the Johnsons' duplex around 8:30 p.m. to play board games. While playing board games, the Johnsons and the Mims drank alcoholic beverages. At approximately 1:00 a.m., the Mims

At around 9:00 a.m., Dana woke up and found Johnson and Elias on the couch in the duplex. Dana stated that Elias had bruises on him and that he appeared to be dead. At that point, Dana ran over to feel Elias. Dana testified that Elias felt cool so she tried to check his pulse; however, she could not find one. Worried about Elias, Dana grabbed the telephone and called emergency 911.

Tim Grabill, a paramedic with Atmore Ambulance Service, received a call to go to the Johnsons' duplex. When Grabill and his partner, Jareth Heibert, arrived at the duplex, Johnson was holding Elias. Grabill observed that Elias was "very pale, limp and his extremities were cool to the touch." Based on Elias's appearance, Heibert carried him to the ambulance where the paramedics checked his vital signs. At that point, Elias was not breathing and had no heartbeat. Although Grabill believed that Elias was already dead, he performed CPR and rushed Elias to the emergency room at Atmore Hospital. When they arrived at the hospital, Grabill carried Elias into the emergency room, still performing CPR, placed him on a trauma bed, and turned him over to Dr. Steven Michael Sharp.

Dr. Sharp testified that Elias appeared to be dead when he arrived at the hospital. Dr. Sharp described several injuries he observed on Elias's body. Specifically, Dr. Sharp noticed several bruises on Elias's face, a bruise on the bridge of Elias's nose, and ruptured blood vessels around Elias's eyes and chin. Dr. Sharp also noticed a bite mark on one of Elias's arms.

Although Elias appeared to be dead, the hospital staff attempted to resuscitate him. Because Elias was unresponsive, Dr. Sharp cleared his airway and placed an endotracheal tube in his throat so that medical personnel "could breath for the child." While attempting to place the endotracheal tube, Dr. Sharp noticed blood in Elias's mouth. Dr. Sharp also testified that Elias had blood in his stomach. After all attempts to resuscitate Elias failed, he was pronounced dead.

Investigator Chuck Brooks and Police Chief Jason Dean, with the Atmore Police Department, went to Atmore Hospital to investigate the circumstances of Elias's death. One of the law-enforcement officers asked Johnson and Dana to come to the police station and give statements relating to the death of their child. Dana rode to the police station with a member of her church, and Johnson rode to the police station with Chief Dean. During the ride to the police station, Johnson spontaneously stated that he had something to do with Elias's death.

Once at the police station, Johnson gave a statement to Investigator Brooks and Irene Johnson, a social worker with the Alabama Department of Human Resources. After being informed of and waiving his Miranda rights, Johnson indicated that Elias had been crying so Johnson laid on top of him to try to quiet the child. When Elias did not stop crying, Johnson stuck his fingers in the child's mouth and hit him. Johnson stated that "[l]ast night was the hardest that [he] ever hit [Elias and he was] pretty sure [Elias's death was his] fault." Johnson also stated that after the event that night, he did not think that he had seriously injured Elias.

Dr. Kathleen Entice, a medical examiner who was formerly with the Alabama Department of Forensic Sciences, performed the autopsy on Elias and testified that it would be reasonable to estimate that Elias had suffered 85 separate injuries, including a bite mark on his arm. Dr. Entice testified that Elias had multiple bruises on his face and head. She stated that both of Elias's ears were swollen and bruised which was consistent with a "boxing blow" and squeezing. Dr. Entice testified that Elias's lower lip was swollen and bloody from a blunt-force injury. Dr. Entice explained that Elias had three impact injuries to his forehead. She informed the jury that Elias's ethmoid bone, which is in the sinuses, was broken and that Elias's sinuses were full of blood. Dr. Entice testified that Elias had deep contusions on his head and that his brain had hemorrhaged as a result of blunt-force trauma. Dr. Entice also testified that Elias had hemorrhages in both eyes and had injuries to his inner lips and nose that indicated that he had been smothered by the "forceful covering, sealing off [of] his mouth and nose." According to Dr. Entice, Elias's injuries had been inflicted within 24 hours of his death. Dr. Entice finally testified that in her opinion, Elias died as a result of blunt-force trauma and smothering.

In addition to the State's evidence, Johnson testified that he intentionally murdered his son because he hated his wife. Johnson explained that he would have left his wife long before the murder if it had not been for Elias. According to Johnson, he did not want "to worry about [his wife's] threats of putting [him] in jail for alimony or child support . . . so [he] intentionally inflicted wounds on [Elias] that caused [Elias's] life [to expire]." Johnson stated that his final words to Elias were: "You go see Jesus." Thereafter, Johnson pleaded guilty.

The State's evidence, coupled with Johnson's guilty-plea and in-court confession, overwhelmingly established that Johnson intentionally murdered a person under the age of 14 ... Because the State met its burden of proof, Johnson is not entitled to any relief. ...

Accordingly, Johnson's conviction and his sentence of death are affirmed.

AFFIRMED.

I find no one arguing Johnson is innocent. I did however find this poorly-sourced article providing some additional insight into Johnson's courtroom behavior.

An Atmore man convicted last year in the 2005 murder of his infant son begged a judge on Wednesday to sentence him to death. The judge complied.

Authorities said they had to force defendant Christopher Thomas Johnson to take a shower before they chained his feet and hands, sat him in a wheelchair and rolled him into an Escambia County courtroom for the sentencing hearing.

"The look on my wife's face at the trial and the last thing she said to me was enough: 'I hope you die soon,'" Johnson said at the start of Wednesday's hearing. "The family agrees. I deserve death, and I really don't know what's to debate here."

Johnson testified that there were no mitigating circumstances, and denied a report that he was sexually abused as a child.

In December 2006, an Escambia County jury convicted Johnson, 34, of killing his 6-month-old son, Elias Ocean Johnson, when the baby would not stop crying on Feb. 20, 2005. According to testimony, Johnson lay on top of the baby, jammed his fingers down the baby's throat and beat him to death.

Forensic tests presented during the trial showed 85 separate injuries to the child.

Johnson said during trial that he didn't want the baby to wake his wife, but had also testified that he wanted out of his marriage, hated his wife and killing the baby was the best way to hurt his wife and avoid having to pay child support. He asked jurors to recommend a sentence of death, and they granted that request.

Johnson entered the courtroom with wet hair, unshaven and shackled to a wheelchair, saying loudly he needed to speak with a federal agent about his treatment in the Escambia County Jail. Johnson, who fired his court-appointed attorneys at the close of his 2006 trial and chose to represent himself, complained about the forced shower.

Escambia County Sheriff Grover Smith said in an interview that Johnson failed to comply with correctional officers, refused to take a shower and sat on the top bunk in his cell, beating his head against a wall.

When officers entered to remove him from the cell, he resisted and a Taser stun gun was used on him, Smith said. Officers videotaped their treatment of Johnson after that incident, Smith said.

Officers believed Johnson would become disorderly in court and shackled him to a wheelchair for the trip from his cell to the hearing, Smith said. Johnson chose to remain in the chair once he arrived at court, the sheriff said.

Once in the courtroom, Johnson leaned toward an attorney, Wade Hartley, who was appointed to give him any legal advice if needed, and said: "This has got to be your worst case this year."

Johnson complained to Escambia County Circuit Judge Bradley Byrne that he had not been given all of a pre-sentencing report, saying that a psychological report was missing. Byrne said the report was one completed by a witness for the defense, and Johnson had the whole document.

Prosecutors said attempts to send notice of the hearing to the child's mother, Johnson's 25-year-old wife, Dana Johnson, were unsuccessful.

Byrne read the list of factors the law requires judges to consider in passing sentence, finding there was an aggravating circumstance in that the killing was particularly heinous and cruel. Byrne said he found possible reason to show mercy: a report that Johnson had been the victim of sexual abuse as a child. Johnson responded that the claims of sexual abuse were not true.

A woman identifying herself as Johnson's mother interrupted the hearing, and asked to be allowed to testify about lies Johnson was telling.

Byrne granted her request, allowing her sworn testimony. Eylene Pack said Johnson was her son, and he was sexually abused by her brother.

Authorities attempted to confirm her story by getting court records from Mobile where the brother was charged, but found only that the man had been charged with sexual abuse and sodomy in the 1980s. The charges were later dismissed, and no alleged victim was identified.

Though reports indicated Johnson had abused drugs, he used the hearing to deny doing so.

Byrne said Johnson was "ill-equipped to be a parent" and made "terrible decisions" on the night of the child's death. The judge called Johnson's firing of his attorneys and subsequent inconsistent statements manipulative.

Johnson then accused prosecutors, investigators and defense attorneys of being manipulative as well, and wiped his nose on a copy of his psychological report.

Byrne said he had agonized over his decision in the case. "If anyone got up in court and testified as you did, it would be an easy call for this court," Byrne said. "As much as I've wrestled with it, you've manufactured this situation, dismissing your attorneys. But it is not my job to go into your mind and consider your motives for doing so. ... I've got to accept the evidence presented, and the testimony presented, and the appropriate sentence is the death penalty."

District Attorney Steve Billy said the case had been particularly difficult to prosecute and had taken an emotional toll on everyone involved. "I'm personally glad it's over," Billy said. "It has been a long, difficult case, but the punishment is appropriate for the crime."

Pack said she was not satisfied. "Since it can be proved that he lied about (the sexual abuse), I think he lied throughout the whole trial," Pack said.

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

Seeking an Absolute Pardon for Byron Case: Part 2

This is the second of three posts presenting the Amicus letter I sent to Missouri Governor Jay Nixon in support of Byron's petition for absolute pardon. The first part is here. The second part follows immediately.

Time-of-Death as per Kelly Moffett
Lincoln Cemetery is a dark place at night. We learn that from the testimony of Deputy David Epperson, the person who discovered Anastasia's body.

A.  At 3:44 in the morning, Lincoln Cemetery is very dark. It has no lights, no street lights. There is a lot of trees. And in October, there is lots of leaves on the trees. You can't see any roadways from inside Lincoln Cemetery. About the only thing you can see is lights of Kansas City off in the distance.
Q.  ... Would it be fair to say it's pitch black in there, because there is no lights in the cemetery?
A.  Yes.
Q.  And there are no street lights that shine into Lincoln Cemetery, are there?
A.  No, there is not.

By comparison, Kelly testified thus:

Q.  Let me stop you for a second. Do you have any idea what time it is at this point?
A.  No. It was like -- it was dark enough to where cars had headlights.
Q.  Okay. So it wasn't the middle of the afternoon?
A.  No.
      ...
A.  It was light enough for me to be able to see that.
Q.  So, if an officer said it would have been pitch black in a cemetery, would you agree with that statement?
A.  No, I don't.
      ...
Q.  And your testimony is this occurred around dusk and you were able to see; is that correct?
A.  Yes.

Sunset on that day was at 6:29 PM. Nautical twilight ended at 7:28 PM. At the end of nautical twilight, general outlines of ground objects may be distinguishable, but only under good atmospheric conditions. The atmospheric conditions on that night, however, were far from favorable for viewing. The moon would not rise until 12:22 AM. It would make no difference in any case. Clouds covered the entire sky, for the entire night.

Kelly's post-rejection version of events demands that Anastasia died soon after sunset. Had Anastasia died earlier, the cars would not have needed their headlights. Had Anastasia died later, Kelly would have been unable to describe the events in precise detail at trial. Had Anastasia died after nautical twilight, Kelly would not have agreed that Anastasia died "around dusk."

If Byron did indeed kill Anastasia as Kelly only later claimed and eventually testified, then Anastasia absolutely, positively must have died much closer to sunset than to midnight.

Time-of-Death as per Dairy Queen Employee Dawn Wright

Dawn Wright was working at the Dairy Queen while Anastasia sat there waiting for Justin, Byron, and Kelly to arrive. She gave an interview just two days later to Detective Gary Kilgore. In a commendable act of evidence preservation, Detective Kilgore recorded that conversation after informing Dawn Wright that he would be doing so. I offer the following segment from Detective Kilgore's transcription of his recording. Dawn Wright is speaking of Anastasia.

She kinda seemed nervous, a little bit upset. And I asked her what was wrong. She goes well ... I have plans with my boyfriend tonight, and ... I lost my ride over there. So I called him to see if he can come pick me up, and he said that he had already made plans with his best friend. She goes, now if that was you and he told you that, what would you do? I said well, I'd ask him what's more important, me or your friend? She goes, well I asked him that, and he said ... that his best friend didn't want me there. ... I said, well I think that you should tell him that he's an asshole and not call him for a couple days. ... I think it was about 9:00, I'm not for sure. It was about 9:00 or so and, uh, I seen her, she ran outside because three people had pulled up. There was two guys and a girl. ... I'm thinking [she arrived] anywhere between 8:00 to 9:00, cause she was here for about a half an hour before we closed, and we close at 10:00.

From Dawn Wright's trial testimony, I offer the following transcript segments.

It was in the 9 o'clock vicinity [that she left]. Whether it was 9 PM or 9:45 PM, I'm not sure. But it was in the 9 o'clock vicinity, because we was getting ready to close within an hour, and we start our closing procedures an hour early down there.

Dawn Wright unequivocally places Anastasia alive in the Dairy Queen well after sunset. Whatever events would then lead to Anastasia's death had not yet occurred. Dawn Wright's statement and testimony therefore places Anastasia's death more likely near midnight than near sunset.

Furthermore, Dawn Wright's statement and testimony absolutely impeaches Kelly's testimony by placing Anastasia alive more than a hour after the end of civil twilight.

Time-of-Death as per Dairy Queen Owner Sulaman Saulat

Sulaman Saulat also was working at the Dairy Queen as Anastasia waited to be picked up. He too was interviewed just 2 days later by Detective Kilgore. Once again, Detective Kilgore recorded and transcribed that interview. From the transcription, I offer the following.

Well she came to my Dairy Queen Wednesday night or Tuesday night, or Wednesday night, the evening. ... I think it was about 7:00 when she came in: 7:00, 7:30, somewhere in there. ... Well, she was here for a long time, ... over an hour, an hour or hour and a half. I asked her was she expecting somebody to come pick her up? And she said yes. And I said are you sure they're coming? She said if they don't, then I'll be really really mad at them if they don't. And then I asked her if she needed anything, because I was going to ask her if, I mean, if she needed a cab or something, I'd call a cab for her, you know. She said she didn't have any money, and that's the whole conversation I had with her. ... It was between 8:30 and 9 :00 I would say. ... Saw two guys and a girl came pick her up.

Sulaman Saulat was not called to testify. The jury did not know that he corroborated Dawn Wright's testimony that Anastasia was alive long after sunset, well beyond dusk.

As did Dawn Wright's statement and testimony, Sulaman Saulat's statement places Anastasia's death more likely near midnight than near sunset.

And as did Dawn Wright, Sulaman Saulat's statement absolutely impeaches Kelly's testimony by placing Anastasia alive more than an hour after the end of civil twilight.

Time-of-Death as per Cemetery General Manager Glen Colliver

Glenn Colliver was the person who chased the four teenagers from Mount Washington Cemetery. I do not have a copy of his police statement. During the trial, he confirmed that he had seen Anastasia sitting alone at the Nelson Memorial, and that he saw her again standing beside a car.

It's the William Rockhill Nelson Family Memorial. ... She was alone. ... That evening about 9 o'clock I saw her. ... At the same location. ... She was standing outside of an automobile with a male. ... I stopped because I wanted them to move on, and there was a male and female standing outside the car ... I was right behind the car, because I wanted them to get out.

Opposing counsel attempted to impeach Glen Colliver's timing by pointing out he told a police officer soon after the murder that the event happened at 7 PM. It is not clear, however, whether Colliver was then referring to his initial viewing of Anastasia sitting alone or to his later viewing of Anastasia standing outside the car. Colliver, however, never wavered in his recollection that he chased them from the cemetery near 9 PM.

It was between 15 until 9 and 9 o'clock, because I know ... the time I left my house. ... And I'm only about five minutes away from the cemetery to my house. ... I know it was 9 because I left my house at my wife's instructions because we watch a television show at 9 o'clock. And she said, if you plan on watching that television show, it's a quarter till 9, you'd better get home. So that's why I had the time in my mind, because I know I left the house with ample time to go down, take care of the task and get back.

Glen Colliver's recollection of 9 PM is consistent with the recollections of the two Dairy Queen witnesses, neither of whom were ever impeached regarding their timing.

While Glen Colliver's timing is subject to multiple interpretations, it is more suggestive of a time-of-death near midnight than it is suggestive of a time-of-death near sunset.

Time-of-Death as per Mechanic Don Rand

The day after Anastasia's body was discovered in Lincoln Cemetery, the police conducted a survey of the businesses along Truman Road to determine if anyone had seen Anastasia or Justin. The police thereby established Don Rand as a witness to the events of that evening. Don Rand was a mechanic who worked at the gas station at the intersection served by the stoplight at Truman Road and I-435. The police barely mentioned this significant discovery in a supplemental report.

On 10-24-97, Sgt. Joseph Becker conducted a canvas of the businesses in the Blue Summit area. The purpose of the canvas was to see if anyone had seen Ms. Witbolsfeugen the evening of 10-22-97.

Sgt. Becker located one individual that remembered seeing a female subject he recognized as Ms. Witbolsfeugen walking east on Truman Rd. at approximately 2030 hrs., 10-22-97.
...
Night Mechanic 2pm to 10pm
Don Rand ... Says he remembers the victim walking east across the drive at about 8.30 p.m. He says he looked up, say [sic] her walking and thought she was attractive. Couldn't tell if she was upset or emotional at all. Distance of about 50 feet.

Unfortunately, no one interviewed Don Rand carefully to preserve his recollection of that evening. Instead, the only recorded statement from Don Rand comes four years later during the trial, when he was called by the defense. I offer below those portions of his testimony relevant to the time of the event.

Q.  Do you recall if you were working that specific evening?
A.  Yes, I was.
Q.  Can you recall what shift you worked?
A.  2 to 10 every night.
Q.  On the evening of Wednesday, October 22nd, did you notice anything unusual happening with any vehicles or pedestrians in the area of your job?
A.  I recall a young lady that either just gotten out of a car or was in some type of an argument with somebody in a car at the light of Truman Road and 435 eastbound and from that point on she proceeded to walk away from the car before the light had even changed.
      ...
Q.  You seem to recall that this happened after dusk, that it was dark outside?
A.  Yes.
Q.  Is there anything about the evening that helps you remember it was dark?
A.  As far as cars were driving with their headlights on.
      ...
Q.  And when you talked to the detectives, you told them that you remembered seeing the girl walking east across the drive at about you said 8:30; is that right?
A.  Could be about that time, yes.
Q.  Pretty dark around 8:30 though, right?
A.  Yes. But the Amoco is well lit.

Not only did Don Rand see Anastasia WitbolsFuegen alive after Kelly Moffett claims she had witnessed Anastasia being shot and killed, Don Rand did not mention hearing the gunshot which would have been but 1/3 of a mile away.

Since Don Rand saw Anastasia alive around 8:30 PM, and since he did not report hearing a gunshot despite working until 10 PM, Don Rand's report and testimony places Anastasia's death absolutely closer to midnight than to sunset.

Don Rand's statement, quite simply, fully corroborates the story that both Kelly and Byron first told the police, before either of them even knew of his existence.

Time-of-Death as per Anastasia's Wallet
After Anastasia stepped from Justin's car, and after Don Rand saw her walk by his workplace, she seems to have made it home. This conclusion is based on reports and testimony regarding two personal items: her wallet and the sanitary napkin reported at her autopsy. I will discuss the wallet in this section, and the sanitary napkin in the next.

From Anastasia's autopsy report, we learn that a wallet was not found on her person.

The subject wears black Doc Marten shoes, dark gray socks, black denim pants with "Dungaree" label, a light brown corduroy jacket, size small, with the "Brandon Thomas" label, a dark gray pullover shirt, size medium, with the "Energie" label, a black bra and a black pair of panties containing a sanitary napkin. The pant's pockets contain $3.65 in bills and change.

Kelly Moffett, however, reported in an interview with Detective Kilgore that Anastasia carried her wallet with her that night.

Q.  Did she have a purse?
A.  Huh-uh, she had a wallet though.
      ...
Q.  And that night that you guys picked her up at Dairy Queen, did she have a purse or anything?
A.  Yeah, she had a wallet. Cause we walked in, and I think it was a wallet. She was messing with like some little like black little thing. Or like dark brown thing on the table, so I like assumed she had a wallet.
Q.  Did it look like a wallet?
A.  Yeah, mmm-hmm. It was just, yeah. I mean, I didn't like stare at it cause when we looked in and saw her she was kinda sitting there like fiddling with it. But I think that's what it was. Cause she like you know picked it up and put it in her back pocket. So, yeah, I'm guessing it was a wallet.

Anastasia's wallet was found not found on her person because it was found at her house, by her father. When interviewed at his home on the same day her body was discovered, he reported:

And she left her billfold here. And driver's license. And credit card.

Robert WitbolsFeugen had arrived home sometime between 9:45 and 10 PM, according to his daughter Francesca, who had arrived home at 9:15 PM. Prior to that, the house had been unoccupied for a while. Robert WitbolsFeugen was mildly concerned about his daughter, having learned earlier (by phone) that his wife (Anastasia's step-mother) had dropped Anastasia off at Mount Washington Cemetery. He believed Anastasia was stranded there without a ride. From a later interview with Detective Kilgore, we learn more about his discovery of her wallet.

And so I looked up in that direction and I think I saw my daughter's billfold lying on the stairway rail there, and I remember picking it up and running and running to her room and thinking I'll do this, she's home. And when I got there and looked around her room. She wasn't there.

In a different report, Anastasia's sister confirmed that Anastasia's wallet had been found at home.

No, she didn't carry purses. She did have a wallet, but she left it at home I guess. Because it's at home.

If Kelly Moffett was correct about seeing Anastasia with her wallet at the Dairy Queen, then Anastasia made her way home sometime before 9:15 PM, left her wallet and departed. She certainly may have made a phone call while she was there. In any case, if Anastasia left her wallet at home after stepping from Justin's car, then her death would have probably been close to midnight.

More significantly, if Kelly was correct about seeing Anastasia's wallet at the Dairy Queen, then Kelly's post-rejection version of events is absolutely false, and Byron Case is factually innocent.

Time-of-Death as per Anastasia's Sanitary Napkin

Recall from Anastasia's autopsy report that she wore "a black bra and a black pair of panties containing a sanitary napkin." That is of considerable interest to us here because Anastasia left her house without any feminine protection, was given a tampon at the Dairy Queen, and was wearing a sanitary napkin when killed.

From Dairy Queen employee Dawn Wright's trial testimony, we learn:

Well, she had been in there for a little while, and she hasn't bought anything; and she was just sitting there. And I asked her if there was anything that she needed, if I could get her anything, that she needed help with anything. And she asked me if she could use the bathroom, and she went to use the restroom. And she came back out and she asked me if I had a pad or a Tampon, and I didn't have anything there. But I just lived maybe a minute and a half, two minutes away, so I called my ex-husband and I had him bring up a Tampon down for her. And she went in the bathroom, and she came back out, and she said thanks.

Opposing counsel then asked Dawn to clarify what she had given Anastasia.

Q.  I just want to clarify something. What did you loan the victim? Was it --
A.  It was a Tampon.
Q.  So it was not a feminine napkin?
A.  No. It was a Tampon. And I know I told that guy that I just couldn't think of a polite name.

On re-direct, Dawn maintained that she had given Anastasia a tampon, not a sanitary napkin, despite being pressed by Case's own attorney. Personally, I would not argue with a woman about such issues.

Q.  I know this is a weird topic, but I need to ask you about the tampon, Maxipad thing again. When Detective Kilgore interviewed you in 1997, did you say you gave the young lady a Maxipad?
A.  Probably.
Q.  Okay. Well, would it help refresh your memory to look at it?
A.  Yeah, I looked at it out there.
Q.  You understand this was tape recorded?
A.  Yes.
Q.  So you're on tape saying that. Did you tell Detective Kilgore that what you gave the young lady was, quote, a pad, a maxi pad, feminine napkin?
A.  I was trying to think of a decent way -- I mean a Tampon just doesn't -- I was trying to be polite about it. I guess I should have just said a Tampon, but it's a Tampon.

Dairy Queen owner Sulaman Saulat's contemporaneous statement confirms that Dawn Wright gave Anastasia a tampon.

O.  Anything else at all that you can remember?
A.  Well, she was on her period.
Q.  And how do you know that?
A.  Cause she asked Dawn for a tampon.

Given that Anastasia did not have a sanitary napkin with her at the Dairy Queen, and given that she used a tampon while at the Dairy Queen, and given that she had no opportunity to switch before stepping from Justin's car, it is likely that she changed at home sometime before 9:15 PM. Given that the events leading up to her death had yet to take place, it is probable that her death was near midnight.

More significantly, if Anastasia WitbolsFeugen was given a tampon by Dawn Wright, then Kelly Moffett's post-rejection version of events is absolutely false, and Byron Case is factually innocent.

Time-of-Death as per the Gunshot

Anastasia's father, Robert WitbolsFuegen, began searching for her sometime after 9:45 PM on the night of her disappearance. He stopped at the Independence Police Department between 10:30 and 11:00 PM. He then traveled along Truman Road and stopped at the closed south gate of Mount Washington. He stepped from his car. As he was standing there, he heard a gunshot. "At that time I knew my daughter was dead."

One day after Anastasia was found, Robert WitbolsFeugen talked to Deputy David Epperson. Epperson, as you may recall, is the person who discovered Anastasia's body. From his report of his encounter with Robert WitbolsFeugen, I offer the following.

Mr. Witbolsfeugen then began advising the following information: At 2330 hours [11:30 PM], 10-22-97, he was looking for Anastasia when he stopped at the gate of Mount Washington cemetery (where he had dropped her off at 1630 hrs [4:30 PM], this date, with her friends). He stated that the gate was locked and he pondered for a moment, hopping the fence, to go into the cemetery searching for his daughter because he sensed she was in real danger. At that time he advised he heard a loud gun shot, possibly from a large caliber rifle, and he immediately turned in the direction of the Cimarron Apartments, believing the noise came from that direction. Mr. Witbolsfeugen stated at that time he clapped his hands together and yelled "boom" "There goes the neighborhood." Mr. Witbolsfeugen then stated "at that time I knew my daughter was dead."

Four days later, Robert WitbolsFeugen gave one of several interviews to Detective Kilgore. From that interview, I offer the following.

I'm in front of the Mt. Washington Cemetery on Truman Road side. In front of the gate. I had turned my car off, just parked it. Standing out there wondering what else I could possibly do, what, some area where I possibly haven't looked. And I hear this shot and an echo ring out. And I'm going "Like, well that speaks for the neighborhood." Couldn't determine where it was from. ... I wound up looking at the Cimarron Apartments, kinda saying, I'm glad I don't live there. Uhm, there goes the neighborhood. But then I immediately turned my thoughts back to Anastasia and the fact that she was here somewhere and that she was in danger.

Robert WitbolsFuegen did not testify at trial. In the map below, I show where he was standing relative to where Anastasia's body was discovered. For comparison, I also show where Don Rand worked.

Assuming the shot Robert WitbolsFeugen heard was the one that killed Anastasia, then his ear-witness evidence places Anastasia's death absolutely near midnight.

[To be concluded in Part 3, after which comments will be open.]

Marcus Ray Johnson Given Stay of Execution

I'm pleased to offer my first Twitter reference ever.

Great News: Tomorrow's execution has been stopped because Judge Lockette wants the DNA evidence to be tested! http://fb.me/17gnTVelN 

When you follow the link, make sure you check out the comments there. It will make you proud of the ones you post here. Here's a sample from the link:

I'm sure the woman he murdered would like her life back also. I sure wish they would bring back beheading or electric chair and show it on the nightly news so every body could see it.

I've yet to see in the comments there anything along the nature of:

Good. Now we will be better able to understand the case before we execute someone for the crime.

For anyone tempted to say this stay proves the system works, I think you might ponder that thought beforehand.

The Impending Execution of Marcus Ray Johnson: My Analysis

If you hope to make any sense of this post, you should first read the initial post about Marcus Ray Johnson.  That post is here. Make sure you read the comments, too. The Google Blogger NSA add-on feature will tell me if you didn't.

Geography

I begin my analysis by examining the crime scene, as best I can from the comfort of my well-worn (and now custom-fitting) not-so-easy chair. I typically use Google and Bing maps for that examination. I prefer Bing for the overhead views, due to its really cool birds eye view feature. I prefer Google for the street views, since Bing only has street views for one street in Iowa. (Or so it seems.)

With respect to the Marcus Ray Johnson case, I could pinpoint the location of only one area of interest to us. I found the address of Fundamentals bar from several online sources to be 2448 North Slappey Boulevard, Albany, GA. When I search both Google and Bing maps, I find that a McDonalds now occupies that space. I presume the Fundamentals bar, as nice as it seemed, went under sometime after March 24, 1994.

Presumed Path Taken by Marcus Johnson and Angela Sizemor

My suspicion is reinforced by this paragraph from the appellate decision:

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.

Sure enough. The map shows a 16th Avenue just two blocks from Fundamentals / McDonalds.

I then tried to determine where the vacant lot might have been. Looking around, the only one I could find that seemed to be within a couple blocks is the one on the corner of Palmyra and 16th Avenue. Presuming that is indeed the vacant lot, I drew a red line from Fundamentals / McDonalds to the perhaps vacant lot in the photo above.

I know. It's a bit weak.

Fortunately, my analysis will not rely on my ability to pinpoint either location precisely. The locations shown will be sufficiently representative for discussion purposes. The image below shows a street view of the presumed lot from 16th Avenue.

Presumed Crime Scene: View from 16th Avenue

It doesn't seem to be particularly private, but when matters of the heart are awash in alcohol and hormones, I guess any port in a storm will do.

I found no address for the location where the victim's van was found. Nor did I find an address for the Monkey Palace, nor for the home of Johnson's girlfriend.

Johnson's home, which he shared with his mother, is apparently only 1/2 block from the actual vacant lot, wherever that is.

An Almost Consensual Encounter

No one seems to dispute that Marcus Johnson and Angela Sizemore met at Fundamentals. Sizemore had been drinking heavily, Johnson had been brushed off by other women, and the two of them were kissing and behaving amorously.

Mental note: We hear nothing about how heavily Johnson had been drinking.

Sizemore had been drinking so heavily that the bartender handed her keys to Johnson. That's the last we hear of the keys.

Mental notes: Last time we hear of the keys, they were in Johnson's possession.

The bartender said he last saw them walking towards 16th Avenue.

Mental notes: They walked from the bar. They did not drive. Her van was presumably in the bar's parking lot. His car, assuming he drove to the bar, was presumably still in the parking lot. On the other hand, he lived within walking distance of the bar.

Johnson was wearing a black leather jacket, jeans, black biker boots, and a distinctive turquoise ring.

Mental note: Maybe he rode a motorcycle.

According to Johnson, they had sex in the vacant lot.

Mental notes: No description of how they were attired (or if they were attired) during their encounter. No discussion if a condom was used. No mention that condom was found. I'll assume no condom.

According to Johnson, she wanted to cuddle after they had sex.

Mental notes: I'll presume he climaxed, unless they convince me otherwise. Should be sperm somewhere. I'm wondering why there is no discussion of the sperm. Surely, if they could prove that he had sex with her via his DNA, they would do it. They have the burden of proof. Why are they not busting their ass to prove the case if they are asking me to put a man to death? I'm uncomfortable.

According to Johnson, this pressure to cuddle caused him to lose it, so he punched her hard in the face.

Mental note: What the hell? Is that enough to cause such a reaction? Did she just want to cuddle? Did she get angry? Did she hit him? Did she scratch him? I'm confused. If she scratched him, wouldn't his DNA be beneath her fingernails? Would they not tell us about that?

The Rape with a Foreign Object
The State tells us that Marcus Johnson raped her 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. The defense tells us that no DNA was found on the limb. The State does not rebut that claim.

Mental note. Can't be. Absolutely can't be. Something is wrong here. Should be blood and tissue on the limb. There must be blood and tissue on the limb. Unless the State convinces me that they found her DNA on that limb, I'm going to assume they have the wrong foreign object. I'm also going to wonder why they would expect me to believe otherwise. I'm going to suspect that they are not being honest with me. They're digging themselves a hole with their burden-of-proof shovel.

Sizemore was alive during the sexual assault.

Mental note: Really? If so, then she must have been unconscious or somehow seriously impaired if Johnson the rapist was acting alone. If they want me to believe she was alive while being raped with a pecan branch, then I have to wonder if more than one person was involved.

Sizemore had grip marks on her upper extremities, knees, thighs, ankles, and the inside of her arms.

Mental notes: Holy cow! Unless Johnson was re-gripping time after time, this sounds like more evidence that more than one person was involved in the attack. And if Johnson was having such trouble maintaining his grip, how did he simultaneously rape her with a pecan branch? Klaxons sounding.

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.

Mental notes: Perhaps she was unconscious when she was raped. Perhaps he beat her with the  pecan branch before he raped her with it. Maybe that's how he controlled her. But then, he would not need to grip her time after time. Perhaps he griped her on her upper extremities, her knees, her thighs, her ankles, and the inside of her arms, and when that didn't work, he beat her unconscious with the pecan branch and then raped her with it. They're making me do all their work for them. They're making me hypothesize convoluted scenarios which would make him guilty. It's upside down. I don't like it.

Murder
Johnson also cut and stabbed Sizemore 41 times with a small, dull knife.

Mental notes: Gotta be blood everywhere. Her body, her clothes, his body, his clothes, the ground, the knife, friggin' everywhere and everything.

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. ... Goff testified that ... he received the blood sample taken from the leather jacket on a piece of cotton thread stapled to a note card ... 

Mental notes: No way. 41 cut and stab wounds and all they find anywhere, anywhere at all, is some blood on a cotton thread that (allegedly) came from Johnson's leather jacket. Must be one of those cotton leather jacket hybrids. Are they suggesting they lifted the dried blood from the jacket by dipping a leather thread in it, stapled the thread to a note card, and gave that sample to the technician to test. Why not give him the jacket?  Why not cut a patch from the jacket that has blood on it? I don't understand.

Transport to Car
Sizemore'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. ... 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.

Mental notes: Either he dressed her after killing her, or she had her clothes mostly on during sex. Of course she did. Anyway, they could determine whether or not she was clothed based on the condition of her clothes. If her clothing was free of cuts and tears, then she was unclothed when stabbed. If the clothing is full of cuts and tears that correspond with the body wounds, then she was clothed. Actually, it makes no difference whether he was clothed or not during sex. Unless he was nude as he transported her bloodied body to her van, then he must have transferred plenty of her blood and DNA to his clothes. Certainly more than just a cotton thread's worth.

Dirt and sand drag marks were found on the side of her body and grass was found attached to her face.

Mental notes: Did they find drag marks in the dirt and grass at the supposed crime scene? Did they find any blood along the drag path? Did they find Johnson's bootprints in the dirt at the crime scene? Did he drag her two blocks from the crime scene to her van?  Did he drag her bloodied body two blocks while completely nude, then return to get his clothes. If so, how did he keep from transferring her blood from his person to his clothes?  My goodness. This is one bad case they're expecting me to believe beyond a reasonable doubt.

Transport to East Side of Town
So he drags her to her van in the parking lot of Fundamentals, or wherever the van was. He places her in her van, draping her across the front passenger seat.

Mental notes: Must have transferred her blood to her van. Gotta be some there. Must also have transferred dirt and grass from the crime scene to her van. Gotta be some there. Yet, I hear nothing of that. Remind me now, which side has the burden of proof?

Then he gets into the van, and drives the van across town to the east side of Albany.

Mental notes: I'll bet he touched at least two door handles and he certainly touched the steering wheel. His fingerprints must have been all over that van, yet no discussion of fingerprints. I'll bet they fingerprinted the van. I'll bet you a hundred bucks. If they didn't, I'd be pissed about that too. But I'll bet they did. And I'll also bet they didn't find any matching prints, or we certainly would have heard about that. My guess is that not only should there be fingerprints and palm prints, there should be bloody fingerprints and bloody bootprints galore.

Then he gets out of the car, presumably by touching and using the interior door handle.

The Bus
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.

I used Google Maps to find the apartment complexes in Albany, then asked for directions from Fundamentals to the easternmost of those complexes. I used the Pinnacle West Apartments (1.5 stars out of 7) located at 509 N. Westover Boulevard. The Google driving distance is 3.7 miles. The Google driving time is 9 minutes. We'll call it 15. 

Mental notes: Lemme think. They left Fundamentals around 2:30 AM. Give them 15 minutes to stagger 2 blocks, another 15 to complete the act (I'm being generous here), no time to snuggle, and 15 minutes for Johnson to brutalize and kill her. Add another 30 minutes to drag the body back to her van, and 15 minutes to drive there. That's an hour and a half total. Johnson could have arrived as early as 4:00 AM. I'm missing three hours.

Now I want to know the time of death. Did you take her core temperature? Please tell me you at least took her core temperature? What was it, and what time of death does it indicate? I know it's not perfect, but if you use the non-linear algorithms adjusted for environmental temperature and clothing, you should be able to discriminate easily within a factor of two. What was the state of her rigor mortis? What was the state of her livor mortis? Did the livor mortis pattern suggest she had been moved after livor mortis fixed? Talk to me, damnit. Inform me. Educate me.

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.

Mental notes: I'll assume these two witnesses were the ones who saw him walking through the apartment complex.

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). ... The two witnesses who sat across from Johnson on the two buses he rode identified his leather jacket, biker boots and turquoise ring.

Mental notes: So we have the bus driver, someone who got on the bus with the Caucasian biker, and someone who was on the same transfer bus that Johnson got on. I'm also guessing that the bus driver and the other resident at the apartment did not describe Johnson's clothing as leather jacket, biker boots, and turquoise ring. Instead they described similar clothing.

The witnesses gave similar descriptions of his clothing.

Mental note: Translation -- the witnesses did not all give the same description of his clothing.

In court, two witnesses who sat near Johnson on the bus identified his jacket, boots and distinctive turquoise ring.

Mental note: I wonder what description these two witnesses gave initially. As a juror, I really want to know how consistent their story has been with time. I want to know if the State expects us to believe that their memory actually improved with time. It happens all to often in trials.

Only two witnesses were shown a photographic line-up and both picked Johnson as the man they saw.

Mental notes: And why is that? Which two? Did they video that photo lineup?  Simply a rhetorical question. How many faces per card? How many cards?  Did they show us the cards they used?  The last one was another rhetorical question.

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).

Mental notes: They don't have four witnesses who identified him in even a semi-controlled environment. They don't even have two witnesses. They have only one possible unbiased witness who identified him.
 
The bus driver picked Johnson out of a photo lineup five months after seeing him.

Mental notes: Mamma mia! Five months! This thing had to be all over the news for five months. Did the bus driver make his revelations about Johnson wanting to go to the Monkey Palace only after a five month delay? He must have. If he had told them about remembering Johnson soon after the murder, they would have tried the photo ID with him then. Now I remember. It's not just that two witnesses photo IDed him within 24 hours. It's that two witnesses identified him in any fashion within 24 hours. They didn't find the bus driver for 5 months. Wow!

The fourth witness did not make an identification of him until a court hearing several years later.

Mental note: This sucks.

They all remembered that he was soiled with dirt or red clay.

Mental note: Did the dirt or red clay match the soil at the crime scene? Was there similar dirt or red clay in the car? Was there similar dirt or red clay on Sizemore's clothing? This is pathetic. They're not proving the case to me beyond a reaonable doubt. They're asking me to fill in some gigantic holes in their story. They're asking me to abandoned my oath, relieve them of their burden of proof, and loosely interpret the meaning of reasonable doubt, and vote guilty.  I won't do it.

-----------------

Oh, did I say that out loud? It's alright then. You know where I stand. Unless at least one of you other jurors can explain to me what I'm missing with respect to my many concerns, I won't be able to vote guilty. I'm not saying I won't vote guilty. I certainly will, assuming anyone of you can save the State's case and explain to me why I should believe beyond reasonable doubt that Marcus Ray Johnson is guilty.

This should be an evidence rich case. It is anything but. It is astoundingly weak in physical and forensic evidence. Astoundingly weak. Something is seriously wrong here.

-----------------

The defense is under no obligation whatsoever to explain who might have killed Angela Sizemore. Furthermore, I'm in no position to investigate this case as the police should have investigated it back then. Nonetheless, I did finally run across something that makes me more likely to think that Angela Sizemore was killed by multiple assailants, just as all the grip marks suggest.

Angela Sizemore was married at the time she was murdered. Her married name was Angela Barker. It seems as if she was married to a drug runner and a human trafficker. It's likely she knew a lot of bad folks. She had recently moved from Florida to Georgia after her husband had been arrested in the deaths of four Haitians he had forced to jump from his boat while he was still far from shore. I present segments of the story below. You can read the entire article here.

June 12, 1994 | By JONATHON KING and THOMAS MONNAY Staff Writers

Businessman, fisherman, musician, smuggling suspect. Richard Barker is not a simple man. Barker, a native Floridian who grew up in West Palm Beach, is facing criminal charges stemming from the deaths of two children and two adults in a tragic smuggling attempt in February.

The accusations of alien smuggling have not been proved in court. But the Sun-Sentinel found several people on Grand Bahama Island who identified Barker as a man who smuggled Haitians from the Bahamas to Florida. ...

"He's a good person," says Yanise Fenelus, a Haitian woman who says she paid Barker to take her and her children to Florida.

Fenelus says the trip was aborted after some women on Barker's boat refused his order to jump out in deep water off Palm Beach. When they returned to Freeport, Fenelus says, Barker visited her several times and gave her money to buy food for her children -- although he kept the $1,000 she gave him for the failed smuggling run. ...

Richard and his wife, Angela, had a daughter, Kathrine, in 1989. ...

On March 2, 1993, he was renting a waterfront home in Boynton Beach when his brother Ronald and a man named Bobby Geans pulled up to the dock in a borrowed boat. There were several U.S. Customs agents waiting nearby. The agents moved in as Ronald Barker and Geans unloaded two large picnic coolers. Opening the coolers, agents found them filled with marijuana. The two men were arrested. ...

Four months later, while Ronald was free on bail from his previous drug charge, U.S. Customs agents again positioned themselves outside Rick Barker's Boynton Beach house. Rick Barker pulled up in a 28-foot racing boat.

U.S. Customs agents thought they had a drug bust in the making as they watched the Barker brothers unload two bags from the boat. Once more, they moved in. But this time there were no drugs. Instead, agents found the bags contained soiled clothing, photographs of black people and Haitian identification documents. While court records show the agents suspected the Barker brothers of smuggling Haitians, there wasn't enough proof to make a case.

But in October Richard Barker was again linked to a Haitian smuggling run. This time, five Haitian refugees were found walking along North Ocean Boulevard in the town of Gulfstream. Three of the men later testified they swam ashore from a boat after a night trip from Freeport. Court documents reveal 26 other immigrants aboard the boat were left on Beer Can Island near the Boynton Beach inlet.

The next day U.S. Border Patrol agents moved in on a boat, suspected of having made the smuggling run, as it was pulled from the water at a Lantana marina. The agents found two men aboard the craft and questioned them.

One was Vernon Lockhardt, 52, a Bahamian. Agents arrested him for failing to clear customs. The other man in the boat was Richard Barker. He was released because agents were unable to prove he had broken any laws.

Interrogating the Haitians smuggled into South Florida the night before, agents found evidence they claim linked the refugees to Barker: In one of the refugee's pockets was a scrap of paper with the phone number for Rick Barker's family home in West Palm Beach.

Lockhardt was later found guilty of 31 counts of alien smuggling and sentenced to a year in federal prison. In depositions he made before his trial, the Bahamian identified Richard Barker as captain of the smuggling boat. Despite that testimony, Barker was never charged in the October incident. Federal prosecutors decline to say why.

Barker returned to Grand Bahama Island, having moved into a $1,200-a-month townhouse at the Island Bay condominiums in Freeport.

"Rick was gone most of the time. [His wife] Angela was here most of the time with their little girl," says Harvey Hochstetler, who owns the townhouse complex where Barker lived. "He never talked about his business. ...

Today, Barker is in the Palm Beach County Jail awaiting trial. He declines to speak of his dealings with any Haitians except to say he has empathy for the refugees and what he calls "their plight." "These people don't just leave their country for the islands because they want to, but because they have to. They're fleeing oppression and they are fleeing starvation," Barker says.

He continues to proclaim his innocence in the drowning deaths off Martin County in February. Whatever the result of his trial, Barker's life has already suffered a strange twist.

Shortly after Barker was arrested and jailed without bail, his wife, Angela, left Florida for her mother's home in Georgia. While there, she was stabbed to death by a man outside a nightclub. Barker was unable to leave his jail cell to attend his wife's funeral.

"I never even got to say goodbye," Barker says.

-----------------

Obviously, Richard Barker did not kill his wife Angela Sizemore Barker. He was in jail at the time of her murder. Nor am I claiming that anyone killed Angela Sizemore on Barker's behalf due to concerns over money or court testimony or whatever.

I am saying, however, that I have less difficulty imagining motive from drug runners and human traffickers than I do understanding the motive attributed to Marcus Johnson.

And I do have less difficulty believing that multiple people killed Angela Sizemore than I have in believing Marcus Johnson is alone responsible for all her injuries.

And I do have less difficulty believing that people other than Marcus Johnson ended up with blood all over their persons, clothing, and weapons, than I have in believing that Marcus Johnson ended up  in pristine condition, except for a single cotton fiber with some blood on it.

In the absence of persuasive arguments to the contrary, I oppose the execution of Marcus Ray Johnson.