A fine example of why I oppose the death penalty
From here: http://chron.com/disp/story.mpl/front/4274628.html
Oct. 20, 2006, 12:07PM
Death row inmate takes his own life
The condemned man cut his throat as lawyer worked on final appeals
By ALLAN TURNER and STEVE MCVICKER
Copyright 2006 Houston Chronicle
Even as his attorney worked on last-minute appeals to save him from a Thursday night execution, death row inmate Michael DeWayne Johnson slashed his throat with a makeshift knife. The dying inmate then used his blood to write a final message on the wall of his cell: "I did not shoot him."
Johnson, 29, condemned for the 1995 robbery-murder of Lorena convenience-store clerk Jeff Wetterman, was found on the bunk of his cell in Livingston's Polunsky Unit at 2:45 a.m. Texas Department of Criminal Justice officials said he was conscious but unresponsive.
He was declared dead at a Livingston hospital at 3:40 a.m.
Prison spokeswoman Michelle Lyons said Johnson cut his jugular vein and an artery in his right arm with a blade fastened to what appeared to be Popsicle sticks. He was last seen alive at 2:30 a.m. as guards made their regular four-times-an-hour death-watch check of his cell.
Lyons said the blade was small, possibly fashioned from a disposable razor. She said Johnson's cell had been searched for weapons several days before the incident.
A search of other inmates' cells was conducted after Johnson's death, but no weapons were found.
Lyons said Johnson spoke with guards and gave no indication he planned to take his own life. No suicide note was found.
A government official familiar with the investigation confirmed the content of the bloody message Thursday. The official insisted he not be named.
Johnson steadfastly maintained his innocence in prison interviews.
He was one of two men linked to the Sept. 10, 1995, murder of Wetterman, 27, at a convenience store in the Waco-area town of Lorena. Johnson's accomplice, David Vest, served eight years for aggravated robbery in the case and was released from prison in September 2003.
Testimony showed Wetterman was shot in the face with a 9 mm pistol after he had filled the men's car with $24 of gasoline. Johnson and Vest first drove to Corpus Christi, then Dallas, where they were arrested three days later.
Vest testified for the prosecution in Johnson's trial.
Victim's brother reacts
Wetterman's brother, Greg Wetterman, said the victim had married three weeks earlier and had been scheduled to pick up his wedding photographs on the day of his death.
He described the victim, who was 6-foot-7 and weighed 300 pounds, as "a big Teddy bear."
"I think from my little brother's perspective, he'd be sad that someone else had to die," Wetterman said. "That someone's mother and grandmother would have to cry. He was a sweetheart of a guy. ... I never saw a ruthless bone, a vengeful bone in his body.
"You know it's resolved now - and it's not resolved. Jeff's still gone, and I really don't know what to think."
Another brother, Bill Wetterman Jr., said he believes Johnson's suicide cheated the state out of justice.
"It had taken 11 years to get to this point," he said. "It shouldn't have taken this long."
He said that he had planned to join his father and the victim's widow in witnessing Johnson's execution. He didn't expect the killer to offer an apology, however.
"He's never shown any remorse," Bill Wetterman said.
Basis of appeal
Johnson's attorney, Greg White, of Waco, said he had been in routine contact with the inmate.
"There never was a hint that these thoughts were going through his mind or that he had this intention," White said.
Although the U.S. Supreme Court had rejected Johnson's latest appeal, White said he had officially asked the court to reconsider the case. At 2 a.m. Thursday, White said, he was preparing a last appeal to the Texas Court of Criminal Appeals, arguing that Section 43.24 of the Texas Code of Criminal Procedure prohibits torturing or inflicting unnecessary pain on prisoners.
"Gosh, don't worry about the Eighth Amendment; we have Texas law that addresses the issue," White said. "No court has ever interpreted that statute."
White said he had gathered evidence from executions throughout the nation indicating the three drugs used in Texas executions can cause excruciating pain.
Other suicides
Johnson, who had no criminal record before he was convicted of murdering Wetterman, was the seventh death row inmate to commit suicide since the state re-established capital punishment in January 1974.
John Devries, convicted of a Jefferson County burglary-murder, was the first Texas inmate sentenced to die under the law, arriving on death row Feb. 15, 1974. Four and a half months later, Devries, 53, hanged himself with bed sheets in his cell.
In 1998, condemned killer David Long was executed after an unsuccessful effort to kill himself with prescribed anti-depressants.
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From here: http://www.adelante.com/michaeljohnson/index.html
Michael Dewayne Johnson
Texas Death Row
Scheduled for Execution on October 19, 2006
For a Crime to Which Someone Else has Already Confessed
On October 19, 2006 the State of Texas is scheduled to execute Michael Dewayne Johnson for a crime he did not commit. Now 29 years old, Michael Johnson has been sitting on Texas Death Row since July of 1996 for a crime to which David Noel Vest had confessed in February of 1996. In fact, Vest signed a sworn confession before Michael Johnson even went to trial, and Crawford Long, the First Assistant District Attorney of McLennan County, Texas (one of Johnson's trial prosecutors) admits that this confession was suppressed, keep secret from Michael Johnson and his trial attorneys.
In June of 2006 the Chicago Tribune published a series of articles by Maurice Possley and Steve Mills that provide detailed and compelling evidence that the State of Texas executed innocent man on December 7, 1989 -- Carlos De Luna.
In November of 2005 the Houston Chronicle published a series of articles by Lise Olsen that provide detailed and compelling evidence that the State of Texas executed another innocent man on August 24, 1993 -- Ruben Montoya Cantu.
In December of 2004 the Chicago Tribune published an article by Maurice Possley and Steve Mills, and in May of 2006 Barry Scheck's Innocence Project released a report that each provide detailed and compelling evidence that the State of Texas executed a third innocent man on February 17, 2004 -- Cameron Todd Willingham.
On September 10, 1995 Michael Dewayne Johnson, 18 years old, and David Noel Vest, 17 years old, were driving a stolen Cadillac south on I-35 from Dallas to the Texas coast. The day before Vest had turned 17, so the two decided to go to the beach at Corpus Christi to celebrate. Also in their possession was a stolen 9mm automatic handgun. There was just the one firearm.
A few miles south of Waco, running low on gasoline, Johnson and Vest decided to steal a tank of gas from a gas station. That is, drive into the gas station, keep the car engine running, pump the gasoline, then drive away without paying. They went to two different gas stations, but found the conditions at each unfavorable. At about 7:00am they drove into the Fastime gas station/convenience store in Lorena, Texas.
Jeffrey Michael Wetterman, working as the store manager that morning at his parent's convenience store, came out of the store simply to greet Johnson and Vest. Mr. Wetterman liked to chat with the customers, but things couldn't have gone worse. Mr. Wetterman died from a single gunshot wound to the face. His carotid artery and spinal cord were both severed. Jeff Wetterman was 27 years old and had just been married three weeks earlier. Other than Johnson and Vest there was one other eyewitnesses to the crime. Lois Bean was working the cash register at the Fastime store that morning, but she didn't see anything until after the single gunshot.
Ms. Bean saw Mr. Wetterman sitting on the pavement by the gas pumps and Vest standing at the passenger side of the Cadillac. Vest got into the car just before it was driven off. Johnson and Vest were arrested a couple of days later in Dallas. Each was originally charged with capital murder, but a few weeks later the charges against Vest were dropped to Aggravated Robbery. Vest agreed to testify against Michael Johnson in return for leniency.
Michael Johnson was sentenced to death on May 8, 1996, but on February 29, 1996 David Noel Vest swore in writing that he committed the crime. Before Michael Johnson even went to trial his co-defendant David Noel Vest confessed under oath that he committed the crime for which Michael Johnson was later sentenced to death.
Michael Johnson was clearly a criminal. He was knowingly travelling in a stolen car. He knew that a stolen firearm was in the car. He deliberately conspired to steal gasoline. But, he didn't kill Jeffery Michael Wetterman. It's undisputed that only one gun was at the crime scene and only one shot was fired. It's undisputed that Mr. Wetterman was murdered by a lone gunman.Yet, it was Michael Dewayne Johnson who was sentenced to death for the crime David Vest swore he committed.
On February 29, 1996 in open court, facing Texas District Judge George Allen, facing McLennan County Assistant District Attorneys Crawford Long and Mike Freeman, with the full advice and consent of his attorney John Hurley, David Vest signed a sworn Judical Confession that he did "intentionally and knowingly cause the bodily injury to JEFFREY MICHAEL WETTERMAN, by shooting him with a handgun".
Click here for a PDF of David Vest's Judicial Confession. NOTE: the full document is entitled "Waiver of Jury Trial, Stipulation of Evidence and Judicial Confession, Felony Plea of Guilty". Vest's confession itself is on page 2 of the PDF, underlined, in the first paragraph under the heading Judicial Confession.
How is this possible?
Simple, the McLennan County, Texas District Attorney's Office withheld David Vest's confession from Michael Johnson and his trial attorneys, B. Dwight Goains and Robert T. Swanton, Jr. Michael Johnson told his attorneys that Vest was the shooter, but Michael's attorneys thought that it was just David Vest's word against Michael's.
Goains and Swanton admitted under oath that they didn't receive a copy of Vest's confession from the McLennan County District Attorney's Office. [Affidavit of B. Dwight Goains] [Affidavit of Robert T. Swanton, Jr.] First Assistant McLennan County District Attorney Crawford Long admits that the McLennan County District Attorney's Office withheld Vest's confession from Goains and Swanton. [Affidavit of Crawford Long, McLennan County Assistant District Attorney] NOTE: On page 3, the third to last paragraph, Long swears "the stipulation (which contained the confession) was not exculpatory (i.e., we didn't give it to Johnson's defense attorneys)".
Thus, when David Vest reversed his story at Michael Johnson's trial and testified instead that he didn't shoot Mr. Wetterman, that Michael Johnson did, Mr. Goains and Mr. Swanton didn't know that David Vest was committing perjury. More importantly, the jury didn't know that David Vest was committing perjury. But the prosecution, the McLennan County District Attorney's Office, (in the persons of Crawford Long and Mike Freeman) knew.
Just as amazingly, David Vest confessed to and Michael Johnson was sentenced to death before the exact same trial judge, George H. Allen, presiding judge of the 54th Texas District Court of McLennan County.
Mike Freeman signed Vest's confession. Crawford Long attended Vest's Guilty Plea Hearing. McLennan County Assistant District Attorneys Mike Freeman and Crawford Long each knew that David Vest confessed to having shot Jeff Wetterman, but stood silent when Vest testified at Michael Johnson's trial that Michael Johnson was the shooter. Mike Freeman and Crawford Long knowingly allowed Vest to commit perjury. Likewise, Texas District Judge George H. Allen also signed Vest's confession. Judge Allen also knew that David Vest confessed to having shot Jeff Wetterman, but Judge Allen too remained silent when Vest committed perjury.
The 14th Amendment to the Constitution of the United States of America expressly provides that "No State shall ... deprive any person of life ... without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In other words, the State of Texas must first provide any and all defendants a fair trial. In other words, the State of Texas is prohibited from executing Michael Johnson unless the State of Texas first provided him a fair trial.
But Texas didn't provide Michael Johnson a fair trial.
It is a fundamental miscarriage of justice for the prosecution to deprive any criminal defendant access to and knowledge of all helpful evidence in the possession of the prosecution. Likewise, it is a fundamental miscarriage of justice for the prosecution or the judge to allow false evidence to be presented to the jury. Most importantly, it is absolutely repugnant to the ideals of justice to allow an innocent man or woman to be executed.
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SPECIAL NOTE: Crawford, Texas -- where George W. Bush makes his home -- is in McLennan County, Texas.
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From here: http://www.adelante.com/michaeljohnson/misconduct.html
Prosecutorial Misconduct and Ineffective Assistance of Counsel
The law is most assuredly complicated, but no matter how complicated it is, it has to be fair.
The 14th Amendment to the Constitution of the United States of America expressly provides that "No State shall ... deprive any person of life ... without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In other words, the State of Texas must first provide any and all criminal defendants a fair trial before punishment. In other words, the State of Texas is prohibited from executing Michael Johnson unless the State of Texas first provided him a fair trial.
When the prosecution violates it's duty to provide a defendant a fair trial, then that's prosecutorial misconduct.
There are two well defined legal issues that make Michael Johnson's conviction and death sentence unfair: 1) the prosecution didn't disclose all of the material information in it's possession that could have helped Michael Johnson defend himself at trial, and 2) the prosecution presented false material evidence to the court. Even if the prosecution didn't know the material evidence was false at the time, then the prosecution was obligated to correct the error as soon as it learned the evidence was false.
Evidence is considered material "if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different." U.S. Supreme Court Case Kyles v. Whitley (1995) 514 U.S. 419. In particular, David Vest's Confession was materical because there was a reasonable probability that either Michael Johnson wouldn't have been convicted or wouldn't have been sentenced to death. After all, David Vest was the only other witness to the crime. Clearly his testimony outweighed all of the other evidence against Michael Johnson.
This first legal issue is commonly called a Brady issue. It's named after U.S. Supreme Court case BRADY v. MARYLAND, 373 U.S. 83 (1963). "Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Furthermore, the U.S. Supreme Court subsequently ruled that material evidence favorable to the accused must be revealed even if the accused doesn't ask for it.
Interetesting, Brady's case involved the suppressed confession of his co-defendant. The State of Maryland prosecuted Brady and a companion, Boblit, for capital murder. Brady admitted involvement, but claimed Boblit had done the actual killing. The prosecution withheld Boblit's sworn statement, confessing that he had committed the murder by himself. Thus, Brady was deprived a fair trial because the prosecution prevented him from showing to the jury that his conduct did not meet the definition of capital murder, although it did meet the definition of murder.
This is surprisingly similar to Michael Johnson's case. In Brady co-defendant Boblit confessed that he committed the murder by himself, but the prosecution withheld Boblit's confession from Brady and Brady's attorneys. In Johnson's case, co-fedendant Vest confessed that he committed the murder by himself, but the prosecution withheld Vest's convession from Michael Johnson and Michael Johnson's attorneys.
This second legal issue is commonly called a Giglio issue. It's named after U.S. Supreme Court case GIGLIO v. UNITED STATES, 405 U.S. 150 (1972). Giglio is similar to Brady. It also deals with suppression of material evidence, but it's more about the presentation of false evidence to the court. That the prosecution may not present false evidence to the court, and even if the presentation of false evidence is unknowing, made in good faith, the prosection must immediately so alert the court and the opposing counsel when it's learned that the evidence is, in fact, false.
In Giglio, defense counsel asked a witness on cross-examination if there were any promises of leniency. The witness falsely answered no, and the prosecution did nothing to correct the witness's false answer. Even though the trial prosecutor was unaware of the state's promise for leniency, Giglio was deprived a fair trial. It was the State's responsibility on the whole to keep the witness from presenting false evidence to the court, even if the trial prosecutor himself was unaware of the promise of leniency. In sum, the jury didn't get to learn of evidence that affected the witness's credibility, and that deprived Giglio of a fair trial.
In Michael Johnson's case, the McLennan County District Attorney's Office deprived Johnson and his attorney material favoral evidence, and it also presented false evidence to the court without correcting it.
Regarding Brady, first, Crawford Long, the First Assistant District Attorney of McLennan County, Texas admits that Vest's Confession was not disclosed to Johnson or his attorneys. [Crawford Long's Affidavit] Long swore that he did not consider Vest's Confession exculpatory: "The stipulation was not exculpatory". NOTE: Vest's Judicial Confession was contained in the stipulation. [See page 3 of Long's affidavit, the third from the last paragraph.]
Also, clearly, Vest's confession would have been favorable to Johnson at trial. As soon as Vest testified that Michael Johnson shot Jeffrey Wetterman, then Johnson's attorneys could have immediately confronted Vest with his confession. "Mr. Vest, I have in front of me your sworn statement that you shot Mr. Wetterman. On February 29th you swore that you shot Mr. Wetterman. Now you reverse yourself and say that you didn't shoot Mr. Wetterman. Do you understand that you were obligated to tell the truth in your Judicial Confession, and that you're obligated to tell the truth now. Obviously, one of these sworn statements is a lie. How do you explain this?"
NOTE: it is undisputed that there was only one gun at the crime scene and only one shot was fired. It is undisputed that there was only one gunman, and there could only have been one gunman. When Vest confessed to having shot Mr. Wetterman, then that proved that Michael Johnson didn't shoot Mr. Wetterman.
Regarding Giglio, clearly the McLennan County District Attorney's Office knew that Vest has signed the February 29, 1996 Judicial Confession. There's no doubt that the McLennan County District Attorney's Office knew exactly what was in Vest's Judicial Confession, for the McLennan County District Attorney's Office most assuredly authored Vest's Confession. Also, Assistant District Attorney Mike Freeman signed off on it. That's undisputed. Mike Freeman's signature is part of David Vest's Judicial Confession. Obviously, the McLennan County District Attorney's Office knowingly presented false information to the court when it allowed David Vest to testify that Michael Johnson shot Jeffrey Wetterman.
Moreover, the State of Texas cannot accept a plea of guilty unless there is also evidence presented to the court that shows the defendant is actually guilty. Usually this evidence is in the form of the defendant's formal sworn confession. More importantly, the evidence presented in support of a guilty plea must then be accepted by the court as the basis for its judgment of guilty. That is, when the State of Texas accepts a plea of guilty, it is required by law to accept the evidence proving guilt as true and correct. In other words, when the State of Texas accepted David Vest's plea of guilty on February 29, 1996, then State of Texas accepted David Vest's Judicial Confession as true and correct on February 29, 1996.
On February 29, 1996 the State of Texas accepted as fact that on September 10, 1995 David Vest shot Michael Johnson. Ergo, it is direct and unequivocal that the State of Texas presented false evidence when David Vest testified the Michael Johnson shot Jeffrey Wetterman. It is direct and unequivocal that the State of Texas used false evidence to get Michael Johnson convicted and sentenced to death.
In sum, the McLennan County District Attorney's Office admitedly withheld Vest's confession for Michael Johnson. That's a Brady violation. The McLennan County District Attorney's Office knowingly allowed false evidence to be presented to the court. That's a Giglio violation. Each is prosecutorial misconduct.
It's interesting how the State of Texas tries to justify this. The State of Texas argues that the Texas Law of Parties (Texas Penal Code Sections 7.01 and 7.02) allowed the McLennan County District Attorney's Office to present false information to the court.
The Texas Law of Parties, Section 7.01 of the Texas Penal Code, is as follows:
(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
(b) Each party to an offense may be charged with commission of the offense.
(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.
The purpose of the Law of Parties is to facilitate indictments and jury charges. It does not give witnesses permission to lie under oath. It does not give prosecutors permission to present false sworn evidence to the court. It does not give prosecutors permission to suppress favorable material evidence from the defendant.
It's well understood in the United States that an accomplice is just a guilty as the principal if intent of the principal and the accomplice are the same. For example, three men conspire to rob a bank. Two enter the bank and the third waits outside in the getaway car. The plan is for the two who enter the bank to kill the bank's security guard, take the money then leave. The getaway driver is just as guilty because he knew that the other two were armed and planned to kill the security guard.
The Texas Law of Parties comes in if after the three are apprehended and arrested, they refuse to say who entered the bank, who fired the fatal shot and who stayed in the car. Per the Texas Law of Parties the State need not allege in the indictment who actually fired the fatal shot, nor who stayed in the car. Likewise, when the judge issues the jury charge, the jury charge need not instruction the jury to find who fired the fatal shot, or who stayed in the car to convict each of capital murder. If the state proves beyond a reasonable doubt than the defendant participated in the bank robbery, then that person is guilty. The prosecution doesn't need to prove exactly how the defendant participated. The jury just needs to find that the defendant was one of the three bank robbers.
However, the Texas Law of Parties does not allow the prosection to present false information to the court. When a witness testifies "he was the shooter", the issue isn't that there's no distinction between principal and accomplice, the issue is the truth. Sworn testimony of "He was the shooter" is not the same as, and cannot be considered the same as, "I was the shooter". The jury, of course, as the duty to determine whether the testimony was true or not. But the Texas Law of Parties does not give the jury the privilege to substitute freely "I was the shooter" evidence with "He was the shooter" evidence.
Likewise, the McLennan County District Attorney's Office did not have the privilege to think that when David Vest signed his Judicial Confession swearing under oath that he shot Jeffery Wetterman, that Vest's Confession really meant Michael Johnson shot Jeffery Wetterman.
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The corrolary to the McLennan County District Attorney's Office prosecutorial misconduct, is that Michael Johnson's attorneys should have looked for David Vest's confession anyway.
Regarding appointment of counsel at a criminal trial, the Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." The U.S. Supreme Court made this applicable to criminal defendants in state trials in Gideon v. Wainwright, 372 U.S. 335 (1963). Furthermore, the U.S. Supreme Court has ruled that "assistance of counsel" means "effective assistance of cousel". That the attorney must provide the defendant a minimal level of legal professionalism. Less than "effective assistance of counsel" is a violation of the defendant's Sixth Amendment rights.
Trial Attorney Dwight Goains and Robert Swanton did make requests for information from the McLennan District Attorney's Office. And those requests, albeit general requests - i.e. "any and all written or recorded statements concerning this case by any persons who are prospective prosecution witnesses" - clearly included David Vest's Confession.
However, Goains and Swanton should have known that David Vest had signed a Judicial Confession. They should have noticed that the McLennan County District Attorney's Office had not disclosed Vest's Confession, and they should have specifically asked for it.
- - -
However, the reason why the U.S. District Court and the U.S. Court of Appeals for the Fifth Circuit denied Michael Johnson habeas relief was purely procedural. The 1996 Antiterrorism and Effective Death Penalty Act makes it extremely difficult for a person on Death Row to make a second round of federal appeals.
Specifically before the appeals courts will even consider the merits of a successor federal habeas appeal, the following conditions must be satisfied.
The factual predicate for the claim could not have been discovered previously through the exercise of due diligence, and
the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
In Michael Johnson's case, the U.S. District Court ruled that Michael Johnson or his attorneys should have found Vest's Confession in time to have included it in Johnson's first federal habeas appeal. And the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Court agreed. Thus, the courts never really considered Johnson's Brady claim or Giglio Claim.
However, U.S. Supreme Court held in Mooney v. Holohan, 294 U.S. 103 (1935), that the Fourteenth Amendment cannot under any circumstances tolerate a state criminal conviction obtained by the knowing use of false evidence. Sadly, the U.S. Supreme Court is deviating and retreating from that establish principle now.
Oct. 20, 2006, 12:07PM
Death row inmate takes his own life
The condemned man cut his throat as lawyer worked on final appeals
By ALLAN TURNER and STEVE MCVICKER
Copyright 2006 Houston Chronicle
Even as his attorney worked on last-minute appeals to save him from a Thursday night execution, death row inmate Michael DeWayne Johnson slashed his throat with a makeshift knife. The dying inmate then used his blood to write a final message on the wall of his cell: "I did not shoot him."
Johnson, 29, condemned for the 1995 robbery-murder of Lorena convenience-store clerk Jeff Wetterman, was found on the bunk of his cell in Livingston's Polunsky Unit at 2:45 a.m. Texas Department of Criminal Justice officials said he was conscious but unresponsive.
He was declared dead at a Livingston hospital at 3:40 a.m.
Prison spokeswoman Michelle Lyons said Johnson cut his jugular vein and an artery in his right arm with a blade fastened to what appeared to be Popsicle sticks. He was last seen alive at 2:30 a.m. as guards made their regular four-times-an-hour death-watch check of his cell.
Lyons said the blade was small, possibly fashioned from a disposable razor. She said Johnson's cell had been searched for weapons several days before the incident.
A search of other inmates' cells was conducted after Johnson's death, but no weapons were found.
Lyons said Johnson spoke with guards and gave no indication he planned to take his own life. No suicide note was found.
A government official familiar with the investigation confirmed the content of the bloody message Thursday. The official insisted he not be named.
Johnson steadfastly maintained his innocence in prison interviews.
He was one of two men linked to the Sept. 10, 1995, murder of Wetterman, 27, at a convenience store in the Waco-area town of Lorena. Johnson's accomplice, David Vest, served eight years for aggravated robbery in the case and was released from prison in September 2003.
Testimony showed Wetterman was shot in the face with a 9 mm pistol after he had filled the men's car with $24 of gasoline. Johnson and Vest first drove to Corpus Christi, then Dallas, where they were arrested three days later.
Vest testified for the prosecution in Johnson's trial.
Victim's brother reacts
Wetterman's brother, Greg Wetterman, said the victim had married three weeks earlier and had been scheduled to pick up his wedding photographs on the day of his death.
He described the victim, who was 6-foot-7 and weighed 300 pounds, as "a big Teddy bear."
"I think from my little brother's perspective, he'd be sad that someone else had to die," Wetterman said. "That someone's mother and grandmother would have to cry. He was a sweetheart of a guy. ... I never saw a ruthless bone, a vengeful bone in his body.
"You know it's resolved now - and it's not resolved. Jeff's still gone, and I really don't know what to think."
Another brother, Bill Wetterman Jr., said he believes Johnson's suicide cheated the state out of justice.
"It had taken 11 years to get to this point," he said. "It shouldn't have taken this long."
He said that he had planned to join his father and the victim's widow in witnessing Johnson's execution. He didn't expect the killer to offer an apology, however.
"He's never shown any remorse," Bill Wetterman said.
Basis of appeal
Johnson's attorney, Greg White, of Waco, said he had been in routine contact with the inmate.
"There never was a hint that these thoughts were going through his mind or that he had this intention," White said.
Although the U.S. Supreme Court had rejected Johnson's latest appeal, White said he had officially asked the court to reconsider the case. At 2 a.m. Thursday, White said, he was preparing a last appeal to the Texas Court of Criminal Appeals, arguing that Section 43.24 of the Texas Code of Criminal Procedure prohibits torturing or inflicting unnecessary pain on prisoners.
"Gosh, don't worry about the Eighth Amendment; we have Texas law that addresses the issue," White said. "No court has ever interpreted that statute."
White said he had gathered evidence from executions throughout the nation indicating the three drugs used in Texas executions can cause excruciating pain.
Other suicides
Johnson, who had no criminal record before he was convicted of murdering Wetterman, was the seventh death row inmate to commit suicide since the state re-established capital punishment in January 1974.
John Devries, convicted of a Jefferson County burglary-murder, was the first Texas inmate sentenced to die under the law, arriving on death row Feb. 15, 1974. Four and a half months later, Devries, 53, hanged himself with bed sheets in his cell.
In 1998, condemned killer David Long was executed after an unsuccessful effort to kill himself with prescribed anti-depressants.
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From here: http://www.adelante.com/michaeljohnson/index.html
Michael Dewayne Johnson
Texas Death Row
Scheduled for Execution on October 19, 2006
For a Crime to Which Someone Else has Already Confessed
On October 19, 2006 the State of Texas is scheduled to execute Michael Dewayne Johnson for a crime he did not commit. Now 29 years old, Michael Johnson has been sitting on Texas Death Row since July of 1996 for a crime to which David Noel Vest had confessed in February of 1996. In fact, Vest signed a sworn confession before Michael Johnson even went to trial, and Crawford Long, the First Assistant District Attorney of McLennan County, Texas (one of Johnson's trial prosecutors) admits that this confession was suppressed, keep secret from Michael Johnson and his trial attorneys.
In June of 2006 the Chicago Tribune published a series of articles by Maurice Possley and Steve Mills that provide detailed and compelling evidence that the State of Texas executed innocent man on December 7, 1989 -- Carlos De Luna.
In November of 2005 the Houston Chronicle published a series of articles by Lise Olsen that provide detailed and compelling evidence that the State of Texas executed another innocent man on August 24, 1993 -- Ruben Montoya Cantu.
In December of 2004 the Chicago Tribune published an article by Maurice Possley and Steve Mills, and in May of 2006 Barry Scheck's Innocence Project released a report that each provide detailed and compelling evidence that the State of Texas executed a third innocent man on February 17, 2004 -- Cameron Todd Willingham.
On September 10, 1995 Michael Dewayne Johnson, 18 years old, and David Noel Vest, 17 years old, were driving a stolen Cadillac south on I-35 from Dallas to the Texas coast. The day before Vest had turned 17, so the two decided to go to the beach at Corpus Christi to celebrate. Also in their possession was a stolen 9mm automatic handgun. There was just the one firearm.
A few miles south of Waco, running low on gasoline, Johnson and Vest decided to steal a tank of gas from a gas station. That is, drive into the gas station, keep the car engine running, pump the gasoline, then drive away without paying. They went to two different gas stations, but found the conditions at each unfavorable. At about 7:00am they drove into the Fastime gas station/convenience store in Lorena, Texas.
Jeffrey Michael Wetterman, working as the store manager that morning at his parent's convenience store, came out of the store simply to greet Johnson and Vest. Mr. Wetterman liked to chat with the customers, but things couldn't have gone worse. Mr. Wetterman died from a single gunshot wound to the face. His carotid artery and spinal cord were both severed. Jeff Wetterman was 27 years old and had just been married three weeks earlier. Other than Johnson and Vest there was one other eyewitnesses to the crime. Lois Bean was working the cash register at the Fastime store that morning, but she didn't see anything until after the single gunshot.
Ms. Bean saw Mr. Wetterman sitting on the pavement by the gas pumps and Vest standing at the passenger side of the Cadillac. Vest got into the car just before it was driven off. Johnson and Vest were arrested a couple of days later in Dallas. Each was originally charged with capital murder, but a few weeks later the charges against Vest were dropped to Aggravated Robbery. Vest agreed to testify against Michael Johnson in return for leniency.
Michael Johnson was sentenced to death on May 8, 1996, but on February 29, 1996 David Noel Vest swore in writing that he committed the crime. Before Michael Johnson even went to trial his co-defendant David Noel Vest confessed under oath that he committed the crime for which Michael Johnson was later sentenced to death.
Michael Johnson was clearly a criminal. He was knowingly travelling in a stolen car. He knew that a stolen firearm was in the car. He deliberately conspired to steal gasoline. But, he didn't kill Jeffery Michael Wetterman. It's undisputed that only one gun was at the crime scene and only one shot was fired. It's undisputed that Mr. Wetterman was murdered by a lone gunman.Yet, it was Michael Dewayne Johnson who was sentenced to death for the crime David Vest swore he committed.
On February 29, 1996 in open court, facing Texas District Judge George Allen, facing McLennan County Assistant District Attorneys Crawford Long and Mike Freeman, with the full advice and consent of his attorney John Hurley, David Vest signed a sworn Judical Confession that he did "intentionally and knowingly cause the bodily injury to JEFFREY MICHAEL WETTERMAN, by shooting him with a handgun".
Click here for a PDF of David Vest's Judicial Confession. NOTE: the full document is entitled "Waiver of Jury Trial, Stipulation of Evidence and Judicial Confession, Felony Plea of Guilty". Vest's confession itself is on page 2 of the PDF, underlined, in the first paragraph under the heading Judicial Confession.
How is this possible?
Simple, the McLennan County, Texas District Attorney's Office withheld David Vest's confession from Michael Johnson and his trial attorneys, B. Dwight Goains and Robert T. Swanton, Jr. Michael Johnson told his attorneys that Vest was the shooter, but Michael's attorneys thought that it was just David Vest's word against Michael's.
Goains and Swanton admitted under oath that they didn't receive a copy of Vest's confession from the McLennan County District Attorney's Office. [Affidavit of B. Dwight Goains] [Affidavit of Robert T. Swanton, Jr.] First Assistant McLennan County District Attorney Crawford Long admits that the McLennan County District Attorney's Office withheld Vest's confession from Goains and Swanton. [Affidavit of Crawford Long, McLennan County Assistant District Attorney] NOTE: On page 3, the third to last paragraph, Long swears "the stipulation (which contained the confession) was not exculpatory (i.e., we didn't give it to Johnson's defense attorneys)".
Thus, when David Vest reversed his story at Michael Johnson's trial and testified instead that he didn't shoot Mr. Wetterman, that Michael Johnson did, Mr. Goains and Mr. Swanton didn't know that David Vest was committing perjury. More importantly, the jury didn't know that David Vest was committing perjury. But the prosecution, the McLennan County District Attorney's Office, (in the persons of Crawford Long and Mike Freeman) knew.
Just as amazingly, David Vest confessed to and Michael Johnson was sentenced to death before the exact same trial judge, George H. Allen, presiding judge of the 54th Texas District Court of McLennan County.
Mike Freeman signed Vest's confession. Crawford Long attended Vest's Guilty Plea Hearing. McLennan County Assistant District Attorneys Mike Freeman and Crawford Long each knew that David Vest confessed to having shot Jeff Wetterman, but stood silent when Vest testified at Michael Johnson's trial that Michael Johnson was the shooter. Mike Freeman and Crawford Long knowingly allowed Vest to commit perjury. Likewise, Texas District Judge George H. Allen also signed Vest's confession. Judge Allen also knew that David Vest confessed to having shot Jeff Wetterman, but Judge Allen too remained silent when Vest committed perjury.
The 14th Amendment to the Constitution of the United States of America expressly provides that "No State shall ... deprive any person of life ... without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In other words, the State of Texas must first provide any and all defendants a fair trial. In other words, the State of Texas is prohibited from executing Michael Johnson unless the State of Texas first provided him a fair trial.
But Texas didn't provide Michael Johnson a fair trial.
It is a fundamental miscarriage of justice for the prosecution to deprive any criminal defendant access to and knowledge of all helpful evidence in the possession of the prosecution. Likewise, it is a fundamental miscarriage of justice for the prosecution or the judge to allow false evidence to be presented to the jury. Most importantly, it is absolutely repugnant to the ideals of justice to allow an innocent man or woman to be executed.
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SPECIAL NOTE: Crawford, Texas -- where George W. Bush makes his home -- is in McLennan County, Texas.
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From here: http://www.adelante.com/michaeljohnson/misconduct.html
Prosecutorial Misconduct and Ineffective Assistance of Counsel
The law is most assuredly complicated, but no matter how complicated it is, it has to be fair.
The 14th Amendment to the Constitution of the United States of America expressly provides that "No State shall ... deprive any person of life ... without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In other words, the State of Texas must first provide any and all criminal defendants a fair trial before punishment. In other words, the State of Texas is prohibited from executing Michael Johnson unless the State of Texas first provided him a fair trial.
When the prosecution violates it's duty to provide a defendant a fair trial, then that's prosecutorial misconduct.
There are two well defined legal issues that make Michael Johnson's conviction and death sentence unfair: 1) the prosecution didn't disclose all of the material information in it's possession that could have helped Michael Johnson defend himself at trial, and 2) the prosecution presented false material evidence to the court. Even if the prosecution didn't know the material evidence was false at the time, then the prosecution was obligated to correct the error as soon as it learned the evidence was false.
Evidence is considered material "if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different." U.S. Supreme Court Case Kyles v. Whitley (1995) 514 U.S. 419. In particular, David Vest's Confession was materical because there was a reasonable probability that either Michael Johnson wouldn't have been convicted or wouldn't have been sentenced to death. After all, David Vest was the only other witness to the crime. Clearly his testimony outweighed all of the other evidence against Michael Johnson.
This first legal issue is commonly called a Brady issue. It's named after U.S. Supreme Court case BRADY v. MARYLAND, 373 U.S. 83 (1963). "Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Furthermore, the U.S. Supreme Court subsequently ruled that material evidence favorable to the accused must be revealed even if the accused doesn't ask for it.
Interetesting, Brady's case involved the suppressed confession of his co-defendant. The State of Maryland prosecuted Brady and a companion, Boblit, for capital murder. Brady admitted involvement, but claimed Boblit had done the actual killing. The prosecution withheld Boblit's sworn statement, confessing that he had committed the murder by himself. Thus, Brady was deprived a fair trial because the prosecution prevented him from showing to the jury that his conduct did not meet the definition of capital murder, although it did meet the definition of murder.
This is surprisingly similar to Michael Johnson's case. In Brady co-defendant Boblit confessed that he committed the murder by himself, but the prosecution withheld Boblit's confession from Brady and Brady's attorneys. In Johnson's case, co-fedendant Vest confessed that he committed the murder by himself, but the prosecution withheld Vest's convession from Michael Johnson and Michael Johnson's attorneys.
This second legal issue is commonly called a Giglio issue. It's named after U.S. Supreme Court case GIGLIO v. UNITED STATES, 405 U.S. 150 (1972). Giglio is similar to Brady. It also deals with suppression of material evidence, but it's more about the presentation of false evidence to the court. That the prosecution may not present false evidence to the court, and even if the presentation of false evidence is unknowing, made in good faith, the prosection must immediately so alert the court and the opposing counsel when it's learned that the evidence is, in fact, false.
In Giglio, defense counsel asked a witness on cross-examination if there were any promises of leniency. The witness falsely answered no, and the prosecution did nothing to correct the witness's false answer. Even though the trial prosecutor was unaware of the state's promise for leniency, Giglio was deprived a fair trial. It was the State's responsibility on the whole to keep the witness from presenting false evidence to the court, even if the trial prosecutor himself was unaware of the promise of leniency. In sum, the jury didn't get to learn of evidence that affected the witness's credibility, and that deprived Giglio of a fair trial.
In Michael Johnson's case, the McLennan County District Attorney's Office deprived Johnson and his attorney material favoral evidence, and it also presented false evidence to the court without correcting it.
Regarding Brady, first, Crawford Long, the First Assistant District Attorney of McLennan County, Texas admits that Vest's Confession was not disclosed to Johnson or his attorneys. [Crawford Long's Affidavit] Long swore that he did not consider Vest's Confession exculpatory: "The stipulation was not exculpatory". NOTE: Vest's Judicial Confession was contained in the stipulation. [See page 3 of Long's affidavit, the third from the last paragraph.]
Also, clearly, Vest's confession would have been favorable to Johnson at trial. As soon as Vest testified that Michael Johnson shot Jeffrey Wetterman, then Johnson's attorneys could have immediately confronted Vest with his confession. "Mr. Vest, I have in front of me your sworn statement that you shot Mr. Wetterman. On February 29th you swore that you shot Mr. Wetterman. Now you reverse yourself and say that you didn't shoot Mr. Wetterman. Do you understand that you were obligated to tell the truth in your Judicial Confession, and that you're obligated to tell the truth now. Obviously, one of these sworn statements is a lie. How do you explain this?"
NOTE: it is undisputed that there was only one gun at the crime scene and only one shot was fired. It is undisputed that there was only one gunman, and there could only have been one gunman. When Vest confessed to having shot Mr. Wetterman, then that proved that Michael Johnson didn't shoot Mr. Wetterman.
Regarding Giglio, clearly the McLennan County District Attorney's Office knew that Vest has signed the February 29, 1996 Judicial Confession. There's no doubt that the McLennan County District Attorney's Office knew exactly what was in Vest's Judicial Confession, for the McLennan County District Attorney's Office most assuredly authored Vest's Confession. Also, Assistant District Attorney Mike Freeman signed off on it. That's undisputed. Mike Freeman's signature is part of David Vest's Judicial Confession. Obviously, the McLennan County District Attorney's Office knowingly presented false information to the court when it allowed David Vest to testify that Michael Johnson shot Jeffrey Wetterman.
Moreover, the State of Texas cannot accept a plea of guilty unless there is also evidence presented to the court that shows the defendant is actually guilty. Usually this evidence is in the form of the defendant's formal sworn confession. More importantly, the evidence presented in support of a guilty plea must then be accepted by the court as the basis for its judgment of guilty. That is, when the State of Texas accepts a plea of guilty, it is required by law to accept the evidence proving guilt as true and correct. In other words, when the State of Texas accepted David Vest's plea of guilty on February 29, 1996, then State of Texas accepted David Vest's Judicial Confession as true and correct on February 29, 1996.
On February 29, 1996 the State of Texas accepted as fact that on September 10, 1995 David Vest shot Michael Johnson. Ergo, it is direct and unequivocal that the State of Texas presented false evidence when David Vest testified the Michael Johnson shot Jeffrey Wetterman. It is direct and unequivocal that the State of Texas used false evidence to get Michael Johnson convicted and sentenced to death.
In sum, the McLennan County District Attorney's Office admitedly withheld Vest's confession for Michael Johnson. That's a Brady violation. The McLennan County District Attorney's Office knowingly allowed false evidence to be presented to the court. That's a Giglio violation. Each is prosecutorial misconduct.
It's interesting how the State of Texas tries to justify this. The State of Texas argues that the Texas Law of Parties (Texas Penal Code Sections 7.01 and 7.02) allowed the McLennan County District Attorney's Office to present false information to the court.
The Texas Law of Parties, Section 7.01 of the Texas Penal Code, is as follows:
(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
(b) Each party to an offense may be charged with commission of the offense.
(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.
The purpose of the Law of Parties is to facilitate indictments and jury charges. It does not give witnesses permission to lie under oath. It does not give prosecutors permission to present false sworn evidence to the court. It does not give prosecutors permission to suppress favorable material evidence from the defendant.
It's well understood in the United States that an accomplice is just a guilty as the principal if intent of the principal and the accomplice are the same. For example, three men conspire to rob a bank. Two enter the bank and the third waits outside in the getaway car. The plan is for the two who enter the bank to kill the bank's security guard, take the money then leave. The getaway driver is just as guilty because he knew that the other two were armed and planned to kill the security guard.
The Texas Law of Parties comes in if after the three are apprehended and arrested, they refuse to say who entered the bank, who fired the fatal shot and who stayed in the car. Per the Texas Law of Parties the State need not allege in the indictment who actually fired the fatal shot, nor who stayed in the car. Likewise, when the judge issues the jury charge, the jury charge need not instruction the jury to find who fired the fatal shot, or who stayed in the car to convict each of capital murder. If the state proves beyond a reasonable doubt than the defendant participated in the bank robbery, then that person is guilty. The prosecution doesn't need to prove exactly how the defendant participated. The jury just needs to find that the defendant was one of the three bank robbers.
However, the Texas Law of Parties does not allow the prosection to present false information to the court. When a witness testifies "he was the shooter", the issue isn't that there's no distinction between principal and accomplice, the issue is the truth. Sworn testimony of "He was the shooter" is not the same as, and cannot be considered the same as, "I was the shooter". The jury, of course, as the duty to determine whether the testimony was true or not. But the Texas Law of Parties does not give the jury the privilege to substitute freely "I was the shooter" evidence with "He was the shooter" evidence.
Likewise, the McLennan County District Attorney's Office did not have the privilege to think that when David Vest signed his Judicial Confession swearing under oath that he shot Jeffery Wetterman, that Vest's Confession really meant Michael Johnson shot Jeffery Wetterman.
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The corrolary to the McLennan County District Attorney's Office prosecutorial misconduct, is that Michael Johnson's attorneys should have looked for David Vest's confession anyway.
Regarding appointment of counsel at a criminal trial, the Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." The U.S. Supreme Court made this applicable to criminal defendants in state trials in Gideon v. Wainwright, 372 U.S. 335 (1963). Furthermore, the U.S. Supreme Court has ruled that "assistance of counsel" means "effective assistance of cousel". That the attorney must provide the defendant a minimal level of legal professionalism. Less than "effective assistance of counsel" is a violation of the defendant's Sixth Amendment rights.
Trial Attorney Dwight Goains and Robert Swanton did make requests for information from the McLennan District Attorney's Office. And those requests, albeit general requests - i.e. "any and all written or recorded statements concerning this case by any persons who are prospective prosecution witnesses" - clearly included David Vest's Confession.
However, Goains and Swanton should have known that David Vest had signed a Judicial Confession. They should have noticed that the McLennan County District Attorney's Office had not disclosed Vest's Confession, and they should have specifically asked for it.
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However, the reason why the U.S. District Court and the U.S. Court of Appeals for the Fifth Circuit denied Michael Johnson habeas relief was purely procedural. The 1996 Antiterrorism and Effective Death Penalty Act makes it extremely difficult for a person on Death Row to make a second round of federal appeals.
Specifically before the appeals courts will even consider the merits of a successor federal habeas appeal, the following conditions must be satisfied.
The factual predicate for the claim could not have been discovered previously through the exercise of due diligence, and
the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
In Michael Johnson's case, the U.S. District Court ruled that Michael Johnson or his attorneys should have found Vest's Confession in time to have included it in Johnson's first federal habeas appeal. And the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Court agreed. Thus, the courts never really considered Johnson's Brady claim or Giglio Claim.
However, U.S. Supreme Court held in Mooney v. Holohan, 294 U.S. 103 (1935), that the Fourteenth Amendment cannot under any circumstances tolerate a state criminal conviction obtained by the knowing use of false evidence. Sadly, the U.S. Supreme Court is deviating and retreating from that establish principle now.